Jim Porter: parole law 101
TAHOE/TRUCKEE andamp;#8212; All too often we read about a paroled criminal committing another crime andamp;#8212; often the same crime that caused him to go to prison in the first place. Having just watched the classic movie andamp;#8220;The Shawshank Redemption,andamp;#8221; I got to thinking andamp;#8212; always a good thing andamp;#8212; what are the criteria for being paroled? In over 30 years, the Law Review has never featured a parole case. Donandamp;#8217;t know much about criminal law.The CrimeIn 1983, Kevin Jackson was tried for the murder of his former girlfriend Sharon Wade. The prosecution presented compelling evidence that in the early morning hours of July 5, 1981, after an argument, Jackson fired two close-range shots at Wade. Jackson vehemently denied the allegations. A witness put someone with features like Jackson at the scene of the crime. He was convicted of second degree murder and sentenced to 17 years-to-life in state prison. Parole HearingOn Dec. 3, 2008, the parole board held the eighth parole hearing for Jackson. The board and Jackson presented evidence regarding Jacksonandamp;#8217;s pre-incarceration social, work and criminal history, his conduct in prison, his physical and mental health, and his plans if he is released from prison. Overall the evidence indicated that Jackson was suitable for parole. Not a risk to society.Under California law, Jackson has the right not to admit the crime, but in his conversation with the board, he actively denied the crime. At one point the board said to Jackson: andamp;#8220;Youandamp;#8217;ve shown a lot of regret for being incarcerated. You showed precious little remorse for the death of Ms. Wade, whom you said you cared so much about.andamp;#8221;The board (again) denied Jacksonandamp;#8217;s request to get out of prison. Jackson filed several petitions for writ of habeas corpus, finally ending up before the California Supreme Court, who sent the matter back to the Court of Appeal to determine whether the parole board improperly relied andamp;#8220;either directly or indirectly, on [Jacksonandamp;#8217;s] refusal to admit guilt as a factor demonstrating unsuitability for parole.andamp;#8221;Parole is the RuleIn California every inmate has a constitutionally protected liberty interest (a what?) in parole decisions, which are all reviewed by the governor. Parole hearing dates are frequent and mandatory. In fact, in this case, In re Kevin Jackson, the Court wrote that release on parole is andamp;#8220;the rule, rather than the exception.andamp;#8221; A Threat to Public SafetyParole guidelines are in place. Circumstances tending to establish unsuitability for parole are that the inmate (1) committed the offense in an especially heinous, atrocious, or cruel manner; (2) has a previous record of violence; (3) has an unstable social history; (4) has sexually assaulted another individual in a sadistic manner; (5) has a lengthy history of severe mental problems related to the offense; and (6) has engaged in serious misconduct while in prison.Circumstances tending to show suitability for parole include that the inmate (1) does not possess a record of violent crime while a juvenile; (2) has a stable social history; (3) has shown signs of remorse; (4) committed the crime as a result of significant stress in his or her life, especially if the stress had built up over a period of time; (5) committed the crime as a result of battered woman syndrome; (6) lacks any significant history of violent crime; (7) is of an age that reduces the probability of recidivism; (8) has made realistic plans for release or has developed marketable skills that can be put to use upon release; and (9) has engaged in institutional activities that suggest an enhanced ability to function within the law upon release.These general guidelines and other information is considered to form the crux of the parole decision andamp;#8212; would the prisoner be a danger to the public. A lack of remorse may be considered a factor to show an inmateandamp;#8217;s unsuitability for parole.Free Like a BirdThe Court of Appeal concluded that the only basis for the parole board to determine Jackson lacked insight into his crime, failed to take responsibility and lacked remorse was his refusal to admit guilt. No conclusions may be reached because he did not admit to the crime.There was ample evidence to find Jackson murdered Wade, but it was theoretically possible he did not, so to deny his parole, in part because he did not admit the murder, was improper. Also, Jackson had successfully engaged in improvement activities while in prison, had waiting family and had lined up a job on his release.The matter was returned to the parole board for reconsideration with a strong suggestion from the Court of Appeal that Jackson should be released.Jim Porter is an attorney with Porter Simon, with offices in Truckee and Reno. He is a mediator and was the Governorandamp;#8217;s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at email@example.com or at the firmandamp;#8217;s website http://www.portersimon.com.