F IRST D ISTRICT A PPELLATE P ROJECT
T RAINING S EMINAR
January 20, 2012

THE STRANGE VICISSITUDES OF LIFER PAROLE
VICTORIES AND DEFEATS

F RAN T ERNUS
Staff Attorney
First District Appellate Project
January 2012

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The Strange Vicissitudes of Lifer Parole
Victories and Defeats
SIGNIFICANT CASES
A. California Supreme Court
In re Shaputis (Shaputis II) (December 29, 2011)
Cal.4th
, S188655; Court
of App. No. D056825; 2011 WL 6821364 (Cal.), 12 Cal. Daily Op. Serv. 137
An inmate's degree of insight is a proper consideration in determining whether an
inmate poses a current threat to public safety.
In re Prather (2010) 50 Cal.4th 238
The remedy for a violation of due process at a Board of Prison Terms
parole-suitability hearing is a new hearing comporting with due process.
In re Lawrence (2008) 44 Cal.4th 1181
The Board’s conclusion that a life prisoner is currently dangerous and therefore
should be denied parole “must be supported by some evidence, not merely by a
hunch or intuition.” (Id. at p. 1213.)
In re Shaputis (Shaputis I) (2008) 44 Cal.4th 1241
Once the appellate court identifies some modicum of evidence to support the
Board’s or the Governor's determination of current dangerousness, the appellant
court can go no further. (Id. at pp. 1260–1261.)
In re Rosenkrantz (2002) 29 Cal.4th 616
The judicial branch is authorized to review the factual basis of a decision of the
Board denying parole ... to ensure that the decision comports with the requirements
of due process of law, but that in conducting such a review, the court may inquire
only whether some evidence in the record before the Board supports the decision
to deny parole, based on the factors specified by statute and regulation. “Some
evidence” means “a modicum of evidence.” ( Id. at pp. 664–665.)

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B California Courts of Appeal
1) Reversals of decisions of the governor and the board where they
failed to articulate a nexus between the factors used to deny parole and the inmate's
current dangerousness.
In
In
In
In
In
In
In
In
In
In
In
In
In
In

re Singler (2008) 169 Cal.App.4th 1227;
re Burdan (2008) 169 Cal.App.4th 18;
re Aguilar (2008) 168 Cal.App.4th 1479;
re Vasquez (2009) 170 Cal.App.4th 370;
re Gaul (2009) 170 Cal.App.4th 20;
re Palermo (2009) 171 Cal.App.4th 1096;
re Rico (2009) 171 Cal.App.4th 659;
re Ross (2009) 170 Cal.App.4th 1490;
re Lazor (2009) 172 Cal.App.4th 1185;
re Dannenberg (2009) 173 Cal.App.4th 237;
re Moses (2010)182 Cal.App.4th 1279;
re Juarez (2010) 182 Cal.App.4th 1316;
re Loresch (2010) 183 Cal.App.4th 150;
re Powell (2010) 188 Cal.App.4th 1530.

2) Cases which discuss “lack of insight”, acceptance or minimization of
responsibility, and credits
In re Wen Lee (2006) 143 Cal.App.4th 1400
The governor reversed the board’s grant of parole, claiming that the commitment
offense was particularly heinous and that inmate's acceptance of responsibility was
"too recent". Court reversed and held that the recent nature of the inmate's
acceptance of responsibility is irrelevant to a determination of parole suitability as
long as the acceptance is sincere.
In re Barker (2007) 151 Cal.App.4th 346
Board denied parole because inmate’s extensive rehabilitative gains were "too
recent." Court reversed, holding that none of the suitability factors require that an
inmate's gains be maintained over an extended period of time.
In re Reed (2009) 171 Cal.App.4th 1071
The court held that board's denial of parole for continual disciplinary write-ups
was based on "some evidence" that the inmate was currently dangerous, even
though the recent ones were minor.

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In re Twinn (2010) 190 Cal.App.4th 447
Governor reversed board grant of parole because inmate "lacked insight" and
minimized his responsibility. The court reversed, holding that the governor failed
to establish a rational nexus between inmate's alleged lack of insight and his
current dangerousness; the fact the inmate did not have insight into the causative
factors of the commitment offense in the past was not some evidence that he was
presently dangerous.
In re McDonald (2010) 189 Cal.App.4th 1008
Governor reversed board grant of parole because inmate’s "limited claim of
responsibility" indicated he "lacked insight".The court reversed the governor's
decision and held that an inmate's claim that he is innocent is not probative of a
lack of insight as long as it is plausible in light of the evidence.
In re Jackson (2011) 193 Cal.App.4th 1376
Board denied parole because inmate’s refusal to admit guilt evidenced “a lack of
insight”. Court reversed, holding that the board's denial was invalid because Title
15 expressly forbids the board to condition parole suitability on an admission of
guilt.
In re Rodriguez (2011) 193 Cal.App.4th 85
Governor reversed board’s grant of parole because inmate "lacked insight", largely
relying on the psychological report's conclusion that inmate lacked insight into his
crime. Court reversed, holding that the governor had failed to show that inmate’s
"lack of insight" was related to a determination of current dangerousness, given his
remorse.
In re Lira (2011) 201 Cal.App.4th 677
Inmate was entitled to credit against his parole time for the period of continued
incarceration caused by the governor's veto of the board's decision to grant parole.

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Stanford Criminal Justice Center

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An Examination of
Parole Release for Prisoners
Serving Life Sentences
with the Possibility
of Parole in California

Robert Weisberg, Debbie A. Mukamal and Jordan D. Segall
September 2011

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© 2011 Stanford Criminal Justice Center. Permission is granted for
reproduction of this document, with attribution to the Stanford Criminal
Justice Center.

Stanford Criminal Justice Center
Stanford Law School
559 Nathan Abbott Way
Stanford, CA 94305
www.law.stanford.edu/program/centers/scjc

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CONTENTS
Acknowledgements................................................................................ 2
Introduction .......................................................................................... 3
Who Are California’s “Lifers?”.................................................................. 6
Parole Process in a Nutshell.................................................................... 7
Determining Suitability for Parole Release................................................. 9
Recent Disposition Rates...................................................................... 11
Demographic Details of the Lifer Population............................................ 15
Risk of Release.................................................................................... 17
The SCJC Lifer Transcript Analysis.......................................................... 18
General Findings.................................................................................. 18
Specific Findings: Second-Pass Analysis ................................................. 20
Inmate Characteristics.......................................................................... 20
Life Crime................................................................................. 20
Prior Record.............................................................................. 21
Age.......................................................................................... 21
Other Factors............................................................................ 22
Other Factors Associated with Release......................................... 22
Facility.............................................................................. 22
Behavior in Prison............................................................... 23
Psychological Evaluations.................................................... 23
Drug Abuse........................................................................ 24
Conclusion.......................................................................................... 24
Further Empirical Research on the Parole Release Process for Lifers........... 25
Endnotes............................................................................................. 26

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ACKNOWLEDGEMENTS
The Stanford Criminal Justice Center (SCJC) serves as Stanford Law School’s vehicle for promoting and coordinating
the study of criminal law and the criminal justice system, including legal and interdisciplinary research, policy analysis,
curriculum development, and preparation of law students for careers in criminal law. The center is headed by faculty
co-directors Robert Weisberg and Joan Petersilia and executive director Debbie Mukamal.
The authors gratefully acknowledge the Office of the Governor, the California Department of Corrections and
Rehabilitation and the Board of Parole Hearings for providing data used and/or cited in this bulletin. We are also grateful
to the many individuals who provided context for our understanding of the subject of this report.
The authors would like to acknowledge Alexandra Lampert, SLS 2011, for the research and leadership she provided
for the transcript analysis that underlies this report. Her analytical skills and logistical management were invaluable.
Albert Gilbert, Diem Quynh (Cynthia) Ngoc Huynh, Nathan Pearl, Jeffrey Tai, and Jimmy Threatt, students at Stanford
University, served as research assistants during the production of this report. We are grateful for their careful coding.

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INTRODUCTION
In recent years, California’s prison system has been under federal judicial control because of severe overcrowding,
which partly results from the recycling of revoked inmates under parole supervision. The federal litigation has cast a
sharp focus on the mandatory parole system created by the 1976 Determinate Sentencing Law and viewed as the legal
mechanism by which this recycling has developed. But far too little attention has been given to the prison population
serving life sentences with the possibility of parole under older indeterminate sentencing principles, a population that as
of 2010 represents a fifth of California state prisoners. More than 32,000 inmates comprise the “lifer” category, i.e.,
inmates who are eligible to be considered for release from prison after screening by the parole board to determine when
and under what condition.1 (This group of prisoners is distinct from the much smaller population of 4,000 individuals
serving life sentences without the possibility of parole (LWOP)).
The goal of this project is to examine in empirical detail (a) the lifer population, covering key details of its demographics,
and (b) the processes by which lifers are considered for release, including an examination of historical trends in grant
and denial rates, the recidivism record of released inmates, and legal and policy analysis of the specific mechanisms of
the parolee hearing process. Despite the importance of the lifer population in terms of its size and the major legal and
policy changes that have occurred to the parole process for lifers in the last several years, little research has yet been
devoted to this topic.
We foresee the result to be a body of research that will generate both better public understanding and further academic
examination of the lifer population and processes. In addition, we hope our study generates suggestions for legal and
policy reform, including better ways of assessing the recidivism risks of lifers, the fairness of the hearing process, and
possible budgetary savings from changes in the state’s legal rules governing lifers.
This is the first in a series of reports the Stanford Criminal Justice Center (SCJC) will be issuing on this topic. It
describes the scope of the population of prisoners serving life sentences with the possibility of parole, as well as the
process by which they are considered for release. It also includes initial analysis from our research examining Board of
Parole Hearings transcripts the factors that might correlate with grant and denial decisions. Finally, this report identifies
important research questions we are now pursuing.

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Some highlights from our findings include:
•	 The size of the lifer population has increased as a
percentage of the overall California prison population
from eight percent in 1990 to 20 percent in 2010.
Most individuals serving life sentences with the
possibility of parole are serving time for first- or
second-degree murder.
•	 In line with the increase in the size of the lifer
population, the Board of Parole Hearings has steadily
increased the number of lifer suitability hearings it has
conducted in the last 30 years, representing a 745
percent increase from 1980 to 2010. The majority of
the increase has occurred in the last decade.
•	 More than twice as many hearings were scheduled
than conducted in 2010, reflecting a trend that has
appeared and grown since 2000. While efforts by
the Board to address the backlog of hearings has
increased the flow of hearings, the passage of Marsy’s
Law and new regulations promulgated in 2008 have
likely increased the number of hearings.
•	 A lifer now stands an 18 percent chance of being
granted parole by the Board of Parole Hearings. The
grant rate has fluctuated over the last 30 years—
nearing zero percent at times and never arising above
20 percent. The change in the rate could be attributed
to changes in characteristics of the inmates appearing
in a particular year, changes in the composition of the
board, and court clarification of standards the Board
should use in determining suitability or other factors.

•	 The Governor’s rate in reversing decisions made by
the Board has fluctuated over the last two decades,
reflecting the individual policy orientation of the
particular Governor in office.
•	 As with the size of the lifer population and the number
of hearings conducted by the Board, the number
of parole decisions made by the Governor involving
murder cases has increased by 1754 percent in the
last 20 years, with the bulk of the increase occurring
after 2000 (when the total number of suitability
hearings conducted by the Board increased).
•	 The likelihood of a lifer convicted of murder being
granted parole by the Board and not having the
decision reversed by the Governor is—and always
has been—slim. In 2010, the probability was
approximately six percent.
•	 A major—perhaps the major—question in public
debate about the current lifer population is their risk of
recidivating. While data is limited, interim information
suggests that the incidence of commission of serious
crimes by recently released lifers has been minuscule,
and as compared to the larger inmate population,
recidivism risk—at least among those deemed suitable
for release by both the Board and the Governor—is
minimal.

•	 In addition, while an inmate’s chance of being granted
parole has increased in the last two years, the length
of time he or she must wait for a subsequent hearing
when denied parole has also increased (though there
is a legal mechanism by which an inmate can petition
the Board to advance his/her hearing by a showing of,
among other things, changed circumstances).

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In particular, initial results from our research analyzing nearly 450 Board of
Parole Hearings lifer suitability hearing transcripts from the time period 2007
through 2010 reveal the following significant findings:
•	 Grant rates vary significantly year to year: the grant
rate in 2010 was nearly triple what it was in 2007
and 2008.

•	 Other factors like immigration status, whether an
inmate has children, and marital status are not
significantly associated with a release or denial.

•	 Though commissioners become more lenient in one
dimension—by increasing the grant rate in 2009
and 2010—they become more stringent on another
dimension in those years, by setting lengthier periods
of time until the subsequent parole hearing when
denying parole.

•	 More research is needed to determine grant rate
variance across prison facility, and the reasons
associated with it, including the security levels of and
program availability at each facility.

•	 When victims attend hearings, the grant rate is less
than half the rate when victims do not attend.
•	 There is no statistically significant difference in the
grant rates of various types of offenses. One factor
strongly associated with release is whether the life
crime involved sexual violence. Other factors that do
not relate in any statistically significant way include
the use of a firearm in the life crime or the number of
people the inmate victimized in the commission of the
life crime.
•	 Prior record does not appear to significantly affect
release decisions, whether they are adult or juvenile
records.
•	 Most inmates committed their life crime between the
ages of 20 and 25. Inmates who committed their life
crimes between 20 and 30 were somewhat more
likely to be paroled than inmates whose life crimes
were committed in their forties. The average age of
inmates at the time of the parole hearing is 50.8. The
average age of inmates granted parole is 49.9 years,
and the average age of inmates denied parole is 51.
Surprisingly, age does not appear to be a significant
factor in release decisions.

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•	 In-prison behavior can affect whether an inmate is
granted or denied parole. CDC 115 infractions are
strongly associated with the grant rate, though CDC
128 infractions are not significantly associated with
the grant rate. Also, the seriousness of the disciplinary
violation is dispositive: violent disciplinary infractions—
regardless of when they occur—are significantly
associated with parole denials.
•	 Scores of psychological examinations administered
to predict recidivism risk and inmate psychological
stability are significantly correlated with the grant rate.
Inmates who receive an average score or higher on
these exams virtually never receive parole release.
•	 History of drug or alcohol abuse is not correlated
with the grant rate. However, whether an inmate is
participating in a 12-step program and whether he or
she can correctly answer questions about those steps
does affect whether an inmate is granted or denied
parole.

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WHO ARE CALIFORNIA’S “LIFERS?”
As of 2010, 20 percent of the California prison
population is serving a term-to-life prison sentence, more
than twice the percentage 20 years ago, and the highest
such percentage of any system in the country.2 Of the
roughly 32,000 inmates serving life with the possibility of
parole sentences, about 75 percent are serving so-called
“term-to-life” sentences and 25 percent are serving threestrikes sentences. Chart 1 contextualizes the growth of
these populations within the larger prison population.
This bulletin concentrates on those inmates serving
“term-to-life” or life sentences with the possibility of
parole sentences (generally referred to as “lifers” by the
California Department of Corrections and Rehabilitation
(CDCR)). Note, however, that because the three-strikes
law is less than two decades old, the percentage of the
overall lifer population contributed by three-strikes will

surely grow, regardless of any changes in the term-to-life
population. It is presently unknown whether and how
current policies and laws governing parole release for the
term-to-life population will also presumably apply to the
three-strike population, the first of whom will come before
the Board of Parole Hearings for parole release in 2019.3
Although numerous crimes can lead to life sentences
under the California Penal Code, the great majority of
current lifers were convicted of first- or second-degree
murder4 or attempted murder; the two other crimes with
substantial numbers of lifers are rape and kidnapping.
More details on the proportion of lifers representing the
various crime categories, as well as the length of time
typically served by category, appears in the “Detailed
Demographics” section beginning on page 15.

CHART 1

Sentencing Categories Comprising the CA Prison Population, 1990 – 2010
200,000
180,000

Number of CA Prisoners

160,000
140,000

Determinate Sentence
2nd Strike Offense
3rd Strike Offense
Life with Parole
Life without Parole
Death Row

120,000
100,000
80,000
60,000
40,000
20,000
0

Year

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* Note: 2010 data as of 11/1/2010

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PAROLE PROCESS IN A NUTSHELL
The California Penal Code and Board of Parole Hearings
regulations lay out the detailed rules that govern the
parole decision-making process for individuals serving
term-to-life sentences. The Board of Parole Hearings
(“Board” or “BPH”, formerly called the “Board of Prison
Terms”) is responsible for conducting suitability hearings
to determine parole consideration for lifers. Its power
vests from California Penal Code § 3040, et seq.: “The
Board of Prison Terms shall have the power to allow
prisoners imprisoned in the state prisons pursuant to
subdivision (b) of Section 1168 to go upon parole outside
the prison walls and enclosures.” As early as 1914, the
court held that whether an inmate should be released on
parole should “be left to the judgment and discretion of
the [B]oard to be exercised as it might be satisfied that
justice in the case of any particular prisoner required.”5
The Board is comprised of 12 full-time members,
appointed by the Governor and confirmed by the Senate.6
Terms of service are three years, although Commissioners
are eligible for reappointment. Membership is supposed
to “reflect as nearly as possible a cross section of the
racial, sexual, economic, and geographic features of the
population of the state.”7
Some 70 Deputy Commissioners—civil servants—
also participate in and make decisions at hearings to
determine suitability for parole release, though they
are not permitted to rule on objections at hearings.8
Commissioners and Deputy Commissioners participating
in parole suitability hearings are required to receive 40
hours of annual training, including training in domestic
violence and intimate partner battering.9 They are
required to have a “broad background in criminal justice”
and “…a varied interest in adult correction work, public
safety, and shall have experience or education in the
fields of corrections, sociology, law, law enforcement,
medicine, mental health, or education.”10
The Board meets with and schedules initial parole
suitability hearings with individuals serving life terms
one year before their minimum parole eligibility dates
(MEPD). Typically, one commissioner and one deputy
commissioner preside over a hearing. Hearings are held

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MARSY’S LAW: AN EXPANSION OF
VICTIMS’ RIGHTS
In November 2008, California’s voters passed
Proposition 9—also known as “Marsy’s Law”—a
ballot initiative promoted as a “Victims’ Bill of Rights.”
It was named for Marsy Nicholas, a 21-year-old college
student who was murdered by her boyfriend in 1983
and whose perpetrator was released on bail without her
family’s knowledge. The law amended the California
Constitution by expanding victims’ rights in a number of
important ways, including providing notice and granting
participation in all proceedings. Specifically within the
parole process for lifers, Marsy’s Law grants the victim,
next of kin, members of the victim’s family, and two
representatives designated by the victim the right to
attend and make statements at suitability hearings
which reasonably express their views concerning the
prisoner, the effect of the crimes on the victim and
the victim’s family, and the prisoner’s suitability for
parole. It requires the Board to consider the entire and
uninterrupted statements of victims, including victims
of non-life crimes. It also forbids the prisoner or his/her
attorney from asking the victim questions during the
hearing. See: California Constitution Article I, Section
28 and California Penal Code §§ 3041.5 and 3043.
As discussed within the text, another very important
change made by Marsy’s Law was to lengthen the
number of years by which individuals serving life
sentences are granted subsequent hearings when
denied parole by the Board.

in person and at the institution in which the prisoner is
currently housed. Before the hearing, the Board receives
a case file consisting of the inmate’s central file, forensic
evaluations (including the results of risk assessment
instruments), behavior in prison, vocational and
education certificates, letters of support and opposition,
and statements from victims.

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Marsy’s Law in 2008, the victim, next of kin, members
of the victim’s family, and two representatives have the
right to receive notice 90 days prior to the hearing and to
present uninterrupted testimony at the hearing either in
person, by written statement, audio or video statement,
or by video-conference appearance.17 The victim or his
or her representative may speak about any of the crimes
of which the inmate has been convicted, the effect of the
crime, and the suitability of the inmate for parole. These
individuals are also entitled to request and receive a
stenographic record of all proceedings.18

The inmate is entitled to attend the hearing in person,
ask questions, receive all non-confidential hearing
documents at least 10 days in advance of the hearing,
have his/her case individually considered, receive an
explanation of the reasons for parole denial, and receive
a transcript of the hearing proceedings.11 The inmate is
also entitled to be represented by counsel at a suitability
hearing.12 California pays appointed attorneys $50 per
hour and a maximum of eight hours or $400 to represent
inmates at parole hearings.13 Privately retained attorneys
charge between $2000 and $5000 for parole board
hearing representation.14 Some attorneys maintain that
the amount of time necessary to review the inmate’s
file, meet and prepare with the inmate, and provide
representation far exceeds eight hours.
The District Attorney from the county from which the
inmate was committed has the right to participate in the
hearing and be notified by the Board at least 30 days
before the hearing date.15 The District Attorney is limited
to asking clarifying questions of the inmate via the Board.
As in nearly every jurisdiction in the United States,
victims have the right to receive notice and participate in
the parole hearing process in California.16 As expanded by

In addition to the Board members, inmate, inmate’s
attorney, the District Attorney, and victim(s), members of
the press are permitted and sometimes attend hearings.
In addition, at least 30 days before the hearing, the
Board must send written notice to the judge of the court
where the inmate was convicted; the attorney who
represented the defendant at trial, the law enforcement
agency that investigated the case, and, where the person
was convicted of the murder of a peace officer, the
agency which had employed that peace officer at the time
of the murder.19 Any of these parties may submit written
or recorded information to the Board.20

Appeal to
Federal Court

Governor Declines Review/
Inmate Paroled

Governor Review

(access severely limited
by Swarthout v. Cooke)

Governor Review

(for non-murder cases)

(for murder cases)

Grant

(requires review and approval
by central BPH)

GOVERNOR REVERSAL

Appeal to
State Court

Full Board Review
(en banc)

Denial

SPLIT DECISION

Governor refers
for full review &
BPH schedules
rescission
hearing

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Suitability Hearing
Conducted by Board
of Parole Hearings
BPH CAN RESCIND PAROLE DECISION

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DETERMINING SUITABILITY FOR PAROLE RELEASE
Individuals serving life sentences with the possibility
of parole—unlike those serving death or LWOP
sentences—are presumed to receive a parole date
unless the Board determines that the prisoner poses an
“unreasonable risk of danger to society.”21 Regulations
guide the Board in making these assessments. In
particular, circumstances that weigh in favor of release
include: (1) no juvenile record; (2) stable social history;
(3) signs of remorse: (4) motivation for crime: (5)
Battered Woman Syndrome; (6) lack of a significant
violent criminal history; (7) age; (8) understanding
and plans for the future; and (9) institutional activities
that indicate an ability to function within the law upon
release.22 Factors that weigh against release suitability
for release include: (1) the commitment offense;23 (2)
previous record of violence; (3) unstable social history;
(4) sexual offense background; (5) severe mental
problems; and 6) serious misconduct in prison.24
California law also lays out detailed due process rights
for prisoners in regard to these hearings.25
In a series of key decisions (see “California Courts
Clarify Standards for Determining Release” on this
page), the California Supreme Court has shed light
on the weight of the factors identified in the law and
regulations. Notably, “although the Board exercises
broad discretion in determining whether to rescind
parole, such decisions are subject to a form of limited
judicial review to ensure that they are supported by
at least ‘some evidence.”26 By extension, the “some
evidence” standard applies to Board decisions granting
or denying parole.
The nature of the prisoner’s offense, alone, can
constitute a sufficient basis for denying parole.
Although the parole authority is prohibited from
adopting a blanket rule that automatically excludes
parole for individuals who have been convicted of
a particular type of offense, the authority properly
may weight heavily the degree of violence use and
the amount of viciousness shown by a defendant.27
For some time, the Board had relied heavily and
primarily on the commitment offense itself in making

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CALIFORNIA COURTS CLARIFY STANDARDS
FOR DETERMINING RELEASE
While statute and regulation present the factors the
Board—and by extension, the Governor—should
consider in deciding whether to release individuals
serving life sentences, case law over several decades
has clarified the standards and the weight of the
various criteria to be used by the Board and Governor
in making their decisions. The Court most recently
clarified that the relevant inquiry is whether there is
“some evidence” showing that the prisoner is a current
threat to public safety, and while the commitment
offense is probative, in and of itself cannot serve as the
sole reason to deny parole.
Roberts v. Duffy (140 P.260 (Cal. 1914): Whether an
inmate should be released on parole should “be left
to the judgment and discretion of the [B]oard to be
exercised as it might be satisifed that justice in the
case of any particular prisoner required.”
In re Minnis, 498 P.2d 997 (Cal. 1972): “Although a
prisoner is not entitled to have his term fixed at less
than maximum or to receive parole, he is entitlted to
have his application for these benefits ‘duly considered;”
based upon an individualized consideration of all
relevant factors.
In re Powell, 755 P.2d 881 (Cal. 1988): “[D]ue process
requires only that there be some evidence to support a
rescission of parole by the BPT.”
In re Rosenkrantz, 59 P.3d 174 (Cal. 2002): ‘[U]nder
California law the factual basis for a Board decision
granting or denying parole is subject to a limited
judicial review under the ‘some evidence’ standard of
review.” Also: “The nature of the prisoner’s offense,
alone, can constitute a sufficient basis for denying
parole. Although the parole authority is prohibited from
adopting a blanket rule that automatically excludes
parole for individuals who have been convicted of a
particular type of offense, the authority properly may
weigh heavily the degree of violence used and the
amount of viciousness shown by a defendant.”
(continued next page)

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its decision, labeling nearly all offenses “heinous,
atrocious, and cruel” and using that as the basis for
denying inmates parole. But the Court has now clarified
that the Board must grant parole unless it concludes
that the inmate is still dangerous, and the Board cannot
use the circumstances of the crime, standing alone, as a
basis to deny parole.28 As a result, the trend has moved
from reliance on the commitment offense to indicia that
the inmate “lacks insight” (as shown by minimizing
culpability or inconsistent statements of the crime itself)
when determining unsuitability. In sum, the appropriate
and governing standard of review of parole decisions for
lifers is whether there exists “some evidence” that the
inmate poses a current threat to public safety.
In 1988, Proposition 89 amended the California
Constitution and gave the Governor authority to review
the parole board’s decisions in cases involving nonmurder cases and reverse the parole board’s decisions
in cases involving murder convictions.29 For decisions
involving non-murder cases, the Governor is limited to
remanding the case back to the Board for full review
if s/he disagrees with the decision made by the Board.
California is one of only four states with gubernatorial
review of parole board decision-making, though California
is unique in limiting reversal power to decisions involving
murder convictions.30 The Governor must apply the same
legal standards as did the BPH itself when reviewing
decisions. According to the California Supreme Court,
the Governor’s decision should “reflect an individualized
consideration of the specified criteria” that also must be
considered by the Board in making parole decisions.31
Any judicial review of the Governor’s decision, in turn,
“strictly is limited to whether some evidence supports
the Governor’s assessment of the circumstances of
petitioner’s crime—not whether the weight of the
evidence conflicts with that assessment.”32

In re Dannenberg, 104 P.3d 783 (Cal. 2005): “[T]he
Board, exercising its traditional broad discretion, may
protect public safety in each discrete case by considering
the dangerous implication of a life-maximum prisoner’s
crime individually.” Also: [I]n order to prevent the parole
authority’s casey-b-case suitability determinations from
swallowing the rule that parole should be ‘normally” be
granted, an offense must be ‘particularly egregious’ to
justify the denial of parole.”
In re Lawrence, 190 P.3d 535 (Cal. 2008): “[T]he
relevant inquiry is whether the circumstances of the
commitment offense, when considered in light of other
facts in the record, are such that they continue to be
predictive of current dangerousness many years after
commission of the offense.” Also: “In some cases, such
as those in which the inmate has failed to make efforts
toward rehabilitation, has continued to engage in
criminal conduct postincarceration, or has shown a lack
of insight or remorse, the aggravated circumstances
of the commitment offense may well continue to
provide ‘some evidence’ of current dangerousness even
decades after commission of the offense.”
In re Shaputis, 190 P.3d 573 (Cal. 2008): “[T]he
paramount consideration for both the Board and the
Governor under the governing statutes is whether the
inmate currently poses a threat to public safety…”

depends chiefly on the original crime of conviction,
according to rules set out in California Penal Code
§ 3000.1. If the original crime was murder and it
was committed after 1982, the released person is
presumptively on parole for his/her lifetime but can
petition the Board to be discharged from parole after
either five years (if second-degree) or seven years (if firstdegree). Most other lifers will serve between three and
five years, but can petition for discharge earlier.

Once a prisoner is released from custody onto parole
supervision, the length of the parole period post-release

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RECENT DISPOSITION RATES
As Chart 2 depicts, in the last 20 years the annual
number of scheduled hearings to determine suitability for
parole release for individuals serving life sentences has
grown significantly though not at a consistent rate, with
the annual number averaging about 1600 early in this
period and over 6000 in the most recent years. But the
annual number of hearings actually conducted has grown
less significantly and has fluctuated much more, with
the percentage of scheduled hearings actually ending
up in conducted hearings dropping notably from about
75 percent to about 50 percent. In 2009, the Board of
Parole Hearings scheduled 5,639 hearings to determine
parole suitability and conducted 2,714 hearings.33
The reasons for this drop-off and increasing magnitude of
the drop-off require further examination, including inquiry
into whether resource constraints on BPH have played
any role. But a key factor—at least in the last two years—
appears to be a disincentive built into the system: If an
inmate anticipates a high probability of denial of parole at
a hearing, s/he often chooses to cancel the hearing as a
formal denial by the Board could greatly delay his or her
entitlement to a subsequent hearing. The mechanisms
by which an inmate exercises this risk aversion is a
stipulation to his/her own unsuitability for parole release;
a waiver of the hearing; or a postponement. A stipulation
is essentially the inmate’s concession that s/he is not
suitable for parole release, while a waiver is a related but
slightly different mechanism by which the inmate agrees
to forego his/her entitlement to a hearing at which s/he
could have argued suitability. The use of these procedural
mechanisms has become much more significant since the
passage of Marsy’s Law in 2008, which greatly increases
the delay in entitlement to a new hearing after a denial
and regulations promulgated in 2008 that give an inmate
the right to waive his or her hearing without stipulating
to unsuitability.34 The operation of these mechanisms
and the inmate factors associated with them deserve
special research emphasis, and the relationship between
stipulations/waivers and the timing of later hearings
and grant/release outcomes is an important question

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on which SCJC is now seeking to obtain and analyze
empirical data. Meanwhile, we now have raw data on the
frequency of stipulations/waivers.
As Chart 3 illustrates, overall the grant rates by the Board
of Parole Hearings have increased significantly in absolute
numbers in recent years; these rates have fluctuated
erratically as a percentage of conducted hearings,
although in recent years that percentage has been higher
than in previous ones. Currently the BPH grant rate is
about 18 percent.
In the last decade (2000-2010), the percentage of
scheduled hearings resulting in denial has dropped from
about 75 percent to about 40 percent, but the percentage
resulting in grants has only increased a few percent. The
explanation for the difference, as noted, has been a very
large decrease in the percentage of scheduled hearings
resulting in actually conducted hearings. More analysis is
necessary to appreciate the difference in grant rates yearby-year. In particular, the more extreme differences in
grant rates may be explained by differences in the profiles
of appearing inmates, the composition of the board, or
other factors.
As Chart 4 illustrates, the average denial length (i.e. the
numbers of years of delay before the inmate is entitled
to a subsequent suitability hearing) has changed without
pattern between 2000-08 but jumped dramatically after
that. Proposition 9/Marsy’s Law mandates denial periods
of three, five, seven, 10, and 15 years,35 the presumption
starting with a 15-year denial period absent clear and
convincing evidence that it should be shorter,36 Although
litigation is pending on whether these deferral periods
violate the ex post facto clause.37 An inmate may request
that the Board advance a subsequent hearing once every
three years. The Board has wide discretion to grant or
deny these requests, the criteria including “the views
and interests of the victim” and changed circumstances
or “new information [that] establishes a reasonable
likelihood that the additional period of incarceration
is unnecessary.”38 According to statistics included by

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CHART 2

Number of Scheduled and Conducted
Lifer Suitability Hearings, 1978 – 2010
8000

Number of Hearings

7000

Scheduled

6000

Conducted

5000
4000
3000
2000
1000
1978*
1979*
1980*
1981
1982
1983
1984
1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010

0

Year
* There was only 1 lifer suitability hearing conducted in 1978 and in 1979, and 2 hearings in 1980.
CHART 3

Board of Parole Hearings Grant Rate, 1978 – 2010
100%
90%
80%

Grant Rate

70%
60%
50%
2008: Passage of Marsy's Law;
Lawrence and Shaputis decisions

40%
30%
20%

0%

1978*
1979*
1980*
1981
1982
1983
1984
1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010

10%

Year
* There was only 1 lifer suitability hearing conducted in 1978 and in 1979, and 2 hearings in 1980.

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CHART 4

Duration of Parole Denials, 2000 – 2010
2500

Post-passage of
Marsy's Law

Number of Denials

2000

1500
1 to 2 years
3 to 5 years

1000

7 to 15 years

500

0

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

Year

plaintiffs in pending litigation, the Board denied 59 out
of 61 or 97 percent of requests for advanced hearings
submitted by prisoners between December 2008 and
August 2010.39
Before the passage of Marsy’s Law in 2008, two-thirds
of prisoners who were denied released received deferral
dates of one or two years. Now most inmates denied
release receive 3- and 5-year denials. A significant
incidence of those long-term denials has occurred and
will probably increase the number of inmates requesting
waivers and making stipulations of unsuitability.
As Chart 6 depicts, the Governor’s use of his power
to reverse grants by the Board of Parole Hearings has
changed dramatically with the identity of the Governor.
Governor Pete Wilson (1991-1999), the first Governor to
implement the new measure, rejected only 27 percent of
grants, although he only considered a handful of cases.
Governor Gray Davis (1999-2003)—who claimed he
would not parole a single convicted murderer—reversed
virtually all the grants during his term. Governor Arnold

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Schwarzenegger (2003-2011) reversed about 60 percent
of grants, while remanding about 20 percent to the Board
of Parole Hearings for further review (though Chart 6
illustrates the reversal rate within his term fluctuated).
In his first few months in office, Governor Jerry Brown
has reversed at the lowest rate of the three Governors.
The Davis Administration is likely to remain a sharp
anomaly—a virtual nullification of the law—since the
Proposition 89 procedure was arguably designed as a
kind of appellate review by the Governor.
A lifer’s prospect of actually being granted parole by
the Board and not having the decision reversed by the
Governor is—and always has been—slim. Using the
overall Board grant rate and the Governor’s non-reversal
rate for murder cases, we have estimated the likelihood in
Chart 7.

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CHART 5

Annual Number of Governor's Parole Decisions
Involving Murder Cases, 1991 – 2010
450

Number of Decisions

400
350
300
250
200
150
100
50
0

1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010

Wilson

Davis

Schwarzenegger

Year
CHART 6

Governor's Reversal Rate for Parole Decisions
Involving Murder Cases, 1991 – 2010

Percent of All Cases that Were Reversed

100%
90%
80%
70%
60%
50%
40%
30%
20%
10%
0%

1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010

Wilson

Davis

Schwarzenegger

Year

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CHART 7

Estimated* Likelihood of a Murder Case Being
Granted Parole by BPH and Governor, 1991 – 2010
7.0%

Percent

6.0%
5.0%
4.0%
3.0%
2.0%
1.0%
0.0%

1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010

Wilson

Davis

Schwarzenegger

Year

*Estimated likelihood was calculated using the BPH's parole grant rate for all life-term
sentences and the Governor's non-reversal rate for murder cases.

DEMOGRAPHIC DETAILS OF THE LIFER POPULATION
As discussed earlier and depicted in Chart 8, most
lifers currently incarcerated were convicted of first- and
second-degree murder.40 Of the people serving term to
life sentences in California as of December 31, 2010, the
largest categories by crime type are described in Chart 8.

20-year period from 1990-2010, the average number of
years served was about 20 years.
The average length served by the largest categories of
crime type is depicted in Chart 9.

CHART 8

CHART 9

Lifer Population by Type of Crime

Lifer Population by Average Years Served

TYPE OF CRIME

NUMBER OF
PRISONERS

AS A PERCENTAGE OF
LIFER POPULATION

19,360

81%

1st Degree

8,299

35%

2 Degree

8,654

36%

Attempted

2,399

Rape & other sexual
offenses
Kidnapping

Murder
nd

NUMBER OF
PRISONERS

MEAN
(YEARS)

PUNISHMENT
PROSCRIBED BY
CURRENT
CA PENAL CODE41

2nd Degree
Murder

701

19.87

15 years to life

10%

1st Degree Murder

375

20.14

25 years to life

1,467

6%

Kidnapping for
Robbery or Rape

120

17.13

7 years to life

1,057

4%

Attempted
Murder

107

13.85

7 years to life

For the 1499 individuals who served term-to-life
sentences who were released from custody between
January 1, 1990 and December 31, 2010, the average
amount of time served was 225 months or 18.75 years.
Of approximately 1,000 lifers who had been sentenced
for murder and were released from custody during the

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TYPE OF CRIME

Obviously, because these individuals have committed
more serious crimes, they are not typical of the larger
California prison population, but the mix of similarities
and dissimilarities in comparisons to the overall prison
population is complex.

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The vast majority—96%—of lifers are
male (as compared to 93% of the overall
prison population).

The percentages of lifers who are Black
(31%) and Hispanic (38%) are very similar
to the percentages for these groups in the
overall inmate population.42

In terms of age, 85% of current lifers are 55 or under and 14% are 56 or older. In addition, note that the
actual number of currently incarcerated lifers who are aged over 65 is 929. Unsurprisingly, this distribution is
not similar to the age disproportion of the overall inmate population, since most lifers are serving lengthy prison
sentences. In particular:
13% of
California
prisoners are
22-25, as
compared to
5% of lifers.

33% of
California
prisoners are
26-35, as
compared to
25% of lifers.

25% of
California
prisoners are
36-45, as
compared to
30% of lifers.

18% of
California
prisoners are
46-55, as
compared to
24% of lifers.

5% of
California
prisoners are
56-65, as
compared to
10% of lifers.

1% of
California
prisoners are
over 65, as
compared to
4% of lifers.

The distribution among lifers by mental health designations is closely proportionate
to that in the general inmate population.
The percentage of lifers
“sentenced” by each county
closely approximates the
percentage of all prisoners
coming from those
counties and is also closely
proportionate to the general
population of those counties.
In particular, Los Angeles
(39%), San Diego (7%), and
Orange (6%) and Riverside
(6%) Counties comprise the
biggest feeders of the state’s
lifer population. Further
analysis might factor in
serious crime rates of those
counties, as well as changes
in the distribution over time.

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The distribution of lifers among across
the state prisons is highly dispersed,
ranging from one percent to eight percent
in particular prisons, and is not a function
of the differing sizes of the prisons: As a
percentage of the prisoner population in
particular prisons the lifer concentration
differs drastically, with a huge concentration
in California State Prison - Solano (63%),
Calipatria State Prison (48%), Correctional
Training Facility (38%) and California State
Prison - Corcoran (36%). The reason for
this variance may lie in noncontroversial
decisions about logistics, resources, and
classification status, but the issue merits
further examination, including analysis of
program availability at those institutions and
whether place of imprisonment bears any
distinct association with rates of hearings and
grants/denials.

Individuals serving life
sentences with the possibility
of parole are fairly evenly
distributed among medium
(30%) and high medium
(29%) housing security
levels, skewing them more
toward the higher end than
the general inmate population.
On the other hand, 75% of
lifers score as low risk and
90% as low or moderate risk
by the Californa Static Risk
Assessment instrument.43
These scores contrast sharply
with the general inmate
population (28% low, 28%
moderate, 11% high property,
seven% high drug, 22% high
violent, and four percent
none). These figures merit
detailed further and secondary
data gathering, including
correlations to hearing/grant
rates and consideration in light
of recidivism analysis.

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RISK OF RELEASE
Any indeterminate sentencing system—including
California’s for individuals serving life sentences with the
possibility of parole—purportedly has several important
purposes. Among them is retribution which suggests that
offenders should be punished in proportion to the harm
they caused and their culpability in committing the crime.
Thus, some portion of the time lifers serve is intended
to satisfy the retributive purpose. The other portion
meets other important purposes, including deterrence,
rehabilitation, and incapacitation—all of which focus
on using criminal penalties to minimize future criminal
behavior by the individual offender and would-be
offenders.44 In meeting these purposes, the Board is
charged with assessing what the public safety risk is
of each lifer’s release. Indeed, the criteria for release
as articulated by governing statute and regulations and
relevant case law reiterates that predicting and preventing
recidivism is the primary concern. 
Few studies have been conducted documenting the
recidivism rates for lifers specifically but the few that
exist all suggest that the recidivism rate—as defined by
recommitment for a new offense—is relatively low.45
In a cohort of convicted murderers released since
1995 in California, the actual recidivism rate is in fact
minuscule. In particular, among the 860 murderers
paroled by the Board since 1995, only five individuals
have returned to jail or returned to the California
Department of Corrections and Rehabilitations for
new felonies since being released, and none of them
recidivated for life-term crimes.46 This figure represents
a lower than one percent recidivism rate, as compared
to the state’s overall inmate population recommitment
rate to state prison for new crimes of 48.7 percent.47 The
variance between these two rates warrants additional
analysis; in particular, a more nuanced examination of
the 860 individuals granted parole release as compared
to the overall lifer population might explain their low
recidivism rates.

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Other sources of information shedding light on the
recidivism risk of lifers are established studies of
recidivism rates for non-lifers that focus on crime of
conviction, criminal record, age at time of release, length
of imprisonment and other factors. The factors examined
in these studies can be used as proxies to help us gauge
likely recidivism projections for lifers. A good example
is the age factor. Some non-lifer studies demonstrate
that as a general matter, people age out of crime. For
most offenses—and in most societies—crime rates rise
in the early teenage years, peak during the mid-to-late
teens, and subsequently decline dramatically. Not only
are most violent crimes committed by people under 30,
but even the criminality that continues after that declines
drastically after age 40 and even more so after age 50.48
More uncertain are the prospects for offenders between
the ages of thirty and fifty. Determining when there is not
an unreasonable risk to public safety to parole relatively
young lifers will depend on the continuing improvement
of risk-assessment instruments, as well as careful
attention to the empirical evidence linking particular types
of crimes to particular rates of re-offending. In California
specifically, CDCR’s newest recidivism report (October
2010) documents that inmates designated as serious or
violent offenders, older inmates and inmates who serve
15 years or more recidivated at a lower rate than those
who were not.49
Two other sources of information are the risk levels
classifications as assessed by both the California Static
Risk Assessment instrument and the tools used by the
Forensic Assessment Division (FAD) to predict current
risk. Both indicate that lifers are relatively lower risk
than other inmates, but more information is needed to
understand the nature of instruments used and their
ability to correlate recidivism rates with risk scores.

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THE SCJC LIFER TRANSCRIPT ANALYSIS
In light of the rules governing and stakeholders
participating in parole release for lifers, and the great
variety of factors they bring into play in any hearing, the
Stanford Criminal Justice Center decided to undertake
the first empirical assessment of the actual conduct and
circumstances of parole hearings to assess which factors
play salient roles in predicting or determining outcomes.
We received 754 hearing transcripts constituting a
random sample of 10 percent of all parole suitability
hearings conducted between October 1, 2007, and
January 28, 2010 from the California Department of
Corrections and Rehabilitation. Of the 754 hearings, 49
(6.5 percent) took place in 2007, 276 (36.7 percent)
took place in 2008, 377 (50 percent) took place in
2009, and 52 (6.9 percent) took place in 2010.
These transcripts ranged from less than 50 to more than
200 pages. To transform them into usable data, we
used two procedures. First, we roughly summarized the

data, gathering a basic set of information about all of the
transcripts: hearing date, inmate name, result (grant or
denial), persons present at the hearing, and so on. As a
second, more comprehensive, process, we designed an
extended codesheet to capture more than 180 variables
of interest from the transcripts, ranging from inmate
characteristics to details of the life offense to prison
programming. We hired and trained Stanford University
undergraduates to code the transcripts by carefully
reading the text and making selections on a web-based
form.
To date, we have completed 448 transcripts in this
second-pass process, or approximately 60 percent of the
sample. The majority of the completed transcripts were
from hearings conducted in 2009 (after the passage of
Marsy’s Law and the court decisions in Lawrence and
Shaputis), though we have coded some transcripts from
2007, 2008, and 2010 as well.

GENERAL FINDINGS
There are two types of parole suitability hearings: initial
suitability hearings, in which the prospective parolee
is appearing in front of the parole board for the first
time, and subsequent suitability hearings, in which
the prospective parolee has been denied parole at a
past hearing. Almost 90 percent of the hearings were
subsequent, rather than initial, parole hearings. Chart
10 summarizes the dispositions of the 754 hearings
by whether the hearing was an initial or subsequent
hearing. (Note that the table excludes one hearing in
which the decision was postponed pending the receipt
of a missing psychological evaluation, and a second in
which the commissioners’ decision was not indicated in
the transcript.)

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CHART 10

Disposition by Hearing Type, Full Sample
INITIAL

SUBSEQUENT

TOTAL

Denied

87

567

654

(87.0%)

Granted

2

96

98

(13.0%)

89

664

752

Total

In total, 87 percent of the hearings in our sample resulted
in a denial of parole. Inmates in subsequent parole
hearings fared much better than inmates appearing in
front of the Board for the first time: nearly 15 percent of
subsequent hearings resulted in a grant and 2.2 percent
of initial hearings produced grants.

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Grant rates appear to vary significantly by year. Chart
11 reports the grant rate by year from the full sample of
transcripts. (Our reporting on the grant rate here is not
intended to expand upon or change our earlier analysis of
the overall grant rate, but to contextualize our transcript
analysis.)
CHART 11

Grants by Year, Full Sample
YEAR

DENIED

GRANTED

GRANT RATE

2007

45

4

8%

2008

255

21

8%

2009

316

61

16%

2010

40

12

23%

By the end of our sample, the grant rate was nearly triple
what it was in 2007 and 2008. The result is highly
statistically significant.
Though commissioners became more lenient on one
dimension, by increasing the grant rate in 2009 and
2010, they became more stringent on another dimension.
Upon denying a parole applicant, parole commissioners
must set a date until the next parole hearing but have
discretion in determining the length of time. The
commissioners most commonly set a date of one, three,
or five years until the next parole hearing50, but in some
cases in our dataset, the commissioners delayed the
next parole hearing for as much as 15 years. Chart 12
summarizes the average number of years to next hearing,
by the year the hearing was conducted.
CHART 12

Years to Next Hearing, by Hearing Date
2007

2008

2009

2010

TOTAL

2.0

2.2

4.6

5.1

3.5

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The result may reflect the impact of “Marsy’s Law,” an
amendment to the California state constitution enacted
by California voters via the ballot initiative process in
November 2008. As discussed above, Marsy’s Law, also
called Proposition 9, increased the maximum parole
denial period to 15 years. After 2008, one- and two-year
denial terms, which were common prior to the passage
of Marsy’s Law, became prohibited. The result was a
significant shift upward in denial periods: in the 2009
transcripts in our sample, 45 percent of denials were for
periods of five years or more.
Every hearing is led by a presiding commissioner, who
is joined by a deputy. In total, there were 24 presiding
commissioners in our dataset. The total number of
hearings they presided over varied from a low of six
hearings to a high of 89. Because of the relatively small
amount of data we have about each commissioner, we
cannot conclude that there is a statistically significant
difference between the grant rates of the various
commissioners. That said, the numerical differences are
substantial: grant rates by commissioner varied greatly
from a low of zero percent to a high of 31 percent. One
commissioner, for instance, granted parole in twelve of
the 61 hearings in our sample he presided over; Another
commissioner, by contrast, granted parole in only one of
the 43 hearings in our sample over which she presided.
Additional study is necessary to understand possible
reasons for these variances, including the classification
status of inmates seen by each commissioner.
The last piece of information we have collected about the
complete sample is information about who attended the
hearing. Specifically, we have data on whether a victim
appeared at the hearing, with “victim” defined broadly
as either the immediate victim of the crime or a friend,
family member, or acquaintance of the victim of the
crime. Chart 13 summarizes grant rates by the presence
of victims.

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CHART 13

Grant Rate by Presence of Victim at Hearing
Victim not present
Victim present

DENIED

GRANTED

GRANT RATE

586

94

13.8%

70

4

5%

There is a statistically significant difference in the grant
rate between hearings at which victims are present and
hearings at which victims are not present. The effect is in

the expected direction: when victims attending hearings,
the grant rate is less than half the rate when victims do
not attend. A more nuanced analysis of the relationship
between victim participation and disposition rates might
identify the reasons for this correlation. In particular,
a better tracking of when victims most commonly
participate in hearings—particularly whether they
typically appear primarily at initial or first subsequent
suitability hearings – could explain why their participation
is associated with parole denials.

SPECIFIC FINDINGS: SECOND-PASS ANALYSIS
More detailed results can be obtained from our secondpass analysis. Because we have finished coding only
around two-thirds of the transcripts, however, these
analyses are necessarily preliminary. In what follows,
we consider two general categories of results: first, the

general characteristics of inmates serving life sentences
and their relationship to release decisions; and second,
other factors that are positively or negatively associated
with parole release.

INMATE CHARACTERISTICS
CHART 14

Life Crime
As Chart 14 indicates, the majority of parole-eligible life
offenders are second- or first-degree murderers. There
is no statistically significant difference in the grant rates
of various types of offenders, although those serving
sentences for attempted murder are the least successful
inmates. Grant rates for first- and second-degree
murderers are nearly identical.
Chart 14 also includes the average time served by
inmates in each offense category at the time of the
hearing, in years.

Offense Type by Decision
AVERAGE
YEARS
SERVED

DENIED
INMATES

GRANTED
INMATES

TOTAL

Second Degree
Murder

20.1

195

44

239

First Degree Murder

17.2

104

20

124

Attempted Murder

14.2

26

0

18

Kidnapping for Sex
Crime/Robbery

21.7

27

2

29

Aggravated
Mayhem

15.0

2

0

2

Kidnapping for
Ransom

16.5

2

0

2

Conspiracy to
Commit Murder

21.2

4

2

6

Rape

13.1

3

0

3

Drive-By Shooting

20.1

1

0

1

8.6

2

0

2

18.9

368

68

436

Torture
Total

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Several factors related to the life crime are not related
to release in a statistically significant way. First, the use
of a firearm in the life crime does not appear to have a
significant effect on the outcome of the parole hearing.
In total, 182 prisoners did not use firearms in the
commission of their life crime, and 214 prisoners did
use a firearm. The release rates were 15 percent and 16
percent, respectively; the difference is not statistically
significant.
Commissioners’ decisions did not seem to vary according
to the number of people the inmate victimized in the
commission of the life crime. Thirteen of the 106 cases
(12 percent) in which the inmate’s life crime involved
multiple victims resulted in release; by contrast, 55 of
the 333 (16.5 percent) single-victim cases resulted in
release. The difference is not statistically significant.

Prior Record
Prior record does not appear to significantly affect release
decisions, whether they are adult or juvenile records.
Sixteen percent of inmates with juvenile records prior
to the commission of their life crimes obtained parole
release, compared to 15 percent of inmates without
juvenile records. The difference is not statistically
significant.
The same holds true for the effect of prior adult criminal
records. Almost 60 percent of inmates in our sample had
prior adult convictions before committing their life crime,
but the grant rate was 14 percent for inmates without
adult criminal records and 16 percent for inmates with
criminal records.

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Age
Chart 15 shows the age at life crime, by whether the
inmate was paroled. The figure shows that most inmates
committed their life crime between the ages of 20 and
25. The pattern is similar for both paroled and nonparoled inmates, though inmates who committed their
life crimes between 20 and 30 were somewhat more
likely to be paroled than inmates whose life crimes
were committed in their forties. Few of the latter type of
inmates received parole grants.
CHART 15

Age at Life Crime, by Parole Outcome
.08

Density

One factor that appears to be strongly associated with
release is whether the life crime involved sexual violence.
Only two of the 32 transcripts we have coded so far that
involved sexual violence of any kind resulted in grants
of parole; by contrast, 16 percent of parole cases not
involving sexual violence (66 out of 404) resulted in
release.

.06
.04
.02
0

20

30

40

50

60

Age
Grants

Denials

The average age of inmates at the time of the parole
hearing is 50.8. The average age of inmates granted
parole is 49.9 years, and the average age of inmates
denied parole is 51. The difference is not statistically
significant. Surprisingly, age does not appear to be a
significant factor in release decisions: a simple logistic
regression model using age at the hearing date to predict
the probability of release shows a somewhat negative but
statistically insignificant effect of age on the likelihood of
parole release.

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Other Factors
Chart 16 provides assorted demographic characteristics
of the inmates in our sample. None of the characteristics
presented in the table—immigration status, whether an
inmate has children, and marital status—is significantly
associated with a release or denial.

Chart 17 presents the grant rate by facility.
To avoid misleading findings, state prisons that are
poorly represented in our sample—specifically,
facilities with fewer than ten hearings in the sample—
were omitted from this table, leaving a total of
13 facilities.

CHART 16

CHART 17

Assorted Demographic Characteristics

Grant Rate by Facility

Immigration Status

DENIED

GRANTED

GRANT
RATE

% OF
TOTAL

DENIALS

GRANTS

GRANT
RATE

Citizen

224

41

15.5%

63%

Mule Creek

9

5

35.7%

Illegal immigrant

50

6

10.7%

13%

10

5

33.3%

Legal resident

3

1

25.0%

1%

California Institution for
Women

Unknown*

78

19

19.6%

23%

San Quentin

13

4

23.5%

California Men’s Colony

26

6

18.8%

51

11

17.7%

51

Children
Has children

137

31

18.5%

41%

Avenal

Doesn’t have
children

210

35

14.3%

59%

Correctional Training Facility

45

9

16.7%

Central California Women’s
Facility

17

3

15.0%

California Substance Abuse
Treatment Facility

23

4

14.8%

Solano

61

9

12.9%

California Medical Facility

16

2

11.1%

Chuckawalla Valley

20

2

9.1%

Marital Status
Divorced

84

10

10.6%

24%

Married before
prison

51

9

15.0%

15%

Married, during
prison

32

15

31.9%

12%

Single

156

23

12.9%

45%

Folsom

12

1

7.7%

Spouse deceased

13

4

23.5%

4%

Pleasant Valley

10

0

0.0%

Though these characteristics are not significantly
associated with the grant rate, some results are
intrinsically interesting. First, 59 percent of the inmates
in our sample have children. Of that population, only 35
percent are married, and only 22 percent were married
before entering prison.

Other Factors Associated with Release
Facility
Parole hearings are held on-site at most of California’s 33
state prisons. Grant rates might vary across facilities for
a variety of reasons, such as systematic differences in the
type of inmates held at various facilities, availability of
rehabilitative programs at various facilities, or differences
in the pool of commissioners who conduct hearings at
various facilities.

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As the table indicates, grant rates differ dramatically by
facility. Some prisons, like Chuckawalla, Folsom and
Pleasant Valley, have grant rates below 10 percent,
others, like Mule Creek and the California Institution
for Women, grant more than a third of parole cases. As
stated above, Solano houses the largest percentage of
lifers as a percentage of its total prison population.
A more robust analysis of grant rates by institution is
warranted to better understand the reasons underlying
variances.

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Behavior in Prison
Inmate behavior during the prison term is a recurring
theme in parole hearings. Parole commissioners typically
scrutinize inmate’s disciplinary records, and often ask
detailed questions about violations of prison rules.

Psychological Evaluations
Virtually all inmates who appear at parole hearings
have undergone psychological evaluations. Parole
commissioners always receive and often review the
results of these evaluations carefully.

In California prisons, disciplinary infractions are
documented using two forms, the CDC 128 “Custodial
Counseling Chrono” (or sometimes the CDC 128B
“Informational Chrono”), and the CDC 115 “Rules
Violation Report.” 128 infractions are typically minor
conduct violations, including smoking, being in an
unauthorized area, using foul language, or possessing
non-serious contraband. 115 infractions, which trigger
a notice-and-hearing process, can be either non-serious
(“administrative”) or serious. Serious violations include
violence toward inmates or prison personnel, possession
of controlled substances or weapons, and other serious
infractions.

The two most common types of clinical opinions in our
sample are the Axis V Global Assessment of Functioning
Scale and the Clinician Generic Risk assessment.52
The Axis V GAF measures a patient’s overall level of
psychological, social, and occupational functioning on
a 100-point continuum, with higher scores indicating
higher functioning. The Clinician Generic Risk, by
contrast, assigns inmates a simple risk-of-recidivating
score: low, low-moderate, moderate, moderate-high, and
high.

Both 115s and 128s are exceedingly common. Eightyone percent of inmates in our sample have at least one
115 in their record, and 89 percent of inmates have
at least one 128. The 115 infractions are strongly
associated with the grant rate; 25 percent of inmates
with no 115 infractions received parole grants, while only
13 percent of inmates with at least one 115 infraction
received a grant—a result significant at the .01 level. And
the more 115s an inmate accumulates, the greater an
effect the inmate’s disciplinary record has on the inmate’s
chances for parole release. Just 16 of the 149 inmates
with more than five 115s (11 percent) received parole
release.
On the other hand, 128 infractions are not significantly
associated with grant rate. One inmate received a grant of
parole despite accumulating sixty 128 infractions.
Preliminary evidence also suggests that the seriousness
of the disciplinary violation has a substantial effect
on commissioners’ decisions. For example, violent
disciplinary infractions, regardless of when they occur,
are significantly associated with parole denials. Only 11
of the 128 (8.5 percent) inmates with violent disciplinary
records in prison were released, compared to 20 percent
of inmates with no violent disciplinary infractions.

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CHART 18

Grant Rate by psychological
Evaluation Instrument
DENIED

GRANTED

TOTAL

GRANT
RATE

Clinician Generic
Risk
Low

107

42

149

28%

Low-Moderate

50

8

58

14%

Moderate

47

2

49

4%

Moderate-High

12

0

12

0%

High

14

0

14

0%

Axis V-GAF
0-74

37

0

37

0%

75-84

78

18

96

19%

85-100

66

12

78

15%

Both the Clinician Generic Risk and the Axis V-GAF are
significantly correlated with grant rate. This is especially
true of the Clinician Generic Risk assessment, which is
statistically significant at the .001 level. As Chart 18
indicates, inmates who receive an average score or higher
virtually never receive parole release. Similarly, none of
the inmates in our sample who received below 75 on the
Axis V-GAF enjoyed favorable release outcomes.

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These results suggest that the psychological evaluation
tools used to assess risk potential and inmate
psychological stability play an influential role in the
parole process.
Drug Abuse
During parole hearings, commissioners often discuss
inmates’ records of drug and alcohol abuse at
considerable length. A history of drug or alcohol
abuse is not correlated with grant rate. What is highly
associated with grant rate, however, is whether an
inmate is participating in a “twelve-steps” program
(that is, Alcoholics Anonymous, Narcotics Anonymous,
or some similar program), and whether he or she can
correctly answer questions about those steps, which
commissioners often ask to test inmates’ commitment to
drug and alcohol treatment

Conclusion
The foregoing analyses are necessarily preliminary, but
they shed important light on how the parole hearing
process functions in California. Some results, like the
importance of in-prison conduct and psychological
evaluations, confirm standard presuppositions about what
matters to parole commissioners. Other results, like the
irrelevance of age and offense type, are counterintuitive.
As the study proceeds, we will continue to analyze
factors that contribute to parole release decisions, with
the goal of developing a comprehensive model of parole
decisionmaking in California.

In total, 159 inmates were asked whether they could
identify one or more of the 12 steps. Of the 56 inmates
who failed to correctly answer the commissioners’
question, only one was paroled. By contrast, 37 of the
141 who correctly responded to commissioners’ queries
received parole—a grant rate double that of inmates who
were not asked about their treatment program.
It therefore appears that commissioners mostly do
not discriminate between inmates who have or have
not abused drugs or alcohol. For those inmates with
substance-abuse problems, however, the ability to
demonstrate a commitment to a recovery program is a
key component of obtaining parole release.

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FURTHER EMPIRICAL RESEARCH ON THE PAROLE
RELEASE PROCESS FOR LIFERS
The Stanford Criminal Justice Center is working on the
following other research projects related to lifers and will
be issuing subsequent bulletins on a quarterly basis:
THE ROLE OF THE DISTRICT ATTORNEY: One key
factor in the course and ultimate outcome of lifers
seeking release is the role of the District Attorney. SCJC
is currently undertaking an innovative survey consisting
of interviews with district attorneys in a broad sample of
California counties. The goal of the survey is to determine
particular offices’ approach to these hearings, including
what resources and staff they devote, whom they assign
to the hearing, what role the designated District Attorney
representatives are expected to play, how they prepare
for the hearings, what factors they consider important in
opposing release, their role in judicial review, and other
information.
THE ROLE OF VICTIM(S): We are currently reviewing
the role victims play in the hearing process, including
how their rights have expanded since the passage
of Marsy’s Law, how frequently and in what manner
victims participate and whether victim participation
has any bearing on Board decision-making. In addition,
our research will identify model practices for victim
participation used in other jurisdictions.

FORENSIC EXAMINATIONS: The governing standard for
granting parole is whether the inmate presents a current
risk to public safety. The Forensic Assessment Division
(FAD) is charged with conducting forensic examinations
on lifer inmates prior to their meeting with the Board. We
are currently researching the tools and procedures used
by the FAD to determine the role the examinations play
and the weight they get—and should get—in assessing
current and future risk.
JUDICIAL REVIEW OF PAROLE DECISIONS: Given
that the majority of decisions made by the Board result
in denial and the relatively high reversal rate among
Governors, the court serves as an effective and default
vehicle for lifers seeking parole release through habeas
appeals. Since the 2011 Swarthout v. Cooke decision,
which virtually precludes federal habeas corpus review,
state judicial review offers inmates an opportunity to
challenge the decisions of BPH and the Governor.53
Tracking the number of cases brought before the court
and the results of these habeas petitions will help us gain
important understanding into the flow of parole release
for lifers.

THE ROLE OF COMMISSIONERS: Given the enormous
role commissioners and deputy commissioners play in the
parole suitability hearing process, we are investigating the
nature of training received by commissioners who preside
over suitability hearings; how commissioners prepare for
and approach suitability hearings; and the roles assumed
by commissioners versus deputy commissioners.

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ENDNOTES
1	 Under California’s Determinate Sentencing Law, most felonies
carry a “determinate” prison sentence consisting of a specific
number of months or years the offender must serve in prison
before s/he can be released. See California Penal Code § 1170.
The death sentence can only be imposed for first-degree murder
when certain special and aggravating circumstances are charged
and proved. For a few very egregious crimes, the sentence may be
life without the possibility of parole (LWOP). Individuals serving
LWOP sentences can only be released from prison by Governor
pardon or commutation. See California Penal Code §§ 4801-4802;
15 California Code of Regulations § 2816. The “lifers” who are the
subject of this study are prisoners who have been sentenced to a
“life sentence with the possibility of parole.” These sentences are
also sometimes called “indeterminate” because, by definition, the
trial judge cannot pre-determine the exact time the prisoner will
be released; that time is subject to the parole process.
	

Any sentence of life with the possibility of parole has a minimum
sentence that must be served before the Board can even consider
release. The default rules for the minimum term are established by
California Penal Code § 3046: (a) No prisoner imprisoned under a
life sentence may be paroled until he or she has served the greater
of the following: (1) A term of at least seven calendar years or (2)
A term as established pursuant to any other provision of law that
establishes a minimum term or minimum period of confinement
under a life sentence before eligibility for parole.

	

For many specific crimes that authorize life sentences, the specific
criminal statute expressly includes a minimum prison term that
constitutes “any other provision of law” under § 3046 (a) (2). Thus,
the punishment for second degree murder is ordinarily “a term of
15 years to life,” while first degree murder generally carries “a term
of 25 years to life.” (California Penal Code § 190 (a)).

	

	

Other statutes specifying indeterminate sentences do not
mention a minimum term, describing the sentence simply as
“imprisonment in the state prison for life with the possibility of
parole” or “imprisonment in the state prison for life.” In this
category are sentencing provisions for attempted premeditated
murder (California Penal Code §§ 664(a), 187, 189) as well as
aggravated mayhem (California Penal Code § 205), torture (§
206.1), kidnap for ransom without bodily harm (§ 209, subd. (a)),
kidnap for robbery or sexual assault (§ 209, subd. (b)), kidnap
during carjacking (§ 209.5, subd. (a)), nonfatal train wrecking (§
219), attempted murder of peace officer or firefighter (§§ 664,
subd. (e), 187), exploding a destructive device with intent to kill
(§ 12308), and exploding a destructive device that causes mayhem
or great bodily injury (§ 12310, subd. (b)). These statutes would
then incorporate the default minimum term of seven years under
California Penal Code § 3046(a)(1).
Finally, note that if a person is convicted of a crime carrying an
indeterminate term that does not specify a minimum term but is
also convicted of a separate crime that does carry a fixed term, that
latter term can establish the minimum number of years that must
be served before parole eligibility. Thus, the operative minimum
term can depend on any of the numerous complex determinate
sentencing laws and enhancements. California Penal Code §
1168(b), cross-referenced in § 3040, states: “For any person not
sentenced under [a determinate term], but who is sentenced to be
imprisoned in the state prison … the court imposing the sentence
shall not fix the term or duration of the period of imprisonment.”

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2	 For instance, as comparison to other large systems, lifers (i.e.
people serving life sentences with the possibility of parole)
comprise nearly three percent of the federal prison population,
four percent of the Florida prison population, nearly five percent
of the Texas prison populations, 10 percent of the Ohio prison
population, and nearly 15 percent of the New York prison
population.
3	 Because the Three-Strikes law was passed in 1994, the first inmates
sentenced under that law will come before the Board of Parole
Hearings in 2019 after they have served 25 years of their sentences.
See California Penal Code § 667(e)(2): “If a defendant has two or
more prior felony convictions …the term for the current felony
conviction shall be an indeterminate term of life imprisonment
with a minimum term of the indeterminate sentence calculated as
the greater of…imprisonment in the state prison for 25 years.”
4	 Under California Penal Code §§187-189, a person commits
first-degree murder when s/he kills with deliberation and
premeditation, or otherwise causes death in the course of
commuting or attempting to commit one of several enumerated
felonies, including arson, rape, sexual assault against a minor,
carjacking, robbery, burglary. A person commits second-degree
murder if s/he kills intentionally, although without premeditation,
or if s/he causes death with “an abandoned and malignant heart,”
which means that s/he has acted with a conscious disregard for—
or indifference to—human life.
5	 Roberts v. Duffy, 140 P.260 (Cal. 1914) at 264.
6	 California Penal Code § 5075.
7	 California Penal Code § 5075(b). The list of current
Commissioners and their biographies is available on the California
Department of Corrections and Rehabilitation website at:
http://www.cdcr.ca.gov/BOPH/commissioners.html.
8	 The minimum qualifications for a Deputy Commissioner include
either: (1) two years of experience in the California state service
with equivalent responsibility to a Parole Administrator I; (2)
three years of experience within the last five in the California
Department of Corrections and Rehabilitation or Board of Parole
Hearings in an equivalent class to Parole Agent III; (3) three
years of experience in the field of administrative or criminal law
plus equivalent to graduation from college; or (4) three years of
experience in the administrative plus equivalent to graduation
from college. Unlike the Commissioners, the list of Deputy
Commissioners is not made public.
9	 California Penal Code §§ 5075.5, 5075.6(b)(2).
10	 California Penal Code § 5075.6(b)(1).
11	 California Penal Law Code §§ 3041.5, 3041.7.
12	 California Penal Law Code § 3041.7; 15 California Code of
Regulations § 2256.
13	 “Board of Parole Hearings “Lifer Attorney Packet’ Application for
Attorney Appointment Roster Life Parole Consideration Hearings”
at page 5. Available at: http://www.cdcr.ca.gov/BOPH/attorney_
employment.html
14	 California Lifers Newsletter “The Parole Board Hires ‘Your’
Attorney” Volume 5, Number 6 at 10 (December 2009).
15	 California Penal Law Code § 3041.7; 15 California Code of
Regulations § 2030.

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16	 California Penal Law Code § 3043.
17	 California Penal Law Code § 3043, as expanded by Proposition 9
or “Marsy’s Law” (2008). Also
18	 California Penal Law Code § 3041.5(a)(4).
19	 15 California Penal Law Code § 3042(a).
20	 15 California Penal Law Code § 3042 (f).
21	 California Penal Code § 3041(b); 15 California Code of
Regulations § 2402(a).
22	 15 California Code of Regulations § 2281(d).
23	 In particular, the regulations spell out the following factors that
should be considered in determining whether the prisoner
committed the offense in an “especially heinous, atrocious or
cruel manner”: “(A) multiple victims were attacked, injured or
killed in the same or similar incidents. (B) The offense was carried
out in a dispassionate and calculated manner, such as executionstyle murder. (C) The victim was abused, defiled or mutilated
during or after the offense. (D) The offense was carried out in a
manner which demonstrates an exceptionally callous disregard for
human suffering. (E) The motive for the crime is inexplicable or
very trivial in relationship to the offense.” 15 California Code of
Regulations § 2281(c)(1).
24	 15 California Code of Regulations § 2281(c).
25	 California Penal Code §§ 3041.5, 3041, 5011.
26	 In re Powell, 45 Cal.3d 894 (Cal. 1988) at 904.
27	 In re Rosenkrantz, 59 P.3d 174 (Cal. 2002) at 222.
28	 In re Lawrence (44 Cal. 4th 1181 (2008)) and In Re Shaputis (44 Cal.
4th 1241 (2008), See W. David Ball, Heinous, Atrocious, and Cruel:
Apprendi, Indeterminate Sentencing, and the Meaning of Punishment,
109 Colum. L. Rev, 893, 900 (2009).
29	 Cal. Const. Article V, Section 8(b). See also California Penal Code
§ 3041.1.
30	 The other states are Louisiana, Maryland and Oklahoma. In
2009, Louisiana allowed offenders sentenced to life on certain
heroin offenses to be eligible for parole. All other life sentences
are imposed without the possibility of parole. The Governor must
approve all parole decisions. Interestingly, the Texas Constitution
was amended in 1984 to remove Governor review of parole
decisions. See www.tdcj.state.tx.us/bpp/publications/PG%20
AR%202010.pdf
31	 In re Rosenkrantz, supra, 29 Cal.4th at p. 677-79. The factors to be
considered in determining parole suitability as set forth in Title
15 of the California Code of Regulations, Section 2402, include
“the absence of serious misconduct in prison and participation
in institutional activities that indicate an enhanced ability to
function within the law upon release are factors that must be
considered on an individual basis by the Governor in determining
parole suitability. The Governor also must consider any evidence
indicating that the prisoner has expressed remorse for his crimes,
as well as any evidence demonstrating that “[t]he prisoner has
made realistic plans for release or has developed marketable skills
that can be put to use upon release.” (§ 2402, subd. (d)(8).) .
32	 In re Rosenkrantz, supra, 29 Cal.4th at page 679.

33	 As noted below, the differences between the number of hearings
scheduled and conducted in a given year are primarily due to
stipulations by the inmate to unsuitability for parole, waivers to the
right of a hearing, cancellations by the Board, and postponements
by either the inmate or the Board.
34	 Prior to 2008, the governing regulation required the inmate to
stipulate to unsuitability and waive his/her right to a hearing
simultaneously. See 2 California Code of Regulations § 2253(b).
35	 California Penal Law Code § 3041.5(b)(3) as amended by Marsy’s
Law (Proposition 9, 2008).
36	 California Penal Law Code § 3041.5(b)(3).
37	 The California Court of Appeals recently held that the application
of the mandated denial periods enacted pursuant to Marsy’s Law
to inmates convicted prior to the effective date of Marsy’s Law
violates ex post facto principles and therefore cannot be applied.
In re Michael Vicks, No. D056998, slip op. (Calif Ct. App., May 1, 11
2011). The decision is likely to be appealed.
38	 California Penal Law Code § 3041.5(b)(4).
39	 See Notice and Motion for Preliminary Injunction to Entire Class,
Gilman v. Schwarzenegger, December 20, 2010
40	 A person commits first-degree felony murder if s/he causes a
death in the perpetration or attempt to perpetrate robbery, rape,
burglary, kidnapping, mayhem, or sexual assault on a minor. A
person commits second-degree felony murder if s/he causes death
in the course of perpetrating or attempting to perpetrate certain
other inherently dangerous felonies, such as providing heroin to a
minor, distributing methamphetamine, or discharging a weapon in
an inhabited building.
41	 Because the individuals whose sentences comprise the mean
may be serving terms under varying historical iterations of the
California Penal Code that carry different punishments, there may
be discrepancies between the punishment proscribed by current
California Penal Code and the mean years served.
42	 Blacks represent a much higher than their share of the resident
population at 6.2 percent, whereas Hispanics comprise 37.6
percent of California’s resident population. See U.S. Census
Bureau: State and County QuickFacts at: http://quickfacts.census.
gov/qfd/states/06000.html
43	 This instrument computes the risk to re-offend by using static
risk indicators: gender, age, and offense history. See: http://
www.cdcr.ca.gov/Regulations/Adult_Operations/docs/
NCDR/2010NCR/10-02/CSRA%2012-09.pdf
44	 Frase, R. “Punishment purposes” Stanford Law Review 58: 67-83.
45	 A study of females in Canada found that only 6.3 percent of
paroled lifers recidivated. See Bonta, J., B. Pang, and S. WallaceCapretta 1995 “Predictors of recidivism among incarcerated female
offenders” The Prison Journal 75: 277-294. Also a study that tracked
a group of “Furman inmates” who had their death sentences
commuted to life in 1972 found very low recidivism rates for the
subset that were eventually paroled (though the sample size – 47
individuals – was very small. See Marquant, J. and J. Sorensen
1988 “Institutional and postrelease behavior of furman-commuted
inmates in Texas” Criminology 26(4): 677-693.
46	 The data does not reflect any new misdemeanors committed or
any crimes committed in other states by this cohort.
47	 For releasees in FY 2005-6.

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48	 Sex crimes are somewhat anomalous, with a bimodal distribution: a
peak in the teen years, then a drop, and then another rise, but that
later rise is in the offender’s late 20s.
49	 See page 26 of 2010 Adult Institutions Outcome Evaluation Report
(October 11, 2010) at: http://www.cdcr.ca.gov/Adult_Research_
Branch/Research_Documents/ARB_FY0506_Outcome_
Evaluation_Report.pdf
50	 Our sample includes transcripts of suitability hearings conducted
before the implementation of Marsy’s Law when commissioners
could delay hearings for one or two years.
51	 Inmates whose immigration statuses are “unknown” are likely
U.S. citizens. In the vast majority of parole hearings involving
noncitizens, citizenship status is explicitly discussed by the
commissioners. In many hearings involving citizens, however,
citizenship status is not discussed in the course of the hearing.
52	 As of 2008, BPH stopped relying on the Axis V GAF. Riskassessment tools now used include the PCL-R, HCR-20, LS-CMI,
and STATIC-99-R.
53	 562 U.S., _, 131 S. Ct. 859 (2011)

L IF E

I N

L I M BO :

An Examination of Parole Release for Prisoners Serving Life Sentences with the Possibility of Parole in California

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UCL UnCommon
Law

220 4th Street, Suite 201
Oakland, CA 94607
Tel: (510) 271-0310
Fax: (510) 271-0101
www.theuncommonlaw.com

Overview of California’s Parole Consideration Process
DOCUMENTATION HEARING
Lifers are provided with a Documentation Hearing within the first three years of their
incarceration. In this hearing, a Deputy Commissioner from the Board of Parole Hearings (BPH) reviews
the prisoner’s file and makes recommendations regarding the kinds of activities the prisoner should
pursue in order to demonstrate parole suitability whenever he or she becomes eligible.
PAROLE CONSIDERATION
Lifers have their Initial Parole Consideration Hearings scheduled thirteen months prior to their
Minimum Eligible Parole Dates (MEPD). Legally, the presumption is that lifers will be granted parole at
their initial hearings; however, this has happened only thirteen times in the past ten years or so.
Prisoners are entitled to attend their hearings in person, to have an attorney present, to ask
questions, to receive all hearing documents at least ten days in advance, to have their cases individually
considered, to receive an explanation of the reasons for denying parole and to receive a transcript of the
hearing.
Parties attending parole hearings include the prisoner, his or her attorney, a Commissioner and
Deputy Commissioner of the BPH, a representative from the District Attorney’s office, two correctional
officers, and the victims and/or their next of kin or representatives. Prisoners are not permitted to call
witnesses or to have their family members attend, unless those family members happen to also be victims
of the offense.
The main topics discussed at parole hearings are the following: the commitment offense and the
circumstances surrounding it; any prior juvenile or adult criminal history; conduct (both good and bad) in
prison; recent psychological evaluations prepared for the BPH; and the prisoner’s plans for release upon
parole. The area where prisoners’ families and supporters have the most influence is in the parole plans.
Through their letters to the BPH, supporters can demonstrate where prisoners are invited to live once
released, where they are offered employment, where they may participate in any necessary transitional
program (e.g., drug or alcohol treatment), and any other financial, emotional or spiritual support they may
need. (See UnCommon Law’s Free Guide to Lifer Support Letters, at www.theuncommonlaw.com, for
more information on this.)
WHEN PAROLE IS DENIED
On average, the BPH’s commissioners only grant parole in approximately 10% to 15% of the
cases they hear, which is actually a much higher rate than it was just a year ago. Until Proposition 9 is
overturned, prisoners denied parole at either an Initial Hearing or a Subsequent Hearing will have another
hearing scheduled either three years, five years, seven years, ten years or fifteen years later. Like other
aspects of the parole consideration process that have changed since Prop 9, the BPH is directed to
consider the wishes of the victims and their representatives in determining when the next hearing should
be.

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Overview of California’s Parole Consideration Process
Page 2
WHEN PAROLE IS GRANTED
Even though the Board grants a prisoner parole, it does not mean he or she will be released right
away. This is because, in addition to deciding that the person is not currently dangerous, the Board
decides how much time the person should actually have to serve based solely on the specific details of the
crime. In some cases, the prisoner has already served that much time, so he or she will be released as
soon as the decision becomes final. In other cases, the prisoner still has some months (or perhaps years)
to serve prior to release. The actual release date is calculated during the days and weeks following the
parole hearing.
After the parole hearing, the case will be reviewed by the BPH’s Decision Review Unit for 120
days. If they affirm the date, then the case proceeds to the Governor’s office for 30 days of review there.
By the end of the 30 days, the Governor may either reverse the parole grant, modify the release date, or let
the decision stand, after which the prisoner will be released on the date established by the BPH.
In cases other than murder, the Governor cannot directly reverse a parole grant. Instead, the most
the Governor can do is request that the full Board conduct an en banc review and schedule a rescission
hearing, at which the prisoner’s grant may be taken away (rescinded). In these cases, the Governor’s
review must take place within 120 days following the parole hearing; no additional 30-day period applies.
If a parole grant is reversed by the Governor or rescinded by the Board, the prisoner is placed back
into the regular rotation of parole consideration hearings unless and until he or she is granted parole again.
Some prisoners are granted parole several times before they are finally released from prison.
WHEN COMMISSIONERS CANNOT AGREE
If a hearing results in a split decision between the Commissioner and Deputy Commissioner (there
are only two people on a hearing panel), the case goes to the full Board of BPH commissioners at a
monthly executive meeting. This is called an en banc review, and a majority vote is required for a
prisoner to be granted parole. Members of the public may attend this hearing and speak to the Board.
WHEN COURTS GET INVOLVED
At any stage of the parole consideration process, a prisoner may ask a court to intervene and
correct some unlawful conduct by the BPH. In cases against the Governor, courts might set aside his
decision and allow the prisoner’s release. In cases against the BPH’s denial of parole, courts might order
the BPH to conduct a new hearing and grant parole unless there is some new evidence demonstrating a
prisoner’s risk to public safety.
The lifer cases from recent years that have helped establish the legal limits on conduct by the BPH
and the Governor are In re Rosenkrantz (2002) 29 Cal.4th 616, In re Dannenberg (2005) 34 Cal.4th 1061,
In re Lawrence (2008) 44 Cal.4th 1181, In re Shaputis (2008) 44 Cal.4th 1241, In re Scott (2005) 133
Cal.App.4th 573; In re Rico (2009) 171 Cal.App.4th 659; McQuillion v. Duncan (9th Cir. 2002) 306 F.3d
895; Sass v. Cal. Bd. of Prison Terms (9th Cir. 2006) 461 F.3d 1123, and Irons v. Carey (9th Cir. 2007)
505 F.3d 846.
LIFE ON PAROLE
Most lifers who are released on parole must serve a minimum of five years or seven years on
parole before they may be discharged from parole. However, these parolees face a maximum of a lifetime
on parole if parole authorities find that there is good cause to believe they continue to require intense
parole supervision. While on parole, they must abide by specific conditions supervised by a parole agent.
A former life prisoner who is on parole faces the possibility of a new life sentence if he or she is returned
to prison for even a minor violation of parole.
THE INFORMATION IN THIS OVERVIEW IS NOT INTENDED AS LEGAL ADVICE IN ANY
INDIVIDUAL PRISONER’S CASE. THERE ARE MANY EXCEPTIONS AND VARIATIONS IN THE
PAROLE CONSIDERATION PROCESS. READERS ARE ENCOURAGED TO CONSULT AN
EXPERIENCED PAROLE ATTORNEY FOR SPECIFIC ADVICE.

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PRISON LAW OFFICE
General Delivery, San Quentin CA 94964
Telephone (510) 280-2621 Ÿ Fax (510) 280-2704
www.prisonlaw.com

Your Responsibility When Using the Information Provided Below:
When putting this material together, we did our best to give you useful and
accurate information and cannot give specific advice to all prisoners who ask for it. The
laws change often and can be looked at in different ways. We do not always have the
resources to make changes to this material every time the law changes. If you use this
pamphlet, it is your responsibility to make sure that the law has not changed and still
applies to your situation. Most of the materials you need should be available in your
institution’s law library.

55
Director:
Donald Specter
Managing Attorney:
Sara Norman
Staff Attorneys:
Rana Anabtawi
Susan Christian
Rebekah Evenson
Steven Fama
Penny Godbold
Megan Hagler
Alison Hardy
Kelly Knapp
Millard Murphy
Lynn Wu

INFORMATION REGARDING PROPOSITION 9
(revised June 2011)
The following information is a summary of some of the changes in California law resulting from
Proposition 9 (also knows as “Marsy’s Law”), which was passed by the voters on November 4, 2008.
Proposition 9 modified the California Constitution and altered the California Penal Code by amending
two statutes and adding two additional statutes. The main changes that affect people who have been
convicted and sentenced are (1) changes in the procedures for determining whether life prisoners are
suitable for parole; (2) changes in the procedures for revoking parole; (3) new rules on the payment of
restitution; (4) restriction of the early release of prisoners; and (5) limitations on the rights of prisoners.
I.

CHANGES IN LIFE PAROLE CONSIDERATION PROCEDURES
A.

Scheduling Parole Consideration Hearings for Life Prisoners (Pen. Code § 3041.5)

Before the passage of Proposition 9, when a prisoner with an indeterminate life sentence was
found unsuitable for parole, he or she was entitled to an annual parole consideration hearing unless the
Board of Parole Hearings (the Board) found that it was not reasonable to expect that parole would be
granted the following year and stated the reasons for the finding. The next hearing could be delayed up
to two years in non-murder cases and up to five years in murder cases.
After Proposition 9, the maximum period between parole hearings following a denial has
changed. Under the new provision (Pen. Code § 3041.5, subd. (b)(3)), the Board, after considering the
views and interests of the victim, shall schedule the next hearing, as follows:

Board of Directors
Penelope Cooper, President Ÿ Michele WalkinHawk, Vice President Ÿ Marshall Krause, Treasurer
Honorable John Burton Ÿ Felecia Gaston Ÿ Christiane Hipps Ÿ Margaret Johns
Cesar Lagleva Ÿ Laura Magnani Ÿ Michael Marcum Ÿ Ruth Morgan Ÿ Dennis Roberts

1

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Prison Law Office
Proposition 9 letter (rev. June 2011)
page 2

(A)

In 15 years, unless the Board finds by clear and convincing evidence that
consideration of the public and victim’s safety does not require a more lengthy
period of incarceration than 10 additional years.

(B)

In 10 years, unless the Board finds by clear and convincing evidence that
consideration of the public and victim’s safety does not require a more lengthy
period of incarceration than seven additional years.

(C)

In three years, five years or seven years, where consideration of the public and
victim’s safety does not require a more lengthy period of incarceration than seven
additional years.

Thus, under Proposition 9, the soonest a prisoner would have his or her next parole consideration
hearing is three years, and the presumption is that parole will be denied for 15 years unless the Board
finds a reason to schedule it earlier. Because of these changes, a prisoner may want to consider waiving
his or her hearing for a period of one to five years if the prisoner knows it is unlikely that he or she will
be found suitable at the next hearing.
The Board has discretion to “advance” the next hearing date and hold the hearing sooner if there
is a change in circumstances or new information establishing a reasonable likelihood that public safety
does not require the additional years of incarceration. A prisoner may send one written request to the
Board every three years asking to advance the hearing date and describing the changed circumstances or
new information. (Pen. Code § 3041.5, subds. (b)(4) and (d).) BPH Form 1045(A) is used to make this
request. A court can overturn a Board’s decision regarding such a request only if the Board has
committed a “manifest abuse of discretion.” (Pen. Code § 3041.5, subd. (d)(2).)
Before Proposition 9, when the Board rescinded a previously set parole date, the Board was
required to schedule the next hearing within 12 months. Now, the Board will follow the same
scheduling guidelines described above after rescinding a previously set parole date. (Pen. Code §
3041.5, subd. (a).)
The Board began implementing this portion of Proposition 9 effective December 15, 2008.
However, the Board agreed not to apply Proposition 9 at the next hearing for any prisoner who was
supposed to have his or her hearing before December 15, 2008, but had the hearing postponed by the
Board for some reason beyond the prisoner’s control, such as needing a new psychological report.
Proposition 9 has been subject to challenges. In May 2011, a state court of appeal held that the
provisions raising the minimum parole deferral period, increasing the default maximum deferral period
and limiting the Board’s discretion to reduce the maximum deferral period violate the “ex post facto”
clauses of the federal and state constitutions when applied to prisoners whose crimes were committed
prior to the enactment of Proposition 9. The court found that under Proposition 9 the risk of increased
incarceration is real and significant. (In re Vicks (2011) __ Cal.App.4th ___; 11 Cal. Daily Op. Serv.
5670.) As of early June 2011, the Vicks case is not yet final and may be subject to rehearing or review.

2

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Prison Law Office
Proposition 9 letter (rev. June 2011)
page 3

On the other hand, in December 2010, the federal Ninth Circuit Court of Appeals reached a
conclusion opposite to that in the Vicks case. The Ninth Circuit found that because the Board can grant a
request to advance a hearing date, Proposition 9 does not create a significant risk of prolonging an
individual’s incarceration. The Ninth Circuit held that, even assuming that Proposition 9 created some
risk of prolonged incarceration, prisoners' ability to apply for expedited hearings remedied any possible
ex post facto violation. (Gilman v. Schwarzenegger (9th Cir. 2010) __ F.3d ___.; 11 Cal. Daily Op.
Serv. 994.
B.

Expansion of the Rights of Victims at Life Parole Consideration Hearings (Pen.
Code §§ 3041.5(a)(2) and 3043)

Proposition 9 expanded the rights of victims to attend and to be heard at various criminal
proceedings, including parole consideration hearings for life prisoners. The victim, next of kin,
members of the victim’s family, and two representatives may now attend and are entitled to testify at
parole consideration hearings. Their testimony may include their views on the parolee’s previous
convictions, the effect of the crimes on the victim and their families, and the suitability of the prisoner
for parole. The Board is required to consider the entire and uninterrupted statements of all of these
persons in deciding whether to release the prisoner on parole, and the prisoner or parolee’s attorney are
not entitled to ask questions of them. In addition, victims and their representatives can require that
transcripts of their statements be provided to every hearing panel that considers the prisoner’s parole in
the future.
II

CHANGES IN PAROLE REVOCATION PROCEEDINGS

Proposition 9 attempted to modify Penal Code § 3044 and reduce parolees’ due process rights in
parole revocation proceedings. However, those parts of Proposition 9 conflict with a permanent
injunction entered by a federal district court in a class action lawsuit called Valdivia v. Davis. In 2009,
the federal court told the state that it had to keep complying with the injunction in the Valdivia case,
instead of making the changes set forth in Proposition 9. (Valdivia v. Schwarzenegger (E.D. Cal. 2009)
603 F.Supp.2d 1275.) In March 2010, the Ninth Circuit Court of Appeals vacated the district court
order and instructed the court to amend the Valdivia injunction to accord with Proposition 9 unless it
found that specific Proposition 9 provisions violate the federal constitution or other federal law.
Valdivia v. Schwarzenegger (9th Cir. 2010) 599 F.3d 984, 994-995.
As of June 2011, the provisions of the Validiva injunction generally remain in effect. Further
litigation is on hold due to the passage of Assembly Bill (AB) 109 in April 2011. AB 109, if put into
effect, would take responsibility for most parole supervision and revocations away from the CDCR and
the Board and transfer it to the counties. However, AB 109 is NOT currently in effect and will not take
effect unless and until laws are passed to provide funding for it. It is currently not known if or when
AB 109 will ever take effect.

3

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Prison Law Office
Proposition 9 letter (rev. June 2011)
page 4

The provisions of Proposition 9 that have been in dispute are as are follows:
·

Appointment of an Attorney – As of June 2011, all parolees continue to receive
appointed attorneys for parole revocation hearings. If Proposition 9 goes into effect,
parolees would no longer automatically be appointed an attorney for revocation
proceedings. Instead, parolees would have to request an attorney. The Board would
grant the request only if the parolee is indigent and appears to be incapable of speaking
effectively in his or her own defense due to the complexity of the charges, the defense, or
the parolee’s mental or educational incapacity.

·

Probable Cause Hearing – Under Proposition 9, parolees would be entitled to a
probable case hearing no later than 15 calendar days following arrest for a parole
violation. This actually would provide sooner probable cause hearings for most parolees
than required by Valdivia, under which the Board was usually required to conduct a
probable cause hearing no later than 13 business days after placement of the parole hold.
However, unlike Proposition 9, Valdivia requires the Board to hold an expedited hearing
where a parolee has a complete defense to the parole violation charge; the expedited
hearing must be held within 6 to 8 business days after placement of the parole hold (or as
soon as possible thereafter, if the parolee needs more time to produce defense evidence).

·

Revocation Hearing – Under Valdivia, the Board is required to conduct a final
revocation hearing no later than 35 calendar days after placement of a parole hold. If the
relevant parts of Proposition 9 were to take effect, a parolee would be entitled to a
revocation hearing no later than 45 calendar days following his or her arrest for a parole
violation.

·

Hearsay Evidence – Under Proposition 9, hearsay evidence offered by parole agents,
peace officers, or a victim would generally be admissible at parole revocation hearings.
However, this portion of Proposition 9 is not likely to take effect, as the Ninth Circuit
Court of Appeals has re-affirmed that hearsay is not admissible at parole revocation
hearings (even if the evidence falls within one of the hearsay exceptions applicable in
criminal cases) unless the state’s reason for not producing the witness outweighs the
parolee’s interest in confronting the witness. (Valdivia v. Schwarzenegger (9th Cir.
2010) 599 F.3d 984, 989-991.)

·

Elimination of Various Due Process Rights – Under Valdivia, the Board is required to
provide a number of other due process rights to parolees such as written notice of
charges, the right of the parolee to appear and speak on his or her own behalf at the
probable cause hearing, a neutral hearing officer, the right to subpoena witnesses and
evidence, the consideration of alternatives to incarceration, a written statement by the
fact-finder of the evidence relied on and reasons for revoking parole, and access to an
audiotape of the parole revocation hearing. Full implementation of Proposition 9 would
eliminate many of these rights.
4

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Prison Law Office
Proposition 9 letter (rev. June 2011)
page 5

III.

PAYMENT OF RESTITUTION BY CRIMINAL OFFENDERS

Proposition 9 added subdivision (b)(13) to Article I, Section 28, of the California Constitution to
require courts to order restitution for every case in which a crime victim suffers a loss. Any funds
collected by a court or law enforcement agencies will first be applied to restitution. Thus, payment of
restitution takes priority over other fines and obligations a prisoner may legally owe. This law has little
actual impact, as the law has long required sentencing courts to impose restitution and the CDCR to
collect restitution from money deposited in prisoners’ trust accounts.

IV.

RESTRICTION OF THE EARLY RELEASE OF PRISONERS

Proposition 9 amended Article I, section 28(f) of the California Constitution to state that
sentences must be carried out in compliance with the court’s sentencing orders and prisoners’ sentences
shall not be “substantially diminished” by early release policies intended to alleviate overcrowding. It
also requires the legislature to provide enough funds to house prisoners for the full terms of their
sentences, although statutorily authorized credits will still be permitted to reduce prisoners’ sentences.
Despite this provision, a federal court issued an order in January 2010 that would require the
state of California to implement a plan to significantly reduce its prison overcrowding. (Coleman v.
Schwarzenegger (E.D. Cal) No. CIV S-90-0520 LKK GGH/Plata v. Schwarzenegger (N.D. Cal.) C011351 TEH, January 12, 2010 Order to Reduce Prison Population.) On May 23, 2011, the United States
Supreme Court upheld the federal court’s decision, finding that over-crowding is resulting in cruel and
unusual punishment in violation of the Eighth Amendment to the U.S. Constitution. Brown v. Plata,
Case No. 09-1233. The Court’s ruling means that the state must reduce its prison population by
approximately 32,000 prisoners within the next two years.
The court gave the state the right to choose the crowding reduction methods it will use. The plan
developed by the state does not include “early releases” of any current prisoners, but proposes other
means of reducing the prison population and expanding the prison capacity. The reductions in
overcrowding would be accomplished through other means including: (1) building more California
state-operated prison beds on the grounds of existing CDCR prisons or recently-closed juvenile
facilities, (2) opening new re-entry and community-based facilities, (3) transferring more prisoners to
out-of-state facilities, and (4) housing some prisoners in privately-operated prisons within California.
The plan also proposes reducing the prison population by (5) redefining some property crimes so that
they are misdemeanors rather than felonies, (6) housing some incoming low-risk felons in jails for their
entire terms, (7) placing some prisoners on monitored home detention,(8) implementing reforms to
reduce the number of people sent to prison on probation or parole revocations, (9) increasing the good
conduct and work credits that can be earned by some prisoners, and (10) commutating sentences for
certain non-citizens who will be deported or transferred to federal custody. At this time, we do not know
exactly when or how all the parts of the state’s plan will be put into effect.

5

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Prison Law Office
Proposition 9 letter (rev. June 2011)
page 6

V.

LIMITATIONS ON THE RIGHTS OF PRISONERS

Proposition 9 added subdivision (a)(5) to Article I, Section 28, of the California Constitution to
limit the rights and privileges of prisoners to those required by the United States Constitution and the
laws of California. This provision could potentially affect various rights and privileges such as
visitation, higher education, and recreational programming. If the CDCR uses this provision to interfere
with court-ordered consent decrees that require the CDCR to provide prisoners with various rights
beyond those mandated by state and federal law, there will likely be litigation over those matters.

6

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Cite as: 562 U. S. ____ (2011)

1

Per Curiam

SUPREME COURT OF THE UNITED STATES
GARY SWARTHOUT, WARDEN v. DAMON COOKE 

MATTHEW CATE, SECRETARY, CALIFORNIA 

DEPARTMENT OF CORRECTIONS AND 

REHABILITATION v. ELIJAH CLAY 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 10–333.

Decided January 24, 2011


PER CURIAM.
I
California’s parole statute provides that the Board of
Prison Terms “shall set a release date unless it determines
that . . . consideration of the public safety requires a more
lengthy period of incarceration.” Cal. Penal Code Ann.
§3041(b) (West Supp. 2010). If the Board denies parole,
the prisoner can seek judicial review in a state habeas
petition. The California Supreme Court has explained
that “the standard of review properly is characterized as
whether ‘some evidence’ supports the conclusion that the
inmate is unsuitable for parole because he or she currently
is dangerous.” In re Lawrence, 44 Cal. 4th 1181, 1191, 190
P. 3d 535, 539 (2008). See also In re Shaputis, 44 Cal. 4th
1241, 1253–1254, 190 P. 3d 573, 580 (2008); In re Rosen
krantz, 29 Cal. 4th 616, 625–626, 59 P. 3d 174, 183 (2002).
A
Respondent Damon Cooke was convicted of attempted
first-degree murder in 1991, and a California court sen
tenced him to an indeterminate term of seven years to life
in prison with the possibility of parole. In November 2002,
the board determined that Cooke was not yet suitable for
parole, basing its decision on the “especially cruel and
callous manner” of his commitment offense, App. to Pet.

62

2

SWARTHOUT v. COOKE
Per Curiam

for Cert. 50a; his failure to participate fully in rehabilita
tive programs; his failure to develop marketable skills;
and three incidents of misconduct while in prison. The
board admitted that Cooke had received a favorable psy
chological report, but it dismissed the report as not credi
ble because it included several inconsistent and erroneous
statements.
Cooke filed a petition for a writ of habeas corpus in
State Superior Court. The court denied his petition. “The
record indicates,” it said, “that there was some evidence,
including but certainly not limited to the life offense, to
support the board’s denial.” Id., at 42a. Cooke subse
quently filed a habeas petition with the California Court of
Appeal and a petition for direct review by the California
Supreme Court. Both were denied.
In October 2004, Cooke filed a federal habeas petition
pursuant to 28 U. S. C. §2254 challenging the parole
board’s determination. The District Court denied his
petition. The Ninth Circuit reversed, holding that Cali
fornia’s parole statute created a liberty interest protected
by the Due Process Clause, and that “California’s ‘some
evidence’ requirement” was a “component” of that feder
ally protected liberty interest. Cooke v. Solis, 606 F. 3d
1206, 1213 (2010). It then concluded that the state court
had made an “unreasonable determination of the facts in
light of the evidence” under §2254(d)(2) by finding any
evidence at all that Cooke would pose a threat to public
safety if released. Id., at 1215.
B
Respondent Elijah Clay was convicted of first-degree
murder in 1978, and a California court sentenced him to
imprisonment for seven years to life with the possibility of
parole. In 2003, the board found Clay suitable for parole,
but the Governor exercised his authority to review the
case and found Clay unsuitable for parole. See Cal.

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Cite as: 562 U. S. ____ (2011)

3

Per Curiam

Const., Art. 5, §8(b); Cal. Penal Code Ann. §3041.2 (West
2000). The Governor cited the gravity of Clay’s crime;
his extensive criminal history, which reflected “the culmi
nation of a life of crime,” App. to Pet. for Cert. 116a;
his failure to participate fully in self-help programs; and his
unrealistic plans for employment and housing after being
paroled. Regarding the last factor, the Governor con
cluded that Clay would be likely to return to crime, given
his propensity for substance abuse and lack of a viable
means of employment.
Clay filed a petition for a writ of habeas corpus in State
Superior Court. That court denied Clay’s petition, as did
the California Court of Appeal. The California Supreme
Court denied review.
Clay subsequently filed a federal petition for a writ of
habeas corpus, which the District Court granted. The
District Court concluded that the Governor’s reliance on
the nature of Clay’s long-past commitment offense vio
lated Clay’s right to due process, and dismissed each of
the other factors the Governor cited as unsupported by the
record. The Ninth Circuit affirmed, agreeing with the
District Court’s conclusion that “the Governor’s decision
was an unreasonable application of California’s ‘some
evidence’ rule and was an unreasonable determination of
the facts in light of the evidence presented.” Clay v. Kane,
384 Fed. Appx. 544, 546 (2010).
II
In granting habeas relief based on its conclusion that
the state courts had misapplied California’s “some evi
dence” rule, the Ninth Circuit must have assumed either
that federal habeas relief is available for an error of state
law, or that correct application of the State’s “some evi
dence” standard is required by the federal Due Process
Clause. Neither assumption is correct.
As to the first: The habeas statute “unambiguously

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4

SWARTHOUT v. COOKE
Per Curiam

provides that a federal court may issue a writ of habeas
corpus to a state prisoner ‘only on the ground that he is in
custody in violation of the Constitution or laws or treaties
of the United States.’ ” Wilson v. Corcoran, 562 U. S. ___,
___ (2010) (per curiam) (slip op., at 4) (quoting 28 U. S. C.
§2254(a)). “We have stated many times that ‘federal
habeas corpus relief does not lie for errors of state law.’ ”
Estelle v. McGuire, 502 U. S. 62, 67 (1991) (quoting Lewis
v. Jeffers, 497 U. S. 764, 780 (1990)).
As for the Due Process Clause, standard analysis under
that provision proceeds in two steps: We first ask whether
there exists a liberty or property interest of which a per
son has been deprived, and if so we ask whether the
procedures followed by the State were constitutionally
sufficient. Kentucky Dept. of Corrections v. Thompson, 490
U. S. 454, 460 (1989). Here, the Ninth Circuit held that
California law creates a liberty interest in parole, see 606
F. 3d, at 1213. While we have no need to review that
holding here, it is a reasonable application of our cases.
See Board of Pardons v. Allen, 482 U. S. 369, 373–381
(1987); Greenholtz v. Inmates of Neb. Penal and Correc
tional Complex, 442 U. S. 1, 12 (1979).
Whatever liberty interest exists is, of course, a state
interest created by California law. There is no right under
the Federal Constitution to be conditionally released
before the expiration of a valid sentence, and the States
are under no duty to offer parole to their prisoners. Id., at
7. When, however, a State creates a liberty interest, the
Due Process Clause requires fair procedures for its vindi
cation—and federal courts will review the application of
those constitutionally required procedures. In the context
of parole, we have held that the procedures required are
minimal. In Greenholtz, we found that a prisoner subject
to a parole statute similar to California’s received ade
quate process when he was allowed an opportunity to be
heard and was provided a statement of the reasons why

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5

Per Curiam

parole was denied. 442 U. S., at 16. “The Constitution,”
we held, “does not require more.” Ibid. Cooke and Clay
received at least this amount of process: They were al
lowed to speak at their parole hearings and to contest the
evidence against them, were afforded access to their re
cords in advance, and were notified as to the reasons why
parole was denied. 606 F. 3d, at 1208–1212; App. to Pet.
for Cert. 69a–80a; Cal. Penal Code Ann. §§3041, 3041.5
(West Supp. 2010).
That should have been the beginning and the end of the
federal habeas courts’ inquiry into whether Cooke and
Clay received due process. Instead, however, the Court of
Appeals reviewed the state courts’ decisions on the merits
and concluded that they had unreasonably determined the
facts in light of the evidence. See 606 F. 3d, at 1213–1216;
384 Fed. Appx., at 545–546. Other Ninth Circuit cases
have done the same. See, e.g., Pearson v. Muntz, 606 F. 3d
606, 611 (2010). No opinion of ours supports converting
California’s “some evidence” rule into a substantive fed
eral requirement. The liberty interest at issue here is the
interest in receiving parole when the California standards
for parole have been met, and the minimum procedures
adequate for due-process protection of that interest are
those set forth in Greenholtz.* See Hayward v. Marshall,
——————
* Cooke and Clay argue that the greater protections afforded to the
revocation of good-time credits should apply, citing In re Rosenkrantz,
29 Cal. 4th 616, 657–658, 59 P. 3d 174, 205 (2002), a California Su
preme Court case that refers to our good-time-credits decision in
Superintendent, Mass. Correctional Institution at Walpole v. Hill, 472
U. S. 445 (1985). But Rosenkrantz did not purport to equate Califor
nia’s parole system with good-time credits. It cites Hill twice. The first
citation merely observes that the court relied upon Hill in an earlier
opinion adopting the “some evidence” test for decisions to revoke parole
that had previously been granted. 29 Cal. 4th, at 656, 59 P. 3d, at 204.
The second citation, which does occur in the part of the opinion discuss
ing the need for “some evidence” review in parole decisions, simply
borrows language from Hill to support the proposition that “ ‘[r]equiring

66

6

SWARTHOUT v. COOKE
Per Curiam

603 F. 3d 546, 559 (CA9 2010) (en banc). Greenholtz did
not inquire into whether the constitutionally requisite
procedures provided by Nebraska produced the result that
the evidence required; a fortiori it is no federal concern
here whether California’s “some evidence” rule of judicial
review (a procedure beyond what the Constitution de
mands) was correctly applied.
It will not do to pronounce California’s “some evidence”
rule to be “a component” of the liberty interest, 606 F. 3d,
at 1213. Such reasoning would subject to federal-court
merits review the application of all state-prescribed proce
dures in cases involving liberty or property interests,
including (of course) those in criminal prosecutions. That
has never been the law. To the contrary, we have long
recognized that “a ‘mere error of state law’ is not a denial
of due process.” Engle v. Isaac, 456 U. S. 107, 121, n. 21
(1982); see also Estelle, 502 U. S., at 67–68. Because the
only federal right at issue is procedural, the relevant
inquiry is what process Cooke and Clay received, not
whether the state court decided the case correctly.
The Ninth Circuit’s questionable finding that there was
no evidence in the record supporting the parole denials is
irrelevant unless there is a federal right at stake, as
§2254(a) requires. See id., at 67. The short of the matter
is that the responsibility for assuring that the constitu
tionally adequate procedures governing California’s parole
system are properly applied rests with California courts,
and is no part of the Ninth Circuit’s business.
The petition for a writ of certiorari and respondents’
——————
a modicum of evidence’ ” can “ ‘help to prevent arbitrary deprivations.’ ”
29 Cal. 4th, at 658, 59 P. 3d, at 205 (quoting Hill, 472 U. S., at 455). In
any event, the question of which due process requirements apply is one
of federal law, not California law; and neither of these citations comes
close to addressing that question. Any doubt on that score is resolved
by a subsequent footnote stating that the court’s decision is premised
only on state law. 29 Cal. 4th, at 658, n. 12, 59 P. 3d, at 205, n. 12.

67

Cite as: 562 U. S. ____ (2011)

7

Per Curiam

motions for leave to proceed in forma pauperis are
granted.
The judgments below are
Reversed.

68

Cite as: 562 U. S. ____ (2011)

1

GINSBURG, J., concurring

SUPREME COURT OF THE UNITED STATES
GARY SWARTHOUT, WARDEN v. DAMON COOKE 

MATTHEW CATE, SECRETARY, CALIFORNIA 

DEPARTMENT OF CORRECTIONS AND 

REHABILITATION v. ELIJAH CLAY 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 10–333.

Decided January 24, 2011 


JUSTICE GINSBURG, concurring.
In Superintendent, Mass. Correctional Institution at
Walpole v. Hill, 472 U. S. 445, 455 (1985), this Court held
that, to comply with due process, revocation of a prisoner’s
good time credits must be supported by “some evidence.”
If California law entitled prisoners to parole upon satisfac
tion of specified criteria, then Hill would be closely in
point. See In re Rosenkrantz, 29 Cal. 4th 616, 657–658, 59
P. 3d 174, 205 (2002). The Ninth Circuit, however, has
determined that for California’s parole system, as for
Nebraska’s, Greenholtz v. Inmates of Neb. Penal and
Correctional Complex, 442 U. S. 1 (1979), is the controlling
precedent. Hayward v. Marshall, 603 F. 3d 546, 559–561
(2010) (en banc)). Given that determination, I agree that
today’s summary disposition is in order.