Recently in Probation and Parole Category

The Sixth Circuit today held that Michigan's parole scheme does not create a constitutionally protected liberty interest cognizable on federal habeas review:

[I]n determining whether Michigan's parole system creates a liberty interest, we must determine whether Petitioner had "a legitimate claim of entitlement to" parole, rather than "an abstract need or desire for it."

A murderer a day shy of his 18th birthday is categorically exempt from a death sentence.  Should that arbitrary cut-off based on chronological age alone similarly exempt him from a true life-without-parole sentence, regardless of the circumstances of the crime and regardless of the length of his criminal record?  Incredibly, a bill to do just that has made it to the floor of the California Assembly.

Margaret Bengs has this article in the Sacramento Bee:

Prosecutors and judges already have discretion in seeking and imposing life-without-parole sentences and have reserved it for the "worst of the worst." Most teen criminals in California are tried in the juvenile court system and must be released at age 25. Of those tried in adult court, only first-degree murder with special circumstances can result in life without parole, and only for 16- and 17-year-olds. All states allow juveniles to be tried as adults in criminal court under certain circumstances, according to the U.S. Justice Department.

Rong-Gong Lin reports in the LAT:

Los Angeles County supervisors on Tuesday condemned Sacramento's cost-cutting decision to keep some state prisoners in local lockups and have parolees be supervised by county agencies, asserting that both would lead to an increase in crime.

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[County Supervisor Michael] Antonovich said it is likely that Los Angeles County will run out of jail beds unless it "uses other models of supervisions such as electronic monitoring, work furloughs, weekenders and GPS tracking."

"It's irresponsible for us to turn around and dump these [prisoners] into our communities with an ankle bracelet and hope they don't re-offend," Antonovich said. Without finding a way to increase prison time, Antonovich said, "I believe we'll have a spike in crime."

When pollsters ask Californians about prisoner releases while describing the prisoners in innocuous terms, such as "low-level, nonviolent offenders," they get positive responses.  See, e.g., this USC/LA Times poll last month, Question 36. 

But the reality is quite different, and when the reality produces its inevitable consequences, people will realize they have been deceived.

Anita Bennett of the Culver City Patch has this story on a protest in LA last Friday.

Chanting "justice for the victims," about two dozen people marched in front of the Ronald Reagan State Building in downtown Los Angeles on Friday, demanding change in the state policy that allows "low-level" parolees to be out in society without supervision. "I'm hoping people realize that this is happening," said Fred Escobar, whose 27-year-old daughter Erica Escobar was killed, allegedly at the hands of an ex-convict who had been released on non-revocable parole status.

On May 3, Erica Escobar and 89-year-old Lucien Bergez were found dead in Bergez's Culver City home. A 31-year-old transient named Zackariah Lehnen was arrested two days later and charged with two counts of murder.

Lehnen is accused of fatally stabbing and beating Bergez and Escobar.  The young woman's father believes that if Lehnen had remained locked up, his daughter would still be alive. "He shouldn't have even been released. He had assault with a deadly weapon. If that's a low-risk criminal, we're pretty much nuts."

In LA Weekly Dennis Romero has earlier posts here and here with more info on the case.

Why, you might ask, am I linking to the Culver City Patch and not the Los Angeles Times for coverage of this protest?  Couldn't find a single word about it in the LAT.

A man already on federal death row for a horrific crime in Idaho and Montana will be sentenced to two life-without-parole terms for the murder of another child in California, AP reports.

[Joseph Edward] Duncan was sentenced to death in 2008 for the kidnapping, torture and murder of 9-year old Dylan Groene of Coeur d'Alene, Idaho. He abducted the boy and his 8-year-old sister Shasta after killing their older brother, mother and her fiance with a hammer at the family's home in 2005.

He then took the children to a remote western Montana campsite where he raped, tortured and threatened them before shooting Dylan in the head and burning his body.

Oral argument in the federal case was held in the Ninth Circuit on January 12, Duncan v. United States, No. 08-99031. 

Meanwhile, back in California,

On January 24, the US Supreme Court reversed the Ninth Circuit on the way it had been interfering in California parole decisions, and it did so in unusually strong language.  See prior posts here and here.  Today we were tipped to an unpublished memorandum disposition on Feb. 8 grudgingly implementing that decision, Kutylo v. Vaughn, No. 07-55829.  The main opinion simply affirms on the basis of Swarthout v. Cooke, the Supreme Court decision.  Then the notorious Judge Reinhardt chimes in with this:

Because the Supreme Court has held that whether there is "some evidence" to support a denial of parole, a right that California law affords inmates, is "no part of the Ninth Circuit's business," Swarthout v. Cooke, No. 10-333, Slip Op. at 6 (Jan. 24, 2011), and for that reason only, I reluctantly concur.

That rule -- that alleged errors of state law in state criminal cases are to be dealt with by the state courts and that federal habeas for state prisoners addresses only questions of federal law -- was not new this January.  It has been an integral part of the law since Congress first authorized federal habeas for state prisoners, and it is codified at 28 U.S.C. §2254(a). 

Judge Reinhardt apparently has his nose out of joint because the Supreme Court told him to obey an elementary rule of law that he has been flouting for years.  And this is not the first time the high court has done so.  "We have stated many times that 'federal habeas corpus relief does not lie for errors of state law.'"  Swarthout, at 4 (quoting Estelle v. McGuire, 502 U. S. 62, 67 (1991) (quoting Lewis v. Jeffers, 497 U. S. 764, 780 (1990))).

How many times do they have to explain this before he gets it?

There are some events that everyone who is out of early childhood at the time remembers as long as they live, 9/11 being the most recent.  June 4, 1968 is another.

Well, almost everyone.  Sirhan Sirhan claims not to remember the events of the latter date, Linda Deutsch reports for AP.

Like the other once-death-sentenced murderers of the Class of '72, Sirhan is eligible to be considered for parole.  California had no "life without parole" sentence at the time, so everyone taken off death row in the debacle of that year became eligible for parole.

ABC-TV director William Weisel is a surviving victim of the crime.  "Having covered the White House through seven presidents, he said he does not ascribe to conspiracy theories because, 'The government can't keep a secret.'"

Leon Neyfakh has this long article in the Boston Globe on predicting recidivism and the use of such predictions in sentencing and parole decisions.

Part of the controversy over the use of risk assessment tools goes to the dual purpose of punishment.  We punish for both utilitarian and retributive purposes.  The practical reasons to punish are to (1) deter other potential wrongdoers with the example, (2) incapacitate the individual wrongdoer, at least for a time, and (3) hopefully rehabilitate the individual.  Risk assessment informs us on the latter two points.

The retributive purpose is to punish evildoers because they deserve it, period.

The two philosophies of punishment are in harmony when it comes to punishing repeaters more severely than first-timers.  Recidivism is the single strongest predictor of repeating again, and the repeaters deserve more punishment as a matter of simple justice.  For other factors, though, things get more complicated.  Is it moral to punish someone more severely due to a "risk factor" beyond his control?

For the third time in two weeks, the U.S. Supreme Court has reversed a Ninth Circuit decision in a crime-related case without a single Justice concluding the Ninth was correct.

In Swarthout v. Cooke, No. 10-333, the Ninth Circuit took it upon itself to review whether California's parole authority and state courts had correctly applied the standard under state law for deciding when to parole a person convicted of murder or attempted murder.  (Only a few crimes in California still have these "indeterminate" terms with discretionary release by the parole board.  Most have "determinate" terms with a set term of years which may be reduced by credits for working or behaving in prison. Noncapital murder is one of the few.)

The parole board* decides when and whether to grant parole based on whether the public safety requires keeping the murderer locked up, and the state courts review whether there is "some evidence" supporting the board's decision.  What is the federal question here?  There isn't any.  There is a federal constitutional minimum of due process, but there is no claim in this case that California's procedures do not meet it.

I had hoped to start off the New Year with a hopeful story, but apparently it is not to be.  This Boston Globe article follows up on an earlier report about the Massachusetts Parole Board's unconscionable decision to put back on the street a life-long, violent criminal who, less than two years later, gunned down a police officer during a robbery.  As the article recounts:

 

Fox News has this appalling story of a thoroughly preventable murder.   In the name of ever-sprawling (and mostly fake) "compassion," and because he was a "changed man," a lifelong violent criminal was released on parole through a unanimous vote of the Massachusetts Parole Board.  Less than two years later, he gunned down a police officer in the course of a robbery.  As the story recounts, the paroled killer, Dominic Cinelli:

...had a lengthy rap sheet filled with armed robberies, assaults and other offenses, had been serving three life sentences since 1976, and had chronic disciplinary problems while in prison including two escapes during which he committed crimes, the Globe reported. Still, he won the board over by saying the deaths in the family, including his mother's, and drug counseling changed him.

Yes indeed, counseling wins the day.  Doesn't it ever. What is going on here is not actually the failure to learn from Willie Horton.  It's the refusal to learn.