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Judge Strikes Down Parole Revocation Provisions in California Law

U.S. District Judge Lawrence Karlton struck down unconstitutional parts of California’s Victims’ Bill of Rights that governs parole revocation.

Voters approved Proposition 9 as law on the 2008 ballot.   It was a sweeping amendment to the state constitution conferring a long list of entitlements on crime victims.  The sections dealing with parole revocation were made part of the state’s Penal code.

According to Judge Karlton’s ruling, those sections fall short of providing the minimum due process guaranteed by the constitution and two U.S. Supreme Court decisions (Morrissey v. Brewer – 1972 and Gagnon v. Scarpelli – 1973).

In a 26-page order, Judge Karlton wrote the requirements missing from California’s Law 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,"

The judge found to be unconstitutional the provision of Proposition 9 that parolees have a right to an attorney at the state's expense only if the parolee is indigent and appears incapable of speaking for himself.  Karlton said the California law overly restricted a parole agency's discretion and allowed a parolee to go uninformed of his right to request counsel.

A right to a lawyer is presumed if the parolee makes a credible claim that he did not violate parole, or credible claim of mitigating circumstances.  Karlton concluded it "is a properly tailored remedy, aimed at curing violations of due process rights."

Another area targeted by Karlton is the state law provisions entrusting to the Board of Parole Hearings "the safety of victims and the public," and prohibiting the board from weighing the cost or burden to the taxpayers that may result from continually sending people back to prison.

Karlton’s injunction directs the board to use remedial sanctions rather than parole revocation when appropriate, reducing the number of returnees and the overall inmate population.

Other Constitution violations in Proposition 9 include denying a parolee a "neutral and detached" hearing body to make parole revocation decisions and allowing the use of hearsay evidence at parole revocation hearings, denying a parolee the "right to confront and cross examine adverse witnesses unless the government shows good cause

Only two paragraphs of the parole revocation statue were left untouched.  

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