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

1
 In re PALMER
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

2
 In re PALMER
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

3
 In re PALMER
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.

4
 In re PALMER
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.)

5
 In re PALMER
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

6
 In re PALMER
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.

7
 In re PALMER
Opinion of the Court by Cuéllar, J.

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.

8
 In re PALMER
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

9
 In re PALMER
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

10
 In re PALMER
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

11
 In re PALMER
Opinion of the Court by Cuéllar, J.

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

12
 In re PALMER
Opinion of the Court by Cuéllar, J.

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.)

13
 In re PALMER
Opinion of the Court by Cuéllar, J.

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.)

14
 In re PALMER
Opinion of the Court by Cuéllar, J.

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,

15
 In re PALMER
Opinion of the Court by Cuéllar, J.

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

16
 In re PALMER
Opinion of the Court by Cuéllar, J.

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