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California: Ninth Circuit Reverses Finding that Props 9 and 89 are Unconstitutional

In February 2014, following a bench trial, U.S. District Court Judge Lawrence K. Karlton found that two California laws created as a result of state ballot initiatives “retrospectively increased punishments, in violation of the ex post facto clause of the U.S. Constitution.” Proposition 9 mandated longer intervals between parole hearings, while Proposition 89 allowed the governor to review and reverse paroles granted by the Board of Parole Hearings in cases involving prisoners convicted of murder.

Judge Karlton’s ruling was lauded by prisoners’ rights advocates, who noted the ballot initiatives had resulted in prisoners serving longer sentences and frequent reversals of parole decisions. At the time state voters approved Prop 89 around 28 years ago, it must have seemed like a good idea to give California governors the power to review and reverse decisions to parole convicted murderers.

Between 1991 and 2011, statistical data indicated that governors overturned approximately 70% of parole board decisions to release prisoners serving time for murder, effectively preventing the board from properly fulfilling its duties.

Prop 9, the Victims’ Bill of Rights Act of 2008, also known as Marsy’s Law, mandated longer periods between parole hearings, contrary to the procedures in effect when the prisoners were initially convicted.

Most California newspaper editorial boards, such as that of the Sacramento Bee, had opposed Prop 9 for many of the same reasons cited by Judge Karlton, stating that it constituted “a wrong that tipped the scales of justice too far.” Other observers noted the two ballot initiatives together had contributed to the serious overcrowding problem in California’s penal system by continuing to incarcerate prisoners who otherwise would have been released on parole.

Karlton issued his ruling in the case of Gilman v. Brown, a lawsuit certified as a class-action on behalf of all California state prisoners sentenced to life with the possibility of parole, provided that the crime happened prior to the passage of Prop 9. A separate class consisted of prisoners serving life with the possibility of parole for offenses committed before the passage of Prop 89 on November 8, 1988.

Proposition 9 prevented the parole board from setting parole hearings every year, extending the deferral period to a minimum of three years – though prisoners could file a petition to advance (PTA) their next hearing. The law also reversed the old standard for granting parole after a minimum term had been served, requiring prisoners to continue serving their sentences unless the parole board, by “clear and convincing evidence,” determined they qualified for parole.

Judge Karlton held that Prop 9 “creat[ed] a significant risk” that prisoners would serve longer sentences, echoing his 2010 preliminary injunction enjoining enforcement of that law – an injunction later dissolved by the Ninth Circuit Court of Appeals. See: Gilman v. Schwarzenegger, 638 F.3d 1101 (9th Cir. 2011) [PLN, Aug. 2011, p.18; July 2010, p.42]. While the appellate court reasoned that a parole hearing could be held when a prisoner showed “a reasonable likelihood” of release suitability, Judge Karlton found that Prop 9 may render the parole process “meaningless or illusory.”

Karlton was equally critical of Prop 89, stating “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 concerns about decisions that deny parole.” See: Gilman v. Brown, 110 F.Supp.3d 989 (E.D. Cal. 2014).

The Ninth Circuit reversed on February 22, 2016. The Court of Appeals wrote that it had “already addressed the constitutionality of Proposition 89 as applied to prisoners who were convicted of crimes committed before November 2, 1988. In Johnson v. Gomez, 92 F.3d 964, 965 (9th Cir. 1996), California state prisoner Robert Johnson was convicted of first-degree murder.... After California voters passed Proposition 89, the Board found Johnson eligible for parole. Under Proposition 89, Johnson was not eligible for release until the 30-day period for gubernatorial review had passed. The Governor exercised his authority under Proposition 89 and reversed the grant of parole. Johnson sought state habeas and his petition was denied. Johnson then filed a federal habeas petition, which the district court denied. We affirmed.

“Although we acknowledged that ‘the purpose and effect of the law here is to lengthen prison terms by making it more difficult for convicted murderers with indeterminate sentences to be released on parole,’ we held that this did not violate the Ex Post Facto Clause. We ruled that ‘[t]he law ... simply removes final parole decisionmaking authority from the [Board] and places it in the hands of the governor,’ who ‘must use the same criteria’ as the Board. We also noted that Johnson had not shown that he would have received parole under the old system and, therefore, Proposition 89 presented only a speculative risk of unconstitutionally lengthening his period of incarceration.”

The appellate court held that Johnson controlled, and the district court had erred in finding that Proposition 89, “in actual practice, is not [a] ‘neutral’ transfer of final decision-making authority” from the Board of Parole Hearings to the governor.

With respect to Proposition 9, the Ninth Circuit wrote that “proving a significant risk of prolonged incarceration in parole cases requires exacting evidence.” Although the district court had found that Prop 9 likely reduced the frequency of parole hearings, “a decrease in the frequency of parole hearings – without more – is not sufficient to prove a significant risk of lengthened incarceration.”

The Court of Appeals also addressed the PTA process, concluding that “The district court committed legal error by basing its findings principally on speculation and inference, rather than concrete evidence demonstrating that the PTA process failed to afford relief from the classwide risk of lengthened incarceration posed by Proposition 9. It erred by substituting its own judgment for the Board’s regarding which PTAs ought to be granted. And the district court’s findings of ‘structural problems’ in the PTA process lack sufficient support in the record. The remaining findings, viewed under the correct legal standard, are insufficient to support a conclusion that, on this record, an as-applied Ex Post Facto Clause violation has occurred.”

Accordingly, Judge Karlton’s order holding Propositions 89 and 9 unconstitutional was reversed and the case remanded for entry of judgment in favor of the state defendants. See: Gilman v. Brown, 814 F.3d 1007 (9th Cir. 2016).

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Related legal cases

Gilman v. Brown,

Gilman v. Brown

Gilman v. Schwarzenegger

Johnson v. Gomez,