Bosworth v. Whitley

• Decision Date: 29 November 1993
• Docket Number: No. 93-CA-1829,93-CA-1829
• Citation: 627 So.2d 629
• Parties: Gerald A. BOSWORTH, et al. v. John P. WHITLEY, Warden.
• Court: Louisiana Supreme Court

Page 629

627 So.2d 629

Gerald A. BOSWORTH, et al. v. John P. WHITLEY, Warden.

No. 93-CA-1829.

Supreme Court of Louisiana.

Nov. 29, 1993.

Rehearing Denied Jan. 27, 1994.

Richard P. Ieyoub, Atty. Gen., Carol A. Jewell, Mary P. Jones, for applicant.

Gerald A. Bosworth, pro se.

Julian R. Murray, Jr., Helen G. Berrigan, William L. Kline, for respondent.

CALOGERO, Chief Justice. ^*

In this case, we examine the law relative to the Parole Board's policy of refusing to consider parole eligibility for inmates sentenced to serve life sentences between July 26, 1972 and July 2, 1973, while 1972 La.Acts No. 502 ¹ was in force. Concluding that the Board's policy is legally correct, we reverse the judgment entered in the district court which had ruled that twenty-nine inmates serving life sentences in Angola Penitentiary are eligible for immediate parole consideration.

In 1972, the United States Supreme Court decided Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which ruled that the death penalty, as then applied in Louisiana, was unconstitutional. Accordingly, the imposition of the death penalty under the then existing Louisiana statutes, which, incidentally, allowed juries the discretion to impose the death penalty or a lesser penalty (La.Rev.Stat.Ann. Sec. 14:30 and La.Code Crim.Proc. art. 817), was found to constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Giving effect to Furman, this Court affirmed a conviction under these provisions, while annulling the death sentence and remanding to the trial judge "to sentence the defendant to life imprisonment." State v. Franklin, 263 La. 344, 268 So.2d 249, 250 (1972).

Twenty-nine inmate/appellees are currently serving life terms in Angola Penitentiary for murder or aggravated rape, committed in 1972 or earlier. At least fifteen of these inmates were originally sentenced to death. Four other of the twenty-nine entered guilty pleas without capital punishment. Several of the twenty-nine are serving multiple terms. ² Between July 26, 1972 and July 2, 1973, a period which coincided with the effective dates of 1972 La.Acts No. 502, those twenty-nine inmates were sentenced or re-sentenced to life imprisonment. None of the sentences by their terms carried parole restrictions.

Notwithstanding that La.Rev.Stat.Ann. Sec. 15:574.4(B) (West 1992) provides that no prisoner serving a life sentence shall be eligible for parole consideration until that sentence has been commuted to a fixed number of years, the inmates filed an Application for Writs of Habeas Corpus and Mandamus and sought to be declared eligible for immediate parole consideration without regard to that statutory precondition. Finding the application of Section 15:574.4(B) to the appellees to be ambiguous, and in conflict with other laws and the separation clause of the Louisiana Constitution, as well as a violation of due process, the commissioner of the Nineteenth Judicial District Court ³ concluded that these twenty-nine inmates were eligible immediately for parole consideration. The Attorney General, who had intervened pursuant to La. Const. IV, Sec. 8, ⁴ appealed the findings of unconstitutionality to this Court.

PAROLE

Louisiana's system of parole is set out in La.Rev.Stat.Ann. Sec. 15:574.2 (West 1992), et seq. The scheme defines parole as "an administrative device for the rehabilitation of prisoners under supervised freedom from actual restraint." La.Rev.Stat.Ann. Sec. 15:574.11 (West 1992). A Board of Parole is established within the Department of Public Safety and Corrections and is vested with authority to determine "the time and conditions of release on parole" for felons sentenced to imprisonment and confinement in correctional or penal institutes in the state. La.Rev.Stat.Ann. Sec. 15:574.2(A) and (C) (West 1992). Prior to each inmate's parole eligibility date, the Board has the duty to consider information, which includes the circumstances of the offense, presentence investigative reports, social history, criminal record and record while in prison. La.Rev.Stat.Ann. Sec. 15:574.2(C)(6) (West 1992). After considering such information, as well as reports of data supplied by the staff, the Board may convene a parole hearing if appropriate, or if such hearing is requested by the staff in writing. La.Rev.Stat.Ann. Sec. 15:574.4(C) (West 1992). The Board is authorized to adopt rules it deems necessary and proper with respect to both the conduct of these hearings and the eligibility of prisoners for parole. La.Rev.Stat.Ann. Sec. 15:574.2(C)(7) (West 1992). The conditions of parole as well as the granting or revocation thereof rest in the discretion of the Board of Parole, whose decisions generally cannot be appealed. La.Rev.Stat.Ann. Sec. 15:574.11 (West 1992).

While the foregoing emphasizes the power and authority of the Board of Parole, the general parole provisions contained in Section 15:574.4 clearly reveal that parole eligibility (which is determined by the sentence) and eligibility for parole consideration (which is dependent on meeting certain criteria and conditions specified by statute) are closely regulated by the Legislature. In Subsection A(1), the scheme provides that inmates otherwise eligible for parole, prisoners whose sentences do not carry parole restriction, become eligible for parole consideration under the following circumstances: when a first time offender has served one-third of the sentence imposed or when a second offender has served one-half of the sentence imposed. A person convicted of a third or subsequent felony is not eligible for parole. Although not applicable to an inmate serving a life sentence which has not been commuted to a fixed term of years, Section 15:574.4(A)(3) provides that prisoners sentenced to terms of thirty years or longer and who have reached the age of forty-five are eligible for parole consideration after serving at least twenty years in actual custody. Further legislative regulation of eligibility for parole consideration is contained in Subsection B, the statutory provision found unconstitutional by the Commissioner. It provides:

No person shall be eligible for parole consideration who has been convicted of armed robbery and denied parole eligibility under the provisions of R.S. 14:64, or who has been convicted of violation of the Uniform Narcotic Drug Law and denied parole eligibility under the provisions of R.S. 40:981. No prisoner serving a life sentence shall be eligible for parole consideration until his life sentence has been commuted to a fixed term of years. No prisoner may be paroled while there is pending against him any indictment or information for any crime suspected of having been committed by him while a prisoner. (emphasis added)

The Louisiana Legislature has thus provided parole consideration to inmates meeting specified standards and criteria, and has given to the Parole Board authority to make the final decision whether to release on parole. That scheme requires that those serving life sentences must first obtain a commutation by which the term of life is reduced to a fixed number of years, by petitioning the governor for clemency through the Board of Pardons, before becoming eligible for parole consideration.

THE CONSTITUTIONAL CHALLENGES

I. Separation of Powers Clause

The Louisiana Constitution provides that the "powers of government of this state are divided into three separate branches: legislative, executive, and judicial." La. Const. art. II, Sec. 1. Furthermore, according to Section 2 of Article II, "no one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others."

The "legislative or law making power of Louisiana" is vested in the Legislature. La. Const. art. III, Sec. 1(A); State v. Broom, 439 So.2d 357, 366 (La.1983). Similarly, the "fixing of penalties for criminal acts is a matter of legislative discretion." State v. Vittoria, 224 La. 258, 69 So.2d 36, 37 (La.1953).

However, the people of Louisiana have traditionally invested the executive with broad powers of clemency. The governor's power to commute dates from Article 66 of the Constitution of 1879, and the authority to pardon, reprieve and remit can be traced to the 1804 Territorial Laws of Louisiana and Orleans. Executive powers of clemency are today enumerated in La. Const. art. IV, 5(E), which provides:

(1) The governor may grant reprieves to persons convicted of offenses against the state and, upon recommendation of the Board of Pardons, may commute sentences, pardon those convicted of offenses against the state, and remit fines and forfeitures imposed for such offenses. However, a first offender never previously convicted of a felony shall be pardoned automatically upon completion of his sentence, without a recommendation of the Board of Pardons and without action by the governor.

(2) The Board of Pardons shall consist of five electors appointed by the governor, subject to confirmation by the Senate. Each member of the board shall serve a term concurrent with that of the governor appointing him.

This constitutional delegation of power to the executive underpins Louisiana's statutory provisions on clemency, which include reprieve, pardon, and commutation of sentence, found at La.Rev.Stat.Ann. Sec. 15:572 (West 1992), et seq.

The statutory scheme does not violate the Separation of Powers Clause. By regulating the qualifications which attach to eligibility for parole consideration, the Legislature has exercised its exclusive authority to determine length of punishment for crimes classified as felonies. However, there are no restrictions on the exercise of the executive's traditional prerogative to ameliorate harsh penalties otherwise provided by law for offenders who have proved their ability to rehabilitate in a custodial environment. Thus, the governor's exclusive authority over matters of clemency pursuant to Article IV,...