Propositions 9 and 89, which deal with parole for convicted murderers, do not violate the ex post facto clause because they do not pose a significant risk of lengthening sentences. California inmates convicted of murder sued California under 42 U.S.C. § 1983 arguing that Propositions 9 and 89 violated the ex post facto clause because they create a significant risk that their periods of incarceration will be longer than they would have been before the passage of the propositions. Proposition 89 gave the governor authority to reverse decisions of the Parole Board with respect to inmates convicted of murder. Proposition 9 changed the deferral period (i.e., the time between parole hearings) from five years maximum for murders, to fifteen years. The district court agreed with the murderer-petitioners. California appealed. Held: Reversed. A change in the law violates the ex post facto clause of the federal Constitution when it creates a significant risk of increasing punishment beyond that annexed to the crime, when committed. (Peugh v. United States (2013) 133 S.Ct. 2072, 2078.) In Johnson v. Gomez (9th Cir. 1996) 92 F.3d 964, 965, the court considered and rejected an ex post facto challenge to Proposition 89 because the inmate could not show that he would have received parole under the old system and thus there was only a speculative risk that his period of incarceration was lengthened. The inmates’ challenge to Proposition 89 in the present case fails for that same reason. With respect to Proposition 9, the court noted that statistics reflect that it has reduced the frequency of parole hearings, but concluded that such evidence was insufficient to prove a significant risk of lengthened incarceration. Accordingly, the Ninth Circuit reversed the district court’s judgment.

The full opinion is available on the court’s website here: https://cdn.ca9.uscourts.gov/datastore/opinions/2016/02/22/14-15613.pdf