When California denies a murderer parole, should it need a reason?

By Carol J. Williams
December 13, 2009

Prison Overcrowding

Reporting from Vacaville, Calif. – During the 26 years that James Alexander has spent in prison for killing a fellow drug dealer, he has maintained a spotless behavior record and devoted himself to helping other inmates shake addictions.

He’s been such a model prisoner that state parole commissioners — on three occasions — recommended that he be released. All three times, Gov. Arnold Schwarzenegger overruled them.

Alexander, 47, is among the hundreds of so-called lifers whom state parole boards have deemed rehabilitated and ready to rejoin society, but who sit behind bars because their crime was murder. In recent years, some judges have sided with lifers, ruling that the state can’t deny an inmate parole solely because of the gravity of his original offense but rather must provide “some evidence” that he would pose a threat to public safety if released.

The legal notion that corrections officials must, in essence, show that an inmate remains a threat to society is being challenged in a pending case before the U.S. 9th Circuit Court of Appeals.

About 23,000 state prisoners serving life sentences are technically eligible for parole. There are nearly 4,000 other inmates serving “life without parole” sentences and 685 on death row, who can never be considered for such a release.

Until the 1980s, when a succession of tough-on-crime governors came to power, parole was routine for those sentenced to life who showed evidence of rehabilitation. In 1983, Gov. George Deukmejian invoked what was then a rarely used 1913 law to overrule the parole board decision to free murderer William Archie Fain after an angry outcry from the small Northern California town of Oakdale, where Fain’s victims had lived.

Deukmejian’s successor, Gov. Pete Wilson, reversed parole grants with more frequency, and Gov. Gray Davis embraced a virtual no-parole-for-murderers policy, freeing only six during his tenure, five of them women whose crimes stemmed from domestic abuse. Schwarzenegger also has been loath to release killers, granting only four such paroles himself but allowing more than 300 other parole board decisions to go through without his review.

Despite a federal court order to reduce prison overcrowding in the state, neither Schwarzenegger nor corrections officials have suggested considering violent offenders for early release.

Victims’ rights organizations defend what they consider the governor’s responsibility, as well as his power, to keep murderers off the streets, especially in the current economic crisis, which has cut funding for law enforcement and parole supervision.

“For the sake of public safety — that’s what we have life sentences for,” said Harriet Salarno, head of Crime Victims United of California, whose 18-year-old daughter, Catina, was murdered by a man who comes up for his ninth parole hearing early next year. “That should be a deterrent to crime: that you won’t ever get out if you get a life sentence.”

Bill Schmidt, an attorney who specializes in representing lifers, says the question of whether reformed prisoners should get parole is often clouded by the horrific nature of their crime.

For example, he said, even though Charles Manson has shown little remorse or rehabilitation for his 1969 cult slayings, some of his accomplices have maintained unblemished records for nearly four decades. Nonetheless, he said, they have been systematically denied parole. Even prison authorities’ recommendation for release of Manson follower Susan Atkins on compassionate grounds was rejected before she died of brain cancer in September.

Though popular opinion may support keeping the most notorious killers locked up forever, “where does the law give the subjective authority for the governor or the board to say, ‘No, your crime was so horrendous that we’re not ever going to let you out’?” Schmidt asks.

In the case now before the 9th Circuit, convicted murderer Ronald Hayward challenged Davis’ reversal of the parole board’s decision to release him after 27 years’ imprisonment for the stabbing death of a motorcycle gang member who had attempted to rape Hayward’s girlfriend. A three-judge panel of the appeals court ruled in January 2008 that Hayward’s constitutional right to due process had been violated because the governor failed to cite any evidence that Hayward was still dangerous.

The three-judge panel ruled that a parole board’s decision “deprives a prisoner of due process with respect to this [liberty] interest” if the decision is “not supported by some evidence in the record or is otherwise arbitrary.” The judges’ decision was suspended four months later by the court’s vote to reconsider the case by a full 11-judge panel.

Supervising Deputy Atty. Gen. Jennifer Neill has urged the appeals court to reconsider whether prisoners have a liberty interest in parole decisions, arguing that the U.S. Supreme Court hasn’t recognized a right to parole barring evidence that a prisoner remains dangerous.

Life prisoners have no right to a term less than life, Neill argues, so denial of parole “merely means that the inmate will have to serve out his sentence as expected.”

Last year, two decisions by the California Supreme Court reiterated the need for the state to show “some evidence” that the prisoner poses a risk.

In the case of Sandra Davis Lawrence, who fatally shot her lover’s wife and stabbed her with a potato peeler, the state high court held that the heinousness of the 1971 crime wasn’t enough to justify continued incarceration. In the case of Richard Shaputis, decided on the same day as the Lawrence case in August 2008, the court also referred to the “some evidence” standard but ruled that Schwarzenegger had identified grounds for denying parole: that Shaputis continued to suffer a “lack of insight” into how he came to kill his wife.

The state high court decisions and the initial 9th Circuit ruling have encouraged lawyers who represent lifers to hope that the appeals court’s full panel of judges will agree the law is on their side.

But the 11 judges — five appointed by Republican presidents and six by Democrats — make up an inscrutable bench that Hayward’s legal team fears could instead establish the governor’s exclusive control over parole.

“They scared me to death,” Carl McQuillion, a paralegal for Hayward, said about questions from the judges following oral arguments in the case last year. “It seemed clear to me that the judges are wanting to reverse this decision.”

A murder convict who studied law during his 33 years in prison, McQuillion secured a court-ordered release in 2003, marking a turning point in the battle between state officials and courts over parole.

Legal scholars say the decision in Hayward’s case will depend on how the federal judges interpret the intent of laws on sentencing.

“It goes back to the question of whether we want sentences to be punitive and how to weigh rehabilitation versus punishment,” said Pepperdine University law professor Laurie Serafino.

After 11 parole hearings and three revoked release dates, Alexander won a court order from a San Diego judge last year that he be found suitable for parole and a date be set for his freedom. A state appeals court reversed the order this year, leaving him in prison and sending his case back to the parole board.

He says he has no illusions about the Hayward case’s implications for his future.

“It’s hard for me to have faith in the integrity of the system,” Alexander said, “when the state agency charged with finding me suitable for parole has done so on numerous occasions and I’m still here.”

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