Parole and due process

Leslie Van Houten - Patricia Krenwinkel - Susan Atkins

I imagine this also had something to due with the fact that one prisoner had a wealthy, well-connected family which could afford good lawyers:

Last week, on opposite coasts of the United States, two very different and controversial parole and release decisions were made. In one case, a grey-haired woman was denied parole after nearly fifty years in prison. In another, a sixty-year-old man was released. Both have been supervised for decades and both have lived under the scrutiny of the public and media spotlight since the day they committed their crimes.

The cases, however, demonstrate a key inequity in the criminal justice system as it exists. Disparities in sentencing, length of time in prison, and parole requirements and release decisions across the various jurisdictions in the U.S. provide significant fodder for legal scholars and policy makers alike.

On July 23, 2016, California Gov. Jerry Brown denied parole to Leslie Van Houten. A former so-called Manson family member, Van Houten had been recommended for parole by the California Board of Parole Hearings. Originally sentenced to death, Van Houten has been imprisoned since her conviction in 1971.

Though she has been described as a model inmate who works with other prisoners and has earned a college degree during her decades in prison, Gov. Brown issued Van Houten her 20th parole denial. He declared that she remains an “unreasonable risk” to society. Prior to the governor overruling the board recommendation, the Los Angeles district attorney turned over 140,000 signatures petitioning for Van Houten’s continued confinement.

Across the country, a U.S. District Court judge in the District of Columbia ordered that John W. Hinckley, Jr. be released from a psychiatric hospital where he has been held for 35 years. Hinckley, now 61, no longer poses a threat to himself or others, according to District Judge Paul L. Friedman – despite the attempted assassination of President Reagan in 1981.

The Justice Department has consistently opposed Hinckley’s release and any greater freedoms and is reviewing the District Court’s ruling. The 103-page opinion of the court cites Hinckley’s extensive treatment and found “by a preponderance of the evidence that Mr. Hinckley presents no danger to himself or others.”

Two cases. Two horrendous crimes. Two very different outcomes.

In Van Houten’s case, it would appear that public opinion – and the signatures of 140,000 unrelated people with little factual knowledge – influenced Gov. Jerry Brown. In the presidential assassin’s, a judge – the scienter and fact-finder – made a ruling based on evidence. In many states and jurisdictions where indeterminate sentences are imposed, outcomes like these demonstrate how due process and procedural questions plague the parole process.

According to the California Department of Correction and Rehabilitation website, decisions to grant paroles are subject to review as part of a check and balance system to ensure public safety. The law includes review to determine if there are errors of law or fact, and grants the governor discretionary review of the ultimate decision. California’s penal code also allows any public comment on parole for any prisoner.

In Van Houten’s case, a parole board would have reviewed many of the same factors that a judge reviewed in Hinckley’s case. It would have examined counseling and psychology reports; behavior and disciplinary reports; vocational and educational accomplishments of the prisoner; involvement in self-help and therapy; and parole plans – where the released prisoner will live, work, and how she would be supervised.

For the California board to recommend parole, most of the factors evaluated must have been positive. Similarly, in Hinckley’s release, a judge examined the criteria and confinement history along with release plans, and found them to be favorable.

The problem with indeterminate sentences is that while there are rules and regulations, there are no real rules. Over 100 years ago, in Ughbanks v. Armstrong, the U.S. Supreme Court held that there is no constitutional right to parole. Though a state parole law may provide for the possibility of parole, there are additional legal considerations about the actual creation of a liberty interest with constitutional protection. Throughout the past century, the Supreme Court – along with many state and federal courts – has grappled with various challenges and questions surrounding discretionary aspects of parole, liberty interests, and due process.

Defense Attorney Nicholas Braswell commented, “The Van Houten and Hinckley cases demonstrate how prisoners, agencies, courts, and executive offices struggle with the issue of parole where a minimum sentence is met, but release is discretionary. The driving legal concept has always been that parole, as a privilege, is a step in the rehabilitative process and thus beyond the true reach of due process in a criminal proceeding.”

The two cases will likely be argued and discussed in legal seminars, law schools, and unfortunately, op-ed columns over the course of the coming months. Prisoners’ due process rights vis-à-vis parole systems will again be questioned. However, it is likely that no one will be contemplating these questions more than an old-woman in a California prison as she watches the news about a would-be presidential assassin about to enjoy the most freedom he has had in 35 years.