Tuesday, September 17, 2013

In re Vicks, In re Morganti pushes BOARD to Automatic review on 3 year Denials

Some helpful statistics: A lion's share (60%) of parole suitability denials are for 3 years. Remembering that since the implementation of Marsy's Law (aka Prop 9) the denials can be for 3, 5, 7, 10, 15 years.

What do you do if you get denied - an inmate can file on their own BPH 1045 form to Petition the BOARD to advance the Hearings earlier than the denied amount of years. Given the new increase in Grant rates - inmates are encouraged to file the PTA, regardless of the New procedures implemented by the BOARD (see below)

In 2012 inmates filed 329 Petition To Advance (PTA) their hearings,  29 were granted and hearings moved forward. In the first half of 2013,  251 PTAs were filed by inmates, 129 have been approved and the hearing advanced. This shows an increase from an 8% grants to 52% grants.

From now on Lifers who receive a 3 year denial of parole will get an automatic review of their hearing and possible chance to advance the next hearing ahead of the 3 years under a new policy put into effect recently by the Board of Parole Hearings (BPH). This process should not prevent inmates from filing the BPH 1045 Petition to Advance (PTA) at any time during the 3 year period. The rule of thumb has been to file the PTA 1/2 into the number of years that you were denied. For example, if you were denied 3 years, file the PTA after 1.5 years - showing all the new "change in circumstances or new information" that would warrant an early Grant of the hearing.

When Marsy’s Law passed in 2008 and expanded the parole denial range from 1 to 5 years up to 3 to 15 years several legal actions were filed seeking to have this provision of Marsy’s invalidated as ex post facto. The most recent and well known case that fought to find a violation of the Ex Post Facto legal principal (with Marsy's Law) was lost at the CA Supreme Court.  In Re Vicks, was decided in April 2013, with the court ruling the increased denial period was not ex post facto. The Court reasoned that there was a "safety valve" by allowing the inmates [with long denial period] to file the BPH 1045 form to request an earlier Parole Hearing, through the PTA process.  In Re Morganti, emphasized that it would be wise of the BOARD to start  review of denials, on its own accord. Hence, the new BPH policy. 

These reviews will be conducted approximately 1-year after the 3-year denial, at the Board of Parole  Hearings (BPH)  headquarters in Sacramento, by Deputy Commissioners, whose primary job will be to review, consider and decide on these potential hearing advancements. The standards seems to remain the same as the current BPH 1045 Petition requirements. If a “change in circumstances or new information” and “after considering views and interests of victims,” there exists a “reasonable likelihood that consideration of public and victim’s safety does not require the additional incarceration,” a hearing date will be advanced.

The decision on whether to advance a hearing or not would therefore depend on different requirements. During the decision process the victims would be allowed to write to the Commissioners to relay their view on the advance hearing. The actual time to schedule the hearing will vary depending if there are Victims' Next of Kin (VNOK) that would need to be NOTIFIED several months ahead of time. 

By the time all the hoops are jumped through and a Hearing date is Advanced -one can expect- the next hearing to be scheduled approximately 18 months from the last hearing. We will see similar time frame delays  to the next scheduled hearings from a Governor reversal of a grant - 18  months.

A big thank you to Vanessa Nelson (LSA, for providing the bulk of the statistics and the information.