California Parole May Be Broken, But Federal Courts Cannot Fix It

By some curious coincidence, at about the same time that Jonathan Simon was explaining in his Barrock Lecture yesterday that parole has effectively become unavailable in California in homicide cases, the United States Supreme Court was overturning a pair of Ninth Circuit decisions that would have established a basis for federal-court review of parole denials.

The California parole statute indicates that the state Board of Prison Terms “shall set a release date unless it determines that . . . consideration of the public safety requires a more lengthy period of incarceration.”  According to the California Supreme Court, the statute requires that there be ”some evidence ” in support of a conclusion “that the inmate is unsuitable for parole because he or she currently is dangerous.”  As Simon discussed, this requirement of some evidence of current dangerousness has been applied by the state courts such that the state can justify a parole denial in nearly any case. 

The two cases decided by the Court yesterday in Swarthout v. Cooke (No. 10-333) nicely illustrate Simon’s point. 

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Will the NLRB Change Its Position on Captive Audience Speeches?

This is the question that Paul Secunda considers in a new paper, “The Future of NLRB Doctrine on Captive Audience Speeches.” Under established doctrine, employers may require employees who are contemplating unionization to attend meetings at which speeches opposed to unionization are presented.  However, the National Labor Relations Board has recently undergone some significant membership changes that could conceivably lead to reconsideration of the “captive audience” doctrine.  Paul’s paper describes how this reconsideration might come about and discusses potential outcomes.  His conclusion:

I believe the Board will likely not prohibit all captive audience meetings as I believe they could, and should, do under current law.  Rather, the Board is likely to engage in a more restrained approach based on already-existing doctrines and cases given the Board’s desire to avoid the misimpression that it is merely engaging in politically-motivated flip-flopping.

Paul’s paper was part of a symposium at Indiana University-Bloomington on labor and employment law under the Obama Administration.  The abstract appears after the jump.

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