The Ninth Circuit Court of Appeals held the most recent voter approved changes to California’s parole laws do not violate the ex post facto clause.

In 1988, California voters passed proposition 89, which amended the California constitution to grant the governor the authority to affirm, modify, or reverse decisions of the board of parole hearings with respect to prisoners convicted of murder.

Another ballot initiative in 2008 did not affect proposition 89, but proposition 9 changed California statutes to again change the parole scheme. Before its passage, prisoners sentenced to life with the possibility of parole received annual parole-suitability hearings. If the board determined it was not reasonable to expect a prisoner would be granted a parole in a year, the next scheduled hearing could be set off up to five years for murders and up to two years for non-murders.

Proposition 9 allowed the board to schedule parole hearings out 15, 10, seven, five, or three years later. Prisoners could request the date to be advanced with a petition to advance (PTA) setting forth “the change in circumstances or new information that establishes a reasonable likelihood that consideration of the public safety does not require the additional period of incarceration for inmate.”

In 2008, prisoner Richard M. Gilman filed a class action for murders committed prior to November 2, 1988, alleging retroactive application of proposition 89 violated the ex post facto clause. He subsequently moved for an injunction to bar enforcement of Proposition 9 on the same grounds. That motion was granted, but the Ninth Circuit reversed in an interlocutory appeal. See: Gilman v. Schwartzenegger, 683 F.3d 1101 (9^th Cir 2011).

After a bench trial, the district court found proposition 89 was a “plain violation of the ex post facto clause.”

On appeal, the ninth circuit said Gilman needed to prove that as applied to his sentence the law created a significant risk of increasing his punishment.

After determining the controlling law, they found no evidence that the Governors were not following the law, so the district court’s finding on that point was erroneous. proposition 89, the Court found, was only a transfer of decision making power.

As to proposition 9, they said “a decrease in the frequency of parole hearings--without more--is not sufficient to prove a significant risk of lengthened incarceration.” The “task was to prove, by evidence drawn from Cal. Penal Code §3041.5 (d) (l)’s practical implementation, that the rule, as applied to him and other class members, did ‘not sufficiently reduce the risk of increased punishment for prisoners.’”

The ninth circuit found the district court over-stepped the review process by discrediting official decisions and rejected its “evidence.” In the end, the Court found the evidence did not support the relief granted. The district court’s order was reversed and remanded with instructions to enter relief for the state. The U.S. Supreme Court denied certiorari review on January 9, 2017. See: Gilman v. Brown, 814 F.3d 1007 (9th Cir. 2016), cert. denied.

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