One of the fairly memorable constants of reading all of the published California appellate decisions during the past decade or so revolves around the treatment of parole applications by convicted murderers. The current scoop -- for those who don't recall it -- is that Governors Davis and Schwarzenegger (among others) (1) made sure to appoint very hard core (anti-parole) people to the Board of Parole Hearings, and (2) adopted and applied (and, in the latter case, continue to apply) an unannounced policy -- one that would be clearly illegal if formally announced -- of uniformly reversing the Board of Parole Hearings in those rare circumstances in which the Board eventually grants parole to an individual convicted of murder. Basically, the elected official doesn't want to take a potential political hit by granting parole to a murderer since, by definition, there is a non-zero chance that anyone who's released from prison would reoffend, and the political consequences of granting parole to a murderer who does so might be immense. So why take the chance? Especially since the only people who care strongly about the murderer are his family and (typically, few) friends, and the number of those votes ain't all that large.
But, over the years, I've gotten the sense that an uneasy -- and unusual -- arrangement has essentially developed between the California judiciary and the California executive branch with regard to this issue. Basically, the judiciary realizes that the executive is violating the spirit (and perhaps the letter) of the parole statutes, but in the face of an executive denial of illegality, is unwilling to call the executive a liar (especially since motive and intent is such a hard thing to prove). Hence there's no categorical judicial solution to the problem. At the same time, the judiciary realizes, over the years, what's going on, and eventually develops its own solution, and starting with a trickle -- and then, later, with a pour -- starts to routinely overturn the executive in individual cases, holding that in the particular case the executive's reversal of a parole grant was unfounded. Which, in turn, the executive -- while ostensibly (and, likely, in reality) opposing what the judicial branch is doing, is in truth not all that bummed at the resulting arrangement. Sure, some murderers get let out, and maybe that's not the greatest thing. But, on the upside, only in the most exceptional of worthy cases will a hard-core Board of Parole Hearings grant parole in the first case, and even amongst that group of cases, only in ones with exceptional merit will the judiciary step in and reverse the Governor's reversal of parole. So, in the end, the Governor realizes that only a select few will be released, that these are probably the ones that are really entitled to parole, and in the unlikely event they reoffend, it's the judiciary that will take the hit. So it's a win-win for both the executive and the judiciary. The judiciary gets to "do justice" and the executive gets to take a political stand whose adverse human consequences are mitigated by the judiciary. And everybody is happy with the arrangement -- at least as compared to the plausible available alternatives.
That's my thought, anyway, about where we stand, and although the way I've articulated this vision may suggest conscious decisionmaking by the parties, I don't think that's the case. I just think that, in the end, the participants have reached somewhat of a steady state, and that -- especially in the last couple of years -- one has tended to see this state of affairs more firmly reflected in the conduct of both the executive and judiciary. The executive's denials of parole become even less plausible than normal (since they know that the primary thing they have to do is simply to deny parole for political reasons) and the judicial reversal of such denials has become both less cautious and more routine.
Obviously, I'm talking about a meta-vision here, so there's no single case or (or even isolated group of cases) that affirmatively establishes the validity of my sense in this regard. But I do think that this case from today, as well as this case from a couple days ago, reach results that are consistent with my view of what's tended to happen over the past couple of years. Note particularly, in the case from today, that the Court of Appeal initially summarily denied the murder's petition, but ended up reversing the denial of parole after the California Supreme Court vacated this decision and ordered an OSC. I think that the California Supreme Court -- albeit alongside several important justices on the Court of Appeal -- has solidified the prevailing norm in this area both by various opinions in individual cases as well as by constant reaffirmation of the underlying principle.
Which is not to say that there aren't exceptions, as there surely are. But I do think that this is a rare situation in which two branches have found -- albeit somewhat clumsily, and without deliberate design -- a relationship that "works" for both of them. One that's extralegal, but nonetheless based on law. So it's an interesting dynamic. And something that's definitely worth thinking about.
