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Monday, December 14, 2009

The Meaning of Life

Carol Williams reporting in the LATimes does a superb job of describing California's Lewis Carroll like parole system for those sentenced to life in prison for murder, with the possibility of parole; a topic which has given the California Supreme Court cause for psycho-therapy and now looms over the 9th Circuit (Hayward v. Marshall, 527 F.3d 797, granting rehearing en banc over the earlier panel opinion granting habeas corpus to lifer Hayward, 512 F.3d 536).  The issue, however, makes a great way to teach core issues in substantive criminal law including the distinctions between rehabilitation, deterrence, incapacitation, and retribution, and the elements of the law of murder and manslaughter.  Unlike the typical casebook murder case, these parole based cases involve core examples of murder.  Moreoever, the posture of these cases is particularly good for teaching as they raise the question of whether given the facts of the crime, criminal record,  and record of prison discipline and rehabilitation, some evidence exists that the petitioner convicted of murder poses an "unreasonable risk" to public safety.  This contrasts with the much more limited facts available to the typical appellate murder case.  The problem is that between the due process issues,  and the statutory construction issues, and the two levels of administrative decision making (parole board, and governor), with trials courts added in, plus ATEDPA if its federal court, it is kind of hard to teach.  Thus you might consider just using William's article and the facts of Hayward (more beneath the fold) for your discussion.

Hayward killed a man at the legal boundaries between murder and manslaughter (he confronted the man he believed had insulted/assaulted and possibly raped his girlfriend, and stabbed him to death during the resulting fight) and was convicted of 2nd degree murder.  The law under which he was sentenced made him eligible for parole after 15 years.  Indeed, the language of the law is that the board "shall" set a date (atlthough it might be years in the future) for release unless they find the subject "unsuitable" for parole.  Hayward became the model prisoner, pursuing therapy, education, and becoming a positive influence on those around him.  Now 67, he has job offers and a clear plan of where to live if he should be released (quite different for many).  While in an earlier era his parole would have been routine, by the 1990s parole boards in California became increasingly sensitive to victim advocates and focused on the details of the crime rather than the prison profile.  Governors assuming an old statutory mandate  (reinforced constitutionally in 1988) began to review every parole decision, reversing almost all of the very few granted by the parole board.  Since 2003 this log jam has produced an increasing number of legal challenges through the arduous process of habeas corpus petitions to the superior court where the prison sits, and eventually to the California Supreme Court, and on to the federal courts (where dreaded ATEDPA issues rear their heads).

In 2002, at his 10th parole hearing, the board granted Hayward a parole date.  Since then Hayward has been repeatedly turned down by California governors.  Although the law only requires "some evidence" of unreasonable risk, the 9th circuit panel opinion makes a strong case that the governor's rationale lacks any.  The panel found that the trial courts must consider whether "some evidence" exists of unreasonable dangerousness, not just whether some evidence exists to support the reasons the governor cites for believing the subject to pose and unreasonable risk.  The en banc decision (and possible Supreme Court decision to follow) could result in a system in which the governor would have virtually unquestionable authority to keep convicted murderers in prison until death.  Fear of this kind of outcome has led the European Court of Human Rights to find that life sentences with parole must permit an official completely insulated from politics, like a court, to determine parole release dates.

Posted by Jonathan Simon on December 14, 2009 at 01:00 PM in Criminal Law, Jonathan Simon | Permalink

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