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Mickens-Thomas v. Vaughn

February 21, 2003

LOUIS MICKENS-THOMAS APPELLANT IN NO. 02-2213
v.
DONALD VAUGHN, SUPERINTENDENT; PENNSYLVANIA BOARD OF PROBATION AND PAROLE; THE PENNSYLVANIA BOARD OF PARDONS; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA PENNSYLVANIA BOARD OF PROBATION AND PAROLE APPELLANT IN NO. 02-2047



Appeal from the United States District Court For the Eastern District of Pennsylvania D.C. No.: 99-cv-06161 District Judge: Honorable Ronald L. Buckwalter

Before: Sloviter, McKEE, and Rosenn, Circuit Judges.

The opinion of the court was delivered by: Rosenn, Circuit Judge

As amended February 27, 2003.

LOUIS MICKENS-THOMAS APPELLANT IN NO. 02-2213
v.
DONALD VAUGHN, SUPERINTENDENT; PENNSYLVANIA BOARD OF PROBATION AND PAROLE; THE PENNSYLVANIA BOARD OF PARDONS; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA PENNSYLVANIA BOARD OF PROBATION AND PAROLE APPELLANT IN NO. 02-2047

Appeal from the United States District Court For the Eastern District of Pennsylvania D.C. No.: 99-cv-06161 District Judge: Honorable Ronald L. Buckwalter

Leonard N. Sosnov (Argued) 1027 Abington Avenue Wyndmoor, PA 19038 David Rudovsky Kairys, Rudovsky, Epstein & Messing 924 Cherry Street, Suite 500 Philadelphia, PA 19107 Counsel for Louis Mickens-Thomas

Syndi L. Guido (Argued) Office of General Counsel Commonwealth of Pennsylvania 333 Market Street, 17th Floor Harrisburg, PA 17101 Robert N. Campolongo Pennsylvania Board of Probation & Parole Executive Offices 1101 South Front Street, Suite 5100 Harrisburg, PA 17108-1268 Counsel for Vaughn, PA Bd Prob. and Parole, PA Bd Pardons, Atty. Gen. PA

Before: Sloviter, McKEE, and Rosenn, Circuit Judges.

The opinion of the court was delivered by: Rosenn, Circuit Judge

PRECEDENTIAL

Argued: December 19, 2002

OPINION OF THE COURT

This appeal has its genesis in the material modification of parole laws by the Pennsylvania legislature in 1996 and corresponding changes in the parole decisionmaking policies of the Pennsylvania Board of Probation and Parole ("Board").*fn1 As a consequence, the post-1996 parole regime placed primary consideration on the risk to public safety by the parole petitioner as the dominant factor in evaluating parole applications. The United States District Court for the Eastern District of Pennsylvania held that the Board retroactively applied this policy change adversely to the parole applications of Louis Mickens-Thomas ("Thomas"), in violation of the Ex Post Facto clause. The Commonwealth timely appealed; Thomas cross-appealed on his claim that the Board violated his due process rights when it denied his parole applications. We affirm.*fn2

I.

A. Pre-1996 Parole Considerations in Pennsylvania

Thomas is currently serving a life sentence for the 1964 rape and murder of a 12-year-old girl in Philadelphia, Pennsylvania. The parties agreed to vacate the original guilty verdict because of the unreliability of the expert whose testimony connected fibers and microscopic particles found on the victim to Thomas. In 1967, the state trial court granted Thomas a new trial; in 1969, he was again convicted.*fn3 His second conviction was upheld by the Pennsylvania Supreme Court in 1972. However, Thomas still professes innocence. Thomas is presently 74-years-old and has been in prison for nearly 40 years. His current efforts to seek release on parole have garnered the strong support of prisoner advocates, incurred the equally vehement opposition of the Philadelphia District Attorney, and have attracted considerable media scrutiny.

Life sentences in Pennsylvania presumptively exclude any possibility of parole. The only exception occurs when the governor-appointed Pardons Board recommends commutation of the inmate's sentence by majority vote, and the Governor subsequently approves the commutation. Thomas was one of only 27 sentences commuted by former Governor Casey out of nearly 3000 life terms being served during his tenure as governor. By the terms of his commutation, Thomas became eligible for parole on July 21, 1996. In recommending commutation, the Pardons Board noted Thomas's attainment of a college degree, his participation in Alcoholics Anonymous, his participation in sex-offender therapy, the support of the Corrections Department, the long length of time served, the numerous recommendations from scholars, religious, and community leaders, and Thomas's overall maturity and stability.

Following a commutation, a prisoner seeking to be released must still submit to the same parole procedures applicable to all other prisoners. Furthermore, the parole must first be approved by the Board, which virtually has unreviewable power to grant or deny the parole application.

Around the time of Thomas's eligibility for parole, new appointments of then-Governor Ridge were placed on the Board in 1995;*fn4 a parolee from the Pennsylvania prison system was arrested for murder in New Jersey in 1995; and in early 1996 a Pennsylvania Senate committee, in view of the New Jersey arrest, strongly recommended that the Board place added emphasis on community safety. In December 1996, Pennsylvania enacted a change in its law concerning the Board's mission, which arguably placed greater emphasis on public safety as a criterion for parole release.

In December 1996 the Pennsylvania legislature modified the law governing parole in Pennsylvania. The new language, inserted into the aspirational introductory provision of the Pennsylvania parole statutes, provides that the public safety must be considered "first and foremost" in the Board's execution of its mission. The relevant statute, in its post-1996 form, provides as follows:*fn5

S 331.1. Public policy as to parole

The parole system provides several benefits to the criminal justice system, including the provision of adequate supervision of the offender while protecting the public, the opportunity for the offender to become a useful member of society and the diversion of appropriate offenders from prison. In providing these benefits to the criminal justice system, the board shall first and foremost seek to protect the safety of the public. In addition to this goal, the board shall address input by crime victims and assist in the fair administration of justice by ensuring the custody, control and treatment of paroled offenders. 61 P.S. S 331.1

The 1941-1996 statute, in effect at the time of Thomas's conviction, made no specific mention of public safety. It provided:

The value of parole as a disciplinary and corrective influence and process is hereby recognized, and it is declared to be the public policy of this Commonwealth that persons subject or sentenced to imprisonment for crime shall, on release therefrom, be subjected to a period of parole during which their rehabilitation, adjustment, and restoration to social and economic life and activities shall be aided and facilitated by guidance and supervision under a competent and efficient parole administration, and to that end it is the intent of this act to create a uniform and exclusive system for the administration of parole in this Commonwealth.

To assess this modification of the statute, one must regard this change in the context of recent policy statements issued by the Board and other government officials. Other events coincident with the 1996 revision must also be considered to determine whether, in practice, the parole policies of the Commonwealth have undergone any substantive changes.*fn6 The Board's 1989 Manual of Operations and Procedures recognized that "[p]robation and parole services must consider that offenders can change their behavior patterns when desirous, capable, and given the opportunity, help, dignity, and respect they deserve as human beings." The Manual goes on to state that, in considering an inmate for parole, the Board must "weigh[ ] numerous factors relative to the welfare of the client and the safety of the community," including seriousness of the offense; length of the sentence; institutional adjustment (behavior and program adjustment); and assessment of the effect of rehabilitation services while incarcerated. Whether the individual can be safely supervised in the community, personality characteristics, any history of family violence, strength of the parole plan (home and employment), testimony from victims, and opinions of the sentencing judge and prosecuting attorney must also be considered.

In reaching its parole decision, "[t]he Board. . . feel[s] that an individual should be given every consideration for parole at the expiration of the minimum sentence." The 1990 Board-authored "Parole Decision Making Guidelines: A Statement on Policy, Procedure and Philosophy," stated that "[a]n eligibility for parole expresses a philosophy of presumed release unless information reviewed demonstrates by its preponderance that the public safety interests of the community outweigh the liberty interests of the inmate."

A decisional protocol called the "Parole Decision Making Guidelines" played a critical role in the Board's decisionmaking process pre-1996. The Guidelines provided an objective prediction of the likelihood of a successful parole by assigning numerical values to various criteria, based on historical patterns of parolee recidivism rates.

According to the Board-authored 1991 "Guidelines: A Special Report Prepared for the House Judiciary Committee," the Guidelines considered factors which, based on a study of past instances of recidivism, were predictors of future recidivism in potential parolees. For example, historically, those convicted of theft offenses have high recidivism rates. Thus, they are assigned a higher score; similarly, substance abusers are high recidivists, and correspondingly, they have higher scores assigned in the Guidelines. If enough of these negative predictors are present, the aggregate score will fall above a threshold value, and the Guidelines will recommend against parole.

In addition to risk of recidivism, "risk to the community" is also a relevant factor under the Guidelines in determining whether parole is warranted. Thus the Guidelines, in addition to calculating the risk of recidivism, add additional points for offenders whose post- parole conduct might include violent behavior, categorizing them as having "high assaultive behavior potential." Therefore, a person who initially committed a violent crime will be evaluated as a parole candidate under the Guidelines, based upon his or her risk to the public as a function of both the likelihood of recidivism and the severity of the crime he or she might commit as a recidivist. The Board's 1990 Statement on Policy, Procedure and Philosophy notes that

[i]nherent in the concept of risk management is the notion that some crimes, although less likely to be repeated, have more serious consequences than others if repeated. In other words, although some offenders may be low risk from the viewpoint of recidivism and parole supervision failure, the stakes are high in terms of protecting the public if their new crime is violent or serious in nature.

According to the House Judiciary Report, the Guidelines are "related to an empirically sound, criterion-referenced policy assessment which evaluates each inmate in terms of criminal justice policy and normative past practice in parole decision making." Although the Guidelines aspire to objectivity in parole decision making, the Board periodically has countermanded their recommendations.

The 1990 Statement on Policy, Procedure and Philosophy declared that the Guidelines protocol typically determined "approximately eighty percent of the decisions rendered." The Statement notes, however "that the structuring of discretion does not eliminate it; the burden of the ...


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