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Anyone who thinks Gov. Gray Davis is foolish to consider the political ramifications of letting prisoners out of jail should talk to Michael Dukakis. You remember Dukakis. He’s the historical footnote who led George Bush Sr. in the 1988 presidential election by 17 points and then saw his campaign spiral after a series of devastatingly effective ads about his decision to furlough convicted killer Willie Horton. Davis is determined not to be like Mike. So, despite his administration’s bleating to the contrary, he has created a de facto no parole policy in California — one that essentially cheats prisoners of their rights and has created a constitutional conflict between the executive and judicial branches over the power to review the governor’s actions. In 117 of 119 life-sentence cases, the governor has ignored the recommendations of his own Board of Prison Terms, saying prisoners must stay behind bars. Without a doubt, it’s a safe political move for Davis. Voters punish candidates who appear weak on crime — particularly Democrats. But Davis’ political calculations have subtracted legal and ethical judgments from the formula he should be using to consider parole. This release-no-prisoners approach is dangerous from both prisoner management and legal standpoints. Parole is essentially a behavioral tool — a carrot to encourage good behavior by inmates by offering the possibility of early release. But Davis’ policy removes the chance of parole — so what’s to keep prisoners behaving themselves? And consider the constitutional swamp the courts are dredging because of the governor’s actions. In a pair of high-profile cases — In re Rosenkrantz, 95 Cal.App.4th 358, and In re Morrall, 02 C.D.O.S. 9754 � appellate panels grappled with two essential questions: Did the governor properly exercise his discretion in making parole decisions? And do the courts have the right to review those decisions? The tricky constitutional issue lies in that second question. It’s hard to imagine one branch of government passing up the right to review the actions of another. And as one might expect, the judiciary has taken the bait and granted itself the power to review Davis’ parole decisions. So much for separation of powers. In Morrall at least, the Third District Court of Appeal appeared to give some deference to the governor’s constitutional authority. But it’s a shame that Davis’ political paranoia has invited such judicial second-guessing. Obviously, the real problem here is that politics shouldn’t play any role in whether a prisoner is granted parole. Yet it seems nearly impossible to imagine a system in which governors are going to be able to divorce themselves from the political implications of their actions. It invites the question: Why are governors involved in the parole process in the first place? After all, isn’t parole — at its heart — a byproduct of sentencing, which is the responsibility of judges? This space isn’t long enough to posit the creation of a new parole system. But it’s an idea that must be examined. The current system in California is broken, irrevocably politicized by elected officials pandering to the fears and prejudices of the electorate. What is needed is a dispassionate, critical examination of how parole is meted out — and whether it’s doing what it was intended to do. Such an examination could also encompass whether indeterminate sentencing contributes to the problem. This is a tall order, and one that requires powerful supporters. In October, the state Supreme Court will consider Rosenkrantz, and if history is any guide, justices will try to strike a middle-of-the-road stance between the governor’s powers and the facts of the case. Perhaps the court can use the case as a platform to call for a tough look at the parole system as a way to prevent future constitutional conflicts between the executive and legislative branches. Without reform, California will be left to the whims of politicians too afraid of Willie Horton to employ moral and legal judgment in their parole-making decisions.

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