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Ninth Circuit Reverses Grant of Injunctive Relief in Ex Post Facto Challenge to Marsy’s Law

by Mike Brodheim

The Ninth Circuit Court of Appeals has held that a district court abused its discretion in granting preliminary injunctive relief to a group of California life-term prisoners who challenged, on Ex Post Facto grounds, a 2008 voter-approved initiative (Prop 9) which drastically reduced the availability and frequency of future parole hearings following a denial of parole.

Prop 9, known as the Victims’ Bill of Rights of 2008, or Marsy’s Law, resulted in four changes to the parole process: 1) it increased the maximum deferral period from 5 years to 15 years; 2) it increased the minimum deferral period from 1 year to 3 years; 3) it changed the default deferral period from 1 year to 15 years; and 4) it increased the burden required to impose a deferral period other than the default period, while also effectively shifting that burden from the state to the prisoner. [See: PLN, May 2009, p.12; July 2010, p.42].

In the two years preceding implementation of Marsy’s Law, more than two-thirds of prisoners who were denied parole received deferrals of one or two years. Now, no prisoner can receive a deferral of less than three years, and the parole board no longer has any discretion to set a shorter deferral period even if it believes a prisoner will be suitable for parole in less time. More ominously, the board must set the deferral period at 15 years unless it finds, by clear and convincing evidence, that the prisoner will be suitable for parole in ten years or less.

The Ninth Circuit acknowledged that the changes resulting from Marsy’s Law were extensive and, moreover, “appear to” create a risk sufficient to justify invoking the protections of the Ex Post Facto Clause. The appellate court noted, however, that the statute-based availability of “advance” parole hearings (based on a change in circumstances or new information) militated against a risk of prolonged incarceration that might result from the reduction in frequency of future parole hearings. Further, the Court of Appeals rejected as unsupported by facts in the record the prisoners’ contention that the reduction of risk deriving from such advance hearings was purely illusory. See: Gilman v. Schwarzenegger, 638 F.3d 1101 (9th Cir. 2011) (amended ruling).

Following remand to the district court, the prisoners renewed their Ex Post Facto challenge, this time buttressing their contentions with statistical evidence not previously available to them. The district court held an evidentiary hearing on April 6, 2011; post-hearing briefs were filed in July 2011, and a ruling is pending. See: Gilman v. Schwarzenegger, U.S.D.C. (E.D. Cal.), Case No. 2:05-cv-00830-LKK-GGH.

Additional source: Marin Independent Journal

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Gilman v. Schwarzenegger

Gilman v. Schwarzenegger