FRESNO — The California Supreme Court appeared to be inclined Tuesday to give Gov. Gray Davis latitude to keep inmates convicted of murder behind bars in cases in which the state parole board and lower courts have found that the prisoners deserve parole.
The state high court, meeting for arguments on pending cases, will decide within 90 days what kind of evidence, if any, Davis must present to keep model inmates with unblemished prison records incarcerated despite the recommendations of the parole board that he appoints.
"Isn't a great deal of deference accorded to the executive?" Chief Justice Ronald M. George asked at the hourlong hearing. George expressed concern that allowing the state's "1,600 judges to second-guess gubernatorial decisions" might violate the separation of powers doctrine.
The court is considering the future of inmate Robert Rosenkrantz, 35, who killed a Calabasas schoolmate when he was 18 for exposing his homosexuality. The decision in Rosenkrantz's 1985 case will affect hundreds of inmates who were convicted of murder but are eligible for parole.
Davis has said publicly that he does not believe convicted murderers should be paroled but has denied that he has an official no-parole stance, a policy that lower courts have said would be unlawful.
Davis has overturned parole recommendations for 128 convicted killers and approved the release of two, both battered women who killed their abusers.
"He has granted two," George said. "Do we look at his actions, do we look at his decisions or do we look at the political rhetoric?"
Justice Marvin Baxter asked whether the Board of Prison Terms made a "free and voluntary" decision to parole Rosenkrantz. A parole board in 1996 found Rosenkrantz suitable for release, but board administrators overturned the decision. The parole board did not again recommend Rosenkrantz's release until ordered to do so by a Superior Court judge in Los Angeles acting on a habeas corpus petition by Rosenkrantz.
"The board's decision to grant parole was not of its own free will," Deputy Atty. Gen. Robert D. Wilson told the Supreme Court.
The Los Angeles judge ruled in the Rosenkrantz case that Davis had an illegal, no-parole policy for convicted murderers. A state Court of Appeal in Los Angeles sided with Rosenkrantz too, stating that Davis had failed to present any evidence to show why Rosenkrantz should remain in prison.
George, however, indicated Tuesday that he believes Davis' 12-page decision rejecting parole for Rosenkrantz contained evidence to support continued incarceration.
"Doesn't this indicate an exercise of discretion, a weighing of the evidence?" George asked after reading aloud parts of Davis' decision.
Justice Joyce L. Kennard, on the other hand, expressed concern that it might be unconstitutional to deny Rosenkrantz parole because the rules have changed since he committed his crime.
Until voters approved a constitutional amendment in 1988, governors could not override a parole board's recommendation for release. Laws generally are supposed to be applied in the future, not retroactively.
George objected that if the court agreed there was a constitutional problem, governors would not be able to overturn grants of parole unless the inmates had committed their crimes after the change in the law.
"That delay," replied Donald Specter, director of the Prison Law Office, "is part of the Constitution."
Justice Carlos Moreno suggested that the change in law might be merely a modification of procedures, not an unconstitutional retroactive increase in punishment.
Rosenkrantz's parents, who live in Calabasas, and his two younger brothers attended Tuesday's court hearing.
Barbara Rosenkrantz, 56, an art therapist, said she grieves every day for the family of her son's victim, Steven Redman, and the incarceration of her son.
Her husband, Herbert Rosenkrantz, 70, a retired lawyer, recalled tearfully how he angrily rejected his son after Redman exposed him as a homosexual.
Robert Rosenkrantz then went out and purchased an Uzi and a week later shot Redman repeatedly in the head. Rosenkrantz said he had asked Redman to recant and tell his father he was not gay, but Redman refused.
Herbert Rosenkrantz said his rejection of his eldest son "absolutely shattered Robert's self-esteem and set into a motion a chain of events that resulted in the tragic murder of Steve Redman by Robert."
"I have regretted my failure to support Robert every day and night of my life," the elder Rosenkrantz said, "because I believe that if I had put my arm around him and been his friend rather than his angry father, Steve might be alive today."
Rosenkrantz, who was sentenced to 17 years to life for the second-degree murder, has attracted wide support in his bid for release. Among those who have advocated his parole are the judge who presided over his trial and a detective who investigated the murder.
Also siding with Rosenkrantz are the California Council of Churches, the Board of Rabbis of Northern California, Catholic chaplains who serve state prisoners and the California Coalition for Battered Women in Prison.
Rosenkrantz has earned a college degree in prison and has tutored other prisoners. Job offers await him if he wins a release.
In denying parole, Davis cited the viciousness of the murder and evidence that Rosenkrantz planned the killing.
Five Superior Court judges in California have ruled that Davis acted illegally by overturning various parole decisions. One Court of Appeal has ruled for Davis, another against him.