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Cumulative Tightening of Michigan Lifers' Parole Eligibility Rules Held Ex Post Facto

by John R. Dannenberg

The U.S. District Court for the Eastern District of Michigan, Southern Division, has held that a decade of cumulative changes to parole eligibility regulations for Michigan's life-sentenced prisoners violated the U.S. Constitution's ban on ex post facto laws.

While the ruling, on behalf of seven named lifers, might affect the fate of all of the state's 1,200+ lifers sentenced before 1992, the case is ongoing and precise relief for this class has not yet been determined. Nonetheless, the ruling is important to lifers nationwide who have become the victims of new and deleterious parole board rules applied retrospectively so as to create a "significant risk of increased penalty."

Prior to 1992, Michigan sentenced many prisoners to "life" for the purpose of giving them an incentive to rehabilitate themselves, with the reward being earned liberty. For example, a person sentenced to life for second-degree murder was expected, in reality, to obtain parole prior to a person sentenced to a fixed term of 25 years. Many judges who embraced the rehabilitative model of imprisonment never intended the life sentences they imposed to mean "no parole." And indeed, for many years, Michigan prisoners were released by the parole board upon satisfaction of the board?s rehabilitative expectations. But since 1992, time and politics have teamed up to alter reality, with the present state of affairs resulting in only a dozen lifers being released each year.
In April 2005, Prof. Paul Reingold and two law school students filed a 42 U.S.C. § 1983 class-action complaint against the Michigan Parole Board (Board) and Artina Hartman, Director of the Michigan Department of Corrections (MDOC).

The lawsuit alleged that the post-1992 Board rules, when applied to pre-1992 sentenced lifers, acted to increase their punishment in violation of the Ex Post Facto and Due Process clauses of the U.S. Constitution. The changed rules affected the former rights of (1) parole review every other year, (2) written reasons for denial, (3) an in-person hearing, and (4) judicial review of "a statement of no interest or a pass-over" (e.g., parole denial).

The court dismissed the due process claim but heard summary judgment arguments from both sides as to the ex post facto claim. Importantly, the court examined the cumulative effect of changes to parole procedures since the prisoners' convictions, reasoning that "a state cannot continuously make minor changes in the parole process that, taken together, create a sufficient risk of an increased penalty; but, when looked at alone, would not violate the Ex Post Facto Clause."

The court also refined the definition of the certified class. The amended definition encompassed "all parolable lifers in the custody of the [MDOC] who committed crimes (for which they received a parolable life sentence) before October 1, 1992, and whose parole the 'new' parole board has denied, passed over, expressed no interest in pursuing, or otherwise rejected or deferred." Excluded from this definition are so-called "drug lifers" who were convicted of distribution or possession of controlled substances.

Setting the ground for analysis, the court relied upon Weaver v. Graham, 450 U.S. 24, 29 (1981), which held "A court's inquiry into whether an ex post facto violation occurs is two-pronged: first, has a change in the law been given a retrospective effect; and second, has the change disadvantaged the offender."

Looking into retrospective effect, the court reviewed Mich.Comp.L. 791.234. A 1982 amendment to the statute provided parole eligibility to lifers after they had served ten years (except for first degree murder).
And unlike the 1992 amendment, it provided for parole interviews at the 4th, 6th and 8th years into the ten-year minimum. Additionally, parole could not be denied without at least one Board member conducting a personal interview. Finally, the prisoner was entitled to written reasons for his denial and had the right to appeal it.

The 1992 amendment increased the minimum time served from 10 to 15 years, reduced review frequency to the 10th, 15th and 20th years, permitted paper reviews of files instead of in-person hearings, and eliminated written reasons for denial by declaring such reviews to not be "decisions" of the Board. The Board argued that because its "no interest" file reviews did not rise to the level of hearings, they were not subject to judicial review and hence were not retroactive. Rather, they argued that the 1992 changes simply restored the law to the way it was before 1982. Since the seven plaintiffs were sentenced before 1982, the defendants argued that the later amendment had no net retrospective effect as to them.

However, the court ruled that the status of the seven pre-1982 named class representatives could not sink the ship of all the class members, which by definition included lifers sentenced between 1982 and 1992. Worse for the defendants, the Board's position that its "no interest" reviews served to insulate it from administrative appeals and judicial review resulted in the untenable posture that intervening rules changes could never be scrutinized for ex post facto analysis. Based upon these observations, the court easily concluded that the first prong, retroactivity, was met.

As to the second prong, whether the changes disadvantaged the class, the district court looked to California Department of Corrections v. Morales, 514 U.S. 499 (1995) and Garner v. Jones, 529 U.S. 244 (2000). The court found that Morales and Jones left wiggle room for a court to discern "disadvantaging" on a case-by-case basis, even though both precedents had found that that threshold was not met. The court also found guidance in Mickens-Thomas v. Vaughn, 321 F.3d 374 (3rd Cir. 2003) [See: PLN, June 2004, p. 24], which found that added state law language making public safety an overarching parole factor had left the Pennsylvania parole board exposed to an ex post facto challenge when it relied upon this language in lieu of its prior "all factors counseling in favor of release" standard.

Notwithstanding the Jones and Morales determinations that the challenged rule changes did not materially affect punishment, the court here looked at the "practical implementation" of the 1992 amendment and later Michigan parole rules changes in the aggregate to determine if the risk of prolonged incarceration was "significant."

The district court grounded its ensuing analysis in the substantive standard governing Michigan paroles, Mich.Comp.L. 791.233(1)(a): "A prisoner shall not be given liberty on parole until the board has reasonable assurance, after consideration of all the facts and circumstances, including the prisoner's mental and social attitude that the prisoner will not become a menace to society or the public safety.
The decision is discretionary." To measure this discretion against an ex post facto challenge, the court first held that it would consider not only the statute but also related policy directives, depositions and declarations.

With this in mind the court examined post-1992 Board conduct to evaluate the plaintiffs' claims that the new Board members were appointed for their anti-parole philosophy and willingness to please the Governor. The court determined that the new Board's approach to parole for lifers came down to "life means life."

Next, the district court found that the change in the new Board's exercise of discretion in having only paper reviews and extended denials "significantly impacts the length of time of actual punishment." The court considered the plaintiffs' statistical attack on the new Board's alleged abuse of discretion, wherein parole grants dropped from the pre-1995 rate of 5-15% (average time served 15-18 years) to a post-1995 record of 0.15% (average time served 23.2 years).

In conclusion, the district court held "The change in the make-up of the Michigan Parole Board, the Board's understanding of why the change occurred and how it was to exercise its discretion, its redefining of the eligibility procedure for non-mandatory lifers, and changes to the timing and intervals of the interview and review process, when considered in total have significantly disadvantaged the class and constitute a violation of the Ex Post Facto Clause." Accordingly, the court granted the prisoners' motion for summary judgment and denied the Board's motion. The case remains before the court for determination of injunctive relief. See: Foster Bey v. Rubitschun, USDC (E.D. Mich., Southern Div.), Case No. 2:05-cv-71318 MOB-VMM (Oct. 23, 2007) (unpublished).

PLN readers should note that this action was brought under § 1983 and, therefore, any relief forthcoming cannot result in foreshortening of punishment ? a remedy reserved exclusively to the forum of habeas corpus.
[See, e.g., Heck v. Humphrey, 512 U.S. 477 (1994)]. Nor can damages be awarded absent habeas relief. [See, e.g., Edwards v. Balisok, 451 U.S. 477 (1997)]. But the result can be given prospective effect to preclude the future use of unconstitutional procedures in the determination of Michigan parole considerations. [See, e.g., Wilkinson v. Dotson, 544 U.S. 74 (2005) (PLN, Aug. 2005, p.28)].

Readers should also note that application of this court?s findings might not apply to other states where the underlying state parole statutes do not give rise to the liberty interest available under Michigan law.

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Related legal case

Foster Bey v. Rubitschun