Eastern District of California Blog

EDCA Court Finds Two California Parole Laws Unconstitutional As Violating Ex Post Facto Clause

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.

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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.

Sacramento Bee, 3/2/14.  The order in Gilman v. Brown, No. 2:05-CV-0830-LKK is available here.

Defense Will Present New Evidence To EDCA Court In Renewed Challenge To Prop 9

a lawyer for eight inmates who challenged the law said Tuesday that evidence newly obtained from the state undermines the ruling. The inmates will ask a federal judge in Sacramento on Dec. 20 to halt enforcement of the measure statewide, said Monica Knox, an assistant federal public defender.

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Prop. 9 increased the time between hearings to 15 years. It allowed the inmate to get the interval reduced to as little as three years by proving that the board was likely to grant an earlier release date.

U.S. District Judge Lawrence Karlton ruled in February that the inmates were likely to prove that the 15-year waiting period and other changes increased punishment for prisoners who committed their crimes before November 2008, violating the constitutional ban on retroactive criminal penalties. He barred enforcement of Prop. 9 against the eight inmates and was considering a statewide ban when the appeals court overruled him Monday.

In a 3-0 ruling, the Ninth U.S. Circuit Court of Appeals in San Francisco cited U.S. Supreme Court decisions allowing states to delay parole hearings unless the longer interval would lead to longer sentences.

Prop. 9 passes that test, the court said, because of a provision allowing the parole board to schedule an early hearing, in less than three years, if the inmate has new information increasing the likelihood of release.

But Knox said the court wasn't aware of new evidence from the state showing the supposed protection was largely an illusion: Of 61 requests for early hearings since Prop. 9 took effect, she said, the board granted two and rejected 59.

SFGate.com, 12/9/2010; see my 12/6/10 post.

Ninth Reverses EDCA Injunction Against Proposition 9 (Cal Victim's Bill of Rights)

In an opinion filed today in Gilman v. Schwarzenegger, No. 10-15471, the Ninth Circuit reversed Judge Karlton's grant of a preliminary injunction against the Parole Board's enforcement of Proposition 9's "amended deferral periods" concerning the availability and frequency of parole hearings.  A conservative panel of Judges Susan P. Graber, Consuelo M. Callahan, and Carlos T. Bea disagreed with the lower court that plaintiffs were likely to succeed on the merits on their claim that Proposition 9 violates the Ex Post Facto Clause of the U.S. Constitution with respect to its amended deferral periods. 

In U.S. v. Rivera-Gomez, No. 08-10480, AFD Doug Beevers won a sentencing reversal on a claim that a conviction for resisting arrest should not be counted in his client's criminal history because it was part of the conduct concerning the charged offense--not a prior conviction. 

Ninth Circuit Reverses Sac Court's Injunction Against Prop 9's Parole Revocation Procedures

In its 3/25/10 Opinion, the Ninth Circuit yesterday reversed Judge Karlton's order, which enjoined California Proposition 9's parole revocation procedures because of a conflict with a permanent injunction agreed to by California in resolving a class action lawsuit.  The Appellate Court remanded to Judge Karlton to make further findings.  Judge Noonan filed a partial dissent to the majority opinion by Judges Michael Hawkins and Milan Smith.

Another Small Victory In Litigation Against Proposition 9

The Attorney General's Office recently agreed, Download Rutherford 09.03.27 Stipulation re Prop 9, to settle an aspect of litigation over implementation of Proposition 9, which among other things lengthened the periods under which state prisoners could return to the Parole Board for new hearings after their parole had been denied.  If I read this stipulation correctly, The Parole Board will now agree to hearings for prisoners who should have had their hearings before Prop 9's implementation date, December 15, 2008, but didn't get them, without having to wait for the extended periods set forth in Prop 9 for their hearings. I've been informed that this stipulation is now in effect.