Cal. L. Rev.: Appealing Parole Denials

Parole denials, by the Board of Prison Terms or the Governor, generate many appeals.  The California Supreme Court's recent decisions in Lawrence and Shaputis have provided some guidance on the "some evidence" standard of review. 

Joey Hipolito, a Davis Polk corporate lawyer, contributes "In re Lawrence: Preserving the Possibility of Parole for California Prisoners:"

The California Supreme Court recently took a key step toward protecting the due process rights of prisoners. The court required the governor or Board of Parole Hearings (the “Board”) to present “some evidence” indicating that an inmate is currently dangerous to withstand judicial review of a decision denying parole. This outcome affects approximately twenty-three thousand California prisoners serving life sentences with the possibility of parole. After a suitability hearing, the Board may grant parole to these “lifers.” However, it rarely does so. The governor can then affirm, modify, or reverse the Board’s decision. California governors have overwhelmingly chosen to reverse. For example, from 1999 to 2003, Governor Davis reviewed 371 parole grants and approved only nine. The California Supreme Court, in 2002, held that thesedenials are subject to judicial review, but only to determine that the governor based his decision on “some evidence” related to the statutory factors. In response, the governor regularly presented the egregiousness of the crime, by itself, which the courts found to suffice as “some evidence” of unsuitability. Because almost all lifers, by definition, are guilty of criminal acts that may be considered egregious, this open-ended standard failed to effectively provide them with a remedy for violations of due process. In re Lawrence corrected this by holding that the evidence for denial must be rationally related to a finding of “current dangerousness.”9 By requiring courts to focus on current dangerousness, Lawrence increased the judiciary’s ability to reject the evidence presented to deny parole. This new discretion has finally permitted the judiciary to assert itself in the parole process, leading to better safeguarding of the due process rights of inmates."