Sass v. California Board of Prison

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIAN SASS, 

Petitioner-Appellant,

No. 05-16455

v.

CALIFORNIA BOARD OF PRISON  D.C. No.

CV-01-00835-MCE

TERMS; ATTORNEY GENERAL OF THE

OPINION

STATE OF CALIFORNIA,

Respondents-Appellees.



Appeal from the United States District Court

for the Eastern District of California

Morrison C. England, District Judge, Presiding

Argued and Submitted

March 16, 2006—San Francisco, California

Filed August 31, 2006

Before: Alfred T. Goodwin, Stephen Reinhardt, and

Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Goodwin;

Dissent by Judge Reinhardt

10563

10566 SASS v. CALIFORNIA BOARD OF PRISON TERMS

COUNSEL

Margaret Littlefield and Michael Satris, Law Offices of

Michael Satris, Bolinas, California, for the petitioner-

appellant.

Julie L. Garland, Supervising Deputy Attorney General, San

Diego, California, for the respondent-appellee.

OPINION

GOODWIN, Circuit Judge:

California state prisoner Brian Sass appeals the district

court’s denial of his petition for a writ of habeas corpus. Sass

argues that the California Board of Prison Terms’ decisions,

in 1999 and 2000, denying him parole violated his due pro-

cess rights.

We hold that California inmates continue to have a liberty

interest in parole after In re Dannenberg, 34 Cal. 4th 1061

(2005). However, the state court decisions upholding Sass’

parole denials were not contrary to, and did not involve an

unreasonable application of, clearly established federal law as

determined by the Supreme Court. For this reason, we affirm.

I.1

1

We deny the government’s motion for reconsideration of the order

granting Sass’ motion to supplement the record on appeal.

SASS v. CALIFORNIA BOARD OF PRISON TERMS 10567

In 1988, Sass was convicted of second degree murder,

gross vehicular manslaughter, hit and run death, causing

injury while driving under the influence, and felony drunk

driving. He was sentenced to fifteen years to life with the pos-

sibility of parole. The California Board of Prison Terms (“the

Board”) held Sass’ initial parole consideration hearing on

November 25, 1996, and found him unsuitable for parole.

On March 25, 1999, the Board held a subsequent parole

consideration hearing, and found Sass unsuitable for parole.

The Board found that Sass “would pose an unreasonable risk

of danger to others — to society and a threat to public safety

if released from prison.” The Board cited the “especially cruel

manner” in which his offense was carried out, Sass’ “escalat-

ing pattern of criminal conduct,” and his “unstable social his-

tory with prior criminality” to support its unsuitability

determination. Sass filed a petition for a writ of habeas corpus

in California superior court, contending that the Board’s fail-

ure to set a parole date violated his equal protection and due

process rights. The court found that Sass had not exhausted

his administrative remedies, and rejected Sass’ argument that

it would be futile to pursue administrative remedies because

he exhausted his administrative appeals from the Board’s

1996 unsuitability determination. Despite Sass’ failure to

exhaust administrative remedies, the court denied his habeas

petition on the merits. The California Court of Appeals and

the California Supreme Court also denied habeas petitions

challenging the 1999 unsuitability determination.

On July 27, 2000, the Board held a third parole consider-

ation hearing, and found Sass unsuitable for parole. The

Board found that Sass “would pose an unreasonable risk of

danger to society and a threat to public safety if released from

prison.” The Board cited the “total disregard for human suf-

fering” demonstrated by the manner of his offense and Sass’

previous criminal history to support its determination.2 After

2

Prior to his second degree murder conviction, Sass had been convicted

on seven separate occasions for DUI.

10568 SASS v. CALIFORNIA BOARD OF PRISON TERMS

pursuing an appeal to the Board, Sass filed a habeas petition

in California superior court again alleging that the Board’s

failure to set a parole release date violated his equal protection

and due process rights. The court found that the petition and

supporting documentation failed to set forth sufficient facts to

establish a prima facie case for relief, and denied the petition.

The California Court of Appeals and the California Supreme

Court also denied habeas petitions challenging the 2000

unsuitability determination.

Sass filed a petition for a writ of habeas corpus in the

United States District Court for the Eastern District of Cali-

fornia challenging the Board’s 1996, 1999, and 2000 deci-

sions denying him a parole date. On September 12, 2002, the

district court held that the challenges to the 1996 parole pro-

ceeding were time-barred. The remaining matters were

referred to a magistrate judge.

On March 16, 2005, the magistrate judge recommended

that Sass’ habeas petition be granted and that Sass be given

a parole date within thirty days of the adoption of his findings.

The magistrate judge’s analysis relied on Ninth Circuit cases

holding that California’s statutory scheme gives prisoners a

liberty interest in release on parole, McQuillion v. Duncan,

306 F.3d 895 (9th Cir. 2002), and that the Board’s continued

reliance on immutable factors to deny parole could result in

a due process violation, Biggs v. Terhune, 334 F.3d 910, 917

(9th Cir. 2003). However, it should be noted that Biggs

affirmed a denial of parole after holding that the circum-

stances of the offense and conduct prior to imprisonment con-

stituted some evidence to support the Parole Board’s decision.

Id.

On June 15, 2005, the district court rejected the magis-

trate’s findings and recommendations, and denied Sass’

habeas petition. The district court held that the California

Supreme Court had held in In re Dannenberg, 34 Cal. 4th

1061 (2005), that the language of California Penal Code sec-

SASS v. CALIFORNIA BOARD OF PRISON TERMS 10569

tion 3041 is not mandatory. The district court therefore held

that Sass did not have an associated liberty interest in parole

under clearly established federal law.

On appeal, Sass argues that (1) section 3041 creates a lib-

erty interest in parole and (2) the Board’s decisions denying

him parole violate his due process rights because they are not

supported by some evidence.

II.

We review de novo a district court’s decision to deny a 28

U.S.C. § 2254 habeas petition. Robinson v. Ignacio, 360 F.3d

1044, 1055 (9th Cir. 2004). Section 2254 “is the exclusive

vehicle for a habeas petition by a state prisoner in custody

pursuant to a state court judgment, even when the petitioner

is not challenging his underlying state court conviction.”

White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir. 2004).

Therefore, we review Sass’ habeas petition under the deferen-

tial standard of the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA). The petition cannot be granted unless

the state court decision “was contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States,” or

“was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.”

28 U.S.C. § 2254(d). When a state court does not explain its

reasoning, as is the case here, we must conduct an indepen-

dent review of the record to determine whether the state

court’s decision was objectively unreasonable. Lewis v.

Mayle, 391 F.3d 989, 996 (9th Cir. 2004). Contrary to the dis-

sent’s assertion, we did conduct an independent review of the

record.

III.

We analyze a due process claim in two steps. “[T]he first

asks whether there exists a liberty or property interest which

10570 SASS v. CALIFORNIA BOARD OF PRISON TERMS

has been interfered with by the State; the second examines

whether the procedures attendant upon that deprivation were

constitutionally sufficient.” Ky. Dep’t of Corr. v. Thompson,

490 U.S. 454, 460 (1989) (citation omitted).

[1] Did Sass have a constitutionally protected liberty inter-

est in parole? The Supreme Court has held that “[t]here is no

constitutional or inherent right of a convicted person to be

conditionally released before the expiration of a valid sen-

tence,” Greenholtz v. Inmates of Neb. Penal & Corr. Com-

plex, 442 U.S. 1, 7 (1979). However, if a state statute “uses

mandatory language (‘shall’) to ‘create a presumption that

parole release will be granted’ when the designated findings

are made,” the statute creates a liberty interest in parole. Bd.

of Pardons v. Allen, 482 U.S. 369, 377-78 (1987) (quoting

Greenholtz, 442 U.S. at 12).

[2] When previously confronted with the question whether

section 3041 creates a liberty interest in parole, this court held

that “[u]nder the ‘clearly established’ framework of Green-

holtz and Allen, . . . California’s parole scheme gives rise to

a cognizable liberty interest in release on parole.” McQuillion

v. Duncan, 306 F.3d 895, 902 (2002). Furthermore, this “lib-

erty interest is created, not upon the grant of a parole date, but

upon the incarceration of the inmate.” Biggs v. Terhune, 334

F.3d 910, 915 (2003).3

Sass argues that the district court erred when it interpreted

In re Dannenberg, 34 Cal. 4th 1061 (2005), to hold that sec-

tion 3041 does not use mandatory language and does not

create a liberty interest in parole, thereby superceding

McQuillion and Biggs. Because “a State’s highest court is the

3

Despite the government’s argument that Sandin v. Conner, 515 U.S.

472 (1995), eliminated the “mandatory language” approach of Greenholtz

and Allen, the Supreme Court did not so hold and this court has consis-

tently rejected this argument. See, e.g., McQuillion, 306 F.3d at 903;

Biggs, 334 F.3d at 914.

SASS v. CALIFORNIA BOARD OF PRISON TERMS 10571

final judicial arbiter of the meaning of state statutes,” if the

California Supreme Court did hold that section 3041 does not

use mandatory language, this court’s holdings to the contrary

would no longer control. Gurley v. Rhoden, 421 U.S. 200, 208

(1975).

[3] The district court misread Dannenberg. Dannenberg

addressed the narrow question whether the Board must

engage in a comparative proportionality analysis in setting

parole dates pursuant to section 3041(a) before determining

whether an inmate is suitable for parole pursuant to section

3041(b). 34 Cal. 4th at 1077. Dannenberg held that “[n]othing

in the statute states or suggests that the Board must evaluate

the case under standards of term uniformity before exercising

its authority to deny a parole date on the grounds the particu-

lar offender’s criminality presents a continuing public dan-

ger.” Id. at 1070.

[4] The California court did not hold that section 3041(b)

does not use mandatory language. Dannenberg argued that

“he was denied federal due process rights arising from his

protected liberty interest, and expectation, in a ‘uniform’

parole release date.” Id. at 1098 n.18. The court explained that

“he has such a liberty interest and expectation only to the

extent that state law provides it,” but did not hold that state

law does not provide such a liberty interest. Id. Instead, the

court proceeded to the second step of the due process analysis

- whether the procedures attendant upon a deprivation were

constitutionally sufficient. Id. (rejecting Dannenberg’s argu-

ment “that the Board’s decision lacked the support of ‘some

evidence,’ ” and noting that he “does not contend he was

denied any procedural rights he was constitutionally due in

the course of the Board’s decision”) (citing McQuillion with

approval). The court would not reach this step if it had held

that there was no liberty interest. See Ky. Dep’t of Corr., 490

U.S. at 460. Dannenberg does not explicitly or implicitly hold

that there is no constitutionally protected liberty interest in

parole.

10572 SASS v. CALIFORNIA BOARD OF PRISON TERMS

IV.

[5] Because we hold that Sass has a constitutionally pro-

tected liberty interest in a parole date, we proceed to examine

whether the deprivation of this interest, in this case, violated

due process. See Ky. Dep’t of Corr., 490 U.S. at 460.

[6] In Superintendent v. Hill, the Supreme Court held that

“revocation of good time does not comport with ‘the mini-

mum requirements of procedural due process,’ unless the

findings of the prison disciplinary board are supported by

some evidence in the record.” 472 U.S. 445, 454 (1985)

(quoting Wolff v. McDonnell, 418 U.S. 539, 558 (1974)). To

determine whether the some evidence standard is met “does

not require examination of the entire record, independent

assessment of the credibility of witnesses, or weighing of the

evidence. Instead, the relevant question is whether there is

any evidence in the record that could support the conclusion

reached by the disciplinary board.” Id. at 455-56. This court

held that although Hill involved the accumulation of good

time credits instead of a parole denial, the some evidence

standard applies in both situations because “both directly

affect the duration of the prison term.” Jancsek v. Or. Bd. of

Parole, 833 F.2d 1389, 1390 (9th Cir. 1987).

A.

The state contends that use of the some evidence standard

in the parole context is not clearly established by the Supreme

Court for AEDPA purposes. The Supreme Court has held that

a state can create a liberty interest in parole, Greenholtz, 442

U.S. 1, Allen, 482 U.S. 369, and that a liberty interest cannot

be interfered with unless the requirements of due process are

satisfied, Ky. Dep’t of Corr., 490 U.S. 454. Although the

Court has not specifically identified how these requirements

are satisfied in the parole context, it follows from these prece-

dents that due process must be satisfied.

SASS v. CALIFORNIA BOARD OF PRISON TERMS 10573

[7] Hill’s some evidence standard is minimal, and assures

that “the record is not so devoid of evidence that the findings

of the disciplinary board were without support or otherwise

arbitrary.” Hill, 472 U.S. at 457. Hill held that although this

standard might be insufficient in other circumstances, “[t]he

fundamental fairness guaranteed by the Due Process Clause

does not require courts to set aside decisions of prison admin-

istrators that have some basis in fact.” Id. at 456. To hold that

less than the some evidence standard is required would violate

clearly established federal law because it would mean that a

state could interfere with a liberty interest — that in parole —

without support or in an otherwise arbitrary manner. We

therefore reject the state’s contention that the some evidence

standard is not clearly established in the parole context.

B.

[8] In making a judgment call based on evidence of pre-

conviction recidivism and the nature of the conviction

offense, the Board cannot be categorized as acting arbitrarily.

Here, the Board based its finding that Sass was unsuitable for

parole on the gravity of his convicted offenses in combination

with his prior offenses. These elements amount to some evi-

dence to support the Board’s determination. Sass contends

that reliance on this immutable behavioral evidence violates

due process. While upholding an unsuitability determination

based on these same factors, we previously acknowledged

that “continued reliance in the future on an unchanging factor,

the circumstance of the offense and conduct prior to imprison-

ment, runs contrary to the rehabilitative goals espoused by the

prison system and could result in a due process violation.”

Biggs, 334 F.3d at 917 (emphasis added). Under AEDPA it is

not our function to speculate about how future parole hearings

could proceed. Cf. id. The evidence of Sass’ prior offenses

and the gravity of his convicted offenses constitute some evi-

dence to support the Board’s decision. Consequently, the state

court decisions upholding the denials were neither contrary to,

nor did they involve an unreasonable application of, clearly

10574 SASS v. CALIFORNIA BOARD OF PRISON TERMS

established Federal law as determined by the Supreme Court

of the United States. 28 U.S.C. § 2254(d).

While the district court decision is correct under the

AEDPA standard of review, we have pointed out that the dis-

trict court based its decision on an erroneous reading of the

California Supreme Court in Dannenberg. However, under

the law of this circuit, “[w]e may affirm the district court’s

decision on any ground supported by the record, even if it dif-

fers from the district court’s rationale.” Lambert v. Blodgett,

393 F.3d 943, 965 (9th Cir. 2004).

AFFIRMED.

REINHARDT, Circuit Judge, dissenting:

I am compelled to dissent from the majority’s refusal to

grant relief to a person whose continued incarceration “runs

contrary to the rehabilitative goals espoused by the prison sys-

tem and could result in a due process violation,” Maj. Op. at

10573 (quoting Biggs v. Terhune, 334 F.3d 910, 917 (9th Cir.

2003) (emphasis added)) — a person who is currently entitled

to relief under any rational application of the law. The major-

ity offers no reasoned explanation for this refusal, no doubt

because its decision to deny relief finds no support in either

law or logic.

Before I explain why the majority’s decision is erroneous,

it may be helpful if I set forth the nature of Brian Sass’s

offense and briefly identify the rules governing the California

Parole Board’s authority to grant or deny eligibility for parole

in such cases. Sass was convicted of second degree murder as

the result of a death he caused while driving under the influ-

ence of alcohol in July of 1987, and he was sentenced to fif-

teen years to life in prison.1 After years of extensive and

1

He had previously had seven DUI’s but, inexplicably, had apparently

never previously received a jail sentence.

SASS v. CALIFORNIA BOARD OF PRISON TERMS 10575

successful participation in alcohol rehabilitation programs, his

prior state of active alcoholism is now as “cured” as such an

ailment can ever be, and he possesses an essentially unblem-

ished record of conduct in prison.2 These facts notwithstand-

ing, he has thrice3 been denied parole.4 The California rules

governing parole in murder cases, for which parole eligibility

is provided by statute,5 are as follows. “[P]arole eligibility is

the rule, rather than the exception.”6 “[P]arole is ‘normally’ to

be granted.”7 The murder giving rise to the prisoner’s incar-

ceration must be “particularly egregious” for parole to be

denied.8 Indeed, a murder must be “heinous, atrocious or

cruel” if, as here, the offense is to serve as the basis for parole

denial.9 In addition, in such cases, the prisoner must presently

present a danger to society.10 In short, in Sass’s case, the cir-

cumstances surrounding the crime or the manner in which it

2

Sass had only two minor disciplinary notices on his record as of 2000.

Once he spoke too loudly on the telephone and once he participated in a

work stoppage. The most recent of the notices was six years before the

2000 parole hearing.

3

Sass was denied parole in 1996, 1999, and 2000. He challenges the

results of both the 1999 and 2000 parole proceedings. Because Sass is

entitled to the relief he seeks if he prevails on either challenge and because

I conclude that he is entitled to prevail on both, essentially for the same

reasons, I will discuss only the 2000 denial, the more recent of the two.

4

The supplemental record reflects that the Parole Board has persisted in

its unlawful course of conduct in the time since its denial of Sass’s petition

in 2000. The most recent denial occurred in February of 2006. The Board

will not hear his application again until an as yet undetermined date in

2008.

5

See 15 Cal. Code Regs. § 2402. California also has two categories of

murders for which parole is not permissible. One involves life without the

possibility of parole (L.W.O.P.). The other involves death-eligible mur-

ders for which capital punishment may be imposed.

6

In re Scott, 119 Cal. App. 4th 871, 891 (2004).

7

Id. (quoting Cal. Pen. Code § 3041(a)).

8

In re Rozenkrantz, 29 Cal. 4th 616, 683 (2002).

9

15 Cal. Code Regs. § 2402(c)(1).

10

Cal. Pen. Code § 3041(b).

10576 SASS v. CALIFORNIA BOARD OF PRISON TERMS

was committed must show not only that the second degree

murder at issue was more cruel or vicious than the ordinary

second degree murder,11 but also that Sass would likely pose

a current risk to public safety if released. The record in this

case contains absolutely no evidence that would meet either

of the two requirements. Thus, there can be little doubt that

the Board violated the applicable rules when it denied Sass

parole solely on the basis of his commitment offense and pre-

offense conduct.

Turning to the majority’s brief opinion, ninety-plus percent

of it is correct. The initial forty-five percent constitutes an

accurate recitation of the facts. The next forty-five plus per-

cent generally describes the applicable law correctly and

properly rejects the state’s basic legal positions that: (1) there

is no liberty interest in parole, and (2) the legal standard for

reviewing parole decisions is not clearly established. It is only

in its next-to-last paragraph that the majority summarily dis-

cusses Brian Sass’s case12 and, in the last two sentences of

that paragraph, dismisses his constitutional claim on the

ground that “[t]he evidence of Sass’ prior offenses and the

gravity of his convicted offenses constitute some evidence to

support the Board’s decision,” and therefore “the state court

decisions upholding the denials were neither contrary to, nor

did they involve an unreasonable application of, clearly estab-

lished Federal law as determined by the Supreme Court of the

11

It could be argued that in order to deny parole suitability on the basis

of the nature of the offense, the second degree murder involved must be

more cruel or vicious than the average murder, first or second degree,

rather than simply the average second degree murder. It is not necessary

for us to consider that argument, however, as the drunk driving offense

that caused the victim’s death was, as I will show, less not more, egregious

than the run-of-the-mill second degree murder.

12

The last paragraph merely repeats, unnecessarily, a well established

and uncontroverted legal proposition regarding the power of the courts of

appeal to affirm a district court’s decision on any ground supported in the

record, a proposition hardly deserving of constituting the conclusion to

this exercise in judicial abdication of responsibilities.

SASS v. CALIFORNIA BOARD OF PRISON TERMS 10577

United States.” Maj. Op. at 10573-74. It is from this unsup-

ported and unsupportable conclusion of the majority that I

must dissent.

The cursory nature of the majority’s treatment of the cen-

tral issue in this case is startling. The majority offers no expla-

nation as to why it finds that either Sass’s pre-offense conduct

or commitment offense constitutes some evidence that he is

presently a danger to society, nor does it explain why the sec-

ond degree murder he committed was particularly egregious

in comparison to other second degree murders. The failure to

provide any rationale for its conclusion is particularly strik-

ing, given that it follows by only two sentences a quotation

from a recent case of ours, decided under AEDPA, that says

that reliance on a prisoner’s offense and on his pre-offense

conduct to deny parole can in some instances constitute a due

process violation. Maj. Op. at 10573 (quoting Biggs, 334 F.3d

at 917). The majority makes no attempt to explain why reli-

ance on these factors in this case was proper and did not vio-

late Sass’s right to due process. Indeed, the majority merely

cites Biggs and then blithely ignores it.

Even a cursory review of the record in this case demon-

strates that the state court’s decision was unreasonable under

the applicable “some evidence” rule. The record simply does

not contain any evidence that Sass’s act of second degree

murder was, in contrast to the large majority of such offenses,

particularly egregious. Nor does it contain any evidence that

Sass is currently a threat to society. Given that both findings

are required by California law, see Section II.B.(1) infra,

there is zero evidence in the record to support the Board’s

decision. Although the majority says that it “conduct[ed] an

independent review of the record” in light of the fact that the

state court did not explain its reason for denying relief, Maj.

Op. at 10569, it appears not to have done so. At least, if it did

review the record, it keeps its results a secret. Indeed, it points

to not a scrap of evidence in the record for any purpose, and

instead merely declares, without any analysis or explanation,

10578 SASS v. CALIFORNIA BOARD OF PRISON TERMS

that the offense of which Sass was convicted and his prior

conduct constitute “some evidence.” Maj. Op. at 10573.

Whether Sass’s particular offense and his particular conduct

can provide “some evidence,” under California law and the

United States Constitution, is, of course, the legal issue in this

case. It is not an acceptable answer simply to say, as the

majority does, without any explanation at all, “they do.”

The majority’s summary dismissal of Sass’s constitutional

arguments has particularly unfortunate consequences. The

fact that Sass’s offense and prior DUI’s, in and of themselves,

are held to be enough to justify his present detention necessar-

ily means that they are enough to justify his detention indefi-

nitely, regardless of the majority’s protestations as to what it

is actually deciding. Maj. Op. at 10573. Under today’s opin-

ion, the Board may treat all recovering alcoholics as a perma-

nent danger to society, regardless of their level of recovery

and of the state of their rehabilitation generally, and thus deny

all such individuals parole eligibility for the remainder of

their lives, no matter how deserving of release they may be.

The policy that the majority declines to overturn is not only

ignorant and cruel, but unconstitutional, a point that the

majority does not deign to discuss.

I.

It is worth noting at the outset that the issue before us is

whether Brian Sass is suitable for parole, not when he should

be released. Under the California parole system, the Board’s

initial task with respect to an inmate serving an indeterminate

sentence is to determine whether he is suitable for parole —

that is, whether he “pose[s] an unreasonable risk of danger to

society if released from prison.” 15 Cal. Code Regs. § 2402.13

13

The regulations governing the parole process provide six nonexclusive

factors tending to show unsuitability for parole and nine nonexclusive fac-

tors tending to show suitability. The factors tending to show unsuitability

are: (1) Commitment Offense; (2) Previous Record of Violence; (3) Unsta-

SASS v. CALIFORNIA BOARD OF PRISON TERMS 10579

Only after the Board deems an inmate suitable is a release

date set. 15 Cal. Code Regs. § 2282; see also In re Dannen-

berg, 34 Cal. 4th 1061, 1071 (2005) (“[A] determination of

individual suitability must precede the setting of a . . . parole

release date.”). The actual parole release date may well be a

number of years in the future. Under Board regulations, the

parole date is established using a matrix that takes into

account the inmate’s offense of imprisonment and the circum-

stances in which it was committed. 15 Cal. Code Regs.

§ 2282. The matrix is intended to ensure sentencing unifor-

mity among those who commit similar crimes. See Dannen-

berg, 34 Cal. 4th at 1078-79. Such considerations are, of

course, inapplicable in the case of prisoners deemed unsuit-

able for parole. Id. at 1080.

In the 2000 determination challenged by Sass in his habeas

petition, the Board deemed him unsuitable for parole. Thus,

a writ would simply require that the Board set a parole date

for him pursuant to the procedures set forth in its regulations.

II.

A.

The majority is correct that Sass’s petition is governed by

AEDPA and that we therefore may not grant the relief he

seeks unless the state court decisions that he challenges are

ble Social History; (4) Sadistic Sexual Offenses; (5) Psychological Fac-

tors; and (6) Institutional Behavior. 15 Cal. Code Regs. § 2402(c). In

terms of the first factor, “Commitment Offense,” the regulations explain

that it tends to show unsuitability when “[t]he prisoner committed the

offense in an especially heinous, atrocious or cruel manner.” Id. at

§ 2402(c)(1). The factors indicating suitability for parole are: (1) No Juve-

nile Record; (2) Stable Social History; (3) Signs of Remorse; (4) Motiva-

tion for the Crime; (5) Battered Woman Syndrome; (6) Lack of Criminal

History; (7) Age; (8) Understanding and Plans for the Future; and (9)

Institutional Behavior. 15 Cal. Code Regs. § 2402(d).

10580 SASS v. CALIFORNIA BOARD OF PRISON TERMS

“contrary to, or involve[ ] an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States.” 28 U.S.C. § 2254(d)(1). AEDPA

limits the source of clearly established federal law to Supreme

Court precedent, including the legal principles that flow from

that precedent. Id.; Cooper-Smith v. Palmateer, 397 F.3d

1236, 1242 (9th Cir. 2005). Here, the majority and I agree

that, unlike in so many AEDPA cases, the controlling United

States Supreme Court law is clearly established: A parole

board’s decision, like a prison disciplinary board’s decision,

deprives a prisoner of due process if it is not supported by

“some evidence” or is “otherwise arbitrary.” Hill, 472 U.S. at

457; see McQuillion v. Duncan, 306 F.3d 895, 904 (9th Cir.

2002) (I sometimes refer to this as the “some evidence” rule

and sometimes the “Hill” rule.). If a state court’s decision that

a parole board’s determination is both supported by “some

evidence” and not “otherwise arbitrary” constitutes an unrea-

sonable application of Hill, the court decision must be

reversed under AEDPA and the writ must be granted.

Although the majority recognizes that the Supreme Court has

clearly established that the “some evidence” rule applies in

the parole context, Maj. Op. at 10572-73, it provides no

explanation of how the Board’s determination in this case sat-

isfies the “some evidence” portion of the Hill rule, and it does

not even acknowledge the “otherwise arbitrary” portion of the

rule.

The majority correctly notes that we must conduct an inde-

pendent review of the record to determine whether the state

court decision rejecting Sass’s challenge to the Board’s denial

of parole suitability in 2000 constitutes an objectively unrea-

sonable application of federal law. Maj. Op. at 10569. In rati-

fying the Board’s determination, the state court did not offer

any indication of the basis for its decision. The only explana-

tion it provided is: “The petition and supporting documenta-

tion fail to set forth sufficient facts to establish a prima facie

case for the relief requested, as required by law.” This is

SASS v. CALIFORNIA BOARD OF PRISON TERMS 10581

plainly inadequate to allow us to evaluate the decision.14 In

that circumstance, “an independent review of the record is

required to determine whether the state court clearly erred in

its application of controlling federal law. Only by that exami-

nation may we determine whether the state court’s decision

was objectively reasonable.” Delgado v. Lewis, 223 F.3d 976,

982 (9th Cir. 2000) (internal citation omitted); see also Pham

v. Terhune, 400 F.3d 740, 742 (9th Cir. 2005); Himes v.

Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Mor-

gan, 313 F.3d 1160, 1167 (9th Cir. 2002) (“We have relaxed

AEDPA’s strict standard of review when the state court

reaches a decision on the merits but provides no reasoning to

support its conclusion.”).

As noted above, although the majority states that it inde-

pendently reviewed the record, Maj. Op. at 10569, there is no

hint in its opinion that it actually did so. It fails to apply Hill’s

“some evidence” test to the facts of this case, merely stating

by way of unsupported conclusion that “Sass’ prior offenses

and the gravity of his convicted offenses constitute some evi-

dence to support the Board’s decision.” Maj. Op. at 10573. It

reaches this conclusion without any analysis, legal or factual,

of the contents of the record, and without any explanation as

to how the evidence can satisfy the Hill standard or why it

does. Why, for example, does this particular conviction con-

stitute “some evidence” that Sass presently constitutes a dan-

ger to society? Why is this offense “particularly grave”? How

can this offense be deemed particularly “heinous, atrocious, or

cruel” relative to other second degree murders? And why is

the state court decision not “arbitrary”? As I have mentioned

earlier and will discuss further later, not all second degree

murder convictions can constitute “some evidence” under

California’s parole system; to the contrary, only a small num-

ber do.

14

The decision we review is that of the trial court. The state appeals

court and state supreme court both simply denied Sass’s petition without

explanation.

10582 SASS v. CALIFORNIA BOARD OF PRISON TERMS

Even the most perfunctory review of the Board’s determi-

nation in 2000, and the rationale it offers to justify it, reveals

that its decision is not supported by “some evidence” and that

it is “otherwise arbitrary.” Had the majority truly conducted

an independent analysis of the record, it would have had no

choice but to conclude that the state court decision constitutes

an unreasonable application of Hill. It also would have been

required to undertake the task of explaining what in the record

makes Sass’s conviction such as to warrant the conclusion

that, regardless of the extent of his rehabilitation, he remains,

indefinitely, unsuitable for parole, or what in the record justi-

fies singling out Sass’s case from the vast majority in which

individuals who have been convicted of second degree murder

become eligible for an early parole date in the absence of

prison conduct that demonstrates a lack of suitability. In other

words, it would have had to explain what evidence in the

record supports a conclusion that Sass’s offense was “particu-

larly egregious” and “heinous, atrocious, or cruel.” Because

the majority fails to do so, I will now undertake the requisite

Hill analysis as prescribed by AEDPA.

B.

As the outset, it is important to recall that the majority does

not discuss a critical question underlying Sass’s case —

whether past active alcoholism may provide a basis for indefi-

nite denial of parole, regardless of the extent of the individu-

al’s recovery and of his general rehabilitation. That it may

(and that it does in this case) is the necessary premise of the

majority’s holding that Sass’s prior conviction and earlier

drunk driving offenses constitute “some evidence” that he is

unsuitable for the setting of a parole eligibility date. I do not

think that we can in good conscience pretend that the unmen-

tioned elephant is not with us.

SASS v. CALIFORNIA BOARD OF PRISON TERMS 10583

(1)

The majority acknowledges that the only factually-

supported reasons relied upon by the Board in its 2000 suit-

ability determination were Sass’s offense of imprisonment

and his earlier DUI record. It fails to note, however, that the

mere fact of a conviction for second degree murder does not

in and of itself constitute “some evidence” of unsuitability for

parole. Under California law, the Board may not deny an

inmate parole solely on the basis that he was convicted of sec-

ond degree murder. Rather, the murder must have been com-

mitted in a manner that is “heinous, atrocious or cruel” for it

to constitute “some evidence” that an inmate is unsuitable for

parole. 15 Cal. Code Regs. § 2402(c)(1). The California

courts have explained that “[a] conviction for murder does not

automatically render one unsuitable for parole. Rather, the

Regulations reveal that the gravity of an offense tends to show

unsuitability where the circumstances of the crime distinguish

it as especially grave.” In re Smith, 114 Cal. App. 4th 343,

366 (2003) (emphasis added) (internal citation omitted); see

also In re Rosenkrantz, 29 Cal. 4th 616, 683 (2002) (“[A] life

term offense or any other offenses underlying an indetermi-

nate sentence must be particularly egregious to justify the

denial of a parole date.”); In re Scott, 119 Cal. App. 4th 871,

891 (2004) (emphasis added) (“[P]arole is the rule, rather than

the exception, and a conviction for second degree murder

does not automatically render one unsuitable.”). This is

because “the [California] Legislature has clearly expressed its

intent that when murderers—who are the great majority of

inmates serving indeterminate sentences—approach their

minimum eligible parole date, the Board ‘shall normally set

a parole release date.’ The Board’s authority to make an

exception based on the gravity of a life term inmate’s current

or past offenses should not operate so as to swallow the rule

that parole is ‘normally’ to be granted.” Id. (quoting Cal. Pen.

Code. § 3041(a)). Moreover, where, as here, the gravity of the

offense is the sole basis for a determination of unsuitability,

that gravity must also demonstrate that at the time of the hear-

ing the inmate poses a present danger to society. See Cal. Pen.

Code. § 3041; In re Dannenberg, 34 Cal. 4th at 1096. In sum,

10584 SASS v. CALIFORNIA BOARD OF PRISON TERMS

the circumstances surrounding the crime or the manner in

which it was committed must show not only that the second

degree murder at issue is more callous, cruel or vicious than

the ordinary second degree murder, but that the inmate would

likely pose a current risk to public safety if released. Other-

wise, the Board cannot find him unsuitable for parole on the

basis of the gravity of the offense of imprisonment.15

When we assess whether a state parole board’s suitability

determination is supported by “some evidence” in a habeas

case, our analysis is framed by state law. The statute and reg-

ulations governing parole suitability determinations in a par-

ticular state dictate what factors the parole board in that state

may consider in deciding whether an inmate is suitable for

parole. In other words, the state rules and regulations dictate

the nature of the findings that are required before a determina-

tion can be made that an inmate is unsuitable for parole. Only

evidence that would tend to support such findings constitutes

“some evidence.” Thus, although federal law establishes the

“some evidence” standard, state law tells us of what that evi-

dence may consist, and to what it must pertain. Here, as I

have explained, the California statute and regulations provide

that an offense must be committed in an exceptionally callous

or particularly egregious manner for an inmate’s offense to

justify a determination that he is unsuitable for parole. Also,

the inmate must constitute a present danger to society at the

time of the suitability hearing. Accordingly, as a habeas court,

we must look to whether there is “some evidence” that Sass

committed his offense of imprisonment in a manner that dis-

tinguishes it from the vast majority of second degree murders,

that shows that Sass’s offense was more “heinous, atrocious,

or cruel” than most other such offenses. We must also look to

see that there is some evidence that as of the date of Sass’s

parole denial he was a present danger to society.

15

Of course, the Board can find an inmate unsuitable for parole on the

basis of factors having nothing to do with the offense of commitment,

such as his violent institutional behavior or demonstrated inability to

adjust to societal norms. See supra note 13.

SASS v. CALIFORNIA BOARD OF PRISON TERMS 10585

The majority cites the “gravity” of the offense but offers

not a word as to what makes the offense grave, let alone more

grave than the run-of-the-mill second degree murder. It also

fails to offer a clue as to what it is that makes Sass a current

threat to public safety. The state court ruling suffers from the

same defects.16 From my independent review of the record,

however, and specifically the Board’s decision and the tran-

script of the parole hearing, it is plain that the only factor that

could even arguably provide a basis for a finding that the

offense was particularly grave or that Sass poses a present

danger to society is his active alcoholism at the time of the

criminal offense — the factor that caused him to commit the

crime for which he is imprisoned.17

16

Both state court rulings, like the majority’s ruling, also fail to

acknowledge that the record before the Board contained extensive evi-

dence of Sass’s exemplary conduct in prison and his detailed plans for the

future if released — evidence that is highly probative of the fact that Sass

presented no present threat to society at the time of the 2000 hearing.

Sass’s conduct in prison and the activities he participated in while an

inmate “indicat[ed] an enhanced ability to function within the law upon

release,” and allowed him to develop “marketable skills that can be put to

use upon release,” two factors that tend to show suitability for parole

under the California regulations. See 15 Cal. Code Regs. § 2402(d)(8), (9).

As discussed above, the record considered by the Board in 2000 demon-

strated that Sass’s conduct in prison was essentially without fault. Further-

more, by the time of the 2000 hearing, Sass had completed vocational

automobile mechanics, received numerous certificates relating to particu-

lar vocational skills he mastered, passed the Automotive Service Excel-

lence (ASE) test, and served as an apprentice. He also had taken almost

two and a half years worth of college classes, for which he received all

A’s except for one B minus. This evidence also offers strong affirmative

support for Sass’s contention that he was not a present threat to public

safety at the time of the 2000 proceeding and thus that he was suitable for

parole eligibility at that point.

17

The prior DUIs on which the Board and the majority also rely are sim-

ply manifestations of the same alcoholism and thus do not constitute an

independent factor on which to judge the egregiousness of Sass’s offense

or especially his present dangerousness. Accordingly, I do not consider

them separately from the circumstances of his offense of imprisonment.

They are relevant to that offense, however, in that it was only the prior

DUIs that allowed the jury to convict Sass of second degree murder

instead of vehicular manslaughter. Yet, even with the DUIs, Sass’s offense

barely qualifies as a second degree murder, and not as a particularly egre-

gious such offense.

10586 SASS v. CALIFORNIA BOARD OF PRISON TERMS

The regulations governing the parole process specifically

identify five factors to be considered in determining whether

the manner in which the inmate committed his offense of

imprisonment is so egregious as to demonstrate unsuitability

for parole. Those factors include that: “The offense was car-

ried out in a manner which demonstrates an exceptionally cal-

lous disregard for human suffering.”; “Multiple victims were

attacked, injured or killed in the same or separate incidents.”;

“The offense was carried out in a dispassionate and calculated

manner, such as an execution-style murder.”; “The victim was

abused, defiled or mutilated during or after the offense.”; and

“The motive for the crime is inexplicable or very trivial in

relation to the offense.” 15 Cal. Code Regs. § 2402(c)(1)(A)-

(E). The only one of these factors that the Board relied upon

in making its 2000 suitability determination provides that an

offense is considered especially egregious when it “was car-

ried out in a manner which demonstrates an exceptionally cal-

lous disregard for human suffering.” 15 Cal. Code Regs.

§ 2402(c)(1)(D). The Board held that because Sass committed

the crime as a result of driving a vehicle under the influence,

“[t]he offense was carried out in a manner which demon-

strates a total disregard for human suffering.” This conclusion

is not supported by “some evidence,” and is clearly arbitrary.

See Section II.B.(2), infra. Similarly, a conclusion that a

crime committed by a then active alcoholic acting under the

influence of alcohol over a decade earlier (now almost a gen-

eration earlier) in and of itself demonstrates that an individual

currently poses a threat to public safety would be without sup-

port in the evidence and “otherwise arbitrary.”

(2)

That Sass committed his offense of imprisonment due to

his alcoholism simply does not constitute “some evidence”

that his offense “was carried out in a manner which demon-

strates an exceptionally callous disregard for human suffer-

ing,” and it certainly does not show that his offense was

carried out in a manner that is more callous than most second

SASS v. CALIFORNIA BOARD OF PRISON TERMS 10587

degree murders. Sass’s conduct — committing the crime

under the influence of alcohol — does not even begin to

approach the examples offered in the parole regulations of

conduct which constitutes “exceptionally callous disregard for

human suffering.” Those examples include:

“[T]orture,” as where the “[v]ictim was subjected to

the prolonged infliction of physical pain through the

use of non-deadly force prior to act resulting in

death,” and “severe trauma,” as where “[d]eath

resulted from severe trauma inflicted with deadly

intensity; e.g., beating, clubbing, stabbing, strangula-

tion, suffocation, burning, multiple wounds inflicted

with a weapon not resulting in immediate death or

actions calculated to induce terror in the victim.”

In re Scott, 119 Cal. App. 4th at 892 (quoting 15 Cal. Code

Regs. § 2282). The type of criminal conduct that is suffi-

ciently callous to meet this high standard is illustrated in In

re Van Houten, 116 Cal. App. 4th 339 (2004). There, the

inmate’s offense of imprisonment was her involvement in the

stabbing murders of a husband and wife. The victims were

stabbed multiple times with a knife, bayonet, and carving

fork. Id. at 351. The court noted that the husband’s death was

“peculiarly cruel, stabbed with a knife through his throat and

a carving fork plunged in his stomach,” and that “[a] particu-

larly poignant cruelty was inflicted on [the wife], who strug-

gled for her life while hearing her husband meet his gruesome

fate.” Id. The fact that Sass committed his crime as a result

of his addiction to alcohol, although undoubtedly regrettable,

does not suggest that he is possessed of a similar streak of

extreme callousness or cruelty.

As a California court recently explained in rejecting a

determination that an inmate committed a crime with callous

disregard for the victim’s suffering:

There is no evidence that [the inmate] acted with

cold, calculated, dispassion; or that he tormented,

10588 SASS v. CALIFORNIA BOARD OF PRISON TERMS

terrorized, or injured [the victim] before deciding to

shoot her; or that he gratuitously increased or unnec-

essarily prolonged her pain and suffering. . . . Was

the crime callous? Yes. However, are the facts of the

crime some evidence that [the inmate] acted with

exceptionally callous disregard for [the victim’s] suf-

fering; or do the facts distinguish this crime from

other second degree murders as exceptionally cal-

lous? No.

In re Smith, 114 Cal. App. 4th at 367.

The exact same analysis is applicable in Sass’s case. The

manner in which he committed his offense (i.e., under the

influence of alcohol) did not reflect calculation or dispassion.

Rather, it was a manifestation of his addiction to alcohol, an

addiction that profoundly impaired his judgment. His addic-

tion certainly does not relieve him of criminal responsibility,

but it does demonstrate that his crime was not one of cold cal-

culation, dispassion, or extreme callousness. Sass did not tor-

ment or torture the victim before killing her, nor he did

prolong her pain or suffering unnecessarily. In other words,

although some might term his criminal act callous because he

committed it while under the influence of alcohol, Sass’s

alcoholism simply does not render the offense exceptionally

callous, and certainly not more callous than most second

degree murders — if indeed an act committed as a result of

alcoholism can be called “callous” (rather than “compulsive”)

at all. Accordingly, under California law, Sass’s offense of

imprisonment does not constitute “some evidence” that he is

unsuitable for parole.

(3)

Even if Sass’s alcoholism had made his offense egregious

at the time it was committed, whether on the basis of extreme

“callousness” or one of the other factors listed in the parole

regulations, it would not constitute “some evidence” that he

SASS v. CALIFORNIA BOARD OF PRISON TERMS 10589

was a current danger to public safety in 2000. Under Califor-

nia Penal Code § 3041 and 15 California Code of Regulations

§ 2402, parole eligibility may not be denied unless the record

shows that the petitioner presents a danger to society at the

time of his parole hearing. See In re Dannenberg, 34 Cal. 4th

at 1071 (holding a denial of parole suitability based on “the

crime for which the inmate was committed” requires that the

Board conclude that “the particular facts of the offense make

it unsafe, at that time, to fix a date for the prisoner’s release”)

(emphasis added) (citing Cal. Penal Code § 3041); see also id.

at 1080 (explaining that under 15 Cal. Code Regs. § 2402(a)

the suitability inquiry requires the Board to determine whether

“the circumstances of a particular murder persuade [it] that

the prisoner who committed it is presently too dangerous to

grant a fixed parole release date”).

In the context of assessing present dangerousness, alcohol-

ism is analogous to a mental disorder: To demonstrate that an

individual who committed a crime due to such a disorder con-

stitutes a present danger, it is not enough for the Board to con-

clude that the inmate suffered from the disorder at the time of

the offense. Rather, it must be shown that at the point that his

suitability for parole is determined, the inmate still suffers

from the disorder to the extent that he remains a present dan-

ger. Specifically, the Board cannot establish that a recovering

alcoholic is a present danger to society on the basis of the fact

he was an active alcoholic at the time of his offense; instead,

it must show that he is an active alcoholic at the time of the

suitability determination, or that he is likely to fall off the

wagon if released.

The Board did not rely on any evidence that Sass was an

active alcoholic in 2000 or that he was likely to resume drink-

ing, and indeed it could not have done so, because, by that

point, Sass had unquestionably demonstrated that he was as

recovered from his alcoholism as it is possible for an individ-

ual to be. There is not a scintilla of evidence in the record that

suggests that he would be likely to resume drinking if he was

10590 SASS v. CALIFORNIA BOARD OF PRISON TERMS

released. It is undisputed that prior to entering prison Sass had

an alcohol abuse problem that he refused to acknowledge and

for which he refused to seek treatment. However, while incar-

cerated, Sass has taken all possible steps to address and over-

come his alcoholism. He has participated in Alcoholics

Anonymous (“AA”) since January 1992, the earliest time at

which he could enroll in the program, given his custody sta-

tus, and has proven his dedication to sobriety and his ability

to resist temptation. As the record before the Board shows, the

doctors who treated Sass explained that he had recovered to

the greatest extent possible for an alcoholic and that he had

been in that state of recovery for many years. By 2000, there

was nothing more that Sass could do while in prison to

change his situation with respect to his alcoholism.18

In light of Sass’s circumstances, it is not surprising that in

explaining its decision in 2000 that he was not suitable for

parole, the Board failed to cite any evidence that Sass would

have been more likely to relapse twelve years after he had last

abused alcohol than had he appeared before it in another five,

ten, twenty, or even fifty years hence. Indeed, all the evidence

available to the Board in 2000 was to the effect that he had

successfully pursued all measures available to ensure that he

would not again lapse into alcoholic behavior.19 With respect

18

The psychologist’s 2005 assessment, expressly based on the prior psy-

chological evaluations and using language that echoes that contained in

the previous reports, stated that although “[r]elapsing in the use of alcohol

is always a possibility . . . this individual has taken care of this problem

by his positive programming and being in treatment for this problem, hav-

ing a sponsor in the community, and lots of support.” Similarly a 2002

assessment, also invoking language similar to that used in prior reports

presented to the Board, stated that Sass “is no more a danger to other peo-

ple than any other parolee who is actively involved in their recovery of

themselves and whatever addiction they may have.”

19

The record before the Parole Board in 2000 not only contained evi-

dence regarding Sass’s longstanding participation in AA, it also reflected

his participation in numerous other self-help classes. The Board itself

characterized his involvement with these classes as “extensive” and the list

SASS v. CALIFORNIA BOARD OF PRISON TERMS 10591

to its 2000 decision (and its decision the previous year), there

was no evidence to the contrary before the Board — no evi-

dence suggesting that Sass’s maximally treated alcoholism

left him a current danger to society, that concerns of public

safety required a lengthier period of incarceration, or that,

even if he remained in prison indefinitely, there were any fur-

ther steps he could take or treatment he could undergo that

would render him more suitable for parole. In sum, the record

is barren of any testimony, report, study, or other facts that

suggest that Sass was more dangerous in 2000, over a decade

after the deadly accident, than any other person who has ever

been an active alcoholic, or than any previously law-abiding

member of society.20

As a result, not only is it clear that the manner in which

Sass committed his crime could not ever have constituted evi-

dence that would justify labeling his offense “exceptionally

egregious,” it is equally clear that his conduct in 1987 could

not provide any evidence that he was a current danger to soci-

ety at the time of his 2000 parole hearing. The Board’s unex-

plained conclusion to the contrary is without evidentiary

support and is entirely belied by the record before us. Besides

his alcoholism, the Board offered no other evidence that sug-

gests that Sass was a danger to society in 2000. Accordingly,

of classes he had attended as “very very long.” In addition, the Board had

before it evidence of the detailed plans that Sass had made for maintaining

his recovery when released from prison. He submitted letters showing that

he had been accepted to two consecutive 90-day substance abuse treatment

programs that he would attend upon his release, and he identified the indi-

vidual who would serve as his AA sponsor when he left prison. Further-

more, Sass explained to the Board that, in addition to his work with AA,

he would also attend meetings of his religious group five days a week,

meetings that would also help him maintain his recovery.

20

There is also no evidence that Sass is any more dangerous now, over

nineteen years after he last consumed alcohol, than any other recovering

alcoholic; yet, according to the supplemental record, the Board has contin-

ued to rely solely on his alcoholism to refuse repeatedly to set a date for

his parole in the 6 years since 2000.

10592 SASS v. CALIFORNIA BOARD OF PRISON TERMS

the state court’s decision affirming the Board’s suitability

determination is, without question, an unreasonable applica-

tion of the “some evidence” portion of the Hill rule.

Regrettably, the majority refused to undertake the legal

analysis that would have unquestionably led it to the conclu-

sion that Sass is being held in prison unconstitutionally. It

refused to do so because it ignored the admonition of the Cali-

fornia Court of Appeals that “[t]he exceedingly deferential

nature of the ‘some evidence’ standard of judicial review . . .

does not convert a court reviewing the denial of parole into

a potted plant.” In re Scott, 119 Cal. App. 4th at 898 (internal

citation omitted). In doing so, it has abdicated its responsibil-

ity as a habeas court.

(4)

The Board’s suitability determination has highly disturbing

implications for Sass’s future and the future of all other recov-

ering alcoholics who are imprisoned for crimes they commit-

ted as a result of their alcoholism. Because the record before

the Board in 2000 offered no evidence that Sass’s alcoholism

made him a current public safety threat, and because there

was nothing more that Sass could have done in 2000 to fur-

ther perfect his recovery, the Board’s rationale for denying

him suitability for parole suggests that he and all formerly

active alcoholics may be denied parole for the rest of their

lives. In short, if the fact that Sass had been an active alco-

holic in 1987 constituted “some evidence” that he was a threat

to public safety in 2000, even though he was at that point as

recovered as it is possible for an alcoholic to be, his past

active alcoholism would necessarily constitute “some evi-

dence” of his unsuitability for parole in perpetuity, and thus

provide a constitutional basis for the permanent denial of his

freedom. The same would be true in the case of all other for-

mer alcoholics. That this is not just speculation is borne out

by the supplemental record and the Board’s continuing deni-

SASS v. CALIFORNIA BOARD OF PRISON TERMS 10593

als to Sass of parole eligibility on the same ground.21 The

Board’s refusal to set a parole date the basis it did is egre-

giously wrong. I hope that some time soon the Board will

come to realize that neither the Constitution nor the California

parole system permits an inmate to be denied parole solely on

the basis of a mental or addictive condition that existed at the

time of the crime. Under the Due Process Clause, the prior

condition cannot, without more, constitute evidence of present

dangerousness.22

C.

An independent review of the record also reveals that the

Board’s determination is “otherwise arbitrary” in at least two

respects, and that the state court decision ratifying it consti-

tutes an unreasonable application of that part of the Hill rule.

First, the Board’s decision impermissibly punishes Sass on

the basis of his status as a formerly active alcoholic. As dis-

cussed above, the rationale employed by the Board and

approved by the state court would allow the Board to deny

parole to any person who was once an active alcoholic,

regardless of the extent of his rehabilitation. To permanently

deprive Sass, or any other inmate, his liberty simply because

he was an active alcoholic at the time of the offense, and alco-

holics are deemed to be in a perpetual state of recovery, is an

untenable result. It is also a violation of due process. The

Supreme Court has made clear that an individual cannot be

punished on the basis of status alone, including the status of

being afflicted with an addiction, see Robinson v. California,

21

The latest report from the Board indicates that in February of 2006 it

preliminarily denied Sass parole for another two years, at least until a

hearing is held sometime in 2008.

22

See Robinson v. California, 370 U.S. 660 (1962) (holding that the

Constitution prohibits the punishment of an individual solely on the basis

of his status, including the status of suffering from addiction); Cal. Penal

Code § 3041(b) (requiring a parole date to be set unless the Board finds

an inmate poses a current threat to public safety).

10594 SASS v. CALIFORNIA BOARD OF PRISON TERMS

370 U.S. 660 (1962); yet that is precisely what the Board’s

practice, at least as applied in Sass’s case, does. Sass has fin-

ished serving the sentence he would have served but for the

Board’s finding of present dangerousness — a finding based

solely on the fact that many years earlier he committed a

crime as a result of his state of active alcoholism. That finding

constitutes a quintessentially arbitrary state action — it relies

solely on the biases of the Board, rather than on any objective

justifications, and it permits the permanent imprisonment of

Sass solely for the reason that he was once an active alco-

holic. In light of Robinson, the Board’s 2000 decision, which

depends entirely on Sass’s status as an alcoholic, is without

any constitutionally cognizable evidentiary support.

Second, even if an inmate’s active addiction to alcohol at

the time of the offense could provide a basis for an adverse

suitability determination in cases in which the record contains

“some evidence” that the prisoner presently presents a danger

to society, that is not the case with Sass. The record is devoid

of any evidence that supports the Board’s finding that Sass,

well over a decade after he last abused alcohol, constitutes a

present threat to society. The Board’s decision relies exclu-

sively on the fact that Sass was an active alcoholic at the time

of his offense of imprisonment and on his prior DUIs. Beyond

that, it offers no evidence — not a single action on Sass’s part

since his imprisonment, not a medical or psychological report

discussing the dangerousness of recidivism amongst recover-

ing alcoholics generally or of Sass specifically — to support

its conclusion that Sass was, at the time of the parole hearing,

a danger to public safety. The Board’s failure to offer any evi-

dence linking Sass’s past active alcoholism to a state of pres-

ent dangerousness renders its decision completely without

support and thus “arbitrary.” Indeed, there is simply nothing

in the record that provides any evidence that Sass is unsuit-

able for parole.23

23

In addition, the Board apparently ignored totally the affirmative evi-

dence in the record to the contrary — evidence that irrefutably demon-

strated that Sass did not present a present danger to society. See supra

notes 17, 19, and 20.

SASS v. CALIFORNIA BOARD OF PRISON TERMS 10595

Because status as an alcoholic alone cannot constitute the

basis for determining that an inmate is unsuitable for parole,

and because the record here is completely devoid of any evi-

dence showing that Sass’s active alcoholism numerous years

ago makes him a present threat to public safety, the Board’s

suitability decision, which depended entirely on Sass’s alco-

holism, is “arbitrary.” Because the state court decision like-

wise is wholly without evidentiary support and because it

validates a Parole Board decision based on bias and addictive

status, it constitutes an unreasonable application of the clearly

established “otherwise arbitrary” part of Hill.

CONCLUSION

The majority considers none of the legal or factual issues

necessary to resolve the important constitutional issue before

us. As a result, it reaches the unprecedented and erroneous

conclusion that the commission of an offense resulting from

alcoholism many years earlier can serve, without more, as

“some evidence” that an individual who has reached the max-

imum state of recovery an alcoholic can achieve, presents a

current danger to society. Moreover, my colleagues fail to

explain why Sass’s offense was more grievous than the vast

majority of second degree murders, apparently because they

do not recognize that in order to find a prisoner unsuitable for

parole, his offense must have been more callous, cruel or

vicious than the ordinary second degree murder. In fact, the

majority fails in all respects to point to anything in the record

that would support its decision or explain its reasoning.

As did the California courts before it, the majority fails to

apply the controlling rules and standards governing parole eli-

gibility in making its determination that “some evidence” sup-

ports the Parole Board’s decision. Further, the majority’s

decision, like the California courts’, constitutes an unreason-

able application of clearly established Supreme Court law.

Regretfully, I conclude that what the majority has produced

is a decision without a rational foundation or a legal justifica-

10596 SASS v. CALIFORNIA BOARD OF PRISON TERMS

tion. I firmly believe that one day my colleagues, who are

both able jurists, will come to recognize and regret the errone-

ousness of their decision and the injustice it perpetuates.

I respectfully dissent.