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The Politicization of California Parole and the Role of Democracy in Criminal Legal Policy
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Despite having situated itself in mainstream political parlance as a progressive state, California is “one of the epicenters of mass incarceration in the United States.”[1] California alone incarcerates more than any other democratic country on earth.[2] Even though its prison population has declined since its peak in the mid-2000s, California still incarcerates almost 100,000 people per year.[3] Parole is one potential avenue for decarceration, but California’s parole system has proved to be remarkably ineffective.
In a “chaotic, disunified way” elected officials, bureaucrats, media outlets, and the public at large have shaped the criminal legal system throughout the United States.[4] California is no exception. Moreover, direct democracy is responsible for many of the most punitive aspects of California’s criminal law. California’s ballot initiative process has politicized its parole system and further restricted incarcerated individuals’ opportunities for release.
Parole in California: An Overview
California’s parole system is particularly dysfunctional when compared to that of many other states.[5] Despite statutory language implicating the Parole Board “shall grant parole” unless “public safety requires” further detention,[6] a 2013 study found that release was granted in less than 1% of initial parole hearings and 18% of the time overall.[7]
With persisting overcrowding concerns during the COVID-19 pandemic,[8] the state’s restricted use of parole became even more salient. Approximately 33,000 incarcerated individuals are serving life sentences or life sentences without parole (LWOP).[9] This population is aging, and people ages 50 or above now comprise 23% of the overall incarcerated population.[10] Since 2014, California has gradually expanded the pool of people who are eligible for parole, including by making many people sentenced to LWOP as youths newly parole-eligible.
But in response, parole boards have become even less likely to grant release. The number of parole hearings increased by nearly 3,000 between 2019 and in 2022, yet the “likeliest outcome of a parole hearing in California, by far, [remains] continued incarceration.”[11] Incarcerated people eligible for parole made up about one-quarter of all prisoners eligible for release by any method in 2022, but parole grants accounted for just 4% of individuals actually released.[12] In fact, as of 2022, just 14% of California parole hearings resulted in approval.[13] This rate is barely above that of South Carolina (13%) and Alabama (10%), the states with the two lowest approval rates in the country.[14] Thus, any expansion of the parole process has been undermined by a parole board “reluctant to release anyone.”[15]
Proposition 89 and the Politicization of Parole
Much of the dysfunction and friction in the parole process is attributable to California’s ballot proposition system. For example, in 1988, California voters approved additional governmental oversight of all parole release decisions for those convicted of homicide. Proposition 89 amended the state constitution to permit the California Governor to review any decision by the parole board regarding those sentenced for committing murder.[16] Framed as a public safety measure, the amendment was passed in response to Governor Deukmejian's failed attempt to block the parole grant in the high-profile case of William Archie Fain.[17] Fain’s release caused a “public furor” legitimizing an additional obstacle to the release of incarcerated individuals serving life sentences.[18] Fueled by panic in “these days of fear,” as the LA Times discussed,[19] California voters codified Proposition 89 into Article 5 Section 8(b) of the state constitution.[20]
Thus, beyond just an arbitrary process with few effective considerations of public safety, the parole process was injected with California state politics by the voting populace. Although many California ballot initiatives and laws are similarly influenced by tough-on-crime rhetoric, no other California criminal procedure is so blatantly subject to political influence. By giving California's Governor, a politician,“the final word” for parole decisions of those convicted of homicides,[21] voters provided discretion to veto the parole board if they make a “politically unpopular decision.”[22] Rather than making decisions based on the public safety as promised by Proposition 89, parole decisions are struck down when they are politically inviable. This process is unusual: only California and Oklahoma permit governor oversight of parole board decisions.[23] In eliminating a similar law, Maryland emphasized how these decisions were subject to the whims of politicians and future moral outcries of publicized crimes by asking, “How can it not be political for a governor to hold all the power [in parole decisions]?”[24]
Concerns about governor overreach are more than mere speculation, and have been actualized in California Governor’s administrations since 1988. Although Governor Wilson used the veto sparingly between 1991 and 1999, this was primarily because the Parole Board itself seldom granted parole prior to judicial oversight in 2002.[25] Governor Davis’ subsequent administration, from 1999 to 2003, vetoed all but eight of 294 paroles granted by the parole board in murder cases.[26] Subject to the persisting tough-on-crime rhetoric, Davis took the political stance that “extenuating circumstances should never be used to justify homicide,” and barred almost all parole grants.[27] His successor, Governor Schwarzeneggar, originally took a “liberal stance” in reviewing parole grants,[28] but altered course to appeal to lobbyists and blocked roughly 80 percent of parole grants during the rest of his administration.[29] Despite Governor Jerry Brown comparatively reversing only 20 percent of the parole board’s grants,[30] Brown’s vetoes were utilized in politically charged cases including those involving police officer shootings[31] and high profile cases.[32] Most recently, Governor Newsom has adopted a strategy similar to Brown’s and reverses parole grants when most politically salient, as suggested by his vetoes of Leslie Van Houten’s 2022 parole grant for her involvement in the Manson family[33] and for Derek Bettis’ conviction for killing a police officer.[34]
The California Supreme Court has afforded extreme deference to Governors in making these decisions. In fact, an extremely deferential “some evidence” standard[35] is applied to these decisions explaining that deference is required when there is a “modicum of evidence.”[36] The Court acknowledged the Governor’s decision may be “more stringent or cautious than the Board,”[37] and it is “irrelevant” that the evidence demonstrating suitability for a grant “far outweighs” any evidence demonstrating unsuitability for parole as long as the Governor’s decision is based on “some evidence in the record.”[38] In other words, California courts have permitted governors to pick and choose just “some evidence” to support their political aims. Even so, in 2011, 74% of gubernatorial decisions blocking parole release were so blatantly political that they were reversed by California Courts.[39]
The ineffectiveness of California’s parole policy has broad implications. Despite California’s substantial reductions in the state carceral population, there are still 93,000 individuals incarcerated in a prison system[40] with a capacity of just under 80,000 people.[41] Given this persistent overcrowding, Governor Newsom’s willingness to veto parole grants suggests state politics still govern parole decisions rather than sound criminal legal policy. The average age of individuals at the time of their parole hearing is over 50.[42] Older individuals have low recidivism rates and present little threat to the public.[43] On the other hand, restricting parole grants increases medical costs and risks the lives of older incarcerated individuals.[44] With no adequate public safety justification required by California statute, parole decisions continue to be defined by California politics.
The Role of Democracy in Criminal Legal Reform
The Governor’s veto power of parole board decisions implicates broad principles of criminal legal policy and democracy. This executive power is legitimated by the California voting populace. But it begs the question: What is the role of the general public and democratic voting in criminal legal policy?
When attempting to reform our broken criminal legal system, policymakers “face tough decisions” in determining whether to limit public control in pursuit of better policies or preserve it and maintain unjust policies.[45] Many academic researchers have attempted to answer this question via two distinct approaches entitled “democratizers” and “bureaucratic professionalizers.”[46] Favoring the return of criminal legal policies to the democratic process,“democratizers” argue the answer is more voter involvement.[47] Conversely, “bureaucratic professionalizers” suggest criminal legal policy should be crafted by qualified experts outside the public.[48] Given these different approaches, an answer to addressing California’s parole gubernatorial oversight remains unclear.
On one hand, the California Governor’s parole veto is clearly the result of the professionalizers’ critique that criminal legal policy’s flaws originate in “politicization that empowers biased, nonexpert influences on the system.”[49] The veto power was introduced in response to a “popular outcry” to William Archie Fain’s release reflecting the “irrational, emotion-driven, and punitive” nature of the American public.[50] Rather than reflecting data, Proposition 89 was an emotional reaction to public fear.[51] Further, as reflected by multiple California Governors since 1988, “penal populism” and public support for harsh, retributive criminal legal policies legitimated gubernatorial use of the parole board veto.[52] The professionalizers would argue that, unlike the governor, expert-led institutions are “able to coordinate across regions and to draw on data” to make informed decisions.[53] However, a shift to a more bureaucratic approach depends on a “receptive democratic public,” and to present, it isn’t clear if the public would adopt such changes or if the political system is capable of allowing them.[54] In fact, Proposition 89’s passage by ballot initiative would require, at minimum, enough political will to repeal the California Governor’s parole veto power via another ballot initiative.
On the other hand, given these major institutional challenges, the “democratizers” approach may offer a remedy to California’s gubernatorial oversight of the parole process. Proposition 89 was passed by a ballot initiative and could similarly be revoked by one. Enshrined in Article II §8(a) of the state constitution, California’s ballot initiative process has existed since 1911.[55] This process allows California voters to bypass the Governor and state legislature to pass laws and constitutional amendments.[56] With signatures from 8% of registered voters, a simple majority vote could amend the state constitution and eliminate the governor’s parole veto power.
However, this process requires the political will to alter the constitution in favor of leniency for convicted criminals, a difficult task for organizers. And it is unclear whether a state-wide vote would reflect community preferences. In fact, one study deemed intermediate-level institutions more representative than larger, state institutions since statewide bodies struggle to “capture the diverse needs of each smaller community included within [them].”[57] Moreover, a state-wide vote renders the most impacted communities voiceless due to voter disenfranchisement from prior felony convictions. In other words, those most directly impacted by Proposition 89 have no opportunity to repeal the law via a separate ballot initiative. As such, questions remain whether state-wide ballot initiatives are the most effective means to eliminate the governor’s parole veto power and build a more equitable, more effective parole system.
Conclusion
Despite not clear guidance on the appropriate methodology, California must reconsider the parole system enshrined by Proposition 89. Forty years removed from the “days of fear” in 1988,[58] sound criminal legal policy requires the elimination of gubernatorial partisan politics from the parole process. Considerations of prison overcrowding and real metrics of public safety demand it. As one of two states lingering onto this antiquated executive power,[59] it is the least Californians could do.
[1] Vera Institute, California: The state of incarceration, VERA (2023, March), https://www.vera.org/california-state-of-incarceration/.
[2] Id.
[3] Id.
[4] Mayer, S. How can democracy and criminal justice reform coexist? (2019, September 16), https://www.publicbooks.org/how-can-democracy-and-criminal-justice-reform-coexist/.
[5] Sanders, E., Going back to cali: Revisiting california’s parole release system, PRISON POLICY (2023, December 19), https://www.prisonpolicy.org/blog/2023/12/19/california-parole/.
[6] Cal. Penal Code § 3041 (b)(1) (West).
[7] Wattley, K., Insight Into California’s Life Sentence, 25(4) Fed. Sent’g. Rep. 1 (2013).
[8] Lempinen, E, Overcrowding, old buildings, fueled covid surge in california prisons, UCSF (2022, July 5), https://www.ucsf.edu/news/2022/07/423231/overcrowding-old-buildings-fueled-covid-surge-california-prisons.
[9] Hayes, J., Goss, J., Harris, H., & Gumbs, A., California’s prison population, PPIC (2019, July), https://www.ppic.org/publication/californias-prison-population/.
[10] Id.
[11] Id.
[12] Sanders, E., Going back to Cali: Revisiting California’s parole release system, PRISON POLICY (2023, December 19), https://www.prisonpolicy.org/blog/2023/12/19/california-parole.
[13] Id.
[14] Id.
[15] Id.
[16] Ballotpedia, California 1988 ballot propositions, BALLOTPEDIA (n.d.), https://ballotpedia.org/California_1988_ballot_propositions.
[17] University of California, Hastings College of Law, Governor's parole review, UC HASTINGS SCHOLARSHIP REPOSITORY (1988), http://repository.uchastings.edu/ca_ballot_props/1006.
[18] Hurst, J., Prop. 89, plan to give governor parole veto power, expected to win, LA TIMES (1988, October 28). https://www.latimes.com/archives/la-xpm-1988-10-28-mn-340-story.html.
[19] Id.
[20] Cal. Const. art. V, § 8(b).
[21] Wattley, K., Insight Into California’s Life Sentence, 25(4) Fed. Sent’g. Rep. 1 (2013).
[22] University of California, Hastings College of Law, Governor's parole review, UC HASTINGS SCHOLARSHIP REPOSITORY (1988), http://repository.uchastings.edu/ca_ballot_props/1006.
[23] Frankel, A., & Frey, A., Politicians have no place in making parole decisions for young people, ACLU (2022, May 16). https://www.aclu.org/news/criminal-law-reform/politicians-have-no-place-making-parole-decisions-for-young-people.
[24] Id.
[25] Wattley, K., Insight Into California’s Life Sentence, 25(4) Fed. Sent’g. Rep. 1 (2013).
[26] The Record, Schwarzenegger grants second parole, RECORD NET (2003, November 22), https://www.recordnet.com/story/news/2003/11/27/schwarzenegger-grants-second-parole/50713752007/.
[27] Id.
[28] Id.
[29] Wattley, K., Insight Into California’s Life Sentence, 25(4) Fed. Sent’g. Rep. 1 (2013).
[30] Id.
[31] CBS News, Gov. brown rejects parole for man guilty of shooting officer, CBS NEWS (2016, January 16). https://www.cbsnews.com/sacramento/news/gov-brown-rejects-parole-for-man-guilty-of-shooting-officer/.
[32] 13 Action News, California governor stops parole for charles manson follower, 13 ABC (2017, June 24). https://www.13abc.com/content/news/California-governor-stops-parole-for-Charles-Manson-follower-430556313.html.
[33] Chappell, B., A former manson family member is free, after her parole was reversed 5 times, NPR (2023, July 12), https://www.npr.org/2023/07/12/1187225790/leslie-van-houten-manson-murder-freed-prison-parole.
[34] LocalePlanet Press, The parole of derek pettis and the governor newsom’s veto, NEWSBREAK ORIGINAL (2024, February 7), https://original.newsbreak.com/@localeplanet-press-1587406/3325774503571-the-parole-of-derek-pettis-and-the-governor-newsom-s-veto.
[35] In re Rosenkrantz, 59 P.3d 174, 183 (2002).
[36] In re Lawrence, 190 P.3d 535, 564 (2008).
[37] In re Rosenkrantz, 59 P.3d 174, 224 (2002).
[38] Id. at 218.
[39] Wattley, K., Insight Into California’s Life Sentence, 25(4) Fed. Sent’g. Rep. 1 (2013).
[40] Legislative Analyst’s Office, California department of corrections and rehabilitation, LAO (2024, February 22), https://www.lao.ca.gov/Publications/Report/4852.
[41] Brown v. Plata, 563 U.S. 493 (2011).
[42] Robert Weisberg, Debbie A. Mukamal and Jordan D. Segall, Life in Limbo: An Examination of Parole Release for Prisoners Serving Life Sentences with the Possibility of Parole in California, (September 2011), https://law.stanford.edu/index.php?webauth-document=child-page/164096/doc/slspublic/SCJC_report_Parole_Release_for_Lifers.pdf.
[43] Sarah Rakes, Stephanie Grace Prost, & Stephen J. Tripodi, Recidivism Among Older Adults: Correlates of Prison Reentry, 15(1) Justice Policy Journal 1 (2018).
[44] Id.
[45] Mayer, S., How can democracy and criminal justice reform coexist?, PUBLIC BOOKS (2019, September 16), https://www.publicbooks.org/how-can-democracy-and-criminal-justice-reform-coexist/.
[46] Harry B. Dodsworth, Identifying the Most Democratic Institution to Lead Criminal Justice Reform, 116(2) Northwest. Univ. Law Rev. 561 (2021).
[47] Id.
[48] Id.
[49] Mayer, S., How can democracy and criminal justice reform coexist?, PUBLIC BOOKS (2019, September 16), https://www.publicbooks.org/how-can-democracy-and-criminal-justice-reform-coexist/.
[50] Id.
[51] Hurst, J., Prop. 89, plan to give governor parole veto power, expected to win, LA TIMES (1988, October 28). https://www.latimes.com/archives/la-xpm-1988-10-28-mn-340-story.html.
[52] Mayer, S., How can democracy and criminal justice reform coexist?, PUBLIC BOOKS (2019, September 16), https://www.publicbooks.org/how-can-democracy-and-criminal-justice-reform-coexist/.
[53] Id.
[54] Id.
[55] State of California Department of Finance, Initiatives and ballot propositions, DOF CA (2002, November 12), https://dof.ca.gov/budget/initiatives-and-ballot-propositions/.
[56] Id.
[57] Harry B. Dodsworth, Identifying the Most Democratic Institution to Lead Criminal Justice Reform, 116(2) Northwest. Univ. Law Rev. 561 (2021).
[58] Hurst, J., Prop. 89, plan to give governor parole veto power, expected to win, LA TIMES (1988, October 28). https://www.latimes.com/archives/la-xpm-1988-10-28-mn-340-story.html.
[59] Frankel, A., & Frey, A., Politicians have no place in making parole decisions for young people, ACLU (2022, May 16). https://www.aclu.org/news/criminal-law-reform/politicians-have-no-place-making-parole-decisions-for-young-people.