Governor Retains Parole Veto Power

The 1988 law that gives California governors the power to review parole board decisions in any murder case is constitutional, a federal appeals court said Wednesday.

The 9th U.S. Circuit Court of Appeals rejected the claim by a man convicted of murder in 1987 and sentenced to 25 years to life in prison that the law passed after his sentence violated the Constitution’s Ex Post Facto Clause.  Ex Post Facto clause bars any law that would punish someone for conduct made illegal only after they committed the act.  It is known as the retroactivity law.

In this case, Jeffrey J. Biggs was convicted of murder in 1987 and the parole board found him suitable for parole in 2005.  But then-Gov. Arnold Schwarzenegger reversed the parole board decision.  Biggs unsuccessfully challenged the decision in state court.

Although Biggs was ultimately released on parole in August 2010, he continued his challenge to the law in federal court.  The district judge ruled his challenge to the 1988 law was not moot.

The 9th Circuit agreed with the California Supreme Court holding on this issue in an unrelated case.  “The California Supreme Court was faced with precisely the same question we face: whether retroactive application of gubernatorial review… violates Ex Post Facto Clause of the U.S. Constitution.”

The terms of the prisoner’s sentence was the same before and after the implementation of review, and that the factors to be considered in determining whether to grant parole were left unchanged.  The only change was the parole board review granting or denying parole, according to Judge Jay Bybee.

The law simply removes the parole board’s final decisionmaking authority and allows the governor the power to affirm or reverse the board’s decision, Bybee said.

The decision does not affect Biggs’ parole release, instead the governor retains review power in future cases.

Case:  Biggs v. Sec’y of Dept. of Corrections, No. 11-18021