Gilman v. Davis

Decision Date04 February 2010
Docket NumberNo. CIV. S-05-830 LKK/GGH.,CIV. S-05-830 LKK/GGH.
Citation690 F. Supp.2d 1105
CourtU.S. District Court — Eastern District of California
PartiesRichard M. GILMAN, et al., Plaintiffs, v. J. DAVIS, et al., Defendants.

Carter Capps White, King Hall Civil Rights Clinic, Davis, CA, David M. Porter, Office of the Federal Defender, Sacramento, CA, Monica Knox, Federal Defender's Office, Sacramento, CA, for Plaintiffs.

Terence John Cassidy, Porter Scott, APC, Sacramento, CA, for Defendants.


LAWRENCE K. KARLTON, Senior District Judge.

On November 4, 2008, the California electorate passed Proposition 9, the "Victims' Bill of Rights Act of 2008: Marsy's Law." Proposition 9 changed numerous aspects of California's parole system, including the availability and frequency of parole hearings for prisoners not initially found suitable for parole.

Plaintiffs, eight individuals seeking to represent a class of California state prisoners currently serving life sentences with possibility of parole, bring a claim under 42 U.S.C. section 1983 arguing that these changes violate both the Ex Post Facto and Due Process clauses of the United States Constitution. Plaintiffs have also brought eight other claims not at issue in this order.

Plaintiffs move for a preliminary injunction barring enforcement of these changes. Defendants conversely move to dismiss plaintiffs' challenge to Proposition 9, and by the same motion seek dismissal of plaintiffs' ninth claim, which challenges Article V, Section 8(b) of the California Constitution. The ninth claim and the challenge thereto are the subject of a separate concurrently filed order.

The court resolves these motions on the papers and after oral argument. For the reasons stated herein, the court grants plaintiffs' motion for a preliminary injunction, and grants in part and denies in part defendants' motion to dismiss.


Proposition 9 changed numerous aspects of the California parole system. Plaintiffs challenge only the changes to the scheduling of parole hearings for prisoners who are not found suitable for parole at their initial hearing. To describe those changes, the court first surveys the California parole system, then discusses the hearing deferral process prior to Proposition 9, and finally describes the new system.

A. California's Process for Parole Determinations

California's parole system is overseen largely by the Board of Parole Hearings. The Board of Parole Hearings was formerly the Board of Prison Terms, and is hereinafter referred to as the Board. The Board has "the power to allow prisoners imprisoned in the state prisons ... to go upon parole outside the prison walls and enclosures." Cal. Pen.Code § 3040. The penal code provides statutory guidance for the exercise of this power, and the Board has enacted regulations further specifying the parole process, pursuant to its authority under California Penal Code § 5076.2.

All prisoners whose sentences include life but do not include "without possibility of parole," become "eligible" for parole after serving a minimum number of years, marked by the arrival of the prisoner's "minimum eligible parole date." Cal.Code Regs. tit. 15 §§ 2000(b)(3), (b)(67). This date is determined by the prisoner's sentence and any credit the prisoner has earned for good conduct. A prisoner with a straight "life" sentence and maximum good conduct credit becomes eligible for parole in seven years. Cal. Pen.Code § 3046(a)(1). Parole eligibility comes later for prisoners whose sentences specify a minimum term, e.g., "15 to life." For prisoners convicted of first or second degree murder prior to 1998, the minimum term is the term of years provided by their sentence—in the example above, fifteen years—reduced by up to one third for good behavior.

Once a prisoner is eligible for parole, the Board convenes a panel to determine whether the prisoner is to be released on parole, and if so, when.1 The first inquiry is whether the prisoner is "suitable" for release. Cal. Pen.Code § 3041. The panel "shall" find the prisoner suitable for parole, and move on to the next step of setting a release date,

unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting.

Id. § 3041(b). In making this determination, "the fundamental consideration in parole decisions is public safety ... which involves an assessment of an inmate's current dangerousness." In re Lawrence, 44 Cal.4th 1181, 1205, 82 Cal.Rptr.3d 169, 190 P.3d 535 (2008) (emphasis in original). The Board has promulgated regulations identifying various criteria that may be considered in determining whether the prisoner poses a risk. These factors include the circumstances, manner and motive of the commitment offense; whether the prisoner has a history of other criminal or violent acts; the prisoner's social history; the prisoner's past and present mental state, including psychological problems, attitude toward the crime and remorse; institutional behavior; the prisoner's understanding and plans for the future; age; and whether imposition of any special conditions may allow a prisoner who would otherwise be a risk to be safely released. Cal.Code Reg. tit. 15 §§ 2281(b)-(d). The California Supreme Court has upheld these regulations, but it has emphasized that any criterion is legally relevant only insofar as it is evidence in the particular case that the prisoner is a current risk to public safety. Lawrence, 44 Cal.4th at 1205-06, 82 Cal.Rptr.3d 169, 190 P.3d 535. The panel's determination as to whether these factors indicate suitability for parole is an exercise of the panel's judgment and discretion. In re Shaputis, 44 Cal.4th 1241, 1258, 82 Cal.Rptr.3d 213, 190 P.3d 573 (2008) (quoting In re Rosenkrantz, 29 Cal.4th 616, 654, 128 Cal.Rptr.2d 104, 59 P.3d 174 (2002)).2

Because suitability is a function of a prisoner's current dangerousness, a finding that the prisoner is unsuitable for parole is not permanent. If the panel determines that the prisoner is presently unsuitable for parole, the panel "defers" the parole hearing until a later date, at which point a panel will determine whether intervening changes have rendered the prisoner suitable. Cal. Pen.Code § 3041.5. The deferral process is discussed in the following sections.

If the panel instead determines that the prisoner is suitable for parole, the next step is to set a date for release. The panel determines the "base term" for the prisoner, which is based on "the gravity of the base offense, taking into account all of the circumstances of the crime." Cal.Code. Regs. tit. 15 § 2282(a). The actual calculation is performed by reference to matrices enumerating base terms for the circumstances of various offenses. Id. §§ 2282-2289. The panel then considers whether a departure from the base term is warranted by any of a number of other factors specifically enumerated by the regulations, such as the prisoner's good behavior. Id. § 2404. If the time already served by the prisoner exceeds the term calculated by this method, the Board tentatively designates the prisoner for release. If not, the board will set a release date for a time after the completion of this term. See In re Jackson, 39 Cal.3d 464, 474 n. 10, 216 Cal.Rptr. 760, 703 P.2d 100 (1985).

This system plainly contemplates that some prisoners will be found suitable for parole prior to the expiration of the term calculated in the second step. However, plaintiffs assert that "Since 1990, ... it is rare for a life prisoner to be found suitable for and granted parole before he is well beyond any punishment term that can be imposed for his offense."3 Pls.' Mem Supp. Mot. Prelim. Inj., 16 n. 11. Defendants have not contested this assertion. Plaintiffs further assert that "All the named plaintiffs are beyond any terms that would be (or have been) set for them and all will be released as soon as parole is granted and the Governor lets the grant stand." Id. The court notes, however, that the class definition is not so limited, and the class potentially includes unnamed class members who have not completed such terms.

After the panel makes a decision as to suitability or unsuitability, the Governor has an opportunity to review and reverse or modify that decision. See Cal. Const. Art. V § 8(b); Cal.Penal Code §§ 3041.1, 3041.2; In re Johnson, 8 Cal.App.4th 618, 10 Cal.Rptr.2d 460 (1992). The governor's review must be based on "the same factors which the parole authority is required to consider." Cal. Const. Art. V § 8(b). If the Governor reverses a grant of parole, the prisoner receives a one-year deferral and is considered again by the Board the following year.

The effect of the Penal Code section 3041 and the implementing regulations is to vest all California prisoners "whose sentences provide for the possibility of parole with a constitutionally protected liberty interest in the receipt of a parole release date." Irons v. Carey, 479 F.3d 658, 662 (9th Cir.2007) (citing Sass v. California Board of Prison Terms, 461 F.3d 1123, 1127 (9th Cir.2006), Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir.2003), and McQuillion v. Duncan, 306 F.3d 895, 901-901 (9th Cir.2002)). Notwithstanding the fact that class members were sentenced to life terms, the statute operates to create a protected expectation in release on parole for prisoners who match the criteria.

B. The Deferral Process Prior to Proposition 94

Prior to the amendments provided by Proposition 9, when a panel determined that a prisoner was unsuitable for parole, the length of deferral was determined by California Penal Code section 3041.5(b)(2) (2008). This section provided that when the Board found a prisoner unsuitable for parole,

The board shall hear each case annually thereafter,

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