Today, the First District Court of Appeal issued a published opinion (In re Scott, A108894) setting aside the governor's revocation of parole and (at least seemingly) ordering the petitioner's immediate release. He had served 18 years of a 15-year-to-life sentence for a second-degree murder. The full text of the opinion can be found here.
The very interesting legal issue here is whether parole can be denied based on the facts of the crime alone where all other factors (i.e., the factors that a prisoner) can change all support grant of parole. Citing the California Supreme Court decision in Rosencranz, the majority says "yes," but concludes that such a decision requires close scrutiny and that the governor failed to properly considered that factor and other relevant factors. The court points out, quite logically, that since prior history is the only thing a prisoner cannot change, it may be unfair and uncostitutional to look at the facts of the crime in isolation from other factors. All other factors here (as discussed in the opinion) really point towards parole suitability. The court also points out that for the facts of crime to be particularly eggregious, they would have to stand out from the facts minimally necessary to complete the offense. Here, while the petitioner eventually plead to a 2nd-degree murder, the facts might not have actually risen above manslaughter level if the jury considered that charge.
I think the Court found the correct middle ground here. Rosencranz (rightly or wrongly, perhaps more of the latter) still is binding authority for the proposition that facts of crime alone might be sufficient to justify parole. The lingering question from this rule is whether there is any limit to this rule. As Judge Reinhardt correctly observed during oral argument in Irons v. Carey, if there was unlimited authority to deny parole for this reason, a 15-to-life sentence is easily convered into a life in prison sentence. If Scott goes up to the Cal. Supreme Court, this issue will likely come up.
But the Court here did not have to decide that thorny question. Procedural due process required the Board and the Governor to look at all other relevant factors, even if the ultimate decision is based on only one. Since the governor considered only one factor and ignored all favorable evidence pertinent to the other factors, he did not properly consider the evidence.
It will be interesting to see if this case has any bearing on Irons v. Carey. If it stands (for the petitioner's sake, I hope it does), the 9th Circuit can affirm the decision of the district court in Irons to grant habeas relief without ruling constitutionality of AEDPA.
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