Tuesday, March 5, 2013
High Court Upholds Voter-Approved Deferrals of Parole Hearings
By KENNETH OFGANG, Staff Writer
The state Supreme Court yesterday unanimously rejected a constitutional challenge to a section of the 2008 victim’s rights initiative known as Marsy’s Law.
The court rejected arguments by Michael Vicks, imprisoned since 1983 for a string of violent felonies, that a provision of the initiative dealing with the scheduling of parole hearings constitutes an ex post facto law as applied to persons like himself whose crimes occurred before Marsy’s Law was enacted.
Prior to the law’s passage, an inmate serving an indeterminate sentence and found unsuitable for parole had the right to a new hearing within five years if convicted of murder, or within two years if convicted of lesser crimes. Under Marsy’s Law, the delay between hearings can be as long as 15 years, but the inmate can petition to have the hearing date moved up based on a change of circumstances or new information.
Vicks had his first suitability hearing in 2009. He was found unsuitable for release based on the “horrific” nature of his crimes, which involved armed assaults on women in order to steal their purses; the results of his psychological examinations; and his lack of “insight” into his crimes, as indicated by his continuing insistence that he had nothing to do with the crimes other than to find and keep the victims’ purses.
The board voted to delay his next hearing, pursuant to Marsy’s Law, for five years.
Chief Justice Tani Cantil-Sakauye, writing for the Supreme Court, said there was no ex post facto violation because the law does not increase the punishment for a crime. Under U.S. Supreme Court precedent, she explained, a change in parole procedures does not violate the Ex Post Facto Clause unless, in the context of the parole system as a whole, there is a likelihood that the change will prolong the inmate’s incarceration.
Because the board has “unfettered” discretion to move up a hearing, the chief justice said, there is nothing inherent in the framework of the law that would delay an inmate’s release.
The chief justice went on to say that in Vicks’ specific case, there was no reason to believe that his ultimate parole release date would be impacted by the change. She noted that Vicks is serving a life sentence, with possibility of parole, consecutive to a determinate sentence of more than 37 years.
“In light of the circumstances of his kidnapping offenses, such as the movement of the victims, the sexual assaults, and the use of a firearm, it appears under the matrices governing the calculation of his base term that he would be required to remain incarcerated even if he were found suitable for parole at this time,” the chief justice wrote.
The case is In re Vicks, 13 S.O.S. 1058.
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