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.