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Marsy’s Law Enjoined in California

On February 4, 2010, in a class-action suit brought under 42 U.S.C. § 1983 by eight plaintiffs seeking to represent a class of California state prisoners serving life sentences with possibility of parole, U.S. District Court Judge Lawrence K. Karlton issued two significant orders.
The first order granted the plaintiffs’ motion for a preliminary injunction barring enforcement of certain provisions of Proposition 9, a November 2008 ballot initiative also known as “Marsy’s Law.” [See: PLN, May 2009, p.12].

The court’s second order denied the state’s motion to dismiss the plaintiffs’ claim that Proposition 89 – a November 1988 initiative that gave the governor the power to affirm, nullify or reverse any Board of Parole Hearings decision granting or denying parole to a prisoner convicted of murder – violated the constitutional prohibition against ex post facto laws with respect to pris-oners who had committed offenses prior to the enactment of that initiative.

With respect to the Prop. 89 claim, the district court rejected the state’s argument that Johnson v. Gomez, 92 F.3d 964 (9th Cir. 1996), foreclosed the plaintiffs’ ex post facto challenge. Judge Karlton noted that Johnson was decided prior to Garner v. Jones, 529 U.S. 244, 120 S.Ct. 1362 (2000) [PLN, June 2000, p.5], in which the U.S. Supreme Court recog-nized (arguably for the first time) a distinction between facial and as-applied ex post facto challenges.

In Johnson, Judge Karlton noted, the Ninth Circuit had considered and rejected only a facial challenge to Prop. 89. In this case, by contrast, the plaintiffs presented an as-applied challenge, arguing that over the past two decades the gover-nor’s power of review had been used in a decidedly one-sided manner to reverse Board grants of parole, but never to re-verse a Board determination that a prisoner was unsuitable for parole.

With respect to the Prop. 9 claim, Judge Karlton found that in altering the deferral process when a prisoner is denied parole, Marsy’s Law effectuated more changes than the U.S. Supreme Court had considered in Garner and an earlier case, California Dept. of Corrections v. Morales, 514 U.S. 499 (1995) [PLN, July 1995, p.1], in which ex post facto challenges had been re-jected.

Where Garner and Morales had merely considered extensions of the maximum possible deferral period, Marsy’s Law not only increased the maximum period of deferral (from five to 15 years), but also increased the minimum deferral (from one to three years) and reduced, in various ways, the Board’s ability to defer parole for a period less than the maximum. Judge Karlton found the plaintiffs were likely to succeed in showing that these changes created a significant risk of uncon-stitutional increased punishment. See: Gilman v. Schwarzenegger, U.S.D.C. (E.D. Cal.), Case No. 2:05-cv-00830-LKK-GGH.

For now, the preliminary injunction applies only to the named plaintiffs in this case; however, on June 3, 2010, the Ninth Circuit affirmed the district court’s grant of class certification. See: Gilman v. Schwarzenegger, 2010 WL 2232648. The state has appealed the district court’s order granting a preliminary injunction to enjoin certain provisions of Prop 9. This case remains pending.

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Related legal cases

Gilman v. Schwarzenegger

Gilman v. Schwarzenegger