The Real Cost of Prisons Weblog

Those numbers pale compared with the thousands of lifers eligible for release dates whose parole applications have been rejected – 99.5 percent of them last year. But the state believes some judges are overstepping their authority, and the state attorney general's office has appealed three cases, which the state Supreme Court agreed to hear.

Senior Assistant Attorney General Julie Garland contends that in the past two years some lower courts have infringed on the executive authority of the governor and the board to decide which lifers get out and when, with the judges deciding on their own whether life-term inmates no longer are a danger to society and can be released.

"Some of these recent cases have opened the door, and attorneys might feel that by going to court, they might have another bite at the apple," Garland said.

At issue in the cases under appeal is the "standard of review" the state Supreme Court established in 2002 in the so-called Rosenkrantz case for lifers seeking parole. The dispute doesn't apply to the 3,500-plus prisoners sentenced to life without possibility of parole.

State law says the parole board "shall normally set" a release date for lifers who have a possibility of parole – more than 29,000 of whom are now behind bars – unless the "timing" or "gravity" of the current or past convictions "is such that consideration of the public safety requires a more lengthy period of incarceration."

The court's decision in the Rosenkrantz case set a precedent for lifers to seek judicial review of their parole decisions but restricted it to questioning whether there was "some evidence" to support the board or the governor's findings. It also established that the facts of the original crime were sufficient for a judge to make the call.

But in the case of convicted murderer Sandra Davis Lawrence, the 2nd District Court of Appeal in Los Angeles ruled earlier this year that the "ultimate test" of the law is whether the evidence could determine if the offender posed an unreasonable safety risk. The appellate panel ruled the evidence fell short and ordered Lawrence released. Her case is one of the three being appealed.

Garland characterized the courts' rulings on inmates' "suitability" for release as "a pretty big shift" from their established role of reviewing only the evidence on which the governor and the board based their decisions.

But law professor Michael Brennan, of the University of Southern California's Post-Conviction Justice Project and also one of Lawrence's lawyers, said the inmates filing writs have usually served more than 20 years, have compiled exemplary disciplinary records and are entitled by law to parole.

"They have done everything possible inside the institution to rehabilitate themselves," Brennan said. "They have secure parole plans. They have a place to go and live. They have plans on how they are going to support themselves."

Before Lawrence turned to the courts, she had served 25 years in prison on a first-degree murder conviction for shooting and stabbing her lover's wife to death. Now 60, she earned a master's degree in business administration while in prison. Court papers filed on her behalf described her as a model prisoner.

The parole board granted Lawrence a release date, but Schwarzenegger reversed the decision last year, saying the callousness of her crime suggested she still posed an unreasonable risk. The appellate court disagreed with the governor and ordered her released in May.