Prison Law Blog

Sara Mayeux

When Parole Boards Get Tougher, Does It Violate the Ex Post Facto Clause? Sixth Circuit Says No

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Here’s a hypothetical: You’re convicted of some offense — say, manslaughter — and sentenced to life with the possibility of parole. At the time you’re convicted, the state has one set of procedures in place for determining whether to grant parole. Under that system, 5-15% of parole-eligible lifers are paroled each year, yielding an average time served of 15-18 years. So, when you’re convicted, you and everyone else involved in your conviction (the prosecutor, the sentencing judge, etc.) all think that you’ve got some chance of getting out, ten, 15, or 20 years from now.

As it turns out, in the intervening years the state passes several laws that alter its parole procedures and the composition of its parole board. Together, these changes have the effect of making it harder to get parole. By the time you’re eligible to appear before the parole board, it’s granting parole in only 0.15% of cases, and the average time served has creeped up to over 23 years.

This complicated scenario is more or less the fact pattern that the Sixth Circuit considered last week in Foster v. Booker, a class action lawsuit brought by Michigan lifers to challenge that state’s increasingly stringent parole procedures as a violation of the ex post facto clause of the Constitution. Relying largely on the statistical findings above (see PDF p. 9), the district court had granted summary judgment for the plaintiffs, agreeing that they face an unconstitutional risk of increased punishment greater than what was expected when they were initially sentenced.

As explained further below the jump, the Sixth Circuit panel reversed the district court and instead granted summary judgment for the defendant Michigan officials — holding that Michigan’s reduced parole rates do not violate the ex post facto clause, but rather, may be a legitimate exercise of the Parole Board’s discretion. (The Sixth Circuit also upheld the district court’s dismissal of a challenge under the due process clause, because courts have held that prisoners do not have a constitutionally protected liberty interest in parole.) Although the legal issues are a bit different, a pending lawsuit in Virginia, which I blogged about here, raises similar concerns about whether it’s become too difficult for supposedly parole-eligible inmates to win release.

At issue in the Foster v. Booker litigation were two sets of Michigan legislation, passed in 1992 and 1999, that

(1) altered the structure and composition of the [Parole] Board; (2) reduced the frequency of parole reviews after an initial ten-year interview; (3) substituted paper reviews for in-person interviews; (4) eliminated plaintiffs’ right to appeal a denial of parole; and (5) contained new language consistent with the Board’s practice of not giving written reasons for a statement of “no interest” in moving forward with parole. (p. 7)

Relying on statistical findings about the reduced likelihood of parole after the 1992 and 1999 laws, the district court granted summary judgment for the plaintiffs, finding that they “faced a sufficient risk of increased punishment to prevail on their ex post facto claim” (p. 9). As a remedy, the district court enjoined the Parole Board to begin interviewing the longest-serving plaintiffs and to apply to them, as far as possible, the pre-1992 standards for whether to grant parole (see p. 10).

The Sixth Circuit reversed, quibbling with whether the plaintiffs’ data in fact established that they faced a risk of increased punishment, but also emphasizing that even if they did face such a risk, they could not convincingly trace that risk to the 1992 and 1999 laws. Rather, the increased risk could simply be the result of the Parole Board’s legitimate use of its discretion:

If the Parole Board decided within its discretion to get tougher, that could hardly amount to an ex post facto violation as long as it was within the Parole Board’s discretion to get tougher. This would be true even if the tougher attitude resulted from a change in personnel on the Board, even if the Board members independently developed a tougher attitude, and even if the Board members partook of a general public attitude that parole decisions should be tougher. By analogy, there is no ex post facto violation if a lenient judge is replaced by a strict one in a particular jurisdiction, such that a certain crime, say shoplifting or drunk driving, now regularly gets a sentence well above what was previously the case. Without some legal change other than a difference in the proper exercise of discretion, the shoplifter or the drunk driver simply had no ex post facto-protected interest in the more lenient sentence, as long as the more severe sentence was within the range available to the sentencing judge at the time of the crime. (p. 13)

Underneath the plaintiffs’ data and technical legal arguments, there seems to be a simpler complaint: They feel there’s nothing they can do to win parole anymore. They argue that the Michigan Parole Board no longer considers lifers’ efforts towards rehabilitation, and focuses instead on the initial offense — which, of course, the inmates can’t do anything to change. The plaintiffs claim that this new “life means life” stance resulted from a new statutory requirement that the Parole Board include at least four members of the community with no experience in the Department of Corrections:

For example, Gary Gabry, a former county prosecutor who chaired the new Board from 1992 to 1996, recalls:

I often found myself trying to get the focus off the crime and onto the candidate’s recent record in prison. I pushed the board to focus more on the prisoner’s behavior, adjustment and future plans and not primarily the sentencing offense, but it nearly always fell on deaf ears with at least five members of the board.

Gabry believes that after the addition of “school teachers and other professionals” to the Board, “it was just much harder for a prisoner to get out on parole.” In Gabry’s opinion, “the drop-off in . . . paroles . . . was largely a reflection of the new type of people who were appointed to the parole board in 1992.” (p. 14)

Full docket info: Foster, et al. v. Booker, et al., Nos. 08-1371/1372/1626, 6th Cir., Feb. 18, 2010.

Written by sara

February 23, 2010 at 7:01 am

2 Responses

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  1. […] but I’ve blogged previously about challenges to rubber-stamp parole boards in Virginia and Michigan. After I’ve had a chance to read the opinions more closely, I’ll blog again about any […]

  2. […] Sixth Circuit: When Parole Boards Get Tougher, It Doesn’t Violate the Ex Post Facto Clause. Michigan’s parole board has all but stopped granting parole in recent years; the Sixth Circuit says that’s OK. […]


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