ORDER

LAWRENCE K. KARLTON, Senior District Judge.

Plaintiffs in this certified class action are inmates in California state prisons who are serving terms of life imprisonment with the possibility of parole. Plaintiffs assert that Propositions 9 and 89 have retrospectively increased their punishments, in violation of the Ex Post Facto Clause of the U.S. Constitution.

Proposition 9 amended California law to, among other things, increase the time between parole hearings. 2008 Cal. Legis. Serv. Prop. 9 (West), amending in pertinent part, Cal.Penal Code § 3041.5(b)(3) (extending deferral periods) and (b)(4) and (d) (advance hearings). The class challenging this Proposition consists of "`all California state prisoners who have been sentenced to a life term with the possibility of parole for an offense that occurred before November 4, 2008.'" ECF No. 340 ¶ 1.

Proposition 89 amended the California Constitution to grant the Governor the authority to review parole decisions of California's Board of Parole Hearings (the "Board"), regarding parole decisions of prisoners convicted of murder. 1988 Cal. Legis. Serv. Prop. 89 (West), amending Cal. Const. Art. V, § 8. The class challenging this Proposition consists of "`all California state prisoners who have been sentenced to a life term with possibility of parole for an offense that occurred before November 8, 1988.'" ECF No. 340 ¶ 2.

The matter came on for trial before the undersigned from June 27, 2013 through July 2, 2013. For the reasons that follow, the court finds that both Propositions, as implemented, have violated the ex post facto rights of the class members.

I. THE EX POST FACTO CLAUSE

"The Constitution prohibits both federal and state governments from enacting any `ex post facto Law.'" Peugh v. U.S., 569 U.S. ___, 133 S.Ct. 2072, 2081, 186 L.Ed.2d 84 (2013).1 For purposes of this case, an "ex post facto" law is one "`that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.'" Id., 133 S.Ct. at 2078 (quoting Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648 (1798)). "The key ex post facto inquiry is the actual state of the law at the time the defendant perpetrated the offense." Watson v. Estelle, 886 F.2d 1093, 1096 (9th Cir.1989). Accordingly, as relevant to this case, the Ex Post Facto Clause is violated if either Proposition, as implemented by the decision-maker — the Board in the case of Proposition 9, or the Governor in the case of Proposition 89 — creates a "significant risk" that its retroactive application to the class would result in "a longer period of incarceration" for them than they would have received under the law in effect when their crimes were committed. See Garner v. Jones, 529 U.S. 244, 255, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000); see also, Peugh, 133 S.Ct. at 2084 (a "retrospective increase in the [Sentencing] Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation").

II. PROPOSITION 9: INCREASED TIME BETWEEN PAROLE HEARINGS

The focus of this court's inquiry is fairly narrow, thanks to a substantial body of law on the effect of the Ex Post Facto Clause on retrospective changes in the availability of parole hearings.

In California Dept. of Corrections v. Morales, 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995), the Supreme Court rejected an ex post facto challenge to a 1981 amendment to Cal.Penal Code § 3041.5. The amendment abolished mandatory annual parole hearings for prisoners convicted of more than one homicide, even when annual hearings were mandatory when the crimes were committed. Instead, the enactment authorized the parole board to defer subsequent suitability hearings for up to three years if the Board found that it was "not reasonable to expect that parole would be granted at a hearing during the following years." Morales, 514 U.S. at 503, 115 S.Ct. 1597.

Morales teaches that the mere fact that parole hearings are less frequent than they were when a prisoner's crime was committed, is not, by itself, sufficient to establish an ex post facto violation. Rather,

Garner, 529 U.S. at 250, 120 S.Ct. 1362 (quoting Morales, 514 U.S. at 509, 115 S.Ct. 1597); Gilman v. Schwarzenegger, 638 F.3d 1101, 1106 (9th Cir.2011) ("[a] retroactive procedural change violates the Ex Post Facto Clause when it `creates a significant risk of prolonging [an inmate's] incarceration'").

Similarly, in Garner, the Supreme Court rejected an ex post facto challenge to the Georgia parole board's decision to do away with mandatory parole hearings every three (3) years. That board amended its rules so that it could defer parole hearings for up to eight (8) years. "[T]he Board's stated policy is to provide for reconsideration at 8-year intervals `when, in the Board's determination, it is not reasonable to expect that parole would be granted during the intervening years.'" Garner, 529 U.S. at 254, 120 S.Ct. 1362. However, the Board "could have shortened the interval" had it wished to do so. Id. at 248, 120 S.Ct. 1362.

Garner teaches that no ex post facto violation will be found where parole hearings can be at longer intervals than was the case when the prisoner's crime was committed, but the parole board has the discretion to conduct hearings at the same interval it could when the prisoner's crime was committed.

Plaintiffs correctly point out that Morales and Garner are not directly on point, because the challenged law changes involved in those cases only authorized a longer deferral period, and only when the Board determined that parole was not likely to be granted in the intervening years. Proposition 9, on the other hand, does away with the previously authorized annual parole hearings in all cases, even if the prisoner conclusively showed that he would be suitable for parole in a year. See Gilman, 638 F.3d at 1108 ("Proposition 9 eliminated the Board's discretion to set a one-year deferral period, even if the Board were to find by clear and convincing evidence that a prisoner would be suitable for parole in one year").

In Gilman, the Ninth Circuit made clear that

Gilman, 638 F.3d at 1106 (quoting Garner, 529 U.S. at 255, 120 S.Ct. 1362). The Ninth Circuit reversed this court's grant of a preliminary injunction for plaintiffs, finding that even if plaintiffs could show that there was a significant risk of longer incarceration under Proposition 9, plaintiffs failed to establish that the "advance hearing" procedure did not avoid that problem.

In a recent case addressing the Sentencing Guidelines, the Supreme Court made clear that it meant what it said in Garner, that is, a law that creates a sufficient risk of retrospectively increasing a prisoner's sentence is a violation of the Ex Post Facto Clause. Peugh, 133 S.Ct. at 2084.

A. Increased Deferral Periods: Findings.

1. On November 4, 2008, California voters approved "Proposition 9," also known as "the Victims' Bill of Rights Act of 2008: Marsy's Law." See In re Vicks, 56 Cal.4th 274, 278, 153 Cal.Rptr.3d 471, 295 P.3d 863 (2013).

2. The law became effective "immediately,"2 and was made expressly applicable "to all proceedings held after" its effective date. 2008 Cal. Legis. Serv. Prop. 9, § 10 (West). The board, however, did not instantaneously implement the new law. Rather, the Board implemented the law — that is, started using Proposition 9 to determine the deferral periods — on December 15, 2008. Exh. 1 (ECF No. 259-1) at 7 (Exhibit A to Exh. 1).

3. As relevant here, Proposition 9 "amended section 3041.5 [of the California Penal Code] to increase the time between parole hearings." Vicks, 56 Cal.4th at 283, 153 Cal.Rptr.3d 471, 295 P.3d 863.

4. Before Proposition 9, life prisoners received annual parole suitability hearings, as required by the prior versions of Cal.Penal Code § 3041.5, unless the Board found that it was not reasonable to expect that parole would be granted during the following year. In those cases, the Board deferred the next parole hearing for up to two years, and for up to five years for prisoners convicted of murder, as authorized by the old law. See 1994 Cal. Legis. Serv. Ch. 560, § 1 (S.B. 826) (West), amending Cal.Penal Code § 3041.5(b)(2)(A).

5. All the crimes for which Proposition 9 class members were convicted occurred before Proposition 9.3 ECF No. 340 ¶ 1. The class members were all convicted and sentenced to life in prison with the possibility of parole, before Proposition 9. After Proposition 9, all Proposition 9 class members remained sentenced to life in prison with the possibility of parole. See Undisputed Facts ("UF"), Final Pretrial Order (ECF No. 473) ¶ III(2) (hereinafter "UF ¶ 2").

6. In the two-year period before Proposition 9 was implemented, January 2007 through December 2008, the Board held approximately 6,550 parole suitability hearings for life prisoners. Parole was granted in approximately 6.4% of the hearings. Of the cases in which parole was denied, two-thirds resulted in one- or two-year deferrals; approximately 34.7 percent resulted in one-year deferrals and approximately 31.5 percent resulted in two-year deferrals. UF ¶ 5.

7. The deferrals for those years were governed by the 1994 amendments to Cal.Penal Code § 3041.5. 1994 Cal. Legis. Serv. 560 (SB 826) (West). Under that law, the Board was required to hold annual parole hearings unless "the Board finds that it is not reasonable to expect that parole would be granted at a hearing during the following year." Id.4 Therefore, it is a reasonable inference that the parole board found that for the life prisoners whose parole hearings came before them during that time, it was reasonable to expect that parole would be granted for 35% of them after one year.

8. Under the same law, where the Board found that an annual review was not warranted, it was required to impose a deferral of two years, unless "the Board finds that it is not reasonable to expect that parole would be granted at a hearing during the following years [up to five years for prisoners convicted of murder]." Id. Therefore, it is a reasonable inference that the Board found that for the 32% of life prisoners whose parole hearings resulted in two year deferrals during that time, it was reasonable to expect that parole would be granted for them after two years. Otherwise, the deferral periods would have been 3, 4 or 5 years pursuant to the statute.

9. It is, further, a reasonable inference that of all the inmates who had parole hearings during the two years prior to implementation of Proposition 9, about two-thirds of them were determined by the Board to be ready for parole within one or two years.

10. In the two-year period after Proposition 9 was implemented, January 2009 through December 2010, the Board held approximately 6,100 hearings. At those hearings, parole was granted in approximately 17 percent of the cases.5 Of the cases in which parole was denied, approximately 48.4 percent resulted in the lowest deferral possible under Proposition 9, three years. UF ¶ 6.6

11. For the period 2007 to 2008, before the passage of Proposition 9, the average deferral period for all life prisoners who were denied parole at their hearing, was 2.3 years. See Plaintiffs' Exh. 51.7 Approximately 35% of those deferrals were for the minimum period allowed by law, one year. An additional 32% of the deferrals were for two years. UF ¶ 5.

12. Following the passage of Proposition 9, the average deferral periods for all life prisoners decided under the new law were as follows: 4.84 years in 2009; 5.11 years in 2010; 5.08 years in 2011; 4.42 years in 2012. See Defendants' Exh. U.8 Almost 56% of those deferrals were for the minimum period then allowed by law, three years. See Defendants' Exh. U.

B. Increased Deferral Periods: Conclusions.

The evidence shows that the average deferral times for Proposition 9 class members has increased since the implementation of that law. The Ninth Circuit cautioned however, that it was not correct simply to assume that "more frequent parole hearings produce more frequent grants of parole rather than more frequent denials of parole." Gilman, 638 F.3d at 1108 n. 6 (emphasis in text).

The evidence adduced at trial shows however, that the increased deferral periods did not happen randomly, or only to those prisoners least likely to be granted parole. Rather, the evidence shows that in the two years prior to Proposition 9, the Board imposed deferral periods of one or two years on two-thirds of all the prisoners who were denied parole. These are the prisoners who are the most likely to be paroled within a year or two. That is because the statute in effect at the time contemplated that the Board would grant deferrals of one or two years only when there was a reasonable expectation that the prisoner would be ready for parole within that time. See 1994 Cal. Legis. Serv. 560 (West).

Of course, those prisoners were under no guarantee of release on parole. However, if the statute had any meaning, and the Board applied the statute as written, then it is a reasonable inference that there existed a reasonable expectation that those prisoners would be paroled within the following year or two, if they could get to a parole hearing during that time. Yet, under Proposition 9, these same prisoners cannot get to a hearing before at least three years, the new minimum deferral period. Cal.Penal Code § 3041.5(b)(3)(C). It follows that since there was a reasonable expectation that these prisoners would be paroled within one or two years, but Proposition 9 prevents them from getting to a hearing before three years, there is a significant risk that their incarcerations are being lengthened by Proposition 9.

Even as to those prisoners who received deferral periods of three, four or five years under the old law, Proposition 9 has created a significant risk of longer incarceration. Under the old law, deferrals of three or four years would be imposed if the Board determined that there was a reasonable expectation that the prisoner would be paroled during that time. In other words, at the time their crimes were committed, these prisoners' incarcerations (beyond a minimum term), were to continue only as long as the Board found that the prisoner was not suitable for parole.

Under Proposition 9 however, the prisoner's incarceration would continue indefinitely, unless the Board found "clear and convincing evidence" that he was suitable for parole in 3, 5, 7 or 10 years.9 "Clear and convincing evidence," the Proposition 9 standard, refers to a quantum and quality of evidence that "could place in the ultimate factfinder an abiding conviction that the truth of its factual contentions are `highly probable.'" Colorado v. New Mexico, 467 U.S. 310, 316, 104 S.Ct. 2433, 81 L.Ed.2d 247 (1984) (emphases added).

Since the old law and Proposition 9 are thus governed by these two completely different standards, it is quite possible that a prisoner could satisfy the old-law standard, but never satisfy the Proposition 9 standard.

Indeed, this logically seems to be at greatest risk when dealing with those subjected to the longest deferral periods, those deferred for 3, 4 or 5 years under the old law. Such prisoners, independently of how often they could get to a parole hearing, would have little chance of ever giving the Board an "abiding conviction" that it was "highly probable" that they were suitable for parole.

The court therefore concludes that Proposition 9 has created a significant risk of imposing a longer incarceration on the class than was the case when their crimes were committed. This conclusion is drawn from the evidence presented at trial, and the reasonable inferences arising from it. However, the plaintiffs further attempted to buttress their case by presenting actual accounts of prisoners whose incarcerations, they assert, were lengthened by Proposition 9. It is to that showing that court now turns, keeping in mind that at the preliminary injunction stage, the Ninth Circuit found that plaintiffs had, to that date, "produced no evidence to support a finding that more frequent parole hearings result in more frequent grants of parole." Gilman, 638 F.3d at 1108 n. 6.

C. The Rutherford Litigation: Findings.

A somewhat detailed description of the Rutherford litigation is useful because plaintiffs argue that a subset of the class certified in In re Rutherford (Cal.Super. Ct., Marin County, No. SC135399A), is representative of the Proposition 9 class certified in this case, while defendants argue that there is insufficient evidence to conclude that the Rutherford subset is representative. Describing how the Rutherford class and subset came into being is helpful in determining whether the Rutherford subset is representative of the Proposition 9 class in this case.

13. On February 25, 2003, California life prisoner Jerry Rutherford was denied parole, and given a one-year deferral until his next hearing, pursuant to Cal.Penal Code § 3041.5, as it then existed. See In re Lugo, 164 Cal.App.4th 1522, 1529, 80 Cal.Rptr.3d 521 (1st Dist.2008).10 However, the Board failed to provide Rutherford a parole hearing during the next year, although required to do so by the law in effect at the time. Exh. 53 (admitted, over objection, at RT 30) (ECF No. 343-9) ("Stipulated Testimony of Thomas Master") ¶ 2.11

On May 26, 2004, Rutherford filed a petition for habeas corpus in California state court, In re Rutherford (Cal.Super. Ct., Marin County, No. SC135399A), challenging the delay in his parole hearing. Lugo, 164 Cal.App.4th at 1529, 80 Cal.Rptr.3d 521.

15. On November 29, 2004, the California Superior Court hearing Rutherford certified a class of "all prisoners serving indeterminate terms of life with the possibility of parole who have approached or exceeded their minimum eligible parole dates without receiving their parole hearings within the time required by sections 3041 and 3041.5." Lugo, 164 Cal.App.4th at 1530, 80 Cal.Rptr.3d 521.

16. After the Rutherford class was certified, "the Board stipulated that it was not providing timely parole consideration hearings as required by the Penal Code." Lugo, 164 Cal.App.4th at 1530, 80 Cal.Rptr.3d 521.

17. On March 22, 2006, the parties agreed to a remedial plan intended to reduce the backlog of parole hearings. Lugo, 164 Cal.App.4th at 1532, 80 Cal.Rptr.3d 521.

18. When Proposition 9 was implemented, on December 15, 2008, life prisoners were still having their parole hearings delayed beyond the dates when they should, by law, have occurred. Because of this general timeliness problem the Board was having, there arose a subset of the Rutherford class ("the Rutherford subset"), who should have had their parole hearings conducted under the old law, before Proposition 9's implementation, but who in fact did not (or would not) receive their hearings until after implementation. See Exh. 1, Exhibit A (Rutherford Stipulation) (ECF No. 259-1) at 7 (admitted over objection at RT 26). Their hearings were (or were scheduled to be) conducted under Proposition 9.

19. To avoid having their hearings decided under Proposition 9, the Rutherford subset sought a preliminary injunction enjoining the Board from implementing Proposition 9 as to them. See id., Exhibit A at 7.

20. The preliminary injunction proceeding was settled with a stipulation. Prisoners who qualified for the stipulation were those prisoners in the Rutherford subset whose pre-Proposition 9 hearings were delayed until after Proposition 9, because of reasons attributable to the State, or because of "exigent circumstances,"12 and those whose hearings commenced before Proposition 9, but which were continued to a date after Proposition 9. Exh. 1, Exhibit A at pp. 9-10 ¶ 4(a)-(d); Exh. 53 at ¶ 6. Excluded from this stipulation were those Rutherford subset members who were granted parole or who elected to waive or postpone their hearings through no fault of the Board or exigent circumstances. Exh. 53 ¶ 6.

21 Under the stipulation, all qualifying Rutherford subset members who should have had their parole hearings conducted before December 15, 2008 under the old law, were granted hearings governed by the old law, even if those hearings occurred after the implementation of Proposition 9. Master Decl. (Exh. 1) ¶ 5. Further, in the event the life prisoner's delayed hearing had already been conducted under Proposition 9, and parole had been denied, the Board agreed to re-calculate the deferral period using the old law. Id.13 In other words, the 3-, 5-, 7-, 10- and 15-year deferrals under Proposition 9 would be recalculated to 1-, 2-, 3-, 4- or 5-year deferrals under the old law.

22. The parties in Rutherford stipulated that 442 such prisoners, identified at Exh. 20 (admitted per PTO), were covered by the stipulation. UF ¶ 14; (RT 26-29, Master testimony).

23. Of the 442 prisoners who received the modifications, 305 had, as of March 2011, received their subsequent hearings after the modifications; of those 305 prisoners, 51 (16.7%) were granted parole at their hearings. UF ¶ 15.

24. In addition to the 442 prisoners who received modifications of their Proposition 9 deferrals to old-law deferrals due to the Rutherford litigation, there were 408 other prisoners who had been entitled to their hearings before Proposition 9 but had not yet had their hearings at the time Proposition 9 was implemented; pursuant to a stipulation in the Rutherford case, those prisoners' first post-Proposition 9 hearings were to be governed by the old law. As of April 6, 2011, of those 408 prisoners, 247 were denied parole and given old-law (one- to five-year) deferrals. As of April 6, 2011, 88 of the 247 had reached their next hearing (because they had received only one- or two-year deferrals at their first post-Proposition 9 hearings), and 25 (28 percent) were granted parole at their hearings. UF ¶ 16.

25. Of the 240 prisoners in the Rutherford subset who received or stipulated to the minimum 3-year deferral under Proposition 9, (a) 102 had their deferral dates reduced to the minimum 1-year deferral in a hearing under the old law,14 (b) 60 had their deferral dates reduced to a 2-year deferral (the second-shortest deferral) in new hearings under the old law, and (c) none had their deferral dates stay the same or get increased using the old law. Exh. 20 (admitted per PTO).15 Parole was granted in 43 of those cases. Exh. 54 (admitted at RT 32).16 As noted above, the Board's decision to defer a parole hearing for only one or two years is made when there is a reasonable expectation that the prisoner will be granted parole during the next year or two. The conclusion appears to be inescapable, then, that for most of those 240 prisoners (that is, 162 of them, which excludes those subject to the agreed-to deferrals), there was a reasonable expectation that they would be granted parole in one or two years. Yet, if their Proposition 9 deferrals had stood, they would have been unable to even get to a parole hearing for three years.

26. Of the 104 prisoners in the Rutherford subset who received or stipulated to a five (5) year deferral under Proposition 9, seventy-four of them had their deferral periods re-calculated under the old law.17 As a result, (a) one had the deferral reduced to the 1-year minimum, (b) forty-eight had their deferrals reduced to two years, the next-shortest available, (c) seventeen had their deferrals reduced to 3 years, and (d) eight had their deferrals reduced to 4 years in new hearings conducted under the old law. None had their deferrals stay the same, and it was not possible to get a greater deferral under the old law. Exhs. 20 & 54. Therefore, for most of these prisoners (74, which excludes those subject to agreed-to deferrals), there was a reasonable expectation that they would be granted parole in one to four years. Yet, if their Proposition 9 deferrals had stood, they would have been unable to even get to a parole hearing for five years.

27. Of the 53 prisoners in the Rutherford subset who received or stipulated to a seven (7) year deferral under Proposition 9, thirty-nine had their deferral periods recalculated under the old law.18 As a result, (a) none received either the 1-year minimum or the 5-year maximum deferral, (b) six had the deferral reduced to 2 years, the next shortest deferral under the old law, (c) seventeen had their deferrals reduced to three (3) years, and (d) 16 had their deferrals reduced to 4 years. Exhs. 20 & 54. It was not possible to get an equal or longer deferral under the old law. Therefore, for most of these prisoners, there was a reasonable expectation that they would be granted parole in one to four years. Yet, if their Proposition 9 deferrals had stood, they would have been unable to even get to a parole hearing for seven (7) years.

28. The 31 prisoners in the Rutherford subset who received a ten (10) year deferral (the next-to-longest deferral possible) under Proposition 9, all had their deferrals re-calculated under the old-law.19 As a result, (a) none received the 1-year minimum deferral, (b) somewhat surprisingly, six (6) had the deferral reduced to 2 years, the next shortest deferral under the old law,20 (c) 20 had their deferrals reduced to four (4) years and (d) 5 had their deferrals reduced to 5 years, the maximum deferral under the old law. Exhs. 20 & 54. It was not possible to get an equal or longer deferral under the old law.

29. Therefore, for the majority of these prisoners (26 out of 31), there was a reasonable expectation that they would be granted parole in one to four years. Yet, if their Proposition 9 deferrals had stood, they would have been unable to even get to a parole hearing for ten (10) years.

30. Of the 14 prisoners in the Rutherford subset who received the maximum, 15-year deferral under Proposition 9, (a) none received the 1-year minimum deferral, (b) somewhat remarkably, five (5) had the deferral reduced to 2 years, the next shortest deferral under the old law, (c) none had their deferrals reduced to 3 years, (d) one had the deferral reduced to four (4) years and (d) eight (8) had their deferrals reduced to 5 years, the maximum deferral under the old law. Exhs. 20 & 54. It was not possible to get an equal or longer deferral under the old law.

31. Thus, most of those who received the maximum, 15-year, deferral under Proposition 9, also received the maximum, 5-year, deferral under the old law. The law thus imposed an irrebutable presumption on these prisoners that they would not be suitable for parole for 15-years, removing the old-law possibility that at least every five years, the prisoner could demonstrate suitability.

32. As for the five prisoners whose deferrals dropped from 15 years under Proposition 9 to 2 years under the old law, the reduction seems remarkable because having received the maximum, 15-year deferral under Proposition 9, these five prisoners received the next shortest deferral available under the old law. It is a reasonable inference from this that in December 2008 and January 2009, the Board did not have "clear and convincing evidence" that those prisoners would be ready for release for the next 15 years. Yet, making the calculation under the old law about three months later (in March and April 2009), the Board concluded that these same prisoners would be ready for release within 2 years. Exh. 20.

33. These five prisoners may thus have played out the disturbing scenario mentioned earlier, namely that prisoners who would be paroled under the old law could never show with the "clear and convincing evidence" required by Proposition 9, that they were ready for parole.21

34. There exists a separate group of 408 prisoners who also had post-Proposition 9 deferrals decided under the old law. Exh. 56 (ECF No. 343-12) (admitted at RT 117). Of the 247 prisoners in that group who were denied parole, 91 received the minimum one-year deferrals, and 22 of them were granted parole. Id. Of the group, 87 received 2 year deferrals (the next shortest under the old law), and 2 of them were granted parole. Id.

35. The actual effect of Proposition 9 on a sample group of life prisoners affected by the Rutherford litigation is set forth below. See Exh. 20 & 55 (binder) (all columns except the last two admitted at RT 222-23).22

a. Life prisoner A. Taylor (Exh. 20 ¶ 300) received a Proposition 9 parole hearing in January 2009. Taylor was denied parole, and given the minimum deferral permitted under Proposition 9, three years, on January 2012. However, because the prisoner was covered by the Rutherford litigation, the Board re-calculated the deferral, using the old law. Using the old law, the Board deferred Taylor's hearing two (2) years, or until January 2011. This meant that the Board believed that there was a reasonable chance that the prisoner would be granted parole in two years (otherwise, it was required by the old law to defer the hearing 3, 4 or 5 years). In fact, the Board granted Taylor parole at the January 2011 hearing, and the prisoner was released on parole in June 2011. Thus, Taylor was released under the old law before a parole hearing could even have occurred under Proposition 9.23

b. Life prisoner H. Tuey (Exh. 20 ¶ 152) received a Proposition 9 parole hearing in December 2008. Tuey was denied parole, and given the minimum 3-year deferral permitted under Proposition 9, to December 2011. However, because the prisoner was covered by the Rutherford litigation, the Board re-calculated the deferral under the old law. Using the old law, the Board gave Tuey the minimum 1-year deferral, to December 2009. This meant that the Board believed that there was a reasonable chance that Tuey would be granted parole the following year (otherwise, it was required by the old law to defer the hearing 2, 3, 4 or 5 years). In fact, the Board granted Tuey parole at the December 2009 hearing, and the prisoner was released on parole in May 2010. Thus, Tuey was released under the old law one and one-half years before the next parole hearing could even have occurred under Proposition 9.24

c. Life prisoner A. Flores (Exh. 20 ¶ 302) received a Proposition 9 parole hearing in December 2008, but was denied parole, and given a seven (7) year deferral, to December 2015. Under Proposition 9, this deferral is given when the Board finds "by clear and convincing evidence" that the prisoner need not be incarcerated for more than seven additional years. Under this circumstance, the Board had the choice of deferring for 3, 5 or 7 years. Because the prisoner was covered by the Rutherford litigation, the Board re-calculated the deferral under the old law. Using the old law, the Board gave Flores a 3-year deferral, to December 2011. This meant that the Board believed that there was a reasonable chance that Flores would be granted parole in three years, (otherwise, it was required by the old law to defer the hearing 4 or 5 years). In fact, the Board granted Flores parole at the November 2011 hearing, and the prisoner was released on parole in May 2012. Thus, Flores was released under the old law three years before the next parole hearing that had been granted under Proposition 9.

d. Life prisoner C. Orduna (Exh. 55 ¶ 19) received a Proposition 9 parole hearing in March 2009. Orduna was denied parole, and given a five (5) year deferral, to March 2014. Under Proposition 9, this deferral is given when the Board finds "by clear and convincing evidence" that the prisoner need not be incarcerated for more than five (5) additional years. Under this circumstance, the Board had the choice of deferring for 3, 5 or 7 years. Because the prisoner was covered by the Rutherford litigation, the Board re-calculated the deferral under the old law. Using the old law, the Board gave Orduna a 2-year deferral, to 2011. This meant that the Board believed that there was a reasonable chance that Orduna would be granted parole in two years, (otherwise, it was required by the old law to defer the hearing 3, 4 or 5 years). In fact, the Board granted Orduna parole at the April 2010 hearing, and the prisoner was released on parole in October 2010.

Thus, Orduna was released under the old law before the earliest date the next parole hearing could even have occurred under Proposition 9.25

36. An additional group of 24 life prisoners had their 3-year Proposition 9 deferrals (the minimum permitted under Proposition 9), reduced through individual court orders.26 See Exh. 58 (binder) (all columns except the last two admitted at RT 222-23).27 Each of these life prisoners received parole hearings earlier than would have been permitted under Proposition 9, and each was released on parole before they even could have had a parole hearing under Proposition 9. Id.

37. Dr. Barry Krisberg was qualified to testify as an expert on criminology, sociology and statistics. (RT 73-74.) Dr. Krisberg opined that there was no systematic bias in the Rutherford subset that would make it different from the class in this case. (RT 76.)

38. According to Dr. Krisberg, "comparing the outcomes of the Rutherford Group to the class as a whole is a valid research design to determine the effect of the new law." (RT 85.)

39. Dr. Stephen Klein was qualified to testify as an expert in statistics. (RT 100.) Dr. Klein opined that "it's too soon to know what the effects of Proposition 9 are." (RT 101.) Dr. Klein disagreed with Dr. Krisberg that the Rutherford subset was unbiased, or was representative of the plaintiff class as a whole. Dr. Klein believed that Dr. Krisberg erred by not "controlling" the Rutherford subset for "case characteristics."

40. Dr. Klein identified two factors that, he opined, defeated Dr. Krisberg's assertion that the Rutherford subset was an unbiased "natural experiment," and was therefore representative of the class as a whole. The first is Dr. Klein's assertion that the hearing mandated by the Rutherford litigation "could be two years" after the initial post-Proposition 9 hearing. RT 106. Neither Dr. Klein nor defendants' counsel ever identified any document or other evidence from which he drew this "two years" figure.

41. The other factor Dr. Klein identified is that "the people doing the second hearing may or may not have known the outcome of the first hearing, and that could be affecting things." (RT 106.) Dr. Klein does not identify any law, document or other evidence indicating that the decision-makers in the second hearing knew the outcome of the first hearing.28 Nor does he identify any document or evidence showing that knowing the prior outcome would make any difference to the second decision-makers.

42. Dr. Klein opined that in order for Dr. Krisberg's "natural experiment" to be valid, "[w]hat you'd want to do is you want to get the characteristics of the Rutherford Group and the characteristics of the non-Rutherford group in the larger population to see whether those characteristics are the same." (RT 108-09.) Dr. Klein concluded that because Dr. Krisberg did not do this, his "natural experiment" was not valid. Dr. Klein did not identify any case characteristics between the two groups that were different, or that could affect the outcome.

D. The Rutherford Litigation: Conclusions.

The court finds that Dr. Klein's testimony does not really bear on the question before the court, namely, whether Proposition 9 created a "significant risk" of longer incarceration. This is not the same as waiting to see what the different lengths of incarceration are, years from now, and looking back to see whether they were longer after Proposition 9 passed. The question is whether, looking forward, there is a significant risk of increased incarceration. If the court were to rely upon Dr. Klein's testimony, this court could not reach any conclusion about the constitutionality of Proposition 9 until some time in the indefinite future when all the class members had either been released or died.

Even if Dr. Klein's testimony were pertinent, the court rejects it. Dr. Klein opines that there is no way for Dr. Krisberg to know that the Rutherford subset is representative of the class as a whole. The basis for this opinion is that Dr. Krisberg did not "control" for case characteristics. Because of this, Dr. Klein opines, there is no way to know whether something other than the accident of calendaring — such as individual case characteristics, or some biasing factor that caused the "accident" of calendaring — distinguishes the Rutherford subset from the class here.

There are several problems with this assertion. First, neither the defendants nor Dr. Klein offer any evidence of any case characteristics that would distinguish the Rutherford subset from the class. Defendants have access to all the prisoners' central files, and yet they have not identified any of the differences that Dr. Klein speculates might possibly exist. The court infers from this failure to produce any such evidence, that there is none.

Second, the evidence before the court plainly shows that there is no overall difference that would make a difference between the Rutherford subset and the class. Dr. Klein identifies two possible differences in case characteristics. He asserts that "the time between the two hearings could be two years, things could happen that would be affecting whether somebody got a parole grant during that two-year period." RT 106.

This basis is flatly contradicted by the evidence. Exhibit 20 is the defendants' own compilation of every member of the Rutherford subset. It shows that in almost every single case, the time between the two hearings for the Rutherford prisoners is just under one month (e.g., Tilford), to just under five (5) months (e.g., Hill), with the overwhelming majority being about 3 or 4 months apart. Exhibit 20. In only two cases that the court was able to identify, namely, Harrell (11 months) and Moore (10 months), was the time difference greater than 5 months.

If Dr. Klein's assertion had been based upon actual evidence in the case, the court would consider it, since the time between hearings, and possibility of changes in case characteristics that could occur during that time, most notably "institutional behavior," is pertinent to whether parole would be granted. See Cal. Admin. Code, tit. 15, § 2281(d)(9) (finding of suitability for release is better when "[i]nstitutional activities indicate an enhanced ability to function within the law upon release"). Since Dr. Klein's assertion was based upon an apparently made-up number of "years" between the initial Proposition 9 hearing and the old-law hearing gained through the Rutherford litigation, the court must discard Dr. Klein's opinion, as to this factor.

Finally, the evidence before the court tends to show that the relevant case characteristics were not different between the two groups. This conclusion can be inferred from the fact that the case characteristics that matter are set forth in the regulations governing the determination of parole suitability, id. § 2281(b)-(d), and the fact that both groups wound up with the full range of outcomes. In other words, the case characteristics are inferable from the outcome. If the Rutherford subset was, for example, crowded with multiple murderers who showed no remorse, there would be few among them receiving the minimum deferral, and many receiving the maximum. But defendants have identified no such skewing in the distribution of outcomes in the record.

The court finds that the Rutherford subset is representative of the Proposition 9 class as a whole. The evidence submitted on this matter shows that the Rutherford subset is distinguished from the Proposition 9 class only by the accident of when their parole hearings were scheduled on the calendar. There is no evidence that the case characteristics are different between the two groups. There is no evidence that something about the accident of calendaring was anything other than an accident of the calendar.

For example, there is no evidence that only those most or least likely to be paroled moved into the Rutherford subset. Rather, the evidence is clear that the Rutherford subset came into existence because the Board had a backlog that applied to all life prisoners, not any particular subset of them based upon any case characteristics. Dr. Klein's speculation on possible differences in case characteristics is therefore a red herring, especially since Dr. Klein, who presumably had access to the central files of the class as well as the Rutherford group, did not identify a single case characteristic that distinguished the two groups.

The court therefore finds that plaintiffs have properly buttressed their showing that Proposition 9 actually did create a significant risk that their incarcerations would be lengthened. In addition to the inferences to be drawn from how the Board imposes deferral periods, the Rutherford subset shows that in fact, some members of the class had their incarcerations lengthened by Proposition 9, but were rescued from that result by the Rutherford stipulation.

The experience of the Rutherford subset thus shows that while it is true that more frequent parole hearings result in more frequent denials for some, it is also true that they result in more frequent grants of parole for others.

III. PROPOSITION 9: THE "ADVANCED HEARING" PROCESS

A. Findings.

43. A life prisoner who has been denied parole may request that the Board exercise its discretion to advance a hearing to an earlier date. See UF ¶ 4.

44. From the passage of Proposition 9 through April 6, 2011, when a full review of a petition to advance was ordered, the review was conducted by a Board employee at the prison where the prisoner was housed so that the prisoner's entire file could be reviewed. The prisoners were not present or represented by counsel when their files were reviewed. UF ¶ 13.

45. During the period from January 1, 2009 through December 31, 2010, there were 119 petitions to advance filed by prisoners. Of those, 114 (approximately 96%) were denied; 106 (approximately 93%) were summarily denied and eight (approximately 7%) were denied following a full review. UF ¶ 7.

46. From 2009 to June 2012, the Board has not exercised its discretion to advance a hearing absent a prisoner filing a petition to advance. UF ¶ 26.

47. Although the procedure for making this request does not appear to be reflected in the Board's official regulations, the Board's Executive Officer, Jennifer Shaffer, testified about the Board's process for determining whether an expedited hearing is warranted for a particular inmate. (RT 263-95.)

48. The prisoner starts this process by completing Form 1045, Exhibit 35 (ECF No. 341-3), entitled "State of California/Board of Parole Hearings/Petition To Advance Hearing Date." (RT 265.) The form instructs the prisoner to list the changed circumstances or new information that "show a reasonable likelihood that consideration of the public and victim's safety does not require the additional period of incarceration" that was set at the last parole suitability hearing. Exh. 35 at BPH-44. The prisoner is also instructed to submit with the petition all supporting documents. Id.29

49. Prior to March 1, 2014, the submitted petition was first given a "preliminary review." See Exh. 35 at BPH-45. At this stage, according to Exhibit 35, the petition could be "Summarily Denied" if (1) the prisoner was seeking to advance the wrong type of hearing,30 (2) the petition was not timely or (3) the petition contained "[n]o evidence of new information or a change in circumstances warranting further review." Id. The first two reasons were plainly jurisdictional, in that such petitions were not within the statute. See Exh. 38 at BPH-12 (BPH training material) (admitted at RT 210).

50. As for the third issue, the training provided to the decision-makers states that the prisoner first had to assert that there was "new information" or a "change in circumstances" without regard to any showing or assertion of suitability. See Exh. 38 at BPH-14. In other words, a mere showing of suitability was not sufficient to warrant an advance hearing; there had to be, in addition, some "new information" or "change in circumstances." See also Exh. 40 (admitted at RT 211) (ECF No. 341-8) at BPH-36 (defendants' explanation of "preliminary review" states that "[m]inimally, the prisoner must make a valid assertion of a change in circumstances or new information in order to avoid the BPH summarily denying the petition").

51. In addition to that assertion (of changed circumstances or new evidence), the prisoner then had to establish, still in the "preliminary review" stage, that there was a "reasonable likelihood" that the prisoner no longer required additional incarceration. See Exh. 38 at BPH-15. The petition would be "Summarily Denied" if "other evidence shows" that the prisoner was "unsuitable for parole despite the change in circumstances" or "new information." Id.

52. The "full review" required the prisoner to again establish "a reasonable likelihood," considering the safety of the public and victim, that the prisoner no longer required incarceration. See Exh. 38 at BPH-17.

53. After March 1, 2014, the decision-making process was changed. Instead of a "preliminary review" followed by a "full review," there is now a "jurisdictional review," followed by a "full review." (RT 272) (Shaffer Testimony).

54. The jurisdictional review is conducted by legal analysts, and determines only whether to screen out petitions where (1) the prisoner was seeking to advance the wrong type of hearing, 30 or (2) the petition was not timely. (RT 272-73.)

55. The jurisdictional review does not involve any determination on the merits. (RT 276.) This is in contrast to the pre-March 1, 2014 procedure, in which the "preliminary review" included a merits determination on whether the prisoner had shown a change of circumstances warranting further review. See, e.g., Exh. 38 of BPH-145.

56. If the petition survives the jurisdictional review, it moves to a "full review," which is a merits review conducted by a Commissioner or Deputy Commissioner. (RT 277-83.) This review is conducted based upon documents, possibly including the prisoner's "central file," or some portion of it, and does not include a hearing. (RT 284-308.)

57. The standard for advancing a hearing is whether there is a "reasonable likelihood that additional incarceration, after consideration of the public safety and the [victim's] safety, is no longer necessary." (RT 284.) It is not the suitability standard.31 (RT at 288.)

58. When the PTA is submitted, the Board places a hold on a hearing date 9 months from that date, in order to ensure that a hearing date will be available if the PTA is granted. (RT 277-78.) Accordingly, a prisoner who wishes to have a new hearing in a year must file the PTA immediately, but in any event, no later than 3 months from the date of the parole denial. Thus, the inmate can use at most 3 months worth of "changed circumstances" or "new information" to convince the decision-maker to grant him an advance hearing. Accordingly, whatever work the inmate does in the subsequent 9 months is not considered.

59. The inmate may file a new petition to advance no sooner than three years after the last petition to advance was denied. (RT 274-75.)

60. Although the Board has the authority to grant an advanced hearing sua sponte, it has never done so, because until recently, there has been no process for doing so. See RT 297.

61. Post-Vicks, the Board is apparently implementing a procedure to implement sua sponte reviews. (RT 289-95). The board is currently conducting sua sponte reviews, although as of the date of Shaffer's testimony, none had ever been granted. (RT 289-95, 297-98.)

B. Advance Hearing Examples.

The parties have directed the court's attention to several examples of the petition to advance process. Some of the examples point to cases where advanced hearings were granted or denied, and appear to show that the advance hearing process can afford prisoners an opportunity to avoid the ex post facto problems associated with Proposition 9.32

Other examples show the Petition to Advance ("PTA") process identifying prisoners whose PTAs apparently ought to be denied. For example, T. Faatiliga's advance hearing petition made it past the preliminary review stage. See Exh. 80, Vol. 2, at BPH-22042 (full review ordered on April 5, 2011). At the full review stage, the petition was denied, for the following reasons:

Id. This advance petition denial appears to squarely address the issue presented, that is, whether the inmate should get an advance hearing. The decision-maker denied the petition because the prisoner had not done what the last panel indicated he should do before he could be ready for release, namely, "participate in an anger management program."33 These examples tend to show that the PTA system works at denying petitions that ought to be denied. The remaining question is whether it grants petitions that ought to be granted.

Several examples show that even when the Board decides a case under an apparently reasonable interpretation of Proposition 9 and the implementing regulations, the advance hearing process can be rendered meaningless or illusory. The most profound failure of this process is in the Board's apparent interpretation of the statute authorizing advance petitions. The statute provides that the inmate may request an advance hearing by submitting a petition that sets forth "the change in circumstances or new information that establishes a reasonable likelihood that consideration of the public safety does not require the additional period of incarceration of the inmate." Cal.Penal Code § 3041.5(d)(1). A sensible interpretation of this authorization is that the "change in circumstances or new information" is tied to the question of suitability for parole.

However, some examples identified by plaintiffs show that the Board has interpreted the authorization in a way that separates the "change in circumstances or new information" from the question of suitability. Rather, the Board requires a showing of "change in circumstances or new information" before it will even consider the question of suitability for parole. This is a problem first because the most fundamental change in circumstances would be a move from unsuitability to suitability. But as the examples show, that is apparently not a change in circumstance that will satisfy the Board. Second, when this requirement is spun off from the suitability requirement, it imposes an additional, substantive burden on the prisoner's ability to obtain parole.

This is not a harmless procedural change. This is a change that says that the prisoner must now show something that he never had to show before, namely, this amorphous "change in circumstances or new information." At the time the crime was committed, the sentence was incarceration until such time as the Board determined that the prisoner was suitable for parole. Under Proposition 9, it is incarceration indefinitely, unless the Board finds clear and convincing evidence of (a) a change in circumstances or new information, and separately, (b) suitability.

(1) M. Brodheim: Change in Circumstances or New Evidence.

Plaintiffs have directed the court's attention to the case of M. Brodheim as an example of the advance hearing process in action.34 At a parole hearing on June 4, 2009, the Board denied parole for Brodheim, and deferred his next hearing for the minimum 3-year period allowed under Proposition 9. See Exhibit 80, Vol. 2 at BPH-21458. On November 1, 2010, this court granted Brodheim's habeas corpus petition on the ground that the record did not contain "some evidence" of Brodheim's current or future dangerousness. Id. at BPH 21468. This court ordered Brodheim released within 45 days unless the Board conducted a new suitability hearing in accordance with Due Process and the court's order. Id. The board scheduled the new hearing for December 1, 2010. At that hearing, the Board found that Brodheim was suitable for parole. Id. at BPH 21567. However, on March 15, 2011, the Ninth Circuit reversed this court's order, citing the intervening authority of Swarthout v. Cooke, 562 U.S. 216, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011) (per curiam). Id. at BPH-21459-60. Even though the Board had already found Brodheim suitable for parole, it immediately (March 18, 2011) vacated its decision, solely because the earlier-than-planned — but already conducted — December 2010 hearing was no longer legally required. Id. at BPH 21458. Id. The board re-instated the 3-year deferral of the original hearing. Id. The board did not state or otherwise indicate that it had substantively changed its view, or had decided that Brodheim was no longer suitable for parole. Rather, the decision was vacated solely because it was held at an earlier date than was found to be legally required.

On April 20, 2011, Brodheim filed a petition to advance his hearing. Id. at BPH 21462. Brodheim relied, among other things, upon the transcript from the December 10, 2011 hearing at which the Board had already found that he was suitable for parole. Id. On May 11, 2011, the Board "Summarily Denied" Brodheim's petition, on the boilerplate grounds that there was "[n]o evidence of new information or a change in circumstances warranting further review." Id. at BPH 21463.

From the Brodheim example, the court infers that the Advanced Hearing process requires the inmate to make a showing beyond simple "suitability" for parole. Rather, the inmate must, in addition, show "new information or a change in circumstances" from the last parole denial.

The inference is supported by the Board's training manual and instructions to decision-makers. See Exhibit 40 (ECF No. 341-8). The manual makes clear that in order to pass "preliminary review," the prisoner must make the assertion that there are "changed circumstances" or "new information." Id., at BPH-36. Only once this assertion has been made does the petition survive summary denial, and the Board go on to determine whether those changed circumstances or new information establish whether additional incarceration is required. See id.

Examples of the "change in circumstances" or "new information" that would enable a prisoner to avoid summary denial are having updated or stable parole plans, job offers, vocational or educational certificates, completion of self help and/or drug or other treatment programs, or changed outcome of disciplinary actions. See Exhibit 42 (ECF No. 341-10) at BPH-33. Although this list is stated to be not exclusive, it does appear to consist of things in a different category than, for example, the mere passage of an additional year of incarceration.35

(2) T. Nguyen: The Next Panel Should Decide.

In another set of examples, the decision-maker made no finding on whether the prisoner had shown a reasonable likelihood that further incarceration was not needed, and therefore the next parole hearing should be advanced, even though that was the only question he had to decide.36 Rather, they determined that this was a question for the next parole review panel. Yet, the decision-maker denied the prisoner the opportunity to get to the next review panel until the original deferral period had elapsed. These examples tend to show that some PTA decision-makers viewed certain issues as categorically exempt from the PTA process, and therefore could only be decided by panels after the deferral period imposed by the last panel. In fact, there is no such categorical exemption in the law or regulations. In such cases, the PTA process was illusory.

T. Nguyen's advance hearing petition, for example, made it past the preliminary review stage. See Exh. 80 at Exh. Y 19163 (full review ordered on February 21, 2012). At the full review stage, the petition was denied. Id. (April 25, 2012). The reason for the denial was:

Id. at 19164.37

(3) M. Killingsworth: Comprehensive Risk Assessment.

A structural barrier to a meaningful PTA process is the Comprehensive Risk Assessment ("CRA"). The CRA is one factor the decision-maker must consider in determining whether to grant an advance hearing petition (RT 284). The CRA is completed every five (5) years. Cal.Code Regs. tit. 15, § 2240(b). A Subsequent Risk Assessment ("SRA") can be made before any regularly scheduled hearing. There are two problems here. First, the SRA "will not include an opinion regarding the inmate's potential for future violence because it supplements, but does not replace, the Comprehensive Risk Assessment." Id., § 2240. Second, there is no authorization for the CRA or the SRA to be issued for a PTA. Under the regulations, these reports are prepared in advance of a hearing, not a request for a hearing. Plaintiffs therefore argue that "any prisoner who is denied parole in part because of the CRA has no chance of obtaining an advanced hearing." Plaintiff's Summation (ECF No. 517) at 25 n. 37.

The undisputed examples identified by plaintiffs support this assertion. For example, M. Killingsworth's advance hearing petition made it past the preliminary review stage. See Exh. 80 at Exh. Y 17970 (full review ordered on June 28, 2011). At the full review stage, the petition was denied, for the following reasons:

Id. at 17971. This denial does appear to address squarely the question presented, that is, whether considerations of public and victim safety indicate that the prisoner should be granted an advanced hearing. The decision-maker denied the petition, finding that the concerns about the prisoner's "moderate risk of violence" were still valid.

However, the psychiatric evaluation it relies upon, addressing risk assessment, is completed only every five years, so there would appear to be no way for the prisoner to show that circumstances have changed. Moreover, since this is only a request for a hearing, the prisoner does not even have the right to obtain a supplemental risk assessment report.38

(4) A. Mendoza: Translation Services Unavailable.

Another structural barrier to making the PTA anything other than an illusory benefit is the apparent inability of the decision-makers to get documents translated in time for them to rule on the petition. For example, A. Mendoza's advance hearing petition made it past the preliminary review stage. See Exh. 80 at Exh. Y 32900 (full review ordered on June 28, 2011). At the full review stage, the petition was denied because some of the documents the prisoner submitted were in Spanish, and the decision-maker therefore could not determine whether the standard had been met until the documents were translated. Id. at Y 32901.

This situation appears to contradict the testimony that prisoners who need assistance receive such assistance in preparing their petitions to advance. (See RT 273.) If in fact, no translation services are provided at the PTA stage, then the PTA process is illusory for those prisoners who communicate only in Spanish.39

C. Conclusions.

The evidence shows that the advance hearing process sometimes works and sometimes does not work. It certainly appears to deny advance hearings where there is good cause to deny them.

However, the PTA appears to deny advance hearings even to those who facially appear to deserve them. The evidence shows that the Board interprets Proposition 9 to impose a substantive new "changed circumstances" or "new information" requirement on prisoners, separate and apart from the requirement that they show suitability. The PTA decision-makers rely on CRA's to determine whether to even grant an advance hearing, even though no new CRA can be done earlier than five years from the last one, and no SRA is available for a hearing request, like the PTA. The board apparently fails to provide translation services for the PTA process. Finally, the PTA decision-makers from time to time, simply rely on the last panel's assessments about whether the prisoner is ready for parole, and deny advance hearings because they think another panel should decide the question.

Thus, these PTA process's failings appear to be built in to the PTA system, rather than simply resulting from occasional errors. The PTA process is structured such that it fails, in many cases, to afford inmates a fair opportunity to obtain an advance hearing. All told, the PTA process is not sufficient to protect inmates from the ex post facto problems inherent in Proposition 9.

III. PROPOSITION 89

A. Findings of Facts.

62. On November 4, 1988, California voters approved Proposition 89, which granted the Governor the ability to reverse the decisions of the parole board regarding prisoners convicted of murder. 1988 Cal. Legis. Serv. Prop. 89 (West).

63. Proposition 89 is neutral on its face, allowing the Governor to reverse parole grants and denials alike. Id.

64. However, its intent was stated to be to give the Governor "the power to block the parole of convicted murderers." Exh. 72 (ECF No. 428-9) (Proposition 89 Ballot Pamphlet (Argument in Favor of Proposition 89)) at 46 (admitted per PTO).40 Intending to "correct a weakness in the state's parole system," Proposition 89 would, according to its proponents, "provide an extra measure of safety to law-abiding citizens by giving the Governor the authority to block the parole of criminals who still pose a significant threat to society." Exh. 72 at 47 (Rebuttal to Argument Against Proposition 89).

65. In 2007, Governor Schwarzenegger reviewed 172 decisions by the Board granting parole; the Governor reversed 115 (66.9%) of those decisions, he referred 18 (10.5%) to the Board to review the cases en banc, he modified 2 decisions (1.1%), and he declined to review 37 decisions (21.5%). In 2008, Governor Schwarzenegger reviewed 170 decisions by the Board granting parole; the Governor reversed 81 (47.6%) of those decisions, he referred 33 (19.4%) to the Board to review the cases en banc, he affirmed 1 decision (0.6%), and he declined to review 55 decisions (32.4%). In 2009, the former Governor reviewed 454 decisions by the Board granting parole, the Governor reversed 285 (62.8%) of those decisions, he referred 49 (10.8%) to the Board to review the cases en banc, he modified 2 decisions (0.4%), and he declined to review 118 decisions (26%). In 2010, the former Governor reviewed 503 decisions by the Board granting parole, the Governor reversed 290 (57.7%) of those decisions, he referred 58 (11.5%) to the Board to review the cases en banc, he modified 3 decisions (0.6%), and he declined to review 152 decisions (30.2%). UF ¶ 17.

66. Between January 2007 and December 2010, the Governor referred 158 cases in which the Board had granted parole to the prisoner back to the Board for en banc consideration; following the referral for en banc consideration, 153 (97%) of the cases resulted in the prisoners' release, either because the en banc Board affirmed the grant of parole or the en banc Board sent the matter to rescission but the panel voted not to rescind. UF ¶ 18.

67. During the review process, the chief counsel (or designee) prepares a written report ("Executive Case Summary" or "ECS") on each case in which parole has been granted, which includes: (1) an overview of the prisoner's central prison files as well as the evidence and the findings from the hearing that resulted in a parole grant; (2) information about the prisoner's term as set by the panel that granted parole; and (3) the calculated release date for the prisoner based on that term. UF ¶ 3.

68. The evidence presented at trial shows that Proposition 89 was carried out consistent with its intent. Plaintiffs' Exhibit 67 (admitted over objection at RT 164), is a summary listing of all grants of parole during the years 1999 to 2011, to life prisoners. RT 164-68. "Release now" means that by the time the parole grant came through, the inmate had already served his life term, and could be paroled immediately, that is, after finalization (120 days) and gubernatorial review (30 days). Id.

69. Exhibit 68 (admitted over objection at RT 170), is a summary of Exhibit 67, without the names and individual information. Exhibit 69 (admitted at RT 205), is a summary of the governor's modifications of life parole grants. Exhibit 77 (admitted at RT 175), is a summary of every parole decision that the Governor reviewed.

70. Executive Case Summaries are prepared when the parole board grants parole to a life prisoner. RT 206 (Knox testimony). Exhibit 71 (admitted over objection at RT 207), is an example of such a summary.

71. In 1991, the Governor requested that all parole grants involving murder convictions be forwarded to the Governor's office for review. Exh. 75 (admitted at RT 176). There is no evidence that the governor requested the review of any parole denials, nor that there was any process to get such decisions to the governor for review.

72. Of the parole grant reversals, most were of prisoners who were already beyond their "life terms," so that but for Proposition 89 and the Governor's reversal, they would have been released already. See Exh. 67.41

73. The Executive Reports on Parole Review Decisions reflect that, for the 21-year period from 1991 through 2011, the Governor reported reviewing only three decisions denying parole, affirming all three denials. UF ¶ 23. See Exh. A at 383 (D. Sanders, Nov. 2002, Gov.Davis), 517 (P. Agrio, Apr. 2003, Gov. Davis), 893 (M.Lindley, Dec. 2003, Gov. Schwarzenegger).

74. The Governor fulfills the reporting mandate of Proposition 89 by annually filing the "Executive Report on Parole Review Decisions for the State of California." UF ¶ 24.

75. The Executive Reports show that in the twenty-year period from 1991 through 2010, the Governor reversed more than 70 percent of the grants of parole made to prisoners with murder convictions. UF ¶ 25.

B. Conclusions

The facts are essentially undisputed. The court reviews, once again, the law of ex post facto, but in light of this evidence. The inquiry for the court is whether Proposition 89 has created a "significant risk" of longer incarceration for life prisoners whose crimes were committed before the law's passage. I find that it does.

1. Is plaintiffs' challenge foreclosed by Biggs?

Defendants assert that plaintiffs' ex post facto challenge to Proposition 89 fails as a matter of law. ECF No. 516 at 18. They argue that Supreme Court and Ninth Circuit precedent forecloses plaintiffs' challenge. This court has already rejected defendants' argument to the degree it is based upon Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990), Mallett v. North Carolina, 181 U.S. 589, 21 S.Ct. 730, 45 L.Ed. 1015 (1901), Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), Garner v. Jones, 529 U.S. 244, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000), and Johnson v. Gomez, 92 F.3d 964 (9th Cir.1996), cert. denied, 520 U.S. 1242, 117 S.Ct. 1848, 137 L.Ed.2d 1050 (1997). See Gilman v. Brown, 2013 WL 1904424 at *11-*15 (E.D.Cal.2013) (Karlton, J.). Reviewing those cases in light of the evidence presented at trial, the court sees no basis for changing its views.

This court concluded that under Johnson v. Gomez, no facial challenge to Proposition 89 can succeed in light of the cited cases, as the new law "simply removes final parole decision-making authority from the BPT and places it in the hands of the governor." Johnson v. Gomez, 92 F.3d at 967. The facial challenge was only one route plaintiffs had available to challenge Proposition 89. The Ninth Circuit has made clear that plaintiffs could nevertheless succeed on the merits of their challenge if they:

Gilman, 638 F.3d at 1106 (quoting Garner, 529 U.S. at 255, 120 S.Ct. 1362).42

Defendants argue that the possibility of an "as-applied" challenge, expressly recognized by the Ninth Circuit in Gilman, has now been foreclosed, as matter of law, by Biggs v. Secretary of the California Dept. of Corrections and Rehabilitation, 717 F.3d 678 (9th Cir.2013), a habeas case decided under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254(d). Defendants' argument appears wrong on several levels.

First, the argument simply assumes that Biggs overruled Gilman. In fact, panels of the Ninth Circuit do not overrule each other, at least not in the absence of intervening Supreme Court, en banc or statutory authority. Montana v. Johnson, 738 F.2d 1074, 1077 (9th Cir.1984). This court knows of no such intervening authority. Second, Biggs does not even purport to overrule Gilman. Indeed, its only reference to Gilman is to reiterate that:

Biggs, 717 F.3d at 692. Third, Biggs distinguishes Gilman on the very point that defendants say is of "no moment," namely, that Biggs is an AEDPA case, while Gilman is a Section 1983 case. Id. ("But Gilman was a § 1983 case, id. at 1105, and thus contained no holding about clearly established federal law"). Because Biggs was an AEDPA case, the question presented was not whether plaintiff could make an "as-applied" challenge to Proposition 89. The question was whether the California Supreme Court had failed to apply "clearly established federal law" by not subjecting Proposition 89 to an as-applied analysis. Biggs found that no such analysis was required by clearly established Supreme Court law:

Biggs, 717 F.3d at 693. That is not at all the same as saying that such an analysis is now foreclosed in a Section 1983 case.

2. Proposition 89 violates the Ex Post Facto Clause.

Turning to the evidence presented at trial, it is clear that Proposition 89, in actual practice, is not the "neutral" transfer of final decision-making authority from one decision-maker to another. In practice the governors have used it to tip the scales against parole. Every governor since passage of Proposition 89 has done this, and there is no evidence that this practice has stopped. Thus, while the governors could use the law to review parole decisions to ensure that they are accurate and fair, they appear to have no such concern about decisions that deny parole.

Prior to the new law, the sentence faced by class members was life with the possibility of parole. The parameters for determining the grant or denial of parole was fixed in the statutes, and the length of the "life term" was fixed in the Board's regulations. The new law was passed in order to lengthen the amount of time class members would spend in prison by creating a new mechanism for withholding parole, namely, the governor's veto. True to the law's intentions, California governors have used the new law to withdraw the possibility of parole from most class members. In short, the voters did not simply switch the final decision-making authority from the Board to the Governor. They switched it with an instruction that the Governor should put his finger on the scale to correct a "weakness" they perceived to exist when the Board made the final decision, namely, too many murderers being paroled, too soon. The governors have carried out the people's will by putting their fingers on the scale and reversing 70% of parole grants for these class members.

There is no evidence presented here that the plaintiffs were ever entitled to a liberal application of the parole rules. However, they have always been entitled to a neutral interpretation of those rules. That is, whether the Board made the final decision, or the governor, or anyone else, they are required to apply the rules as directed by the statute and the California Constitution. When the governors put their fingers on the scale to obtain a result of longer prison sentences, regardless of the inmate's showing of suitability, they failed to apply the statute in a neutral manner. Whether or not this is a violation of California law is not for this court to say. However, it is a plain violation of the ex post facto clause as to those to inmates whose crimes were committed before Proposition 89.

There is no claim here that California cannot instruct the Governor to keep certain people in prison longer, or to place his finger on the scale when deciding the question. In general, states are free to experiment with parole however they see fit. However they may not experiment in such a way as to increase the quantum of punishment for those who committed their crimes before the new punishment went into effect.

IV. REMEDY

Plaintiffs' surviving requests are for (a) a declaration that defendants have denied plaintiffs' rights under the Ex Post Facto Clause of the U.S. Constitution, and (b) injunctive relief.

The court accordingly DECLARES that Proposition 9, as implemented by the Board, violates the ex post facto rights of the class members.

The court further DECLARES that Proposition 89, as implemented by the governors of California, violates the ex post facto rights of the class members.

The court orders injunctive relief as follows:

1. Going forward, the Board shall apply Cal.Penal Code § 3041.5, as it existed prior to Proposition 9, to all class members. That is, all class members are entitled to a parole hearing annually, unless the Board finds, under former Section 3041.5(b) that a longer deferral period is warranted.

2. The Governor of California shall refrain from imposing longer sentences on class members than are called for by application of the same factors the Board is required to consider, as provided for by Proposition 89.43

This order is stayed for 31 days, and goes into effect immediately thereafter, unless a timely appeal is filed.

IT IS SO ORDERED.

ORDER

Plaintiffs have noticed a motion to alter or amend this court's judgment, entered in accordance with its February 28, 2014 Order (ECF No. 532). Plaintiffs request that the court's judgment regarding Proposition 89 be changed to enjoin the Governor from "reversing or modifying grants of parole to class members when the reversal or modification would result in delaying the prisoner's release from custody beyond the release date calculated by the California Department of Corrections and Rehabilitation based on the term set by the Board of Parole Hearings at the time the prisoner was granted parole" (ECF No. 534).

The court has determined that this motion may be decided without the need for oral argument. The hearing on this motion, scheduled for April 7, 2014, is hereby VACATED.

The motion will be denied, as the court granted plaintiffs the full relief they requested regarding Proposition 89. The complaint requests an order requiring that "the Governor's review of parole decisions be based on the same factors the Board is required to consider, as required by Article V, Section 8(b) of the California Constitution, and Section 3401.2 of the California Penal Code." [Corrected] Fourth Amended Supplemental Complaint (ECF No. 175) ¶ 5.1

Accordingly, plaintiffs' motion (ECF No. 534) is DENIED.

It IS SO ORDERED.

DATED: March 10, 2014.