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Parole and Ex Post Facto

The California Supreme Court today upheld the retroactive application of parole changes in Proposition 9 of 2008, Marsy's Law.  The decision is In re Vicks, S194129.

The law in this area is largely set by two US Supreme Court decisions, California Dept. of Corrections v. Morales, 514 U.S. 499 (1995) and Garner v. Jones, 529 U.S. 244 (2000).  (CJLF filed an amicus brief in Morales.)

Vicks is a poster boy for the kind of criminal whose release victims should not have to go back and oppose more than once in a great while, if ever.  He committed a string of violent offenses including kidnapping, armed robbery, and gang rape.  He received well-deserved sentences of life with parole and 37+ years, consecutive.  His minimum parole eligibility date was 2010 for 1983 crimes.

California's law of parole was once so criminal-friendly as to require preposterous annual parole hearings, even for multiple murderers.  This has been tightened up since, once by the law at issue in Morales and again in Marsy's Law.  Under the Morales and Garner precedents, a change in parole consideration intervals can apply retroactively if it does not add too much risk that a prisoner will be denied parole at a time when he would otherwise have been granted it.

Marsy's Law sets a presumptive interval of 15 years, but it allows some discretion for setting shorter intervals and for reconsideration upon receipt of new information or a change in circumstances.  The court has to make some pretty generous assumptions about how this discretion will be used to get under the "significant risk" bar.  The facial attack has been rejected, and Marsy's Law has been upheld for now, but we are not out of the woods.

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