UPDATE: Gilman vs Brown (2/22/16) (2016 U.S. App Lexis 3035)
SUMMARY: Changes to California's parole system through Prop 89 and Prop 9 did not
result in ex post facto violations.Thus, Marsy's Law (aka Prop 9) is still valid law
as is P89, which is the 1988 Governor's veto power to reverse the Board of Parole Hearings' decision.
Gilman vs Brown (2/28/14)
CIV. S-05-830 LKK/CKD
SUMMARY: Plaintiffs assert that Propositions 9 and 89 have retrospectively increased their punishments, in violation of the Ex Post Facto Clause of the U.S.
REMEDY from the Court:
Plaintiffs’ surviving requests are for (a) a declaration that defendants have denied plaintiffs’ rights under the Ex Post
Facto Clause of the U.S. Constitution, and (b) injunctive relief.
The court accordingly DECLARES that Proposition 9, (aka Marsy's Law) as
implemented by the Board,
violates the ex post facto rights of the class members.
The court further DECLARES that Proposition 89, as implemented by the governors of California, violates the ex post
facto rights of the class members.(i.e. Lifer inmates)
This civil case in the Federal Court is on HOLD until the appeal process is completed. This could take a year, but let's keep our fingers cross for a faster resolution from the Courts so that attorneys can start citing this case and the Board will "step inline" and follow the law. If Marsy's Law (Prop 9) is stricken down as unconstitutional then the DENIAL periods should roll back to the 1, 2, 3, 4 , 5 vs. the current 15, 10 , 7, 5, 3 year denials at Parole Suitability Hearings. Furthermore, if Prop 89 (veto power of the governor to reverse Grants) are stricken done then maybe the Commisisoners will be left to do their JOBS without the threat from the Governor and it will hopefully eliminate "some" the Conflcits of Interest
with the Governor's Office.
In re ROY BUTLER (12/16/13)
-- Case Nos. A139411 & A137273
Alameda County Case No. 91694B (Mandated Base Term Calculation)
In summary, the BUTLER Court forces the Parole Board to calculate the base term of life prisoners at their Initial Hearings. Thus, the BUTLER case section that will apply to all LIFERs is the Base Term Calculation as ORDERed by the Court. Regardless of whether the LIFER will be found suitable or not, once the LIFER walks out of the Parole Hearing Board room, he will have a Base Term calculation for his specific crime under his specific circumstance, as defined below. If this is a subsequent Parole hearing, s/he will also be provided their Base Term, at that hearing.
According to BPH Executive Director Jennifer Shaffer and Chief Legal Counsel Howard Moseley ------ NO CHANGES will occur for the length of time incarcerated.
On the other hand, Attorney Diane Letarte
would argue that once the Calculation is done at the Hearing (on the record for possible Appeals) and
the BASE TERM has been exceeded, the Panel (2-3 Commissioners at the Hearing) must articulate the reason for a denial beyond the Base Term in a non-arbitrary fashion. The Panel should be held to the Arbitrary-and-Capricious standard
. Any action less than this standard
would violate the Due Process of the Law and fail to provide a reasoned explanation for the denial.
UPDATE: 2/5/2016: Mr. Vicks hired Attorney Letarte for his 2015 Parole Hearing where he was found suitable. Grant was subsequently reversed by Gov. to a 2/5/2016 Rescission Hearing and again Attorney Letarte won his Hearing.
3/4/2013: In re VICKS: Reversed by the CA Supreme Court. In Summary, Marsy's Law will stay the Law for now. See Attorney Diane Letarte's BLOG
In re Lawrence (2008) 44 Cal. 4th 1181:
Inmates have a protected liberty interest in parole. Due process guarantees a meaningful judicial review and that the judicial standard of review for a BPH denial of parole and/or the Governor’s reversal of Parole Grant remains the “some evidence” standard of review.
Some clarification received by this case is that a denial (or reversal by the Governor) of a parole grant must be based on “an assessment of an inmate’s current dangerousness. The commitment offense ALONE can not be used to deny parole UNLESS, there is a nexus between the immutable factors and the inmate’s current dangerousness. The unsuitability factors used at a Lifer parole hearing can be reviewed under 15 CCR §2402.
From a practical point, the attorney representing the inmates at their lifer parole hearing must make sure that they properly present all the positive (suitability) factors.
The California Supreme Court approved the decision of the U.S. 9th Circuit Court of Appeals in Biggs v. Terhune (2003) 336 F.3d 910. This is a federal landmark case in the Parole process.
Valdivia v. Davis (2002) * 206 F.Supp.2d 1068
This one is an older federal case where the court found that that delays in the parole revocation process violated due process protections. (Valdivia v. Davis (E.D. 2002).) As a result, the California Department of Corrections and Rehabilitation (aka CDCR) and Board of Parole Hearings (aka BPH, old name BPT) agreed to a (2007) stipulated permanent injunction to improve the timeliness of parole revocation proceedings.
The Remedial Plan adopted under the injunction includes provisions for using alternative sanctions for minor parole violations, a probable cause hearing no more than 10 business days after a parolee is notified of charges, a revocation hearing no later than 35 days after a parole hold is placed, and appointment of attorneys to represent all parolees facing revocation proceedings.
Armstrong v. Davis (2001)* 275 F.3d 849
A federal District Court judge issued an injunction, ordering the Board of Parole Hearings (BPH) to remedy its shocking and appalling failure to comply with the Americans with Disabilities Act (ADA) during parole hearings.
The order came after a trial during which one prisoner told of having to leave his wheelchair behind to crawl upstairs to a hearing, a deaf prisoner told the judge he was shackled during his hearing and could not communicate with the sign language interpreter, and a blind inmate said he was offered no help with complicated written materials. The injunction was upheld by the Ninth Circuit Court of Appeals.
*(some contribution from www.prisonlaw.com)