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Onerous Change in Michigan Commutation Procedures Fails to State Ex Post Facto Claim

The Sixth Circuit Court of Appeals has held that a change in procedures for commutation of sentence does not constitute an ex post facto violation.

The appellate court ruled in a case involving Michigan prisoner Keith Lewis-El, who was serving a non-parolable life sentence for first-degree felony murder. Lewis-El appealed after the federal district court summarily dismissed his 42 U.S.C. § 1983 complaint against members of the Michigan Parole Board (MPB).

Although Lewis-El’s sentence was non-parolable, the MPB has the power to review a prisoner’s sentence and recommend to the governor that the sentence be commuted.
Lewis-El claimed that prison officials had advised him upon early admission that the Guidelines for Commutation Recommendations, known as “the grid,” were used to determine the earliest date when the MPB could recommend commutation.

With a score of twenty-seven, Lewis-El was told he would have to serve 27 years before such a recommendation.

In 2005, the Michigan Department of Corrections altered its guidelines for determining whether to recommend commutation. The new policy abandoned the grid, which specified a number of years before a recommendation could be made, and adopted a policy that sets an interview after ten years of incarceration with subsequent interviews every five years. A decision is then made whether to make a recommendation to the governor.

Lewis-El received four interviews but was never recommended for commutation. His next interview was set for 2012, and he alleged that under the grid he would likely be recommended for commutation since he would be past the 27-year date he received upon his admission to the prison system.

He filed suit raising an ex post facto claim, and argued that “because the parole board now exercises a ‘life-means-life’ policy, it will never recommend his case for commutation.” The federal district court dismissed his case sua sponte under 28 U.S.C. § 1915(e), finding no ex post facto violation.

The Sixth Circuit agreed with the district court’s rationale, holding that Lewis-El had failed to state a claim upon which relief may be granted. A recommendation for commutation is a discretionary act left to the MPB, the appellate court found. Likewise, a decision to commute a prison sentence “is left entirely to the decision of the governor of Michigan.”

The Court of Appeals wrote that Lewis-El failed to show a significant risk of increased punishment by the abandonment of the grid; it would be almost impossible to demonstrate that the changed procedures affected the outcome, because “the decision to commute a prisoner’s sentence is so tied to the personal predilections of the person occupying the governor’s office.”

Even the statistics that Lewis-El presented to show a decreased likelihood of commutation under the new policy were inadequate to prove an ex post facto claim, the Sixth Circuit held. The district court’s order of dismissal was accordingly affirmed. See: Lewis-El v. Sampson, 649 F.3d 423 (6th Cir. 2011).

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Related legal case

Lewis-El v. Sampson