California Parole Laws
California state and federal Constitutions prohibit the state from depriving any person of life, liberty, or property without due process of law. (U.S. Const. Amend. XIV, 1, Cal. Const., art. I, 7.)
In In re Lawrence (2008) 44 Cal.4th 1181, the Supreme Court provided a comprehensive summary of our laws regarding parole.
The court made clear that the Board and the Governor exercise great discretion in their parole determinations, but that this exercise is not unbounded.
The Supreme Court stated:
"The applicable statutes provide that the Board is the administrative agency within the executive branch that generally is authorized to grant parole and set release dates. (Pen. Code, 3040, 5075 et seq.)
The Board's parole decisions are governed by section 3041 and title 15, section 2281 of the California Code of Regulations (Regs., 2230 et seq.)
Pursuant to statute, the Board 'shall normally set a parole release date' one year prior to the inmate's minimum eligible parole release date, and shall set the date 'in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public . . . .' (Pen. Code, 3041, subd. (a))
Subdivision (b) of section 3041 provides that a release date must be set 'unless the Board determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting.' " (Lawrence, supra, 44 Cal.4th at pp. 1201-1202, )
As the Supreme Court explained in Lawrence, title 15, section 2402 of the California Code of Regulations (Regs., 2402), is virtually identical to title 15, section 2281 of the California Code of Regulations (Regs., 2281), the parole suitability regulation followed in Lawrence. (Lawrence, supra, 44 Cal.4th at p. 1201, fn. 5) The only difference is that Regs, section 2402, provides parole consideration criteria and guidelines for murders committed on or after November 8, 1978. (Lawrence, at p. 1201, fn. 5.) Regs., section 2402 controls here because Miranda murdered Larsen in 1981.
Regs., section 2402 sets forth the factors to be considered by the Board in carrying out the mandate of Penal Code section 3041. The regulation is designed to guide the Board's assessment of whether the inmate poses "an unreasonable risk of danger to society if released from prison," and thus whether he or she is suitable for parole. (Regs., 2402, subd. (a).) The regulation also lists several circumstances relating to unsuitability for parole and the mitigating circumstances of the crime. (Regs., 2402, subds. (c), (d).) Finally, the regulation explains that the foregoing circumstances "are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel." (Regs., 2402, subds. (c), (d); see Lawrence, supra, 44 Cal.4th at pp. 1201-1203 summarizing Regs., 2281.)
The factors listed in Regs., section 2402 include "the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability." (Regs., 2402, subd. (b); see Lawrence, supra, 44 Cal.4th at p. 1202, fn. 6 summarizing Regs., 2281, subd. (b).)
Unsuitability factors stated in Regs., section 2402, subdivision (c), are: (1) a commitment offense carried out in an "especially heinous, atrocious or cruel manner"; (2) a "Previous Record of Violence"; (3) "a history of unstable or tumultuous relationships with others"; (4) "Sadistic Sexual Offenses"; (5) "a lengthy history of severe mental problems related to the offense"; and (6) "serious misconduct in prison or jail." (Regs., 2402, subd. (c)(1)-(6); see Lawrence, supra, 44 Cal.4th at p. 1203, fn. 7 summarizing Regs., 2281, subd. (c).)
Suitability factors stated in Regs., section 2402, subdivision (d), are: (1) the absence of a juvenile record; (2) "reasonably stable relationships with others"; (3) signs of remorse; (4) a crime committed "as the result of significant stress in the prisoner's life"; (5) battered woman syndrome; (6) the lack of "any significant history of violent crime"; (7) "the prisoner's present age reduces the probability of recidivism"; (8) "the prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release"; and (9) the inmate's "institutional activities indicate an enhanced ability to function within the law upon release." (Regs., 2402, subd. (d)(1)-(9); see Lawrence, supra, 44 Cal.4th at p. 1203, fn. 8 summarizing Regs., 2281, subd. (d).)
The Governor may conduct a de novo review of the Board's decisions on the basis of these same factors that the Board is required to consider. (Lawrence, supra, 44 Cal.4th at p. 1203, fn. 9, Cal. Const., art. V, 8, subd. (b), Pen. Code, 3041.2.) In In re Rosenkrantz (2002) 29 Cal.4th 616, our Supreme Court indicated that under our deferential standard of review, "as long as the Governor's decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the court's review is limited to ascertaining whether there is some evidence in the record that supports the Governor's decision." (Id. at p. 677.)
In Lawrence, the Supreme Court clarified that a decision to deny parole must be based upon "some evidence" of current dangerousness. (Lawrence, supra, 29 Cal.4th at p. 1212.)
As the court explained in a companion case it issued on the same day as Lawrence, In re Shaputis (2008) 44 Cal.4th 1241 (Shaputis), it determined in Lawrence that, "because the aggravated nature of a commitment offense does not, in every case, provide relevant evidence that an inmate remains dangerous, and a focus upon the egregiousness of the commitment offense to the exclusion of other relevant evidence has proved in practice to obscure the core statutory emphasis upon current dangerousness . . . .Accordingly, '. . . the relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense. This inquiry is, by necessity and by statutory mandate, an individualized one, and cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate's psychological or mental attitude.' " (Shaputis, at pp. 1254-1255, )
Thus, the Lawrence court explained, in reviewing parole determinations by the Governor, "our deferential standard of review requires us to credit the Governor's findings if they are supported by a modicum of evidence. This does not mean, however, that evidence suggesting a commitment offense was 'especially heinous' or 'particularly egregious' will eternally provide adequate support for a decision that an inmate is unsuitable for parole. . . . The Legislature specifically contemplated both that the Board 'shall normally' grant a parole date, and that the passage of time and the related changes in a prisoner's mental attitude and demeanor are probative of the determination of current dangerousness." (Lawrence, supra, 44 Cal.4th at p. 1226.)