Parole Suitability: Appellate Victory for Innocent Inmates!


Actual innocence and parole

I talk to a lot of families of inmates who claim to be actually innocent.  Unfortunately, often the innocent inmate’s best chance to come home is through the California Board of Parole Hearings.  Proving one’s innocence after being convicted by a jury is a monumental task that usually requires new evidence – a hurdle that most inmates cannot overcome.  So, getting out through parole is much more likely in many cases.

san pedro parole attorney don hammond
san pedro parole attorney don hammond

I teach clients and their families that there are four pillars of parole suitability: Insight, Remorse, Culpability and Responsibility.  All four hinge largely on admitting guilt and understanding the full impact of one’s offense.  This is obviously a challenge for an inmate who maintains his innocence.

“Insight” refers to the inmate’s insight into the causative factors of the commitment offense.  The idea is that without an understanding of what led the inmate to a place in his life where he could be involved in a serious crime, the inmate is likely to repeat those factors and be involved in future criminality.  So, without such insight, the Board is likely to deny parole.  Many people in the parole field even advise inmates to lie and admit to the crime, because that may be the only path toward actually going home.

New Parole Case

Prior appellate court cases, including In re Coronel from 2012, have held that recency of insight is not a strong factor in parole suitability, so long as the inmate demonstrates insight at the time of the parole hearing.  On August 31, 2015, the Court of Appeals published In re Swanigan, holding that an inmate who maintains his innocence cannot be denied parole on that basis.

The court is correct.  The legal standard for parole is “present danger to society.”  If there is no evidence that an inmate presents a present danger to society, then parole shall be granted.  Given an inmate’s many years of positive programming, good conduct and other factors, the commitment offense is no longer relevant in determining the inmate’s present danger to society; that was the point of the In re Lawrence decision in 2008.  If the offense itself is no longer relevant, then an inmate’s refusal to admit to a crime he did not commit cannot be relevant either.  So long as that inmate can demonstrate many years of clean prison time, progress toward becoming a productive citizen on the outside and solid parole plans, he should not be required to admit to a crime that he did not commit.  Like in Mr. Swanigan’s case, there is enormous pressure to own up to the crime.  He even admitted to it at his 2014 parole suitability hearing and then recanted, unable to maintain that lie and take responsibility for something he has always maintained that he didn’t do.  The parole board then assailed his credibility for admitting and then recanting his participation in the crime.

san pedro parole attorney
san pedro parole attorney

Mr. Swanigan then filed a petition for writ of habeas corpus, challenging the parole board’s decision, denying him parole.  The court agreed that he should not be required to admit to a crime that he has always maintained he did not commit.  The court vacated the decision of the parole board, on the grounds that the decision violated Mr. Swanigan’s due process rights.

A qualified California post-conviction and parole attorney can help an inmate prepare for the California Board of Parole Hearings, and make sure the board properly takes into account the inmate’s progress since the commitment offense.  I host a free legal clinic on the second Saturday of every month to discuss parole and related issues with family and friends of incarcerated loved ones.  Please contact me for the current time and location of the clinic.