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9th Circ. OKs Longer|Parole Waits in Calif.

(CN) - The application of a California victims-rights law that allows an increase in the wait time between parole board hearings does not violate prisoners' civil rights, the Ninth Circuit ruled Monday.

Voters passed Proposition 9 - known as both the California Victims' Bill of Rights and Marsy's Law - in 2008, amending the state constitution and changing some specific penal codes.

Among more than a dozen other provisions, the law changed the standards for parole hearings by lengthening the time a prisoner must wait for a new hearing after being found unsuitable for parole. It increased the minimum deferral period of one year to three years, upped the maximum deferral period from five years to 15 years, and increased the default deferral period from one year to 15 years.

Notwithstanding these deferral periods, the law allows an inmate to request that the Board of Parole Hearings advance the date of his next parole hearing by submitting a petition to advance. The board has sole discretion to grant or deny the petition.

Lead plaintiff Richard Gilman argued that this law, as well as a law passed in 1988 that gave California's governor constitutional authority to reverse or modify grants of parole for convicted murderers, could unconstitutionally increase incarceration for certain inmates.

U.S. District Judge Lawrence Karlton ruled that Prop. 9 violated the U.S. Constitution's ex post facto clause by creating a significant risk that inmates' periods of incarceration would be longer than they would have been before the passage of the law.

A three-judge panel of the Ninth Circuit disagreed, finding that Karlton made his decision based on speculation and inference rather than on concrete evidence.

"A decrease in the frequency of parole hearings - without more - is not sufficient to prove a significant risk of lengthened incarceration," Circuit Judge Carlos Bea wrote.

Bea said that the district judge relied on anecdotal evidence and speculation when he determined that the Board of Parole had denied petitions that ought to have been granted.

"It is undisputed that the Board did exercise its discretion as to each of the petitions to advance in question, granting some and denying others. We conclude that the district court erred in using its disagreements with the board's decision about which petitions ought to have been granted or denied as a valid basis for finding an Ex Post Facto Clause violation," Bea said.

Evidence also does not support the district court's finding that the petition to advance process places a new and "amorphous" burden on prisoners to show a change in circumstances or new information for the parole board to consider whether they are suitable for parole, the panel said.

"To show new information or a changed circumstance, an inmate need present only one or more of the building blocks that could result in a suitability finding, such as an updated parole plan, a job offer, completion of a substance-abuse treatment program, or attainment of an education certificate," Bea wrote.

An advance hearing is only denied if the board determines, based on all of the information presented, that the inmate is unlikely to be found suitable for parole.

"Such an inmate - one who is likely unsuitable for parole - by definition is likely not to have received parole before the enactment of Proposition 9. And an inmate who was unsuitable a year ago and as to whom nothing has changed, similarly, was as unlikely to obtain parole before Proposition 9 as he is after," Bea said.

The panel also struck down Gilman's challenge to Proposition 89, a 1988 amendment to the California Constitution that gave the governor the constitutional authority to reverse, affirm or modify the Board of Parole Hearings' grants of parole as to inmates convicted of murder.

The governor is required to use the same criteria that the board uses to determine suitability to deny or approve parole, and there is no evidence that any governors have not obeyed the law when making such parole findings, Bea said.

"Proposition 89 remains only a transfer of decision-making power, which does not violate the Ex Post Facto Clause," Bea said.

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