Legal Corner: Litigation against the Board of Prison Terms


This month’s legal column is excerpted from an open letter to California lifers by Federal Public Defenders regarding their litigation against the Board of Prison Terms.
Date: February 28, 2002
From: Monica Knox, Guy Iversen, Deputy Federal Public Defenders
drawing of open doorsWe apologize for the length of time since the last update on our litigation against the Board of Prison Terms. Much of the litigation in this matter has been about discovery. In order to prove our claim that the BPT does not provide fair and constitutional hearings to any lifer, we need to develop the facts underlying the changes in the process after Wilson became governor. As most of you already know, we obtained much discovery (including transcripts of all the lifer hearings and supporting evidence from 1995 through 2000) some time ago. It was literally hundreds of thousands of pages of material, and our review was very time consuming.
We wanted to develop even better evidence, however, so that when we went to hearing in federal court, we would have as compelling evidence as possible. We, thus, determined that it was necessary to interview the current and former commissioners who sit/ have sat on lifer hearings-the men and women we claim were providing unfair and unconstitutional hearings. None of the commissioners are willing to speak. Thus, we need to get the court to order them to sit for depositions.
The Attorney General represents the Board in this litigation. The AG fights very hard to prevent any court from compelling the commissioners to speak. They have been successful in that fight in state court, getting the state Court of Appeals to rule that the commissioners may not be compelled to speak. Thus, no commissioner has ever been compelled to provide statements under oath about the processes used to determine lifers’ suitability for parole, including any statement as to whether there is/has been a policy of denying parole to virtually all lifers. In our litigation, the fight about whether the court would compel commissioners to sit for depositions has been ongoing. We are, however, happy to report that on February 5, 2002, the federal magistrate gave us permission to begin depositions of some of the commissioners. That is a major victory in our fight against the Board.
The federal court has stayed (placed on hold) the order allowing depositions for 30 days in order to allow the Attorney General to decide whether to appeal the order. We expect the Attorney General will appeal the order.
We understand that it is hard to be patient, especially since so many of you have already been in for so many years. The delays in the litigation often frustrate us too. We expect that every issue will be a fight with the AG and the Board, and all that fighting takes time. We have not lost any major battle so far, we have had some important victories. It is still too early to know whether we will be able to win the entire way (by getting a court to hold that the Board is engaged in unconstitutional practices), but we are on the right track.