Under Review: The Court of Appeals Cements the Governor's Power Over Parole

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 then-Gov. Arnold Schwarzenegger reversed that decision. Biggs challenged the legal grounds of the veto, claiming that it shouldn't be applicable to his case, which preceded the law, violating the ex post facto clause of the Constitution.

Last week, 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 Biggs' sentence “was the same before and after the implementation of [the] review [law],” and “the factors to be considered in determining whether to grant parole were left unchanged.”

The main issue was whether the change in the law produced “sufficient risk of increased punishment” for Biggs. Past court rulings, the Ninth Circuit noted, have not defined exactly what “sufficient risk” is.

So the basis for 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, a year into his sentence, the legislative policy shifted. 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's recent ruling sets a precedent, allowing the governor to reverse parole decisions for cases preceding the 1988 law.

Biggs's conviction stemmed from the murder of David Roberts in San Mateo County. Roberts had been set to testify in the trial of Biggs's boss, who was charged with grand theft for trafficking $3 million in stolen computer parts. 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, spending much of his 18 years there pursuing education. He earned a master's degree in business administration and Federal Aviation Administration certification.

While the denial of his petition holds some 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 Schwarzenegger did not review the case.

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