"Gray zone justice"
The Guardian
March 27, 2007
By Sasha Abramsky

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Senior fellow Sasha Abramsky considers why "Califonrnia governors reject parole decisions, even when an inmate has been rehabilitated?"

Gray zone justice

Why do California governors reject parole decisions, even when an inmate has been rehabilitated? Bentham and Beccaria would be ashamed.

By Sasha Abramsky
March 27, 2007 9:00 PM

For well over a decade, now, I've written about criminal justice issues in the United States. One of the lessons I've learned is that it's rarely the morally easy situations that define institutions; usually, it's the grey-zone cases and questions that prove the most interesting, that say the most about a society's values.

Let me give a couple examples of what I mean here: A few years back, while conducting interviews in a Supermax prison in California, I walked past the exterior of a cell-block, and the correctional officer escorting me casually stated that we'd just walked past Charles Manson's window. It was one of the more eerie moments of my life, being in such close proximity to such a symbol of pure evil.

Manson's been up for parole many times since his thrill-kill spree nearly forty years ago. He's been rejected each time. Almost certainly, the cult-killer will die in prison. My guess is, the vast majority of people, myself included, would say "good riddance". The nature of Manson's crimes, combined with his ability to gain followers and to convince those followers to go on bloody rampages, makes him a poor candidate for anything approaching "rehabilitation". It's pretty easy to argue that releasing him wouldn't serve the public interest.
Then there's Jerry Elster, a man convicted of second-degree murder and sentenced to 17-years-to-life for a killing he carried out in South Central Los Angeles during a gang-related confrontation with an armed rival when he was nineteen years-old. Elster, who is represented by an attorney friend of mine in San Francisco, is now in his mid-forties; by all accounts he is a model inmate in San Quentin.
He's been in prison 23 years now, hasn't been disciplined for any rules violations for the past 18 years, works in a program called SQUIRES - talking with at-risk teens about the dangers of a life of crime - and has earned two associates degrees while serving his time.

Elster has been up for parole eight times. The last two times, California's parole board recommended he be released - a not insignificant event, given how rarely state parole boards recommend a murderer be set free. According to my attorney friend, seven prison guards wrote recommendation letters on Elster's behalf. San Quentin's psychologist supports Elster's parole application, as does the Los Angeles District Attorney's office.

So why isn't Elster on the outside again, a poster-child for the possibilities of rehabilitation, for the successful functioning of a prison system recently renamed the Department of Corrections and Rehabilitation? The answer is that Governor Schwarzenegger - acting under the rubric of a 1988 citizens' initiative, backed by the victims' rights movement, that gave governors the power to reject parole recommendations for murderers serving life - has decided Elster's original crime was so serious that the public would be at risk were he to be released.

The governor preceding The Terminator, Gray Davis, used this discretionary power to devastating effect, paroling only six lifers during his five years in office, and rejecting dozens of other recommendations. The governor before Davis, Pete Wilson, released 123 lifers during his eight-year tenure. Schwarzenegger started off with a more liberal policy, releasing over 100 lifers in his first two years as governor; then, as his re-election campaign kicked in, he slowed down. In 2006, he released only 23 lifers. This year, to date, he's signed off on parole for only four.

Well, maybe that's just because lifers by definition are terrible people who've done terrible things and who would pose a terrible risk if released? True ... but, since we're in the moral grey-zone here, only up to a point. There are over 22,000 inmates in California serving sentences that range from a minimum number of years through to life. (In Elster's case, the minimum was 17, the maximum was life.
What this means is that, after 17 years, Elster could start applying for parole.) Not all of them are murderers, but a good number are. Many of these men and women were convicted of crimes when they were teenagers. Oftentimes, the crimes were related to involvement with gangs, or precipitated by addiction to drugs: Now middle-aged, there's at least the possibility these criminals have truly changed. Others are battered wives, convicted of second degree murder of their abusive husbands, but unlikely to be a general threat upon release after decades behind bars.

Clearly, though, there's unlikely to be much political gain for Schwarzenegger, or anyone else, in agreeing to let these people be paroled. But there is risk: support the parole board's recommendation in a case like Elster's, and if all goes well no one will ever hear any more about it. On the other hand, if things go horribly wrong - as has occurred periodically in high-profile parole cases around the country - and Elster commits another murderous act, all of the blame would fall in Schwarzenegger's lap.

Given this equation, it's not terribly surprising that governors tend to opt for the safe route, and use the powers given them by the 1988 proposition to deny parole on the grounds that the original crime by definition makes the would-be-parolee a societal menace. The problem is that creates a Catch-22: Courts are sentencing people to terms ranging from x years through to life, on the assumption parole boards will step in and determine whether or not a person is rehabilitated. But politicians are trumping the process by saying the original crime prevents the possibility of successful rehabilitation. Thus, in practice, all of these sentences are now becoming life-without-the-possibility-of-parole.

Which brings me back to the issue of values: The current nexus of soundbite politics and criminal justice policy largely short-circuits the prison system's historic commitment to rehabilitation, one that goes back to 18th and 19th century writings of theorists like Cesare Beccaria and Jeremy Bentham. Nobody wants to take risks with public safety; but when risk is defined so broadly that whole categories of prisoners, by virtue of their original crime, become ineligible for parole, the tenets underlying the entire system are undermined.