In Re Fain

This habeas corpus proceeding presents the novel question whether the Governor may suspend the parole release date previously accorded a state prison inmate by the Board of Prison Terms and conduct a hearing to determine whether to rescind said release date. We determine the Governor may not do so; for the clear meaning of the pertinent statutes as well as the legislative history of the specific provision the Governor expressly relies upon compel the conclusion that there is no gubernatorial authority to rescind the parole release date of a prisoner still in physical custody.

I.

Petitioner William Archie Fain was in 1967 convicted of murder, rape, sex perversion, kidnaping and attempted kidnaping. In 1969 he was additionally convicted of escape, robbery and kidnaping. 1 Fain has served more than 15 years of a life term in state prison for the aforesaid crimes. The details of his violent history and numerous encounters with the criminal justice system have been amply memorialized and need not be reiterated. (See People v. Fain (1969) 70 Cal.2d 588 [ 75 Cal.Rptr. 633 , 451 P.2d 65 ]; Fain v. Superior Court (1970) 2 Cal.3d 46 [ 84 Cal.Rptr. 135 , 465 P.2d 23 ]; People v.…

I respectfully dissent.

Contrary to the position taken by the majority, my analysis of the parole provisions of the Penal Code does not persuade me that the power to rescind a parole release date arises from the power to grant parole rather than to revoke it. Nor do I agree that the power to rescind a parole release date is one possessed exclusively by the Board of Prison Terms (Board).

*558 The majority’s construction of the parole provisions of the Penal Code is based primarily upon the fact that sections 3041.5 and 3041.7 are the only provisions in the Penal Code that specifically refer to the rescission of a parole release date. However, the majority overlooks the fact that these sections do not purport to create the power to rescind a parole release date; rather, they acknowledge, by implication, the existence of such power and merely prescribe the procedure for its exercise. The source of that power lies elsewhere and, in my opinion, arises from the power to revoke parole, which is possessed equally by the Board and by the Governor, pursuant to sections 3060 and 3062 of the Penal Code.

In In re McLain (1960) 55 Cal.2d 78, 80-81 [ 9 Cal.Rptr. 824 , 357 P.2d 1080 ], the…

This habeas corpus proceeding presents the novel question whether the Governor may suspend the parole release date previously accorded a state prison inmate by the Board of Prison Terms and conduct a hearing to determine whether to rescind said release date. We determine the Governor may not do so; for the clear meaning of the pertinent statutes as well as the legislative history of the specific provision the Governor expressly relies upon compel the conclusion that there is no gubernatorial authority to rescind the parole release date of a prisoner still in physical custody.

Petitioner William Archie Fain was in 1967 convicted of murder, rape, sex perversion, kidnaping and attempted kidnaping. In 1969 he was additionally convicted of escape, robbery and kidnaping. [1] Fain has served more than 15 years of a life term in state prison for the aforesaid crimes. The details of his violent history and numerous encounters with the criminal justice system have been amply memorialized and need not be reiterated. (See People v. Fain (1969) 70 Cal.2d 588 [ 75 Cal. Rptr. 633 , 451 P.2d 65 ]; Fain v. Superior Court (1970) 2 Cal.3d 46 [ 84 Cal. Rptr. 135 , 465 P.2d 23…