No one died. Shouldn't that matter? Challenging extremely long sentences for conspiracy to commit murder.

An inmate receives a sentence of 25 years to life for conspiracy to commit murder. A jury found that he helped his son purchase a firearm to be used to kill a witness who was willing to testify against the son in an unrelated case. The “hit man” was a police informant, and both father and son were arrested before any murder could take place. The question is, should this inmate spend as much time in prison as an inmate convicted of first degree murder where the victim was actually killed? On the surface, it does not appear that the law treats the two offenses any differently. The relevant statutes provide for the same sentence; 25 years to life. (See Pen. Code §§ 182, subd. (a)(6), 190, subd. (a); see also People v. Swain (1996) 12 Cal.4th 593, 602.)

I thought a lot about this question over the years as I argued for this inmate's release at two parole hearings, first in 2010 and again in 2012. Both times, the parole board gave absolutely no consideration to the fact that the commitment offense was seemingly far less severe than first degree murder. A common theme in criminal law is that when the consequence of criminal behavior is more severe, so is the punishment. The felony-murder rule is a good example. Under the felony-murder rule, an inherently dangerous felony can be charged as first degree murder if someone was killed during the commission of the crime – even if that person was accidentally killed. If, for example, a liquor store clerk shoots and kills one of two armed men trying to rob him, the surviving suspect may be charged with murder. Although the surviving suspect's actual conduct was limited to armed robbery, the tragic consequence of the robbery subjects him to a life sentence. DUI is another example. When an intoxicated driver accidentally kills someone, the driver is subjected to the much more severe punishment that comes with vehicular manslaughter. In both cases, the law specifically punishes the consequence of the criminal behavior.

So why then do we punish conspiracy to commit murder, where no one was harmed, exactly the same as we punish first degree actual murder? As discussed below, I think that Penal Code section 182 is vulnerable to an as-applied constitutional challenge for requiring, in some cases, a sentence that is grossly disproportionate to the defendant's individual culpability. And a recent development in the law may make such a challenge possible. But to understand this new development, we need to understand the history of sentencing laws in California.

Indeterminate Sentencing Law

Until 1977, California operated under the Indeterminate Sentencing Law (“ISL”). Under the ISL, the sentencing court only set a minimum and a maximum number of years for the inmate to serve, then it gave the prison authority the power to determine the exact length of the sentence based on the gravity of the offense and other circumstances surrounding the offense. This system was problematic. Ordinarily, the prison authority would not fix the term, rather, it would simply release the inmate when he or she was found suitable for parole. Because the length of the term was never fixed, the inmate could not obtain judicial review of the sentence.

Judicial review of a sentence is important because a sentence which is grossly disproportionate to the individual culpability for the offense violates that Eighth Amendment's prohibition against cruel and unusual punishment. (Ewing v. California (2003) 538 U.S. 11; see also Cal. Const. art. I, § 17.) In 2010, for example, the United States Supreme Court held that a sentence of life without the possibility of parole, given to a juvenile offender for a non-homicidal offense, violated the Eighth Amendment. Graham v. Florida (2010) 130 S.Ct. 2011.) California law similarly states that sentences should be proportionate to the seriousness of the offense, with uniformity for offenders committing the same offense under similar circumstances. (Pen. Code § 1170, subd. (a)(1).)

In 1975, the California Supreme Court recognized this problem, that the ISL did not allow for judicial review of the sentence. In re Rodriguez (1975) 14 Cal.3d 639. In Rodriguez, the inmate was given a sentence of one year to life for committing a lewd act with a child. (Pen. Code § 288.) Although there were no aggravating circumstances, the inmate spent 22 years in prison with no idea about when he would be released. The Rodriguez court ruled that the prison authority (then called the Adult Authority) must fix the length of the sentence when the inmate first arrives at the prison, thereby allowing for judicial review of the sentence. Otherwise, with each denial of a parole, the inmate could end up serving a grossly disproportionate sentence with no way of fixing the problem.

The Adult Authority implemented Rodriguez by creating a matrix of base terms – basically a list of criteria used to ensure that similar offenses received similar prison terms. The matrix took into consideration not only the manner in which the offense was carried out, but also the relationship between the inmate and victim, and the threat to the public. (Former 15 Cal. Admin Code, § 2282.) This matrix still exists. (See 15 CCR § 2403.) More on this later.

Base Term v. Adjusted Based Term

At this point, we need to clarify that we are only talking about the “base term.” A base term is the part of the inmate's prison term that is solely determined by the gravity and other circumstances of the offense. The setting of the base term is designed to ensure that life prisoners do not serve prison terms that are disproportionate to the culpability of the individual offender. (In re Stoneroad (2013) 215 Cal.App.4th 596, 617.)

In general, a prison authority also has the statutory power to make adjustments to the sentence based on factors that surface after sentencing. For example, if the inmate has a serious disciplinary history while in prison, the parole board may extend the sentence under the theory that it would be unsafe to release the inmate. Conversely, the sentence may be shorted based good behavior or work time credit. The resulting sentence would be considered the “adjusted base term.”

It should be clear, however, that any post-sentencing adjustment to the sentence is not relevant to the question of whether the sentence was grossly disproportionate to the offense. The base term, and only the base term, is what a reviewing court needs in order to review the constitutionality of the sentence. For more on this, see In re Riley (A137349, May 22, 2014); In re Stoneroad (2014) 215 Cal.App.4th 596.

Determinate Sentencing Law (sort of)

As noted above, in 1977, California adopted the Determinate Sentencing Law (“DSL”). Under the DSL, the sentencing court fixes the exact prison term. For most offenses, the sentencing court can choose between one of three sentences based on the circumstances of the offense. With robbery, for example, the court can choose between three, six, or nine years. (Pen. Code § 213, subd. (a)(1)(A).) After California adopted the DSL, the Adult Authority no longer believed that it needed to fix the inmate's base term when the inmate first arrived at the prison, as the Supreme Court had required it to do in Rodriguez.

The problem, however, is that for murder and a handful of other serious offenses, inmates were still given indeterminate sentences. Second degree murder, for example, carried a sentence of 15 years to life. First degree murder was 25 years to life. First degree murder with the use of a firearm was 50 years to life. (See Pen. Code §§ 187-190.) And the parole board, as if Rodriguez was never decided, went back to simply conducting parole hearings without fixing a base term for each life term inmate. (See In re Riley (A137349, May 22, 2014). Life term inmates could challenge each denial of parole by arguing that there was no evidence to support the board's current dangerousness finding. (See In re Lawrence (2008) 44 Cal.4th 1181.) But with no base term to challenge, they could not argue that their sentence was grossly disproportionate to the offense.

In 2005, the California Supreme Court upheld the parole board's authority to fix a life term inmate's sentence only after the inmate was found suitable for parole. (See In re Dannenberg (2005) 34 Cal.4th 1061.) In short, the Dannenberg court reasoned that it was more important for the parole board to make sure they were not releasing inmates who posed a significant risk to public safety. In response to the argument that the practice prevented judicial review of the sentence, the Dannenberg court noted that life-term inmates made up only a very small fraction of the prison population. As noted in In re Riley, however, the number of life term inmates substantially increased since Dannegberg was decided, thereby increasing the risk that many inmates were serving constitutionally impermissible sentences.

The Butler Stipulation

Effective March 5, 2014, the parole board agreed to change its practice and fix the base term for life term inmates serving an indeterminate sentence in accordance with its matrix of base terms – even if the inmate was denied a release date. (See In re Butler, A139411, Stipulation and Order Regarding Settlement.) This change is intended to reintroduce into the parole process early consideration of the proportionality of the life inmate's sentence, thereby facilitating judicial review of that sentence.

Application to a Sentence for Conspiracy to Commit Murder

This is where things get complicated. In setting a base term for conspiracy to commit murder, the parole board is faced with a choice. It may conclude that, at a minimum, the base term must be 25 years since the sentence is 25 years to life. (See Pen. Code §§ 182, subd. (a)(6).) Indeed, in our case, the parole board used 25 years as a “base term” in calculating the inmate's minimum eligible parole release date. The board started with 25 years and subtracted time based on credit for time served before sentencing, pre-sentencing good behavior credit (Pen. Code § 4019), and post-sentencing work-time credit. (Pen. Code § 2933, subd. (b).) As a result, the inmate was eligible for parole after about 15 years. These are the kinds of adjustments that the prison authority is permitted to make, adjustments which are separate from the base term.

I would argue, however, that the parole board must follow its constitutional mandate to avoid imposing a sentence which is grossly disproportionate to the inmate's individual culpability for the commitment offense. (See In re Dannenberg (2005) 34 Cal.4th 1061, 1096.) It must also follow Penal Code section 1170, subdivision (a)(1), which states that the purpose of imprisonment is best served by terms proportionate to the seriousness of the offense, with uniformity for offenders who commit the same offense under similar circumstances.

When the parole board considers its own matrix of base terms, it becomes clear that a base term of 25 years for conspiracy to commit murder, where no one was injured, is grossly disproportionate to the individual culpability for that offense. The base term shall be established solely on the gravity of the base crime, taking into account all of the circumstances of that crime. (15 CCR § 2403(a).) The board shall impose the middle base term reflected in the matrix unless the panel finds circumstances in aggravation or mitigation. (15 CCR § 2403(a).) No matrix is provided for the offense of conspiracy to commit murder. (15 CCR 2403(b) – (f).) In considering life crimes for which no matrix is provided, the panel shall impose a base term by comparison to offenses of similar gravity and magnitude with respect to the threat to the public, and shall consider any relevant Judicial Council rules and sentencing information as well as any circumstances in aggravation or mitigation of the crime. (15 CCR § 2403(g).)

There is a matrix for attempted murder resulting in no major injuries. Specifically, this matrix describes the attempted willful, deliberate, and premeditated murder where the inmate hired and/or paid another person to commit the offense and the victim was unharmed or received minor injuries. (15 CCR § 2403(d).) The base term for this “murder for hire with no major injuries” offense is 10, 11, and 12 years. (15 CCR § 2403(d).) In contrast, the matrix for first degree murder for hire where death was almost immediate is 29, 30, and 31 years. (15 CCR § 2403(b).) Thus, the parole board's regulations follow the general rule that we see in criminal law; when the consequence of criminal behavior is more severe, so is the punishment.

The matrix for murder for hire with no major injuries almost exactly fits our facts. In our case, the inmate was involved in a conspiracy to hire a hit man to kill a witness who was willing to testify against the son in an unrelated case. All of the same elements are present; planning and premeditation, intent to kill, and no major injuries. In fact, a person who allows the plan to progress to the point where a murder is actually attempted is arguably even more culpable. At least in the conspiracy context, the person may have abandoned the plan long before any attempt.

Conclusion

So we have a situation where almost the same criminal behavior is punished much differently; 10-12 years versus 25 years. Any statute that would authorize such disparate treatment would appear to violate the constitutional rule against imposing a sentence that is grossly disproportionate to the individual culpability for the offense. Therefore, at least where no one was injured, Penal Code section 182 is vulnerable to a constitutional challenge. In setting a base term under these circumstances, the parole board should follow its own matrix and the constitution rather than section 182. It should set the base term at 10, 11, or 12 years.

But can we count on a parole board to grasp the constitutional issue here and disregard Penal Code section 182? Maybe not. But thanks to the Butler Stipulation, at least the parole board will now be required to set a base term, thereby allowing for judicial review of the sentence. Sometimes the most important step is to simply get the issue before the court.