GILMAN V. BROWN Declares Prop 9 (Marsy's law) and Prop 89 (Gov. veto power) Violates Ex post Facto rights!!!

**** SEE OUR NEW 2/22/16 GILMAN Update post (Blog February 2016)

Gilman vs Brown (2/28/14)  (click to read the 58 page ORDER) 
CIV. S-05-830 LKK/CKD 

As John Dannenberg told me "This is a humdinger!  It is stayed pending filing of an appeal, and probably will spend a year or two in the appeals process, but is factually very strongly supported" [ for  the LIFERS!]

In 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. Constitution. The case is a pleasure to read. It is brilliant that the Rutherford class of inmates were used by the Plaintiffs (inmates) to show the ACTUAL increase in punishments that all those Lifers suffered because of Prop 9. A somewhat detailed description of the Rutherford litigation was useful because that subset of the class certified in In re Rutherford (Cal. Super. Ct., Marin County, No.SC135399A),  is representative of the Proposition 9 class certified in this GILMAN case

As a reminder:  In re Rutherford  (2004 civil class Action by the Prison Law Office) there was a complaint that all prisoners serving indeterminate terms of life with the possibility of parole  (LIFERS) had not received timely parole hearings within the time required by California Penal Code §§3041 and 3041.5.The Rutherford ORDER was to eliminate all the back log of Parole Hearings where some inmates were allowed to go forward with their parole hearing BEFORE the application of Prop 9. Bottom line of that class analysis [done in GILMAN] is that those pre-prop 9 inmate were release sooner "in general" then the post-prop 9 inmates.Hence the increase in the punishments as applied by the Board in the GILMAN case analysis.  

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. (i.e. Lifer inmates)

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 Commissioners will be left to do their JOBS without the threat from the Governor and it will hopefully eliminate "some" the Conflicts of Interest with the Governor's Office.

 YES YES YES - i am a little excited about this case for my LIFER clients. Marsy's law "as applied" is unconstitutional....   REALLY !   LOL

Three-Federal Judge Court (PLATA) SOCKS it to Governor Brown to Release more inmates including qualified LIFERS!

PLATA vs BROWN    Extension ORDER (click here to see ORDER)
NO. 2:90-cv-0520 LKK DAD (PC)
REF:  PRISON Over Crowding issues.

Federal Court partially grants the extension of time to comply with the original court Order for the prison population reduction benchmark....but adds CONDITIONS. 

See saignant points (below) of the Court Order that will finally be affecting LIFER inmates.
Talk about SB260 Youth hearings. What about Elderly Hearings, if over 60 years old and served minimally 25 years of the sentence..... Stay Tune Coming Soon.

CDCR will meet the following interim and final population reduction benchmarks:
(a)  143%    of design bed capacity by June 30, 2014;
(b) 141.5% of design bed capacity by February 28, 2015; and
(c) 137.5% of design bed capacity by February 28, 2016.


Defendants (i.e. Governor via BPH and CDCR)) shall also immediately implement the following measures:
 ...
(c) Parole certain inmates serving indeterminate sentences (LIFERS) who have
 already been granted parole by the Board of Parole Hearings but have future       parole dates;
(d)  In consultation with the Receiver’s office, finalize and implement an expanded parole process for medically incapacitated inmates;
(e) Finalize and implement a new parole process whereby inmates who are 60 years of age or older and have served a minimum of 25 years of their sentence will be referred to the Board of Parole Hearings to determine suitability for parole;

(h) Implement an expanded alternative custody program for female inmates.
...
 The Court will appoint a Compliance Officer for the purpose of bringing
defendants into compliance with any missed benchmark by ordering inmate releases. If compliance with any benchmark is not achieved within a 30-day period following the expiration of any missed benchmark, the Compliance Officer shall, within seven days, direct the release of the number of inmates necessary to achieve compliance with the missed benchmark and the measures to be followed in selecting the prisoners to be released. The authority of the Compliance Officer shall extend no further than ordering defendants to release inmates necessary to ensure defendants’ compliance with any missed benchmark.
  ...
 9. To the extent that any state statutory, constitutional, or regulatory provisions,
except the California Public Resources Code, impede the implementation of this order or defendants’ ability to achieve the population reduction benchmarks, all such laws and regulations are waived. Although the Court does not issue a general waiver of the Public Resources Code, defendants may request waivers, as the need arises, of these statutory provisions that are tailored to specific projects.

10. This Court shall maintain jurisdiction over this matter for as long as is
necessary to ensure that defendants’ compliance with the 137.5% final benchmark is durable, and such durability is firmly established.

11. Defendants shall, within 60 days of the date of this order, file with the Compliance Officer under seal, the categories of prisoners who are least likely to reoffend or who might otherwise be candidates for early release (the “Low Risk List”) that this Court  previously ordered them to create. The Low Risk List shall not be viewed by the Compliance Officer unless and until he or she is ordered to do so by this Court. Similarly, this Court will not inspect the list unless circumstances so warrant. Defendants shall file an amended list every 60 days, should changes to the list become appropriate.

IT IS SO ORDERED.
Dated: 02/10/14                      SIGNED by the 3 Federal Judges

SB 260 - Youth Opportunity Parole Hearings (YOPH) UPDATE

The new law has been codified in the California Penal Code Sections 3014, 3046, 3051 and 4081. BPH is busy bringing all those entitled to a YOP hearing to their first appearance before the Board for the YOPH.

If you were under 18 at the time of the life crime and have not committed certain serious crimes after turning 18, your next and all future hearings will be YOPHs, at which, great weight must be given "to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity" in determining your parole suitability.  [NOTE: Inmates do not qualify if they are LWOP or a death penalty]. This is a brand new process, below is a description of my first exposure from the outside looking in.

SB 260 - Youth Opportunity Parole Hearings (YOPH) are on their way!

Attorney Diane T.  Letarte was at CMC, last week [January 17, 2014] where the 2 member Panel (including Commissioner Anderson) were busy away ...doing their first SB260 - Youth Opportunity Parole Hearing at 8:30am. My non-SB260 client and I waited patiently for our 10:30 am regularly Parole Suitability hearing to start. The Youth Parole hearing took almost 5 hours to complete. We did not start our Parole Hearing until 2 pm in the afternoon. Once started, I requested that the Panel apply In Re Butler  (Base Term calculation) to which I was told they had not been trained on In Re Butler  yet (and to table this objection for now).  Fortunately, the wait was a Blessing.... after the previous 8:30 am agonizing SB 260 hearing, the Commissioners welcomed this Regular Parole Hearing and stated (after the Decision was rendered) that my client was an "easy case" ------ WE GOT A GRANT! my client was found Suitable. Even with the 2 concurrent LIFE sentence, my client was given 6 month credits  (per clean year) and the "release date" was calculated to a date that was already passed!  It was my client's first Subsequent hearing. Hourrayyyy!

SB 260 PSYCHOLOGICAL SUPPLEMENTS - sooner than we think!

 The criminal defense Attorney assigned to the SB 260 hearing (before my hearing) assured me that the inmate had recently been given an updated Psychological Supplement that took into consideration all the "Hallmarks of a Youth".  He stated that although the inmate had his last Psychological risk assessment completed August 2013, the inmate received a Supplement in December 2013 - only 4 months after the FAD Risk assessment Evaluation was complete in order to address the "Hallmarks of Youth". This requires the Doctor to accord great weight to the inmate's age and circumstances at the time of the life crime. "Hallmarks of youth" include immaturity, impulsivity, recklessness, lessened responsibility, lessened ability to anticipate and appreciate consequences, immune to punishment, susceptibility to negative family/peer influences, and lessened capacity to  overcome (or escape) dysfunctional home environments or crime-producing settings.

This short Notice for a Psychological Supplement was unexpected since BPH had claimed that if the Risk assessment was less than 1 year old - they would not be able to re-do another Risk Assessment in such a short period of time. BPH re-iterated that the Panel would give "great weight" to the Hallmarks of Youth. Inmates should be ready to receive a visit from the BPH's Psychologist, for any upcoming YOP Hearings.

 REMINDER:
A)  If inmate are serving a determinate sentence, they will be eligible for a YOPH @ 15 years.
B)  If inmate are serving a life sentence of less than 25-life, they will be eligible for a YOPH @ 20 years.
C) If inmate are serving a life sentence of 25 or more-life, they will be eligible for a YOPH @ 25 years.