Butler vs The Parole Board Case A139411
Welcome to In re Roy Butler controversy. My name is Rudy, and I want to share some facts and dispel some rumors about the Roy Butler vs Parole board case no. A139411, which are the result of some individuals that don’t understand our case, but love to write unqualified informational bulletins nonetheless.
I am a friend of the Court, which in Legalese is known as an “amicus curiae.” I wrote Butler’s original petition, based on the decades of work and study of my friend, brother and partner in the case, Aubrey Grant. Without him and his faith in God, Butler would not be in court, and lifers would still be hopelessly stuck waiting on the “Three Judge Panel” – that dark cloud that never rains.
You notice I call it “our case”? This case affects any and every term-to-life inmate in California. It also affects our families, whom we’ve subjected to our same line of punishment, and who cry our tears of hope with us when things like this emerge. So it’s incumbent upon any lifer and their family to heed the information I’m disseminating here. I’ve been graciously given this forum by the webmaster of Inmate Classified to inform the members of this site, which has been so helpful and instrumental to all of us for almost two decades. I foresee this article becoming many articles going forward, because you simply couldn’t fathom all the connections and depth involved in this case, and I couldn’t share it all in one column. This isn’t just about Roy Butler or 35,000 lifers; this is about all of us; our children; our grandparents; our government; and society in general.
But to begin, let me just inform the one topic, that December 16, 2013 settlement order issued by the First District Appellate Court of California, Division Two in case no. A139411:
First, once the Court decides the other half of the case, which Butler’s attorneys filed after the original petition was filed, THEN the settlement order goes into effect. As of the date of this article (2-15-14), it is not decided yet. That half of the case is numbered A137273, and deals almost strictly with the Board’s unjustifiable denial of parole to Butler. Before we filed Butler’s petition, the Parole Board (“Board”) denied him parole in 2012 because they stated that although Butler had insight into his crime (which is a rigid requirement in order to achieve parole “suitability”), he failed to “articulate it” to the Board members’ satisfaction. Also they claimed he didn’t present a single letter of support from outside sources offering him housing upon parole. Mind you, “lifers” are excluded from the family visiting program, and often cannot build family relationships through the oppressive visiting rooms where even holding your grandmother’s hand is frowned upon. So, lifers can become disenfranchised from their own families to the point where they can’t even get an offer of housing in their own homes because they’ve been absent for decades.
The Court is currently deliberating the unjust denial claims, and once it decides it, regardless of the decision, the whole other half of the case (A139411) involving base term setting policies for all lifers goes into effect. Ironically enough, the Board already conceded that Butler had insight, according to a 2011 Board Psychologist’s evaluation; also, that not only had Butler’s mom and grandmother submitted letters of support offering housing, Maranatha Christian Center offered all the support Butler could possibly need. Those facts were stipulated in that settlement order that the Board’s Executive Officer, Jennifer Shaffer, signed.
So there isn’t much for the Court to decide here. In my opinion, this is characteristic of that particular court — they’re thoroughly humiliating the Respondents with the law — for breaking it and violating Butler’s freedom. Although I’m not pro-prisoner or even pro-every lifer, I feel that this is a message that more courts should consistently send: “… you break the law, and the full weight of it will fall upon you.” Isn’t that the message the Board so enthusiastically gives to Roy Butler, as well as the rest of us?
Anyway, once A139411 (the settlement) goes into effect, every lifer who goes to the Board will have his base term calculated, using either a matrix of terms for their particular crime, or if no matrix of terms exists for that particular crime, then theoretically, the Board could use their “Disparate Sentence Review” which is a process they’re supposed to use for all newly received inmates, to ensure they are fairly sentenced. It’s a computer program that compares the crime to 10,000 other cases with similar facts and circumstances. It belongs to the Department of Corrections, not the Board, but since the CDCR and the Board merged long ago, I suspect they could use the DSR program where no matrix for that crime exists. In fact, I wonder if anyone reading this can educate me on how often they actually use the DSR today. By law they have to perform it in every case, but I have never seen the Director of Corrections magnanimously recommend anyone in here for resentencing because he felt someone had been ”harshly punished”. But I have no access to data on that process, which is spelled out pretty simply in CA Penal Code Section 1170 (f).
A “matrix” is a list of suggested punishments for crimes, spelled out in numbers of years, found in the Board’s Regulations (CA Code of Regulations Title 15, Division Two, Section 2300 on). They are arranged in numbers of years by sets of three (e.g. Butler’s second-degree murder starts at 15-16-17 years at the low end, and ends with 19-20-21 years at the high end). Higher numbers suggest that circumstances such as torture are present. Factors such as that the victim was the abuser of the person who killed him corresponds to a lower number of years for punishment on the matrix. In Roy Butler’s case for example, he was not the stabber of the victim; also, the motive for the crime was to stop the victim from abusing Jane Woods, whom the victim kicked a baby out of and routinely beat. Jane was also implicated in the murder, and famously got her only grant of parole by the Board for “Battered Woman’s Syndrome.” Gray Davis’ policy was no paroles of lifers, period. Doubtlessly, Butler and the guy who actually stabbed the victim while Butler hid in the bathroom with a knife had conspired to hurt the victim. It was wrong, but Woods and Butler both had a diminished role and culpability in the crime. So, the matrices are set up for the Board to set a base term for the offender that corresponds from high to low with their unique circumstances within the crime.
Once the term is calculated, the Board will SET THE BASE TERM. *This is the MAXIMUM time the prisoner can be held. He must ABSOLUTELY be released if this amount of time is served. They will adjust that number to add time for any enhancements (such as for the use of a knife; in Butler’s case a knife was used, but Butler was not the one who used it, so the Board will have to make that determination and decide whether to add the enhancement or not). Then, the Board deducts any time credit earned for good behavior (up to six months for every year served in prison). This number is called the ADJUSTED BASE TERM. This is the time the lifer will spend in prison for the crime, unless he loses the good behavior credits because of misconduct. Once the BASE TERM is SET, the prisoner is no longer a “lifer”.
Next, the Board will move on to consider the prisoner for “parole”, which is EARLY release for good behavior. If he is found suitable for “parole” (found not to pose a danger to society), a parole date is granted, subject to a 120 day review by the full Board en banc, and if confirmed, a 30 day review period by the Governor. To this point, the governors of California had overturned about 95% of all parole grants by the Board. Governor Jerry Brown has only overturned about 14% of grants, upholding a very noble amount of the grants he entrusted his Board to mete out. Either of these two entities can revoke that grant of parole, but the prisoner will eventually be released when the base term expires. Parole is a mercy and a privilege; a base term, once set, is an absolute right.
Please don’t be misled by alternative explanations of this settlement. Sure, the Board itself has said that this settlement has no effect on parole processes. They’re right: parole is an EARLY RELEASE for good behavior; but what they don’t rush to tell the public is that a SET BASE TERM is the absolute maximum one can serve, then, one must be released, regardless. They appear to have wanted to settle this case quickly, with as little publicity as possible. The Discovery evidence we were driving in Court was damning, as far as the Board had been refusing to set base terms for decades, resulting in disproportionate sentences and grossly excessive punishment. Now, they don’t want to appear to the public as “soft on crime.”
When we leave the courthouse after our sentences are handed down, they are declared as “term-to-life”. Our maximums are LIFE at that time, until the Board fulfills its obligation to set our base terms, thereby reducing that maximum down to the corresponding matrix term. You see, CA Penal Code Section 1168 (b) prohibits the sentencing court from setting the base term. This is a duty that the law places on the Board. The entire basis of the Butler case is that the Board has an obligation to set the base terms, and they were “playing dumb”, thereby leaving us in limbo, set at “life” indefinitely, so that they could go on playing the parole suitability denial game for the rest of our lives, whether we committed our crimes or not. God forbid you’re innocently convicted as a lifer in here and decide to smoke a cigarette or engage in a fistfight. That would give the Board enough fodder to deny you parole for fifteen more years as “unsuitable”. — Look at Butler: “You didn’t present a letter of support”, and “I need you to articulate your insight to me” … that’s all they need to recite to justify another rote denial of freedom to ANY lifer, regardless of their culpability in the crime they’re convicted of. That means that even though Roy Butler had a right to have his term set at 16 years, if his term was left at “15-to-life”, they could simply make up a reason such as “lack of parole plans”, and deny him a release on parole forever, since his term is left unset and defaults at “life”.
In my next article, I will discuss the 1979 memorandum that started this whole unfortunate saga. In the meantime, we await Butler’s A137273 decision. Within 90 days of that, the new practices should be fully operational, and every lifer who goes to Board will get a set base term (AN ULTIMATE RELEASE DATE, REGARDLESS OF PAROLE). Aubrey and I continue to litigate the complicated issues that arise from this abrupt change in practices, such as what must be done about people who are already past their base terms according to the matrix. As a result of a motion I filed to inform the Court of certain memorandums that would be helpful if only the Board would stop trying to hide them (they opposed my showing them to the Court), Jon B. Streeter, Butler’s attorney, also filed a motion to show the two archaic memos to the Court. On January 8, 2014, Streeter swore to the Court that the Respondents opposed having the Court even see those Board Chairman’s Directives. Streeter met with the Deputy Attorney General at her office, and the answer was “no.”
My message to you all is: don’t worry, you’re in excellent hands. Streeter and his staff at Keker & Van Nest are the best attorneys money could buy. And although Aubrey and I have neither asked for nor ever received a penny or a ramen soup (that’s prison wampum) for our work, all we ask for is prayer. We beg that you contribute by praying to God, and maintain a steady faith in His Grace and Goodness for us. Don’t get frazzled by “gurus” and their nay-saying baloney. Have unshakable faith in God. No one is closer to the Butler fire than Aubrey and I, and the only place you’ll get the real inside scoop is here on Inmate Classified. No shenanigans; I’m just one of the fellas … and I love you guys, and I exhort you to do good & better yourselves, for the sake of our families and our victims, and to give ourselves a good, redeemed name.
Until my next, I sign off.
Written by Rudy while incarcerated in California.