California Clemency Needs An Overhaul: An Old Regulation Can Enhance Fairness
by Susan E. Lawrence, M.D., Esq.
Thomas is 69 years old and has been in prison over forty years. An insulin-dependent diabetic, he miraculously survived a bout with COVID-19, at least for the time being. With the lack of certainty about the development of immunity and his continued exposure to potentially infected people in prison, it is unclear whether Thomas could once again fall ill from the virus.
Thomas is serving a sentence of life without parole, or LWOP. Over the decades since his crime, he has demonstrated sincere remorse and has become a deeply religious man. He has never been involved in violence, gangs, or drugs, has a near-spotless disciplinary record, and served as a hospice volunteer caring for terminally ill prisoners. Yet, short of mercy from the governor, Thomas will certainly die in prison.
When Thomas was sentenced in the late 70’s, California Department of Corrections regulation 15 CCR 2817 mandated an “LWOP Board of Prison Terms Review” for all LWOP prisoners twelve years into their sentence and every three years thereafter. While not the same as a parole hearing (at which the parole board commissioners are empowered to make a decision regarding suitability for release), at an LWOP review, parole board investigators evaluated the prisoner’s progress during incarceration in order to make a merit-based recommendation to the governor regarding consideration for commutation of sentence. The LWOP Review was a standard and routine part of the parole process, and gave prisoners hope they would be considered in some way for release.
In 1991, Thomas had one of these reviews. This decent and honest man told parole board investigators he did not feel he had been in prison long enough to atone for his crime, and requested any recommendation for clemency be delayed until his next review date in three years.
Thomas’s next review never took place. Regulation 15 CCR 2817 was repealed in 1993, closing the door to hope for Thomas and thousands like him. It wasn’t until 2017 that Governor Brown began granting commutations to a very small number of people serving LWOP, allowing them the opportunity to go to the parole board to be considered for release. Fortunately, Governor Newsom has continued this practice.
Currently, the process of seeking a commutation of sentence depends on the submission of an application by each individual prisoner rather than a routine evaluation of all LWOP prisoners at set intervals by parole board investigators. While executive clemency is discretionary, this individualized process allows for lack of consistency and fairness in making commutation decisions. Prisoners who cannot afford legal help and who lack the ability to write well and put together a compelling document on their own to highlight their rehabilitation and accomplishments are at a distinct disadvantage. On the other hand, prisoners who have well-connected and well-to-do family and friends who are able to leverage celebrity support and intervention are more likely to be chosen.
A review of Governor Newsom’s commutation grants reveals a distinct preference for prisoners housed on the Progressive Programming Facility (PPF) at California State Prison-Los Angeles County (CSP-LAC) and who participate in the Paws for Life dog training program. In 2019, Governor Newsom commuted the sentences of 23 people, 6 of whom were serving LWOP. Fifty percent (3 of 6) of the LWOP-sentenced prisoners lived on the PPF, as did 30% (7 of 23) of all prisoners whose sentences were commuted. Nearly 20% of all prisoners commuted (4 of 23) both resided on the PPF and participated in Paws for Life.
This pattern continued into 2020. In March, Governor Newsom commuted 21 sentences, 9 of which were for people serving LWOP. Nearly 45% (4 of 9) of the LWOP prisoners were housed on the PPF, and one non-LWOP prisoner on the PPF also participated in the dog program. Similarly in June, close to 40% (3 of 8) of the LWOP prisoners chosen resided on the PPF, with one of the three involved with the dog program.
It is astonishing and hardly coincidental to have such a high percentage of those granted commutation coming from one facility in one prison, when there are thirty-five prisons throughout the California system, each with multiple facilities.
As a long-time devoted advocate of the PPF (originally called the Honor Program), I should probably be the last person raising these concerns. When I first came to CSP-LAC in 2004 as a volunteer, I was deeply impressed by the program. I considered it an extraordinary example of a healing community at its finest, promoting significant core values of honor, decency, and integrity, and located within the unlikeliest of places, a maximum-security prison. Many prison staff disliked the program because, as one put it, “I don’t want the word “honor” to be applied to prisoners.” In 2006, unsympathetic CSP-LAC administrators announced the Honor Program was to be shut down. Working side by side with the prisoner leadership, I gained the attention of Senate Majority Leader Gloria Romero who in 2007 introduced legislation (SB 299) to expand Honor Programs throughout the prison system. Despite gaining wide bipartisan support, the bill was ultimately vetoed by Governor Schwarzenegger; but the attention it brought to the program provided some protection for its survival in the short term.
Nevertheless, the Honor Program remained under frequent attack and at risk for shutdown. For the next decade, I worked tirelessly and dedicated tremendous organizational and personal resources to save the program. In 2012, the CDCR published its strategic plan known as the Blueprint, under which the Honor Program was slated to end and its current residents transferred to prisons throughout the state. Once again in partnership with the prisoner leadership, I was able to successfully advocate with CDCR Secretary Cate to save the program, although the name was changed to the Progressive Programming Facility (PPF).
I was delighted when Paws for Life came to the PPF in 2014. I was happy to support this wonderful program by connecting program staff with a close friend who was Medical Director at a major Los Angeles animal hospital, to arrange for free and low cost veterinary care for the dogs.
Despite my significant past support, I do not believe the Honor Program/PPF and Paws for Life are the only paths to rehabilitation, nor should they figure so prominently in Governor Newsom’s LWOP commutation grants to the near-exclusion of other worthy applicants. I have met and corresponded with many people serving LWOP in prisons across the state who have worked hard to rehabilitate themselves and are deserving of mercy. Since not all of the more than 5,100 people serving LWOP can be housed on the PPF (one 600-man yard) and participate in Paws for Life, this conspicuous partiality seems manifestly unfair and raises questions as to its underlying cause.
At the same time Thomas was suffering from COVID-19, a July 3 article in The Guardian reported California Treasurer Fiona Ma had provided Governor Newsom with a list of names of 25 LWOP-sentenced women to be considered for commutation. It was distressing to see an elected official be so overtly biased in her recommendation solely along gender lines when there are so many men, like Thomas, who are also deserving of mercy.
LWOP is wrong and inhumane. All prisoners should have the opportunity to demonstrate their rehabilitation and fitness for release to a parole board, although there will be some who are still a danger to society and should remain in prison. No one, however, should be denied the chance.
Because of California’s complicated history regarding LWOP (which would require a voter initiative to end the sentence rather than the simple passage of a new law), commutations are currently the only way for most people serving this sentence to have a chance to go to the parole board. That is all the more reason to make this process fairer, more transparent, and based solely on merit.
While the reinstitution of Regulation 15 CCR 2817 may not end all forms of favoritism in the commutation process, it will go a long way towards ensuring all LWOP prisoners have a fair and impartial evaluation with a view towards recommendation for clemency by the Board of Parole Hearings. I strongly urge Kathleen Allison, newly appointed California Department of Corrections and Rehabilitation Secretary, to immediately reactivate this regulation, which can be done simply with a stroke of her pen.