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Keker & Van Nest Pro Bono Settlement Will Shape California's Parole System

San Francisco Chronicle

Settling an Oakland inmate's lawsuit, California parole officials have agreed to changes in hearing procedures that could lead to earlier releases for some of the state's aging lifers. Lawyers for the Board of Parole Hearings signed the settlement Wednesday in a case before the state's First District Court of Appeal in San Francisco. When the settlement takes effect, it will require the board to notify life-term inmates of their "base term" - the minimum sentence they must serve because of the circumstances of their crime - at their first parole hearing.

For example, someone convicted of second-degree murder, which carries a legal sentence of 15 years to life, might be given a base term of 15 or 16 years if the crime was not extraordinarily violent, the defendant was an accomplice rather than the actual killer, and the victim was a fellow criminal. If the crime was horrific and the defendant killed an innocent victim or a child, the base term might be 20 years or more.

Currently the board calculates the base term only after deciding that a life-term inmate no longer poses a danger to the public and is suitable for release. The board often finds that the inmate has already served the base term - in fact, many inmates who are granted parole learn that they have spent a decade or more in prison after their base term ended, said Sharif Jacob, the inmate's lawyer in the case before the court.

That's not illegal, and nothing will necessarily change for most prisoners under the settlement. But once a life-term inmate has served the base term, state law requires the board to grant parole at the next hearing in most cases unless it has evidence, which can be tested in court, that the inmate is still dangerous. That evidence usually is based on behavior in prison.

"I think (the settlement) should have an effect on the board's decision-making," Jacob said. He said the agreement would also give inmates an incentive to work toward parole eligibility through good conduct and participation in prison programs. Most life-termers who are eligible for parole are middle-aged or elderly prisoners who pose "an extremely low risk" of committing new crimes according to the state's own assessments, Jacob said.

Jacob's client, Roy Butler, pleaded guilty to second-degree murder in the September 1987 death of 17-year-old Richard Davis. Davis' girlfriend, Jane Woods, told Butler and another man, Lanzester Hymes, that Davis had been abusing her and asked them to beat him up, according to court records. After the beating, Hymes stabbed Davis to death.

State investigators said Butler, then 20, played a minor role in the killing and recommended probation. But he was sentenced to 15 years to life and has been turned down for parole six times.

Appeal sparks action

Butler's appeal of the board's latest parole denial prompted the appeals court to order an unusual settlement conference that resulted in last Wednesday's agreement. The court has not yet decided whether Butler should be paroled.

The court's presiding justice, J. Anthony Kline, approved the settlement. Kline, in another parole case last year, said the board appeared to be violating the rights of thousands of inmates by systematically denying release.

California has about 34,000 prisoners serving life terms with the possibility of parole. Most are convicted murderers, but 8,000 were sentenced for repeat non-homicide felonies under the state's three-strikes law. The parole board finds lifers suitable for release in about 14 percent of its hearings, according to state records, but almost never at an inmate's first hearing.

The settlement could help the state comply with a federal court order to lower its prison population, currently around 118,000, to 109,500 in the next four months to relieve overcrowding that has hurt prison health care. The federal court has suggested that the state release low-risk inmates, but Gov. Jerry Brown has refused to seek changes in sentencing laws.

Since law school, Sharif E. Jacob has repeatedly litigated actions advancing the constitutional rights of inmates. He has won judgments and appeals for prisoners locked in solitary confinement for years or brutalized in prison. As part of his pro bono practice, he currently represents an inmate who has been denied parole.