United for No Injustice, Oppression or Neglect

Letters on Parole

Congratulations Deborah D.J.! 

Cayenne--this shows how far behind on things I am--I just discovered last night that the Santa Rosa Press Democrat published my recent letter--last week! 

MEANING OF PAROLE Published on April 25, 2002 
The Press Democrat 


I think Gov. Gray Davis is a bit confused about parole. He seems to think the only way to qualify is by extenuating circumstances, such as a battered woman who wasn't allowed to present abuse as a defense at her trial and therefore might never have been convicted. 

No, Governor, parole is something an inmate earns -- it's not a pardon for mistaken conviction. He earns it by serving a very long sentence and by demonstrating reformation. He earns it by the day in and day out hard work of walking the straight and narrow through a mine field of bad attitudes, anger, drug availability, insanity and hardboiled guards. 

Believe me, the 80 men and women (out of 20,000 indeterminately sentenced prisoners) who were approved by our tough parole board, deserved better from you, and so do our consciences and pocketbooks. 


Separation of Powers and California Parole


 In 1997, I wrote a legal argument proposing three constitutional questions of law surrounding the California parole scheme as applied to persons sentenced under the Determinate Sentencing Laws ("DSL").  These were laws first enacted in 1977 through Senate Bill ("SB") 42, entitled the Uniformity in Sentencing Act, an Act which has been continually expanded upon ever since.  The three statements questioning the constitutionality of the DSL Parole scheme as written are as follows: 

 (1)  The Superior Court is without constitutional authority to impose "Parole" as a separate sentence. 
 (2)  The Legislature is without constitutional authority to enact a separate "Parole" statute for determinant term prisoners who have served their entire sentence. 
 (3)  The Executive Branch is without constitutional authority to either grant or revoke "Parole" for determinant term prisoners who have served their entire sentence. 

 The following argument emphasizes separation of powers violations.  It does not contain a detailed argument that a separate and distinct term of parole for DSL prisoners is a violation of the double jeopardy or double punishment doctrines of the state and federal constitutions. 


 The term "Parole" has been defined by the United States Supreme Court as "Early Release."  That is release from prison before the completion of the sentence on the condition that the prisoner abide by certain rules during the balance of the sentence.  Young v. Harper (1997) 520 U.S. 143, 137 L.Ed., 2d 270, 117 S.Ct. 1148; Morrissey V. Brewer (1972) 408 U.S. 471, 33 L.Ed. 2d 484, 92 S.Ct. 2593, 2598.  Both state and federal courts have consistently held that "Early Release" is exercised exclusively by the Executive Branch of government, and that parole occurs within the sentence of "actual custody," i.e., "Early Release."  The enforcement leverage that supports the parole conditions derives from the authority to return the parolee to prison to serve out the balance of his sentence. Id. 92 S.Ct. at 2599. 

 Article III, Section 3, of the California Constitution states:  "The powers of State government are legislative, executive, and judicial.  Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution." 

 Therefore, the Legislative and Judicial Branches are without constitutional authority to grant "Parole."  Likewise, the Executive Branch is without constitutional authority to either grant or revoke "Parole" for determinant term prisoners who have served their entire "actual custody" sentence.  To do so violates the separation of powers doctrine of Article III of the United States Constitution and Article III of the California Constitution. 

 Once the state gives prisoners good time credits it cannot take them away, whatever the reason.  Lynce v. Mathis, (1997) 519 U.S. 433, 117 S.Ct. ____, 137 L.Ed. 2d 63.  Good time credits confer a liberty interest on inmates.  Wolf v. McDonnell, (1974) 418 U.S. 539, 44 S.Ct. 2963, 41 L.Ed. 2d 935; Gother v. Woods, (9th Cir. 1995) 66 F. 3d 1097.  A prisoner's good time credits become vested when he is released from prison.  Glouser v. Parrat, (8th Cir. 1979) 605 F.2d 419.  Therefore, once a determinant term prisoner is released from prison, he good time and associated credits become vested, and he will have served his entire "actual custody" sentence.  No matter what a state chooses to call it:  "supervised released" or "early release," it falls squarely under the Morrissey definition of "Parole," Younger v. Harper, 117 S.Ct. 1148, so then, when there is no more time left to be served to be released early from—the prisoner must be discharged. 

 Prior to the enactment of the Uniformity in Sentencing Act, Senate Bill ("SB") 42, in 1977, commonly referred to as the Determinant Sentencing Law ("DSL"), California parole system fit firmly under the Morrissey definition of the essence of parole, and was considered to be early release, part of the term of imprisonment.  However, then the DSL first came into effect, there was no provision for parole.  Lobbyist for the Probation and Parole Officers' Union convinced the Legislature to amend the Act and attach a parole period to all DSL sentences. 

 California's resulting parole system, being derived more from interest in job security than public safety, is ill conceived, ambiguous, constitutionally deficient when applied to DSL prisoners.  This is because parole falls after the prisoner has completely served his "actual custody" sentence.  The present parole system is a panoply of mixed Indeterminate Sentencing Law ("ISL") and Determinate Sentence Law ("DSL") statutes.  Some of the ISL parole statutes have been relabeled, without being properly rewritten, and applied to DSL prisoners.  This system runs afoul of the Supreme Court holdings and definitions set forth in Young v. Harper  and Morrissey v. Brewer because:  California's system of revocation of parole for a DSL parolee is almost identical to the revocation of probation, and the subsequent imposition of a prison sentence.  This happened because when the DSL came into effect, the Legislative Branch took from the Executive Branch its discretionary power to grant "Early Release" prior to the expiration of the "actual custody" portion of the sentence.  The Legislative Branch then gave the Judicial Branch the power to impose a second prison sentence in the form of revocation from the "constructive custody" portion of the sentence to a new "actual custody" term.  Through this action, the Legislative Branch unconstitutionally reversed the traditional roles of the Judicial and Executive Branches of government.  This violates California's Constitution, Article VI, §3, which proclaims the separation of powers. 

 The California DSL parole scheme has several fundamental constitutional flaws, including when the sentencing was deferred from the Judicial Branch to the Executive Branch.  This is impermissible since the "actual custody" portion of the sentence has already been served, and any revocation after the sentence has been served is a new prison sentence; a function constitutionally reserved to the Judicial Branch.  In Fultz v. Stratman, 97 D.A.R. 11732, quoting the federal appeals court in Evans v. Parole Com'n, (7th Cir. 1996) 78 F.3d 262, 265, it was held that the Federal Parole Commission cannot impose a term of special parole any more than it can sentence a defendant to prison.  This is because the parole commissioner, the Executive Branch, cannot perform the judicial function of imposing a sentence. 

 If the federal Executive Branch cannot sentence a person from "constructive custody" to prison, then it stands to reason that California's Executive Branch also cannot impose such a prison sentence.  Since no sentence time within the parole period term of sentence under the DSL act is "actual custody" to be returned to, a DSL parolee can only be returned to "actual custody" through imposition of a new sentence.  Thus, California's mix of ISL and DSL statutes and concepts, when applied to DSL prisoners, does not provide for constitutionally adequate revocation, because any revocation of a DSL parolee is a new prison sentence per se.  Because such a revocation does not fall within the "actual custody" sentence as a return to prison following "early release," it runs afoul of either the separation of powers doctrine, or the proscription of double punishment doctrine, or both. 

 To allow this sort of unfettered power in the Executive Branch is a step towards a totalitarian concentration of power in the executive; a power to be exercised with inadequate legislative standard, and capable of avoiding judicial review such as this has been prohibited from the earliest times.  See Hayburn's Case, (1792) 2 U.S. (Dall.) 408, 1 L.Ed. 436, and its progeny.  Also see Industrial Union Dept., AFL-CIO v. American Petroleum Institute, (1980) 448 U.S. 607, 65 L.Ed. 2d 1010, 100 S.Ct. 2844, where the Supreme Court relied on the theories of John Locke, from colonial times, that the separation of powers doctrine would have the court invalidate delegation of authority to the executive agencies when the legislature had not sufficiently limited the powers of the executive agency.  Notice should also be taken of Montesquieu, The Spirit of the Laws, 151-2 (Nugent trans. 1949), which states:  "Any combination of the judicial, legislative, or executive powers would create a system with an inherent tendency towards tyrannical actions." 


 Logically then, once a DSL prisoner has served his entire "actual custody" sentence, the Executive Branch of government loses its ability to grant "Parole."  This is because there is no more time left to be served to be released "Early" from, and the Executive Branch has no constitutional authority to sentence a person to prison, and thereby return a DSL prisoner to custody once his "actual custody" sentence is completed. 

 Therefore, the Executive Branch has no more jurisdiction or control over a person after the person has served his entire "actual custody" sentence.  At this time, the person must be released from all actual or constructive custody, because it would be unconstitutional to further restrain a person who has completed his actual custody sentence. 

Tom Watson, Shasta County Jail 


Parolees in revolving door 
California has highest rate of recidivism 

Jim Herron Zamora, Chronicle Staff Writer 
Monday, December 23, 2002 
©2002 San Francisco Chronicle 

Since his first arrest at age 19, Gary Johnson has been in prison six times, mainly for drugs or minor parole violations. On the streets, he's been shot twice. Behind bars he was stabbed twice by other inmates. 

But he's not a murderer, rapist or robber -- just a two-bit drug offender who keeps offending and then returning home to his mom's couch. 

"I don't really have any big dreams," said Johnson, 42, who began a new drug counseling program last month after parole agents spotted him hanging out on a street corner. "I'd be very happy if I could just stay outside (prison), maybe get some kind of job. I'm too old for this: It's wearing on me." 

With ex-cons being blamed for helping drive up crime across California, a growing number of critics point to California's revolving-door prison policy -- 

which does little to help nonviolent drug offenders back into society. 

"About half of inmates are going to reoffend and end up incarcerated no matter what you do," said Mario Paparozzi, former chairman of the New Jersey Parole Board. "The hard part of our business is what do you do with that other half." 

Last year, 126,000 prisoners in California were released -- six times more than in 1975 -- and most of them had little preparation for life on the outside. 

Before the mid-1970s, most sentences were indeterminate, meaning that most inmates could get off much earlier than their original sentence if they completed vocational or academic classes in addition to good behavior. 

The state replaced that system with one lacking an incentive for inmates to take classes or get counseling to help them prepare for life outside prison. 

Now, virtually everyone released from prison spends three years on parole. Most -- about 71 percent -- end up back in prison within 18 months -- the nation's highest recidivism rate and nearly double the average of all other states. 

But their average stay back in prison is only five months, and some experts wonder whether California is just postponing crime rather than solving it. 

"If you put somebody back in prison for only a few months, all you have done is postponed the inevitable return to the streets of a convict who is unprepared for society," said Paparozzi, now a criminology professor at the College of New Jersey. 

The mission of the California Department of Corrections is to protect the public from criminals -- not rehabilitate offenders, notes department spokeswoman Terry Thornton. 

"California law dictates that the purpose of prison is punishment," she said. "We offer opportunities for those willing to change. Those willing to take responsibility for their actions are the ones who improve, and we will help them." 

But critics say other states, including New York and Texas, have succeeded in being tough on violent criminals while reducing recidivism among nonviolent drug offenders. 

"We are trying get the violent felons into prison and use other sanctions for the nonviolent offenders," said Tom Grant, spokesman of the New York Division of Parole. "A dirty drug test would not send you back into a correctional setting in New York. It might get you into drug treatment program. " 

California is one of three states in which most people who enter prison each year are not new offenders but parolees who either commit new crimes or so-called technical violations of their parole terms, such as failing a drug test or missing appointments with their case agent. 

"Having a zero-tolerance approach to technical violations really means you've given up on preparing these inmates for life outside prison," said Paparozzi. "With this approach, California may want to just abolish parole and keep everyone in prison for a couple more years." 

In 1980, 21 percent of those entering prison were parole violators, evenly split between technical violations and new offenses. By 2000, 69 percent of those entering in prison were parolees; 57 percent for technical parole violations and 12 percent for new felony convictions. 

That overall rate is about double the national average for parolees re- entering state prison. And California is the only state where most people entering prison are not there for committing new crimes. 

"(We are) looking at ways to reduce the high number of parolees that return to prison for technical violations," said Nancy Lyons, deputy executive director of Little Hoover Commission, an independent state oversight agency. "California stands alone from all the other states when it comes to revocation rates." 

The commission plans hearings on parole reforms Jan. 23 and Feb. 27 in Sacramento. 

"California made an expensive policy choice to put more people in prison instead of trying other alternatives," said Jeremy Travis of the Urban Institute, a Washington, D.C., think tank, who has co-authored several recent studies on recidivism and parole in California. 

"The question is really whether you can afford that policy anymore. . . . I don't think California can afford to build more prisons in the current economic environment." 

From the late 1970s to the late 1990s, California added more prison cells than any state in U.S. history. But spending on parole agents lagged, according to state data analyzed by UC Irvine Professor Joan Petersilia. 

In 1997, California cut spending on parole services by 44 percent, nearly doubling parole caseloads to more than 70-to-1, according to Petersilia's 2000 report for the California Policy Research Center. 

That leaves agents little time for anything but rounding up violators. Statewide, authorities have lost track of 1 in 5 parolees. 

Only 5 percent of California's prisoners complete a re-entry program before they are released from prison, and fewer than a quarter of them get education or vocational training while in prison, according to Petersilia's study. 

"So many people come out of prison with nothing but $200 and a head full of anger," said Ron Owens, an ex-convict who now counsels parolees. "They don't learn to be better people on the outside. They only know how to function on the inside." 

Oakland has more nonprofits to help inmates and their families than any other city in California, parole officials said. 

Every Wednesday, representatives from a dozen organizations make presentations to 50 newly released inmates who are required to attend. 

But parole agents cannot force the ex-convicts to participate. Most show initial interest but about 90 percent fail to follow though. 

Parolees, agents and counselors said inmates who go directly from highly structured and regulated life in prison back to their old neighborhoods lack the self-discipline to change. 

"In prison, we are willing to beg for a job flipping pancakes for 6 cents an hour, but outside we'll never think of filling out a job application at an IHOP," said Kevin Grant, an ex-convict who oversees a re-entry program. 

"Inside we know how to be good prisoners, follow the rules. But outside, we just lose it all and act like fool kids again." 

Ex-convicts say it's tough to change their stripes. Gary Johnson has lost count of how many re-entry programs he has quit. 

"I've wasted a lot of time in programs that didn't really help me," he said. 

"But I've wasted a lot more time on street corners." 

E-mail Jim Zamora at  jzamora@sfchronicle.com

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