CALIFORNIA'S SECRET JUDGES

Do The Crime, Do The Time - That's The Way The Law Is Supposed To Work.

But Our Governors And The Parole Board Don't Always See It That Way.

My very first night teaching at San Quentin, Manny jokingly introduced
himself as a hostage. He showed up almost every night after that, to
study for his GED, and each time he would say, by way of
reintroduction, ``I'm a political prisoner!''

I used to laugh. During prison training, they had taught me that
inmates would work us, attempt to elicit our sympathy, suck us in. But
after a few months, I noticed the consistency in the prisoners'
stories. I stopped checking my brains at the gate and started to listen.

What I discovered is that for many years now politics has taken over
and subverted a whole sector of the criminal justice system in
California: the parole system for lifers - prisoners with life
sentences that include the possibility of parole. All over the state,
thousands of prisoners who have served far more than their required
time - and met all criteria necessary to win a parole date - have
been denied their freedom and their right to due process in order to
serve the political aspirations of a series of governors.

How the System Is Supposed to Work

California's penal system is like a house that has undergone repeated
remodels and additions: It's hard to tell what it started out to be.

This is particularly true of the wing of the system inhabited by
lifers. Under California's graduated system of punishment, the
convicted are given sentences ranging from fixed terms - a specific
amount of time to be served - to death. In between those extremes are
life sentences, again graduated by severity of the crime committed.
Some felons receive life sentences without the possibility of parole,
but the majority who receive life sentences - for kidnap/armed
robbery, second- and first-degree murder (See box on Page 4)

- - receive sentences that allow for that possibility. In effect, the
law says some criminal acts render the perpetrators unsalvageable,
while lesser crimes leave open the possibility of rehabilitation.

Although there are some lifers in the system who were sentenced under
an older, much different law, most of the more than 22,000 lifers
currently awaiting parole were sentenced after July 1, 1977, and are
serving sentences of 15-to-life or 25-to-life.

I see ``life'' as the state's threat, and the number at the start of
the sentence as the state's promise. The threat is that if a prisoner
arriving in the system doesn't change, the state can keep him or her
as long as it likes. The promise is that if prisoners distinguish
themselves through rehabilitation, they shall be released.

Although California's purpose in imprisonment is punishment, not
rehabilitation, most lifers work to make themselves suitable for
parole by ``programming'': attending self-help and 12-step meetings,
learning vocational trades, obtaining education, participating in
faith-based groups, or teaching or mentoring other prisoners.

This self-improvement is duly noted when they appear before the Board
of Prison Terms, commonly known as the parole board. There are nine
full-commissioner slots on the board; each member is appointed by the
governor and confirmed by the Senate. They are paid $95,859 a year,
plus a per diem and travel expenses. According to the state's penal
code, the board is supposed to ``reflect as nearly as possible a
cross-section of the racial, sexual, economic and geographic features
of the population of the state.''

The penal code also says that the board ``shall normally'' set a
parole date one year before each lifer becomes eligible. To avoid
disproportionate punishment for similar offenses, the commissioners
are provided with a set of matrices - grids that prescribe a range of
years to be served for various crimes, taking into account how the
crime was committed and the relationship of the perpetrator to the
victim.

For instance, a lifer would serve more time for killing a random
person than he would for killing someone who was an accomplice in the
crime; someone who tormented his victim is supposed to serve more time
than someone who didn't.

Each lifer appears before the board with a stack of progress reports
from psychologists and counselors, as well as documentation of work
and programming history.

Most lifers also bring evidence of outside support: job-offer letters,
letters from member of the community offering various types of
assistance, proof of offers of places to stay and support letters from
family and friends.

The board also is given a list of circumstances that they are to
consult when evaluating parole suitability, ranging from how old
prisoners are and whether they had a juvenile record to their level of
understanding of the impact of their actions and their signs of remorse.

The governor can reverse or modify the board's decision whenever
prisoners convicted of murder receive parole dates.

This right, granted to the governor by voters in 1988 and incorporated
into the state's Constitution, makes California's lifer parole system
basically the same as Louisiana's, where a gubernatorial pardon is the
only way out.

How the System Isn't Working

Since 1988, when ads featuring Willie Horton, a furloughed
Massachusetts convict who wrought havoc on a young couple, sabotaged
the presidential prospects of Michael Dukakis, California governors
have feared that one wrongly paroled felon could wipe out a lifetime
of strategic political planning. Ironically, former governors
Deukmejian and Wilson, and now Gov. Gray Davis, have ignored the law
in order to maintain their tough-on-crime credentials. They have
capitalized on the fact that few Californians know or care what the
laws are regarding lifers; most just want them kept behind bars. The
overwhelming voter support for the three-strikes law in 1994 made
taking a no-parole stance an easy call. Last year, Davis declared that
no prisoner serving time for murder would receive a parole date on his
watch.

Parole board members, dependent upon Davis for reappointment, heard
him loud and clear. While the number of lifers eligible for parole has
skyrocketed, along with the rest of the prison population, the rate at
which they receive parole has taken a free fall.

In 1989, 54 Thrst- and second-degree-murder lifers were paroled. In
1999, of 1,942 lifers' board hearings, 16 received parole dates. Davis
rescinded 10 prisoners' dates and returned the rest to the full panel
for reconsideration. The board rescinded parole in four of those
cases. One case was left on hold. Only one lifer, who had served his
time for kidnapping/armed robbery, won a parole date in 1999.

(Past parole statistics for kidnap/armed robbery cases cannot be
compared with current ones because the methodology has changed, but
murder-case statistics are comparable.)

Although governors Deukmejian and Wilson started the politicization of
the lifer parole process, Davis has finished it: The process is now
dead. The law requires that each lifer be considered individually, but
Davis has taken all prisoners sentenced to life with the possibility
of parole and thrown them into the ``life without'' category.

It doesn't matter what the trial judge and jury found. The prisoners'
efforts at self-improvement? Never enough. The psychologists' and
counselors' reports? Discounted. Other prison staff members' input?
Doesn't count (unless it's negative). The sentencing matrices and
suitability guidelines? Ignored. An unbiased parole board? I don't
think so. The rare board decision of suitability for parole? Overruled.

The board bears no resemblance to the ``cross-section of the racial,
sexual, economic and geographic features of the population of the
state'' the penal code requires. There are two Latinos; the others are
white. There are no African Americans, and only one woman. All are
from Southern California. Four are former police officers, another is
a former executive director of the Los Angeles Peace Officers
Association, one is a former state senator. A similarly composed jury
in a criminal court would be grounds for a mistrial.

Furthermore, Davis has failed to appoint commissioners to fill
long-standing vacancies. Currently, there are only six members on a
board that should have nine. This has caused further delays in the
prisoners' parole hearings.

Growing Dissent

The situation has been worsening quietly for years. In general, the
people who knew about this growing injustice were those for whom
speaking out would have huge and adverse consequences. Lifers and
their family members fear the loss of even the minuscule chance of a
parole date; prison staff and even members of the parole board fear
for their jobs.

But support for reform is gathering, sometimes from unexpected
quarters.

Albert M. Leddy, a former district attorney and judge who served on
the parole board from 1983 to 1992, described the practices and
political pressures he observed in a deposition in a lawsuit. ``I
wrote a nine-page brief about how we were not complying with the
laws,'' he wrote. ``I gave a copy to each board member, pointing out
that we could be sued. I asked that this brief be a topic on the
parole board's agenda. Ted Rich (then executive officer), said,
`That's not going to be on the agenda. You can't have it on the
agenda.' '' In April, the Office of Administrative Law - the state
agency that reviews regulations to ensure they comply with state law

- - ruled that the board has been issuing ``quasi-legislative
enactments'' that are not in accordance with the Administrative
Procedures Act. In essence, it found, the parole board has illegally
been making its own rules.

The case of Robert Rosenkrantz, a lifer convicted of second-degree
murder who was found suitable for parole in 1996 and has yet to be
released, has drawn a lot of attention. His lawyer, Rowan Klein of Los
Angeles, took his case to the state Court of Appeal, which affirmed a
lower court decision that in effect forced the board into granting
Rosenkrantz a parole date. Attorney General Bill Lockyer filed a
petition for review with the state Supreme Court to try to overturn
the lower courts' decisions. It was denied.

Rosenkrantz awaits Davis' final say.

Practical Costs

Last year, it cost $100 million to incarcerate the approximately 4,000
lifers who were beyond their minimum parole eligibility dates. An
additional 500 join those ranks every year.

There are other costs as well. In its 2000-2001 budget bill analysis,
the Legislative Analyst's Office, a bipartisan commission charged with
tracking the state's money, noted that ``the no-parole policy is
likely to result in further litigation between the state and inmates
seeking parole.'' Monica Knox, a federal deputy public defender in Los
Angeles, says she's aware of a dozen such prisoners whose lawyers have
filed suits on their behalf.

The report's authors also appeared to raise their eyebrows over the
fact that the parole board is still getting paid, despite the fact
that it's not fulfilling its mission. ``The board,'' the report noted
dryly, ``continues to receive full funding for its parole review
process despite the current release policy.''

Redemption

The parole board commissioners are supposed to look each lifer in the
eye, just as the judge and jury did, and make a determination, not of
guilt or innocence - which has been established -

but of worthiness to rejoin free society.

The system used to work that way. A prisoner who pulled a kidnap/armed
robbery spent less time in prison than someone who planned and
committed the murders of a couple of people. Lifers who wanted to
change had an incentive to do so, and those who didn't change were
kept off the streets. The system was designed to distinguish between
the two, which was the whole idea behind giving open-ended sentences
instead of fixed terms or sentences without the possibility of parole.

Most of the 50 lifers I got to know at San Quentin feel deep remorse.
Making themselves into people who would never consider doing what they
once did is not only a way of asking forgiveness and showing
worthiness, but in a very deep way, it pays homage to their victims.
It is to say, ``I learned from this. I changed because of this. I
can't bring you back or make you whole, but however meaningless your
loss seemed at the time, I have spent years giving it as much meaning
as I could. I have given it my life.''

Before the embargo on parole dates, four San Quentin lifers I knew
paroled. After I left, I sought them out. All are working, supporting
themselves and their families, living normal lives, contributing to
society. Lifers are not people to be feared. Most of them are people
who should be back in their communities working, talking to young
people about staying on the right track, setting an example, taking
care of their families.

Of the all lifers I got to know, there are only 10 I'd rather not see
free. But as far as Davis is concerned, all lifers are equal under the
law, equally irredeemable.

Restoring Justice

Fifteen years ago, the system was working. We should go back and
correct our missteps. First, the governor should be relieved of his
constitutional power to rescind parole board decisions. Without that
change, other reforms will have no impact.

Once that is accomplished, fair and just application of current laws
would go a long way. Unless a lifer's institutional behavior indicates
that he's not getting the idea yet, the board should set a future
parole date one year prior to his minimum eligible parole date, as the
law requires.

Current parole board vacancies should be filled so that a broader
spectrum of the state's demographics is represented, instead of
continuing to appoint members of the predominantly white retired law
enforcement community. Board members' terms should be lengthened so
that commissioners aren't dependent upon pleasing every fearful or
aspiring governor.

With these relatively simple reforms, we would have a system that
would be flawed but workable. What we have right now is justice by
gubernatorial fiat, which is no justice at all. One thing is for sure:
Without intense protest from large numbers of citizens, nothing will
change.