Judge Rules Power to Block Killers’ Parole Can’t Be Retroactive : Law: Decision casts doubt on a key provision of Gov. Wilson’s anti-crime platform. The state may be forced to free up to 30 men and women doing time for murder.


Calling into question a key component of Gov. Pete Wilson’s anti-crime platform, a federal magistrate judge has ruled that Wilson cannot block the parole of convicted murderers whose crimes occurred before 1989.

If the magistrate’s recommendation to U.S. District Judge David Levy is affirmed, the state could be forced into freeing up to 30 men and women serving time for murder.

Magistrate Judge Gregory G. Hollows said in a ruling made public Friday that Wilson cannot apply a 1988 initiative granting California governors the power to block parole to prisoners whose crimes occurred before enactment of the law.


Proposition 88, which went into effect in 1989, was passed by voters in the wake of failed efforts by then-Gov. George Deukmejian to block the parole of former Death Row inmate Archie Fain in a case that drew wide attention.

Hollows found that Wilson’s policy of applying the initiative retroactively “without a doubt has actually disadvantaged . . . a class of prisoners whose offenses were committed prior to the effective date of Proposition 88.”

“The court finds,” Hollows wrote, “that the substance of the governor’s power was intended to, and has worked to, retrospectively make (the prisoners’ sentences) more burdensome. In this respect, California’s law violated the ex post facto clause of the federal Constitution.”

A spokesman for the governor denounced the ruling and vowed to fight it. But the lawyer for the prisoners hailed it as affirming a cornerstone of U.S. constitutional law--that new laws cannot be applied retroactively.

“Here comes the federal government sticking its nose in the state’s business again,” said Sean Walsh, a spokesman for Wilson. “It’s an outrage. . . . We’re talking about keeping dangerous dirt bags in prison for the life terms they were sentenced to.”

The incendiary nature of parole again became apparent when, earlier this year, Treasurer Kathleen Brown, Wilson’s Democratic challenger, attacked the Republican incumbent for not taking steps to block the parole of serial rapist Melvin Carter.


Carter received a specific determinate sentence of 25 years for his crimes, and he was released after serving half of that term because of penitentiary work and good behavior. By law, Wilson says, he had no power to stop Carter’s release.

The governor contends however that he does have the power to block release of convicted murderers serving “indeterminate sentences”--and he instituted a policy to that effect upon taking office in 1991. Most people convicted of murder are given such sentences that can be as long as life in prison. But under sentencing law, they can seek parole for the prison terms.

People sentenced to an indeterminate life sentence appear before the Board of Prison Terms after serving a set number of years. The board rarely grants release dates. But Wilson’s policy has been to review decisions in which the board granted parole dates, and then rescind or modify them so prisoners’ release dates are delayed.

“Clearly, it is important,” Walsh said of the governor’s policy of revoking the parole dates of murderers serving such sentences. “Those are 30 murderers who could be on the street plying their trade again, and that’s something the governor does not want. He doesn’t want any murderers getting out and having the opportunity to do it again.”

In 1991, after Wilson blocked the release of one of the prisoners, San Francisco attorney Dennis Riordan wrote to the governor warning that his policy blatantly violated the U.S. Constitution.

Riordan brought the suit challenging the policy in state court, where a state court of appeal affirmed Wilson’s policy. The attorney turned to federal court.


“He wasn’t going to lose political points for it,” Riordan said. “He wanted to be a governor who could say, ‘No one gets out on my watch.’ He was clearly wrong. The magistrate speaks a very simple truth. This is a case that cannot be lost in any federal court because the Constitution could not be clearer on the issue.”

Hollows’ decision came in a case involving Robert Johnson, convicted of a 1977 murder. Johnson had a parole date and was on the verge of walking out of prison when Wilson intervened. Riordan said the governor did the same to five other prisoners about to released in 1991. If the recommendation is affirmed by higher courts, all six would be freed, Riordan said.

In more recent years, the Board of Prison Terms has granted parole dates in fewer instances. The governor reversed decisions twice in 1992, and three times in 1993.