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California U.S. District Court Holds that Prop. 9 Does Not Supersede Previously-Issued Injunction Regarding Parole Revocation Procedures
by John E. Dannenberg
Senior U.S. District Court Judge Lawrence K. Karlton has upheld a 2004 injunction that conflicts with the parole revocation provisions of California’s so-called Victims’ Bill of Rights, also known as Marsy’s Law. Marsy’s Law, enacted in 2008 as Proposition 9, a ballot initiative, granted entitlements to crime victims by amending the state constitution and adding § 3044 of the California Penal Code.
Prop. 9 restricted certain procedural rights for parolees at revocation hearings, including: 1) a probable cause hearing no later than 15 days following arrest for violation of parole; 2) an evidentiary revocation hearing no later than 45 days following arrest for a parole violation; 3) counsel at state expense only if the parole board or its hearing officers determine that the parolee is indigent and appears incapable of speaking effectively in his own defense; and 4) parole revocation determinations shall be based on a preponderance of the evidence, including documentary evidence, direct testimony or hearsay evidence offered by parole agents, peace officers or victims.
A federal suit challenging California’s parole revocation procedures, Valdivia v. Brown, had been filed in 1994, and the state agreed to a permanent injunction in that case in 2004. [See: PLN, April 2004, p.24]. The district court found in 2009 that provisions of Prop. 9 related to parole revocation procedures did not supersede the Valdivia injunction, and denied the state’s motion to modify the injunction. [See: PLN, Nov. 2009, p.42]. That ruling was reversed by the Ninth Circuit in March 2010, which remanded the case to the district court to “reconcile the Injunction with California law.” See: Valdivia v. Schwarzenegger, 599 F.3d 984 (9th Cir. 2010), cert. denied.
Following remand, on January 24, 2012, Judge Karlton held that Prop. 9’s parole revocation provisions do not provide the minimum due process protections guaranteed by the U.S. Constitution and two U.S. Supreme Court decisions, Morrissey v. Brewer and Gagnon v. Scarpelli.
The due process requirements absent from Prop. 9 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,” Judge Karlton wrote.
The district court held that the 2004 injunction entered in Valdivia was “necessary to remedy constitutional violations” created four years later by Prop. 9. The injunction provided, generally:
1) A parole revocation hearing shall be held no later than 35 calendar days from the date of the placement of a parole hold;
2) Defendants shall hold a probable cause hearing no later than 10 business days after the parolee has been served with notice of the charges and his or her rights, which shall occur no later than three business days from the placement of a parole hold;
3) Defendants shall appoint counsel for all parolees at the beginning of the Return to Custody Assessment stage of the revocation proceedings. Defendants shall provide an expedited probable cause hearing upon a sufficient offer of proof by appointed counsel that there is a complete defense to all parole violation charges that form the basis of a parole hold;
4) At probable cause hearings, parolees shall be allowed to present evidence to defend or mitigate against the charges and proposed disposition. Such evidence shall be presented through documentary evidence or the parolee’s testimony, either or both of which may include hearsay testimony;
5) The use of hearsay evidence shall be limited by the parolees’ confrontation rights in the manner set forth under controlling law in United States v. Comito, 177 F.3d 1166 (9th Cir. 1999); and
6) Parolees’ counsel shall have the ability to subpoena and present witnesses and evidence to the same extent and under the same terms as the state.
Judge Karlton found unconstitutional Prop. 9’s provision restricting parolees to the right to an attorney at the state’s expense only if the parolee is indigent and appears incapable of speaking for himself. The district court held that that provision overly restricted the parole board’s discretion and allowed a parolee to go uninformed of his right to request counsel.
Most importantly, the court stated, a right to an attorney is presumed if the parolee presents a credible claim that he did not violate parole or a credible claim of mitigating circumstances. Thus, the Valdivia injunction “is a properly tailored remedy, aimed at curing violations of due process rights.”
Judge Karlton also disallowed provisions of Prop. 9 entrusting to the Board of Parole Hearings “the safety of victims and the public,” and prohibiting the board from considering the cost or burden to taxpayers that may result from continually sending parolees back to prison.
The district court found the Valdivia injunction directs the board to use remedial sanctions rather than parole revocation when appropriate, thus reducing the number of parolees returned to custody and the overall prison population – consistent with the recent U.S. Supreme Court ruling in Brown v. Plata, which requires the state to substantially reduce its prison population. [See: PLN, July 2011, p.1].
Prop. 9 further violates the Constitution by denying a parolee a “neutral and detached” hearing body to make parole revocation decisions, Judge Karlton stated. Writing that the state places “a thumb on the scales of justice and tip[s] the balance towards incarceration,” he found that “[b]y entrusting the board only with the safety of victims and the public, [Prop. 9] strips the board of its duty to balance those factors with a parolee’s liberty interest.”
The district court also rejected another provision of Prop. 9 that permits the unconditional use of hearsay evidence at parole revocation hearings, because it denies a parolee the “right to confront and cross examine adverse witnesses ... unless the government shows good cause.”
The sole remaining parole revocation provision of Prop. 9 that survived the court’s scrutiny is the requirement that a revocation hearing be convened no later than 45 days after the placement of a parole hold, as opposed to the 35 days required by the 2004 injunction in Valdivia. Therefore, the injunction was modified to provide for 45 days to hold a revocation hearing after placement of a parole hold, rather than 35 days.
In all other respects, the state’s motion to modify the injunction was denied. See: Valdivia v. Brown, U.S.D.C. (E.D. Cal.), Case No. S-94-671 LKK/GGH; 2012 WL 219342.
Senior U.S. District Court Judge Lawrence K. Karlton has upheld a 2004 injunction that conflicts with the parole revocation provisions of California’s so-called Victims’ Bill of Rights, also known as Marsy’s Law. Marsy’s Law, enacted in 2008 as Proposition 9, a ballot initiative, granted entitlements to crime victims by amending the state constitution and adding § 3044 of the California Penal Code.
Prop. 9 restricted certain procedural rights for parolees at revocation hearings, including: 1) a probable cause hearing no later than 15 days following arrest for violation of parole; 2) an evidentiary revocation hearing no later than 45 days following arrest for a parole violation; 3) counsel at state expense only if the parole board or its hearing officers determine that the parolee is indigent and appears incapable of speaking effectively in his own defense; and 4) parole revocation determinations shall be based on a preponderance of the evidence, including documentary evidence, direct testimony or hearsay evidence offered by parole agents, peace officers or victims.
A federal suit challenging California’s parole revocation procedures, Valdivia v. Brown, had been filed in 1994, and the state agreed to a permanent injunction in that case in 2004. [See: PLN, April 2004, p.24]. The district court found in 2009 that provisions of Prop. 9 related to parole revocation procedures did not supersede the Valdivia injunction, and denied the state’s motion to modify the injunction. [See: PLN, Nov. 2009, p.42]. That ruling was reversed by the Ninth Circuit in March 2010, which remanded the case to the district court to “reconcile the Injunction with California law.” See: Valdivia v. Schwarzenegger, 599 F.3d 984 (9th Cir. 2010), cert. denied.
Following remand, on January 24, 2012, Judge Karlton held that Prop. 9’s parole revocation provisions do not provide the minimum due process protections guaranteed by the U.S. Constitution and two U.S. Supreme Court decisions, Morrissey v. Brewer and Gagnon v. Scarpelli.
The due process requirements absent from Prop. 9 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,” Judge Karlton wrote.
The district court held that the 2004 injunction entered in Valdivia was “necessary to remedy constitutional violations” created four years later by Prop. 9. The injunction provided, generally:
1) A parole revocation hearing shall be held no later than 35 calendar days from the date of the placement of a parole hold;
2) Defendants shall hold a probable cause hearing no later than 10 business days after the parolee has been served with notice of the charges and his or her rights, which shall occur no later than three business days from the placement of a parole hold;
3) Defendants shall appoint counsel for all parolees at the beginning of the Return to Custody Assessment stage of the revocation proceedings. Defendants shall provide an expedited probable cause hearing upon a sufficient offer of proof by appointed counsel that there is a complete defense to all parole violation charges that form the basis of a parole hold;
4) At probable cause hearings, parolees shall be allowed to present evidence to defend or mitigate against the charges and proposed disposition. Such evidence shall be presented through documentary evidence or the parolee’s testimony, either or both of which may include hearsay testimony;
5) The use of hearsay evidence shall be limited by the parolees’ confrontation rights in the manner set forth under controlling law in United States v. Comito, 177 F.3d 1166 (9th Cir. 1999); and
6) Parolees’ counsel shall have the ability to subpoena and present witnesses and evidence to the same extent and under the same terms as the state.
Judge Karlton found unconstitutional Prop. 9’s provision restricting parolees to the right to an attorney at the state’s expense only if the parolee is indigent and appears incapable of speaking for himself. The district court held that that provision overly restricted the parole board’s discretion and allowed a parolee to go uninformed of his right to request counsel.
Most importantly, the court stated, a right to an attorney is presumed if the parolee presents a credible claim that he did not violate parole or a credible claim of mitigating circumstances. Thus, the Valdivia injunction “is a properly tailored remedy, aimed at curing violations of due process rights.”
Judge Karlton also disallowed provisions of Prop. 9 entrusting to the Board of Parole Hearings “the safety of victims and the public,” and prohibiting the board from considering the cost or burden to taxpayers that may result from continually sending parolees back to prison.
The district court found the Valdivia injunction directs the board to use remedial sanctions rather than parole revocation when appropriate, thus reducing the number of parolees returned to custody and the overall prison population – consistent with the recent U.S. Supreme Court ruling in Brown v. Plata, which requires the state to substantially reduce its prison population. [See: PLN, July 2011, p.1].
Prop. 9 further violates the Constitution by denying a parolee a “neutral and detached” hearing body to make parole revocation decisions, Judge Karlton stated. Writing that the state places “a thumb on the scales of justice and tip[s] the balance towards incarceration,” he found that “[b]y entrusting the board only with the safety of victims and the public, [Prop. 9] strips the board of its duty to balance those factors with a parolee’s liberty interest.”
The district court also rejected another provision of Prop. 9 that permits the unconditional use of hearsay evidence at parole revocation hearings, because it denies a parolee the “right to confront and cross examine adverse witnesses ... unless the government shows good cause.”
The sole remaining parole revocation provision of Prop. 9 that survived the court’s scrutiny is the requirement that a revocation hearing be convened no later than 45 days after the placement of a parole hold, as opposed to the 35 days required by the 2004 injunction in Valdivia. Therefore, the injunction was modified to provide for 45 days to hold a revocation hearing after placement of a parole hold, rather than 35 days.
In all other respects, the state’s motion to modify the injunction was denied. See: Valdivia v. Brown, U.S.D.C. (E.D. Cal.), Case No. S-94-671 LKK/GGH; 2012 WL 219342.
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Related legal cases
Valdivia v. Brown
| Year | 2012 |
|---|---|
| Cite | U.S.D.C. (E.D. Cal.), Case No. S-94-671 LKK/GGH; 2012 WL 219342 |
| Level | District Court |
| Injunction Status | N/A |
Valdivia v. Schwarzenegger
| Year | 2009 |
|---|---|
| Cite | 599 F.3d 984 (9th Cir. 2010) |
| Level | Court of Appeals |
| Conclusion | Bench Verdict |
| Injunction Status | N/A |