MARSEY’S LAW RULED (IN PART) UNCONSTITUTIONAL


Via TiPS -Taxpayers for Improving Public Safety

Attorney Steve M. Defilippis really kicked butt!

The California Court of Appeals just ruled that the application of Marsey’s Law to pre-2008 offenses violates the ex post facto protections.  That means the BPH needs to reset a whole bunch of hearings!

While it does not change any unsuitability findings by the Board, it does change the time until the next hearing.  Here is the pertinent parts of In re Vicks (2011) , Cal.App.4th

Marsy’s Law

The decisions in Garner and Morales, as well as the application of those cases in other courts, turned on the particular features of the laws under consideration. (See, e.g., Morales, supra, 514 U.S. at p. 509, fn. 5 [expressly declining to consider whether alternative enactments changing the timing of parole hearings could be unconstitutional].) Here, Vicks asserts the changes effectuated by Marsy’s Law present a distinct set of changes outside the boundaries of the changes that Garner and Morales found not to violate ex post facto principles.

Unlike Garner and Morales, which considered permissive extensions of the maximum possible parole hearing date, Marsy’s Law effectuates numerous significant changes: (1) it mandates increases in the minimum deferral date and appears to constrain the ability of the BPH to consider and act on new information or changed circumstances, (2) it reduces the BPH’s discretion to order a deferral for less than the maximum possible term and entirely eliminates the BPH’s discretion to order a deferral for less than the minimum term, and (3) it increases the maximum deferral date. Because Garner’s ex post facto analysis carefully examined each category of change (Garner, supra, 529 U.S. at pp. 251-252; see also Morales, supra, 514 U.S. at p. 513), we examine each alteration enacted by Marsy’s Law. {Slip Opn. Page 31}

Increased Minimum Deferral Periods

Garner and Morales both emphasized that, under the new laws they considered, a longer deferral would be imposed only when the parole board found it unreasonable to expect parole would be granted in the interim. (Garner, supra, 529 U.S. at p. 254; see also Morales, supra, 514 U.S. at pp. 511-512.) In contrast, Marsy’s Law increases the minimum deferral period for all inmates (from one to three years) regardless of the BPH’s expectation about whether the inmate may become eligible for parole at an earlier date. (§ 3041.5, subd. (b)(3)(C).) Thus, unlike the laws reviewed by Garner and Morales (which provided the relevant parole boards with discretion to impose the pre-amendment deferral period), there appears to be no discretion under Marcy’s Law to tailor the deferral to either a one- or two-year deferral even where the BPH believes an individual inmate will likely achieve sufficient progress in his or her rehabilitation to warrant parole in one or two more years.

The People appear to argue the risk of an increased period of incarceration created by lengthier mandatory deferrals between suitability hearings is ameliorated by the inmate’s ability to request (and the BPH’s ability to order) that a deferred hearing date be advanced on a showing of changed circumstances or new information. Although the People’s argument is somewhat murky, the unstated predicates to the argument appear to be (1) any deferral occurs only when the BPH concludes the inmate is not presently suitable for parole, (2) a subsequent hearing will not result in the inmate’s release unless some fact changes to render him or her suitable, and (3) under the former system the BPH would schedule the next hearing in one year if it thought the requisite change would {Slip Opn. Page 32} possibly occur in that time, or two years if the BPH thought it was not reasonable to expect this possibility would come to fruition. The People appear to argue that, although the three-year minimum prevents the BPH from presently scheduling an earlier hearing based on this possibility, if the requisite change actually occurs then the occurrence will entitle the inmate to an advanced hearing. Thus, as best we can discern, the People argue that in all the circumstances in which an inmate would have actually been released under the former system, the inmate will also be released under the new system, albeit pursuant to a different procedure, and therefore there is no substantial risk of increased incarceration by applying Marsy’s Law to all inmates.

Although the People correctly note that the possibility of advanced hearings serving as a safety valve was one of the several factors considered in Garner and Morales, neither case suggested that the ability to advance a hearing was itself sufficient to ameliorate ex post facto concerns. (Garner, supra, 529 U.S. at p. 251 [looking at totality of the factors]; Morales, supra, 514 U.S. at p. 509 [same].) More importantly, neither Garner nor Morales evaluated a system like the statutory regime presented by Marsy’s Law, in which an inmate is expressly barred from first seeking to trigger the safety valve for a minimum of three years (and is also expressly barred from thereafter seeking to trigger the safety valve for another minimum of three years) even if there are changed circumstances or new information that would have resulted in a favorable suitability determination at a regularly scheduled one- or two-year deferred hearing in {Slip Opn. Page 33} which the new information or changed circumstances would be considered. fn. 19 (§ 3041.5, subd. (d)(1).) Although the former statutory scheme would permit annual (or biennial) examinations of changed circumstances or new facts supporting a release on parole, inmates must now wait at least an additional year (or two years) before changed circumstances or new facts supporting a release on parole will be considered, resulting in a significant risk that an inmate will spend a longer period of incarceration under Marsy’s Law than under the former system. fn. 20 {Slip Opn. Page 34}

In summary, Marsy’s Law, unlike the changes considered in Morales and Garner, increases the minimum deferral period and removes the ability of the BPH to select among a graduated series of deferrals of less than three years. (Himes v. Thompson, supra, 336 F.3d at p. 864 [the switch “from a flexible continuum to a compelled determination that the inmate be returned for his entire remaining sentence . . . increased the ‘mandatory minimum‘ punishment for a particular category of inmates, [citation] creating a ‘sufficient risk’ of increasing the measure of punishment” under Morales].) The changes will necessarily increase the period of incarceration for those inmates currently found unsuitable for parole but who have a significant chance of becoming suitable in less than two years and, having served their base terms, would be granted immediate release if found suitable. (Cf. Morales, supra, 514 U.S. at p. 513.) Finally, the possibility of an advanced hearing is an inadequate substitute for a scheduled hearing when the BPH reasonably expects that an inmate will become suitable for parole in less than two years, or when circumstances unexpectedly change or new facts unexpectedly develop during the additional two-year period that would demonstrate suitability. Accordingly, the change in the minimum deferral period itself creates a significant risk of {Slip Opn. Page 35} prolonged incarceration for inmates who would have received shorter deferral periods under the former statute.

Limits on BPH’s Discretion and Increase In Default Maximum Deferral

A second aspect of Marsy’s Law that incrementally adds to the risk of a longer period of incarceration is the added constraint placed on the BPH’s discretion. First, as discussed above, there appears to be no discretion under Marcy’s Law (unlike the laws considered in Garner and Morales) to tailor the deferral to either a one- or two-year deferral even if the BPH believes an individual inmate will likely achieve sufficient progress in his or her rehabilitation to warrant parole in one or two more years.

Second, in addition to raising the minimum deferral period, Marcy’s Law also increases the default deferral period to 15 years while simultaneously limiting the BPH’s ability to reduce the maximum deferral period. Under the scheme applicable in 1983, the default was the minimum one-year period and the Board had discretion to impose a longer deferral only when it was “not reasonable to expect that parole would be granted at a hearing during the following year[s].” (See Stats. 1982, ch. 1435, § 1, p. 5474.) Moreover, because this longer deferral was permissive only, the BPH had discretion to impose less than the maximum even when it was not reasonable to expect parole would be granted sooner.

Under Marsy’s Law, however, the default deferral is now the maximum 15-year deferral (§ 3041.5, subd. (b)(3)(A)), and the BPH’s discretion to depart from that maximum period is constrained: it may depart from that default and set a lesser deferral {Slip Opn. Page 36} only where it finds, by “clear and convincing evidence,” fn. 21 that “consideration of the public and victim’s safety does not require a more lengthy period of incarceration.” (§ 3041.5, subd. (b)(3)(A).) Because this aspect of Marsy’s Law imports (into the departure from the default 15-year deferral) “consideration of the public safety,” which is also the determinant of parole suitability, Marsy’s Law appears to allow a deferral for less than the maximum only when clear and convincing evidence indicates parole will actually be granted at the next hearing. Thus, the BPH no longer has the discretion (which it apparently had under the former scheme) to depart from the maximum deferral periods and schedule an earlier hearing when it does not expect parole to be granted at an earlier hearing.

Because Marsy’s Law constrains the discretion to set earlier hearings (and entirely eliminates the discretion to set hearings earlier than three years), rather than expands the discretion to set deferred hearings, it bears scant resemblance to the schemes considered by Garner or Morales. fn. 22 Those cases examined changes that, like California’s prior {Slip Opn. Page 37} system, granted the BPH discretion to postpone subsequent parole hearings when the BPH made specific findings that an earlier release was unlikely, which convinced those courts that application of the new rules did not create a sufficiently significant increase in the possibility of serving a more lengthy period of incarceration to offend ex post facto protections. (Garner, supra, 529 U.S. at p. 254 [longer deferral permitted where ” ‘it is not reasonable to expect that parole would be granted during the intervening years’ ”]; Morales, supra, 514 U.S. at p. 507 [longer deferral only where no reasonable probability to expect that parole would be granted at a hearing during the following year].) {Slip Opn. Page 38}

We must assess whether this second set of changes–imposing a longer default maximum deferral period while simultaneously limiting the BPH’s discretion to depart from that maximum by requiring (as a condition to departing from the maximum) that there be clear and convincing evidence supporting a prediction that the inmate will achieve rehabilitation before that maximum deferral period term would expire–increases the probability that application of the new rules will cause inmates to serve more lengthy periods of incarceration than they would have served under the old rules. Because ex post facto principles may preclude application of new rules even when an inmate ” ‘cannot show definitively that he would have gotten a lesser sentence’ ” (Miller v. Florida (1987) 482 U.S. 423, 432), and instead “[t]he controlling inquiry . . . [is] whether retroactive application of the change . . . created ‘a sufficient risk of increasing the measure of punishment attached to the covered crimes’ ” (Garner, supra, 529 U.S. at p. 250), we must assess whether these changes do create such a risk.

We appreciate that it is hard to predict when many inmates will become suitable for parole and, in a significant number of cases, the evidence will not support a prediction (one way or the other) regarding future suitability for parole. Under the former rules, yearly (or bi-yearly) hearings were held to reevaluate suitability and afforded the BPH the ability to respond flexibly to unforeseeable progress at these periodic hearings; the former rules also provided the BPH with discretion to schedule a one-year hearing even if it believed it was unlikely sufficient progress would be achieved but the BPH nevertheless wished to preserve its ability to respond to unexpected progress. Marsy’s Law, however, eliminates this discretion and appears to place on the inmate the burden of {Slip Opn. Page 39} proving, clearly and convincingly, that future suitability will be attained earlier than 15 years. If it is frequently impossible to make any confident prediction as to whether an inmate will (or will not) achieve the requisite progress, reallocating the burden of proof and simultaneously imposing a 15-year default deferral if that burden is not met effectively removes the prior presumption of periodic scheduled hearings and restricts the BPH’s ability to respond timely to change.

In Miller v. Florida, supra, 482 U.S. 423, the court concluded application of a new set of rules could be barred by ex post facto principles even if the change did not automatically lead to a more onerous period of incarceration than under the prior rules. In Miller, the court considered a challenge to application of Florida’s new sentencing guidelines. (Id. at p. 425.) The former guidelines provided a presumptive range of three and one-half to four and one-half years for the crime; a sentence within the presumptive range could be imposed with no statement of reasons and, although a judge could depart from the range to impose a higher or lower term, he or she could only do so by providing clear and convincing written reasons for the departure. The new guidelines imposed a higher presumptive range of five and one-half to seven years for the crime, but were otherwise similar to the prior system. (Id. at pp. 424, 426-427.) The petitioner was sentenced to seven years under the new presumptive range, and the court found application of the new guidelines would violate the ex post facto clause–despite the fact the petitioner could have received the same sentence under the former law–because the changes imposed a higher presumptive minimum while constraining the judge’s discretion to impose the lower sentence to cases in which clear and convincing reasons {Slip Opn. Page 40} could be articulated for imposing a lower sentence. (Id. at pp. 428, 435.) Marsy’s Law similarly lengthens the presumptive period of incarceration, and limits the BPH’s discretion to depart from that presumptive period to cases in which clear and convincing evidence supports a departure from the lengthened presumptive period. These interrelated aspects of Marsy’s Law further contribute to the risk of prolonged incarceration.

E. Conclusion

Increasing the minimum deferral date and constraining the ability of the BPH to consider and act upon new information or changed circumstances will adversely impact those inmates whose rehabilitative progress during the two years after an unsuccessful parole hearing may have otherwise warranted parole but must now wait until the three-year blackout period imposed under Marsy’s Law has lapsed. Additionally, lengthening the presumptive period of incarceration and limiting the BPH’s discretion to depart from that presumptive period to cases in which clear and convincing evidence supports a departure incrementally increases the risk of a more lengthy incarceration for those inmates who, although not ready for parole before the end of the two-year hiatus under the former rules, have been sufficiently rehabilitated during the ensuing years but were unable to provide clear and convincing evidence to have obtained a parole hearing earlier than the presumptive 15- or 10-year deferrals. Garner teaches that changes must be reviewed “within the whole context of [the state’s] parole system” (Garner, supra, 529 U.S. at p. 252), and that ex post facto principles bar application of new rules when they create a significant (rather than a speculative and attenuated) risk of increasing the {Slip Opn. Page 41} measure of punishment attached to the covered crimes. (Garner, at pp. 250-251.) We conclude the risk of increased incarceration is real and significant, rather than speculative or attenuated, and therefore the changes to section 3041.5 enacted pursuant to Marsy’s Law may not be applied to inmates whose crimes predated the effective date of Marsy’s Law.

DISPOSITION

The relief requested in the petition for writ of habeas corpus is granted in part. The 2009 order is vacated to the extent it defers Vicks’s subsequent parole suitability hearing for five years under section 3041.5 as amended pursuant to Marsy’s Law, and the BPH is directed to issue a new order rescheduling the hearing under section 3041.5 in effect in 1983. In all other respects, relief is denied.

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3 thoughts on “MARSEY’S LAW RULED (IN PART) UNCONSTITUTIONAL

  1. Let the time fit the crime….over sentencing is rampant due in large part to society’s need/want for punishment & retribution. Extremely long prison sentences benefit exactly who? Not the victims and not society… the only benefit is to the prison industrial complex who makes $$$$ off keeping the facilities FULL. Restorative justice, rehabilitation and healing is the way to go!

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  2. Praise God, may those who deserve to get out be freed. May those family and friends whose wounds run deep as a result of loss, be healed deeply by Gods depth in Jesus name.

    Like

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