Proposition 9 Becomes Law

Of the three crime initiatives on the November 2008, only Proposition 9 became law.
Called by its backers the “Victims’ Bill of Rights Act of 2008: Marsy’s Law,” it prohibits pretrial release of a defendant when it is deemed appropriate to protect the victim. (Prop. 9, § 4.1, amending Cal. Const., art. I, § 28, subd. (b).) The “victim" has the right to address the court at any hearing, including delinquency proceedings, entry of plea, consideration of bail, any pre-trial or post-trial hearing concerning the defendant’s potential release, and any parole hearing. He or she has the power to receive parts of the defendant’s probation report. (Ibid.)

The initiative purports to ban terms of a settlement agreement in Valdavia v. Davis which affirmed certain rights of prisoners at parole revocation hearings. The parolee loses the right to confront witnesses, as hearsay and documentary evidence become admissible. (Prop. 9, § 5.3, amending Pen. Code, § 3044.) Revocation hearings can commence later than was required, and the parolee loses the right to appointed counsel. (Ibid.)

For those with an indeterminate sentence, when parole is denied, a new hearing was normally set to occur the next year, though the Board had the power to delay the hearing for five years for good cause. Now, the Board is required not to hold another hearing for 15 years unless there is clear and convincing evidence to hold it sooner. (Prop. 9, § 5.1, amending Pen. Code, § 3041.5.) If the Board grants parole, but the governor vetoes the decision, the next hearing shall be in 15 years unless there is clear and convincing evidence to hold the hearing sooner. (Prop. 9, § 5.1, amending Pen. Code, § 3041.5.) At the hearing, the victim and a long list of interested parties have the right to attend and speak without providing the prisoner an opportunity to respond or question them. (Pen. Code, §§ 3041, 3041.5.)

The initiative forbids the early release of convicts to ease overcrowding and requires the Legislature to adequately fund the prisons, apparently without regards to other state financial needs. (Prop. 9, § 4.1, amending Cal. Const., art. I, § 28, subd. (f).)

The initiative amends the state constitution to add a long list of rights of victims, including the right to “privacy” and to be “free from intimidation, harassment, and abuse.” (Prop. 9, § 4.1, amending Cal. Const., art. I, § 28, subd. (b).) Specifically, the “victim” is entitled to “prevent the disclosure of confidential information or records to the defendant, the defendant’s attorney,” or investigator which can be used to locate the witness or information concerning medical or psychological treatment or material that is otherwise privileged or confidential. (Ibid.) The “victim” has the right to block “discovery” requested by the defendant’s attorney. (Ibid.)

The initiative gives “victims” and the prosecutor standing to enforce these rights in the superior court and in the appellate courts “as a matter of right.” (Prop. 9, § 4.1, amending Cal. Const., art. I, § 28, subd. (c).) It gives “victims” the “personally enforceable” right to litigate evidentiary rules. (Prop. 9, § 4.1, amending Cal. Const., art. I, § 28, subd. (f).) It requires the victim's safety to be a primary concern in setting bail in all cases. (Prop. 9, § 4.1, amending Cal. Const., art. I, § 28, subd. (f).)

(Nov. 18, 2008)


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