California’s parole-eligible prisoners may soon get a definitive answer on whether the three, five, seven, ten, or fifteen year parole hearing set-off scheme enacted in 2008 pursuant to Marsy’s Law (Cal. Pen. Code § 3041.5) violates ex post facto principles.
The California Supreme Court unanimously voted today to grant the petitions for review in In re Vicks and In re Russo, recent appellate cases that have caused some confusion as to whether certain applications of Marsy’s Law are unconstitutional.
Clauses in both the California and United States Constitutions prohibit the application of an ex post facto law. A law is ex post facto when it retroactively lengthens a prisoner’s existing sentence.
Before 2008, when a prisoner was denied parole, the prisoner’s next hearing would be deferred for one, two, three, four, or five years. After 2008, however, the prisoner’s next hearing would be deferred for three, five, seven, ten, or fifteen years. In effect, the minimum deferral the Board can now give is two years longer than it could have been pre-Marsy’s Law; the maximum deferral is ten years longer.
Marsy’s Law also provided that a prisoner who has been denied parole may request to have his or her next hearing date advanced upon a showing of “changed circumstances or new information” demonstrating that, in the interest of public safety, an increased period of incarceration is no longer required.
In Vicks, a panel of justices in the Court of Appeal, Fourth Appellate District, Division One concluded the risk of increased incarceration violated ex post facto principles if applied to prisoners sentenced before the California legislature enacted Marsy’s Law.
However, in Russo, a different panel from the same court as Vicks concluded that a prisoner’s ability to petition for an advanced hearing protected Marsy’s Law from an ex post facto challenge.
The majority of the Post-Conviction Justice Project’s clients were sentenced before the enactment of Marsy’s Law.