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Fifth Circuit Holds Louisiana Commutation Changes Not Ex Post Facto

Fifth Circuit Holds Louisiana Commutation Changes Not Ex Post Facto

by Matt Clarke

In an opinion filed May 21, 2013, the Fifth Circuit Court of Appeals held that changes to commutation laws and rules in Louisiana, which gave the pardons board the authority to deny a hearing on commutation and increased the amount of time before a prisoner could reapply for commutation, did not violate the constitutional prohibition against ex post facto laws.

Robert Howard, a Louisiana state prisoner sentenced to life in 1968, has served over forty years. Life-sentenced prisoners in Louisiana are not eligible for parole; to become eligible, a prisoner serving life must first have his sentence commuted to a fixed number of years.

At the time of Howard’s offense, the rules of the Board of Pardons allowed a prisoner to reapply for a pardon or commutation one year after the previous board action. At that time, the governor could grant commutations based upon the recommendation of two of the following officials: the lieutenant governor, attorney general and trial court judge.

A revised state constitution enacted in 1974 created a new Board of Pardons; the governor could only grant pardons upon the board’s recommendation. Later changes in state law mandated a five-year period between commutation applications. Subsequent changes in board rules allowed the board to refuse to grant a hearing on an application for commutation, and those changes were applied to Howard to deny him a hearing.

Howard filed a federal civil rights action against the governor and Board of Pardons members, alleging that applying the changes in the laws and rules violated the ex post facto clause by creating a significant risk of increasing the length of his incarceration. The district court granted summary judgment to the defendants and Howard appealed.

Assuming arguendo that the ex post facto clause applies to changes in commutation procedures, the Fifth Circuit held that the changes in question resulted in only an attenuated and speculative chance of increasing Howard’s length of incarceration. The Court of Appeals noted that being granted a hearing did not mean Howard would receive a favorable recommendation, as he had had hearings in the past in which such a recommendation was denied. Further, a favorable recommendation did not mean he would receive a commutation, as he had been favorably recommended previously to three different governors, none of whom granted commutation. Finally, being granted commutation would not mean that he would then be paroled; it would only make him eligible for parole. Thus, it was extremely speculative that the commutation changes created a significant risk of increasing Howard’s incarceration, and consequently they did not constitute ex post facto violations.

The judgment of the district court was affirmed. Howard petitioned the U.S. Supreme Court for a writ of certiorari, which was denied in November 2013. See: Howard v. Clark, 719 F.3d 350 (5th Cir. 2013), cert. denied.

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