Relieving California prisons overcrowding problem by releasing more lifers who are eligible and ready for parole.
California State has had systemic problems with its justice system for decades. Crime rates have soared; recidivism rates have been at unacceptable levels for far too long; and now, overcrowding in California’s prisons has caused deaths that has led the federal courts at the highest level to order releases, and a better level of health care at taxpayer expense. The litigation alone has cost hundreds of millions of dollars over decades. The State’s response was typical: more frivolous appeals; more delays; more of the same; no lifers parole settlement solution.
Meanwhile, with a golden opportunity to begin to relieve their overcrowding problem by releasing more lifers who are eligible and ready for parole, the State has obstinately refused. They have studied our recidivism rates, and concluded that lifers have the lowest rate of re-offense. Still, their tactic is to refuse to release any lifers. Now, after over-incarcerating lifers for decades, the challenge in In re Roy Butler produced The Settlement Order and the State has yet another opportunity to redeem its wrongs, and produce results that will solve many of its legal and financial problems, as well as lower crime and re-offense rates. The State’s response: obstinate refusal.
On March 17, 2014, the Board’s Executive Officer, Jennifer Shaffer, wrote a memorandum to the Parole Commissioners; her Chief of program operations; her Chief of Field Operations, and her Chief Legal Counsel Howard Moseley that serves as a directive on how Butler is to be implemented, per the Settlement Order. When I read it, I was not shocked, but I was incensed and appalled at the Board’s contempt for the Court and for Roy Butler, as well as the Public, and all the families of lifers. This memorandum shows that the Board’s intention in settling the case was to fool the Court into stopping the discovery and trial process which would expose many dirty secrets, and then, change the label on their procedure and go right back to business as usual.
I believe I’ve written at some length about the Presiding Justice in the Butler case. He is one of the wittiest, brightest legal minds of our time. He is an amazing jurist, and relishes the challenge of debating complicated legal matters and questions. He is reputed for not suffering fools gladly, and has an outstanding reputation for embarrassing even the most prestigious lawyers for the atrocious sin of trying to pull a fast one in his Court.
Unbelievably, somehow, Jennifer Shaffer has deluded herself into thinking that this memorandum-directive she has produced is going to make itself acceptable before this Appellate Court. Tisk, tisk. Her delusion lies in the fact that this opportunity to write her own procedure was a good-faith allowance by the Court, not a “get out of jail free” card for her. The Court could have forced its will on the Board, who signed an agreement to conform to the law by producing a solution in the way of meaningful change that would relieve not only the violation of Roy Butler’s freedom, but every lifer in posterity. This memorandum-directive is a slap in the face to the Court, to Roy Butler, and to all lifers and their families. As I stated before, laws are not one-sided. Laws are to be applied equally. One of our founding fathers once wrote: “Where the law ends, tyranny begins.” And so, it is supposed, if the captor uses the law to take away the freedom, there is no excuse other than tyranny as to why the captor now withholds it. Tyranny is not license to violate the laws the captor purports to uphold.
Jennifer Shaffer and the Board of Parole Hearings have an unofficial motto: “Might makes Right.” The Board is a scary entity to any lifer facing a parole suitability hearing. Rightfully so, because lifers committed serious crimes. The question is, once a lifer is reformed and has paid his or her debt to society, and has worked hard to earn parole, should the Board grant it? The law says so. Society says so. Common sense says so. But the power differential is so disparate, that the lifer is like a cornered mouse before three hungry cats. The Board uses that as license to deny every and any right it wishes to deny, erring always on the side of denying the freedom to the prisoner. It is equally as trying to the families of these prisoners as the crimes were to the victims’ families. Although the crimes themselves deserve punishment, society determined the punishment, and society determined that they did not deserve the death penalty or life without the possibility of parole; society determined that an absolute number of years was to be the punishment with a possibility to parole before that determined number is fulfilled. The law here says so.
The Board installs tyranny by refusing to “calculate” and “set” the number of years to be served, and refuses freedom by repeatedly reciting the crime at every parole hearing, indefinitely. Butler was to put an end to this by ordering the Board to calculate AND set that number of years, called the “base term”, and the Board agreed in their settlement. However, they got creative and decided here to only “calculate” the base terms, not “set” them, because it appears to them that the settlement they signed only ASSUMES that both calculating and setting terms go hand-in-hand. Just like the Morrissey 8 Memo of 1979, when you leave things up to the State to interpret, the Public always ends up on the short end of the stick. I don’t like to gloat, but I did say so all along.
However, as I will show you here, the language and meaning are quite clear, and I can almost assure you that once the Court catches wind of this, there are going to be fireworks. Jennifer Shaffer is going to be taken to the woodshed. The Presiding Justice does not like people who try to make a fool out of him. So get your popcorn ready…
For the sake of brevity, I will include only the relevant captions of the Settlement Order, and I will include the related portion of Shaffer’s directive-memo, for readers to compare. The portions in all capital letters are my emphases for your benefit.
(Butler case no. A139411 Stipulation):
B. “With respect to Case No. A139411, challenging the Board’s base term SETTING practices, the parties stipulate to entry of an order directing that:
as soon as is practicable, the Board shall begin implementation of new policies and procedures that will result in the SEITING of base terms and adjusted base terms for life term inmates… ”
Butler case no. A139411 Settlement Order (“Order” hereafter ) :
“The Board shall, at the next publicly noticed Board meeting, announce a policy of CALCULATING the base term and adjusted base term for all life inmates at the initial parole consideration hearing. The Board will implement this policy on the first day of the calendar month following the aforementioned meeting.”
“The Board shall, within 90 days of this Order going into effect, initiate the process to amend its regulations to reflect the base term SETTING practices described in this Order, in accordance with Gov. Code, section 11340 et seq.”
“This Court shall retain jurisdiction of this case until the amended regulations, conforming to the base term SETTING practices as described in this Order, become effective.”
You see, the words “calculate” and “set” is where the Board so tactlessly chooses what it will and won’t do with base terms. There was a point during the Discovery phase where the Board jumped out and offered to CALCULATE base terms. The Court mistook that for “good faith.” The Court even applauded it. The Board however, was scheming to this end.
It eventually produced the admittedly vague settlement order. As proof, I now present excerpts from Shaffer’s memo-directive as evidence. First, Shaffer quotes the Order at “3” just as I did above, with the word “calculating” being her only focal point, of course. Ignoring all else, she also quotes the Order at “4”, which only repeats the “calculation” language (for a different subset of lifers). The important point here is that she glosses completely over the Stipulation at “B” and “1” I cited above, as well as the Order at “3”, “5”, and “8” that explicitly requires the “setting” of base terms to go with those “calculations”. Her memo instructs the Board as follows, again with my emphases appearing as all capital letters:
Board of Parole Hearings Memorandum/Directive to all Parole Commissioners
and Legal Staff by Board Executive Officer Jennifer Shaffer:
-“Pursuant to the above court order, effective April 1, 2014, all hearing panels shall CALCULATE a base term and adjusted base term during deliberations… and announce the CALCULATION on the record when the decision is rendered.”
-“In the event of a PAROLE denial,… hearing panels are instructed to clarify on the record for the benefit of all the participants that the base term and the adjusted base term CALCULATIONS DO NOT represent the inmate’s release date.”
-“It should be noted that the hearing panel’s CALCULATION of the base term and adjusted base term is part of the panel’s PAROLE SUITABILITY decision.”
Now, for the benefit of your understanding, I will quote Butler’s case no. A139411 August 7, 2013 bifurcation (splitting) order by the Court, which led to this latest harebrained attempt by the Board to dupe the Court with this settlement scheme. By the Court:
“The supplemental petition… presents two distinct issues: ( 1) (omitted for brevity); and (2) that the Board’s practice of deferring CALCULATION of inmates’ base terms until AFTER a finding of SUITABILITY FOR PAROLE resulted in (Roy Butler) serving a sentence constitutionally disproportionate to the crime he committed.”
Okay, we know that the failure to CALCULATE the base term until after they finally find a lifer (like Roy Butler) “suitable for parole” isn’t the problem; it’s their refusal to “set” the base term that causes the problem. Before the Butler Settlement, they would “calculate” the base term AFTER they finally found a lifer “suitable for parole.” Now, she has agreed to begin “calculating” the base term at the next hearing of every lifer. Folks, ANYONE can “calculate” my base term, literally with or without a pencil. It’s the “setting” of the base term that we need. Shaffer admitted in her memo that a CALCULATION is NOT an inmate’s “release date.” -Clever, huh? Naive and tacky, if you ask me.
Shaffer is avoiding the “setting” portion of the Order for a reason, focusing only on the “calculating” part. In their feeble minds, they think the Presiding Justice, who maintains jurisdiction in this case until the base term SETTING practice is reflected by the Board (see above at “R”), is going to swallow this, hook, line, and sinker.
But there is a serious oversight in their plan: the Court’s first order in this case, which it issued on January 30, 2013, when it appointed Jon Streeter to represent us through Roy, can be qualified as a rant by this Court against the Board’s actual practice of refusing to SET base terms. Again, calculations are only numbers that anyone can add up; it’s the SETTING part that produces a result. By this Shaffer memo’s logic, you can receive a “calculated” base term; serve that number of years three times over, and die in prison with that piece of paper in your pocket. In fact, if Roy isn’t found “suitable” when he goes back to the Board for another hearing in a few weeks, this settlement will give him NOTHING. Would you have settled? So why would the Court have heard this case only to allow it to settle (letting the Board off the hook) with no actual change in practice?
I just wanted the Public to see for themselves that the Board it chose to uphold the law and hold people accountable to it are nothing but criminals, prevaricators, and perverters of the law themselves. This includes the Attorney General herself, whose Deputies are all Officers of the Court sworn to uphold the law, but are complicit in these shenanigans that result in violations of law, peoples’ freedom, and constitutionally guaranteed rights.
I once again filed a supplement in Court, weeks before I received this memo from Shaffer. I feel psychic. The motion I filed to the Justices pointed out that this was a ruse all along, and that with a possibility, the Board would pounce. The Board took the bait. As a “Friend of the Court” (“amicus curiae” in Latin), my duty is to inform the Court of unforeseen circumstances. I foresaw this. However, I have a strange feeling that the Court also foresaw it, but chose to give the Board a chance to prove them wrong. It was a fat chance, and here’s the proof. In my next article, I hope to discuss the Court’s next action, which should be a response to this move. The State also appealed a separate federal court order that would have fixed part of this problem as well, which was fought and won in another case. Ladies and Gentlemen, these are the Public Servants you elected. The “solution” is in YOUR hands. Vote.
Until my next, I sign off.
Written by Rudy while incarcerated in California.