The California Court of Appeal ruled that the increased parole deferral periods under Marsy’s Law do not apply to inmates whose crimes were committed before the effective date of the law.
The decision held that the provisions of Marsy’s Law that allowed for parole denial for a minimum of three years and a maximum of 15 years violate the ex-post facto clause of the U.S. Constitution, which prohibits laws that retroactively increase the punishment for crimes. [In re Michael Vicks on Habeas Corpus, No. D056998,4th Appellate District, May 11, 2011]
Prior to the enactment of Mary’s Law, the Board of Parole Hearings had the option of denying parole for one to five years. The court determined that a provision of Mary’s Law required that an inmate who had been denied parole had to wait three years before applying for another hearing. The court found this posed a significant risk that an inmate would serve an unjustified increased period of incarceration. This would occur in cases where the board could have denied parole for only one or two years, but now the minimum denial was three years.
The court disagreed with another Court of Appeal which held Mary’s Law was not an ex-post facto violation. The Court of Appeal in Russo rejected a challenge to Marsy’s Law. The court also disagreed with a decision by the federal Court of Appeals in Gilman v. Schwarzenegger (9th Cir. Jan. 24th, 2011, No 10-15471), which found that the possibility of applying to the board for an advanced hearing removes any possibility of increased incarceration for inmates who are suitable for parole.
Because of differing conclusions between two state appeals courts, the California Supreme Court is expected to ultimately decide whether Marsy’s Law applies to lifers whose crimes took place before its enactment.
The Board of Parole Hearings provides a form to request an advance hearing [BPH 1045 (A)]. The form allows an inmate to request an advance hearing date following a denial of parole for any length of time. However, Marsy’s Law requires that an inmate wait three years until after a parole denial to apply for an earlier hearing.
The court ordered that the board reschedule a hearing for Vicks, who had been denied parole for five years.
