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.