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Name: Gilman v. Schwarzenegger
Case #: 10-15471
Court: US Court of Appeals
District 9 Cir
Opinion Date: 12/06/2010

The changes to the deferral process after Marsy’s Law do not violate the ex post facto clause. In this case, the petitioners, life-term prisoners, argued that the changes to the deferral periods for holding parole hearings enacted by Marsy’s Law violate ex post facto principles. Before Marsy’s Law, if parole was denied, the prisoner would receive a new hearing before the parole board the next year, or in some circumstances, in two or five years. After Marsy’s Law, the earliest the next parole hearing will be scheduled is 3 years, and the default is 15 years. The burden to impose a deferral period also changed under Marsy’s Law. It used to be that a prisoner received annual reviews unless the board found it was unreasonable to expect the prisoner would become suitable for parole within that time. Now the board must find that there is clear and convincing evidence that the prisoner will be suitable in order to set a shorter deferral period than 15 years. A prisoner is allowed to request an advance hearing every three years, if change in circumstances can be shown. Petitioners claimed the changes to the parole procedures offend the ex post facto clause because they result in longer terms of incarceration. The court reviewed two high court cases considering constitutional challenges to procedural changes to parole systems, Garner v. Jones (2000) 529 U.S. 244, and Cal. Dep’t. of Corrections v. Morales (1995) 514 U.S. 499. In both cases, the statutory changes decreased the frequency of parole hearings, but they did not change the statutory punishment for a particular crime, or the date of the initial parole hearing, or the standard for parole suitability. In both cases, the high court found no ex post facto violation because the amendments did not produce a sufficient risk of increasing the punishment. Rather, the decrease in frequency of parole hearings created a speculative and attenuated possibility of increasing punishment. In the case at hand, the parole-process changes were more extensive in that they changed the minimum deferral period, the default deferral period, and the burden. So, it appears the changes made by Marsy’s law create a significant risk of prolonged incarceration. But, the advance hearings permitted by the statute remove the possibility of harm. Since the board can order an advance hearing on its own motion and a prisoner can also request one, inmates are not required to wait a minimum of three years for a hearing. And so, there is no ex post facto problem.