California propositions that shook up the system

On July 1, 1977, Senate Bill 42 went into effect and created the Determinate Sentencing Law under Section 1170 of the Penal Code. The new law eliminated life sentences for most crimes. Some exceptions were murder, mayhem, and kidnapping.

After the enactment of the DSL, only lifers — and now third-strikers — are considered “indeterminately” sentenced, because the parole board determines their release date.

In 1978, opponents of SB 42 introduced Proposition 7, which voters approved. It did away with much of the legislation enacted by SB 42.

After Proposition 7 passed, California’s attorney general called on the Morrissey 8 to get its input on how the law should have been applied to prisoners serving a term under the old, pre-SB 42, seven-years-to-life Indeterminate Sentencing Law.

On July 26, 1979, the Morrissey 8 issued a memorandum to outline how they would implement Prop. 7. In the memo, it was determined that “The parole board’s power to fix terms was withdrawn…and nothing in the current Penal Code evidences an intent to re-establish those powers for first or second degree murder.” They also concluded the old life sentences were completely different from new life sentences. Regarding Rodriguez, the memo reads, in part, “In re Rodriguez also appears to have been rendered obsolete by the changed structure of life sentences.”

Nearly half a century later, many elderly Lifers in the California’s prison system still disagree with the Morrissey 8 interpretation of Prop. 7. They are not alone.

“George Deukmejian [attorney general at the time] said Rodriguez was ‘obsolete’ because in his view, enactment of SB 42 ended the parole board’s authority to fix life terms,” wrote Judge J. Anthony Kline in a 2023 email for research on this story. “But that isn’t true.”

Kline was the attorney who represented Rodriguez in 1975. He was also chosen by Gov. Jerry Brown to become his Legal Affairs Secretary. More importantly, he was a judge for 42 years before retiring in 2021 as California’s senior appellate justice.

“There is no regulation, statute, or judicial opinion that says Rodriguez was rendered obsolete by the enactment of the Determinate Sentence Law,” Kline wrote.

Many lifers have said after Proposition 7 became effective and the Morrissey 8 reached its decision, parole boards stopped fixing their dates and terms. They argued under California law (Penal Code § 5002 (e)), the parole board did not lose its power to set those terms. 

“Rodriguez has never been overruled and is often cited for the proposition that punishment resulting from the denial of parole that is grossly disproportionate to the prisoner’s culpability for his commitment offense cannot be justified on the basis of public safety,” Kline wrote.

According to Kline, California’s Supreme Court believed Lifers constituted only a “small subset” of prisoners in a larger system of determinate sentences. “But this is factually untrue,” he wrote, and explained because of the number of offenses that carry indeterminate sentences, including Three-Strikes, Lifers are “almost half the prison population…This is why Rodriguez is not obsolete, [but] highly relevant.”

As time moved on, Lifers experienced other tough-on-crime political hurdles. 

In 1988, California’s Constitution was amended when voters approved Proposition 89, which gave the governor authority to review parole board decisions on parole grants of prisoners serving life for murder. Subsequently, some governors appointed commissioners to the parole board as a blunt punitive measure.

Between 2000 and 2008, parole boards in California denied 98% of those who appeared at hearings. The remaining 2% who were granted release had their parole grants reversed 60% of the time by governors Gray Davis and Schwarzenegger, according to author Keramet Reiter’s book 23/7: The Rise of Pelican Bay and Long-term Solitary Confinement.

“I am informed that Gov. Gray Davis has expressed his policy that no murder offender will be paroled on his watch,” Albert M. Leddy wrote in a July 2000 declaration. He was a Board of Prison Terms chairman. “It has been clear to me that there is a general conspiracy to prevent life prisoners from paroling, especially those whose offenses include murder.”

In 1994, California amended its Penal Code to “require that the [parole] hearing be held no later than up to five years after the hearing denying parole, if the prisoner has been convicted of murder.” At that time, the portion of the state’s prison population over 50 years of age was 4%, according to Prison Policy Initiative. By 2019, the number increased to 25%. A 2025 study done on the Elderly prison population in California, age 55 and over was reported at 18.9%, according to the ACLU and PJIL.

In 2008, California voters took an even harsher stance regarding parole hearings and approved Proposition 9, also known as “the Victims’ Bill of Rights Act of 2008: Marcy’s Law.” Prior to that law, some Lifers convicted of murder received annual parole hearings, and could be denied their next hearing up to five years under the old law. Marcy’s Law increased the time between parole denials to a minimum of three years, then five, seven, 10, and 15 years.