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Separation of Powers and California Parole
Introduction
In 1997, I wrote a legal argument proposing three constitutional questions of law surrounding the California parole scheme as applied to persons sentenced under the Determinate Sentencing Laws ("DSL"). These were laws first enacted in 1977 through Senate Bill ("SB") 42, entitled the Uniformity in Sentencing Act, an Act which has been continually expanded upon ever since. The three statements questioning the constitutionality of the DSL Parole scheme as written are as follows:
(1) The Superior Court is without constitutional authority to impose "Parole" as a separate sentence. (2) The Legislature is without constitutional authority to enact a separate "Parole" statute for determinant term prisoners who have served their entire sentence. (3) The Executive Branch is without constitutional authority to either grant or revoke "Parole" for determinant term prisoners who have served their entire sentence.
The following argument emphasizes separation of powers violations. It does not contain a detailed argument that a separate and distinct term of parole for DSL prisoners is a violation of the double jeopardy or double punishment doctrines of the state and federal constitutions.
Argument
The term "Parole" has been defined by the United States Supreme Court as "Early Release." That is release from prison before the completion of the sentence on the condition that the prisoner abide by certain rules during the balance of the sentence. Young v. Harper (1997) 520 U.S. 143, 137 L.Ed., 2d 270, 117 S.Ct. 1148; Morrissey V. Brewer (1972) 408 U.S. 471, 33 L.Ed. 2d 484, 92 S.Ct. 2593, 2598. Both state and federal courts have consistently held that "Early Release" is exercised exclusively by the Executive Branch of government, and that parole occurs within the sentence of "actual custody," i.e., "Early Release." The enforcement leverage that supports the parole conditions derives from the authority to return the parolee to prison to serve out the balance of his sentence. Id. 92 S.Ct. at 2599.
Article III, Section 3, of the California Constitution states: "The powers of State government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution."
Therefore, the Legislative and Judicial Branches are without constitutional authority to grant "Parole." Likewise, the Executive Branch is without constitutional authority to either grant or revoke "Parole" for determinant term prisoners who have served their entire "actual custody" sentence. To do so violates the separation of powers doctrine of Article III of the United States Constitution and Article III of the California Constitution.
Once the state gives prisoners good time credits it cannot take them away, whatever the reason. Lynce v. Mathis, (1997) 519 U.S. 433, 117 S.Ct. ____, 137 L.Ed. 2d 63. Good time credits confer a liberty interest on inmates. Wolf v. McDonnell, (1974) 418 U.S. 539, 44 S.Ct. 2963, 41 L.Ed. 2d 935; Gother v. Woods, (9th Cir. 1995) 66 F. 3d 1097. A prisoner's good time credits become vested when he is released from prison. Glouser v. Parrat, (8th Cir. 1979) 605 F.2d 419. Therefore, once a determinant term prisoner is released from prison, he good time and associated credits become vested, and he will have served his entire "actual custody" sentence. No matter what a state chooses to call it: "supervised released" or "early release," it falls squarely under the Morrissey definition of "Parole," Younger v. Harper, 117 S.Ct. 1148, so then, when there is no more time left to be served to be released early from—the prisoner must be discharged.
Prior to the enactment of the Uniformity in Sentencing Act, Senate Bill ("SB") 42, in 1977, commonly referred to as the Determinant Sentencing Law ("DSL"), California parole system fit firmly under the Morrissey definition of the essence of parole, and was considered to be early release, part of the term of imprisonment. However, then the DSL first came into effect, there was no provision for parole. Lobbyist for the Probation and Parole Officers' Union convinced the Legislature to amend the Act and attach a parole period to all DSL sentences.
California's resulting parole system, being derived more from interest in job security than public safety, is ill conceived, ambiguous, constitutionally deficient when applied to DSL prisoners. This is because parole falls after the prisoner has completely served his "actual custody" sentence. The present parole system is a panoply of mixed Indeterminate Sentencing Law ("ISL") and Determinate Sentence Law ("DSL") statutes. Some of the ISL parole statutes have been relabeled, without being properly rewritten, and applied to DSL prisoners. This system runs afoul of the Supreme Court holdings and definitions set forth in Young v. Harper and Morrissey v. Brewer because: California's system of revocation of parole for a DSL parolee is almost identical to the revocation of probation, and the subsequent imposition of a prison sentence. This happened because when the DSL came into effect, the Legislative Branch took from the Executive Branch its discretionary power to grant "Early Release" prior to the expiration of the "actual custody" portion of the sentence. The Legislative Branch then gave the Judicial Branch the power to impose a second prison sentence in the form of revocation from the "constructive custody" portion of the sentence to a new "actual custody" term. Through this action, the Legislative Branch unconstitutionally reversed the traditional roles of the Judicial and Executive Branches of government. This violates California's Constitution, Article VI, §3, which proclaims the separation of powers.
The California DSL parole scheme has several fundamental constitutional flaws, including when the sentencing was deferred from the Judicial Branch to the Executive Branch. This is impermissible since the "actual custody" portion of the sentence has already been served, and any revocation after the sentence has been served is a new prison sentence; a function constitutionally reserved to the Judicial Branch. In Fultz v. Stratman, 97 D.A.R. 11732, quoting the federal appeals court in Evans v. Parole Com'n, (7th Cir. 1996) 78 F.3d 262, 265, it was held that the Federal Parole Commission cannot impose a term of special parole any more than it can sentence a defendant to prison. This is because the parole commissioner, the Executive Branch, cannot perform the judicial function of imposing a sentence.
If the federal Executive Branch cannot sentence a person from "constructive custody" to prison, then it stands to reason that California's Executive Branch also cannot impose such a prison sentence. Since no sentence time within the parole period term of sentence under the DSL act is "actual custody" to be returned to, a DSL parolee can only be returned to "actual custody" through imposition of a new sentence. Thus, California's mix of ISL and DSL statutes and concepts, when applied to DSL prisoners, does not provide for constitutionally adequate revocation, because any revocation of a DSL parolee is a new prison sentence per se. Because such a revocation does not fall within the "actual custody" sentence as a return to prison following "early release," it runs afoul of either the separation of powers doctrine, or the proscription of double punishment doctrine, or both.
To allow this sort of unfettered power in the Executive Branch is a step towards a totalitarian concentration of power in the executive; a power to be exercised with inadequate legislative standard, and capable of avoiding judicial review such as this has been prohibited from the earliest times. See Hayburn's Case, (1792) 2 U.S. (Dall.) 408, 1 L.Ed. 436, and its progeny. Also see Industrial Union Dept., AFL-CIO v. American Petroleum Institute, (1980) 448 U.S. 607, 65 L.Ed. 2d 1010, 100 S.Ct. 2844, where the Supreme Court relied on the theories of John Locke, from colonial times, that the separation of powers doctrine would have the court invalidate delegation of authority to the executive agencies when the legislature had not sufficiently limited the powers of the executive agency. Notice should also be taken of Montesquieu, The Spirit of the Laws, 151-2 (Nugent trans. 1949), which states: "Any combination of the judicial, legislative, or executive powers would create a system with an inherent tendency towards tyrannical actions."
CONCLUSION
Logically then, once a DSL prisoner has served his entire "actual custody" sentence, the Executive Branch of government loses its ability to grant "Parole." This is because there is no more time left to be served to be released "Early" from, and the Executive Branch has no constitutional authority to sentence a person to prison, and thereby return a DSL prisoner to custody once his "actual custody" sentence is completed.
Therefore, the Executive Branch has no more jurisdiction or control over a person after the person has served his entire "actual custody" sentence. At this time, the person must be released from all actual or constructive custody, because it would be unconstitutional to further restrain a person who has completed his actual custody sentence.
Inmate Tom Watson Shasta County Jail 1655 West Street Redding, CA 96001
