The Morrissey 8 Memorandum

Setting due process rights for parolees at their revocation hearings.

Ah, the 1979 memorandum. The culprit responsible for today’s overcrowding as well as the current lifer issue. Who is “Morrissey 8”, anyway? In 1972, the United States Supreme Court issued a ruling in Morrissey v. Brewer, 408 U.S. 471. That created due process rights for parolees at their revocation hearings, including the right to have an attorney, since the High Court found that the Parole Board had been tossing people back in prison on trumped up accusations. Essentially, the same thing the Board has done up until now. Well, the Attorney General put together two Deputies Attorney General from each CA office to “explain” the new rights and procedures that flowed from the Morrissey case, so they were informally known as the “Morrissey 8”.

Three years passed, and when the 1975 In re Wingo case was decided by CA’s Supreme Court, deciding that lifers needed to be informed of their punishment (among other things), the Adult Authority (Parole Board)’s Chairman Raymond Procunier issued a Chairman’s Directive, #75/20, telling all inmates and the Board that he would authorize the setting of parole dates for all lifers, EXCEPT for psychologically infirm ones, because he recognized that prison violence was directly related to the uncertainty that lifers all had about their punishments and the length of time they needed to serve to fulfill it. Back then, all prisoners had “life” sentences like Butler’s. For example, “1-to-life”, “5-to-life” “15-to-life”, the first number corresponded to the person’s crime category. The concept of setting parole dates was being floated around because Illinois passed a major law based on studies that established findings about violence. Well, soon after April 15, 1975, when #75/20 went into effect, the CA Supreme Court issued another blockbuster ruling, in In re Rodriguez (1975) 14 Cal.3d 639. There, the Court found that inmate Rodriguez had been held for 22 years on a “1-to-life” sentence, being denied parole or a set base term for the fact that he was psychologically infirm. The Board wanted Rodriguez to somehow become not mentally ill as a requirement to earn a parole date, let alone a set base term. But at the time Rodriguez’ case was heard by the highest court in CA, he was in San Quentin’s deadliest yard, not at a treatment facility such as Atascadero or Patton. This plain hypocrisy stuck in the Court’s craw, and the Court came down on the Board, requiring them to actually set base terms, regardless of parole decisions. In fact, the Court drew a clear distinction between the two processes, for the sake of clarity.

Interestingly enough, the lawyer who represented Rodriguez is the Presiding Justice in Roy Butler’s case now. He has a VERY distinguished career; he is a man of honor who always rules on the side of the law, regardless of whom it favors. I am personally taken by this man’s honor and respect for the law, and I admire him for his character. He has been a member or Chairman of many noble organizations throughout his life. The most notable ones to me are the Golden Gate Kindergarten Association; Youth Service America; Youth Guidance Center Improvement Committee; World Affairs Council; The National Housing Project at Boalt Hall; he co-founded Public Advocates; helped found the First District Appellate Project who appointed Jon B. Streeter to represent Butler (high-power counsel, by the way); and he was Chairman of the San Francisco Conservation Corps. He’s a man of the people.

After Rodriguez’ case was decided, Board Chairman Procunier had to begin setting base terms for prisoners, regardless of parole, and so he issued Chairman’s Directive #75/30 to conform to the Rodriguez ruling. That began on September 2, 1975. Things went good for a while. Governor Jerry Brown then chose J. Anthony Kline, Jr. (who represented Rodriguez in that landmark ruling) to be his Legal Affairs Secretary, and in 1976, Kline had managed to rally the entire Legislature in CA to overhaul the broken Indeterminate Sentence Law. Congress wrote Senate Bill 42, the Determinate Sentencing Law, almost entirely abolishing life sentences except for cases such as Charles Manson and the like. It passed overwhelmingly and went into effect on July 1, 1977. The problem, it seemed, had been solved.

In November of 1978, one of the Senators who opposed S.B. 42 introduced an Initiative to you, the public, asking to reinstate life sentences that an entire Legislature overwhelmingly abolished a year earlier. On the Prop 7 ballot pamphlet, he mentioned names such as “Zodiac Killer”; “Charles Manson”; “Sirhan Sirhan”, and a host of others. Out of fear of those names, the public blindly passed Proposition 7, creating 15 and 25-to-life terms for murder and other crimes. That Senator was John Briggs, a since-disgraced ex-legislator.

On July 9, 1979, eight months after the passage of Prop 7, Attorney General Bob Philibosian reassembled those Rough Riders, the “Morrissey 8”, to “explain” the new Prop 7, and how lifers would be affected, as well as the “Disparate Sentence Review” project that Penal Code 1170 (f) required the Board to perform, as I explained in my “On In re Roy Butler” article. The A.G. assembles these little task forces from time to time, whenever a court requests the Attorney General’s opinion on a legal matter. The problem with this is that the Attorney General is extremely self-serving, and almost always prepares these opinions in a way that clears a favorable path for prosecutors to win cases. I have often heard of it referred to as “job security”; and judging by how many lawyers from the A.G. offices make it to judicial benches by way of appointment and elections, based solely on quantity of convictions, it is a compelling argument that decks are stacked so to speak, by way of these seemingly innocent official opinions.

I personally like to audit judges, to see how often they request such opinions. Surprisingly often, judges are lazy and incapable of producing just and equitable rulings, so they “cut-and-paste” annotations from law books such as “West’s Annotated Penal Codes”, attach a signature block, and deny prisoner petitions. In fact, Roy Butler’s Superior Court judge, Larry Goodman, did this to Butler and my other partner Aldo Romero almost two years apart. Judges also use A.G. opinions in the same way. It tends to keep judges from burning political career possibilities in issuing “soft on crime” rulings. Those are your basic enablers of injustice.

On July 26, 1979, the Morrissey 8 issued its opinion on how they believed Prop 7 should be applied, and made several other curiously prosecution-friendly opinions. The first and most devastatingly erroneous conclusion was that Prop 7 life sentences are nothing like the old ISL life sentences (prior to SB 42), as if Prop 7 had reinvented the wheel. They also concluded that “the Parole Board’s power to fix terms was withdrawn… and nothing in the current Penal Code evidences an intent to reestablish those powers for first and second degree murder.” “Since the… Board’s only remaining power is the power to grant parole… it was concluded that the new sentences appear to be ‘life’… “. The second, and perhaps most devastating erroneous conclusion for lifers by the Morrissey 8 was about the Rodriguez ruling of 1975: “In re Rodriguez (1975) 14 Cal.3d 639, also appears to have been rendered obsolete by the changed structure of life sentences. In Rodriguez, the California Supreme Court placed the burden on the parole board to set a prisoner’s “primary term” quickly and without regard to any post-conviction behavior. This “primary term” established the outer limit of the prison system’s jurisdiction over the prisoner. The basis for the Rodriguez decision lay in the judicial branch’s obligation to examine terms, as fixed by the parole board, to determine whether they were cruel or unusual. In light of the fact that the parole board has no term fixing power, it was the unanimous conclusion of all members present that Rodriguez is no longer applicable.

Those two conclusions caused many thousands of lifers to stack up in prison for decades, long past their presumptive, but unset, release dates. Aubrey Grant has been in on a 15-to-life term since 1979, and Roy has been in on a 15-to-life since 1987. And yes, when I inherited the unenviable task of writing this petition, I made the Morrissey 8 memo our star witness and the smoking gun.

Lifers’ dates were never set after Prop 7 went into effect because the Board chose to follow the conclusion of these Morrissey 8 who would defend them in courts if prisoners ever challenged them. But let me tell you, it takes a real tactician and help from above to decipher these laws and all the corruption behind it. It was policy established not on law, but on the whimsical advice of the A. G., the Board’s counsel. Lifers had no such representation. Well, at least not until now. I had the Master Architect, God, as well as an incredible General in Aubrey who trusted me to prepare the assault, and together we carried it out, and won. Why? Because first, the Parole Board never lost its power to set terms. Just look at Penal Code 5002 (e): today’s Board retains all the powers of all the previous Boards, which means that if they could fix terms in Rodriguez’ day, they have the power to do so now. Besides, we know where they chose to ignore their obligation and power to do their job. In fact, when Senator Briggs was busy plugging away writing Prop 7, the rest of the Legislature made an emergency addition to Senate Bill 709, so that it would come out at the same time as Prop 7 and nullify his ill intentions. That addition was an amendment to Penal Code 1170.2, to add subdivision (h) to it. It’s a form of authorization for the Board to fix terms for all lifers who commit crimes on or after January 1, 1979. Since Prop 7 was signed into law on November 8, 1978, this would, at least in theory, solve that problem. No one foresaw the Morrissey 8’s intervention however. As a result, 1170.2 (h) has sat unused and unapplied by a single soul by any court in 35 years. As we were always without counsel, it went unchallenged for 26 years, and then the Dannenberg case really screwed things up. He challenged the policy using a PAROLE statute, Penal Code 3041, and the CA Supreme Court put their stamp of approval on the Board’s practice. That case mentioned Rodriguez, but failed to uphold it, because the Dannenberg attack on it was flawed. It was close, but no cigar.

In Butler’s challenge, we attacked the Morrissey 8’s conclusion that In re Rodriguez was “rendered obsolete”. -“Who rendered it obsolete??”- we asked. “The Morrissey 8?” We posed this question to the Court: does the A.G. or any of his Deputies have the power to overturn a standing Supreme Court ruling with a “conclusion” in a memo? That’s disturbing. A High Court holding and a Penal Code statute both state that the Board has the power and obligation to fix terms; the A.G. plucks a “conclusion” from the air, and reverses the law? What’s worse is that over the course of decades, courts ignored prisoners’ pleas. “Parole is a sham!” we cried. But the one Court who stood out in a dissent, was our own Justice Kline in In re Morganti (2012) 204 Cal. App. 4th 904. Just while the A.G. was seeking to bury the law out back in the woods, he scolded them.

Dissents are often meaningless, unless you know how to read between the lines. Fortunately, God blessed us with the ability to connect dots, and brought Aubrey and I together at Soledad. Aubrey’s mom, Viola, is also the heart of our cause. For all lifers and their families — know this: she has sacrificed a lot to keep Aubrey up on cosmetics in care packages, because all his chapel porter pay got chewed up in mailing the tons of letters I would write in this case. Plus, I never saw him eat a single candy bar or soup. That’s sacrifice, because she’s penniless and disabled. Not to mention her prayers at her church, and the letters of inspiration.

Folks, our moms have been our backbone. Steve Holt’s mom is also a fighter along with my mom Arminda, who has never failed me. My sister Joanna, who is a brilliant Paralegal, hasn’t failed you guys either. Roy’s grandmother Eloise as well, has provided a key in this case: a simple letter of support. All of us have sacrificed something, and it’s all been worth it. Justice Kline has sacrificed his reputation by standing up for Roy Butler, regardless of Roy’s past. In fact, going forward, I am going to ask you, my readers, to sacrifice as well. We will be able to reform the entire penal system, so that crime can be lowered, and the crooked can be weeded out from our government, one by one.

Again, I will show you how all these seemingly unrelated events affect your children, your wealth, and your safety. Who passed Prop 7? The public. Who pays the A.G.’s salary? We, the Public. Who elects the judges? Who elects the Governors who appoint them to higher seats? What about the Legislators who cut school funding to keep prisons growing, and accept money from the prison guards’ unions? (You can confirm this campaign-contributing data at Sac. Bee’s website under CCPOA and Senators.) They’re the same ones who write the Prop 7′ s and Prop 9′ s. You have the vote, though.

In the meantime, I’m preparing proposals to allocate funding for youth guidance programs, using EXCELLENT mentors like Roy Butler. Folks, I have seen him tutor and mentor; this man would greatly benefit from a salary when he goes home (and so would the public), and how better to invest tax funds than by creating parolee and youth mentoring programs like that? It is a FACT that investing in education lowers recidivism at almost TRIPLE the rate than warehousing people AFTER they commit crimes does. So how else did we arrive at this juncture? We invested in prisons, and cut school funding under the label “Public Safety”. My dream however, is to see at least two juvenile detention facilities disappear, and two youth guidance centers open. Let’s try a one-for-one swap; it’s just a better way to do business.

If they implement this new Butler policy according to plan, you will see recidivism drop, and prisons start to empty. Lifers have the lowest recidivism rates among all parolees. I was one of CA’s “lost youth”, and I know what needs to be done to fix that. I need your support, resources, connections… just twenty minutes of your time a week. Like I told people in 2012: “You have no idea how far I’m going to take this.” Well, now it’s us, and we’re gonna make the difference. Are you ready?

By the way, why is the Morrissey 8 so important to you to you? Well, in the decades leading up to its writing, there were as little as four prisons in CA: Quentin, Folsom, Chino, and Soledad. Now there are what, 35? How did that happen? Two of the Morrissey 8 were April Kestell Cassou and Brian Taugher. They wrote a very interesting article together in the 1978 Pacific Law Journal (Vol. 9) titled ”The New Numbers Game”. They joked about the new laws they helped “explain”, calling SB 42 the “Lawyer’s Relief Act of 1976”, and quipped that while the proportion of the new law was unmanageable, not to worry, “… think of it as ‘job security’.” (See pg. 96.) But what’s most disturbing is that they “predict” prison population surges and overcrowding; the building of new prisons; deteriorating conditions… even mentioning the Florida and Alabama prison crises. Justice Siggins (in Kline’s District) has been mediating the Coleman/Plata Federal Three-Judge court overcrowding proceedings today. He had also mediated in the past in what I understand was Florida and Texas’ prison overcrowding crises. History repeating itself? Read my letter to Justice Siggins “Mediation in the Coleman/Plata Federal Three Judge Court Proceedings.” It will show how ironically all these points interconnect. It’s all so auspicious, in a wonderful way. To me, it signals an opportunity for change that we can seize.

After SB 42 passed, April Cassou prepared an exposition for use at the 1977 Criminal Law Institute for Superior Court Judges, through Berkeley’s CA Center for Judicial Education and Research. These people (Morrissey 8) have influenced every aspect of criminal justice up until today. None of this would matter one iota to me, if I hadn’t seen all the memorandums to and from individual legislators, and from prison guards and Peace Officers’ unions, seeking a certain outcome. That outcome favors them, however coincidental that happens to be. Again, monetary contributions to Legislators can be traced, and the outcomes can be judged by the bills they write, sponsor, and pass. Who gets leveraged? You don’t have to take my word. I am merely pointing out facts. It is your civic duty to know whom you put in office. Crime Victims United began with CCPOA (prison guard union) seed money. Do they represent actual victims of crime, or CCPOA interests (more prisons; less parole; tougher sentencing laws; more prison jobs)? I can assure you, they show up at every lifer parole hearing to oppose parole, even when the actual victim doesn’t want to. It’s a shame, but these are facts. Up through the 1990’s, some 21 or so new prisons were built. To quote Cassou and Taugber: “California had almost the same number of persons in prison in 1977 as it did in 1960, despite large increases in State population and in the crime rate.” They go on to insert their own conclusion, offering one of their memorable “explanations”. Today’ s CCPOA strikes fear in the heart of any politician; that’s how strong they are. And so, an ever-burgeoning prison industrial complex is the goal and product.

It is our civic duty to inform ourselves, and vote. The question should cease to be ”Republican, or Democrat?”; it should be: “Responsible, or Demagogue?”. If you don’t know what ALEC (American Legislative Exchange Council) or its counterpart are, and especially how they operate, you are being blindly victimized; not by criminals (at least not in that sense), but by your own government. It’s so effective that they’ve essentially abandoned Washington to focus in on State and local lawmakers. It’s a brilliant grass-roots scheme. You need to pay close attention to whom you put in office, even at City Hall. No, this is not a “conspiracy theory.” Just look at what happened in Madison, Wisconsin with the strongest labor union there. Once you understand the dynamic at work there, then you can understand how local and State lawmakers you elect can cause any entity in the state to either grow or shrink. Those entities can be schools or prisons or corporations. In our case, State prisons exploded in growth, and subsequently, education funding shrank. How? Senator Briggs wrote Prop 7 (who knows why); you passed it; the Morrissey 8 “explained” it; the parole board adopted the explanation as policy; and 35 years later, we have some 26 new prisons and an even higher recidivism rate. Those are facts. Now let’s fix it.

In my next article, I will discuss how the latest U.S. District Court injunction against the Parole Board and Governor (prohibiting them from applying Prop 89 and Prop 9) relate to Butler and the settlement. It is another monumental ruling that will complement the impending implementation of Butler. That ruling came out as this article was being written, and took years to develop. If you have any questions, please go to my page and leave a message. I’ll be glad to answer them. If you can provide any support, please do. My ultimate goal is to provide a better future for California’s youth. It seems ironic that this would be the vehicle, but it undeniably is.

Until my next, I sign off.
Written by Rudy while incarcerated in California.