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Convicted murderer John Dannenberg’s hopes — and those of 27,000 other inmates serving life in prison — were shot down Monday when the state Supreme Court refused to block a longstanding, yet controversial, parole policy. By a 4-3 vote, the court held that the state Board of Prison Terms could continue making parole decisions for lifer prisoners without measuring their crimes against similar offenses or the board’s own uniform sentencing norms. “We conclude that the board, exercising its traditional broad discretion, may protect public safety in each discrete case by considering the dangerous implications of a life-maximum prisoner’s crime individually,” Justice Marvin Baxter wrote for the majority. “While the board must point to factors beyond the minimum elements of the crime for which the inmate was committed,” he continued, “it need engage in no further comparative analysis before concluding that the particular facts of the offense make it unsafe, at that time, to fix a date for the prisoner’s release.” The dissenters, led by Justice Carlos Moreno, accused the majority of upholding a policy that “requires the judicial rubber- stamping” of the Board of Prison Terms’ decisions — “no matter how unfounded or unjust they might be.” Dannenberg was convicted of second-degree murder in the 1985 death of his wife, Linda, during a violent fight at their Los Altos Hills home. Dannenberg claims his wife attacked him with a screwdriver and he fought back by pounding her head with a pipe wrench. He says he lost consciousness and awoke to find his wife drowned in a bathtub. Dannenberg was sentenced to 15 years to life in prison, and was first eligible for parole on June 25, 1996. The board has repeatedly denied parole, saying Dannenberg remains a danger to society. But his lawyers argue that he has been a model prisoner and has been deemed psychologically fit for life outside prison. In the 1999 parole hearing at issue in Monday’s ruling, board members looked at Dannenberg’s crime and found, in boilerplate language, that it demonstrated “an exceptionally callous disregard for human suffering.” They also felt that Dannenberg had tried to minimize his responsibility for his wife’s death. In 2002, however, San Francisco’s First District Court of Appeal sent Dannenberg’s case back for review, saying he couldn’t be denied a parole date without determining whether his jail term was disproportionate to those of other second-degree murderers. The court also said that “only the gravest offenses” could be used as grounds for refusing to set a parole date. The First District pointed to a state statute that says life prisoners “shall normally” receive parole dates “in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public.” Monday’s Supreme Court majority called the lower court’s reasoning a misperception. “When the time comes to evaluate the individual life inmate’s suitability for release on parole,” Justice Baxter wrote, “the BPT is authorized — indeed, required — to eschew term uniformity, based simply on similar punishment for similar crimes, in the interest of public safety in the particular case.” Apparently alluding to a warning the California District Attorneys Association made in an amicus curiae brief, Baxter also said the appellate court’s holding could force the board to schedule the release of lifers even if there were a “reasonable belief” that the inmates presented a “continuing risk to the community at large.” Baxter was joined by Chief Justice Ronald George and Justices Ming Chin and Janice Rogers Brown. In dissent, Justice Moreno — joined by Justices Joyce Kennard and Kathryn Mickle Werdegar — argued that the majority had given the Board of Prison Terms the power to disregard the statutory mandate that parole dates be set proportionally in relation to the magnitude of the offense. “What the majority does not and cannot explain,” Moreno wrote, “is why the Legislature should go through the trouble of describing extensively a method of granting parole that the board ‘shall’ carry out if this statute expresses — very uncharacteristically for a Legislature — nothing more than a ‘hope.’” In arguing that there is no valid reason to keep Dannenberg — who is 64 and has an advanced education in electrical engineering and realistic parole plans — behind bars, Moreno also predicted abuses of the parole process. “There is more than a little risk that the board’s power to deny parole will at times be exercised in an arbitrary and capricious manner,” he wrote. “Failure to grant parole where parole is due wastes human lives, not to mention considerable tax dollars — concerns that, along with public safety, unquestionably motivated the Legislature” in enacting its statutory mandates. Kathleen Kahn, the recently retired staff attorney from San Francisco’s First District Appellate Project who represented Dannenberg, called Monday’s ruling “the most original statutory interpretation I’ve seen in 30 years. The idea that you can take the word ‘normally’ out of a statute that says you normally have to set a parole date is kind of original.” She also said she believes the ruling was aimed at squelching unhappy trial court judges who are granting habeas corpus petitions in such cases. Her opponent, San Francisco-based Deputy Attorney General Susan Lee, called the decision “a status quo opinion.” “Nothing will change,” she said. “But it has been a very contentious issue in litigation for a number of years, and there’s been a great deal of confusion about it among superior courts and courts of appeal. Many courts have been waiting for this decision.” The ruling is In re Dannenberg, 05 C.D.O.S. 660.

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