In 2008 the California Supreme Court interpreted the relevant state statutes on parole of state prisoners to require the Board of Prison Terms to grant parole to an applicant unless the record established “some evidence” the prisoner was “currently dangerous” to the public; In re Lawrence, 44 Cal.4th 1181 (2008); In re Shaputis, 44 Cal.4th 1241 (2008).
The test of “current dangerousness” is obviously subjective. In addition, the Lawrence case held the original conviction alone cannot qualify as the only basis for the Board’s denial of parole. Lawrence and Shaputis enabled the 9th Circuit to review denials of parole on habeas corpus, and it appeared the federal court would subscribe to California law; Hayward v. Marshall, 603 F.3d 546 92010).
In Swarthout v. Cooke, the 9th Circuit panel ignored the California Court of Appeals and California Supreme Court decisions upholding the denial of parole to Cooke (and another prisoner, Clay) on grounds the record contained no evidence of their “current dangerousness,” and the State courts unreasonably determined the facts and the law.The Ninth Circuit also found a “liberty interest” violation of Due Process.
In a summary disposition by the Supreme Court, the Justices reproached the 9th Circuit for completely misunderstanding case law precedent; informed the Ninth Circuit no issue of Due Process existed; and the state court decision is not governed by any federal constitutional law or statute. “. . . [R]esponsibility for assuring the constitutionally adequate procedures governing California’s parole system are properly applied rests with California courts, and is no apart of the Ninth Circuit’s business.”
The Supreme Court also noted the 9th Circuit had misapplied the parole law in a previous case, Pearson v. Muntz 606 F.3d 606 (2010). In other words, the Court reversed the Ninth Circuit in three cases.
Swarthout v. Cooke assures no further 9th Circuit intervention in state parole issues.
In Gilman the 9th Circuit panel concisely summarizes California parole law in a case holding Proposition 9 (amending sections on eligibility for parole)) does not violate the Ex Post Facto Clause of the Constitution. In holding the Clause inapplicable the panel cites Dept. of Corrections v. Morales, 115 S.Ct. 1597 (1995) another case reversing a 9th Circuit decision governing parole hearings.
Federal courts manage California county jails; state prisons; parole hearings; issue habeas corpus on state court rulings; decide state elections and Initiatives; supervise the Los Angeles Police Dept.; appoint Receivers. In Pearson v. Muntz, on rehearing en banc, the 9th Circuit held it could compel parole of a prison inmate denied release by the Governor of California who did not comply with state rules on parole release. The California Supreme Court has held that under California law, the Board of Prison Terms must find “some evidence” of the inmate’s present dangerousness to prevent his release on parole. According to the 9th Circuit majority, the Governor, who exercises review authority of the Board, did not follow state law in denying Pearson’s parole. According to the Ninth Circuit, failure of a state to follow state law violates federal due process. The dissenters (seven judges dissenting from denial of rehearing) in Pearson argued the 9th Circuit is bound by AEDPA, the federal statute circumscribing federal judicial review of state court cases and simultaneously limiting their appellate powers only to cases that fail to follow “established Supreme Court law.” There is no Supreme Court law mandating the 9th Circuit to interpret state statutory or state Constitutional law unless violative of federal due process. The Supreme Court has held the states are under no obligation to allow parole, and the only “process” that is “due” allows the prisoner an opportunity to be heard. Not a single Supreme Court case authorizes a federal court to review state parole law other than that provision.
Under California law, the Board of Parole Hearings (replacing the former name of Board of Prison Terms) must grant parole to a state prisoner unless there is “some evidence” of the parolee’s future dangerousness; In re Lawrence, 190 P.3d 535 (Cal. 2008) and In re Shaputis, 190 P.3d 573 (Cal. 2008). Both of these decisions written by the California Supreme Court have engendered numerous appeals in state court and in federal court. Hayward was convicted of second degree murder in state court and sentenced indeterminately to fifteen years to life. The Board granted his application for parole subject to Gubernatorial concurrence. Then-Governor Davis denied parole. Hayward filed habeas corpus in federal court. Two federal courts, Irons v. Carey, 505 F.3d 846 (9th Cir. 2007) and an earlier decision of Hayward v. Marshall, 512 F.3d 536 (9th Cir. 2008) held a state prisoner has a “liberty interest” in parole. In the original Hayward case the Ninth Circuit three judge panel held the Governor failed in his duty to grant Hayward parole under the circumstances. The “circumstances” included a second degree murder conviction and 28 arrests including an armed robbery. The Ninth Circuit granted a rehearing in Hayward v. Marshall, vacated the panel holding, and canceled the ruling in Irons v. Carey. The Ninth Circuit cited the Supreme Court case of Greenholtz v. Inmates of Nebraska Penal & Correction Complex, 442 U.S. 1 (1979). “Greenholtz addressing a claimed right to parole, holds that ‘[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.’ The Hayward court continues: The [Supreme] Court distinguishes parole from parole revocation, because revocation is a ‘wholly retrospective factual question,’ but release on parole depends on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals.’ “Greenholtz emphasizes that parole is a discretionary, predictive decision. Parole decisions are ‘equity type judgment[s] that cannot always be articulated in traditional findings because the choice involves a synthesis of record facts and personal observation filtered through the experience of the decisionmaker and leading to a predictive judgment as to what is best both for the individual inmate and for the community. “The [Supreme] Court rejects the due process argument for a some evidence standard: Nothing in the due process concepts as they have thus far evolved that requires the Parole Board to specify the particular evidence in the inmate’s file or at his interview on which it rests the discretionary determination that an inmate is not ready for conditional release. The state parole statute at issue in Greenholtz arguably created a liberty interest to some evidence because it said that the prisoner shall be paroled unless certain negative conditions applied. But the Court rejected the argument. The Constitution does not require more than an opportunity to be heard and a statement telling the prisoner why he was not paroled.” The Ninth Circuit ruled that the California parole process does not violate any federal Constitutional right. Surprisingly, the entire en banc court denied the petition for habeas corpus but the concurring and dissenting judge resorted to personal and abusive remarks about the majority opinion entirely unnecessary and injudicious.
See, subsequent blog on Parole (Swarthout) above