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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Preview of Sykes, the Supreme Court’s Latest ACCA Case

The Supreme Court will hear argument on January 12 in Sykes v. United States, the latest entry in its recent series of cases on the Armed Career Criminal Act.  This case may provide a good opportunity for the Court to clarify what state of mind is required for a prior conviction to trigger the ACCA’s fifteen-year mandatory minimum.  (For background on the ACCA, see my posts here, here, and here.)

The Court created the state-of-mind problem in Begay v. United States, 553 U.S. 137 (2008), which held that a prior conviction does not count as a “violent felony” under the ACCA unless the crime was “purposeful, violent, and aggressive.”  This is a rather mysterious phrase.  Although the word “purposeful” is a familiar culpability term, it is not clear what “violent” and “aggressive” are meant to connote in this context.  And even “purposeful” has some ambiguity, as any law student who has ever wrestled with the elusive distinction between “general intent” and “specific intent” will tell you.

Begay itself indicated that DUI does not satisfy the PVA test because DUI is a strict liability offense.  This teaches that some culpability is indeed required for an offense to count as a “violent felony,” but Begay provided little guidance beyond that.

Then came Chambers v. United States, 129 S. Ct. 687 (2009).  

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SCOTUS to Decide Whether Sentencing Judge Can Base Prison Term on Time Needed for Treatment Program

On Friday, the Supreme Court agreed to resolve a longstanding circuit split on the question of whether a federal sentencing judge may set the length of a prison term based on what the judge believes will be necessary for a defendant to complete a prison-based treatment program.  The case is Tapia v. United States (No. 10-5400).

After being convicted of alien smuggling and bail jumping, Tapia was sentenced to 51 months in prison.  The judge made clear that the sentence was based, at least in part, on what the judge anticipated would be necessary for Tapia to complete a drug treatment program:

I am going to impose a 51-month sentence[:] 46 months [for smuggling] plus five months for the bail jump[.]  [O]ne of the factors that affects this is the need to provide treatment.  In other words, so she is in long enough to get the 500 Hour Drug Program, number one.

The dispute over the permissibility of the judge’s reasoning has its roots in the origins of the Sentencing Reform Act of 1984.  

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