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Thursday, May 30, 2013

Parole Board Reversal by Former Gov. Schwarzenegger Didn't Violate Ex Post Facto

Posted By on Thu, May 30, 2013 at 7:00 AM

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In 1987, Jeffrey Biggs was convicted of murder. A judge sentenced him to 25 years to life in prison with the possibility of parole. In 1988, California passed Proposition 89, which gave the governor power to reverse parole-board decisions involving prisoners locked up for murder.

Those two events intersected in 2005 when the parole board deemed Biggs fit for release, but Gov. Arnold Schwarzenegger reversed that decision. Biggs challenged the legal grounds of the veto, claiming that it retroactively applied the law, violating the ex post facto clause of the Constitution.

On Wednesday, though, the Ninth Circuit Court of Appeals ruled against Biggs, affirming the decisions of the lower courts. Judge Jay S. Bybee, speaking for the three judges, wrote in the decision that ex post facto was not violated because "the term of the petitioner'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 main issue was whether the change in law produced "sufficient risk of increased punishment" for Biggs. Past court rulings, the Ninth Circuit noted, have not defined exactly what "sufficient risk" is. Rather it's a matter of degrees.

So the basis of the Ninth Circuit's decision is that the passage of Proposition 89 did not meet that standard: Biggs was not necessarily facing a much greater likelihood of a longer prison stay when the legislative policy shifted a year into his sentence. That the new law would, in fact, lengthen his time behind bars was hypothetical and unpredictable at the time of its entry into the books.

The court cited California Department of Corrections v. Morales, a 1995 U.S. Supreme Court case, as precedent to support its reasoning. In Morales, Bybee wrote, "The Court held that because the change in law created only 'speculative and attenuated risk' of increased punishment, retroactive application of the law did not violate the Ex Post Facto Clause."

Before reaching the court of appeals, Biggs' case passed through the Superior Court and Federal Court. At both levels, his habeas petition was denied.

Briggs' conviction stemmed from the murder of David Roberts. Roberts had been set to testify in the trial of Biggs' boss, who was charged with grand theft for trafficking $3 million worth of computer parts. According to court documents, Biggs was present at the time of the murder and returned to the crime scene to help co-conspirators hide the body.

He kept a clean record while in prison, receiving only one minor disciplinary violation over 18 years. He spent much of that time pursuing education, including earning a Master's degree in Business Administration and Federal Aviation Administration certification.

While the denial of his habeas petition holds a degree of legal importance as it relates to future cases, it doesn't matter as much to Biggs as it used to. The parole board once again approved him for release in 2010, and this time the Schwarzenegger did not review the case.

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Albert Samaha


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