Judge strikes parole-revocation provisions in Proposition 9 (Marsey's Law)

A Sacramento federal judge has struck down as unconstitutional the part of California's so-called Victims' Bill of Rights that governs parole revocation.

The law, enacted by voter approval of a 2008 ballot initiative known as Proposition 9, was a sweeping amendment to the state constitution, conferring a long list of entitlements on crime victims. The sections dealing with parole revocation were made part of the state's Penal Code.

U.S. District Judge Lawrence K. Karlton ruled Tuesday that those sections fall short of providing the minimum due process guaranteed by the Constitution and two U.S. Supreme Court decisions, Morrissey v. Brewer – a landmark in 1972 – and Gagnon v. Scarpelli one year later.

The requirements missing from California's law include "a written summary of the proceedings and of the revocation decision, the opportunity to present documentary evidence and witnesses, and disclosure to the parolee of the evidence against him," Karlton wrote in a 26-page order.

The judge held that an injunction he issued in 2004 as part of a now-18-year-old, still-ongoing class-action lawsuit on behalf of parolees is "necessary to remedy constitutional violations created" four years later by the voters.

The judge found to be unconstitutional the provision of Proposition 9 that parolees have a right to an attorney at the state's expense only if the parolee is indigent and appears incapable of speaking for himself. Karlton said the California law overly restricted a parole agency's discretion and allowed a parolee to go uninformed of his right to request counsel.

Most importantly, Karlton added, a right to a lawyer is presumed if the parolee makes a credible claim that he did not violate parole, or a credible claim of mitigating circumstances. Thus, Karlton concluded, his injunction "is a properly tailored remedy, aimed at curing violations of due process rights."

Karlton next targeted the state law provisions entrusting to the Board of Parole Hearings "the safety of victims and the public," and prohibiting the board from weighing the cost or burden to the taxpayers that may result from continually sending people back to prison.

The judge said his injunction directs the board to use remedial sanctions rather than parole revocation when appropriate, thus reducing the number of returnees and the overall inmate population – the latter being a Supreme Court-mandated goal.

The law further violates the Constitution by denying a parolee a "neutral and detached" hearing body to make parole revocation decisions, Karlton stated.

The state places "a thumb on the scales of justice and tip(s) the balance towards incarceration. By entrusting the board only with the safety of victims and the public, (the law) strips the board of its duty to balance those factors with a parolee's liberty interest," the judge wrote.

Yet another part of the law allows the unconditional use of hearsay evidence at parole revocation hearings, denying a parolee the "right to confront and cross examine adverse witnesses … unless the government shows good cause," Karlton said.

Only two paragraphs of the parole revocation statute were left standing. Karlton decided they are not viable by themselves, so "no portion of the statute can be preserved."

One of the proposition's requirements survived and will be included in Karlton's injunction: that a revocation hearing be convened no later than 45 days after the placement of the parole hold, as opposed to the 35 days required by the injunction.

Gov. Jerry Brown and his administration are represented by the San Francisco law firm Hanson Bridgett LLP. One member of the firm declined to comment and another did not respond to a call requesting comment.

http://www.sacbee.com/2012/01/26/4215981/judge-strikes-parole-revocation.html