In re ROY BUTLER Decision: Does it help LIFERs? (BASE TERM CALCULATION)

In re ROY BUTLER  (12/16/13)  --   Case Nos. A139411 & A137273
Alameda County Case No. 91694B

In summary, the BUTLER Court forces the Parole Board to calculate the base term of life prisoners at their Initial Hearings. Thus, the BUTLER case section that will apply to all LIFERs is the Base Term Calculation as ORDERed by the Court. Regardless of whether the LIFER will be found suitable or not, once the LIFER walks out of the Parole Hearing Board room, he will have a Base Term calculation for his specific crime under his specific circumstance, as defined below. If this is a subsequent Parole hearing, s/he will also be provided their Base Term, at that hearing.

The BIG QUESTION: How is the CASE  going to affect the time served by LIFERS?

According to BPH Executive Director Jennifer Shaffer and Chief Legal Counsel Howard Moseley ------ NO CHANGES will occur for the length of time incarcerated.

On the other hand, Attorney Diane Letarte would argue that once the Calculation is done at the Hearing (on the record for possible Appeals) and the BASE TERM has been exceeded,  the Panel (2-3 Commissioners at the Hearing) must articulate the reason for a denial beyond the Base Term in a non-arbitrary fashion. The Panel should be held to the Arbitrary-and-Capricious standard. Any action less than this standard would violate the Due Process of the Law and fail to provide a reasoned explanation for the denial.NOTE: YOPH Youth and Elderly parole hearings do NOT have a base term calculation done at the end of their hearings because if granted Parole, they are immediately release after the 150 days review period, regardless of the base terms.

The News Media links are below: San Francisco, Sacramento,  Los Angeles:

Click here for San Francisco 's version
Click Here for LA 's version
Click Here for Sacramento' s Version

Below is an excerpt of the ORDER. Paragraphs 3, will require the Board of Parole Hearings (BPH), via the Executive Officer Jennifer Shaffer, to announce NEW policies (and/or Directives) that will force the Commissioners to calculate the base term for all LIFER inmates during their hearing regardless of whether they are found suitable. This tern calculation was refused to be done by the Board for many years. It is encouraging to see the changes  in favor of the LIFER population.

========================
IS HEREBY ORDERED that:

1. ...

2. Upon issuance of a decision from this Court in Case No.
X137273, whether favorable or unfavorable to petitioner, the terms of
settlement for Case No. A139411, as described below, will become
effective immediately.

3. The Board shall, at the next publicly noticed Board meeting,
announce a policy of calculating the base term and the adjusted base term
for all life term inmates at the initial parole consideration hearing. The
Board will implement phis policy on faze first day of the calendar month
following the aforementioned meeting.

SB260 YOUTH OFFENDER HEARING to be "kicked off" by BPH on January 2014

After attending the mandatory October 2013 ADA (American with Disabilities Act)  training Seminar for the BPH State appointed LIFER attorneys, several questions were answered as it related to the new up and coming Youth Offender Hearing, among others. Below is a summary of information pulled from several resources, including BPH's Chief Counsel Howard Moseley

SB 260,  creates a new type of parole hearing, known as the Youth Offender Hearing (Penal Code 3051), which will be conducted much like the current LIFER parole hearings. The added BONUS element to be vigorously argued by the Criminal Defense attorney will be the "age" of the offender at the time of the Crime (not the conviction date).

We (Law office of Diane T. Letarte) always argued the Age for specific LIFERS that were young at the time of the comitted offense, but it always seemed to fall on deaf (Commissioners') ears in the past. Now with SB 260 and the new Directives to the Commissioners, basically that the  “hallmarks” of youth (lack of maturity, flawed reasoning skills, susceptible to manipulation) be given “great weight” in suitability deliberations. Furthermore new psychological evaluations will also be given to those covered under the new law, again with “great weight” given to the characteristics of youth when making psychological risk assessments reports. Even if the inmate is not provided a Grant of Parole at the Youth Hearing, the age will still carry "great weight" in the length of time the denial will be (3, 5, 7,10,15 years), but still under Marsy's Law standard.

On the other hand, if the inmate is found Suitable, the inmate will be immediately eligible for parole (release) since they met the "time" criteria for the Youth Offender Hearing to be allowed the Hearing. This means there will be no TERM calculations needed at deliberation time, like the regular LIFER inmates who get found suitable.

Who will be eligible for the Youth Offender Hearing? 

The BPH is currently evaluating all those previously denied prisoners who are eligible for Youth Offender Hearing consideration with a focus towards advancing their next hearing in a timely fashion. The bill does allows for an 18 month implementation window, beginning Jan. 1, 2014, during which time the BPH will identify those whose hearing should be advanced as well as some individuals who may be entitled to an initial hearing (earlier than before) or consideration earlier than anticipated under their original sentence.

A certain amount of time will need to be first served by the inmates as states below:

• DSL: eligible at the 15th year of incarceration 
• ISL:  (Life term)  less than 25 years:      eligible at the 20th year of incarceration
• ISL:  (Life term)  greater than 25 years: eligible at the 25th year of incarceration

In summary,  with the signing of SB 260 there will be many inmates who immediately qualify, for a parole hearing, and others who already qualify for a parole hearing and will now need to be considered in light of the new law. Those inmates that have already went to their Parole Hearing (pre-SB 260) and were denied parole may consider filing a Petition to Advance (PTA) their hearing given the "NEW CIRCUMSTANCES", in their case, the new law.

Given the SB 9 for Juvenile LWOP  passed last year [that were modified to Life with possibility of Parole], they may now also take advantage of the new SB 260 this year and possibly apply for a Youth Offender Hearing.


Contact an experience LIFER Attorney to maneuver though the maze of options now available for the Youth Offender Hearings option, among others.

In re Vicks, In re Morganti pushes BOARD to Automatic review on 3 year Denials

Some helpful statistics: A lion's share (60%) of parole suitability denials are for 3 years. Remembering that since the implementation of Marsy's Law (aka Prop 9) the denials can be for 3, 5, 7, 10, 15 years.

What do you do if you get denied - an inmate can file on their own BPH 1045 form to Petition the BOARD to advance the Hearings earlier than the denied amount of years. Given the new increase in Grant rates - inmates are encouraged to file the PTA, regardless of the New procedures implemented by the BOARD (see below)

In 2012 inmates filed 329 Petition To Advance (PTA) their hearings,  29 were granted and hearings moved forward. In the first half of 2013,  251 PTAs were filed by inmates, 129 have been approved and the hearing advanced. This shows an increase from an 8% grants to 52% grants.

From now on Lifers who receive a 3 year denial of parole will get an automatic review of their hearing and possible chance to advance the next hearing ahead of the 3 years under a new policy put into effect recently by the Board of Parole Hearings (BPH). This process should not prevent inmates from filing the BPH 1045 Petition to Advance (PTA) at any time during the 3 year period. The rule of thumb has been to file the PTA 1/2 into the number of years that you were denied. For example, if you were denied 3 years, file the PTA after 1.5 years - showing all the new "change in circumstances or new information" that would warrant an early Grant of the hearing.

When Marsy’s Law passed in 2008 and expanded the parole denial range from 1 to 5 years up to 3 to 15 years several legal actions were filed seeking to have this provision of Marsy’s invalidated as ex post facto. The most recent and well known case that fought to find a violation of the Ex Post Facto legal principal (with Marsy's Law) was lost at the CA Supreme Court.  In Re Vicks, was decided in April 2013, with the court ruling the increased denial period was not ex post facto. The Court reasoned that there was a "safety valve" by allowing the inmates [with long denial period] to file the BPH 1045 form to request an earlier Parole Hearing, through the PTA process.  In Re Morganti, emphasized that it would be wise of the BOARD to start  review of denials, on its own accord. Hence, the new BPH policy. 

These reviews will be conducted approximately 1-year after the 3-year denial, at the Board of Parole  Hearings (BPH)  headquarters in Sacramento, by Deputy Commissioners, whose primary job will be to review, consider and decide on these potential hearing advancements. The standards seems to remain the same as the current BPH 1045 Petition requirements. If a “change in circumstances or new information” and “after considering views and interests of victims,” there exists a “reasonable likelihood that consideration of public and victim’s safety does not require the additional incarceration,” a hearing date will be advanced.

The decision on whether to advance a hearing or not would therefore depend on different requirements. During the decision process the victims would be allowed to write to the Commissioners to relay their view on the advance hearing. The actual time to schedule the hearing will vary depending if there are Victims' Next of Kin (VNOK) that would need to be NOTIFIED several months ahead of time. 

By the time all the hoops are jumped through and a Hearing date is Advanced -one can expect- the next hearing to be scheduled approximately 18 months from the last hearing. We will see similar time frame delays  to the next scheduled hearings from a Governor reversal of a grant - 18  months.

A big thank you to Vanessa Nelson (LSA, lifersupportalliance@gmail.com) for providing the bulk of the statistics and the information.