CA Supreme Court Capitulates, Rewrites "Unworkable" 2005 Dannenberg Lifer Judicial Parole Review Standards

In a welcome reversal of its own “hotly contested” 4-3 decision in In re Dannenberg, 34 Cal. 4th 1016 (2005), concerning judicial review of Board of Parole Hearings (Board) lifer decisions and the Governor’s reversal thereof, the California Supreme Court threw out its earlier “exceeds the minimum elements of the offense” test as being “unworkable.”

The Court decided that the statutory language “shall normally set a parole release date” no longer means just “a hope” of parole but is in fact a mandate, and held that the deferential “some evidence” test for judicial review means some evidence of current dangerousness, not “some evidence” of the existence of the Board’s regulatory factors.

Finding no such dangerousness in the record, the state Supreme Court upheld an appellate ruling that overturned the Governor’s reversal of a favorable parole decision for a first-degree murderer. See: In re Lawrence, 190 P.3d 535 (Cal. 2008).

In a parallel decision issued the same day, the Court gave an example of where some evidence of current dangerousness did exist in the record, and affirmed the Governor’s reversal of a grant of parole by the Board. See: In re Shaputis, 190 P.3d 573 (Cal. 2008).

These two decisions affect perhaps 1,000 pending lifer habeas corpus petitions in the California and federal courts.

In its 2005 Dannenberg ruling on judicial review of Board lifer parole decisions, the Court had crafted a rule holding that a term-to-life prisoner could be kept in prison forever if the Board (or Governor, since they operate under the same rules) made a finding that the commitment crime “exceeded the minimum elements of the offense.” This odd judicial construct was sharply rejected by the three dissenting justices in Dannenberg as “essentially meaningless,” because no one would ever have been convicted unless his criminal behavior exceeded the minimum elements of the offense.

Now, three years and dozens of dissonant appellate court rulings later, the Supreme Court’s dissenters in Dannenberg, abetted by Chief Justice Ronald M. George, reversed course and made a new rule for judicial review of lifer Board decisions that comports with (1) the law [Penal Code § 3041], (2) bedrock rules of statutory construction [“shall” is mandatory] and (3) the true mission of lifer parole determinations [no evidence of current dangerousness if released].

The Court also gave direction as to the Board’s and Governor’s exercise of discretion. No longer may a parole denial or reversal be based upon the conclusory “hunch or intuition” of the decision maker, and no longer may a rote recitation of the “egregious” facts of the crime serve to deny parole (after the full minimum term has been served). Rather, there must be a logical nexus between the offense – and/or the prisoner’s earlier criminal record or in-prison record – and a determination of current dangerousness. The proper test upon judicial review is that a finding of current dangerousness must be based upon hard evidence of that nexus found in the record.

In thus ruling, the Court overruled its strained logic in Dannenberg which had held that “shall normally set a parole date” meant “almost never,” because “shall” was not mandatory language and “normally” had no meaning at all. The Court also abandoned its Dannenberg foray into the murky concept of “legislative acquiescence,” which had held that lawmakers impliedly approved of recent lifer parole results of a fraction of one percent per year. Instead, the Court’s recent rulings impliedly conceded the truth: lifers were being held indefinitely as political pawns due to a post-Dukakis fear of approving any paroles.

The Court’s dual rulings in Lawrence and Shaputis serve to guide lower courts in challenges to adverse parole decisions. While Sandra Lawrence had a prior criminal lifestyle, was on the lam for 11 years before being brought to justice and had polished off her mortally wounded victim with a potato peeler, it was her 24 subsequent years of impeccable behavior – which demonstrated great self-development and growth of maturity – that led the Court to find that although she certainly had past evidence of dangerousness, it was not linked to any demonstrable current propensity for being a danger if released.

By contrast, the Court panned Richard Shaputis, who had also served his minimum term (15-life for the second-degree murder of his third wife), because there was “some evidence” from Shaputis’ checkered history of failed relationships – punctuated with numerous acts of violence and his denial of full responsibility for his crime – that could reasonably support a fact finder’s doubt as to his lack of dangerousness upon release. The Court reached this conclusion despite Shaputis’ spotless record in prison and his current failing health.

The essence of the Lawrence ruling is that California lifers now have both a workable legal standard and a meaningful chance of being released, at least by the courts if not by the Board and Governor. Better yet, Lawrence gives back something that 99% of lifers had lost: a sense of hope and an incentive to conduct themselves so as to demonstrate their current lack of dangerousness and thus suitability for parole.

California presently has about 10,000 parole-eligible lifers. The namesake of the Dannenberg ruling, PLN writer John Dannenberg, was released from California’s prison system on January 31, 2009 following three successful habeas petitions. [See: PLN, March 2009, p.44].

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