Justices Seem Divided on Parole Board Policy

The California Supreme Court on Thursday appeared divided over whether the state parole board was exceeding its authority in routinely declining to set release dates for murderers and other convicted criminals who come before it.

The Board of Prison Terms, whose nine members are appointed by the governor, decides the fate of prisoners whose sentences make them eligible for parole. Over the last 13 years, the board has approved release for less than 5%, and in some years, less than 1%.

The court will decide within 90 days whether the board has for the last 25 years followed improper rules in deciding who deserves parole. If it invalidates the board’s current practice, it could mean earlier parole dates for numerous eligible convicts, attorneys said.

“I don’t know what number this would affect, but we would certainly see more dates set,” said lawyer Kathleen Kahn, whose client was denied parole three times and brought the case now before the court. “We’re calling into question the whole way they do business.”

At least two justices, however, appeared disinclined to reshape the way the board operates. Justice Marvin Baxter suggested that state legislators would have intervened by now if they thought that the board was not abiding by the 1976 law that governs its work.

Baxter noted that in 1999, with a bill focusing on another aspect of board operations, “the Legislature had the opportunity to rein in the board, but chose not to do so.”

That, he argued, “is a pretty strong factor” for the court as it weighs whether to redefine how the parole board does its job.

Other justices, however, seemed troubled by the board’s practices, which result in a denial of parole for most of the about 3,000 eligible convicts who come before it each year.

Specifically, they appeared critical of the board’s conclusion that many inmates with spotless prison records and positive psychological reports do not deserve parole because of the nature of their crimes.

So it was in the case brought by John Dannenberg, a second-degree murder convict at San Quentin State Prison.

Dannenberg, 64, was a wealthy Bay Area engineer when he was sentenced to 15 years to life in prison -- with the possibility of parole -- for killing his wife, Linda, during a fight in their home.

During his 18 years behind bars, Dannenberg has had an unblemished record, and prison psychologists say he is unlikely to commit another violent act. He has no previous criminal history and enjoys strong support from his two children.

The parole board has refused on three occasions to grant Dannenberg his freedom. At a hearing in 1999, board members cited his crime as the primary reason for their denial, and said he needed therapy because he was minimizing his responsibility for the killing.

Dannenberg argued that in rejecting him, parole commissioners violated the penal code section that sets guidelines for their work. The section states that the board “shall normally” set a release date for convicts after they have served minimum terms -- unless the “gravity” of their crimes required a longer term for public safety’s sake.

A Marin County Superior Court judge agreed with Dannenberg, saying that there was no evidence to deny him parole, and ordered the board to re-hear his case and set a date for his release. Subsequent appeals landed the matter before the state high court.

In her argument Thursday, the attorney for the board defended its practice, saying that the law requires the board only to set a parole date if it first determines that an inmate is no longer a threat to public safety.

That position prompted Justices Carlos R. Moreno and Joyce L. Kennard to question why Dannenberg represented a hazard.

“He is 64 years old, has no prior violence, has an exemplary record in prison,” Moreno said. “How is he a continuing danger to society based on this one terrible act?”

Susan Lee, the deputy attorney general arguing the case for the board, responded that the notion of public safety was not limited to the direct threat a former inmate may pose.

“Public safety,” she said, “includes concepts such as deterrence, retribution ... and a fit between crime and punishment.”

Several members of Dannenberg’s family attended Thursday’s court hearing. Among them was his daughter, Nicole. Now 30, she was 10 at the time of her mother’s death -- and witnessed part of the crime.

For years, she has been writing the parole board, asking them to release the father who has been locked up for most of her life. On Thursday, she expressed hope that the justices might “finally fix a system that is terribly broken.”

“Regardless of the circumstances of the crime, the parole board is so corrupt in its practices that it pays no attention to a person’s suitability [for freedom] and just says, ‘Forget it,’ ” she said.

Always a political issue, the question of parole for murderers drew attention under former Gov. Gray Davis, a Democrat, who declared shortly after taking office that he would free no murderers -- no matter the circumstances. (California is one of three states that gives the governor veto power over parole.)

Ultimately, Davis released eight murderers over five years, a rate far below that of his predecessor, Pete Wilson, or successor, Arnold Schwarzenegger, both Republicans.