Wednesday, July 26, 2006
Page 3
Board Cannot Deny Parole to Deportable Alien Due to Lack of Plan for Living in California—Court
By a MetNews Staff Writer
A parole board cannot deny parole to an inmate who probably will be deported just because he does not have an alternate plan for living in California, the First District Court of Appeal ruled yesterday.
Div. Three nonetheless affirmed Contra Costa Superior Court Judge David Flinn’s denial of Liber R. Andrade’s petition for habeas corpus after the Board of Prison Terms—now the Board of Parole Hearings—denied him parole. The court upheld the denial of parole solely on the basis of the nature of the offense Andrade committed.
Justice Joanne C. Parrilli, writing for the court, explained that since the board’s ruling on the other issue was correct, it was technically unnecessary for the court to resolve the deportation question, but that the panel chose to do so because the issue was important and may come up again.
“It is a significant burden to develop two plans—to maintain and develop the social and economic relationships necessary to live potentially in either of two places,” Parrilli said. “For an illegal alien convicted of murder, who cannot work here legally and whose employer would face sanctions for employing him, this is an unrealistic burden.”
The justice explained that after a near traffic collision in 1981, Andrade and the driver of another car started fighting and the other driver pulled a knife and cut Andrade’s neck. The fight eventually ended, and most of the onlookers and participants, including Andrade, departed.
But Andrade returned with a shotgun. He started walking toward two bystanders who had not yet left. When he pointed the gun toward them, one of them yelled out, “We’re not in it, we’re not in it.”
Wrongly believing that one of them was the man who cut him, Andrade fired two shots, killing one and wounding the other. It was later determined that he had a blood alcohol content of .09 percent.
Andrade was convicted of murder and sentenced to 17 years to life in prison. The Immigration and Naturalization Service—now the Bureau of Citizenship and Immigration Services—placed a hold, which serves as a request to let the INS know when he is about to be released so that it can arrange to take custody of him prior to his deportation, and is not a deportation order itself, on him.
While in prison Andrade earned both a GED certificate and a high school diploma, completed several vocational training courses, and worked as a program clerk. He participated in various therapy and self-help activities, including alcoholics anonymous, and he tutored reading. He participated in the Protestant Chapel Christian Ministries, interpreting for Spanish-speaking participants and playing music.
In 2003 a correctional officer noted in Andrade’s record that:
“[H]e has been able to reach many of [the other inmates participating in a Life Experience course] and assist them in turning their lives around. He (sic) work—and work ethics are outstanding and he accepts full responsibility for his actions. If he’s granted parole he would be a productive citizen and an asset to any community he resides in.”
He also expressed guilt and remorse for his actions.
At a 2004 parole hearing, Andrade explained his actions:
“I was upset. Somebody had wounded me, had tried to kill me, and I feel the need to retaliate or to make them know that I – they couldn’t—they couldn’t just mess with me.”
Andrade has said that if someone insulted his dignity today, he would not respond as he did back then, saying, “I have learned. I’m a mature man. I’m a grown man.”
The board denied parole because of the nature of the Andrade’s crime, which the board described as “violent and brutal” and which it found “demonstrate[d] a disregard for human life” and because Andrade did not have a viable plan, including a job offer and support group, for living in California after his release.
The board explained :
“The reason for this is that when he is released from prison there is no guarantee that he will be released to Mexico. So plans must be made for California.”
But Parrilli said:
“Although we are sensitive to the workloads and budgetary constraints of all involved, we cannot require the prisoner to plan for the contingency that the government might fail to do its job of deporting him.”
The judge explained:
“[U]nless an alien is a legal permanent resident or has appropriate authorization he cannot be employed in this country. . . . It is self-evident that the government may not require as a condition of parole that someone arrange to violate the law. But this is precisely what the Board’s insistence that an illegal alien have employment plans in this country does.”
Presiding Justice William R. McGuiness concurred with Parrilli.
Justice Stuart R. Pollak, concurred in holding that a deportable alien should not be required to have an alternative California release plan, but expressed strong disagreement “with the conclusion that the finding of the Board . . . that petitioner is unsuitable for parole, can be sustained based solely on the circumstances of petitioner’s commitment offense.”
Pollak explained:
“While in a rage and under the influence of alcohol, petitioner committed a one-time offense, for which he has now served 25 years in prison. He has taken the appropriate steps to eliminate his alcoholism and to curb his anger which, rather than any pattern of criminality, were at the root of his offense.”
Pollak concluded:
“This record, like that in numerous recent cases, strongly suggests that California parole authorities are losing sight of the fact that ‘release on parole is the rule, rather than the exception.’”
The case is In re Andrade, S.O.S. 3884.
Copyright 2006, Metropolitan News Company