The changes to the parole process enacted by Marsy’s Law, on their face, do not create a significant risk that life prisoner’s incarceration will be prolonged in violation of the ex post facto clauses of the state and federal Constitutions. In 1983, petitioner was convicted of numerous violent felonies and sentenced to life in prison, with the possibility of parole, consecutive to a determinate term of 37 years eight months. At his initial parole suitability hearing in 2009, the Board applied provisions of Marcy’s Law that were enacted November 2, 2008 and set the next suitability hearing for five years in the future. Under prior law, petitioner would have been entitled to a hearing within one to two years. In habeas proceedings, petitioner challenged the new parole procedures on their face and as applied to him. The Supreme Court concluded that section 3041.5, as amended by Marsy’s Law, may be applied to life inmates convicted before the effective date of the amendments without violating ex post facto principles. The relevant inquiry is not whether differences exist between the prior parole system and the current system, but whether the amended statute creates a significant risk of prolonging the prisoner’s incarceration. (Garner v. Jones (2000) 529 U.S. 255, 251.) Here, there was not a significant risk. First, although Marsys Law establishes deferral periods following the denial of parole that range from a default period of 15 years to a minimum of three years, the Board has authority to direct its staff to review a particular prisoner’s case at any time to determine if the prisoner may be suitable for parole. Second, a prisoner may submit a written request for an earlier hearing to the Board every three years that sets forth a change in circumstances or new information that shows he or she is suitable for parole. Finally, the possibility that some prisoners will become suitable for parole during the three-year period that they cannot submit an additional request to the Board does not create a significant risk of prolonging incarceration because most of the circumstances relevant to parole suitability are not amenable to rapid change.
A prisoner may make his or her first request for a new parole hearing at any time following the denial of parole at a regularly scheduled hearing, and then may make another request every three years. Under Penal Code section 3041.5, subdivision (d), an inmate may submit a written request for a new hearing to the Board that sets forth a change in circumstances or new information that establishes a reasonable likelihood the inmate is suitable for parole. Subdivision (d)(3) provides that an inmate may only make one written request during a three-year period following either a summary denial of a request or a decision to not set a parole date after a hearing. The Court of Appeal interpreted subdivision (d)(3) as creating a three-year “blackout” period after a regularly scheduled parole suitability hearing. The Supreme Court disagreed. There are two possible outcomes of a written request, a summary denial or an early hearing. If the request is denied, the inmate may not make another request for three years. If the Board holds an earlier parole hearing in response to the request and declines to set a parole date, the inmate may not make another request for three years. Subdivision (d)(3) addresses the timing of requests following an advanced hearing and does not prohibit an inmate from making a written request to advance a parole suitability hearing within three years after a regularly scheduled hearing at which parole is denied.