Monday, January 24, 2005

In Re Dannenberg (Cal. Supreme Ct. - January 24, 2005)

Look, I'm no softie when it comes to parole, particularly for individuals convicted of murder (or rape, for that matter). I visibly cringe every time I read an opinion in which, during the course of discussing the defendant's criminal history, the court notes that he had previously been convicted of X, was released, and then promptly again committed X. It's always distressing, and I read that sort of stuff not infrequently.

But that doesn't mean that California should ditch the concept of parole, either de jure or de facto. And if you read the various California opinons about parole as they come up, you can't help but come to the conclusion that, in practice, that's precisely what the Board of Prison Terms has done. The stark reality is that, nowadays, it is virtually impossible to get parole if you've been convicted of murder. No matter how much time you've served or how rehabilitated you've become or how idiosyncratic your prior offense, the Governor (and the members of the BPT) just ain't gonna risk flack by letting you out.

You can wade through the 43-page opinion (and 15-page dissent) in this case to get a feel for the tenor of the contemporary approach to parole in California, and the case itself essentially holds (in a 4-3 decision) that the BPT can deny parole -- even though the underlying statute says that parole should normally be granted -- basically because the defendant committed the offense for which he was convicted. Which, of course, is always the case. Or you can look at the statistics; for example, that parole is granted in less than one percent of parole hearings.

Or you can simply look at the facts of this particular case, where Dannenberg is convicted of second-degree murder of his wife (in very ambiguous circumstances, and I say that having read hundreds of these kinds of opinions) and is denied parole after 18 years in prison -- with no real likelihood of getting parole any time in the future, either -- notwithstanding the fact that he had no prior criminal history, has been a model prisoner, and is not at all the type of person you'd think would reoffend. This is a guy who has already served 18 years in the clink. He presents, in my mind, about the best case for parole that you're ever going to could find in a murder case.

But the BPT says no way. You hit your wife on the head with a pipe, so we aren't taking the risk of letting you outside a cage. Only your friends and family will complain if we let you rot in prison. Whereas everyone in the state will go ballistic if we release you and you reoffend. So we ain't taking the chance. Eliminate the BPT's gussied-up language and that's basically the motivation behind their decision, both here and in other cases.

Look, I have no problem if people want to abolish parole. I think that'd be a very bad move, and would result in a much worse prison system -- and much worse offenders (and offenses) -- upon release. But at least such an approach would be forthright and legitimate. The system that we have right now, by contrast, seems to me precisely the opposite. Which is why, I think, that a near-majority of the California Supreme Court -- hardly a cauldron of left-wing softies -- recognizes the prevasive illegitimacy of the existing regime.

So it's a long opinion to wade through, and maybe it helps if have to have more context (e.g., have read the legions of other parole cases that have come down the pike over the past six years or so). But it's an important topic, and worth the read.