I’m writing this article today to update you on Butler case, and several other topics. In July, the Court discovered that the Board was not setting base terms for Youth offenders (under SBs 260 and 261) or Elderly Offenders under the 3-Judge Panel agreement (60 or older with 25 years served) . The Board’s excuse was that: there is “Immediate Release” language in the law for those groups.
The fact is, they never “immediately” release any lifer. Ever. So on July 27, 2016, the Court slapped the Board on the wrist. The Board was facing $1,000 fines in over 1700 cases where they failed to set those base terms since the Butler policy went into effect (4/1/2014). I went to my initial parole hearing on 6/10/2016 as an SB 261 Youth Offender, and the Board did not set my base term. Right after that July 27 Butler order, the Board started setting base terms for all lifers again. On September 21, the Court held a status conference to confirm. I have not been able to read the Court’s orders because they are not on the Court website or anywhere else available to me, but sure enough, to avoid over $17 million in fines, the BPR began to comply.
I filed another amicus brief for the 9/21/2016 hearing, so that our voices as lifers would be heard. I made a couple of important arguments: for one, the “Diminished Culpability” concept in SBs 260 and 261 “should” apply to the base term-setting process. For example, if we have lessened culpability in the crime (under 260 and 261), the Board should set our base terms lower than they normally would in a non-260/261 case . The base term matrices are all culpability models.
Next, I pointed out to the Court that in 2008, the In re Lawrence case (44 Cal.4th 1181 at page 1211) established that:
“But the statutory and regulatory mandate to normally grant
parole to life prisoners who have committed murder means that,
particularly after these prisoners have served their suggested
base terms, the underlying circumstances of the commitment
offense alone rarely will provide a valid basis for denying
parole when there is strong evidence of rehabilitation and no
other evidence of current dangerousness.”
When did the Butler policy go into effect? 4/1/2014? -This means that since 2008, when the Board was ordered in Lawrence to give us this consideration, they have never considered when we are past our suggested base terms, because from 2008 until April 2014 they were not setting anyone’s base terms. Therefore, since 2008, they basically just high-signed the Supreme Court, but never gave one inmate this very important consideration we are all entitled to. Notably, they have denied parole to thousands of inmates who are and were well-past their base terms, just for the underlying circumstances of their commitment offense without giving them this Lawrence base term consideration. I mean, am I clear? I feel misunderstood, because the violation is so blatant and has been so overlooked.
I am writing this information to encourage everyone who reads it to consider filing petitions in their county superior courts. Not only are we all entitled to have our base terms set by the Board “promptly”, but we should also have the consideration under Lawrence (at page 1211) also applied. I am proposing you also argue that the base term be set at the beginning of each parole hearing, instead of just handing the inmate a sheet with a base term at the end of the hearing as he or she is walking out. In this way, the hearing can be conducted with the base term already defined, and the Board may remain mindful of the amount of time the inmate has served, so that the Lawrence consideration can be afforded that inmate.
As it stands, the Board is proposing issuing base term “memorandums” To all those 1700+ inmates (such as myself) who are violated by the Board. This would be unacceptable. Rumor has it that Butler’s attorneys are currently challenging this proposal, but I’m not in the loop. I strongly propose that new hearings be held. Too many parole denials resulted because base terms were not considered or even spoken about at those hearings. Whenever a parole panel is conscious of the amount of time served over what the law requires for that crime, the focus of the hearing consciously shifts to parole suitability and post-conviction factors, away from the stigma of just the crime. The Supreme Court’s 2008 Lawrence decision centered around this issue, and after Lawrence, parole grant rates began to soar (from the near-zero percent rates they were for decades).
Arguably, Butler has improved the parole grant rates. I have seen Superior courts grant parole habeas writs, apparently compelled by the amount of time served over the base term. We are still awaiting our first proportionality challenges get granted, but we are well on our way. Don’t give up; this process is not one fixed event; it’s definitely a process. The more we challenge, the more we gain. That is because the law is on our side. Kudos to the lifer wives who are so dedicated and strong for us. You know who you are. God bless you. I remain, as always, at your service.
Until my next, I sign off.
Written by Rudy while incarcerated in California.