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.
One defendant, Elijah Clay, was convicted of first-degree murder in 1978. Although his extraordinary length of time in prison means that he must be well beyond the age when the vast majority of criminals stop offending, the state denied parole on the basis of offense gravity (which actually has very little to do with current dangerousness, especially when the offense is so old), criminal history, failure to participate fully in self-help programs (one suspects the notoriously overcrowded and underfunded state of California’s prison system may have a lot to do with this), and Clay’s “unrealistic plans for employment and housing after being paroled” (again, the state probably must shoulder a good bit of the blame for this).
Meanwhile, defendant Damon Cooke, convicted of attempted murder in 1991, was similarly denied based on offense gravity, failure to participate fully in rehabilitative programs, failure to develop marketable skills, and three incidents of misconduct in prison.
In both cases, the Ninth Circuit awarded habeas relief, finding that the state had unreasonably applied its “some evidence” standard.
The Supreme Court summarily reversed in yesterday’s per curiam opinion. The Court held that federal habeas does not provide relief for violations of state law, and the only aspect of federal law implicated in Calfornia’s parole decisions is the requirement of procedural due process under the Due Process Clause. In the cases of Clay and Cooke, that requirement was satisfied:
In the context of parole, we have held that the procedures required are minimal. . . . Cooke and Clay received at least this [minimal] amount of process: They were allowed to speak at their parole hearings and to contest the evidence against them, were afforded access to their records in advance, and were notified as to the reasons why parole was denied.
This should have been the beginning and the end of the federal habeas courts’ inquiry into whether Cooke and Clay received due process.