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This page discusses some of the developments over the past ten years to give you some sense of the evolution of how the courts review parole decisions. There are way too many published cases to cover them all here; however, we have tried to include those that represent how courts approach this area of the law. Also, there are many more unpublished decisions than there are published ones, but only some of the published opinions are presented here. We will try to update this page regularly as new decisions are published. The cases are presented in chronological order, so scroll to the bottom to see the most recent decisions.
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 time in a very long time that a court was willing to strike down the Board’s decision and order relief for a Lifer. The Court ordered the Board to go back and give Mr. Rosenkrantz a new hearing, which resulted in a parole grant. The Governor later reversed that parole grant, which led to the next (and more popular) Rosenkrantz decision, discussed in the following paragraph. However, this case from April 2000 was significant because it instantly 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. There, the Court held that the Board or Governor can rely solely on the circumstances of a prisoner’s crime to deny him or her parole as long as they can identify some aspects of the crime that might fit within the description in the parole regulations of an “especially heinous, atrocious or cruel” crime. Of course, 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 said in Rosenkrantz in 2002 – that the crime alone could be an acceptable reason for the Board to deny parole or for the Governor to block a prisoner’s release. However, in Dannenberg, the Court went a bit further and held that, as long as the Board’s or Governor’s decision was based on the protection of public safety, then it did not matter how long the prisoner had been incarcerated, even if the length of incarceration is far longer than the maximum term under the Board’s regulations.
Taken together, Rosenkrantz and Dannenberg touched off a battle among the superior courts and appellate courts in the state. Some courts interpreted the Supreme Court’s decisions to say that, as long as the Board or Governor could point to any evidence in the record that might support their factual findings (for example, that the prisoner had a criminal history, or that the prisoner committed some act that was more than necessary to complete the crime) then the parole decision had to stand. Other courts believed that such a strict view would prevent many Lifers from ever being released because the parole decisions were being based on facts from the past that would never change. This later view finally prevailed and gave rise to In re Lawrence and In re Shaputis – two Supreme Court cases that really set the stage for what currently happens in parole hearings and how courts review decisions by the Board and 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, the Court held that there had to be some current evidence to show that the prisoner remains dangerous. In other words, prisoners with strong records of rehabilitation and who demonstrated that they could safely be released must be granted parole even if their crimes were really bad. With this decision, Lawrence seemed to signal an end to the practice of denying almost everyone parole. In fact, the Board has increased its rate of granting parole in the two years since Lawrence was decided. However, in the other case the Court decided the same day as Lawrence (discussed next), the Supreme Court gave the Board and the Governor a way they could continue denying parole and claim to be acting in a fair manner.
The California Supreme Court also decided In re Shaputis (2008) 44 Cal.4th 1241 on August 21, 2008. In Shaputis, the Court said that the Board or Governor can still rely on a prisoner’s crime from decades earlier if, at the time of the parole decision, there is some evidence showing that the prisoner somehow lacks an understanding of why he or she committed the crime. Relying on Shaputis, the Board and Governor have continued denying prisoners parole most of the time; however, in addition to finding that every crime was especially bad, they also find that every prisoner lacks “insight” into their crimes and that is why they remain dangerous.
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The Lawrence and Shaputis cases are not only significant because of what they said about how the parole consideration process is supposed to work, they are also really important because they came from the California Supreme Court. All the courts of appeal in California and all the county superior courts (where these petitions start) must follow what the California Supreme Court said in Lawrence and Shaputis. Set forth below are some examples of how the lower courts (and even the federal Ninth Circuit Court of Appeals) are applying those two cases.
On December 10, 2008, four months after Lawrence and Shaputis were decided, the Third District Court of Appeal (in Sacramento) decided In re Singler (2008) 169 Cal.App.4th 1227. That court rejected the Board’s claim that Mr. Singler lacked “insight” into the crime because he was unable to explain exactly why he had reacted in such a violent manner in killing his wife and what would stop him from doing the same in the future. In fact, the court found that Mr. Singler completely understood why he murdered his wife, and that he had taken commendable steps in prison to change his behavior and improve himself. The court ordered the Board to release Mr. Singler unless new evidence of his conduct or change in mental state after the 2006 parole hearing showed that he was dangerous.
The day after the Singler decision, the Second District Court of Appeal (in Los Angeles) decided In re Aguilar (2008) 168 Cal.App.4th 1479. There, the governor based his reversal decision almost entirely on the crime, but the Governor did also cite Mr. Aguilar’s criminal history (from 50 years earlier), his two nonviolent 115s and the district attorney’s opposition to release. The Court observed that the Penal Code (Section 5011) prohibits the Board or Governor from requiring a Lifer to admit guilt in order to be paroled. The court granted Mr. Aguilar’s writ and ordered him released.
In early January 2009, the Second District Court of Appeal (in Los Angeles) decided In re Gaul (2009) 170 Cal.App.4th 20. The court rejected the Governor’s reliance on Mr. Gaul’s crime, his history before the crime and a 10 year-old negative psychological evaluation because all that evidence was old. In fact, the Governor tried to rely on the old psychological evaluation even though there were two more recent evaluations that were both positive. With no evidence to support a finding that Mr. Gaul posed an unreasonable risk of danger if released, the court granted Gaul’s writ of habeas corpus and ordered him released.
In re Vasquez (2009) 170 Cal.App.4th 370, was decided by the Fourth District Court of Appeal (in San Diego) on January 21, 2009. There, the Governor claimed Mr. Vasquez failed to take responsibility for the crime because he said he acted in self-defense. The Governor also argued Mr. Vasquez was unsuitable for parole because he did not have remorse. The court found that Mr. Vasquez never relied on self-defense to justify his actions and that all psychological evaluations show that Vasquez was very remorseful and that he understood the enormity of taking another man’s life. Vasquez’s writ was granted because the court was unable to find “some evidence” that he posed an unreasonable threat to society if released.
On February 11, 2009, the Third District Court of Appeal (in Sacramento) decided In re Palermo (2009) 171 Cal.App.4th 1096. The court found that the Board’s reliance on Mr. Palermo’s disciplinary record (3 nonviolent 115s in the previous 20 years), the seriousness of the crime, and the Board’s claim that he lacked “insight” was not supported by any evidence he is currently dangerous. The Board determined that Mr. Palermo “lacked insight” because he continued to insist that the killing of his girlfriend was the accidental result of playing with his gun, which he believed to be unloaded. Although he took full responsibility for taking her life, he continually expressed his belief that he committed manslaughter and not murder. The court emphasized that a board cannot require a Lifer to admit guilt and that Mr. Palermo’s insistence that he is only guilty of manslaughter did not provide “some evidence” of his current dangerousness.
On February 26, 2009, the Second District Court of Appeal (in Los Angeles) decided In re Rico, (2009) 171 Cal.App.4th 659. The court went through each factor offered as a reason to deny Mr. Rico parole and found that none was “some evidence” of his current dangerousness. The court also held that Mr. Rico’s decision not to discuss the crime with the Board could not be used as evidence that he “lacked insight” because Penal Code Section 5011 and Title 15 of the California Code of Regulations, Section 2236, protect his right not to discuss the crime.
On March 13, 2009, in In re Lewis (2009) 172 Cal.App.4th 13, the Sixth District Court of Appeal (in San Jose) considered evidence from the Santa Clara County Superior Court that the Board found the crime to be “especially heinous” in 100% of the cases in which parole was being denied. While the superior court had ordered the Board to change its rules and to train its commissioners so that this practice would not continue, the Court of Appeal in Lewis held that the superior court went too far. Specifically, there was no proof that the Board’s finding that the crime was especially heinous was the only reason for denying parole in all of the nearly 3,000 cases reviewed, so the superior court should not have ordered such sweeping changes.
On March 16, 2009, the Fourth District Court of Appeal (in San Diego) decided In re Rozzo (2009) 172 Cal.App.4th 40. The Court found that there was evidence – including Mr. Rozzo‘s use of racial epithets and his stated goal of hunting Blacks – that his torturous and prolonged murder of a Black victim was racially motivated. Among other factors, Mr. Rozzo’s refusal to acknowledge that the crime was racially motivated or that he ever had any racial animosity was enough to justify the Governor’s reversal of his parole grant because it showed a “lack of insight.”
On December 11, 2009, the Second District Court of Appeal (in Los Angeles) decided In re Masoner (2009) 179 Cal.App.4th 1531. The court held that when a court finds that there is no evidence supporting the Governor’s reversal of a parole grant, the court has the authority to reinstate the parole grant and order a prisoner released without giving the Governor another chance to review the case.
On December 18, 2009, the Sixth District Court of Appeal (in San Jose) decided In re Criscione (2009) 180 Cal.App.4th 1446. The Court held that there was evidence that Mr. Criscione, who strangled his girlfriend, remained dangerous years later based on the seriousness of his crime, his history of abusing female partners, and the lack of a strong record of rehabilitation related to this history. The Court upheld the Board’s decision even though the Board failed to tie all these pieces together by explaining the “nexus” (or connection) between Mr. Criscione’s history and his risk at the time of the hearing. The Court held that it was enough that the Board was relying on a recent psychological evaluation that raised some concern about his potential for violence in relationships with women in the future.
On February 4, 2010, the federal district court in Sacramento ordered the Board to stop applying Proposition 9 (Marsy’s Law) to the plaintiffs in Gilman v. Davis (Case No. CIV. S-05-830 LKK/GGH). The court held that Marsy’s Law, which drastically increased the period between parole hearings, is probably unconstitutional when applied to prisoners whose crimes were committed before the law passed. The court will conduct further hearings to determine whether it really is unconstitutional. If it is, then the Board can no longer deny prisoners parole for up to 15 years. Check back here for updates on this case.
On March 25, 2010, the Second District Court of Appeal (in Los Angeles) decided In re Loresch (2010) 183 Cal.App.4th 150. There, the Court rejected the Governor’s decision, which relied on the seriousness of the crime and on some speculation that Mr. Loresch could relapse into drug abuse and become violent in the future. After reinstating the Board’s parole grant and order Mr. Loresch released from prison, the Court went further and urged the Governor to reconsider his approach to the parole consideration process in order to restore confidence in the Board’s determination and stop second guessing their parole-suitability determinations. This was one of the first cases in which the court took this extra step to seemingly speak directly to the Governor.
On April 22, 2010, the Ninth Circuit Court of Appeals finally decided Hayward v. Marshall (9th Cir. 2010) 603 F.3d 546. A lot of people were waiting for this decision to be published. During the years the court considered it, dozens (if not hundreds) of cases were held up at various stages in federal court as the Ninth Circuit considered whether and how federal courts should review parole decisions in California. The case ended badly for Mr. Hayward, who was returned to prison after years on the outside because the Court thought there was some evidence to support the finding that he remained dangerous. However, the outcome for most Lifers pursuing their challenges in federal court after losing in state court was not that significant. In the end, Hayward simply said that, like the state courts, federal courts have to consider whether the Board or Governor followed Lawrence and only denied parole where there was current evidence of a prisoner’s risk to public safety. The Hayward Court also said that Lifers whose petitions are denied in the federal district court have to obtain what’s called a “certificate of appealability” in order to pursue their cases into the Ninth Circuit Court of Appeals. Perhaps the worst part of the case (other than its outcome for Mr. Hayward) is that the Ninth Circuit said that a “low to moderate” risk finding (as opposed to “no risk” or simply a “low risk”) in a psychological evaluation could support the denial of parole in some cases. This may cause problems for Lifers until the state courts address this issue directly.
On May 12, 2010, the First District Court of Appeal (in San Francisco) decided In re Calderon (2010) 184 Cal.App.4th 670. That court picked up where Loresch left off, observing that it is clear that the Governor’s decisions are not really made by the Governor himself, but by his legal staff. The Court strongly urged these people to understand the “magnitude of the problem” of their refusal to follow the law, which forces the courts to step in and straighten things out.
On May 24, 2010, in Pearson v. Muntz (9th Cir. 2010) 606 F.3d 606, the Ninth Circuit Court of Appeals quickly followed up its decision in Hayward to head off the California Attorney General’s attempts to argue that, after Hayward, California Lifers have no right to parole. In some very strong language, the Court addressed the Attorney General’s “fundamental misunderstandings of Hayward,” and made clear that Lifers can pursue their challenges in federal court and that, once there, the requirements of Lawrence (that parole decisions be based on current evidence of danger) must be followed.
On June 8, 2010, the First District Court of Appeal (in San Francisco) decided In re Shippman, 2010 WL 2282569 (Case No. A125182). The Court held that there was evidence that the 70 year-old prisoner, who had killed his wife seventeen years earlier, remained dangerous because “he lacked insight into his irrational need to control the love and affection of others, and his parole plans were marginal.”
On June 11, 2010, the Third District Court of Appeal (in Sacramento) decided In re Ross, 2010 WL 2338031 (Case Number C062466). There, the Court reviewed the Governor’s decision in a case that had been sent back to him after the Lifer’s earlier habeas victory. The Court held that, when the case comes back to the Governor, he can consider new evidence not previously addressed as long as it relates to public safety.
