California Parole Issue Goes Before 9th Circuit

(CN) - The 9th Circuit faced calls against retroactive application of Marsy's Law, a California law that increased the wait between parole board hearings.

Lawmakers enacted Marsy's Law, or The California Victims' Bill of Rights Act, in 2008, amending the state constitution and changing some specific penal codes.

Among more than a dozen other provisions, Marsy's Law extended the wait between parole hearings from five to 15 years for murder convictions, and changed the two-year interval for other convictions to a minimum of seven years.

In a ruling earlier this year, the California Supreme Court said that the increased waits were properly calculated so crime victims would not have to attend repeated parole hearings that would probably not result in a release anyway.

The 9th Circuit consolidated the appeals of seven current and former prisoners who claim that Marsy's Law must apply only to those convicted after it was enacted. Otherwise, they say, California is violating the ex post facto clause of the U.S. Constitution.

In a series of four arguments, several attorneys representing the prisoners squared off last week against two deputy attorneys general there to defend the law.

Judge Andrew Hurwitz of the 9th Circuit quizzed attorneys on both sides to explain a role reversal the case seemed to force.

Hurwitz asked Margaret Littlefield, who represents four of the seven petitioners, whether her clients might be better off making a civil rights claim than a habeas claim.

Typically, he said criminal defendants use federal civil rights law to challenge laws affecting their rights as prisoners. Prosecutors, on the other hand, tend to characterize defendants' cases as habeas claims, which can be tougher for defendants to prove.

"Why aren't the defendants as a whole better off if we proceed through 1983?" Hurwitz asked, referring to the section of the Civil Rights Act.

A prisoner challenging the parole process who petitions for a writ of habeas corpus faces greater obstacles, such as the requirement to first exhaust all other legal remedies, than a prisoner who sues under the Civil Rights Act, the judge said, adding that recent U.S. Supreme Court decisions seemed to favor the civil rights path, too.

"Isn't that a better world? Isn't the Supreme Court telling us that's a better world?" Hurwitz asked.

"Well, in theory," Littlefield responded with a laugh. "But in theory, habeas should bring the speedy relief that these individuals need, and, even if 1983 may be a better platform, these individuals still have the right to litigate their own individual cases in habeas."

A.J. Kutchins, the attorney for petitioner Demetrius Borstad, said that, like the other petitioners, his client believes that the retroactive application of Marsy's Law is a violation of the U.S. Constitution's ex post facto clause. He said that he actually wanted the appellate panel to consider whether Borstad's petition for habeas corpus was dismissed on the wrong ground.

The District Court ruled Borstad's petition was barred as a second, or successive, petition.

Kutchins said that the second petition had new issues, particularly since Marsy's Law went into effect during the time between his first and second petition.

The basis for that ruling on Borstad's first habeas petition, filed in 1997, was dismissed in 2006, or two years before the 2008 enactment of Marsy's law, Kutchins said.

"So there was no way for the first petition to challenge the constitutionality of Marsy's Law," he added.

This prompted Judge Hurwitz to suggest Kutchins save his remaining time for rebuttal and let California's attorneys explain why they thought the petition was barred.

California Deputy Attorney General David Sunada argued that, successive or not, Borstad's petition failed to even make a valid Marsy's Law claim, and for that reason alone the 9th Circuit could dismiss it.

"Mr. Borstad made reference to no facts that he was aggrieved by Marsy's Law," Sunada said. "There's no mention of a parole hearing and no mention of a deferral period."

Attorney Kutchins retorted that Borstad argued four times in his pleadings that Marsy's Law violated his constitutional rights, mentioning both the ex post facto clause and the Sixth Amendment.

"The notion that he did not plead Marsy's Law as a constitutional violation is incredible," Kutchins said.

The judge had also dismissed the petition without a hearing, depriving Borstad of the opportunity to make his case that his claim was new because Borstad represented himself at the time.

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