Billionaire-Funded California Voter Initiative Triples Lifer Parole Denial Intervals, Imposes Restrictions on Parole Violators

In the November 2008 elections, California voters narrowly passed Proposition 9 by a 53 to 47% margin. Prop. 9 was a state Initiative Act that 1) tripled the statutory intervals permitted by the Board of Parole Hearings (BPH) when denying parole to life-sentenced prisoners, and 2) countered a recent U.S. District Court ruling that guaranteed legal representation and prompt revocation hearings for parole violators.

Seductively labeled on the ballot as a “victim’s rights” act, Prop. 9 was bankrolled almost entirely by billionaire Henry T. Nicholas III, whose 21-year-old sister, Marsy Leach, was murdered in 1983 by a former boyfriend. Notwithstanding that Marsy’s killer died in prison years ago, Prop. 9 was in reality a posthumous blanket decree designed to punish all of California’s 120,000 parolees and 30,000 life-sentenced prisoners.

But in what can only be characterized as poetic justice, Nicholas was himself recently indicted on 21 federal charges that include stock fraud, conspiracy, pimping, perjury, drugging friends’ and prostitutes’ cocktails, and having a warehouse of drugs. He faces up to 340 years in prison and is scheduled to go to trial in late 2009.

The Tentacles of Prop. 9 Are Legion

Proposition 9 applies to all lifers, including murderers, kidnappers, 3-strikers and habitual sex offenders, and contains a number of provisions that will lead to an increase in California’s already overburdened prison population, including:

Increases lifer parole denial intervals to a presumptive 15 years, unless the prisoner proves by clear and convincing evidence that s/he should get a shorter denial.

Increases the minimum lifer parole denial interval from one year to three years.
Permits “professional victims” (i.e., persons unrelated to the offense or victims) to be designated to attend and speak at any lifer’s parole hearing.

Permits “any person harmed by the offender” to appear and speak at the offender’s parole hearing.

Requires restitution to be ordered to all victims of “criminal activity,” regardless of sentence or disposition (i.e., incarceration, probation, suspended sentence, release on recognizance, home detention, etc.).

When both court fines and restitution have been ordered at sentencing, restitution must now be paid first. This may leave court fines unpaid, which prevents released prisoners from leaving the state.

Permits reintroduction into a current hearing of the testimony of any victim (or representative) who appeared either in person or by letter at an earlier hearing, including the prior testimony of persons who have since died.

Extends, for all parole violators, the time period to the first probable cause hearing to 15 days, and the time period to a revocation hearing to 45 days. Attorneys will now be provided only if the violator is indigent and the BPH determines that s/he is incapable of representing himself.

Requires the BPH to report to the Governor, rather than to the CDCR.

Bars reduction of prison overcrowding through early releases, regardless of the type of crime or commitment.

Provides that each parole hearing is conducted de novo, meaning that decisions in prior hearings (including prior grants of parole that were reversed by the Governor) do not bind the current parole panel.

Provides that if the BPH or the Governor reverses a panel’s grant of parole, the decision becomes a denial with the next hearing to be held between 3 and 15 years later.

Provides that notice to victims of a lifer’s pending parole hearing shall be sent at least 90 days in advance. Victims/survivors to be notified include those involved in the crime resulting in a life sentence, as well as any and all other victims of non-life felony crimes for which the prisoner was convicted or previously paroled.

Cites its need to curb the “excessive parole process for murderers” as justification for applying its terms to all parole violators and life prisoners, whether they were convicted of murder or not.

Becomes effective immediately and applies to all parole board hearings held after its enactment date

Prop. 9 further includes, for the announced purpose of punishment, a state constitutional provision limiting prisoners’ rights to those “required by the U.S. Constitution.” While no interpretation yet exists for this language, it has been suggested to mean limiting prisoners’ existing rights and privileges such as visitation, education, recreation and personal property.

Prop. 9 Challenged

As an Initiative Act, Prop. 9 amends both state statutory and constitutional provisions. This, in turn, requires amendment of existing BPH regulations, a lengthy process requiring public notice and interaction. To obtain immediate implementation of Prop. 9, the BPH issued Administrative Directive 08/01 on December 8, 2008, which modified affected regulations by fiat pending formal amendment.

Several legal challenges to Prop. 9 have been raised. One attacks the restrictions on parole violators’ hearing rights – restrictions that conflict with a prior federal court injunction. See: Valdivia v. Schwarzenegger, U.S.D.C. (E.D. Cal.) No. CIV. S-94-0671 LKK/GGH. [PLN, Jan. 2006, p.9; April 2004, p.24].

Attorneys representing the plaintiffs in the Valdivia class action suit filed a motion stating that Prop. 9 “purports to eliminate nearly all due process rights of parolees and directly conflicts with the protections put in place by the injunction and established constitutional law.”

On December 9, 2008, U.S. District Court Judge Lawrence K. Karlton issued a temporary injunction against implementing the parole hearing-related provisions of Prop. 9.
Following a hearing, Judge Karlton ruled on March 26, 2009 that the court had continuing jurisdiction to enforce the Valdivia injunction. He denied the state’s motion to modify the injunction to conform to the parole hearing restrictions imposed by Prop. 9, citing the supremacy clause of the U.S. Constitution. See: Valdivia v. Schwarzenegger, 2009 U.S. Dist. LEXIS 25777 (E.D. Cal. 2009).

In an unrelated challenge, it has been argued that Prop. 9, in its broad brush, violates the single-subject rule of the California Constitution’s Initiative Act (Cal. Const. Art. II, § 8(b)). Los Angeles District Attorney Steve Cooley has expressed concern that Prop. 9 contains many ex post facto provisions; he further objects to lay victims taking part in deciding what charges should be brought in a criminal prosecution.

Prisoners’ rights attorneys have suggested that requiring a presumptive 15-year parole denial interval for lifers amounts to unconstitutional excessive punishment (e.g., doubling a 15-life prisoner’s minimum term to 30 years, solely by BPH administrative action).

Prop. 9 Election Was “Bought”

Opponents had lamented the huge taxpayer costs that would ensue should Prop. 9 be enacted. If tens of thousands of lifers were denied parole for minimum three-years intervals, at an approximate cost of $75,000 each per year (reflecting the aging lifer population), already-bankrupt California would be saddled with hundreds of millions of dollars in additional annual incarceration costs. While Prop. 9’s supporters had countered that fewer parole hearings would save “millions,” no one suggested firing any of the BPH Commissioners as a result of such alleged cost savings.

Funding in support of Prop. 9 came almost exclusively from Nicholas ($5 million) and Crime Victims United ($100,000). The latter organization is a vocal murder-victims group that receives six-figure annual cash contributions as well as office space from the politically powerful California prison guards union (CCPOA). Prop. 9 opponents raised approximately $550,000 to fight the measure.

This vast imbalance caused the opposition to cry foul. Their concern was that Nicholas’ reported $2 billion net worth came almost entirely from his Broadcom, Inc. stock options, which allegedly had been fraudulently backdated (Broadcom recorded a $2 billion accounting loss for this). The contention was that California voters were “bought” by extensive media advertising procured with ill-gotten money, and that the election process was therefore unlawfully tainted. Using this criteria however, it would be difficult to find a “clean” election in US history.

Henry’s Law

Prop. 9 was nicknamed “Marsy’s Law” by Nicholas, after his slain sister. While Marsy’s tragic demise is worthy of compassion, one can only wonder how her memory is served by exhuming her good name to become the public moniker for punishing 150,000 California parolees and lifers who had nothing to do with her death.

It would seem more fitting to instead label Proposition 9 after the signature on the $5 million check that procured its passage: “Henry’s Law.”

Sources: Sacramento Bee; San Francisco Daily Journal; San Francisco Chronicle; Los Angeles Times; CDCR News Release dated Dec. 16, 2008; 2008 CA Official Voter Information Guide; McGeorge School of Law; California Initiative Review (2008); Prison Law Office, Information Regarding Prop. 9 (November 17, 2008); CA Board of Parole Hearings Administrative Directive 08/01 (December 2008)

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