Two state laws ruled unconstitutional

dwalsh@sacbee.comMarch 1, 2014 

A federal court judge has found two California laws that resulted from ballot initiatives – including the so-called “Victims’ Bill of Rights” – to be unconstitutional.

The ruling by U.S. District Judge Lawrence K. Karlton of Sacramento said the state’s implementation of the laws improperly changed the punishment for crimes committed before the laws were enacted.

Proposition 9, a ballot initiative passed by the voters in 2008, and Proposition 89, passed by the voters in 1988, “retrospectively increased punishments, in violation of the Ex Post Facto Clause of the U.S. Constitution,” Karlton declared Friday in a 58-page order.

Karlton said that, for purposes of the case before him, “an ‘ex post facto’ law is one ‘that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime when committed.’ 

Proposition 9, the so-called “Victims’ Bill of Rights” or “Marsy’s Law,” mandated longer periods of time between parole hearings, which Karlton said results in a risk of longer sentences for prisoners than they faced when their crimes were committed.

Proposition 89 granted the governor the right to review and reverse paroles already approved by the Board of Parole Hearings in murder cases. Karlton said every governor since passage of the measure has abused that power by blocking a large majority of the paroles they reviewed.

The judge issued an injunction blocking state enforcement of the two laws.

He ordered the board to revert to the law governing spacing of parole hearings prior to Proposition 9, which guaranteed thousands of prisoners an annual suitability hearing after a minimum term prescribed by law.

The judge ordered the governor to quit reversing already-approved paroles while applying the same factors the board considered.

The lawsuit before Karlton, Gilman v. Brown, is certified as a class action on behalf of all California state prisoners who have been sentenced to a life term, but with the possibility of parole, for an offense that occurred before passage of Proposition 9 on Nov. 4, 2008. The separate class challenging Proposition 89 consists of all prisoners doing life with the possibility of parole for an offense predating Nov. 8, 1988.

Proposition 9 eliminated the board’s discretion to set hearings a year apart, even when the board has made a finding of strong evidence a prisoner will be ready for parole in a year.

The initiative imposes a mandatory three years before the first parole hearing. Additionally, under the old law, the sentences of a significant number of prisoners were to continue beyond a minimum term only as long as the board found them unsuitable for parole. Under Proposition 9, those same sentences continue indefinitely unless the board finds “clear and convincing evidence” that the prisoner is suitable for parole in five, seven, or 10 years.

Karlton thus decided the 2008 law “creates a significant risk” of longer incarceration than was the case when the crimes were committed. He said he based the conclusion on evidence presented at a non-jury trial before him last summer and accounts of terms actually lengthened by the law that were submitted by prisoners’ attorneys.

This is the second time within the context of the same lawsuit that Karlton has expressed his dim view of Proposition 9.

In February 2010 the judge barred enforcement of parts of the measure, ruling that the Ex Post Facto Clause would likely allow life-term prisoners to prevail on the merits of their attack on reduced availability and frequency of parole hearings.

But, 10 months later, the 9th U.S. Circuit Court of Appeals struck down the injunction, ruling that the proposition “does not create a significant risk of prolonging … incarceration.” The opinion rests on the part of the initiative enabling the board to advance a hearing to an earlier date when a prisoner can show “a reasonable likelihood” that they are suitable for release.

However, several examples of prisoner petitions for an advanced hearing show that the process “can be rendered meaningless or illusory,” Karlton said in Friday’s order. First, he said, the board has erected a hurdle regarding “change in circumstances or new information,” that a prisoner must clear before the board will even take an earlier look at the question of suitability. Second, the judge said, “when this requirement is spun off from the suitability requirement, it imposes an additional, substantive burden …”

As to Proposition 89, Karlton stated it is clearly not a “ ‘neutral’ transfer of final decision-making authority” from the board to the governor. “In practice,” he said, “the governors have used it to tip the scales against parole. Thus, while the governors could use the law to review parole decisions to ensure that they are accurate and fair, they appear to have no such concern about decisions that deny parole.”

The voters wanted to correct their perceived “weakness” in the existing law, “namely too many murderers being paroled too soon,” Karlton observed. “The governors have carried out the people’s will by putting their fingers on the scale and reversing 70 percent of parole grants for these class members.”

Call The Bee’s Denny Walsh, (916) 321-1189.

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