Gilman v. Schwarzenegger
638 F.3d 1101
9th Cir.2011Background
- Eight California life-term prisoners (plaintiffs-appellees) challenge Proposition 9, Marsy’s Law, which altered parole deferral rules for life-with-possible-parole inmates under Cal.Penal Code § 3041.5.
- Prop. 9 increases the minimum deferral from 1 to 3 years, the maximum from 5 to 15 years, and sets a default deferral of 15 years unless the Board finds otherwise by clear and convincing evidence.
- The Board may also grant advance hearings (sua sponte or on request) if circumstances or new information suggest public and victim safety do not require the longer incarceration.
- Plaintiffs filed under 42 U.S.C. § 1983 alleging the amended deferral provisions violate the Ex Post Facto Clause by creating a significant risk of prolonged incarceration.
- The district court preliminarily enjoined enforcement of Prop. 9; the state appealed, and the Ninth Circuit reversed, holding the district court abused its discretion.
- The opinion analyzes whether Prop. 9 creates a significant risk of increased punishment, considering Morales, Garner, and the availability of advance hearings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Prop. 9 violates the Ex Post Facto Clause. | Garner: Prop. 9 creates a significant risk of prolonged confinement. | Morales/Board: No significant risk; advance hearings mitigate risk. | No likelihood of ex post facto violation; district court abused discretion. |
| Whether advance hearings sufficiently mitigate risk under ex post facto analysis. | Advance hearings are ineffective or not timely enough to prevent longer incarceration. | Advance hearings are explicitly authorized and capable of removing harm. | Advances hearings can remove risk; evidence insufficient to show failure. |
| Does Prop. 9’s change to deferral periods alter the Board's discretion as under Morales and Garner? | Changes greatly expand potential deferral duration and reduce discretion to shorten delays. | Rule changes still allow merit-based or expedited reviews; discretion preserved via advanced hearings. | Prop. 9 does not amount to an ex post facto violation given statutory avenues for expedited reviews. |
Key Cases Cited
- Morales v. D.C. Dept. of Corr., 514 U.S. 499 (1995) (parole hearing frequency changes did not increase punishment)
- Garner v. Jones, 529 U.S. 244 (2000) (advance hearings and discretion to set frequency analyzed for ex post facto)
- Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (public safety standard and evidentiary burden in parole cases)
- In re Lawrence, 190 P.3d 535 (Cal. 2008) (California standard for public safety and current dangerousness)
- Hinkson, 585 F.3d 1247 (9th Cir. 2009) (abuse of discretion standard for preliminary injunctions (en banc))
- Winter v. NRDC, 555 U.S. 7 (2008) (injunction standards and likelihood of success on the merits)
- Munaf v. Geren, 553 U.S. 674 (2008) (preliminary injunction standards (extraordinary remedy))