Thursday, February 17, 2011

Swarthout v. Cooke, 131 S.Ct.859 (2011) /Gilman v.Schwarzenegger, 2011 WL 198435 (C.A.9)

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.

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