Prison Law Blog

Sara Mayeux

Posts Tagged ‘ex post facto clause

Ninth Circuit to Rule on California’s Prop 9 (That’s Not a Typo)

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With all the press that California’s Prop 8 has been getting as it journeys through the federal courts, I’ve been remiss in failing to note on this blog that Prop 9 is also being challenged. Passed in 2008 (in the same election as Prop 8), Prop 9 or Marsy’s Law was marketed as the “Victims’ Rights and Protection Act,” and made a number of changes to parole hearing procedures in California. Among its major effects was to lengthen the time before indeterminately sentenced offenders are eligible for a parole eligibility hearing.* Opponents of Prop 9 noted that California already grants parole in an exceedingly low number of murder/manslaughter cases (<1%), and that many of the rights purportedly granted to victims by Prop 9, such as expanded rights to be heard at parole eligibility hearings, already existed either at the county level or pursuant to the Victims’ Bill of Rights of 1982 (otherwise known as the first Prop 8).

Nevertheless, the proposition passed with about 54% of voters in favor, and is now being challenged in the federal courts under the Ex Post Facto Clause. The Prison Law Office has summarized the law’s implications and possible objections to the law in a handy memo (PDF link). Although I have not had time to digest all the information about this case myself, I can confidently direct readers who want to know more over to California Corrections Crisis which has been following the case and summarized last week’s oral arguments at the Ninth Circuit. Stay tuned and I’ll be sure to keep you posted when the Ninth Circuit panel issues its ruling. The docket info is Gilman v. Schwarzenegger, No. 10-15471.

* Prop 9 also includes provisions that would curtail due process to parolees already out (who, given California sentencing law and policy, are usually determinately sentenced offenders), including imposing new limits on the right to appointed counsel at parole revocation hearings. However, California was quickly stayed from implementing these provisions because they appear to violate a previous injunction issued in an earlier lawsuit, Valdivia v. Davis. CDCR appealed the stay and I believe the most recent activity was the Ninth Circuit’s March 2010 ruling remanding the litigation back to the district court “to reconcile the Injunction and Proposition 9” (opinion PDF), but perhaps readers are aware of more recent developments.

Written by sara

August 17, 2010 at 11:57 am

When Parole Boards Get Tougher, Does It Violate the Ex Post Facto Clause? Sixth Circuit Says No

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Here’s a hypothetical: You’re convicted of some offense — say, manslaughter — and sentenced to life with the possibility of parole. At the time you’re convicted, the state has one set of procedures in place for determining whether to grant parole. Under that system, 5-15% of parole-eligible lifers are paroled each year, yielding an average time served of 15-18 years. So, when you’re convicted, you and everyone else involved in your conviction (the prosecutor, the sentencing judge, etc.) all think that you’ve got some chance of getting out, ten, 15, or 20 years from now.

As it turns out, in the intervening years the state passes several laws that alter its parole procedures and the composition of its parole board. Together, these changes have the effect of making it harder to get parole. By the time you’re eligible to appear before the parole board, it’s granting parole in only 0.15% of cases, and the average time served has creeped up to over 23 years.

This complicated scenario is more or less the fact pattern that the Sixth Circuit considered last week in Foster v. Booker, a class action lawsuit brought by Michigan lifers to challenge that state’s increasingly stringent parole procedures as a violation of the ex post facto clause of the Constitution. Relying largely on the statistical findings above (see PDF p. 9), the district court had granted summary judgment for the plaintiffs, agreeing that they face an unconstitutional risk of increased punishment greater than what was expected when they were initially sentenced.

As explained further below the jump, the Sixth Circuit panel reversed the district court and instead granted summary judgment for the defendant Michigan officials — holding that Michigan’s reduced parole rates do not violate the ex post facto clause, but rather, may be a legitimate exercise of the Parole Board’s discretion. (The Sixth Circuit also upheld the district court’s dismissal of a challenge under the due process clause, because courts have held that prisoners do not have a constitutionally protected liberty interest in parole.) Although the legal issues are a bit different, a pending lawsuit in Virginia, which I blogged about here, raises similar concerns about whether it’s become too difficult for supposedly parole-eligible inmates to win release.

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Written by sara

February 23, 2010 at 7:01 am

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