Legal Developments: 2000 – 2008

On April 27, 2000, the Second District Court of Appeal (in Los Angeles) decided In re Rosenkrantz (2000) 80 Cal. App. 4th 409. That case marked the first instance in a long time that a court struck down the Board’s decision and ordered relief for a lifer. The Court ordered the Board to give Mr. Rosenkrantz a new hearing, which resulted in a parole grant. This decision energized lifers’ efforts to secure their freedom. In the ten years that followed, thousands of lifers made their way into the courts to challenge unlawful decisions by the Board and the Governor.

On December 16, 2002, the California Supreme Court decided In re Rosenkrantz (2002) 29 Cal. 4th 616. Following the Board’s rehearing and parole grant in Mr. Rosenkrantz’s case, the Governor had reversed the grant. And here, the Court held that the Board and the Governor can rely solely on the circumstances of a prisoner’s crime to deny parole, as long as they identify aspects of the act that fit the parole regulations’ description of an “especially heinous, atrocious or cruel” crime. The Board had already been describing every crime as “especially heinous, atrocious or cruel,” so this seemed to put a stamp of approval on that practice.

On January 24, 2005, the California Supreme Court decided In re Dannenberg (2005) 34 Cal. 4th 1061, and repeated what it had said in Rosenkrantz (2002) – that the crime alone could be a reason for the Board or the Governor to block a prisoner’s release. But here, the Court further held that, as long as the Board’s or the Governor’s decision was based on protection of public safety, it did not matter how long the prisoner had been incarcerated, even if this was far longer than the maximum term under the Board’s regulations.

Together, Rosenkrantz and Dannenberg touched off a battle among superior courts and appellate courts in the state. Some interpreted the Supreme Court’s decisions to say that, as long as the Board or the Governor could point to any evidence in the record to support their factual findings (e.g., that the prisoner had a criminal history), the parole decision had to stand. Other courts believed such a strict view would permit parole decisions to rest on unchangeable facts about the past, thereby preventing many lifers from ever being released.

This latter view prevailed and gave rise to two cases — Lawrence and Shaputis, discussed below — that set the stage for what now happens in parole hearings, and for how courts review parole decisions by the Board and the Governor.

On August 21, 2008, the California Supreme Court decided In re Lawrence (2008) 44 Cal. 4th 1181. Lawrence made clear that the seriousness of a prisoner’s crime is not enough by itself to justify denying parole. Instead, current evidence is necessary to show that a prisoner remains dangerous. In other words, prisoners who have strong records of rehabilitation, and who demonstrate that they could safely be released, must be granted parole even if their crimes were really bad.

Lawrence signaled an end to the practice of denying almost everyone parole. However, in another case decided the same day — Shaputis — the Supreme Court gave the Board and the Governor a way to continue denying parole while claiming to act fairly.

On August 21, 2008, in deciding In re Shaputis (2008) 44 Cal. 4th 1241, the California Supreme Court said the Board and the Governor can still rely on a prisoner’s crime from decades earlier if, at the time of the parole decision, “some evidence” shows that the prisoner lacks “insight” into why he or she committed the crime. Relying on Shaputis, the Board and the Governor have continued denying parole most of the time; but in addition to finding that every crime was especially bad, they have also find that every prisoner remains dangerous because he or she lacks “insight.”