Elderly Lifers

A succession of state actions produced elderly Lifers who are tethered to a law that changed 49 years ago. How and why many of these prisoners became trapped behind the same political decisions and policies that designed mass incarceration may be buried with the passage of time.

Two years ago, there were 191 elderly prisoners still held under California’s old seven-years-to-life statute for murder. Half of these men, and one woman, had served 50 years or longer in the California Department of Corrections and Rehabilitation, according to a public records request. 

“A principal driver of the exponential growth in elderly incarceration in America is the panoply of so-called ‘tough-on-crime’ laws of the late 20th century,” the ACLU and Prison and Jail Innovation Lab reported in “Trapped in Time.” “Numerous laws were passed during this time to buttress multiple national and state administrations’ ‘law and order’ political platforms, which operated under the since-debunked premise that harsher criminal sentences effectively deter crime.”

Elderly prisoners with seven-to-life murder convictions arrived in the then-CDC, decades before the idea of rehabilitation took shape. Nonetheless, courts, legislation, governors, parole boards, victims’ rights organizations, and voters, are responsible for much of these Lifers drawn-out imprisonment.

Life Sentences

In 1917, the Indeterminate Sentencing Law was enacted by the California Legislature. After the ISL, anyone sentenced to prison for a felony received a sentence of six months, one year, five years, or seven years to life under Section 1168 of the state Penal Code. Each of these prisoners had the possibility of parole. Death penalty cases were not included.

A prisoner serving a life sentence in California must appear before a parole board, once named the Adult Authority. The name changed later to the Community Release Board, then to the Board of Prison Terms. Today it is the Board of Parole Hearings. 

When the ISL became law, Lifers were not provided an attorney to represent them at parole hearings. In 1972, that changed when the U.S. Supreme Court ruled in Morrissey v. Brewer (408 US 471), which created due process rights for parolees at parole revocation hearings — such as the right to have counsel. The right was extended to state prisoners who must appear before a parole board.

To interpret and explain how parole hearings would be held for prisoners serving life, California’s attorney general assembled eight deputy attorneys general, two each from four state offices. They became known as the “Morrissey 8.”

In 1975, California Supreme Court rulings stated prisoners serving life had to be told, explicitly, their punishment by “fixing” their term to a set number of years before release. In response, Adult Authority Chairman Raymond Procunier issued his Directive No. 75/20 to instruct the parole board, and prisoners, that he would authorize the setting of parole dates to begin. 

In the early 1950s, Rudolfo Rodriguez was sentenced to one-to-life. In 1975, he filed a petition in court to obtain his release. He argued his statutory life maximum term was disproportionate to his offense, in violation of federal (Eighth Amendment to the U.S. Constitution) and state (Calif. Constitution, article I, § 17) law. In his petition, he contended that his 22 years served was “excessive punishment” and that the parole board had abused its discretion by “failing to fix a lesser term than the statutory life maximum term…” 

The California Supreme Court concluded Rodriguez was “entitled to be discharged from his term…that was disproportionate to his offense.” Many Lifers believed In re Rodriguez (14 Cal.3d 639) was a turning point.

A declaration made by the parole board chairman stated, in part: “I am the Chairman of the California Adult Authority. In this position, I am responsible for implementing the California Supreme Court’s decision in In re Rodriguez as quickly as possible.” 

Other cases in 1975, such as In re Williams (53 Cal.App.3d 10), publicized similar language on the subject of fixing terms for prisoners serving life sentences.

In response, the Adult Authority stated it was “diligently seeking to set the terms of all prisoners in the custody of the California Department of Corrections in accordance with the…decision in In re Rodriguez, and that [it] has formulated a comprehensive plan for organized and speedy fixing of all terms.”

Because Chairman Procunier had to set base terms for prisoners, he issued Directive No. 75/30, and for a time, base terms were set for some prisoners. However, according to many elderly Lifers, any positive upshot from those directives and court rulings was short lived.

Not long after the Rodriguez decision, California Governor Jerry Brown selected Rodriguez’s attorney, J. Anthony Kline, to become his Legal Affairs Secretary. 

By 1976, Gov. Brown’s secretary had gained the confidence of the state Legislature and influenced it to modernize the Indeterminate Sentencing Law. The following year, Senate Bill 42 established the Determinate Sentencing Law, which made sweeping changes to California’s Indeterminate Sentencing Law.