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Federal Sentencing Reporter - Insight Into California's Life Sentences, 2013

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Insight into California’s Life Sentences

I. Introduction

Although the unique characteristics of most ‘‘rehabilitative’’
systems of criminal punishment vary greatly, a central
component is often an indeterminate sentence with the
possibility of parole. In California, these decisions are made
by twelve governor-appointed commissioners of the Board
of Parole Hearings and by the Governor himself. With
roughly 32,000 prisoners sentenced to life with the
possibility of parole (i.e., 7-, 15- or 25-to-life), and another
3,200 prisoners sentenced to life without the possibility of
parole, California has a considerable lead over all other
states in issuing life sentences.
Life sentences in this state date back to 1872, when the
sentence was for ‘‘natural life’’ and did not include the
possibility of parole. By 1893, some prisoners could seek
parole from a life sentence, but convicted murderers could
not do so until 1901. By 1917, the Indeterminate Sentencing
Law was introduced, and it remained in effect until 1976.
After that, most sentences in California were converted to
determinate terms, but several crimes continue to carry life
sentences. These crimes include murder, attempted
murder, kidnapping, aggravated mayhem, torture, and
certain sex offenses. There are also roughly 9,000 prisoners serving life sentences as a result of 1994’s ‘‘Three
Strikes’’ initiative.1 More than a third of these prisoners
may currently be eligible for sentence modification under
a November 2012 initiative (Proposition 36) because their
third ‘‘strike’’ offenses involved neither serious nor violent
California currently has more than three times as many
lifers as the state with the next highest total (New York).3
Indeed, there are 37 states that have fewer total prisoners in
their individual systems than there are lifers in California’s
prisons.4 Roughly 20 percent of California’s prisoners are
currently serving life sentences, an increase from only
8 percent in 1990.5 As the nation’s leader in handing out
life sentences, California provides a useful model for
identifying and understanding some of the unique
challenges inherent in the administration of indeterminate
II. The Meaning of ‘‘Life’’

In the earliest days of California’s life sentences, a defendant could be sentenced to ‘‘natural life’’ with no chance of
parole for committing a handful of nonviolent crimes. In
1928, the California Supreme Court upheld a natural life
sentence for Evelyn Rosencrantz for writing four bad

checks.6 In later years, life sentences typically included the
possibility of parole even for those convicted of murder.
Since then, there has been a dramatic increase in the length
of time prisoners actually serve before their release. Decades ago, lifers served an average of 5 years for second
degree murder and 14 years for first degree murder. Nowadays, the difference is negligible for categories of murder:
lifers serve about 24 years for second degree murder and
27 years for first degree murder. In a current study,
Stanford’s Criminal Justice Center found no statistically
significant difference in the parole prospects at each hearing for those convicted of first degree versus second degree
murder.7 A recent study by California’s Department of
Corrections and Rehabilitation also confirmed a grim reality: life in prison too often means death in prison. Between
2000 and 2010, 674 lifers convicted of murder were
released on parole; however, 775 such prisoners died in
custody during the same period.8

Founder and
Managing Attorney,
UnCommon Law

III. Current Statutory and Regulatory Framework

California Penal Code § 3041(a) provides that the Board
‘‘shall normally set a parole release date’’ the first time
a lifer appears for parole consideration, which occurs one
year prior to serving either 7, 15, or 25 years of his or her
sentence.9 The mandatory language in the statute is what
creates a constitutionally protected liberty interest in
parole.10 However, the mandatory language in subdivision
(a) is qualified by subdivision (b), which directs the Board to
deny parole if it ‘‘determines that the gravity of the current
convicted offense or offenses, or the timing and gravity of
current or past convicted offense or offenses, is such that
consideration of the public safety requires a more lengthy
period of incarceration for this individual, and that a parole
date, therefore, cannot be fixed at this meeting.’’11 The
Board’s determination under subdivision (b) is guided by
a series of administrative regulations requiring the consideration of factors, including the nature and circumstances of the commitment offense, the prisoner’s prior
record, his or her institutional behavior, and his or her past
and present mental state relative to the crime, including
expressions of remorse and understanding of the nature
and magnitude of the offense.12
Since 1988, California’s Governor has had the final
word on whether or not convicted murderers could be
released on parole, and the Governor can remand to the
Board those parole decisions not involving murderers.13
The Governor may block parole if, after considering the

Federal Sentencing Reporter, Vol. 25, No. 4, pp. 1–5, ISSN 1053-9867, electronic ISSN 1533-8363.
© 2013 Vera Institute of Justice. All rights reserved. Please direct requests for permission to photocopy
or reproduce article content through the University of California Press’s Rights and Permissions website, DOI: 10.1525/fsr.2013.25.4.1.


• VOL. 25, NO. 4

• APRIL 2013


same record that was before the Board, the Governor
believes that concerns for public safety militate against
approving the parole grant. Governor Wilson used this veto
sparingly, Governor Davis vetoed nearly every parole grant,
and Governor Schwarzenegger blocked roughly 80 percent.
Current Governor Jerry Brown is reversing roughly
20 percent of the Board’s parole grants.14
IV. State Courts Provide Limited Review

In most states utilizing an indeterminate system, release
decisions are completely discretionary and therefore virtually
unreviewable in any court. After all, an individual has no
federal constitutional right to release on parole unless the
state’s statutory scheme creates one by using restrictive
language to guide the parole board’s decisions.15 California’s statutory scheme contains such language and therefore creates a constitutionally protected liberty interest. Yet
even here, years of federal judicial opinions vindicating the
rights of California lifers were recently wiped away in
a brief per curiam opinion from the U.S. Supreme Court in
January 2011.16 There, the Court declared that federal due
process protections afforded to California lifers are limited
to (1) notice of an upcoming hearing, (2) an opportunity to
be heard, and (3) a statement of the reasons parole is
denied.17 The Court thus eliminated the standard of judicial
review that asked whether the parole board’s decisions were
actually supported by any evidence.
Despite the statutory mandate that parole ‘‘shall normally’’ be granted the first time a California lifer appears for
parole consideration, release is actually granted in less than
1 percent of initial hearings and roughly 18 percent of the
time overall. This latter figure actually represents a dramatic increase from only 1–2 percent just a few years ago,
mostly due to increased judicial oversight. That is, even
though federal courts are off limits to California lifers,
prisoners have prevailed in dozens (if not hundreds) of state
court cases over the past thirteen years, rulings that have
directly impacted the Board’s and Governor’s practices.
A recent report indicated that California courts reversed
106 out of 144 (74 percent) gubernatorial decisions blocking parole release in 2011.18 A prisoner appearing before
the parole board now has a significantly greater chance of
being granted parole than he or she did just a few years ago,
even if an 18 percent rate is a far cry from the statutory
command that parole ‘‘shall normally’’ be granted.
The modern era of California parole law began roughly
thirteen years ago. On April 27, 2000, the Court of Appeal
for the Second Appellate District (in Los Angeles) decided
In re Rosenkrantz, 80 Cal. App. 4th 409 (2000), which
marked the first time in a very long time that a court was
willing to strike down the Board’s parole decision for
violating due process. The Court ordered the Board to give
the prisoner a new hearing, which resulted in a parole
grant. The Governor then reversed that parole grant, which
led to more significant litigation.
On December 16, 2002, the California Supreme Court
decided In re Rosenkrantz, 29 Cal. 4th 616 (2002), and



• VOL. 25, NO. 4

rejected the Governor’s argument that the law did not
permit judicial review of parole decisions. Instead, the
Court adopted the highly deferential ‘‘some evidence’’
standard of review, which had previously been applied only
to hearings at which the Board considered rescinding
a previously granted parole date.19 The Court also held that
the Board or Governor can rely solely on the historical
circumstances of a prisoner’s crime to deny parole as long
as some aspects of the crime might be characterized under
the Board’s regulations as ‘‘especially heinous, atrocious or
cruel.’’ Incidentally, by the time this case was decided, the
Board had already been describing every crime as
‘‘especially heinous, atrocious or cruel,’’20 so this seemed to
put a stamp of approval on that practice.
Rosenkrantz touched off a battle among lower courts
throughout the state. Some courts interpreted the opinion
to say that as long as the Board or Governor could point to
any evidence in the record that might support their factual
findings (for example, that the prisoner had an unstable
childhood or that the prisoner’s actions involved some
conduct that was more than necessary to complete the
crime), then the parole decision had to stand. Other courts
opined that such a strict view could prevent many lifers
from ever being released because the parole decisions were
being based on historical factors that would never change.
The latter view ultimately prevailed and gave rise to two
California Supreme Court cases that set the stage for what
currently happens in parole hearings and how courts review
those proceedings.
On August 21, 2008, the Court decided In re Lawrence,
44 Cal. 4th 1181 (2008), and tried to make clear that the
Board and the Governor could not continue denying prisoners parole solely because their crimes could be considered
‘‘especially heinous, atrocious or cruel.’’ Instead, the Court
held, there had to be some current evidence to show that the
prisoner remains dangerous.21 In other words, prisoners
who had strong records of rehabilitation and who demonstrated that they could safely be released must be granted
parole even if their crimes were really bad. With this decision, Lawrence seemed to signal an end to the practice of
denying almost everyone parole.
Unfortunately, in the other case decided the same day as
Lawrence, the Court held that the Board or Governor may
still rely on a prisoner’s original crime if, at the time of the
parole hearing, there is evidence that the prisoner somehow
lacks an understanding of the factors that contributed to the
crime.22 Relying on Shaputis, the Board and Governor have
continued denying prisoners parole most of the time;
however, in addition to finding that every crime was especially bad, they also find that nearly all prisoners lack
‘‘insight’’ into their crimes and that is why they remain
V. Parole Board’s Focus Shifts to Insight

Beginning around 2006, the Board developed a new protocol in which its own team of psychologists evaluates lifers,
assessing their insight and remorse and predicting their

• APRIL 2013

risk of future violence. The Board’s commissioners then
use these reports as a primary basis for their parole decisions. Critics complained that the Board made this move
solely to insulate its decisions from judicial review, that the
Board made this change immediately after admitting that
psychologists are incapable of assessing a prisoner’s insight
or remorse, and that the risk assessment tools the Board’s
psychologists utilize rely too heavily on unchanging historical factors that produce elevated predictions of
Records confirm that the Board now uses its psychologists and their controversial assessments to deny prisoners
parole for lacking insight most of the time. In the year after
Shaputis I was decided in 2008, a ‘‘lack of insight’’ was cited
in twice as many appellate opinions as had been the case in
all of the 31 years before Shaputis I. Similarly, the Governor
cited a lack of insight in only 12 percent of his decisions to
block parole in the year preceding Shaputis I, but he did so
in a whopping 78 percent of his decisions in the year after
Shaputis I. Overall, the Governor cited the Board’s psychological evaluations in nearly 90 percent of his decisions to
block parole between 2009 and 2011.
It bears noting that the term ‘‘insight’’ never actually
appears in the Board’s guidelines for determining parole
suitability. However, courts have accepted the presence or
absence of insight as a relevant factor within the Board’s
authority to consider the prisoner’s ‘‘past and present attitude toward the crime,’’ the ‘‘presence of remorse,’’ and
indications that the prisoner ‘‘understands the nature and
magnitude of the offense.’’23 Indeed, the California
Supreme Court has recognized insight as ‘‘a significant
factor in determining whether there is a ‘rational nexus’
between the inmate’s dangerous past behavior and the
threat the inmate currently poses to public safety.’’24
Nevertheless, at least one Associate Justice on the
California Supreme Court appreciates the potential for
abuse inherent in the Board’s increasing reliance on
a claimed lack of insight to deny parole, fearing it may
have become ‘‘a new talisman’’ to protect the Board’s
decisions.25 Lower courts have shared this concern,
rejecting the Board’s and Governor’s decisions denying
parole when their ‘‘lack of insight’’ findings were based on
outdated information that had been superseded by more
recent relevant evidence.26
Courts have also held that the Board cannot properly
claim a lack of insight simply because the prisoner’s version
of the crime is not identical to the facts as the Board
understands them, particularly where the prisoner’s version is plausible.27 Also, the relative weakness of a prisoner’s insight is insufficient by itself to support the denial of
parole if the prisoner otherwise accepts responsibility and
shows remorse.28 Indeed, even a total lack of insight is
insufficient unless it reflects a ‘‘material deficiency in [the
prisoner’s] understanding and acceptance of responsibility
for the crime.’’29 Nevertheless, the presence or absence of
insight remains a central focus of the parole board’s inquiry
during its hearings.

Of course, not all judicial opinions on ‘‘insight’’ favor
prisoners. In fact, after Richard Shaputis lost his first case
in the California Supreme Court on ‘‘insight’’ grounds, he
(like many other lifers at the time) tried his best to provide
positive evidence of his insight for his next hearing. He
attempted to neutralize the Board’s negative assessments of
his risk by refusing to meet with the state’s psychologist
and by declining to speak to the Board about his crime.
Instead, he offered his own written statement about his
insight, as well as a written statement by a psychologist he
hired, but he refused to discuss those documents with the
Board during his parole hearing. The California Supreme
Court acknowledged a prisoner’s right to limit his participation in the parole consideration process; however, the
Court opined that such a ‘‘choice cannot restrict the scope
of the Board’s review of the evidence.’’30 Ultimately, the
Court held that the Board could look beyond the prisoner’s
most recent evidence of his insight and instead rely on prior
reports and statements to determine his state of mind in
considering his suitability for parole.31
VI. Stanford’s Preliminary Findings

The Stanford Criminal Justice Center has released some
preliminary findings regarding, among other things, the
length of time lifers typically serve prior to release and some
of the factors that tend to be predictive of whether or not
a prisoner appearing before the Board will be granted
parole.32 Among the factors found to correlate with the
likelihood of being granted parole were prison location,
disciplinary record, psychological evaluations (and their
risk predictions), and treatment for drug or alcohol abuse.33
As to this last factor, the study found that lifers who had
successfully undergone treatment for drug or alcohol abuse
while in prison were more likely to be granted parole than
lifers who never had drug or alcohol problems to begin
with.34 The study also found that the presence of crime
victims or their representatives in parole hearings cut
prisoners’ parole chances in half.35
And some factors, surprisingly, did not correlate with
a prisoner’s parole prospects: the prisoner’s current age, his
or her prior criminal record, whether or not the prisoner
was the principal actor in the crime (i.e., shooter vs.
nonshooter), the number of victims in the crime, and the
category of crime (with the caveat that those convicted of
attempted murder fared much worse).36 Perhaps most
notable among Stanford’s preliminary findings was the
observation that only 5 out of the 860 convicted murderers
released on parole since 1995 had been sent back to prison
for new felonies by 2011.37 That amounts to a recidivism
rate of roughly 0.5 percent, which is far below the recidivism rate among determinately sentenced prisoners in
California, which hovers above 60 percent.
VII. Some Too Young to Die in Prison

Several other recent developments in the world of life
sentences deserve attention here because they provide further evidence that criminal justice policies may be trending


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• APRIL 2013


back toward discretionary parole release. For example, on
June 25, 2012, the U.S. Supreme Court held in Miller v.
Alabama, 132 S.Ct. 2455 (2012), that mandatory lifewithout-parole (LWOP) sentences for children who
committed homicide at age 17 or younger are unconstitutional. Such prisoners are now eligible for new sentencing
hearings at which their age and other mitigating factors
must be considered. Nationwide, it is estimated that close to
2,000 juvenile lifers may have their sentences reviewed
under Miller, which could lead to opportunities for parole. It
is unclear how many will have their sentences reduced to
determinate terms without parole consideration because
many states are still figuring out their sentencing alternatives to LWOP; some states are likely looking to California
for guidance.
The Miller decision did not itself appear to require
a change in California’s treatment of juveniles, since
California does not impose a mandatory LWOP on juvenile offenders. Such a sentence is discretionary in California, even for juveniles committing serious offenses.38
But not long after Miller, California Governor Jerry Brown
signed Senate Bill 9 on September 30, 2012, which permits LWOP-sentenced children to petition the court for
review of their cases once they have served at least 15 years,
shown remorse, and worked toward rehabilitation. Upon
such a petition, the trial court has the discretion to reduce
the LWOP sentence to 25-to-life with the possibility of
VIII. Crime Victims Strike Back

Not all trends, however, point toward expanding discretion
in parole release decisions. Some states are also passing
laws enhancing the power of crime victims and their
supporters to delay subsequent parole consideration for
lifers who have previously been found unsuitable for
parole. California is again leading the charge, this time
with the Victim’s Bill of Rights Act of 2008, known as
Marsy’s Law, which ostensibly sought to relieve the hardship victims and survivors experience while revisiting
their crimes at parole hearings. The argument advanced
was that, given California’s low rate of granting parole, it
was an unnecessary hardship for crime victims to relive
these crimes at hearings conducted every year or two when
there was little likelihood the perpetrator would actually be
granted parole.
With Marsy’s Law, California voters eliminated presumptively annual parole hearings and replaced them with
hearings held once every 15 years unless the Board finds clear
and convincing evidence to justify a shorter interval. The
prior law permitted the Board to defer hearings for only
one, two, three, four, or five years; the law now authorizes
deferral lengths of three, five, seven, ten, and fifteen years.
Under the new law, a lifer could be considered for parole at
his or her minimum term of, say, seven years, only to be
found unsuitable for parole and denied any further
consideration for fifteen more years. In March 2013, the
California Supreme Court upheld the constitutionality of



• VOL. 25, NO. 4

Marsy’s Law against a claim that it violates ex post facto
Other states may be following suit. For example,
Oregon’s House Bill 2335 in 2009 replaced the old maximum parole deferral period of two years with a new range
of two to ten years in order to lessen the harm to victims
and their supporters when they relive the trauma of the
crimes committed against them.
IX. Conclusion

The evolution of California’s life sentences may be an
instructive model because it indicates that the administration of such sentences has moved away from ostensibly
objective measures that match the length of confinement
with the gravity of the crime, and now focuses on the
individual prisoner and his or her ability to reform. This is
certainly not a novel approach when it comes to theories of
punishment. However, the approach departs from prior
practice in its increased focus on a prisoner’s understanding of the underlying factors contributing to what he or she
did in the past (i.e., his or her ‘‘insight’’) and whether he or
she has sufficiently participated in self-help and therapeutic
programs in prison to satisfy the subjective judgment of
parole authorities that those historical factors have been
resolved. Unfortunately, given the as-yet undefined middle
ground between abuse of executive discretion on the one
hand, and judicial overreaching on the other, such subjective decision making will continue to be the focus of further
judicial interpretation and legislation before California, or
some other state, can claim a fair balance that ensures
a meaningful opportunity for release when lifers are no
longer dangerous.








Mike Males, Striking Out: California’s ‘‘Three Strikes and You’re
Out’’ Law Has Not Reduced Violent Crime. A 2011 Update,
Center on Criminal and Juvenile Justice (April 2011), at 3.
Three Strikes Reform Act of 2012, amending Cal. Penal Code
§ 667.
The Sentencing Project, State Data: California, available at
Ex parte Rosencrantz, 205 Cal. 534 (1928).
Robert Weisberg, Debbie A. Mukamal, & Jordan D. Segall, Life
in Limbo: An Examination of Parole Release for Prisoners Serving
Life Sentences with the Possibility of Parole in California, Stanford
Criminal Justice Center (September 2011), at 20.
Nancy Mullane, New Data Shows California Lifers More Likely to
Die in Prison than to Get Parole, KALW News (June 16, 2011),
available at
Minus any good conduct time prisoners may earned toward
these minimum terms.
Swarthout v. Cooke, 131 S.Ct. at 861–62; Board of Pardons v.
Allen, 482 U.S. 369, 373–81 (1987).
Cal. Pen. Code, § 3041, subd. (b).
Cal. Code Regs., tit. 15, § 2402, subds. (b), (c) and (d); Cal.
Code Regs., tit. 15, § 2281, subds. (b), (c) and (d).

• APRIL 2013








Proposition 89, November 1988, amending Article V, Section 8
of the California Constitution and enacting Penal Code § 3041.2.
David Siders, Jerry Brown Lets Parole Releases Stand, Sacramento Bee, February 15, 2013.
Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1,
7, 12 (1979); Bd. of Pardons v. Allen, 482 U.S. 369, 377–78
(1987); In re Lawrence, 44 Cal.4th 1181, 1205 (2008).
Swarthout v. Cooke, 131 S.Ct. 859 (2011).
Id. at 862.
Siders, supra note 14.
In re Powell, 45 Cal.3d 894, 904 (1988), citing Superintendent v.
Hill, 472 U.S. 472 U.S. 445, 457 (1985).
One court reviewed nearly 3,000 parole hearing transcripts and
observed that the Board applied its ‘‘exceptionally heinous,
atrocious or cruel’’ label to 100 percent of the crimes. In re
Criscione, Santa Clara County Superior Court, Case Number
71614, Order dated August 30, 2007.
Lawrence, 44 Cal.4th at 1191, 1219–21.
In re Shaputis, 44 Cal.4th 1241 (2008).
Cal. Code Regs., tit. 15, § 2402, subds. (b) and (d)(3); Cal.
Code Regs., tit. 15, § 2281, subds. (b) and (d)(3); see also In re
Shaputis, 53 Cal.4th 192, 218 (2011) (Shaputis II).
Shaputis II, 53 Cal.4th at 218.
Id. at 229–30 (Liu, J., conc.).






Lawrence, 44 Cal.4th at 1223–24; In re Gomez, 190 Cal.App.4th
1291, 1308–9 (2010); In re Twinn, 190 Cal.App.4th 447,
468–69 (2010).
In re Palermo, 171 Cal.App.4th 1096, 1112 (2009); In re
Jackson, 193 Cal.App.4th 1376, 1391 (2011).
In re Roderick, 154 Cal.App.4th 242, 272 (2007); In re Ryner,
196 Cal.App.4th 533, 548–49 (2011).
In re Rodriguez, 193 Cal.App.4th 85, 100 (2011).
Shaputis II, 53 Cal.4th at 211.
Id. at 212.
Weisberg, Mukamal, & Segall, supra note 7, at 20.
Id. at 24–26.
Id. at 24.
Id. at 5, 19.
Id. at 20–21.
Id. at 17.
The Supreme Court in Miller singled out California’s statute as
different from the mandatory schemes struck down by the
Court (see 132 S. Ct. at 2472 n.10), though some appellate
courts have found that Miller nonetheless affects California’s
sentencing system. See, e.g., People v. Moffett, 209 Cal. App.
4th 1465 (2012) (depublished), rev. granted 2013 Cal. LEXIS 2
(Cal., Jan. 3, 2013).
In re Vicks, 56 Cal.4th 274 (2013).


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• APRIL 2013




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