Friday, June 15, 2001
Page 1
State High Court Rejects Ex Post Facto Challenge to Law on Pardons for Some Sex Offenders
By a MetNews Staff Writer
A 1997 law prohibiting the issuance of certificates of rehabilitation and pardon to persons convicted of certain violent sex crimes may be applied to an offender whose crime was committed before the statute took effect, the state Supreme Court ruled yesterday.
Justice Marvin Baxter, writing for a unanimous court, rejected Samuel Ansell Jr.’s claim that the amendment to Penal Code Sec. 4852.01 is an ex post facto law. The law prohibits issuance of the certificate to those convicted of aggravated sodomy, sexual assault on a child or dependent adult, continuing sexual abuse of a child, aggravated oral copulation, or sexual penetration of a child with a foreign object.
Ansell was convicted of oral copulation with a minor and aggravated oral copulation in 1980 and committed to a state hospital for an indeterminate term. He was released in 1983, placed on probation for five years, and ordered to register as a sex offender.
He applied for a certificate of pardon in 1998. The governing statutes generally permit the issuance of a certificate by a judge to a defendant who has completed probation or a prison term and can show, following a probation officer’s investigation, that he or she has been rehabilitated.
The certificate is forwarded to the governor. It is treated as a judicial recommendation and alleviates the need for the filing of a direct application for a pardon.
As with the direct application, restoration of the certified offender’s civil rights, lost upon conviction, is entirely within the discretion of the governor.
The state’s highest court agreed with the attorney general, a Sacramento Superior Court, and the Third District Court of Appeal that denial of the certificate to Ansell wasn’t punishment. Ansell, Baxter noted, has only been deprived of one of the statutory means by which a pardon may be sought.
“[B]ecause a certificate of rehabilitation has no direct or indirect ameliorative effect on the ‘punishment’ for a crime, as that word is defined for ex post facto purposes, a postcrime amendment which restricts the availability of the certificate, and thus relegates offenders like Ansell to other means of seeking a postsentence pardon, does not increase such punishment in violation of the ex post facto clause,” Baxter wrote.
The certificate of rehabilitation, Baxter explained, was created by the Legislature during World War II to relieve the governor’s office of the burden of dealing with pardon applications received from ex-felons who were otherwise barred from serving in the military and working in defense industries.
The procedure has always been alternative to the earlier-enacted direct application procedure, the justice explained, declaring that there is “no statutory support” for Ansell’s claim that the amendment vindictively deprives him and similar offenders of the opportunity to seek pardons.
“Like the certificate of rehabilitation scheme…the direct application procedure contemplates a thorough investigation of all pardon candidates, including any rehabilitative steps taken after sentence is served,” the justice wrote.
In affirming the Court of Appeal, the Supreme Court overruled an earlier Court of Appeal decision, Sovereign v. People (1983) 144 Cal.App.3d 143. That decision held, on ex post facto grounds, that an increase in the period of time that a convicted felon had to wait after release from prison before applying for a certificate of rehabilitation could not be applied to those convicted before the law took effect.
The Sovereign court was wrong, Baxter said, because it relied on an overly expansive definition of punishment, failed to analyze whether the Legislature actually intended the new law to be punitive, and overlooked relevant precedent treating imposition of legal disabilities on felons as regulatory measures rather than punishment.
The case is People v. Ansell, 01 S.O.S. 2834
Copyright 2001, Metropolitan News Company