Monday, July 11, 2005

Board of Prison Terms v. Superior Court (Cal. Ct. App. - July 5, 2005)

I'm always conflicted when I think about parole. On the one hand, I'm consistently upset whenever I read an opinion -- and there are several of them -- in which the defendant is convicted of a serious crime after a prior conviction for a serious crime that resulted in a relatively brief period of incarceration (including a potential early release on parole). You definitely don't want to release people who will reoffend, and it probably pays to be a little bit risk adverse in this regard. On the other hand, you want to give convicts both a second chance at a life and also an incentive to perform well in prison; plus, you don't want to keep people rotting in prison when they can become productive and worthwhile members of the community.

So I definitely see both sides to the issue. But the current application of parole by the Board of Prison Terms seems to avoid any sort of reasonable middle ground. Apparently, the Board denies 98 percent of all parole applications, and does so nowithstanding the fact that the Legislature has stated in Section 3041 of the Penal Code that the Board should "normally" set a parole date. A 98-2 split is not exactly the ratio I'd expect from a fair and neutral body.

The California judiciary has -- thus far -- consistently rebuffed attempts to challenge the fairly obvious (and potentially illegal) parole policies that are being applied by the Board, and when a judge goes against this tide and gets involved, the resulting decision generally doesn't last very long. So too here. Judge Emerson in Santa Clara County had four separate habeas petitions involving prisoners who were denied parole in very similar settings, seemingly consistent with the Board's policy to pretty much automatically deny parole to anyone convicted of murder. But the Sixth Appellate District had previously held (in a case now accepted for review by the California Supreme Court) that in order to get relief, it wasn't enough just to show evidence that the Board was doing the exact same thing in virtually every case; rather, you'd have to introduce "statistically significant" evidence of a disparity. So Judge Emerson orders the Board to produce discovery of the basis for its pervasive denial of parole; namely, the decision sheets that articulate its reasons for the various denials. That way the prisoners can have the essential evidence required for any statistically significant showing.

Sorry, Justice Bamattre-Manoukian -- of the Sixth Appellate District -- holds. Reversed. The prisioners don't get such discovery. I guess you'll have to make your "statistically significant" showing without any statistics. Good luck!

Look, the California Legislature could certainly abolish parole. I don't think that'd be a great idea, but they could do it. Or they could pass a law that says that it should be reserved only for the most exceptional case. But, again, they haven't. What the Board's doing here seems clearly impermissible. And for the judiciary to go to such great lengths to close its eyes to the Board's obvious practice also seems improper. I'd hope for -- and expect -- more from a neutral judiciary.