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Parole Trends | Supreme Court Decision

Summary of Supreme Court Decision on Parole (Rosenkrantz case)

(Rosenkrantz, December 16, 2002)

Disclaimer: The following is intended for educational purposes ONLY. It is not to be cited as legal authority, and merely represents the author’s own interpretation of the court’s reasoning.

How each Justice voted: The majority opinion (that is, the court’s decision) was in favor of Gov. Davis. It was written by Chief Justice George (white male), and was joined by Justices Baxter (white male), Nicholson (white male), and Moreno (male). Separate concurring opinions (which agree with the result of the majority opinion, but differ in their analysis) were written by Justices Werdegar (white female) and Moreno (male). A dissenting opinion (that is, the minority opinion which cannot be cited as binding legal authority in future cases) in favor of Rosenkrantz was written by Justice Chin (Asian male), who was joined by Justice Kennard (female).

Ruling 1: Article V, section 8(b), (the California constitutional provision giving the governor the power to review parole decisions) does NOT violate the ex post facto clauses of the state and federal constitutions.

The state and federal constitutions forbid "ex post facto" laws. Ex post facto laws are laws which either (1) retroactively change the definition of a crime, or (2) retroactively increase the punishment for criminal acts. Collins v. Youngblood, 497 U.S. 37 (1990).

One argument Rosenkrantz’s attorneys made was that the 1989 law (now Article V, Section 8(b) in the state constitution) granting the governor the power to review parole decisions was unconstitutional because it increased the punishment for people convicted of murder before that law was enacted. However, the California Supreme Court disagreed, saying that even though Davis refuses to grant parole for hardly anyone convicted of murder, the law itself does not retroactively increase lifers’ punishments. The court claimed that the governor has no power to increase prisoners’ sentences; Article V, section 8(b) simply allows for an additional level of review over parole decisions. The court further explained that Article V, section 8(b) merely changes the identity of the ultimate decision-maker from the Board of Prison Terms ("Board") to the governor. Because the governor is required to apply the same factors as the Board in making his decision, there is no substantive change that would increase the punishment for people convicted of murder. Therefore, because the law does not change the definition of "murder", nor does it increase the sentence for people convicted of murder, is does NOT violate the ex post facto clauses of the state and federal constitutions.

Dissenting opinion: The dissenting justices (Chin and Kennard) argued that granting parole-reversal power to the governor is an unconstitutional ex post facto law because it adds another barrier to parole, thus in effect significantly increasing the chances of a longer sentence. The dissenting justices believed that Article V, section 8(b) was intended to block parole, and that’s exactly how it has been used by Gov. Davis.

Ruling 2: The Governor’s decision granting or denying parole IS subject to limited judicial review to determine whether his decision is supported by "some evidence."

The court rejected Davis’ claim that his parole reversals were immune from court scrutiny. The court held that Article V, section 8(b) does NOT grant him unlimited discretion over parole matters. Instead, the court held that after a prisoner is granted a recommendation for parole, he or she has a protected liberty interest under the due process clause of the constitution; in other words, the prisoner has a constitutionally protected expectation that the governor’s decision will be based on the SAME factors the Board is required to consider. (These factors are laid out in the CA Code of Regulation, Title 15, Division 2, Chapter 3, Article 11.) However, even though the governor must consider the same factors as the Board, the court gave him almost complete discretion to decide how much weight to give to each factor. So, if the Board determines that an inmate’s positive record in prison far outweighs the severity of the commitment offense, but Davis disagrees, the court will not overturn Davis’ decision as long as there’s some evidence to support it. In other words, his decision cannot be "arbitrary or capricious"—he must find some basis in fact to support his decision. He cannot rely on improper factors, nor can he mischaracterize evidence by discussing facts out of context (the court pointed out that Davis did this several times in his decision reversing parole for Rosenkrantz, but upheld Davis’ decision because the commitment offense was reason enough to block parole—see below).

What does the "some evidence" standard mean?

This is an extremely deferential standard—basically, it means that as long as the governor can point to some legitimate reason why a prisoner should not be paroled, his decision will be upheld by the courts. (Note: The court left open the question whether the federal constitution imposed a stricter standard of review for the governor.) The court went further and said the reason could be based ENTIRELY on the commitment offense. In other words, if an inmate has excellent parole plans and a 20 year clean disciplinary record, Davis can still reverse parole based on the original crime.

HOWEVER, the court said if the governor is basing his parole reversal on the commitment offense, he has to show that the crime committed was "more aggravated or violent than the minimum necessary to sustain a conviction for that offense"—in other words, the crime must have been committed in an "especially heinous, atrocious, or cruel manner". Factors that the crime was especially heinous include (but are not necessarily limited to): if there were multiple victims, if the killing was done in an execution-style manner, if the homicide victim was mutilated, if the way the crime was performed demonstrates an exceptionally callous disregard for human suffering, or if the motive for the crime is trivial compared to the crime itself. This means that if a prisoner is convicted of 2nd degree murder, the circumstances of his or her crime must be more aggravated or violent than other 2nd degree murders in order for Davis to justify the parole reversals based on the commitment offense alone. If there are no facts demonstrating that the crime was "particularly egregious" in comparison to other crimes with the same conviction, then the governor CANNOT base his parole reversal just on the commitment offense.

Ruling 3: The Governor does NOT have a blanket "no parole" policy.

Despite Davis’ record of consistently blocking parole for people convicted of murder, and despite his comments that he would never let out "murderers", the court somehow came to the conclusion that he does not have a "no parole" policy. The court said because he’s approved parole for 2 people and because he gives individualized analyses in his parole decisions, he doesn’t have a blanket policy. The court defended Davis’ record by saying he may just be "more stringent or cautious than the Board in evaluating the circumstances of a particular offense and the relative risk to public safety" if the prisoner is released.

Summary of the court’s opinion:

The governor must give each parole decision individualized treatment, meaning he must give due consideration to each of the factors supporting parole. (This means if a governor reverses parole based on a blanket "no parole" policy, this would violate a prisoner’s due process rights.) However, the governor has wide discretion in deciding how much weight to give each factor favoring or disfavoring parole. He ultimately can base his decision on the commitment offense alone, but ONLY if the murder was "especially heinous, atrocious, or cruel" compared to other murders of the same degree.

Where do we go from here?

Despite this decision, Davis’ abuse of his parole power will still be challenged by advocates across the state. The decision could be appealed to the federal courts, but even if it is not, the decision as it stands still allows prisoners to question Davis’ parole reversals in court. However, no matter what legal battles are won or lost, remember that we can affect his "no parole" policy through direct actions, public education, media advocacy, and other non-legal strategies. The struggle must continue!

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