Proposition 9′s Parole Revocation Changes On Hold
A federal court ordered that certain provisions of Prop. 9 are not to go into effect until the court hears more on the matter in March, 2009. We explain what that means.
Here’s the whole story of the Prop. 9 parole issue and where it stands as of December 2008.
How Parole and Parole Revocation Work In California
If you are let out of prison on parole, you’re not completely off the hook. You have to meet a whole slew of conditions including meeting with your parole officer regularly, submitting to random drug testing, not hanging out with certain people or going to certain places, getting arrested for a new crime — things like that.
If you violate any of your parole conditions, you will likely get sent back to prison for the remainder of your sentence. Before you get sent back to prison, you are entitled to a hearing. In 2004, the state of California settled a lawsuit with parolees agreeing to procedures for the California parole process. These procedures include:
- All accused parole violators have the right to an attorney during the parole revocation proves.
- Before the actual parole revocation hearing, parolees have the right to a “probable cause hearing” to determine whether it’s more-likely-than-not that they actually violated their parole.
Prop 9 Changes to Parole Revocation
But once Prop 9 was enacted some changes were made. Under Prop 9:
- There’s no automatic right to a state-appointed attorney. A parolee only gets an appointed attorney if he indigent and the the charges or defense argument is “sufficiently complex”; or if the parolee has limited mental or educational capacity or “appears incapable of speaking in his or her own defense.”
What’s less clear is what happens if a parolee is allowed to hire a private lawyer without being subject to the same Prop-9 criteria for appointed counsel.
- Hearsay evidence is admissible in parole revocation hearings even if the parolee does not have the opportunity to cross-examine the witness who made the statement.
Shortly after the election, the law was challenged on the grounds that these changes violated the 2004 court order and also violated the due process clause of the California constitution. The court will hear the challenge in March and ordered that the parole-revocation process follow the Pre-Prop 9 rules.
Alberto Roldan, the Corrections Department lawyer who is required by law to defend the Prop 9 parole revocation changes told the SacBee:
We have a responsibility to enforce state law. They voted “thumbs up” on Proposition 9. ”
The next thing is to figure out a way to harmonize the injunction and the law, Roldan said. If there are any conflicts, Judge Karlton will have to decide how they should be resolved, and we’ll go from there.”
Bottom line: Roldan knows that the Prop 9 parole revocation changes won’t hold up.
As we’ve said time and again, Prop. 9, like all ballot propositions, should have been vetted by legal experts who could have taken out he parts or Prop 9 that are likely unconstitutional or already covered by other state laws. Oh well.