In re Palmer

IN THE SUPREME COURT OF

CALIFORNIA

In re WILLIAM M. PALMER II

on Habeas Corpus.

S256149

First Appellate District, Division Two

A154269

January 28, 2021

Justice Cuéllar authored the opinion of the Court, in which

Chief Justice Cantil-Sakauye and Justices Corrigan, Kruger,

Groban, and Grover* concurred.

Justice Liu filed a concurring opinion.

________________________

*

Associate Justice of the Court of Appeal, Sixth Appellate

District, assigned by the Chief Justice pursuant to article VI,

section 6 of the California Constitution.

In re PALMER

S256149

Opinion of the Court by Cuéllar, J.

Judgments about the proper punishment for a crime are

generally entrusted to the people’s democratically elected

representatives (see Gregg v. Georgia (1976) 428 U.S. 153, 175–

176 (plur. opn. of Stewart, J.)) — and, in California, to the people

themselves. (See, e.g., Voter Information Guide, Gen. Elec.

(Nov. 4, 2014) text of Prop. 47, pp. 70–74; see generally Cal.

Const., art. II, § 8.) Yet neither the Legislature nor the people

have the final word. Both the state and federal Constitutions

bar the infliction of punishment that is grossly disproportionate

to the offender’s individual culpability. (U.S. Const., 8th

Amend.; Cal. Const., art. I, § 17.) So when a claim of

constitutionally excessive punishment is properly presented, it

is for the courts, “as coequal guardian[s] of the Constitution, to

condemn any violation of that prohibition.” (In re Lynch (1972)

8 Cal.3d 410, 414 (Lynch).) How courts should fulfill that

responsibility when an inmate claims a sentence is excessive

because of one or more parole denials is the question at the heart

of this case.

William M. Palmer II first sought release on parole from

the Board of Parole Hearings (Board) in 1995. The Board denied

parole, but Palmer persisted. Following the Board’s 10th denial,

Palmer filed a petition for writ of habeas corpus. His petition

alleged that the 30 years he had already served on a life

sentence for an aggravated kidnapping committed when he was

a juvenile was constitutionally excessive. Before the Court of

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Opinion of the Court by Cuéllar, J.

Appeal could adjudicate the habeas petition, the Board found

him suitable for parole and ordered him released. (In re Palmer

(2019) 33 Cal.App.5th 1199, 1202–1203 (Palmer).) The Court of

Appeal subsequently agreed with Palmer that his now-

completed term of imprisonment had become unconstitutional.

(Id. at pp. 1207–1222.) Because that term had already been

served, however, the Court of Appeal focused its order of relief

on a different target. The court reasoned that Palmer was

“entitled to release from all forms of custody, including parole

supervision.” (Id. at p. 1224.)

We agree with the Court of Appeal that habeas corpus

relief is available to inmates whose continued incarceration has

become constitutionally excessive, but who have been denied

release by the Board. To the extent Palmer’s continued

incarceration at some point became constitutionally excessive,

though, that alone did not justify ending his parole under the

current statutory scheme. We therefore reverse the judgment

of the Court of Appeal.

I.

A.

In 1988, when Palmer was 17 years old, he pleaded guilty

to kidnapping for robbery. (Pen. Code, § 209, former subd. (b);

all undesignated statutory references are to this code.) For this

offense Palmer was sentenced to life imprisonment with the

possibility of parole, consecutive to a two-year term for use of a

firearm (former § 12022.5, subd. (a)). (Palmer, supra, 33

Cal.App.5th at p. 1202.)

His offense began in a parking garage at a Riverside

apartment complex. Wearing a ski mask, Palmer waited there,

intending to find someone to rob. He picked that location

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Opinion of the Court by Cuéllar, J.

because he had previously burglarized homes in the same area.

When off-duty police officer Randy Compton exited his car,

Palmer confronted him with an unloaded gun stolen in a

previous burglary. Palmer demanded Compton’s wallet.

Compton claimed not to have one. Palmer asked Compton if he

had a bank card; Compton said he did. Palmer then ordered

Compton to drive to an automated teller machine (ATM) and

withdraw $200. While Compton drove, Palmer sat in the

backseat, pointing the unloaded gun at Compton. When they

arrived at the ATM, Compton retrieved his service weapon from

his backpack and fired 15 rounds at Palmer, hitting him in the

knee. Palmer fled but was soon apprehended by the police.

Shortly thereafter, he waived his Miranda rights and confessed.

(Palmer, supra, 33 Cal.App.4th at pp. 1207–1208; see Miranda

v. Arizona (1966) 384 U.S. 436.)

Palmer’s juvenile record included driving without a license

as well as lewd acts with three younger minors. While on

probation for the latter offense, Palmer admitted committing

several burglaries.

B.

Palmer filed the current habeas petition in the Court of

Appeal. (Palmer, supra, 33 Cal.App.5th 1199.) This petition

asserted that his continued incarceration for a crime committed

in 1988 when he was 17 years old had become grossly

disproportionate under the state and federal Constitutions.

(See U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) Palmer

complained that although there were 10 parole suitability

hearings between 1996 and 2015, the Board denied him parole

each time. Before the Court of Appeal could adjudicate the

current habeas corpus petition, however, the Board found

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Opinion of the Court by Cuéllar, J.

Palmer suitable for release on parole — and then released him

on parole for a five-year period. (Palmer, supra, 33 Cal.App.5th

at pp. 1202–1203; see Pen. Code, former § 3000, subd. (b).)

The Court of Appeal retained the petition for adjudication

and granted habeas corpus relief.1 The court determined first

that because Palmer remained constructively in custody while

on parole, the petition was not moot. (Palmer, supra, 33

Cal.App.5th at p. 1203, citing In re Sturm (1974) 11 Cal.3d 258,

265.) The court then concluded that “in light of Palmer’s age at

the time of the offense and attendant diminishment of his

culpability,” the Board’s repeated denials of parole rendered the

30 years he had served “so disproportionate to his individual

culpability as to be ‘constitutionally excessive’ ” within the

meaning of the state and federal Constitutions. (Palmer, at p.

1214; see id. at p. 1221.) Because Palmer’s prison sentence “had

become constitutionally excessive” before his release on parole,

the court reasoned, he was “ ‘entitled to be freed from all

custody, actual or constructive.’ ” (Id. at p. 1223.) The court

therefore ordered Palmer released from parole supervision. (Id.

at p. 1224.)

On our own motion, we granted review to decide whether

inmates may challenge their continued incarceration as

constitutionally excessive when the Board repeatedly denies

parole, and what remedy is available when continued

incarceration becomes constitutionally excessive.

1

Its opinion details the winding course of Palmer’s prior

habeas proceeding (Palmer, supra, 33 Cal.App.5th at pp. 1202–

1203 & fn. 1; see In re Palmer (S252145, Supreme Ct. Mins.,

review dism., Apr. 30, 2020), but that history is not relevant

here.

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Opinion of the Court by Cuéllar, J.

II.

In general, fixing appropriate penalties for crimes is a

distinctly legislative determination (e.g., People v. Ward (2005)

36 Cal.4th 186, 218; People v. Dillon (1983) 34 Cal.3d 441, 478

(Dillon)), implicating sensitive questions of policy and values

that “are in the first instance for the judgment of the Legislature

[or the people] alone.” (Lynch, supra, 8 Cal.3d at p. 414.) But

the legislative power to craft punishments is subject to

constraints rooted in both the state and federal Constitutions.

In limited circumstances, one or both provisions may relieve a

defendant from a sentence that was otherwise lawfully imposed.

(See Hutto v. Davis (1982) 454 U.S. 370, 374 (per curiam); In re

Dannenberg (2005) 34 Cal.4th 1061, 1071 (Dannenberg).)

Palmer contends he has properly presented a claim that

his punishment was cruel or unusual within the meaning of the

state Constitution.2 His habeas corpus petition alleges that his

continued incarceration for more than 30 years — based on a

crime he committed as a juvenile, in which no victim suffered

injury — became “shocking and offensive.”

Amicus curiae California District Attorneys Association

(CDAA) disagrees. In CDAA’s view, inmates should not be

allowed to argue their continued incarceration has become

constitutionally excessive unless a Board panel first finds “that

he or she no longer represents a current threat to public safety.”

2

We analyze Palmer’s claims exclusively under the

California Constitution. Because he doesn’t contend that the

federal Constitution offers him any additional protection beyond

that afforded by the state Constitution, no separate analysis of

his federal claim is necessary. (Cf. People v. Brooks (2017) 3

Cal.5th 1, 43, fn. 4.)

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Opinion of the Court by Cuéllar, J.

In the absence of that predicate finding, CDAA warns, the Court

of Appeal decision will authorize “a back-door challenge to

lawful parole denials by the Board of Parole Hearings and new

ad hoc challenges to the length of time served in all life-top

sentences.”

What we conclude is that the Board’s denial of parole does

not prevent inmates serving indeterminate terms, like Palmer,

from challenging their continued incarceration as cruel or

unusual under the California Constitution. Such challenges are

neither novel nor improper, especially where (as here) the Board

is not ever required, when making its parole decisions, to

consider whether an inmate’s punishment has become

constitutionally excessive.

A trip through history shows why. Consider In re

Rodriguez (1975) 14 Cal.3d 639 (Rodriguez), where this court

sustained an inmate’s challenge to his continued incarceration

as cruel or unusual. Rodriguez had been sentenced to an

indeterminate term of one year to life for lewd conduct with a

child and, after serving 22 years in prison, filed a petition for

writ of habeas corpus. (Id. at p. 642.) The petition included two

distinct claims under the California Constitution: first, that the

statutory life maximum term was disproportionate to the lewd

conduct offense; and second, that the 22 years he had already

served constituted excessive punishment. (Rodriguez, at p.

642.) After rejecting his claim that the statutory maximum life

term was excessive “on its face” (id. at p. 648), we proceeded to

consider whether the Adult Authority, the entity then charged

with determining an inmate’s actual period of incarceration, had

imposed a disproportionate punishment by failing to fix

Rodriguez’s term at less than the maximum and by keeping him

incarcerated for 22 years. It was our duty and obligation, we

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Opinion of the Court by Cuéllar, J.

explained, to ensure that the Adult Authority’s term-fixing

practices “comport with” the ban on cruel or unusual

punishment set forth in article I, section 17 of the California

Constitution. (Rodriguez, at p. 649.) To that end, we construed

the indeterminate sentencing law (ISL) as requiring the Adult

Authority to “fix terms within the statutory range that are not

disproportionate to the culpability of the individual offender,”

since an inmate’s maximum term “may not be disproportionate

to the individual prisoner’s offense.” (Id. at p. 652.) Because

Rodriguez had already served a term that was constitutionally

disproportionate to his offense, we ordered him “discharged from

the term under which he [was] imprisoned.” (Id. at p. 656.)

After the adoption of the determinate sentencing law, the

Board of Prison Terms (BPT) replaced the Adult Authority in

deciding when indeterminate term prisoners could be released.

(See § 5078, subd. (a).) We subsequently revisited the role that

parole decisions play in fixing an inmate’s actual term of

incarceration. (See Dannenberg, supra, 34 Cal.4th 1061.)

Under the version of section 3041 then in effect, the BPT was

directed to fix firm parole release dates for eligible life prisoners.

(Former § 3041, subd. (a); see Dannenberg, at p. 1090.) But

subdivision (b) of that statute “made clear that the parole

authority would have the express power and duty, in an

individual case, to postpone the fixing of a firm release date, and

thus to continue the inmate’s indeterminate status within his or

her life-maximum sentence, if it found that the circumstances of

the prisoner’s crime or criminal history presented a continuing

risk to public safety.” (Dannenberg, at p. 1090.) We recognized

that the BPT’s “paramount concern” for public safety under this

scheme could end up imposing constitutionally disproportionate

punishment in individual cases. (Id. at p. 1091; see id. at p.

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1097.) What we also emphasized was that an inmate facing

such punishment would have a judicial remedy: “those

indeterminate life prisoners who have been denied parole dates,

and who believe, because of the particular circumstances of their

crimes, that their confinements have become constitutionally

excessive as a result, may bring their claims directly to court by

petitions for habeas corpus.” (Id. at p. 1098.) Indeed,

courthouse doors had to remain open to such challenges. Under

the law as it then existed, the BPT was not required to set

release dates for life-top prisoners who presented public safety

risks. (Ibid.)

We revisited the scheme’s operation a few years later

under the BPT’s successor, the Board of Parole Hearings. (Pen.

Code, § 5075, subd. (a).) The Board’s “paramount consideration”

in making release determinations remained “whether the

inmate currently poses a threat to public safety.” (In re

Lawrence (2008) 44 Cal.4th 1181, 1210.) If the inmate remains

a danger, the Board “can, and must, decline to set a parole date.”

(Id. at p. 1227; see Cal. Code of Regs., tit. 15, § 2281, subd. (a)

[“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”].)

Finally, when we decided In re Butler (2018) 4 Cal.5th 728,

744 (Butler), we reaffirmed the judiciary’s critical role in

ensuring that “an inmate sentenced to an indeterminate term

[]not be held for a period grossly disproportionate to his or her

individual culpability.” Inmates vindicate that constitutional

right by bringing “their claims directly to court through

petitions for habeas corpus” (id. at p. 745) — precisely as Palmer

has done here.

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Opinion of the Court by Cuéllar, J.

We meant what we said in Rodriguez — and in

Dannenberg and Butler, too. For well over four decades, we have

consistently recognized that life-top inmates denied release on

parole may bring their constitutional challenges directly to

court. And when inmates do bring such claims, they are not

limited to challenging only the statutory life maximum, as the

Attorney General suggests. Nor does allowing inmates to

challenge their continued incarceration in court represent “a

radical break in the law governing life-top sentences,” as CDAA

contends. We allowed life-top inmates to challenge their years

served under the ISL, and we have continued to allow such

inmates to challenge their years served under the determinate

sentencing law — regardless of whether the entity charged with

setting a parole release date is the Adult Authority, the BPT, or

the Board. In Rodriguez, supra, 14 Cal.3d 639, we sustained a

challenge based on the actual number of years the petitioner had

served. And in Dannenberg, supra, 34 Cal.4th 1061, we cited

Rodriguez with approval on this point. (Dannenberg, at p. 1096.)

Indeed, we reiterated that life prisoners who have been denied

parole but “who believe, because of the particular circumstances

of their crimes, that their confinements have become

constitutionally excessive as a result, may bring their claims

directly to court by petitions for habeas corpus” (id. at p. 1098),

while noting that Dannenberg himself had made “no direct

claim that the approximately 18 years he has spent behind bars

is constitutionally disproportionate to his second degree

murder.” (Ibid.)

A life-top inmate remains free, of course, to challenge “the

maximum term of imprisonment permitted by the statute,”

notwithstanding the possibility of securing parole at some

earlier date. (Lynch, supra, 8 Cal.3d at p. 419.) Likewise, an

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Opinion of the Court by Cuéllar, J.

inmate may challenge the minimum term established by a

statute, “without regard to the constitutionality vel non of the

maximum.” (Id. at p. 419, fn. 9; see In re Foss (1974) 10 Cal.3d

910, 919 (Foss).) But those are not the only cognizable objections

to a prison sentence. Our precedent also demonstrates that an

inmate may elect to challenge the constitutionality of the long

years of imprisonment the inmate has served. In light of that

precedent, Palmer’s claim that he suffered cruel or unusual

punishment cannot fairly be characterized as a “new” means of

challenging his continued incarceration, nor did it depend on

opening any “back-door.” To the contrary: because the Board is

not required to consider whether an inmate’s life term has

become constitutionally excessive if the inmate has not first

been found suitable for parole, Palmer’s claim can readily enter

through the courthouse front door. Life-top inmates may test,

in court, whether their continued punishment violates the

Constitution.

III.

The Attorney General claims that the Court of Appeal

erred in sustaining Palmer’s constitutional claim for yet another

threshold reason. In his view, the Court of Appeal was wrong

when it suggested, in this case, that “deference to the

legislatively prescribed penalty is no longer a relevant factor, as

the actual term of years served is a function of the Board’s parole

decisions, not the Legislature’s determination of the appropriate

penalty in this particular case.” (Palmer, supra, 33 Cal.App.5th

at p. 1206.) We agree with the Attorney General, to an extent:

when a court assesses the constitutionality of a prison term, it

must be mindful of the Legislature’s broad discretion over the

types and limits of punishment, regardless of whether the

sentence being challenged is a specific term fixed by statute or

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Opinion of the Court by Cuéllar, J.

an indeterminate term where the Board has authority to order

release within statutory parameters. It remains the judiciary’s

responsibility to decide whether a prison term has become

excessive, and a court properly respects the Legislature’s

prerogative not by performing some ritualistic deference, but by

analyzing the challenged punishment under the traditional,

lenient legal standard we set forth in Foss, supra, 10 Cal.3d 910

and Lynch, supra, 8 Cal.3d 410.

In the discussion preceding its merits analysis, the Court

of Appeal posited two categories of constitutionally excessive

punishment claims, each governed by different rules. “Most

claims,” the court began, “challenge sentences when first

imposed, looking prospectively at the time the offender will

serve.” (Palmer, supra, 33 Cal.App.5th at p. 1202.) These types

of claims “rarely succeed,” because courts “generally defer” to

the legislatively defined punishment. (Ibid.) For those

sentenced to indeterminate terms, on the other hand, the length

of incarceration actually suffered “is determined not by the

Legislature but by the Board’s decision whether to grant or deny

release on parole.” (Id. at p. 1205.) So, the Court of Appeal

suggested, “deference to the legislatively prescribed penalty is

no longer a relevant factor” for this second category of claims.

(Id. at p. 1206.)

As our cases underscore, however, deference is an

important element in any disproportionality analysis.

Regardless of whether an inmate challenges a sentence when

first imposed or after repeated parole denials, the court’s inquiry

properly focuses on whether the punishment is “grossly

disproportionate” to the offense and the offender or, stated

another way, whether the punishment is so excessive that it

“ ‘shocks the conscience and offends fundamental notions of

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human dignity.’ ” (Dillon, supra, 34 Cal.3d at p. 478, quoting

Lynch, supra, 8 Cal.3d at p. 424; see Butler, supra, 4 Cal.5th at

p. 744 [“an inmate sentenced to an indeterminate term cannot

be held for a period grossly disproportionate to his or her

individual culpability”]; id. at p. 746 [“A sentence violates the

prohibition against unconstitutionally disproportionate

sentences only if it is so disproportionate that it ‘shocks the

conscience’ ”].)

Such an inquiry grants the Legislature considerable

latitude in matching punishments to offenses. This latitude

derives in part from the premise that a statute specifying

punishment, like any other statute, is presumed valid unless its

unconstitutionality “ ‘ “clearly, positively and unmistakably

appears.” ’ ” (Lynch, supra, 8 Cal.3d at p. 415.) But it also

accounts for a very particular context, one in which “[t]he choice

of fitting and proper penalties is not an exact science, but a

legislative skill involving an appraisal of the evils to be

corrected, the weighing of practical alternatives, consideration

of relevant policy factors, and responsiveness to the public will;

in appropriate cases, some leeway for experimentation may also

be permissible.” (Id. at p. 423.) A claim of excessive punishment

must overcome a “considerable burden” (People v. Wingo (1975)

14 Cal.3d 169, 174), and courts should give “ ‘the broadest

discretion possible’ ” (Lynch, at p. 414) to the legislative

judgment respecting appropriate punishment. (See also In re

Coley (2012) 55 Cal.4th 524, 540; accord, Solem v. Helm (1983)

463 U.S. 277, 290 [“Reviewing courts, of course, should grant

substantial deference to the broad authority that legislatures

necessarily possess in determining the types and limits of

punishments for crimes, as well as to the discretion that trial

courts possess in sentencing convicted criminals”].) A

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punishment does not qualify as constitutionally excessive unless

it is “ ‘out of all proportion to the offense.’ ” (Lynch, supra, at p.

424.)

We’ve distilled three analytical techniques to aid our

deferential review of excessiveness claims: (1) an examination

of the nature of the offense and the offender, with particular

attention to the degree of danger both pose to society; (2) a

comparison of the punishment with the punishment California

imposes for more serious offenses; and (3) a comparison of the

punishment with that prescribed in other jurisdictions for the

same offense. (See Foss, supra, 10 Cal.3d at pp. 919–920; Lynch,

supra, 8 Cal.3d at pp. 425–428.) Our courts have invoked these

techniques broadly across a variety of excessive punishment

claims: when a defendant challenges the maximum term of

imprisonment permitted by a statute (see Lynch, at p. 419), the

minimum parole eligibility term (see Foss, at p. 919),

ineligibility for probation (see People v. Main (1984) 152

Cal.App.3d 686, 691–697) — even the death penalty (see People

v. Bunyan (1988) 45 Cal.3d 1189, 1240–1241).

The same core principles apply when an inmate challenges

the years served on an indeterminate sentence. The Legislature

has a continuing prerogative over the narrowed category of

offenses that still warrant indeterminate sentences. (See

Dannenberg, supra, 34 Cal.4th at pp. 1097–1098.) For this

category of offenses, the Legislature has not abandoned its

policymaking role. It has simply delegated to the Board the

authority to fix a precise term within a statutory range the

Legislature has identified, and under criteria the Legislature

has articulated. (See § 3041; cf. In re Larsen (1955) 44 Cal.2d

642, 646–647; In re Stanley (1976) 54 Cal.App.3d 1030, 1038.)

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Indeed, Rodriguez applied the traditional, deferential test

in assessing whether the 22 years the habeas corpus petitioner

had served under an indeterminate life sentence was

constitutionally excessive. (Rodriguez, supra, 14 Cal.3d at p.

653 [“We reach the conclusion that the 22 years of imprisonment

served by petitioner are excessive and disproportionate

punishment by application of the Lynch-Foss analysis”].) And

our reliance on that test in this distinct context was intentional:

“these techniques are appropriate not only to the examination

of statutes challenged on their face, but also to terms as fixed by

the [Adult] Authority in individual cases.” (Id. at p. 654.) The

Court of Appeal similarly applied our traditional factors in In re

Wells (1975) 46 Cal.App.3d 592, 596–603 (Wells) to determine

whether the 20 years already served by the life-top inmate there

was “grossly disproportionate” such that it “ ‘shocks the

conscience.’ ” (Id. at p. 604.)

The Court of Appeal therefore erred in suggesting that

deference to the legislative scheme is not a relevant

consideration when inmates, such as Palmer, challenge their

continued incarceration caused by the Board’s repeated denial

of parole. (Palmer, supra, 33 Cal.App.5th at p. 1206.) But the

Attorney General hasn’t identified any specific way in which the

Court of Appeal’s dictum might have affected its analysis of

Palmer’s sentence. Indeed, despite its insistence that Palmer

was presenting a claim that was “different” in kind (id. at p.

1205) from “[m]ost claims of constitutionally excessive

punishment” (id. at p. 1202), the Court of Appeal ended up

testing the lawfulness of his punishment by using the

traditional test required by our cases and undertaking an

extensive analysis of each of the three Lynch-Foss techniques.

(Id. at pp. 1207–1221.)

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Whether the Court of Appeal correctly decided that

Palmer’s punishment was disproportionate is a question we

need not resolve. While this petition was pending in the Court

of Appeal, the Board found Palmer suitable for release and

thereafter released him on parole. (Palmer, supra, 33

Cal.App.5th at p. 1203.) Consequently, Palmer would remain

on parole even if we were to find that his continued incarceration

had not become constitutionally excessive.

In light of these circumstances, we don’t need to take up

the “fact-specific inquiry” about whether Palmer’s continued

incarceration became cruel or unusual. (Butler, supra, 4 Cal.5th

at p. 746; accord, U.S. v. Rigas (2d Cir. 2009) 583 F.3d 108, 123

[the shocks-the-conscience standard is “highly contextual and

do[es] not permit easy repetition in successive cases”]; cf. People

v. McCullough (2013) 56 Cal.4th 589, 592.) Even assuming his

incarceration became disproportionate, that finding alone would

not have automatically justified termination of his parole.

IV.

In March 2019, the Board released Palmer to a five-year

parole period. Palmer contends that the parole period should

never have been imposed and asks this court to affirm the Court

of Appeal’s termination of it. In his view, once his prison term

was determined to be constitutionally excessive, every

additional day of custody — including the constructive custody

of parole — is a constitutional violation. He relies on three cases

where, construing the former ISL, a court ordered the successful

habeas petitioner released from any and all custody. (See

Rodriguez, supra, 14 Cal.3d at p. 656; Lynch, supra, 8 Cal.3d at

p. 439; Wells, supra, 46 Cal.App.3d at p. 604.) Although these

cases bear some factual similarities to the circumstances here,

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the Legislature has since modified the applicable parole statutes

and their relationship to an inmate’s term of imprisonment. We

therefore examine these cases and subsequent developments in

the law.

Rodriguez filed a habeas corpus petition like Palmer’s.

What Rodriguez claimed was that his prolonged confinement

under an indeterminate life sentence qualified as

constitutionally disproportionate punishment. After concluding

that Rodriguez’s claim had merit and that he should “therefore

. . . be discharged from the term under which he is imprisoned,”

we went on to direct — without explanation or citation to

authority — that he be “discharge[d] . . . from custody.”

(Rodriguez, supra, 14 Cal.3d at p. 656; see Lynch, supra, 8

Cal.3d at p. 439 [stating, without elaboration, that having

served a constitutionally excessive term, the petitioner “is

therefore entitled to his freedom”].) Similarly, in Wells, the

petitioner successfully argued that his continued incarceration

was constitutionally disproportionate. The Court of Appeal

declared — again without explanation or authority — that he “is

entitled to be freed from all custody, actual or constructive.”

(Wells, supra, 46 Cal.App.3d at p. 604.)

Cutting across these cases was an implicit rationale — one

we can readily discern from the sentencing scheme in place at

the time. All of these cases were decided under the former ISL.

(See People v. Jefferson (1999) 21 Cal.4th 86, 94 (Jefferson)

[“Before July 1, 1977, California law provided for indeterminate

sentencing”].) Under that scheme, the trial court sentenced a

defendant to prison for “ ‘the term prescribed by law.’ ” (Ibid.)

This unitary “term” represented “ ‘the total time the state had

jurisdiction over the prisoner,’ ” whether in actual custody or

constructive custody. (Id. at p. 95.) The Adult Authority had

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the power to decide when an inmate could be released on parole

(id. at p. 94) — as well as the power to select a term within the

statutory maximum and minimum (ibid.) — but the time spent

in prison and the time spent on parole together comprised a

single term. (Id. at p. 95 [“ ‘The parole date was the date of

release from actual custody, but the balance of the “term” was

to be served on parole’ ”].)

So when we decided in Rodriguez, for example, that the

habeas corpus petitioner should be discharged from his “term,”

it necessarily followed that he would be discharged “from

custody,” including the constructive custody of parole.

(Rodriguez, supra, 14 Cal.3d at p. 656; see Wells, supra, 46

Cal.App.3d at p. 604.) Once the “term” was found to be

excessive, the legal basis for continuing custody — whether

actual or constructive — necessarily evaporated.

Not so under the current sentencing scheme. Under post-

1977 law, “ ‘Parole is no longer service of the term.’ ” (Jefferson,

supra, 21 Cal.4th at p. 95.) It is instead a separate period

following completion of the term. (Ibid.) “ ‘ “Term” now means

the period of actual confinement prior to release on parole.’ ”

(Ibid., italics in Jefferson.) Accordingly, a finding that an

inmate’s prison term is constitutionally excessive no longer has

any inherent effect, by itself, on the validity of the separate

parole term. Cases decided under the ISL — where the unitary

“term” might have been served either in prison or on parole, in

the discretion of the Adult Authority — have no application to

parole as envisioned in the current sentencing scheme. Whether

service of an excessive prison term should affect a parole term

under current law is not an issue our courts have resolved.

17

In re PALMER

Opinion of the Court by Cuéllar, J.

A court considering a petition for writ of habeas corpus has

broad authority to craft a remedy “as the justice of the case may

require.” (§ 1484; see In re Lira (2014) 58 Cal.4th 573, 584

(Lira).) Invoking that power, Palmer contends that “[b]ecause

parole is punishment, the only remedy that cures the ongoing

violation of [his] constitutional rights is discharge from parole.”

We agree that parole is punishment. (People v. Nuckles (2013)

56 Cal.4th 601, 608–609 (Nuckles).) What’s missing from

Palmer’s argument, though, is any authority or argument to

support the proposition that when one kind of punishment is

constitutionally excessive, other forms of punishment must also

be invalidated. Monetary fines and orders of restitution, for

example, may constitute punishment. (See, e.g., People v.

Hanson (2000) 23 Cal.4th 355, 357; People v. Zito (1992) 8

Cal.App.4th 736, 741; § 1202.4, subd. (a)(3); accord, U.S. v.

Dubose (9th Cir. 1998) 146 F.3d 1141, 1144–1145.) Still, it

seems quite unlikely that the payment of an excessive fine or

order of restitution would automatically relieve a defendant

from serving an otherwise lawful prison term. Nothing in our

grant of relief in Rodriguez or in the other cases above purported

to invalidate any distinct kind of punishment. To the contrary:

Under the applicable scheme at the time those cases were

decided, parole and imprisonment were complementary parts of

a unitary “term.” By invalidating the term as constitutionally

disproportionate, we necessarily relieved the habeas petitioner

from serving any part of the term.

True: imprisonment and parole both involve custodial

forms of punishment, and each “constitutes part of the

punishment for the underlying crime.” (Nuckles, supra, 56

Cal.4th at p. 608.) Though parole and imprisonment are often

tethered, they are not so entangled that a defect in one form of

18

In re PALMER

Opinion of the Court by Cuéllar, J.

custody necessarily and fatally infects all forms of custody.

Imprisonment, for example, may become cruel or unusual

because of substandard conditions of confinement. (See, e.g., In

re Coca (1978) 85 Cal.App.3d 493, 501–503.) Yet never have we

held that inmates who successfully challenge their conditions of

confinement — and secure an amelioration of those conditions

— would be entitled to their freedom before their sentences have

ended. (Cf. People v. Jackson (1987) 189 Cal.App.3d 113, 120

[“Just as the release of inmates from custody is not an

appropriate remedy to established unconstitutional conditions

of confinement [citations], we do not believe the proper remedy

is judicial reduction of sentence terms”]; Coca, at p. 503 [“we

agree that the court could not on these facts require

respondent’s release”].) A constitutional error involving one

aspect of punishment does not inevitably and fatally infect all

other aspects.

Nor are we persuaded that “the justice of the case” (§ 1484)

requires termination of Palmer’s parole. Parole is a “distinct

phase” from a term of imprisonment and serves different

objectives. (Nuckles, supra, 56 Cal.4th at p. 609.) Unlike a

prison sentence, whose objective is to protect society, punish

offenders, and deter future crime, parole’s primary objective

“ ‘is, through the provision of supervision and counseling, to

assist in the parolee’s transition from imprisonment to

discharge and reintegration into society.’ ” (Id. at pp. 608–609.)

At least when parole works as intended, it is a sufficiently vital

part of the rehabilitation process that ought not be categorically

discarded simply because an inmate establishes that the

preceding period of incarceration became constitutionally

disproportionate. (See generally Foss, supra, 10 Cal.3d at p. 923

[“also relevant to determining whether a sentence is

19

In re PALMER

Opinion of the Court by Cuéllar, J.

disproportionate to the offense and offender, is a consideration

of the penological purposes of the punishment imposed in light

of the particular offense”].)

The Legislature has long acknowledged parole’s

importance. By statute, the Legislature has found “the period

immediately following incarceration is critical to successful

reintegration of the offender into society and to positive

citizenship. It is in the interest of public safety for the state to

provide for the supervision of and surveillance of parolees and

to provide educational, vocational, family and personal

counseling necessary to assist parolees in the transition

between imprisonment and discharge.” (Former § 3000, as

amended by Stats. 1982, ch. 1406, § 2, p. 5361; see § 3000, subd.

(a)(1); see generally Lira, supra, 58 Cal.4th at p. 579.) These

services include medical and psychological treatment, drug and

alcohol dependency services, job counseling, and programs that

enable the parolee to obtain a general equivalency certificate.

(See In re Taylor (2015) 60 Cal.4th 1019, 1030.) For someone

like Palmer, who was convicted at age 17 and remained behind

bars for the next 30 years, it is difficult to see how justice would

be advanced by releasing him into the community to live as an

adult — for the first time — without any supervision or

supportive services.

Palmer complains that certain parole conditions “can be

extremely punitive in a specific individual’s case” in that they

“bear no relation to his underlying offense, severely inhibit his

ability to successfully reintegrate, and deny him fundamental

freedoms enjoyed by non-parolees.” Amici curiae The Prison

Law Office et al. argue generally that parole, as practiced in this

country, undermines rehabilitation and is ineffective in

reducing recidivism. Neither point justifies termination of

20

In re PALMER

Opinion of the Court by Cuéllar, J.

Palmer’s parole in this proceeding, however. Palmer’s current

habeas corpus petition challenges parole categorically, not

particular parole conditions as unduly punitive “in [his] specific

. . . case.” (Cf. In re Stevens (2004) 119 Cal.App.4th 1228, 1231,

1233–1239.) Nor has he developed a record to show that parole,

in itself, is so fatally and unduly punitive as to violate article I,

section 17 of the state Constitution — or that parole, following

30 years of incarceration, would necessarily be cruel or unusual.

Our opinion should not be read to foreclose such claims.

Palmer argues next that his parole must be terminated to

avoid an “absurd” scenario: a violation of parole “may” in theory

cause a parolee to be returned to custody, yet he could never

actually be reincarcerated in light of the Court of Appeal’s

finding that he had already served a constitutionally

disproportionate term. This claim, too, fails to persuade.

Nothing in the statutory scheme requires incarceration of a

parolee who’s been found to have violated one or more parole

conditions. The parole agency may instead impose additional

conditions of supervision, including rehabilitation and

treatment services with appropriate incentives for compliance,

as well as intermediate sanctions short of incarceration.

(§ 3000.08, subd. (d); see Cal. Rules of Court, rule 4.541(e).)

Even when these options prove inadequate, a court may

nonetheless refer the parolee to a reentry court or another

evidence-based program. (§ 3000.08, subd. (f)(3).) So Palmer is

mistaken in asserting that there could be “no constitutional

consequence for any violation of a parole condition by Mr.

Palmer.” In any event, the current petition does not challenge

any period of reincarceration arising from Palmer’s violation of

parole. (Cf. U.S. v. Bridges (7th Cir. 1985) 760 F.2d 151, 154

[“Any imprisonment that might result from parole revocation

21

In re PALMER

Opinion of the Court by Cuéllar, J.

some time in the future is . . . only speculative at this point and

does not present an appropriate question for decision”].)

Consequently, we need not decide whether reincarceration of a

parolee would run afoul of the state Constitution, where, as

here, the parolee claims that continued incarceration has

become excessive.

Finally, we part company with the Court of Appeal’s

reading of Lira. The Court of Appeal purported to distinguish

Lira, where we similarly refused to reduce the habeas corpus

petitioner’s parole period, on the ground that “the prisoner in

Lira was never serving an unlawful sentence.” (Palmer, supra,

33 Cal.App.5th at p. 1223.) A close reading of our decision

renders that characterization questionable.

Lira, a life prisoner, was found suitable for parole and

given a release date, but the Governor reversed the Board’s

decision. Lira filed a habeas corpus petition challenging the

reversal as unsupported by the evidence. (Lira, supra, 58

Cal.4th at p. 577.) While the petition was pending, the Board

again found Lira suitable for parole. The Governor did not

disturb this second suitability finding, and Lira was released on

parole. (Ibid.) In ruling on the habeas corpus petition, the Court

of Appeal agreed with Lira that the Governor’s reversal of the

Board’s earlier grant of parole was unlawful and ordered that

Lira be given credit against his maximum five-year parole term

for the time he had spent in prison between the Governor’s

erroneous reversal and his eventual release. (Id. at p. 578.) We

granted the Attorney General’s petition for review, which

challenged only the award of credits, and reversed. (Id. at p. 578

& fn. 2.) We reasoned that the Governor had independent

constitutional authority to review parole suitability

determinations and rejected, in particular, Lira’s argument that

22

In re PALMER

Opinion of the Court by Cuéllar, J.

“the Governor’s reversal, later judicially determined to be

unsupported, somehow retroactively rendered unlawful the

period of his continued incarceration during the pendency of

these processes.” (Id. at p. 582.) Because Lira “was lawfully

imprisoned during this period until the day he was released” —

and “received credit against his term of life imprisonment for all

such days” — he was “not entitled to any credit against his

parole term.” (Ibid.)

But our analysis did not stop there. Lira declined to award

relief even if one assumed “the asserted unlawfulness of the

portion of his term of imprisonment that followed the Governor’s

2009 reversal.” (Lira, supra, 58 Cal.4th at p. 582.) Because

parole is a distinct phase of punishment — which begins “only

after release from prison” (ibid.) — a reduction in the parole

term, even if limited to a showing of unlawful confinement,

“would undermine the Legislature’s intent in requiring the

service of three continuous years of parole after release from

confinement and therefore must be rejected.” (Id. at p. 583.) We

also rejected Lira’s claims that “fundamental fairness” and

“substantive due process” entitled him to a reduction in his

parole term, even assuming his confinement had been rendered

“retroactively unlawful” and he thereby suffered “a temporary

infringement of his right to a factually supported suitability

decision by the executive branch.” (Id. at pp. 584–585.)

We find Lira instructive on the question whether Palmer’s

parole should automatically have been modified or eliminated

as soon as his continued incarceration became unlawful. Palmer

remains free — as the Attorney General concedes — to challenge

his parole term as cruel or unusual, either on its own terms or

because continued parole, when combined with a prolonged

period of excessive imprisonment, would be constitutionally

23

In re PALMER

Opinion of the Court by Cuéllar, J.

cruel or unusual. But we reject his current claim that he was

automatically entitled to “an end to all custody and punishment”

at the moment his continued incarceration became excessive.

V.

The California Constitution prohibits punishment that is

cruel or unusual. (Cal. Const., art. I, § 17.) Because courts play

a pivotal role in giving these words effect, a life-top inmate

whose imprisonment has become excessive — but who has been

denied parole by the Board — must be able to obtain relief in

court by filing a petition for writ of habeas corpus. When a court

adjudicates such a petition, it applies our long-standing test to

discern whether punishment is cruel or unusual. If a court then

finds the inmate’s continued confinement has become excessive,

it may order the inmate’s release from prison.

What such release does not guarantee is automatic

termination of the inmate’s statutory parole period. Under a

statutory scheme that treats parole as a distinct phase of

punishment, and in the absence of any persuasive argument

from Palmer that his parole term has separately or in

combination with his years of imprisonment become

constitutionally excessive, his parole remains valid. Because

the Court of Appeal erred in ending Palmer’s parole, we reverse

the judgment.

CUÉLLAR, J.

24

In re PALMER

Opinion of the Court by Cuéllar, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.

KRUGER, J.

GROBAN, J.

GROVER, J.*

________________________

*

Associate Justice of the Court of Appeal, Sixth Appellate

District, assigned by the Chief Justice pursuant to article VI,

section 6 of the California Constitution.

25

In re PALMER

S256149

Concurring Opinion by Justice Liu

I join Parts I, II, and III of today’s opinion. I agree that

“habeas corpus relief is available to inmates whose continued

incarceration has become constitutionally excessive, but who

have been denied release by the Board [of Parole Hearings].”

(Maj. opn., ante, at p. 2.) And I agree that although the Court of

Appeal erred in suggesting that deference to the Legislature “is

not a relevant consideration when inmates, such as [petitioner

William] Palmer, challenge their continued incarceration

caused by the Board’s repeated denial of parole,” the error did

not impact its proportionality analysis. (Id. at p. 14.) I cannot

discern any meaningful difference between the Court of Appeal’s

analytical approach and the approach taken in In re Rodriguez

(1975) 14 Cal.3d 639, 653–656 and In re Wells (1975)

46 Cal.App.3d 592, 597–604.

In addition, I agree with the court’s holding in Part IV that

a finding of excessiveness with regard to incarceration does not

“automatically” rule out imposition of parole. (Maj. opn., ante,

at p. 24.) But I write separately to make two points.

First, today’s opinion declines to “decide whether

reincarceration of a parolee would run afoul of the state

Constitution, where, as here, the parolee claims that continued

incarceration has become excessive.” (Maj. opn., ante, at p. 22.)

I would make clear that a finding of excessiveness as to

incarceration necessarily entails that a parolee may not be

reincarcerated for violating parole. The court says the prospect

1

In re PALMER

Liu, J., concurring

of Palmer’s reincarceration for violating parole is “ ‘only

speculative at this point.’ ” (Ibid.) But I see no reason why we

should not settle this issue and afford Palmer some peace of

mind. As a matter of logic, it ineluctably follows from the Court

of Appeal’s excessiveness finding that Palmer may not be

lawfully reincarcerated for his 1988 crime.

Parole “is a form of punishment accruing directly from the

underlying conviction” and “is a direct consequence of a felony

conviction and prison term.” (People v. Nuckles (2013)

56 Cal.4th 601, 609.) Ordinarily, if a parolee violates a parole

condition, the state may “ ‘return the individual to

imprisonment without the burden of a new adversary criminal

trial.’ ” (Ibid.) The court today holds that because parole is “a

distinct phase of punishment,” a finding of excessive

incarceration does not automatically entitle the defendant to

termination of all custody, including parole. (Maj. opn., ante, at

pp. 23–24.)

While accepting this holding, I would take the analysis one

step further. The Court of Appeal ruled that Palmer’s period of

incarceration was “so disproportionate to his individual

culpability for the offense he committed, that it must be deemed

constitutionally excessive.” (In re Palmer (2019) 33 Cal.App.5th

1199, 1202.) Assuming, as today’s opinion does, that Palmer

“has already served a prison term grossly disproportionate to his

offense” (id. at p. 1224), I do not see how it could be lawful to

reincarcerate Palmer if he violates parole. Reincarcerating

Palmer in this manner would be a resumption of precisely the

same imprisonment that the Court of Appeal has adjudged

unconstitutional. Palmer simply cannot be returned to prison

as further punishment for his 1988 crime.

2

In re PALMER

Liu, J., concurring

As to what parole conditions are permissible for an

individual in Palmer’s circumstances, today’s opinion properly

emphasizes conditions that serve a rehabilitative function.

(Maj. opn., ante, at p. 20.) Parole conditions in a case like

Palmer’s must be careful to avoid incremental incursions on

liberty that exacerbate the disproportionality of punishment

resulting from an excessive period of incarceration. And parole

terms may be backed up only by incentives, sanctions, or

alternatives “short of incarceration.” (Id. at p. 21.)

Second, today’s opinion notes that although the

excessiveness of Palmer’s incarceration does not automatically

entitle him to be free of custody, “Palmer remains free . . . to

challenge his parole term as cruel or unusual, either on its own

terms or because continued parole, when combined with a

prolonged period of excessive imprisonment, would be

constitutionally cruel or unusual.” (Maj. opn., ante, at pp. 23–

24.) The premise of this invitation is that the Court of Appeal’s

termination of Palmer’s parole was erroneous because it relied

on a rule of automatic entitlement that today’s opinion rejects.

(See In re Palmer, supra, 33 Cal.App.5th at p. 1223 [“[H]is

continued imprisonment was unlawful. He is, therefore,

‘entitled to be freed from all custody, actual or constructive.’ ”].)

But that is not the only reading or the most plausible

reading of the Court of Appeal’s opinion. Instead of holding that

a finding of excessive incarceration automatically entitles a

defendant to be free of all custody, the Court of Appeal arguably

concluded, on the facts here, that Palmer’s 30 years of

incarceration for his 1988 crime was so disproportionate that it

left no room for any further restraint or punishment in his case.

(See In re Palmer, supra, 33 Cal.App.5th at pp. 1207–1214

[finding Palmer’s 30 years of imprisonment to be “grossly

3

In re PALMER

Liu, J., concurring

disproportionate” based on a detailed examination of his 1988

crime and his relative youth and mitigating background]; id. at

p. 1224 [examining specific restrictions in Palmer’s parole term

and finding it “difficult to comprehend how his release under

such conditions can be seen as anything other than continued

restraint and punishment for his crime”].) In other words, the

Court of Appeal appears to have reached an individualized

conclusion as to the unlawfulness of the parole term in Palmer’s

case. If that is so, then Palmer’s litigation of this very point in

further proceedings will be redundant.

The latter strikes me as the more natural reading of the

Court of Appeal’s opinion as a whole. But the issue will likely

be clarified soon enough in further proceedings.

LIU, J.

4

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Palmer

_________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 33 Cal.App.5th 1199

Rehearing Granted

__________________________________________________________________________________

Opinion No. S256149

Date Filed: January 28, 2021

__________________________________________________________________________________

Court:

County:

Judge:

__________________________________________________________________________________

Counsel:

O'Melveny & Myers, Geoffrey Yost, Anna Pletcher, Melody Drummond Hansen, Megan Havstad, Cara L.

Gagliano, Micah Chavin, Michael J. Pierce, Anna Schneider and Mehwish Shaukat for Petitioner William

M. Palmer II.

Jerome N. Frank Legal Services Organization, Marisol Orihuela and Miriam Gohara for The Prison Law

Office, Vincent Schiraldi and David Muhammad as Amici Curiae on behalf of Petitioner William M.

Palmer II.

Keker, Van Nest & Peters, Sharif E. Jacob and Taylor Reeves for Professor Vincent Schiraldi, Columbia

University School of Social Work, as Amicus Curiae on behalf of Petitioner William M. Palmer II.

Munger, Tolles & Olson, William D. Temko, Sara A. McDermott and Michele C. Nielsen for Human

Rights Watch and The Pacific Juvenile Defender Center as Amici Curiae on behalf of Petitioner William

M. Palmer II.

Kristen Bell for The Sentencing Project as Amicus Curiae on behalf of Petitioner William M. Palmer II.

William Vogel as Amicus Curiae on behalf of Petitioner William M. Palmer II.

Elbert Lee Vaught IV as Amicus Curiae on behalf of Petitioner William M. Palmer II.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Phillip J. Lindsay,

Assistant Attorney General, Sara J. Romano, Amanda J. Murray and Denise A. Yates, Deputy Attorneys

General, for Respondent Board of Parole Hearings.

Mark Zahner and Richard J. Sachs for California District Attorneys Association as Amicus Curiae on

behalf of Respondents Board of Parole Hearings and California Department of Corrections and

Rehabilitation.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Megan Havstad

O’Melveny & Myers, LLP

Two Embarcadero Center, 28th Floor

San Francisco, CA 94111-3823

(415) 984-8700

Amanda J. Murray

Deputy Attorney General

600 West Broadway, Suite 1800

San Diego, CA 92101

(619) 738-9084