BUTLER

Amicus Curiae Brief of USC Gould School of Law

Cal.May 16, 2017

Case No. 8237014 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA SUPREME COURT IN RE ROY BUTLER(D-94869), Court of Appeal FILED Case No.: A139411 On Habeas Corpus. MAY 16 2017 Superior Court Jorge Nav Case No.: 91694B ge Navarrete Clerk California Court of Appeal, First Appellate District, Division Two Deputy California Superior Court for Alameda County, Hon. Larry J. Goodman APPLICATION FOR PERMISSION TO FILE AMICUSBRIEF; AMICUS BRIEF HEIDI L. RUMMEL(183331) REBECCA BROWN hrummel@law.usc.edu rbrown@law.usc.edu MICHAELJ. BRENNAN(40436) USC Gould School ofLaw mbrennan@law.usc.edu 699 Exposition Boulevard ANNA FAIRCLOTH FEINGOLD Los Angeles, CA 90089 (275636) Tel: (213) 740-1892 afeingold@law.usc.edu Fax: (213) 740-5502 USC Gould School ofLaw Post-Conviction Justice Project 699 Exposition Boulevard Los Angeles, CA 90089 Telephone: (213) 740-2865 Fax: (213) 821-5746 In support ofRoy Butler CRo RECEIVED CLERK SUPREME COURT Case No. 8237014 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA IN RE ROY BUTLER(D-94869), On Habeas Corpus. Court ofAppeal Case No.: A139411 Superior Court Case No.: 91694B California Court of Appeal, First Appellate District, Division Two California Superior Court for Alameda County, Hon. Larry J. Goodman APPLICATION FOR PERMISSION TO FILE AMICUSBRIEF; AMICUS BRIEF HEIDI L. RUMMEL(183331) hrummel@law.usc.edu MICHAELJ. BRENNAN (40436) mbrennan@law.usc.edu ANNA FAIRCLOTH FEINGOLD (275636) afeingold@law.usc.edu USC Gould School ofLaw Post-Conviction Justice Project 699 Exposition Boulevard Los Angeles, CA 90089 Telephone: (213) 740-2865 Fax: (213) 821-5746 REBECCA BROWN rbrown@law.usc.edu USC Gould School ofLaw 699 Exposition Boulevard Los Angeles, CA 90089 Tel: (213) 740-1892 Fax: (213) 740-5502 In support ofRoy Butler APPLICATION Per California Rule of Court 8.520(f)(1), Proposed Amici request permissionto file the attached amicusbrief in the above-captionedcase. The California Board of Parole Hearing’s (Board) current implementation of the parole system for indeterminately sentenced inmates violates clear constitutional principles articulated by this Court. Far from being condonedbythis Court orinstituted by the California Legislature, the current constitutionally deficient parole system has been created by Board fiat. As described below,clear constitutional obligations dictated by this Court were recognized by the California Legislature in passing the 1977 Determinate Sentencing Law (DSL) andwereinitially implemented by the Boardin its regulations. However, the Board gradually deviated from these basic principles through improper, systematic shifts in its regulations and practices that were unprompted bylegislation at the time, andin direct contravention of the DSL. As result, the parole process for indeterminately sentenced inmates evolved over time and ultimately became the current system, which defies this Court’s constitutional mandates and enacts precisely the system that the Legislature intended to do away with forall inmates in passing the DSL. The attached amicusbrief is intended to shedlight on the constitutional infirmities of the current parole system by offering a thoroughhistorical and constitutional context. The brief seeksto illuminate the legislative and legal history that is glossed over in the Board’s attempt to wave away any concernsabout whatit is doing behind the curtain, and to ensure that this Court can make a decision based on an accurate understanding of how the system reachedits currentstate. In further efforts to provide the complete context underlying the current parole regime, Proposed Amici also submit the concurrently filed Appendix. This Appendix containsthelegislative history, and prior versions of the California Penal Code and California Code of Regulations, on whichthe attached amicusbriefrelies. Proposed Amici are the Post-Conviction Justice Project (PCJP) of USC Gould School of Law,a legal clinic that has represented many hundredsof indeterminately sentenced California inmates at parole suitability hearings for more than 20 years, and Professor Rebecca Brown, a nationally recognized constitutional law theorist and The Rader Family Trustee Chair at the USC Gould School ofLaw. PCIJP hasan interest in the above-captioned case because the Board’s current unconstitutional implementation of the parole system irreparably damages PCJP’s clients. The Board’s refusal, in defiance of this Court’s rulings, to set any sort of constitutionally appropriate maximum prison term based on an inmate’s culpability for his offense, and instead to allow length of confinementto be dictated by a subjective evaluation of factors that have nothing to do with culpability, violates fundamentalnotions of proportionality and notice. It has led to myriad instances of PCJP clients being held in prison longafter the expiration of any term thatis constitutionally proportionate, or even rationally connected, to their crime, and continuing to be incarcerated based on factors that have nothing to do with culpability, such as a subjective Board finding that they are not particularly insightful, low cognitive function that prevents them from understanding abstract concepts of insight and remorse, or lack of accessto certain programsattheir prison. Below are just a few examples of the disproportionality of prison terms created by the current system: e J.R., a teenaged mother, was subjected to domestic violence and ultimately kicked out of her homebyher father-in-law, forever separating her from herfirst three children. After starting another family, she became involved in a dispute with her neighbor. In 1985, the neighbor becameirate at one of her children, burst into her apartment, and gotinto a violent altercation with one of her apartment-mates. Terrified for her children’s safety, J.R. gave the apartment-mate a gun andtold him to shoot the neighbor. He chased down the neighbor and shot him. J.R., who had nopriorviolent history, was convicted offirst-degree murder. J.R. was a model inmate, programmed extensively, and never received a disciplinary violation. But she has well-documented low cognitive function (with an IQ score in the .5 percentile), which madeit difficult for her to understandher culpability for the crime or explain abstract conceptslike insight and causative factors. From 2001 to 2016, J.R. had six parole hearings at which the Board repeatedly denied parole because ofinsufficient insight. The Board neverset a base term for J.R. until 2014, at which point she had already exceededher it. She was foundsuitable in 2016 and released after serving 32 years. e MLD.was subjected to abuse by her father that led herto feel worthless and unaccepted. She wassuicidal by age 13. She was ultimately diagnosed with bipolar disorder, struggled with maintaining her treatment regimen, and decompensated after her father committed suicide. When M.D.was18, she ran away from homeand wasliving with her boyfriend, a 48-year-old man who was aggressive and controlling. M.D.has nohistory of violence. During a car trip with her boyfriend, the police attempted to pull them over for a traffic violation. The boyfriend directed M.D.to drive away, to avoid the police finding the cache of gunsthat he had stolen and put in the car. This led to a high-speed chase and shoot-outwith police. Noofficers were injured. M.D. was convicted of attempted murder and sentenced to 7-years-to-life. She has been in prison for 17 years. Since 2007, she has hadthree full parole hearings. The Board has consistently found her unsuitable for parole — despite the fact that the Board’s psychologists have repeatedly deemed M.D.a “low”risk of violence — based on, for example,the fact that she demonstrated disrespect and failed to report to work on a couple occasions in 2005 and 2006, and that she demonstratedinsufficient growth regarding substance abuse (even thoughthere is no evidence that she has used drugs or alcohol in prison). Until 2014, the Board neverset a base term for M.D. Sheis nearly three years past her base term. S.V. was born to a drug-addicted mother and bipolar father. She suffered abuseasa child, and grew up in dangerous neighborhoods due to her mother’s drug addiction. From a young age, she found safety and acceptance in the local gang. When she was 21, S.V. was involvedin street fight. After being pinned against a fence by one of the young menin the group, S.V.pulled out a pocketknife and jabbed him to force him off of her, and then she and a friend jumped into a nearby car and drove away. (The young man S.V.jabbed did not notice the small woundsatfirst, but later went to the hospital wherehe received a couple stitches and was discharged within a couple hours.) S.V. was convicted of carjacking and assault with a deadly weapon,and sentenced to 15-years-to-life. S.V. served 17 years before being releasedafter her third parole hearing. At her first two parole hearings (in 2013 and 2015), the Board found her unsuitable because, for example, her mother and father were not goodparents, and she demonstrated violencein prison prior to 2008. S.V.’s base term wasnotset until she had been incarcerated for 15 years, at which point she was four years past that base term. G.S. grew up in South Los Angeles in a tumultuous home, where he was neglected by his mother, and repeatedly subjectto physical abuse by his mother’s boyfriend. This led G.S. to seek safety and social connection outside the home. When he was15, he went to a friend’s house because he needed place to stay. The friend asked him to participate in a robbery. The robbery was unsuccessful and G.S. started to flee the scene, but his friend cried out for help, and when G.S.looked back, he saw the would-be robbery victim had his friend in a chokehold. He shot the robbery victim in the arm, intending to injure him, but the man died. G.S. was convicted of second-degree murder. G.S. was found suitable and released after 15 years, thus serving years less time than the womenin the three cases listed above, even though they did notkill, and in two ofthe cases did not even severely injure, anyone. Professor Brown’sinterest in the above-captioned caselies in her expertise in constitutional law and in exposing the current parole system’s violation of bedrock constitutional principles as articulated by this Court. Per California Rule of Court 8.520(f)(4), Proposed Amicistate that no party or counsel in the above-captioned case authored any part ofthe attached amicusbrief, and no person or entity other than Proposed Amici made any monetary contribution related to the attached amicusbrief. Proposed Amici respectfully request that the Chief Justice permit the filing of the attached amicusbrief. DATED: May 10, 2017 Respectfully submitted, By: Heide Rum/re HEIDI L. RUMMEL‘ ANNA FAIRCLOTH FEINGOLD USC Gould School ofLaw Post-Conviction Justice Project REBECCA BROWN USC Gould School ofLaw In support ofRoy Butler 1 Proposed Amici would like to thank Marvin Mutchfor his invaluable conceptual contributions. Case No. 8237014 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA IN RE ROY BUTLER(D-94869), On HabeasCorpus. Court ofAppeal Case No.: A139411 Superior Court Case No.: 91694B California Court of Appeal, First Appellate District, Division Two California Superior Court for Alameda County, Hon. Larry J. Goodman AMICUS BRIEF HEIDI L. RUMMEL(183331) hrummel@law.usc.edu MICHAEL J. BRENNAN(40436) mbrennan@law.usc.edu ANNA FAIRCLOTH FEINGOLD (275636) afeingold@law.usc.edu USC Gould School of Law Post-Conviction Justice Project 699 Exposition Boulevard Los Angeles, CA 90089 Telephone: (213) 740-2865 Fax: (213) 821-5746 REBECCA BROWN rbrown@law.usc.edu USC Gould School ofLaw 699 Exposition Boulevard Los Angeles, CA 90089 Tel: (213) 740-1892 Fax: (213) 740-5502 In support ofRoy Butler TABLE OF CONTENTS INTRODUCTION...00cececeeeecsscsneecesenssessesesesseeecsseesseeseeesesecsesstssesenaeens 10 ARGUMENTosccsssssssssssssnsesssssseensesveeovseseetsenetnsesnetneteeesestane 12 I. The Board’s Current Parole Regime Violates Clear Constitutional Limits on Sentencing.............cccccecscesseeeeseee 12 Il. The Board Systematically Dismantled A Parole Process That Complied With Its Constitutional Obligation To Set A Proportionate Maximum Term............ccecceecscesseessesseseesesesees 20 A. The Parole System Under the Indeterminate Sentencing Law (ISL)........eceesessecsseeseeseeeeseseessesenes 22 B. The Board’s Response to ROdrIigQUeZ .......cccccsccesceeeees 24 C. Senate Bill 42 — The DSL .0.....cceeeeessesesseeeeesenee 27 D. Indeterminate Sentencing Under the DSL................. 31 E. The Board’s Policy Shifts Eroded The Constitutional Limits On The Parole System..............c.ccccsscsseeeeees 35 F. This Court Became Entangled In The Board’s Deflection And Obfuscation..0..........ccccssesseseessseeees 39 CONCLUSION...cccccesceseesceeeesseeseesesseseesesessseeesseeesessecaessenessssseccanens 44 TABLE OF AUTHORITIES Cases Atkins v. Virginia, 536 U.S. 304 (2002), ....eecsccscsssscssessssesssssssscsesstescesersees 13 In re Dannenberg, 34 Cal. 4th 1061 (2005)........cscsceseseesesssseeseseeees passim In re Rodriguez, 14 Cal. 3d 639 (1975)......cccseccesssssssseessessesesssssessscssenene passim Johnson v. United States, 135 S. Ct. 2551, 2557 (2015)...ccccccsecsesseseeceees 18 People v. Jefferson, 21 Cal. 4th 86, 95-96 (1999)... ccccccsessssssccseseceeees 4] Rummelv. Estelle, 445 U.S. 263 (1980) ....ccccccsccsssssesecsesscsssssscssesecees 14, 15 Solem v. Helm, 463 U.S. 277 (1983) ..ccccscssssssssesesssssecsscesssescesssssssesesecsaceecaes 14 Statutes Cal. Penal Code § 1192.7(C)(19) ....ccccccccssscssssscsscsescssessssscscsecseesseesssscenss 18 Cal. Penal Code § 189oeccccccccsssssseesscssescsscsessessesssscossscsassecseeseseterseesaes 17 Cal. Penal Code § 190(8)........cc cccessscsssssssesessccsssevessesessecsceessacerseeanes 17, 18 Cal. Penal Code § 190.2 ......cccccccscsscssccsscsssssescssssccsesssscssvsecsssscesesseesscsseass 17 Cal. Penal Code §§ 667(e)(2)(A) ...cccccscccscsesesssccsscscssessssssscsecavssseteeeseceesenees 18 Regulations 15 Cal. Code Regs. § 2281(C).....cccccscsccssesssssssssscsscsssessessssecesseceeessessenaeeaes 18 15 Cal. Code Regs. § 2281(d) oo... ccceccsscssssssscsscssscssscssavscsecserereesaes 16, 18 INTRODUCTION It is unconstitutional for the California Board of Parole Hearings (Board) to continue to hold an individualin prison indefinitely because the Board has determined, in its very broad discretion, that the individual poses a risk to public safety. The current system completely divorces the length of an individual’s confinement from his culpability for his crime, and thus violates the prohibitions on cruel/musual punishment underboth the U.S. and California Constitutions. The Board’s powerto imprison indeterminately sentenced inmates beyond their minimum terms, until the Board subjectively deems the inmates “suitable” for release, must be “subject to the overriding constitutionally compelled qualification that the maximum [term an inmate is required to serve] may not be disproportionate to the individual prisoner’s offense.” In re Rodriguez, 14 Cal. 3d 639, 652 (1975). The Board’s implementation of the parole system for indeterminately sentenced inmates has not always been unconstitutional. Asdescribed below,this Court has dictated clear constitutional obligations, which were recognized by the California Legislature and implemented by the Board in its regulations. However, as will be discussed, through the Board’s gradual, systematic shifts in its regulations and practices — shifts that were improper and unpromptedbystatute — the parole process for indeterminately sentenced inmates has morphed over time. The Board’s 10 unauthorized chipping awayat clear constitutional limitations on its power has led to the current system that defies this Court’s constitutional mandates andthat enacts precisely the system that the Legislature intended to do away with for all inmates in passing the Determinate Sentencing Law (DSL). In short, through regulatory opportunism, the Board abandonedits constitutional responsibility (as articulated by this Court) to set constitutional maximum terms(primary terms) forall indeterminately sentenced inmates. It then blurred thecritical distinction betweenits “term- setting” and “parole-granting” powers, and warpedits practices such that setting any “term”set for indeterminately sentenced inmates was delayed unless and until an inmate was foundto be suitable for relase on parole, and such that this “term” served as a minimum instead of a maximum length of confinement. Now,after rendering meaningless the conceptof“setting a term,” the Board arguesthat it need not set any termsat all, and misleadingly attempts to use this Court’s inapposite ruling in Dannenberg as an excusefor failing to fulfill its constitutional obligations and for resurrecting the parole regime that the DSL soughtto eliminate. Although there has been widespread confusion (and obfuscation) regarding the constitutional flaws in the parole regime — confusion in which this Court has been unwittingly caught up — nowisthe timeto right the ship. The goalofthis brief is to shed light on the constitutional infirmities 11 of our current parole system by offering a thorough historical and constitutional context. The brief seeksto illuminate the legislative and legal history that is glossed over in the Board’s attempt to wave away any concerns about whatit is doing behind the curtain, and to ensurethat this Court can makea decision based on an accurate understanding ofhow the system reachedits currentstate.’ This Court should order the Board’s full compliance with Rodriguez, including the setting of constitutional maximum primary termsearly in indeterminately sentenced inmates’ confinement. ARGUMENT I. The Board’s Current Parole Regime Violates Clear Constitutional Limits on Sentencing. This Court held in Jn re Rodriguez that, under both the U.S. and California Constitutions, an individual who receives an indeterminate sentence may not be imprisoned past a maximum term thatis constitutionally proportionate to his “culpability for the crime,” as measured by the “circumstancesexisting at the time of the offense.” * This brief uses “Board” as a generic term to refer to the parole authority in California, which has had various namesover the years. Prior to passage of the DSL,the parole authority for male inmates wascalled the “Adult Authority,” and the parole authority for female inmates wascalled the “Women’s Board of Termsand Paroles.” The DSL combinedtheseentities and renamed them the “Community Release Board,” which was subsequently renamed the “Board of Prison Terms,”andlater, the “Board of Parole Hearings.” 12 Rodriguez, 14 Cal. 3d at 652-53. This maximum term, which the Court called the “primary term,” is not the maximumpenalty allowed by law. Instead,it is a term of imprisonment determinedto be proportionate to the “culpability of the individual offender” forhis particular participation in the particular crime. Jd. Rodriguez explicitly recognized that the “measure of the constitutionality of punishmentfor crimeis individual culpability.” Jd. at 653. The U.S. Supreme Court, too, has placed culpability at the heart of the inquiry into the appropriateness of a punishment under the Eighth Amendmentto the U.S. Constitution. See Atkins v. Virginia, 536 U.S. 304, 319 (2002). The Rodriguez Court recognized that, once an inmate’s appropriate sentence has been set, the Board had powerto consider “occurrences subsequent to the commission of the offense” — such as conductin prison, rehabilitative programming,and parole plans — in deciding whetherto release an inmate on parole prior to the expiration of his constitutional maximum “primary term,” such that the remainderofthat term would be served in the community. Rodriguez, 14 Cal. 3d at 652. Critical to the Court’s reasoning, however, wasits insistence that this “power to grant parole” is “independent”of the “basic term-fixing responsibility” to set a _constitutional maximum primary term. Id. The clear principles established by Rodriguez dictate fundamental constitutional parameters on sentencing and parole — parametersthat the 13 Board hashustled to the sidelines or sought to do away with completely. - First, under Rodriguez, prison termsare only constitutionally acceptableto the extent they are proportionalto an individual’s culpability for his crime. Second, this culpability must be determined based on the circumstancesat the time of the offense. Determining a maximumsentenceby any other measure — including by post-conviction conductor a subjective evaluation of“suitability” — underminesthelegislative intent of retribution and uniformity in sentencing, and worksat cross purposes with the constitutional requirements of proportionality and notice. The U.S. Supreme Court has held that prison terms are subject to proportionality analysis, which was also the linchpin of the Rodriguez Court’s analysis. See Solem v. Helm, 463 U.S. 277, 288-89 (1983). While there are different types of proportionality, the one that is relevant here involves assurance of similar punishmentfor similar crimes and similar levels of individual culpability. “If more serious crimes are subject to the samepenalty, or to less serious penalties, that is some indication that the punishmentat issue may be excessive.” Jd. at 291. To the extent that federal constitutional cases reflect a reluctance to imposestrict proportionality limits on prison terms, the Court has madeclearthatits primary concern has been to ensure that judgments “be informed by objective factors to the maximum possible extent.” Rummelv. Estelle, 445 U.S. 263, 274 (1980) (quoting Cohen v. Georgia, 433 U.S. 584, 592 14 (1977)). This goal necessarily places importance on the “legislative prerogative” of determining appropriate sentences. Estelle, 445 U.S.at 274. As explained below,in California, the legislative judgments socritical to constitutional legitimacy, as well as any semblance ofobjective factors, have recededinto obscurity. Since the constitutional guideposts were established by this Court in Rodriguez, the Board has gradually dismantled the parole system established to meet those guideposts. In its place, the Board hascreated a system in which the maximum sentencefor every single indeterminately sentenced inmate — regardless of the severity or circumstancesof, or the inmate’s level of participation in, the crime — is life in prison, because there is never a time whenan inmate is entitled to an assessmentofa constitutional maximum primary term within the available statutory range based on his culpability for his individual offense. Because a term is never specified, there is no opportunity for an administrator or court to consider whether the sentence imposed is proportionate to the offender’s culpability, as both the U.S and California Constitutions require. (Indeed, prior to 2016, the only time the Board assessed the individual’s culpability was to set a minimum,rather than a maximum,term,and since 2016it argues that it can throw out thatritual altogether.) Further, the life-in-prison maximum is reduced only if the Board subjectively determines that the inmateis “suitable,” largely based on 15 various post-conviction factors that have no constitutional basis. 15 Cal. Code Regs. § 2281(d) (listing factors tending to show suitability). Thus, twoindividuals, who committed the same offense under identical circumstances and received the identical statutory sentence of years-to-life, could serve vastly disparate terms of confinement basedsolely on subjective administrative judgments based on post-conviction circumstances. Ifa prisoner is repeatedly denied a finding of suitability for parole — as most are — he will frequently exceed his constitutionally appropriate primary term before he even receives it. This makes the judicial protection against disproportionate sentencing impossible, as Rodriguez held. See Rodriguez, 14 Cal. 3d at 650 (holding that indeterminate sentencing was being implementedin an unconstitutional manner because terms were not “fixed with sufficient promptness to permit any requested review oftheir proportionality to be accomplished before the affected individuals have been imprisoned beyondthe constitutionally permitted term”). The parameters from Rodriguez — that maximum prison terms must be based on culpability at the time of the crime ~ are critically important because they are the only wayto hold true to the hierarchy of sentences established by the Legislature and carried out by sentencing courts. For crimes where the offender’s significant culpability renderslife in prison constitutionally appropriate, the Legislature has created a separate available 16 sentence (life without parole), which is distinct from indeterminate sentences. See, e.g., Cal. Penal Code § 190.2. By contrast, sentencing a defendant to an indeterminate sentence(e.g., 15-to-life, 25-to-life) necessarily involves a finding that the crime does not renderlife imprisonmentconstitutionally appropriate — either because life without parole is not an available sentence for that crime, or becauseit is not merited by the facts of the case. The existing parole processcollapsesthis distinction — a distinction enactedin state law and imposedby sentencing courts — by creating a de facto maximum sentence, forall indeterminately sentenced inmates, no different from the sentence statutorily reserved for those whosecrimes merited life withoutparole. Similarly, by making all indeterminately sentenced inmates subject to the same maximum term — life in prison — the Board’s practice collapses the statutory distinctions between different indeterminately sentenced crimes enacted by the Legislature and implemented by sentencing courts. For example, the Penal Code distinguishes between second-degree murder (15-to-life) and first-degree murder (25-to-life), reflecting a judgmentthat these two crimesare not the same in termsofseverity and that they deserve different punishments. See Cal. Penal Code §§ 189, 190(a). Yet, under the Board’s current parole regime, inmates serving these sentences are subject to an identical maximum term (life in prison) that will only be reduced based on a variety of factors, most of which have nothing to do with 17 individual culpability or the commitment offense, and many ofwhich involve subjective assessments of occurrences subsequentto the crime. See 15 Cal. Code Regs. § 2281(c)-(d). Significantly, as recognized by the Legislature, life in prison is simply not the appropriate maximum term for every person who receives an indeterminate sentence. If culpability does not play its constitutional role in dictating the appropriate maximum term,a third-striker whois convicted of purse-snatching has the same maximum sentenceasthe individual convicted of a multiple murder, see Cal. Penal Code §§ 667(e)(2)(A) (Three Strikes Law), 1192.7(c)(19) (defining robbery as a “serious” felony), 211 (defining “robbery”), 190(a) (setting penalty for first-degree murder), and the only thing that will reduce this maximum is the Board’s determination that the inmate has becomeparticularly insightful, or has done a sufficient numberofrehabilitative programs, and whether the Board and the Governor have made a subjective evaluation of“suitability.” In addition to the constitutional concern about proportionality, the Board’s practices raise serious concerns about due process. The federal Due Process Clause is violated when vaguenessin sentencing limits invites “a wide-ranging inquiry”that “both denies fair notice to defendants and invites arbitrary enforcement.” Johnson v. United States, 135 8. Ct. 2551, 2557 (2015) (striking down vague enhancementprovision in federal law). The Board’s current system cruelly denies fair notice by leaving inmates 18 with no idea of whether, even after decades in prison, there is any end in sight or they will continue on a perpetual cycle of periodic parole hearings in whichtheyare told they are not yet entitled to know whentheir sentence will have been fully served. The Legislature, as detailed below, was concerned aboutthis issue andits effect on prison morale and violence. See infra at pp. 27-31. Moreover, the problem ofarbitrariness in enforcement is substantial. As the system stands now,periodic parole hearings hold the key notjustto early release to serve the remainderof a term in community, but to ever being released atall, as an end-point need neverbe supplied. This reality cannot stand in the face ofRodriguez. Rodriguez made clear that the “oft-stated” maxim that“life is life,” is as erroneousasit is callous. Rodriguez, 14 Cal. 3d at 652;see also id. at 650 (rejecting the Board’s assertionthat it “has no obligation, either statutory or constitutional, to ever fix [an indeterminately sentenced inmate’s] term at less than life imprisonment”). That opinion resoundingly qualified the generalrule that a prisoner has no right to a term fixed at less than the statutory maximum becauseofthe “overriding constitutionally compelled qualification that the maximum maynotbe disproportionate to the individual prisoner’s offense.” Jd. at 652. Rodriguez madeclearthat maximum terms mustbe dictated by individual culpability at the time of the crime. 19 The Board argues that In re Dannenberg, 34 Cal. 4th 1061 (2005), supports the unconstitutional parole regimeit created, but Dannenberg need not preclude this Court from acting. First, as described below, the Dannenberg Court was presented with, andrelied on, incomplete information, leading to a misunderstanding of the legislative history behind the DSL and the evolution of the parole system over time. Second, the Board’s reliance on Dannenberg as a proxyforits assertion that the Board has no constitutional term-fixing responsibility is misplaced. Dannenberg did not actually consider the Board’s term-fixing obligation — something the Board had long before abandoned; instead, it only addressed the Board’s “independent” anddistinct parole-granting power. The Board’s use ofDannenberg to justify its position is yet anotherinstance of avoiding its constitutional obligation. Il. The Board Systematically Dismantled A Parole Process That Complied With Its Constitutional Obligation To Set A Proportionate Maximum Term. In 1976, the Board implemented regulations to bring the parole system into compliance with the constitutional mandate ofRodriguez — that indeterminately sentenced inmatesreceive a constitutional maximum “primary term” based on culpability, within which the Board canset an earlier parole release date based on suitability for release. The California Legislature relied on the Board’s term-setting practices under these regulations when it enacted the DSL in order to address the abuses of 20 indeterminate sentencing. Rather than indicating a belief that the previously existing parole system was only problematic for those whose sentences becamedeterminate, the legislative history ofthe DSL reveals that the Legislature was equally concerned about those who remained indeterminately sentenced after the DSL’s passage. As for those inmates, legislators explicitly relied on the Board’s then-existing practice ofsetting constitutional maximum “primary terms,” and it sought to further curb the abuses of the prior parole system byrevising the statutes governing the Board’s parole-granting power. However, over the years, the Board systematically dismantled the parole system that met the constitutional requirements mandated bythis Court and intended by the Legislature. Through piecemeal changesnot authorized bystatute, the Board ceased setting constitutional maximum primary terms for indeterminately sentenced inmates. It eroded the limitations on its parole-granting power, and ultimately, it began setting only one “term”for indeterminately sentenced inmates — a term that served as a minimum sentence. Underthis system, each indeterminately sentenced inmate’s maximum term was the same — life in prison — and that maximum could only be reduced by the Board’s subjective evaluation of “suitability,” based on a variety of factors, most of which had nothing to do with culpability or the circumstancesofthe crime. This system — in which AO RR AE NE NA E, c a b punishmentis not dictated by culpability, and there is no certainty about 21 length of terms and nonotice to the inmate of the penalty imposed for various crimes — is not only unconstitutional, but is precisely the system the Legislature intended the DSLto eliminate. After reducing “term-setting” to a meaningless formality that serves no constitutional purpose and does not even attemptto fulfill the Board’s constitutional obligation, the Board has argued various things — including that “terms” need not be set until an inmate is found suitable, and that terms need notbe set, by the Board,at all. The Boardalso relies heavily on Jn re Dannenberg, in which the Attorney General wrongly argued — andthis Court accepted — that the Legislature passed the DSL intendingto retain the problematic previously existing parole system for inmates who remained indeterminately sentenced. But none of these arguments hasanybasis in fact, and noneis a substitute for the Board’s constitutional duty to set constitutional maximum primary terms. A. The Parole System Underthe Indeterminate Sentencing Law (ISL) Prior to passage of the DSL, under California’s Indeterminate Sentencing Law (ISL), most defendants convicted of a felony were sentenced to an indeterminate prison term. Parnas & Salerno, The Influence Behind, Substance and Impactfo the new Determinate Sentencing Law in California, 11 U.C.D. L. Rev. 29, 29-30 (1978). Under the ISL, courts were prohibited from fixing the actual term a defendant would serve 22 in prison, and the length of a prison term for a given crime wasnotset by the legislature. Appendix of Sources In Support ofAmicus Brief (Amicus App’x) Ex. P (Cal. Penal Code §§ 1168, 1168a (1971)); Cassou & Taugher, Determinate Sentencing in California: The New Numbers Game, 9 Pac. L.J. 5, 8 (1978). Instead, courts imposed sentences as a range — such as 1 year to life or 5 years to life — and the Board was tasked with determining how many years the defendant ultimately served until release. Jd. The Board had the powerto fix the inmate’s prison term at less than the maximum (life), and also to allow the inmate to leave prison prior to that maximum and servethe rest of his or her term on parole. See Amicus App’x Ex. O (Cal. Penal Code §§ 3020, 3040 (1970)); Rodriguez, 14 Cal. 3d at 645-46. This system garnered tremendouscriticism for being arbitrary and unfair. Although the Board was authorized to make decisions early on about how long an individual inmate would likely haveto serve,it rarely did so. Cassou & Taugher, at 9. Instead, it regularly withheld the setting of an ultimate release date until it decided the inmate was ready for release — a calculation that focused, not on the inmate’s culpability for the commitment offense, but on the authority’s subjective assessment of the inmate’s level of rehabilitation and its prediction of the inmate’s likely future behavior. Rodriguez, 14 Cal. 3d at 646. This resulted in endless “ambiguity,” as inmates had no idea when their confinement would end (until it actually did), creating “tension” and “cynicism” among inmates. Parnas & Salerno, 23 at 30. It also gaverise to significant disparities in length of confinement between individuals who committed the same crimes, and raised serious proportionality concerns given the disparity between the severity of a crime and the length of time an individual was imprisonedfor it. Cassou & Taugher,at 11. B. The Board’s Response to Rodriguez In June 1975, this Court held that the parole authority’s practice of deferring the setting of a prison terms wasunconstitutional. Rodriguez, 14 Cal. 3d at 650. In that case, although the petitioner had served 22 years on a one-year-to-life sentence, the Board had never determined what the appropriate prison term would be, and hadrefused to grant parole, keeping the petitioner imprisoned indefinitely. Jd. at 643-44. Deemingthispractice unconstitutional, the Rodriguez Court held that “the [Board] must fix terms within the statutory range that are not disproportionate to the culpability of the individual offender.” Jd. at 652. As noted above, this Court explained that the prohibition against cruel/unusual punishment(in both the U.S. and California Constitutions) entitles each inmate to have a “primary term”set based on “individual culpability” and the “circumstances existing at the time ofthe offense.” Significantly, it must be set with sufficient promptness to enable effective review of a proportionality challenge. Jd. at 650. The Rodriguez Court emphasizedthat “[t]his basic term-fixing responsibility ... is independent of the [Board’s] powerto grant parole” 24 prior to the expiration of the primary term — a power whoseexercise can be based on occurrences “subsequent to the commission ofthe offense.” Jd. at 652. The Board promptly changedits practices in response to the Court’s decision in Rodriguez. On September 2, 1975, the Chairman of the Board (then called the Adult Authority) issued Directive No. 75/30 entitled “Implementation of In re Rodriguez,” detailing new operating procedures. See 3/20/17 Butler Mot. for Judicial Notice, Ex. A (Directive No. 75/30). Thestated goal of the procedures was to “bring Adult Authority term setting practices into compliance with recent changesin the law.” Jd. at 1. Directive No. 75/30 interpreted the ISL to comply with Rodriguez, and explained that a “primary term” would befixed for “each offense”in conformance with guidelines designed to “assur[e] equal treatmentin sentencing practices.” Jd. In setting the primary term, the Adult Authority relied on information specific to an inmate’s personal culpability for the crime and criminalhistory, and could not rely on conduct subsequentto the offense. Jd. at 2-6. “Once fixed, the primary term for that offense cannot be refixed upward,” and in general, “no primary term will be fixed above 25 years.” Jd. at 1,6. The Directive clarified that its procedures were specific to “term fixing,” and were “distinct” and “should not be confused with the procedures governing parole granting.” Jd. at 1. The Directive 25 also anticipated that, “[i]n the vast majority of cases, an inmate will serve a portion of his primary term inside prison and a portion ofit on parole.” Jd. By 1976, the Adult Authority had promulgated regulations implementing Rodriguez’s requirement that ISL inmates receive a constitutional maximum primary term, separate from discretionary earlier parole release. As amended, Division 2 of Title 15 included Chapter 2 (Term Fixing) and Chapter 4 (Parole Release). Amicus App’x Ex. K (Reg. 76, No. 21, p. 151 (May 22, 1976)). In Chapter 2, the 1976 regulations provided that a “primary term” must be fixed for all indeterminately sentenced felons, and that it should besetat the initial parole hearing (§ 2100(a), (c)). Jd. at 179. The regulations were clear in establishing that the primary term is “the maximum period of time whichis constitutionally proportionate to the individual’s culpability for the crime,” and “should not be confused with the parole release date” (§ 2100(a)). Jd. Under the regulations, setting a primary term wassolely rooted in an assessment of culpability. The primary term wascalculated by setting a base term — using “typical” and “aggravated” ranges of years established by the regulations for various crimes — which could be adjusted upward based onprior convictions or prison terms (§§ 2150-2156). Jd. at 183-85. Separately, the 1976 regulations specifically provided for the setting of a “parole release date” within the period of the constitutional maximum primary term (§ 2250). /d. at 207. Early release through parole was 26 reserved for those inmates found “suitable” (§ 2300). Jd. at 209. Suitability, in turn, involved a judgment about whether the inmate would pose an “unreasonablerisk of dangerto society” if released early, based on specific factors relating to criminal history (not post-conviction conduct) that tend to show unsuitability (§§ 2300-2301). Jd. If the inmate was found suitable, a “parole release date” was set by determining a “total period of confinement” (§ 2350). Jd. at 210. Notably, the “total period of confinement” wascalculated by using the same base term usedin primary term fixing (focusing on culpability for the offense), which could then be adjusted up and/or down basedon various pre-conviction, commitment, and post-conviction factors (§§ 2250, 2350-2356). Id. at 207, 210-13. C. Senate Bill 42 — The DSL At the end of 1974 — prior to the decision in Rodriguez — the California Legislature introduced Senate Bill 42 (SB 42), the Determinate Sentencing Law (DSL), to reform some of the objectionable elements of the indeterminate sentencing regime. In 1976, after Rodriguez, legislators revived SB 42, which ultimately passed and becameeffective July 1, 1977, fundamentally altering the sentencing schemein California.* Stats. 1976, ch. 1139, pp. 5061-5178. 3 SB 42 wasoriginally introduced in late 1974, but it hit roadblocks and ultimately failed to pass out of the Assembly Criminal Justice Committee in August 1975. Cassou & Taugher, at 11-16. It lay dormantfor several months before being revived in 1976. Jd. at 16-17. 27 There is no question that the DSL wasintended to target the widely acknowledged andcriticized abuses of the indeterminate sentencing regime. It had several specified goals. For one, the bill sought to take down the prevailing “medical model,” under which length of confinement was dictated by the parole authority’s evaluation of an inmate’s rehabilitation rather than the inmate’s culpability for the crime. As explained by SB 42’s primary sponsor, Senator John A. Nejedly,the bill was intendedto “[e]nd subjective evaluation of rehabilitation as a factor in determiningrelease,” and address the problem that “the eventual length of [inmates’] prison stays will really depend not on whatthe offense was,” or on their behavior, but rather on “subjective evaluation by psychologists and laymen on whether a convict is rehabilitated.” Amucis App’x Ex. A (6/12/75 Nejedly Letter to Governor, at 1, 3). The Senate record includes testimonythat the fundamentalprinciple underlying the “medical model” — the predictability of future violence — was “untenable,” and that numerous studies had shown that most offenders predicted to be violent when released were not. Amicus App’x Ex. B (Summary of 4/15/75 Testimony of Professor John Monahan, UCIrvine before the Senate Select Committee on Penal Institutions (in Senate Judiciary file)); see also, e.g., Parnas & Salerno,at 30 (noting that the medical model had been “totally invalidated”). Following this testimony, Senator Nejedly expressed to the Governor that the “medical model” should be “castoff,” as it has “not produced law- 28 abiding offenderseither inside the prison or ex-offenders outside and seem[s] unlikely to do so in the future.” Amicus App’x Ex. A (Memo attached to 6/12/75 Nejedly Letter to Governor, at 2); see also, e.g., id. Ex. C (9/20/76 Enrolled Bill Report on SB 42 prepared for Governor by Department of Corrections, at 3 (noting the problems that proponents of the bill claim are created by the “medical model”)). Moreover,the bill sought to address the disparities in, and lack of uniformity of, sentencing that resulted from the ISL, which Senator Nejedly described as “manifestly unjust.” Amicus App’x Ex. A (Memoattached to 6/12/75 Nejedly Letter to Governor,at 2); see also, e.g., id. Ex. D (8/17/76 Nejedly Letter to Superior Court Judge John E. Longinotti, at 4 (stating indeterminacy “has resulted in unfairness and injustice”)); id. Ex. E (“Benefits of SB 42, As Amended April 22, 1976 in Comparison with Current Law”(in Governor’s file) (listing as benefits of SB 42 that it “{r]emovesdisparity in prison sentences for same crimes currently due to use of invalid behavior science predictors” and “[a]voids disparity in prison sentences for same crimes currently due to conscious or unconscious influences of personal biases of parole board members under a system whichprovides unparalleled discretion”)). In addition, the bill sought to reduce violence in prison. As Senator Nejedly explained, “The lack of uniformity in sentencing breeds resentment and greater tensions within the prisons, which contribute to an atmosphere 29 of violence.” Amicus App’x Ex. A (6/12/75 Nejedly Letter to Governor, at 3); see also, e.g., id. (Memoattached to 6/12/75 Nejedly Letter to Governor, at 2 (same)). He continued, the “clouded picture” of whatis required to earn parole release “contributes significantly to prison unrest.” Id. (6/12/75 Nejedly Letter to Governor, at 3); see also, e.g., id. Ex. C (9/20/76 Enrolled Bill Report on SB 42 prepared for Governor by Department of Corrections, at 12 (recommendingthat the Governorsign SB 42 because the application of the ISL presents “paralyzing uncertainties, anxieties and frustrations that sometimetend to precipitate violence’’)). Finally, Senator Nejedly tied the reforms of SB 42 directly to due process concerns. In letter to a superior court judge, he wrote: {Notice of the penalty to be incurred for violation of the law [i]s a basic tenet of due process. That fundamental precept is heightened rather than reduced by SB 42 becausethe only real notice which existed under the [ISL] was either the meaningless statutory ranges or the statistics for actual time served in past years; the latter always with the unknown quantity of the extent of political or economic expediency changing those statistics by the ‘whim and caprice’ of the unbridled discretion of the Adult Authority. Amicus App’x Ex. D (8/17/76 Nejedly Letter to Superior Court Judge John E. Longinotti, at 3-4). He further stated: “A person should not be made to guess whathis actual punishmentwill be.” Amicus App’x Ex. A (Memo attached to 6/12/75 Nejedly Letter to Governor,at 2). Whenthe DSL waspassed in September 1976,it expressly emphasized its purpose of proportionality and uniformity and codified the 30 H e , S O S a l i n t r Legislature’s constitutional concerns regarding notice, uniformity, proportionality, and meting out punishmentaccording to culpability for an offense rather than according to subjective evaluations of future behavior. See, e.g., Amicus App’x Ex. R (Stats. 1976, ch. 1139, pp. 5140, 5151-52). D. Indeterminate Sentencing Under the DSL Although six crimes wouldstill carry indeterminate sentences following passage of the DSL - first-degree murder, kidnapping for ransom,trainwrecking,assault bya life prisoner, sabotage, and injury by explosives, see Cassou & Taugher, at 29 — the legislative history suggests that the Legislature was concernedthat the basic problems with the ISL also applied to those crimes. Thelegislative history of SB 42 showsthat the Legislature believed it was addressing those concerns for those who remained indeterminately sentenced, despite the fact that their actual sentences remained indeterminate. First, the legislative history shows an explicit belief by the Legislature that those who remained indeterminately sentenced under the DSL wouldstill have constitutional maximum primary termsset as required by Rodriguez. For example, ina letter, Senator Nejedly confirmed that the Board would be required to “set a parole date for those left indeterminate[ly sentenced],” but explainedthat “[t]his is nothing new but rather is simply in keeping with the import of recent court decisions and Adult Authority policy.” Amicus App’x Ex. D (8/17/76 Nejedly Letter to Superior Court 31 Judge John E. Longinotti, at 7). Indeed, the Legislature was well aware of Rodriguez and the requirements it imposed on the parole authority. In letters about SB 42, Senator Nejedly repeatedly explained that Rodriguez “requires the Adult Authority, on the basis of the crime the individual has committed, to set a ‘primary term’ soon after the inmate enters prison, a sentence that can be reduced but cannotbe increased,” and he recognized that “the Adult Authority has been carrying out a policy of setting parole release dates for most all inmates.” Amicus App’x Ex. F (9/2/76 Nejedly Memoto All Interested Persons, at 2); see also id. Ex. D (8/17/76 Nejedly Letter to Superior Court Judge John E. Longinotti, at 9); id. Ex. G (8/24/76 Nejedly Memoto All State Legislators, at 2). With Rodriguez and the parole authority’s resulting practices in the background,the legislative history materials make clear the Legislature’s understanding that constitutional maximum primary term setting would continue for those who remained indeterminately sentenced under the DSL.* 4 See, e.g., Amicus App’x Ex. C (9/20/76 Enrolled Bill Report on SB 42 prepared for Governor by Department of Corrections, at 8 (explaining that, under the DSL,parole release dates for indeterminately sentenced inmates “will be determined by a board in a mannergenerally similar to that now used”)); id. Ex. H (9/3/76 “Highlights of Senate Bill 42,” at 3 (in Governor’sfile) (explaining that under the DSL,the parole board will “set[] terms for inmates remaining indeterminately sentenced”)); id. Ex. I (Criminal Justice Newsletter, vol. 7, no. 18, at 2 (Sept. 13, 1976) (Gin Governor’sfile) (same)); id. Ex. J (Bill Analysis prepared by Assembly Committee on CriminalJustice, at 1 (in Senate Judiciary file) (noting that the parole authority’s determinations of the actual prison term to be served, and how muchofthat time could be served on parole, 32 In addition, nothingin the legislative history suggests that the Legislature did not believe its primary concerns aboutparole practices under the ISL applied to those who remained indeterminately sentenced under the DSL. In elaborating on the problems with the ISL — e.g., the lack of uniformity and proportionality of sentences, the lack of notice to criminal defendants of what their sentence would be, and the basing of actual prison terms on subjective predictions of future behaviorinstead of on culpability — the sponsors ofthe bill never suggested that these problems were only concerns for those convicted of less severe crimes. To the contrary, a documentin the Governor’s file on SB 42 specifically enumerates as a “benefit” of SB 42 that, for inmates who remain indeterminately sentenced under the DSL,their “crime . . . rather than “prediction of behavior’ [would be the] criteria for parole date setting.” Amicus App’x Ex. E (“Benefits of SB 42, As Amended April 22, 1976 in Comparison with Current Law” (in Governor’s file)). The Legislature intended to address the same fundamental problemsthat resulted from indeterminate sentencing, albeit in different ways, both for those whose “[h]istorically ... were not made until long into the prison sentence,” but that “[c]urrently” the parole authority “attempt[s] to make these decisions early in the term”)). 33 sentences would becomedeterminate and those whose sentences would remain indeterminate.° Further, the Legislature reformulated the statutory provision governing parole-granting power in a mannerthat addressed its concerns about indeterminacy. The DSL amended Penal Code § 3041 to provide that, at an inmate’s initial parole hearing, a “parole release date” shall “normally” be set. Amicus App’x Ex. R (Stats. 1976, ch. 1139, pp. 5151- 52). Notably, the term “parole release date” is the exact term used in the then-existing Board regulationsrelating to its parole-granting, as opposed to its term-setting, power, see Amicus App’x Ex. K (Reg. 76, No. 21, pp. 207, 210 (May 22, 1976) (§§ 2250, 2350)), indicating that § 3041 was not intended to govern term-setting. Also, consistent with the Legislature’s intent to address sentencing disparities, the DSL provides that parole release dates must be set “in a mannerthat will provide uniform terms for offenses of similar gravity and magnitudein respectto their threat to the public.” Amicus App’x Ex. R (Stats. 1976, ch. 1139, p. 5151 (§ 3041(a))). The Legislature’s overarching concern that culpability be the measure of punishmentisalso reflected in its designation of the one circumstance in whichthe Board can deviate from its duty to “normally” set a parole release > AnL.A. Timesarticle reported that capital offenses retained indeterminate sentences under the DSL because “[s]upporters thought it would be impossible to secure legislative agreement on a more specific term.” Finally, Sentences with Periods, L.A. Times, at 6 (Sept. 2, 1976). 34 date: where the inmate’s crime andcriminalhistory pose a particular cause for concern. See id. at 5152 (§ 3041(b)(stating that the board may decline to set a parole release date if it determines “that the gravity of the current convicted offense or offenses, or the timing and gravity of currentor past offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting”)). Thus, although the DSL allowed for a consideration of public safety in conjunction with evaluating parole suitability of indeterminately sentenced inmates,it is clear that there was never an intention that this assessment would dictate an indeterminately sentenced inmate’s maximum term. Given the Legislature’s expressed understanding that the Board would continue to set constitutional maximum primary terms, in amending this section, and in lifting the term “parole release date” directly from the Board’s 1976 regulations implementing Rodriguez, the Legislature clearly intended that parole release dates would be set within the primary term, allowing the inmate to leave custody early and serve the remainderofhis term out in the community. E. The Board’s Policy Shifts Eroded The Constitutional Limits On The Parole System. Following the passage of SB 42, and a subsequent clean-up bill AB 476, Stats. 1977, ch. 165, pp. 639-80, the new Community Release Board 35 promulgated updated regulations in 1977, which muddied the DSL’s commitmentto the two distinct Board functions of term-setting and parole- granting. On the one hand, the Board renamed the Chapter entitled “Term Fixing,” labeling it “Term Decisions,” and altered the provisions so that they did notrelate to the setting of primary terms. Amicus App’x Ex. L (Reg. 77, No. 28, p. 151 (July 9, 1977)); id. at 191-94. On the other hand, the Board amendedthe separate “Parole Release” Chapter of the regulations in a mannerrelatively consistent with the DSL. The 1977 regulations continued to provide that the Board would “normally” set a “parole date” for inmates who were“suitable,” and that suitability required considering whether the inmate posed an “unreasonable risk of dangerto society” if released (§ 2280). Jd. at 228-29. The updated regulations tracked the language of Penal Code § 3041. They maintained the importance of uniformity, proportionality, and culpability in determining whetherto set a parole date (§§ 2280-2281), although post- conviction factors could be used fo calculate that date whenit was set. See id. at 228-29 (providing that a parole date “shall normally beset,” that it must be set in a mannerthat provides for “uniform terms,” and that “the timing and gravity of the current offense or past offenses” should be considered in determining whetherto set a parole date). The regulations also remained consistent in that calculating a parole date for parole-suitable 36 inmates required determining a “total period of confinement” based on a base term, established by guidelines in the regulations, that is adjusted up and/or down based on pre-conviction, commitment, and post-conviction factors (§§ 2285-2291, 2296). Id. at 232-35, 237. However, over the next few years, the Board made further changes — unauthorized and unprompted bylegislation — that systematically whittled away parole process protections established by the DSL. First, in August 1978, the Board drastically expandedthe list of factors tending to show unsuitability that could be used to defer setting a parole release date (§ 2281(c)). Amicus App’x Ex. M (Reg. 78, No. 31, p. 330 (Aug.8, 1978)). Rather than tying the unsuitability factors to past criminal history — as provided in Penal Code § 3041(b) andprior versions of the regulations — the August 1978 revisions broaden the bases for finding unsuitability to include childhood abuse suffered by the inmate and post-conviction institutional behavior. Jd. Even moresignificantly, the August 1978 revisions emptied “parole dates”oftheir “total period of confinement”protection. Rather than a suitability finding requiring the calculation of a “total period of confinement”that could be reduced by good behaviorin prison, a suitability finding required the Boardto set a “base term” (§ 2282). Id. at 231. This base term mustreflect the gravity of the commitmentoffense, as dictated by guidelines in the regulations, but there is no provision that it be 37 adjusted, reduced by positive post-conviction factors, and used as a maximum total period of confinement within the primary term. Jd. Because the base term is not determined until an inmate is deemedsuitable, andat that point it is combined with any enhancements and other crimes to establish the “total life term,” it serves as a functional minimum that is often surpassed by the time the inmate is found suitable, as the Board recognized (§ 2289). See id. at 238 (specifically providing for situations in which “the time already served by the prisoner exceedsthe [total life term]”). Thus, the Board, with nolegislative authorization whatsoever, effectively transformeda “parole release date” required to be set by Penal Code § 3041(a) into a minimum term ofincarceration of indefinite duration, while simultaneously abdicating its responsibility to set a maximum constitutionally proportionate term.® See Board OpeningBr.at 5-6 6 Long after this unauthorized shift in Board practice, Deputy Attorney General Michael Wellington issued a memo regarding a meeting by the “Morrissey 8” (Morrissey Memo), discussing several“legal conclusions” made by the Board. See Amicus App’x Ex. S. Notably, the Morrissey Memoacknowledges the Board’s obligation (under Rodriguez) to set maximum primary terms for indeterminately sentenced inmates, but baselessly concluded that this obligation “ha[d] been rendered obsolete.” Id. at 1,2, 3. To justify this conclusion, the memo pointsto: (1) the repeal of Penal Code § 2940 et seg. by AB 476 (the SB 42 clean-upbill); and (2) the fact that Proposition 7 amendedto Penal Code to increase the MEPDs for first-degree murder (25 years) and second-degree murder (15 years). The Morrissey Memo’s“legal conclusion”is utterly baseless. First, the repeal of Penal Code § 2940 et seq. (two full years earlier) is irrelevant to the Board’s obligation to fix maximum primary terms, which stems from the U.S. and California Constitutions, not from statute, as explained by Rodriguez. Although the statutes referenced by the Board (Penal Code 38 (arguing that once an indeterminately sentenced inmate is found suitable, the regulations require the calculation of a “base term,” whichis a “minimum term of confinement’). Followingthis drastic, unauthorized shift in the regulations, the Board further dismantled the protections the Legislature intended to put in place in the DSL. Specifically, in 1979, the Board removed the requirementthat a parole date “normally” be set — contrary to the express language of Penal Code § 3041(a). Amicus App’x Ex. N (Reg. 79, No. 24, p. 230.1 (June 16, 1979) (§ 2280(a))). F. This Court Became Entangled In The Board’s Deflection And Obfuscation. This Court’s decision in Jn re Dannenberg, 34 Cal. 4th 1061 (2005), relies on the grave misunderstandingthat the Board’s interpretation created. In addressing a challenge to a denial of parole based on public safety, the § 2940 et seq.) did previously provide a few sparse statements about the parole authority’s ability to fix terms, see Amicus App’x Ex. P (Cal. Penal Code § 2940 et seq. (1971)), the legislative history of the DSL establishes that their repeal by AB 476 wasnot an indication that the Legislature meant to revoke that ability. Second, Proposition 7’s adjustment of the minimum eligible parole date (MEPD)forfirst- and second-degree murderhasno affect on the Board’s obligation to set a maximum primary term. Notably, and contrary to the Board’s argumentthat the 2015 legislation Senate Bill 230 somehow newlycreated statutory minimum terms, see Board OpeningBr.at 1, 9, 15, minimum terms are now, and have alwaysbeen,established bystatute. See, e.g., Amicus App’x Ex. O (Cal. Penal Code §§ 3043-3049 (1970)); id. Ex. Q (Cal. Penal Code §§ 3046-3049 (1977)); Cal. Penal Code § 3046. 39 Dannenberg Court examinedthe statutory language of § 3041, with its reference to a “parole release date,” and held that the Board was not unreasonable in refusing to set such a “parole release date”until after it had found a prisonersuitable for parole. Dannenberg, 34 Cal. 4th at 107 1. Reading the statutory languageinisolation, that interpretation appears sensible. But the Boardis currently using this Court’s determination about its parole-granting poweras a proxy for a determination ofits constitutional term-setting obligation. After the Board’s regulatory opportunism obfuscatedthecritical distinction between these two powers, and rendered empty the conceptof “setting a term,” the Board relies on the Dannenberg Court’s ruling to excuseits failure to set any type of term at all and return to the pre-Rodriguez ISL regime. Notably, the Dannenberg Court wasnot presented with full information aboutthe history behind the DSL andits requirementto set primary terms. Before the Court, the Attorney General wrongly argued that the Legislature intended for the ISL parole system to remain unchanged for inmates who remained indeterminately sentenced under the DSL. See In re Dannenberg, 2003 WL 1918571, Opening Br. at 18 (Feb. 14, 2003) (“[T]he Legislature plainly intended. . . to retain the old conceptofthe subjective, individualized consideration of parole-release decisions by an executive board” for indeterminately sentenced inmates). This Court accepted that assertion, and premised its decision on it. Dannenberg, 34 Cal. 4th at 1083 40 (relying onthe assertion that, in passing the DSL,the Legislature intended to apply determinate sentencing principles to those whose crimes became determinately sentenced, “[b]ut” of to “certain serious criminals” for whom it “retained” indeterminate sentences) (citing People v. Jefferson, 21 Cal. 4th 86, 95-96 (1999)).’ Although respondent’sbrief in Dannenberg discussed the history of the DSL and argued that the Board’s practices created a system that is precisely what the DSL wasdesignedto eliminate, it did not provide key information from original sourcesoflegislative history. Jn re Dannenberg, 2003 WL 21396723, Answering Br. at 18-22, 28-31 (Apr. 16, 2003). As discussed above, the legislative history for SB 42 evidencesthe Legislature’s clear intent both that constitutional maximum primary terms be set for inmates who remained indeterminately sentenced, and that the revisions to the parole-granting process remedy concernsthat existed under the ISL for those inmates(i.e., uniformity, proportionality, notice, and basing punishmenton culpability rather than a subjective evaluation of likely future behavior). 7 Dannenberg’s rulingalso relied on dicta from Jeffersonthat stated, with absolutely no basis, that under the DSL, a parole date marks the end of a prison term for both determinately and indeterminately sentenced inmates (rather than, for indeterminately sentenced inmates, marking a pointat which the inmate may bereleased to serve the rest of his term in community). See Dannenberg, 34 Cal. 4th at 1083 (citing Jefferson); Jefferson, 21 Cal. 4th at 95-96 (citing Cassou & Taugher, at 28, which does not support that proposition). 41 Of R R R es e: Y o p Although Dannenberg’s holdingis not dispositive of the present case — because the Court considered the Board’s parole-granting, and notits term-setting, obligations — its understanding of the system underlyingits decision wasclearly confused. The language ofthe opinion reveals a blending ofthe distinct concepts of constitutional maximum terms and parole release dates, and a blurring of the Board’s two separate and independent functions. For example, the Court repeatedly used the term “fixed parole release date.” See Dannenberg, 34 Cal. 4th at 1069, 1080. However, it is only constitutional maximum primary terms that have ever been “fixed” under the law, and parole release dates have always been subject to adjustment based on the inmate’s institutional behavior. Had the Dannenberg Court had more information about the legislative history behind SB 42 and the developmentofthe parole regulations, and hadits confusion about the Board’s dual function been resolved, its holding would likely have been different. The Court’s assertion, in dicta, that under the DSL,“the overriding statutory concern for public safety in the individual case trumps any expectancy the indeterminate life inmate may have in a term of comparative equality with those served by other offenders,” id. at 1084, is directly contradicted, both by the evidenced intent of the Legislature in passing the DSL, and by the clear mandate of Rodriguez. 42 Further, the Board’s assertion in this case — based on Dannenberg — that setting an inmate’s maximum term can be delayed until after the inmate is found suitable is similarly baseless. Ifa prisoner is repeatedly denied a finding of suitability for parole — as most are — the inmate will frequently exceed his constitutional maximum primary term before even receiving it. This makes the constitutional protection against disproportionate sentencing impossible to enforce, as Rodriguez recognized. See Rodriguez, 14 Cal. 3d at 650 (maximum terms must be “fixed with sufficient promptness to permit any requested review oftheir proportionality to be accomplished before the affected individuals have been imprisoned beyondthe constitutionally permitted term”). This is particularly so given that there are currently more than 25,000 indeterminately sentenced inmates — more than 19,000 ofwhom areeither past their MEPDorassessed as a “low”risk by Board psychologists. See Butler Answering Br. at 15. The Board’s assertion that it can delay setting a term also underminesevery stated goal of the DSL — to make punishment more uniform according to culpability, to reduce the violence andstress attributable to the unpredictability and uncertainty of sentencing, and to further the aims of due process by providing clear notice. Amici respectfully suggest that Dannenberg does not command precedential authority on either the meaningorvalidity of the statute at issue or the Board’s obligations. 43 CONCLUSION This Court should order the Board’s full compliance with Rodriguez, including the setting of constitutional maximum primary termsearly in indeterminately sentenced inmates’ confinement. DATED: May 10, 2017 Respectfully submitted, py:__Heid cuntJAEE HEIDI L. RUMMEL ANNA FAIRCLOTH FEINGOLD USC Gould School ofLaw Post-Conviction Justice Project REBECCA BROWN USC Gould School ofLaw In support ofRoy Butler CERTIFICATE OF WORD COUNT Pursuant to California Rule of Court 8.520(c)(1), I, Heidi L. Rummelcertify according to the computer program usedto prepare this brief that this amicus brief consists of 8.315 words. DATED: May10, 2017 Respectfully submitted, py: Heid Bunt/ave HEIDI L. ROMMEL ANNA FAIRCLOTH FEINGOLD USC Gould School ofLaw Post-Conviction Justice Project In support ofPetition Roy Butler 45 PROOF OF SERVICE State of California, county ofLos Angeles I am over the age of eighteen and nota party to this action. My business address is Post-Conviction Justice Project, University of Southern California Gould School ofLaw, 699 Exposition Blvd., Los Angeles, California 90089-0071. On May10, 2017, I served the APPLICATION FOR PERMISSION TO FILE AMICUS BRIEF; AMICUS BRIEFonthe parties to this action by placing true copies thereof in sealed envelopes addressed as follows: Sharif E. Jacob AndreaNill Sanchez KEKER, VAN NEST & PETERS LLP 633 Battery Street San Francisco, CA 94111-1809 Attorneysfor Roy Butler FIRST DISTRICT APPELLATE PROJECT 475 14th Street Suite 650 Oakland, CA 94612 Brian C. Kinney Deputy Attorney General OFFICE OF THE CALIFORNIA ATTORNEY GENERAL 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102-7004 Attorneyfor Board ofParole Hearings Clerk of Court CALIFORNIA COURT OF APPEALS First Appellate District Division 2 Aimee Feinberg DEPUTY SOLICITOR GENERAL 1300 I Street Sacramento, CA 95814 Attorneyfor Board ofParole Hearings Nancy O’Malley ALAMEDA COUNTYDISTRICT ATTORNEY’S OFFICE 1225 Fallon Street, Room 900 Oakland, CA 94612-4203 Clerk of Court Criminal Division Rene C. Davidson Courthouse SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA 1225 Fallon Street, Room 107 Oakland, CA 94612-4293 (Case No. 91694B) 46 350 McAllister Street San Francisco, CA 94102 (Case No. A139411) BY MAIL. I deposited said envelope in Los Angeles, California. The envelope was mailed with postage thereon fully prepaid. EXECUTED on May10, 2017 at Los Angeles, California. I declare under penalty ofperjury under the lawsofthe State of California that the foregoing is true and correct, deh AnnaFaircloth Feingold 47