Monday, January 21, 2019


When it comes to parole there is a slight distinction between Bruce Davis, Leslie Van Houten and the “Rest” (Manson, Atkins, Krenwinkel, Watson and Beausoleil). 

Davis was convicted of the murders of Shorty Shea and Gary Hinman as well as conspiracy to commit those murders and conspiracy to commit robbery. He was sentenced to life in prison with the possibility of parole. 

Van Houten was convicted of murder and conspiracy to commit murder in connection with the LaBianca murders. In her last trial she was sentenced to life in prison with the possibility of parole and had a minimum eligible parole date (MEPD) of seven years. Inmates who committed life
crimes prior to November 8, 1978 all had an MEPD of seven years. 

The rest were sentenced to death. The death penalty was temporarily abolished in California as being unconstitutional (cruel and unusual punishment) in 1972. At that time Manson, Atkins, Krenwinkel, Watson and Beausoleil all had their sentences commuted to life in prison with the possibility of parole. 

Perhaps being a little too legally technical, their sentences were commuted to the available alternative sentence for murder that existed at the time of their original convictions: life in prison with the possibility of parole. In 1977 California added the alternative sentence for murder of life without parole. 

If Manson et al had been convicted under the sentencing laws that have governed California since 1977 their sentences would have likely been commuted to life without parole. It is possible that this fact plays a role in the parole denials that have come down from the Governor, even if the notoriety of the case was not a political factor. Put another way the Governor, in part, may be saying “if this happened today (conviction-death sentence-commuted sentence) they would never get out, so why let them out.”

Regardless, after 1972 all of them were serving the same sentence. 

Parole Suitability

The key to parole suitability is section 2281 of the California Code of Regulations cited as 15CCR section 2281. The general standard for parole suitability is set forth in section 2281(a). 

(a) General. The panel shall first determine whether a prisoner is suitable for release on parole. Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison.

The controlling standard is the underlined words also called "current dangerousness". 

Within section 2281 the key regulations for determining current dangerousness are 2281(c) and (d). These set out the factors the panel is to consider for crimes committed before November 1977. 

(c) Circumstances Tending to Show Unsuitability. The following circumstances each tend to indicate unsuitability for release. These circumstances are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel. Circumstances tending to indicate unsuitability include:

(1) Commitment Offense. The prisoner committed the offense in an especially heinous, atrocious or cruel manner. The factors to be considered include:

(A) Multiple victims were attacked, injured or killed in the same or separate incidents.
(B) The offense was carried out in a dispassionate and calculated manner, such as an execution-style murder.
(C) The victim was abused, defiled or mutilated during or after the offense.
(D) The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering.
(E) The motive for the crime is inexplicable or very trivial in relation to the offense.

(2) Previous Record of Violence. The prisoner on previous occasions inflicted or attempted to inflict serious injury on a victim, particularly if the prisoner demonstrated serious assaultive behavior at an early age.

(3) Unstable Social History. The prisoner has a history of unstable or tumultuous relationships with others.

(4) Sadistic Sexual Offenses. The prisoner has previously sexually assaulted another in a manner calculated to inflict unusual pain or fear upon the victim.

(5) Psychological Factors. The prisoner has a lengthy history of severe mental problems related to the offense.

(6) Institutional Behavior. The prisoner has engaged in serious misconduct in prison or jail.

(d) Circumstances Tending to Show Suitability. The following circumstances each tend to show that the prisoner is suitable for release. The circumstances are set forth as general guidelines; the importance attached to any circumstance or combination of circumstances in a particular case is left to the judgment of the panel. Circumstances tending to indicate suitability include:

(1) No Juvenile Record. The prisoner does not have a record of assaulting others as a juvenile or committing crimes with a potential of personal harm to victims.

(2) Stable Social History. The prisoner has experienced reasonably stable relationships with others.

(3) Signs of Remorse. The prisoner performed acts which tend to indicate the presence of remorse, such as attempting to repair the damage, seeking help for or relieving suffering of the victim, or the prisoner has given indications that he understands the nature and magnitude of the offense.

(4) Motivation for Crime. The prisoner committed his crime as the result of significant stress in his life, especially if the stress had built over a long period of time.

(5) Battered Woman Syndrome. At the time of the commission of the crime, the prisoner suffered from Battered Woman Syndrome, as defined in section 2000(b), and it appears the criminal behavior was the result of that victimization.

(6) Lack of Criminal History. The prisoner lacks any significant history of violent crime.

(7) Age. The prisoner's present age reduces the probability of recidivism.

(8) Understanding and Plans for Future. The prisoner has made realistic plans for release or has developed marketable skills that can be put to use upon release.

(9) Institutional Behavior. Institutional activities indicate an enhanced ability to function within the law upon release.

The board then weighs these factors to determine parole suitability. One factor can lead to a parole denial, for example, getting into recurring trouble while in prison. Relatively minor problems with many factors can also lead to a parole denial. 

However, the key to what has transpired with Manson et al over the years really boils down to one factor: unsuitability factor 2281(c)(1), the nature of the original commitment offense.  

(1) Commitment Offense. The prisoner committed the offense in an especially heinous, atrocious or cruel manner. The factors to be considered include:

(A) Multiple victims were attacked, injured or killed in the same or separate incidents.
(B) The offense was carried out in a dispassionate and calculated manner, such as an execution-style murder.
(C) The victim was abused, defiled or mutilated during or after the offense.
(D) The offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering.
(E) The motive for the crime is inexplicable or very trivial in relation to the offense.

This also has been the basis for the Governor’s decision to reverse parole grants. 2281(c)(1) is tailor-made for the Governor. It allows him, by its terms to consider the heinous nature of the crime, regardless of how long ago it was committed. There is no time limitation in 2281(c)(1). 

The Governor

Since 1988, California’s state constitution allows the Governor to grant or deny parole regardless of what the parole board panel does. Specifically, Article V, section 8(b) says this:

(b) No decision of the parole authority of this State with respect to the granting, denial, revocation, or suspension of parole of a person sentenced to an indeterminate term upon conviction of murder shall become effective for a period of 30 days, during which the Governor may review the decision subject to procedures provided by statute. The Governor may only affirm, modify, or reverse the decision of the parole authority on the basis of the same factors which the parole authority is required to consider. The Governor shall report to the Legislature each parole decision affirmed, modified, or reversed, stating the pertinent facts and reasons for the action.

[Aside: It should be noted that since 1988 not a single denial of parole by the board panel has been overturned by the any Governor.]

So, how is the Governor supposed to “only reverse [the parole authority] on the basis of the same factors the parole authority is required to consider”? That is covered by California Penal Code Section 3041.2(a). 

(a) During the 30 days following the granting, denial, revocation, or suspension by the board of the parole of an inmate sentenced to an indeterminate prison term based upon a conviction of murder, the Governor, when reviewing the board's decision pursuant to subdivision (b) of Section 8 of Article V of the Constitution shall review materials provided by the board.

So, the Governor’s job is to apply the same suitability factors as the panel and review the same materials submitted to the panel. He or she is essentially repeating the job of the panel except that he does not have the benefit of being at the actual hearing.

Both Davis and Van Houten have seen their parole grants reversed by the Governor. In order to understand why or how it is necessary to understand the case law that has been decided by the California Supreme Court as it relates to parole denials. 

The Courts 

What happens after the Governor denies parole and reverses the board is where the issue gets legally.... well….. muddled. In fact, it is a mess. 

Once a parole grant is reversed, someone like Van Houten appeals the Governor’s decision to the courts by filing a writ of habeas corpus. That literally means 'you have a body [inappropriately]'. The court then reviews the decision of the Governor. 

Anytime a court reviews an executive branch decision it applies what is known in the law as a standard of review. In all cases they get to look and see if some level of evidence supports the decision. The 'level' can be anything from 'eh, good enough' to 'it better be cast iron'. Each of these standards has a name like rational basis or substantial evidence. 

In re Rosenkrantz

In California, the courts do not have the authority to review the basis of the parole reversal. In other words, they don’t perform a new parole suitability review. Instead they review the decision of the Governor (or the board for that matter) based upon what is known as the ‘some evidence’ standard. 

And that originates from the case of In re Rosenkrantz, 59 P.3d 174 (Cal. 2002). Prior to 2002 it was an open question whether a court had the authority to review the Governor’s decision at all.

“Although neither the California Constitution nor any statute authorized judicial review of the governor’s parole decisions, Rosenkrantz also subjected the governor’s decisions to the some evidence standard. Because the governor’s decision “must be based upon the same factors that restrict the [BPH] in rendering its parole decision[s],” the inmate’s liberty interest in the parole decision was the same whether the BPH or the governor made the decision. When the governor conducted his “independent, de novo review of the prisoner’s suitability for parole,” the court concluded that the judiciary had to protect the inmate’s liberty interest and ensure due process of law through the some evidence standard.” 

(Charlie Sarosy, Parole Denial Habeas Corpus Petitions: Why the Supreme Court Needs to provide More Clarity on the Scope of Judicial Review, 61 UCLA Law Review 1134 (2014).

I hope it is obvious that the critical inquiry then becomes what does some mean or, if you will, how much is some evidence? 

Rosenkrantz drove a pretty big nail into the parole possibility coffins of Manson et al. Rosenkrantz explicitly stated that the nature of the crime could be enough evidence to deny parole. The severity of the crime can be some evidence. 

The second issue decided in Rosenkrantz was how the court should review whether there was some evidence to support the Governor's decision. The court concluded that the some evidence standard is to be “extremely deferential” to the Governor or the board and not an independent review of the merits. 

For the next six years in most cases the basis for the Governor’s reversal was the nature of the original offense. Court’s reviewing the Governor’s decision would frequently drift into comparing the heinous nature of this crime to that crime. While it remained predictable that the Governor's decision would be upheld, different courts got there from different directions

In re Lawrence

Then along comes In re Lawrence 190 P.3d 535 (Cal 2008) which gave hope to those who had either been denied parole by the board panel or who had been granted parole only to see it reversed by the Governor. 

Governor Schwarzenegger reversed Sandra Lawrence’s parole grant even though she was a model prisoner, had been granted parole four times and declared not to be a significant danger to the public the board panel and by five psychologists. He did so based solely on the nature of the offense thereby finding her to be currently dangerous.

The California Supreme Court determined that there had to be a rational connection between the nature of the original offense and the conclusion that the inmate is currently dangerous. To the Lawrence court the nature of the crime alone could provide an implication of current dangerousness but that implication had to be confirmed with some other evidence. A many decades old crime, the Lawrence court said would rarely be enough to show that connection without something more. Court’s after Lawrence then, could review the merits of the Governor’s decision to ensure the existence of the connection. 

After Lawrence this meant that in Van Houten's case, for example, just because she participated in the "Manson Murders" and all their horror that wouldn't be enough, alone to establish that she was currently dangerous. There had to be something about her now, today that established that connection. 

The problem with the Lawrence opinion was that the court failed, again, to say how much evidence the Governor (or board panel) had to have to establish that connection. 

Lawrence resulted in the sudden explosion of parole board panel and Governor reversals based upon "lack of insight". This became the other evidence of the connection and typically was taken from the hearing transcript. 

Shaputis II

Then along comes In re Shaputis, 265 P.3d 253 (Cal. 2011)(also known as Shaputis II).This time the court addressed the issue of how much evidence the board panel or the Governor had to have to deny parole. It did not go well for inmates. 

The court decided that a reviewing court “must consider the whole record in the light most favorable to the determination before it”. This means the court is really looking for a way to uphold the determination. 

[Aside: Shaputis’s case it was a parole board panel denial.]

According to the California Supreme Court a reviewing court need find only a “modicum of evidence” supporting the conclusion that the inmate is currently dangerous. 

A parole denial (or a Governor's reversal) failed the some evidence standard only if it “lacks any rational basis” or is “arbitrary.” When deciding if the denial was “arbitrary”, the reviewing court cannot reweigh the evidence or assess the inmate’s current dangerousness, but only determine the existence of a rational connection between the nature of the crime and current dangerousness.

These three cases play out in Leslie Van Houten’s appeal of her last parole reversal in the ruling of Judge William C. Ryan, available here:

First, Judge Ryan acknowledges that the Governor relied primarily on the nature of the offense unsuitability factor 2281(c)(1) and notes that this is permissible. 

“The Governor based his decision on Petitioner's commitment offense, finding that the "crimes stand apart from others by their heinous nature and shocking motive." (Reversal at p. 4.) A commitment offense that is perpetrated in an especially heinous, atrocious or cruel manner is a circumstance tending to show unsuitability for parole. (§ 2281, subd. ( c )( 1 ). ) The commitment offense may be considered especially heinous, atrocious or cruel when: (A) multiple victims were attacked, injured, or killed in the same or separate incidents; (B) the offense was carried out in a dispassionate and calculated manner, such as an execution-style murder; (C) the victim was abused, defiled, or mutilated during or after the offense; (D) the offense was carried out in a  manner which demonstrates an exceptionally callous disregard for human suffering; and (E) the motive for the crime is inexplicable or very trivial in relation to the offense. (§ 2281, subd. 22 (c)(l)(A}-(E).) In this case, all five factors are present.”

Ryan then went on to factually establish the five factors including (E) which was the Helter Skelter motive. 

This is drawn from Rosenkrantz

Then Ryan addresses In re Lawrence and the requirement that there be a connection between the nature of the offense and current dangerousness. He notes, consistent with Lawrence that seldom, after so long a period of time, is there such a connection. But he also says something rather startling, suggesting, contrary to Lawrence, that some crimes are so bad they might not need the connection.

“Ordinarily, after a long period of time, immutable factors, such as the commitment offense, typically no longer indicate a current risk of danger to society in light of a lengthy period of incarceration. (Lawrence, supra. 44 Cal.4th at p. 1221.) The Governor normally may base a reversal of parole upon immutable facts only if something in Petitioner's pre- or post-incarceration history, such as her current demeanor or mental state, demonstrates that she remains a continuing threat to public safety. (Id. at p. 1214.) 

However, Lawrence, supra, actually holds that "the underlying circumstances of the commitment offense alone rarely will provide a valid basis for denying parole when there is strong evidence of rehabilitation and no other evidence of current dangerousness," leaving open the possibility that, in a rare circumstance, the commitment offense alone can provide evidence of current dangerousness and unsuitability for parole. (Lawrence, supra, 44 Cal.4th at p. 1212, emphasis added.)

Petitioner's crimes terrified a generation, and remain imprinted on the public consciousness to this day. If any crimes could be considered heinous enough to support a denial of parole based on their circumstances alone years after occurrence, they must certainly be the crimes perpetrated by the Manson Family, including the LaBianca murders for which Petitioner was convicted. Indeed, if not Petitioner's case, then it is hard to envision what sort of case would support parole denial on the facts of the offense alone. This was one of a series of sickening, "grotesque," brutal, and literally senseless murders, which were at the time the most horrific in California at least since World War II, and are among the most horrific since their commission.”

Judge Ryan is actually going out on a limb here to support the Governor. The 'rarely' reference was not intended by the Lawrence court to leave a window open. It was meant to close the door on the details of a decades old crime being the sole the basis for a parole denial or reversal. Admittedly, the choice of the word rarely by the court left the door ajar.

But then Judge Ryan finds the the belt to go with his suspenders. He finds the other evidence that supports connecting the nature of the crime to current dangerousness as required by In re Lawrence. And it is Van Houten's lack of insight. 

“The Governor's decision was also based on Petitioner's minimization of her role in the commitment offense. (Reversal at pp. 3-4.) An inmate's lack of insight, minimization, or lack of remorse are not listed as unsuitability factors in either Penal Code section 3041 or its  corresponding regulations. However, section 2281 allows the Board to consider "[ a ] relevant, reliable information available," including the inmate's "past and present mental state" and her "past and present attitude toward the crime .... " (§ 2281. subd. (6).) As articulated by the California Supreme Court, "the presence or absence of insight is a significant factor in determining whether there is a 'rational nexus' between the inmate's dangerous past behavior and the threat the inmate currently poses to public safety. '' (Shaputis II, supra, 53 Cal.4th at p.16 218.) Lack of insight "can reflect an inability to recognize the circumstances that led to the commitment crime; and such an inability can imply that the inmate remains vulnerable to those circumstances and, if confronted by them again, would likely react in a similar way."

Notice Judge Ryan doesn't analyze whether there is any evidence of van Houten's lack of insight. That is because Judge Ryan, following, although not citing Shaputis II, concludes that his job is not whether he agrees with the Governor. His job is not whether he believes there is enough evidence of a connection between the nature of the offense and current dangerousness nor does he look at whether there was any, let alone sufficient evidence of Van Houten's lack of insight. His job is simply to see if there is any evidence at all. 

“This court is not entitled to reweigh the evidence before the Governor; rather it is tasked with determining whether the record contains some evidence in support of the Governor's decision. (In re Rosenkrantz, supra, 29 Cal.4th at pp. 656, 665-677.) This court finds that it does, and that there is a rational nexus between the evidence in the record and the Governor's determination of Petitioner's current dangerousness.”

This, of course means that the court is not actually 'judging' the Governor’s decision. There is no standard being applied to the decision. No one is making the Governor prove his point ‘beyond a reasonable doubt’ or ‘clear and convincing evidence’ or even by a 'preponderance of the evidence'. Nor is the Governor's decision being reviewed to see if it is supported by some level of evidence. There is no, "well, he needed two pounds of evidence and he only had one" analysis going on here. The test being applied to that decision is: is there any evidence at all or was the Governor’s decision completely arbitrary.

And that means the Manson Clan is likely not going anywhere.

The Prognosis for Parole: Very Bleak

The basis for nearly every parole reversal by any Governor of California has been that section up there that focuses on the commitment offense. The murder crew here have a whopper of an offense. There are movies about it (two more in production), TV shows, TV whatever they are, like Dateline that pop up about twice a year.  There are dozens of books including the original best seller, Helter Skelter. The original crime scene photos in all their gory detail are all over the internet. There are blogs like this one and at least one author subsequently quoted by several other writers has said that this crime ended the sixties. Judge Ryan describes the crimes as "terrifying a generation". 

Combine this with the politics of parole reversals. Why would a governor ever allow a murderer to be paroled? There is no political upside. While actual paroled inmates who kill again are very rare, when they do, they garner headlines. The 1400 or so others who fade into obscurity do not make good headlines. In fact, as to every high profile convicted murderer, as the Governor, it is far better to reverse parole and have a court overturn you than to ever let one pass. Then you can blame those damned unaccountable judges. 

Then there is the argument that but for one of those damned courts the death penalty would have been applied and none of them would be appearing at parole hearings. 

[Aside: In researching this post I was struck by how many current era articles about Leslie Van Houten actually lump her in with the rest saying she was sentenced to death, her sentence was commuted and she became eligible for parole. While all that is true her conviction was overturned and that is seldom mentioned.]

The 'they should be dead' argument doesn't help them. 

Finally, there is no real judicial review. There is no court watching over the process. The ‘some evidence’ standard might best be described post- Shaputis II as the “the Governor says there is evidence, so there is” standard. 

The Impact of The Manson Mystique

Does anyone really believe that being associated in a general or broad sense with the “Manson Murders” doesn't impact the possibility of receiving a parole grant? Whether you murdered Shorty Shea or Gary Hinman or conspired to do so lumps you into the "Manson Murders" as soon as his name is mentioned. This is the case even though probably only the people who read this blog (and others) and a few dozen other people could actually name all nine victims.

Many of the factors reviewed by a 2011 study conducted by the Stanford Criminal Justice Center suggest that the Manson Mystique does impact their parole possibilities. Here are a few quotes and data from that study. 

[Aside: A ‘lifer’ is an inmate sentenced to an indeterminate sentence of life. In other word, they were sentenced to life with the possibility of parole.]

“For the 1499 individuals who served term-to-life sentences who were released from custody between January 1, 1990 and December 31, 2010, the average amount of time served was 225 months or 18.75 years. Of approximately 1,000 lifers who had been sentenced for murder and were released from custody during the 20-year period from 1990-2010, the average number of years served was about 20 years. 

The average length served by the largest categories of crime type is depicted in Chart 9.”

Manson et al have served (or served prior to their deaths) far longer than the average lifer. In fact, they have served more than twice as long as others convicted of the same offense and more than twice as long as their peers, those convicted in the 1970's. 

The parole rate for female lifers is far higher than males. About 25% of women lifers are paroled. The parole grant rate for lifers at the California Institute for Women was 33% for the period 2007-2010.


“A major—perhaps the major—question in public debate about the current lifer population is their risk of recidivating. While data is limited, interim information suggests that the incidence of commission of serious crimes by recently released lifers has been minuscule, and as compared to the larger inmate population, recidivism risk—at least among those deemed suitable for release by both the Board and the Governor—is minimal.”

“In a cohort of convicted murderers released since 1995 in California, the actual recidivism rate is in fact minuscule. In particular, among the 860 murderers paroled by the Board since 1995, only five individuals have returned to jail or returned to the California Department of Corrections and Rehabilitations for new felonies since being released, and none of them recidivated for life-term crimes. This figure represents a lower than one percent recidivism rate, as compared to the state’s overall inmate population recommitment rate to state prison for new crimes of 48.7 percent.”

It should be noted that the study believed but couldn't prove, because of the limited data, that the twenty year term and thus the age of the lifer upon release contributed to these figures. 

This statistic also raises a question about the whole notion of current dangerousness being at all related to the original crime. Lifers don't commit new murders. Of course, the counter argument as to the Manson Crew is that we don’t really know that because Manson Family murderers have not been released yet (except, of course, Steve Grogan, who is one of those successful statistics). 

You certainly don’t want the victims to show up at your hearing like they do at the parole hearings of Van Houten and the rest.

“When victims attend hearings, the grant rate is less than half the rate when victims do not attend.”

However, Van Houten and Davis are far from being the only ones who have had their parole grants reversed. Unfortunately, the data in the study ends in 2010. 

“But, the likelihood of any lifer convicted of murder being granted parole by the Board and not having the decision reversed by the Governor is and always has been slim. In 2010, the probability was approximately six percent.”


All quotes and charts are from: Robert Weisberg, Debbie A. Mukamal and Jordan D. Segall, Life In Limbo: An Examination of Parole Release for Prisoners Serving Life Sentences with the Possibility of Parole in California, Stanford Criminal Justice Center (2011) (Permission is granted for reproduction of this document, with attribution to the Stanford Criminal Justice Center.)

It is, in my opinion, highly unlikely any of the Manson Family will be granted parole and not have it reversed by the Governor. As stated, the Governor has nothing to lose and would likely rather be reversed by a court than be the guy who let out a murderer. 

But section 2281(c)(1) is really the key to understanding what has happened to Van Houten and Davis. On its face 2281(c)(1) allows the board panel or the Governor to look at the heinous nature of the original crime regardless of how many years have passed. He, like Judge Ryan, needs only recite the details of the murders. Then he can pay lip service to the Lawrence connection by citing lack of insight and use any fact he can find to support that. In Van Houten's case that can be the actual fact that she likely did stab an already dead Rosemary LaBianca. This combination makes it easy for the Governor to reverse the panel but it also provides a legitimate basis for that action. 

If 2281(c)(1) did not exist it would be very hard to keep at least Van Houten and probably Davis in prison. Since it does, it is easy.

You may believe that Van Houten and/or Davis should be paroled or you may believe they should be paroled because the panel responsible by law for making that decision says they should. You may be in the camp that believes that should remain right where they are.

But no matter where you come down on that issue or where you are on the liberal-conservative spectrum or where you sit on crime and punishment you should at least take one moment to ponder the real bottom line here.

The Governor of the State of California has the power to change an indeterminate sentence of life in prison with the possibility for parole into life without parole and no one can overturn that decision. 

Pax Vobiscum