Prison Law Blog

Sara Mayeux

California Lifers, Though Eligible for Parole, Are More Likely to Die in Prison

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That’s the conclusion that KALW reporter Nancy Mullane found when she ran the numbers. Kudos to Mullane for her dogged pursuit of this data, employing California’s Public Records Act. I thought I’d provide some additional context, mainly in the form of rounding up some links.

Caveat before I go on: It’s essential to keep in mind, when reading about criminal justice issues, that every state has different laws, policies, and terminology. This post is mainly about California, and in particular, about California prisoners serving life terms with the possibility of parole — which is a subset of the California prison population, mainly convicted of murder. For non-homicide crimes, California offenders are typically sentenced to determinate terms of a fixed number of years. They don’t have to go before the parole board because they’re automatically released, or “paroled,” when their term ends. The terminology is confusing, because the word “parole” is used to describe the release of both subsets of prisoners.

The fact is this: Because of the tough-on-crime turn of the 1980s and ’90s, many prisoners who were initially sentenced to life with the possibility of parole are now effectively serving LWOP or “death-in-prison” terms. It simply became a political near-impossibility to rubber-stamp the release of a convicted murderer. This bait-and-switch has happened in states across the country, though with different legal and administrative underpinnings in each state. In Virginia, parole-eligible inmates claim that the parole board summarily denies parole in every case. In Michigan, it was changes to the composition of the parole board that effectively made parole harder to earn.

In California, the change came in 1988. That year, Golden State voters transferred to the governor the final say on all parole decisions for murderers serving life terms. And as you might expect, given the political incentives of the tough-on-crime years, California’s governors used that authority to deny parole in almost every case. Gray Davis, to give one example, paroled only eight prisoners between 1999 and 2003, stating, “If you take someone else’s life, forget it.”

Keep in mind that parole decisions only even go to the California governor in cases where the parole board, having reviewed the prisoner’s record, finds him “suitable” for release. Only about 20% of parole-eligible lifers even make it that far. So essentially, California’s governors throughout the 1980s and ’90s were simply substituting for these lifers’ judicially imposed sentences their gubernatorial policy judgment that the vast majority of life terms should, in fact, be LWOP terms. Now, I suppose you could argue that’s exactly what the voters intended to happen. But importantly, the voters didn’t actually retroactively convert life to LWOP (and for constitutional reasons, likely couldn’t have, though I guess it depends on exactly how openly it’s done… cf. the case of Michigan, linked above). Because discretion was not abolished, but merely transferred to the governor, California’s governors always had the power to start granting parole again if political and/or fiscal circumstances changed.

And indeed, Schwarzenegger pulled away from his predecessors somewhat, granting five times as many paroles as Davis (though, of course, not in every case). So far, Jerry Brown has departed even more dramatically. As of May, less than a year into his term, Brown had already approved 106 parole releases — 81% of all the suitable recommendations he reviewed, and already 13 times as many as Gray Davis in his four years as governor. (One of those new parolees is Hector Oropeza, who I met through a workshop I participated in at San Quentin, and who co-wrote an op-ed you should read about the Supreme Court’s decision in Plata.)

Nevertheless, that still leaves thousands of inmates who might have been released long ago were it not for Pete Wilson and Gray Davis. Here’s KALW reporter Nancy Mullane, doing the math:

Back in 1988, a prisoner serving a life sentence with the possibility of parole for second degree murder served an average of five years. A prisoner serving a life sentence with the possibility of parole with first degree murder served about 14 years. But in 2009 – this is now almost 20 years after the governor had this authority – someone serving first degree murder is now serving 27 years, or 14 years more than in 1988. And for second degree murder? Twenty-four years, or 20 years more. So we’re finding that people are not only serving much longer sentences, but they also have a greater chance of dying while they’re waiting for parole.

Counterintuitive though it may seem, as California seeks to comply with the Supreme Court’s order to reduce its prison population, releasing murderers might be one of the safer ways to go about it. Yes, murderers: the very prisoners generally portrayed as most feared by the public, least sympathetic, and least “deserving” of release. But keep in mind, these are murderers who were not sentenced at their trial to death, and who were not sentenced to LWOP. Rather, these are murderers who, at the time they were tried and sentenced, were promised the possibility of future release. Presumably, because the circumstances of their crime made future release seem like an acceptable outcome to the prosecutor and sentencing judge. And/or because the law dictated it, and we do, after all, like to say we are a nation of laws. (Also keep in mind that a lot of these are likely to be cases where defendants agreed to plead to second-degree murder rather than take their facts to trial, where who knows what might have happened. A lot of these are likely to be cases where a defense lawyer said, “Don’t worry, plead to second-degree murder and you’ll be paroled in a few years” — which wasn’t an unfair prediction, given the state of law and policy before 1988.)

Admittedly, because California simply hasn’t been releasing murderers in recent years, there’s not a huge sample size to know how likely they are to recidivate. But what data we have suggests that they’re not heavy recidivists. Here’s Mullane again:

[W]hat we’ve discovered is that one of the new data released by the CDCR is that of the individuals who have been released for the last 20 years from 1990 to 2011, zero of the individuals released who had committed murder and had done time for murder committed murder. Zero. No one who had ever got out in the last 20 years – and that’s almost 1,000 – ever committed murder [again]…

By comparison, prisoners released after serving determinate terms for non-homicide crimes are more likely to commit murder post-release than, well, past murderers:

[F]or instance in 2009, 130,000 were released on parole [after a determinate sentence] – of the 130,000 that were released on parole, in one year 85,000 were returned to prison. Of the 85,000 that returned to prison, 13% of those were sent back to prison for committing a new felony, and of those, 149 were for murder. So what this tells us is that the Supreme Court is right. We need to look also at who we’re releasing in the state of California from our prisons, and we need to be releasing the individuals who are least likely to commit murder or any other felony.

For obvious reasons, much political mobilization against mass incarceration revolves around the most sympathetic prisoners: young kids, drug addicts, third-strikers locked up on trivial charges. However, what has really ballooned America’s long-term prison population over the past 30 years has been the ever-lengthening of sentences for violent crimes, including homicide. For this reason, Berkeley professor Jonathan Simon has made the point that confronting that end of the criminal justice system is actually the key to long-term reform. It’s a complicated argument, but you can listen to him make it with a group of San Quentin inmates here.

A prisoner’s crime of conviction and the level of danger he poses to society don’t always match up. With the caveat that I’m speaking in broad averages here, a 45-year-old convicted of murder 20 years ago, who’s spent his time in prison doing relatively productive things, is less of a public safety risk than a 17-year-old convicted of robbery who’s still involved in gang behavior, or a 33-year-old mired in a cycle of domestic violence, or whatever example you can think of. It’s worth noting that California’s determinate sentencing scheme means the latter two examples have to be released when their term is up. There is no provision to keep them any longer. California sentencing law, in short, is a big mess. This is why I found the Alito and Scalia dissents in Plata so disappointing: not because I disagreed with them, even though I did, but because they betrayed such little effort to comprehend the California criminal justice system, even as they cloaked their lack of effort under the guise of common-sense armchair criminology of the sort that, well, if you release “prisoners” some will do “bad things”! The truth is, if you’re Alito and your main concern is whether California prisons are going to be releasing future murderers — well, California prisons are already doing that, each year — over 100 in 2009 alone. And not because of any court order but because that’s how California sentencing law and policy works. Who California prisons are not releasing are past murderers. And that’s (among other reasons) why the prisons are overcrowded.

But back to releasing murderers. Obviously, a lot of this is going to depend on the specifics of the particular person, but those are precisely the specifics that parole boards are equipped to consider. In 80% of cases, California’s parole board finds the lifer is not suitable for release. What we’re talking about here are the 20% of cases where they find the other way. Over the next few years, if only because California literally can’t afford to keep filling its prisons with permanent residents, we may start to see some experimenting and get some real data on that other 20%.

* UPDATED: I updated this post to add this source for the data on Jerry Brown’s parole decisions (also linked above at “As of May, less than…”). And here’s another follow-up, also from KALW.

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