The Impact of Proposition 9 (a.k.a. Marsy’s Law)
on Lifer Parole Suitability Hearings
Written by : Diane T. Letarte, MBA, LLM
WHAT IS Prop-9?:
On November 4, 2008, California voters were apparently swayed by emotion into passing Proposition 9, the Victims’ Bill of Rights Act (“Act”). While the proposition’s title is admittedly appealing and evokes understandable sympathy for the silent and defenseless, the Act’s actual language raises serious constitutional questions. California Penal Code 3041.5 , The Act simplistically treats ALL lifers equally, regardless of the individual facts or any extenuating circumstances. Additionally, the focus on Life Parole Hearings belies available research and leaves the misimpression as to the proportion and danger of the “Lifers” as parolees. Nevertheless, despite grave concerns, effective November 5, 2008, California Penal Code section 3041.5 is amended, increasing the parole-denial periods to which life prisoners could be subjected
The Act is comprised of five separate parts, apparently each section written in a manner intended to evoke an emotional response to gain support:
The first main part “preyed heavily n emotions, The strong undercurrent running through this section decries California’s criminal justice system because (1) it treats victims very poorly, (2) all past reform efforts failed to improve victims’ treatment; and (3) the parole system is too easy on criminals.
The second main part, Sections 4 and 4.1.,
purports to considerably expand victim’s rights, making them enforceable by victims and their lawyers.
The third main part of Proposition 9, its Sections 5 and 5.1 to 5.3,
concerns the rights of victims in the parole process; this third part substantially alters the parole process. The primary focus on the Lifer Parole Hearing process leaves the dubious impression that this prison population constitutes the largest threat.
The fourth main part of Proposition 9, at its Section 6, the “Notice of
Victim’s Bill of Rights,” concerns notifying victims of their rights.
The fifth main part deals mainly with conflicts, retroactivity, severability and amendment clauses.
Proposition 9 was procedurally implemented by the BPH on December 15, 2008 for the Lifer Parole Suitability Hearings.
WHAT PENAL CODE SECTIONS ARE IMPACTED?:
One undisputed consequence of the Act is to substantially extend prison time for those serving indeterminate sentences. Prior to Prop 9’s enactment, defendants plea bargained accepting certain universally accepted assumptions by all those associated with the conviction process only to discover fifteen years or more on that these “rules” have substantially changed.
Under the former Penal Code section 3041.5 life prisoners who were not convicted of murder could be denied parole for 1 or 2 years, and lifer prisoners who were convicted of murder could be denied parole for 1, 2, 3, 4, or 5 years. Under amended section 3041.5. ALL life prisoners can be denied parole 15, 10, 7, 5, or 3 years. Parole Hearing are now by default every 15-year after any hearing which a parole is denied, unless the BPH can show by “clear and convincing” evidence that the inmate does not require a more lengthy period of incarceration. If that evidence is shown, then the BPH may proceed to set the next denial in the order of 10, 7, 5, and finally 3-years based upon the same criteria.
Although numerous sections remain unchanged, there are two notable exceptions. Penal Code section 3041.5 sets forth the parole-grant hearing rights of prisoners. Penal Code section 3043 requires notice to the victim, and states other victim’s rights. These two sections are substantially amended by Prop 9. Additionally, Prop 9 adds new Section 3044 to the Penal Code, setting forth additional victim’s rights during the parole process.
Since the Act’s passage, serious constitutional concerns have been expressed concerning Proposition 9. At this time there are over 20 cases taken up on appeal via Writs directly from the unsuccessful Lifer Suitability Hearings. There are also three other known courts in which litigation has been filed on the early offset of Proposition 9 and they are seeking to enjoin implementation of Prop. 9’s anti-lifer provisions.
1. Rutterford/Lugo (case Amended for Prop. 9)
-Keith Whattley, esq. 220 4th St, ste 201 Oakland, CA 94607
2. Federal Defender (Eastern District) in Gilman et al. V. Schwarzenegger et al. (CIV-S-05-830 LKK GHH)
Federal Defender - Eastern District with the UC Davis Law School of Civil Rights Clinic (Section 1983)
-Monica Knox Monica_knox@fd.org
3. Taxpayers for improving Public Safety (Tips) v. Schwarzenegger et al. filed a civil lawsuit (12/2008) 34-2008-00030789-CU-JR-GDS (injunction relief).
-Steve Sanders, esq. 916-376-8738
On March 27, 2009, in the class action lawsuit involving LATE parole hearings (In re Rutherford, Marin County Superior Court NO Sc135399A) the BPH agreed that all the parole hearings that were due to be held prior to Proposition 9 on December 15, 2008 would now be entitled to “pre-9” hearing decision.
Voluntary waivers have not been modified by Proposition 9. In the California Code of Regulations (CCR): Title 15. Division 2, Chapter 3, Article 3, Section 2253 (15 CCR section 2253) Voluntary Waivers, Stipulations of Unsuitability, Postponements, and Continuances prisoners still have the right to Waivers. A prisoner may request to voluntarily waive his or her life parole consideration hearing for any reason. Request shall be made in writing to the Board and shall state the reason for the request. A prisoner may request to waive his or her hearing for 1, 2, 3, 4, or 5 years. A request made no later than 45 days prior to the scheduled hearing SHALL be PRESUMED to be valid.
These timeframes are very important and needs to be analyzed by an experienced attorney in this field. This tool can be used as a long term strategy to position your client in a better light at his next full Board hearing. If s/he is denied at the full hearing than the appropriate Writ of Habeas Corpus (WHC) can be filed in a timely manner with the appropriate issues raised, for appropriate Court relief.
On August 21, 2008, the California Supreme Court published its decisions in the cases of In re Lawrence, 44 Cal. 4th 1181 and In re Shaputis, 44 Cal. 4th 1241. It provides more potential relief at the parole hearing for inmates that have been previously denied solely based on their immutable factors, one being the commitment offense.
A. In re Lawrence :
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. These include but are not limited to: programming, vocational trades acquired, self-help classes completed, positive laudatory chronos received as well as all the AA/NA meeting attended. In addition, show the lack of CDC-115 (a.k.a. rules infraction as part of institutional behavior) on the inmate’s part during his period of incarceration. All these positive aspects will be needed to outweigh any unsuitability factors in order to be deemed suitable and not be deemed a current risk of danger to society.
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.
B. In re Shaputis:
This is the companion case to Sandra Lawrence. Richard Shaputis appears to be the “take” portion of the “give and take” offered up by the California Supreme Court in August 2008 to demonstrate that its decision in Lawrence does not “open the flood gates” of parole for lifer inmates.
In reversing the appellate court’s grant of parole to Mr. Shaputis, the Supreme Court concluded that because of a “lack of insight” into the commitment offense and a pattern of “sometimes violent behavior,” the inmate continues (currently) to be an “unreasonable risk” to public safety.
From a practical standpoint, the attorneys representing Lifers will need to closely scrutinize any and all Psychological evidence presented at the parole hearings. The BPH has their own contracted Forensic Psychologists to interview the inmates in a non-confidential setting to provide a report and recommendation as to the risk of violence in society if the inmate is release. The inmate’s psychological evaluation is now being given more weight and on many occasions is used to eviscerate the insight previously gained by the inmates (by prior positive psychological evaluations) in order to shoehorn the In re Shaputis decision to BPH’s favor, for denying parole.
LIFER HEARING PRELIMINARY OBJECTIONS (making a record):
Attorneys representing Lifers at their Parole Suitability Hearing in the near future need to create the proper record that raises potentially appealable issues or serves as a basis for bringing a Writ of Habeas Corpus. Preliminary Objections recommended at the beginning of the Parole Suitability Hearing include the objections that new Proposition 9 violates the right to Confrontation, a.k.a. the 6th amendment rights, and the inmates’ Liberty interest in Parole, and others.
While sympathetic to the emotional outrage felt by victims and their friends and family by crimes committed by recidivists, Proposition 9 unfairly targeted Lifers, a population which research supports as an extremely small and arguable less dangerous segment of the potential parole population. Not only has the Act failed to address the real objective of denying parole to truly dangerous criminals, its implementation violates constitutional guarantees, arguably constituting the greater danger to a free society.
Outside of the hearing itself, fervent opposition to the confirmation of new Commissioners that do not follow the law, are bias and/or unfair at the Parole Hearings must occur. The defense bar’s disapproval of retired law enforcement personnel’s disproportionate representation on the Board of Parole Hearings should be communicated to the Senate Committee on Rules in Sacramento.
We represent inmates at their Parole Revocation or Lifer Hearings and provide WHC relief, when appropriate. We successfully have released multiple Lifer inmates via the Parole Hearing Process, En Banc Hearings (in Sacramento) and via the Court system.
We have personally met (not represented) Mr. John Dannenburg (156 Cal. App. 4th 1387) and we discussed his struggles especially over the last 7 years in court (2002-2009) as a jailhouse lawyer. He was released 6 months ago from a 15-Life, 2nd degree murder sentence, he had served over 23 years. We also briefly spoke with Mr. Hayward (currently released) who is currently pending in the Federal Courts. Both are Landmark cases in this area of post-conviction law.
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