                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-21-2003

Mickens-Thomas v. Vaughn
Precedential or Non-Precedential: Precedential

Docket 02-2047




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Recommended Citation
"Mickens-Thomas v. Vaughn" (2003). 2003 Decisions. Paper 772.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/772


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PRECEDENTIAL

       Filed February 21, 2003

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 02-2047 & 02-2213

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

Argued: December 19, 2002

Before: SLOVITER, McKEE, and ROSENN, Circuit Judges.

(Filed February 21, 2003)

       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

OPINION OF THE COURT

ROSENN, Circuit Judge:

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").1 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
_________________________________________________________________

1. The Board is the only named party electing to participate in this
appeal, and the only party against whom our judgment in this case
applies.

                                2


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.2

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.3 His second conviction was upheld by the
_________________________________________________________________

2. The District Court exercised jurisdiction under 28 U.S.C. S 2254(a).
We have appellate jurisdiction under 28 U.S.C. S 2253. Section 2253
requires that, in habeas appeals where the alleged unlawful detention
arises out of process issued by a state court, a certificate of appealability
is required before appeal by a habeas petitioner will be heard. A
certificate of appealability was issued by the District Court, and thus our
jurisdiction is proper. Moreover, such a certificate may be unnecessary
because the Commonwealth initiated the appellate proceedings, and the
petitioner merely filed a cross-appeal. See Rios v. Wiley, 201 F. 3d 257,
262 n.5 (3d Cir. 2000). Although it appears state court recourse was
exhausted by an appeal to the Pennsylvania Supreme Court, that case
is not part of this record. However, exhaustion is not jurisdictional and
is waivable. Narvaiz v. Johnson, 134 F.3d 688, 693 n.1 (5th Cir. 1998).
Inasmuch as the Board has not made an issue thereof, exhaustion is
deemed waived. We exercise plenary review in a habeas proceeding over
a district court’s legal conclusions, and we review factual findings for
clear error. Rios, 201 F.3d at 262. The relevant facts in the case before
us are largely undisputed, and our decision rests upon the application
of the Ex Post Facto clause to the facts at issue. Therefore, our review
of the District Court is plenary.
3. More specifically, the first conviction was rejected because the
prosecution’s lead witness, a technician who matched fibers and debris
from Thomas’s shoe repair shop to those found on the girl’s body, was
found to have falsified her credentials and to have perjured herself in
another case. At the second trial, the technician’s supervisor
corroborated the technician’s testimony and vouched for the correctness
of the analysis.

                                3


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;4 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
_________________________________________________________________

4. Three of five members of the Parole Board were Governor Ridge
appointees in 1995. In 1997, after changes in parole laws increased the
size of the Board, six out of eight were Ridge appointees.

                                4


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:5

       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
_________________________________________________________________

5. This provision is a preface to a comprehensive set of rules governing
parole in Pennsylvania. Other provisions too were changed in 1996, but
none materially for the purposes of this case.

                                5


       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.6 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." App. 284. 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." App.
285. 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
_________________________________________________________________

6. The Board argues that the statutory provision pertains only to
supervision of inmates previously granted parole, and not to the
determination of parole eligibility. However, even if this were so, the plain
language of the statute is merely one barometer of a change in parole
policy. Accordingly, we look to all the Board’s actions and statements of
policy to determine how it interpreted the statutory provisions.

                                6


reviewed demonstrates by its preponderance that the public
safety interests of the community outweigh the liberty
interests of the inmate." App. 243.

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. App. 256. 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.
App. 246.

In addition to risk of recidivism, "risk to the community"
is also a relevant factor under the Guidelines in
determining whether parole is warranted. App. 252. 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." App.
52. 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

                                7


       parole supervision failure, the stakes are high in terms
       of protecting the public if their new crime is violent or
       serious in nature.

App. 246.

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." App. 256. 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."
App. 247. The Statement notes, however "that the
structuring of discretion does not eliminate it; the burden
of the decision remains with the decision maker to evaluate
the merit of each case." App. 249.

Thus, before 1996, about 20% of such decisions were
decided contrary to the Guidelines recommendation.
Nonetheless, a discretionary Guidelines departure must
give full weight to all the factors, both for and against
release. The Report stated that decisions which
countermand the Guidelines are "rarities," and"require
written explanation to justify the policy exception." In
reaching a decision outside the Guidelines, the Board
cannot merely recite factors already incorporated in the
Guidelines analysis; instead it must consider
"consequential characteristics" of the applicant that are
"objectively unique" to the factors already incorporated into
the Guidelines analysis.7 App. 254. A Guidelines worksheet
is provided along with the formal numerical protocol, to
permit elucidation of non-Guidelines factors reached in a
parole decision, as well as a checklist (Part IV.B. of the
Guidelines) for designation of common non-Guidelines
_________________________________________________________________

7. Factors considered within the Guidelines analysis include substance
abuse, prison misconduct, nature of the underlying offense, and victim
injury.

                                8


factors which may have been significant in reaching a
decision contrary to the Guidelines recommendation. 8

In early 1995, Robert "Mudman" Simon, who had been
released on parole from his Pennsylvania prison sentence,
was arrested and charged with murder in New Jersey. 9 In
mid-1995 Simon’s release led to the publication of a
"System-Wide Assessment" of the Board, by the
Pennsylvania Inspector General, in which it was determined
that more emphasis on public safety and on the nature of
the underlying crime was needed in making parole
decisions. The System-Wide Assessment noted that the
Board management generally "has emphasized [inmate]
interests over community protection," and that one faction
of Board officials perceives "reintegration into society [as]
the primary mission," while another faction "focuses . . . on
the protection of society." App. 297.

The Chairman of the Pennsylvania Senate Judiciary
Committee, reporting on the investigation of the parole of
Simon, published in February 1996, noted that following a
1989 prison riot in Pennsylvania, "reduction in prison
overcrowding through the parole process became an
objective of [the Board] coequal with assuring public
safety." App. 326. The Report also noted that the Board
recently "has set out to establish public safety as a priority
including a more careful review of parole eligible cases."
App. 343. Accordingly, the Report recommended that
"[e]xisting statutes and policies should be looked at,
amended, restated and/or purged as necessary to
effectuate the new corrections philosophy of Pennsylvania
[emphasizing] public safety. . . ." App. 351 (emphasis
added.)
_________________________________________________________________

8. These factors include the presence of psychotic or dangerous
behavioral characteristics manifested during the parole interview; recent
psychiatric reports causing concern; a pattern of habitual offense of
assaultive crimes; or an unfavorable recommendation from the
Department of Corrections staff.

9. Former Governor Ridge made a campaign issue of the commutation
and release of Reginald McFadden, who also ended up killing again upon
his parole in 1994. This was considered by some to be instrumental in
the defeat of Ridge’s opponent, then-Lt. Governor Singel, who, as a
member of the Pardons Board, had voted to release McFadden.

                                  9


The Board’s self-assessment report, entitled "Fiscal Years
1995-1997 Biennial Report," stated that "[i]n recent years,
the Governor and General Assembly have mandated
through statute that the foremost concern for the Board
must be the protection of the safety of the public .. . ." The
Report went on to note recent "heightened awareness and
concern for public safety," which prompted it to institute
more careful review procedures for cases involving"violent
offenders." App. 219. Thus, both the Judiciary Committee
Report of February 1996 and the contemporaneous
Biennial Report gave public notice that henceforth the
"foremost concern" of the Board would be the safety of the
public.

B. Thomas’s Parole Applications

We now turn to the effect of the Board’s new policy on
Thomas’s parole application. When Governor Casey
commuted Thomas’s sentence, he authorized the
Department of Corrections to "prerelease" Thomas,
presumably into a transitional facility, prior to Thomas’s
parole-eligibility date. This the Corrections Department
declined to do. App. 663. Then, in the Board’s first review
of Thomas’s case in September 1996, it also declined to
parole him on the ground that, under the new law passed
in 1995, "prerelease" was made a necessary precondition of
parole. The Commonwealth Court heard Thomas’s
mandamus action in which he sought to direct the Board to
hear his parole petition. In that case, the Board conceded
that its application of the "prerelease" law violated the Ex
Post Facto clause. The court remanded the case to the
Board, and ordered it to hear the merits of the parole
application and issue its decision within 10 days. See
Mickens-Thomas v. Pennsylvania Board of Probation and
Parole, 699 A.2d 792 (Pa. Commw. Ct. 1997).

Soon thereafter, in August 1997, the Board issued its
decision, relying in part on its Decision Making Guidelines
to reach a conclusion as to parole eligibility. 10 Thomas
_________________________________________________________________

10. The Guidelines manual states that they were"designed to represent
observable standards of justice in making decisions and to link behavior
with societal sanctions in a clearer manner. . . . A process of structured
review acts to balance the inmate’s liberty interest with the interests of
society for a safe and secure community."

                                  10
received a Guidelines-based recommendation for release,
App. 432, along with the recommendations of all voting
Department of Corrections institutional staff, including the
prison counselor and housing officer. See Department of
Corrections Vote Sheet, March 11, 1996, App. 631. Thomas
demonstrated his participation in pre-release counseling,
including Alcoholics Anonymous and sex offender therapy,
as well as participation in college courses and job training.
Thomas also had post-release support networks in place.
App. 44. Nonetheless, the Board denied Thomas parole in
1997. The Board stated its reasons for the denial in a
formal letter to Thomas called the "Board Decision." The
reasons given were as follows: "Assaultive instant offense.
Very high assaultive behavior potential. Victim injury.
Unfavorable recommendation from District Attorney.
Conviction of prior assault offense." App. 441. Many of
these factors were automatic designations; for example,
Thomas’s past crime was a sex offense, which caused him
to be automatically classified on the Board Decision as
having "very high assaultive behavior potential." App. 52;
Board Reply Brief 14.

The Board’s 1997 Decision urged Thomas to secure the
following before his next application review: investigation of
a home plan; the availability of out-patient sex-offender
treatment; participation in a program plan prescribed by
Department of Corrections officials; maintenance of a good
conduct record; a continuing institutional recommendation
for parole; and an evaluation by mental health
professionals, with experience with sex offenders. The
Board made these recommendations in spite of Thomas’s
apparent compliance with all of the Board’s suggestions
prior to the hearing. For example, he had a good conduct
record and the endorsement of prison staff.

The Board urged a psychiatric examination, despite the
existence of a pre-commutation 1993 psychiatric report
supporting Thomas’s release.11 There were other
_________________________________________________________________

11. In particular, the Board seemed concerned, in its 1997 Guidelines
worksheet, that Thomas had only undergone psychological, and not
psychiatric evaluations. This 1993 report, authored by a psychiatrist,
belies the Board’s claim that Thomas had never received a psychiatric
evaluation.

                                11


psychological evaluations in his file that did not
contraindicate release. Although Thomas had engaged in
sex offender therapy, there is some indication, based on
handwritten notes on the Board’s decision making
worksheet, that the Board may have been troubled by
Thomas’s presence in a "deniers" group -- those who deny
responsibility for the underlying offense -- rather than an
"admitters" group. App. 434. The Board Decision makes no
specific mention of the admitter-denier distinction, and its
internal notes make only passing mention of the issue.12
Later, in 1997, the Pennsylvania Supreme Court heard
Thomas’s habeas petition but summarily denied it.

Thereafter, Thomas apparently complied with all of the
Board’s prerequisites stated in its 1997 Decision. He
maintained the positive recommendation of corrections
authorities, who once more unanimously recommended his
release and noted that he was in compliance with treatment
programs. The prison counselor, corrections officer and
psychologist all endorsed his release. App. 634. He
continued to participate in a sex-offender therapy program
-- although it was a "deniers" program -- along with an
Alcoholics Anonymous program. Post-release support
networks were in place. And the Guidelines assigned
Thomas a risk-assessment score which militated in favor of
release. App. 424.

Despite his compliance with essentially all of the Board’s
conditions, it again denied parole in March 1998, stating:
"Assaultive instant offense. Very high assaultive behavior
potential. Victim injury. Your need for counseling and
treatment." App. 440. In this latest Board Decision, it again
advised Thomas to seek counseling and treatment, to
participate in prescribed programming, to maintain a clean
record and obtain institutional recommendation for the
purposes of his next application. Unlike the 1997 decision,
the 1998 decision recommended no specific sex offender
treatment, nor mentioned in its internal decision making
_________________________________________________________________

12. The Board is not required to give every reason for its denial on the
Board Decision. App. 248. However, its internal notes fail to show that
it considered the admitter-denier problem to be a serious matter. The
issue is merely mentioned in a neutral way.

                                12


worksheet that Thomas was in a "denier" group. Moreover,
despite the comment that Thomas needed "counseling and
treatment," psychiatric and psychological evaluations did
not contraindicate his release. Presumably in response to
the 1997 Board Decision’s admonition that Thomas needed
to be evaluated by a mental health professional, the Board
noted, in its worksheet, that a 1998 psychological
evaluation showed Thomas to be an "average risk
candidate." App. 426. The Department of Corrections
psychologist, in the 1998 Vote Sheet, noted "No
Psychological Contraindications" for release. App. 634.

A 1996 psychological evaluation did show an "antisocial
personality," and "possible sexual preoccupation and
psychosexual immaturity." App. 623. However, the
decisionmaking worksheet does not reflect that the Board
was deeply concerned with those findings, and instead only
made mention, in a handwritten notation, of the 1998
psychological report’s conclusion that Thomas was an
"average risk candidate." No notation was made of two
earlier psychological evaluations, which had more clearly
favored release. One 1993 report called Thomas "a good
candidate for commutation from the psychological
perspective." App. 649a. A second 1993 psychiatric report
added there was no "psychiatric contraindication[to
commutation]" and that Thomas "has developed
significantly during his years of imprisonment." App. 650.
In December 1999, Thomas sought a writ of habeas corpus
in the United States District Court.

Again, the Board denied his parole in 2000, during the
pendency of these habeas corpus proceedings. The Board
gave as its reason the cryptic statement that it"has
determined that the mandates to protect the safety of the
public and to assist in the fair administration of justice
cannot be achieved through your release on parole." App.
439. Again, all voting members of the Department of
Corrections institutional staff, including his counselor and
work supervisor, unanimously recommended his parole.
App. 624. Again, he demonstrated a continued record of
good conduct in prison and participation in sex offender
therapy and all other programming prescribed by the
Department of Corrections. Nonetheless, the Board denied

                                13


parole. Again, the Board advised Thomas to maintain his
Department of Corrections recommendation as a
precondition for consideration at his 2002 parole hearing.
But, in 2000 the Board revived its 1997 recommendation
that Thomas should undergo sex offender therapy as a
suggested pre-condition for release. Handwritten notes
again show that the Board may have been concerned that
he was in a "denier" group -- although, once more, no
mention of this concern is made in the formal Board
Decision. The lack of admitter therapy is simply stated in a
neutral, non-critical way in the Guidelines worksheet. App.
415.

Finally, although the decision-making guidelines had
assigned Thomas a favorability score that counseled in
favor of parole on both the 1997 and 1998 applications, the
2000 decision, despite no evidence of changes in his
situation, reached a different outcome. App. 414. The Board
interviewer classified Thomas as a habitual substance
abuser on the Guidelines form, which increased Thomas’s
risk score by 3 and placed him in an unfavorable category
for release. The Board did not indicate why it made this
material alteration to what appears to be a boilerplate risk-
assessment protocol. Thomas apparently did have a record
of alcohol abuse prior to his incarceration in 1964 (for
which he attended Alcoholics Anonymous while in prison)
but it is unclear why, if past alcohol abuse over forty years
ago was a relevant factor, it had not been considered on his
two prior Guidelines evaluations.

Moreover, the Guidelines were modified since his last
application, with a score of 2 now added to Thomas’s
overall score as a result of "Victim Injury" (the past two
evaluation forms assigned only a score of "1" for Victim
Injury). As a direct result of these changes Thomas’s score
ascended to nine, placing him in a category exceeding
seven. Therefore, the Guidelines contraindicated parole. In
summary, the Board denied Thomas parole a total of three
times, in 1997, 1998 and 2000, although he complied each
time with all of the Board’s recommendations, except for
his continued enrollment in the deniers group. The Board
denied parole to Thomas alone of all 266 prisoners whose
life sentences had been commuted.

                                14


In Thomas’s current habeas petition, he alleges that the
Board denied his parole in violation of the Ex Post Facto
clause, by applying retroactively the revised December 1996
parole statute. According to Thomas, he had a
constitutional expectation that his parole petition would be
evaluated under the laws in effect when he was convicted.
The District Court agreed that the Board violated the Ex
Post Facto clause by applying the 1996 statutory mandate.
However, the Court declined to rule outright that Thomas
would have been paroled under the prior rule; instead, it
remanded the case to the Parole Board to rehear the matter
under the pre-1996 laws. Thomas also asked that the
District Court order his release on the grounds that his due
process rights were violated. The District Court held that,
although Thomas had complied with all the seeming
prerequisites for relief as prescribed by the Board, the
presence of any evidence sufficient to show that the Board
based its decision on a rational and good faith exercise of
discretion, vindicated its action. Thus, the District Court
concluded, there was no due process violation. See
Mickens-Thomas v. Vaughn, 217 F.Supp.2d 570 (E.D. Pa.
2002).

The District Court remanded the case to the Board to
apply its pre-1996 parole policies to the Thomas petition.
The Board appealed, and Thomas cross-appealed, on the
denial of his due process claim and on the court’s failure to
grant him release outright as a result of the Ex Post Facto
violation.

II. Ex Post Facto Violation

A. The New Parole Policy of 1996

The Ex Post Facto clause of the United States
Constitution applies to a statutory or policy change that
"alters the definition of criminal conduct or increases the
penalty by which a crime is punishable." California Dep’t of
Corrections v. Morales, 514 U.S. 499, 506 n.3 (1995). A new
law or policy violates the Ex Post Facto clause (1) when it
is retrospective, i.e., when it "appl[ies] to events occurring
before its enactment," and (2) when it "disadvantage[s] the

                                15


offender affected by it." Weaver v. Graham , 450 U.S. 24, 29
(1981); see Coady v. Vaughn, 251 F.3d 480, 488 (3d Cir.
2001). As to the first criterion for an Ex Post Facto
violation, the Board strenuously argues in its brief (p. 14)
that "the 1996 amendments . . . did not change the Board’s
standards for determining parole." First, it asserts that
Pennsylvania’s statement of public policy for parole, 61 P.S.
S 331.1, refers to the supervision of parolees, rather than to
conditions of release.

The foregoing argument has little merit. The statute
unequivocally has been interpreted by Pennsylvania courts
to express broad and general aspirations of Pennsylvania’s
parole policy. See Stewart v. Pennsylvania Bd. of Probation
and Parole, 714 A.2d 502, 508 (Pa. Commw. Ct. 1998)
("Section 1 of the Parole Act, 61 P.S. SS 331.1, . . .
enunciates the state’s public policy concerning parole
. . . ."). The essential matter before us is not whether the
statute on its face pertains to parole decisionmaking, but
whether, in practice, the new language has altered the
fundament for reviewing parole applications. See Garner v.
Jones, 529 U.S. 244, 256 (2000). We look beyond the
language of the statute and examine the Board’s
pronouncements of policy and its public statements that
shed light on the interpretation of its statutory mandate.
These suggest that after 1996 the Board gave foremost
importance to the public safety factor. This is confirmed by
the report in the September 20, 2000 Harrisburg Patriot-
News, when then-Board chairman William Ward observed
that legislative changes around 1995 recast the Board’s
mission to put public safety first.

The Board also asserts that its policy historically has
placed equal emphasis on the interests of the inmate and
the interests of public safety, and it points in its brief to us
to statutory language in effect in the 1940s to prove this
point: "whenever in its opinion [1] the best interests of the
convict justify or require his being paroled and[2] it does
not appear that the interest of the Commonwealth will be
injured thereby," a prisoner will be granted parole. Board
Brief at 11-12. The Board correctly notes that the potential
risk to public safety in granting parole has always been a
consideration in the decisional process. It claims that other

                                16


provisions of the parole statute have, under both the earlier
and the current versions, required that the Board"consider
the nature and circumstances of the offense committed,
[and] the general character and background of the
prisoner." 61 P.S. S 331.19.13 However, to state that public
safety was always a consideration does not mean that the
Board gave it the same weight after 1996 in the decisional
equation.

The record is convincing that after 1996, the Board
applied to the public safety interest far greater weight. The
evidence here demonstrates that since 1996, the Board has
given special weight to the risk to public safety. Pre-1996,
a prisoner could be denied parole because of public safety
concerns only if those concerns together with other relevant
factors outweighed, by a preponderance, the liberty
interests of the inmate. The 1996 policy change placed first
and foremost the public safety to the disadvantage of the
remaining liberty interest of the prisoner.

The Pennsylvania courts have suggested that the 1996
public safety directive has caused the Board to review the
petitions of violent offenders with redoubled scrutiny: "As a
result [of statutory and policy changes in 1996], violent
offenders are subjected to a more stringent standard of
review for parole eligibility than nonviolent offenders. The
_________________________________________________________________

13. The provision provides in pertinent part:

       It shall be the duty of the board . . . to consider the nature and
       circumstances of the offense committed, any recommendations
       made by the trial judge and prosecuting attorney, the general
       character and background of the prisoner, participation by a
       prisoner who is serving a sentence for a crime of violence as defined
       in 42 Pa.C.S. SS 9714(g) (relating to sentences for second and
       subsequent offenses) in a victim impact education program offered
       by the Department of Corrections and . . . the testimony of the
       victim or the victim’s family . . . . The board shall further consider
       the notes of testimony of the sentencing hearing, if any, together
       with such additional information regarding the nature and
       circumstances of the offense committed for which sentence was
       imposed as may be available. The board shall further cause the
       conduct of the person while in prison and his physical, mental and
       behavior condition and history, his history of family violence and his
       complete criminal record . . . to be reported and investigated.

                                17


purpose behind the classification and the disparate
treatment between the violent and nonviolent offenders is
the protection of public safety." Myers v. Ridge, 712 A.2d
791, 799 (Pa. Commw. Ct. 1998). Furthermore, the policy
change around 1996 took place in the ambience of
numerous policy statements that shed light on the Board’s
interpretation of its statutory mission: it clearly viewed its
statutory mandate to require special emphasis on public
safety.

Our attention is directed to the 50th Anniversary Report
of the Board (1991), which states in its concluding
paragraph that "protection of society" is the Board’s
"primary goal." App. 187. Read in context, however, this
passage applies to the Board’s supervision of parolees. This
same passage provided that "conditional release" permits
the Board to meet its goal of protecting society. An earlier
section of the document states that "[t]he immediate goal of
parole supervision is the protection of society," by closely
supervising the parolee and setting "conditions" for
continued release, pertaining to work, health, education or
other needs, that ensure smooth reintegration and, hence,
the public safety. App. 185 (emphasis added). Upon
analyzing this language, it is obvious that the Board meant
in this report that "conditional release," with fixed
conditions for continued parole, is designed to safeguard
the public after a parole has been granted. Thus, this 1991
anniversary report sheds no light on the post-1996 Board
treatment of "public safety" as a factor before parole is
granted.

The statistical evidence is quite staggering here, and
strongly confirms the change in policy in 1996: of the 266
historical instances of commuted sentences on which the
Board has kept records, all were granted parole on the first
or second application. Many, if not most, of these original
sentences were for violent crimes. Doubtless, these earlier
Parole Boards spanned a wide spectrum of political and
penological philosophies. Yet, the gubernatorial grant of
commutation of sentence had such significance that the
Board agreed to parole every commutee on his or her first
or second application. The Thomas application is
distinguished from these 266 cases only by the intervening
policy directive of 1996, emphasizing public safety.

                                18


In addition to these statistics, substantive declarations of
Board policy strongly support the proposition that, after
1996, the Board applied a new standard. A 1996 report by
the Legislative Judiciary Committee strongly exhorted the
Board to reform its parole policies by placing greater stress
on public safety. A 1997 self-assessment by the Board
specifically noted that during the 1995-1997 period, public
safety became the Board’s new "foremost concern." The new
Guidelines, implemented between 1998 and 2000, placed
more weight on "Victim Injury." The 2000 Board Decision
denying Thomas’s parole noted that its action was
consistent with the Board’s "mandate" to protect the public.
This language did not appear on earlier Board decisions
and reflects its new parole policy.

These declarations stand in bold contrast to the pre-1996
policies, which commanded that the Board give weight to
various factors in the parole process, such as Department
of Corrections staff recommendations, educational
accomplishments, job training, and therapy programs. This
factor-based approach strongly suggests that dispositive
weight should not be given to any one factor.14 Pre-1996,
release upon eligibility for parole was presumed, and any
decision to deny parole based on public safety
considerations had to be supported by specific reasons,
which outweighed those factors favoring release. Prior to
1996, a Board recommendation contrary to the Guidelines
required that the Board have "appropriate reasons for [its
parole denial] decision." Because the pre-1996 Guidelines
already factored in the risk to public safety vis-a-vis
relevant recidivism indicators, the Board after 1996 could
not give added, and certainly not exclusive, weight to public
safety in overruling the Guidelines.

We conclude, then, that prior to 1996, the Board’s
concern for potential risks to public safety could not be the
sole or dominant basis for parole denial under the existing
Guidelines. Considerations of public safety were already
_________________________________________________________________

14. The Guidelines themselves embody this philosophy. They are
designed so that: "No single reason-for-refusal will justify the denial of
parole: a preponderance of negative reasons will countervail release."
App. 253.

                                19


incorporated into its Guidelines analysis; the Board had to
point to "unique" factors as a basis for its rejection of the
Guidelines. Moreover, the Board had to weigh all factors,
militating for and against parole, and make its decision on
the totality of the factors pertinent to parole, and give
appropriate weight to the interests of the inmate. Heavy foot
application on one factor could not have been the basis of
granting or rejecting parole. Policy declarations in and after
1996 demonstrate that Board stance shifted and that,
indeed, post-1996 considerations of public safety became
the dominant concern of the Board.

B. Application of New 1996 Policy to Thomas

The possession of a discretionary component in a parole
policy does not per se exempt it from constitutional
scrutiny. "The presence of discretion does not displace the
protections of the Ex Post Facto clause." Garner, 529 U.S.
at 253; cf. Winsett v. McGinnes, 617 F.2d 996, 1007 (3d Cir.
1980) (en banc) (holding that prison officials’"discretion
must be exercised consistently with the purpose and policy"
governing early release program to satisfy due process). A
Parole Board policy, although partly discretionary, is still
subject to ex post facto analysis when there are sufficiently
discernible criteria to suggest to a reviewing body that the
new retroactive policies are being applied against the
offender’s interest.

In this case, as in our Winsett decision, a prison release
authority is not permitted to circumvent its constitutional
obligations merely because it has some discretion:"[I]t is by
no means clear that the [relevant authorities] may, under
the rules, invoke any criterion [they] choose[ ]." Winsett, 617
F.2d at 1006. Rather, the Board has, by both its past
decisions to grant parole for commuted sentences, and by
its formal declarations of policy, expounded discernible
parameters that govern its discretion. See id . Here, the
changes in parole policy can be shown to have been applied
to Thomas’s parole application, even though the Board
possessed some discretion both before and after the 1996
policy change.

Although we are unable to express precisely what moved
the Board to deny Thomas’s petition, there is significant

                                20
evidence that it acted upon policies that were established
after Thomas’s crime and conviction. Although discretion
inheres within the Board’s parole authority, and new Board
members may carry new ideas regarding the exercise of
that discretion, and old Board members may change their
mind in the light of new considerations, Thomas is
nevertheless entitled to have the Board give genuine
consideration and due regard to the factors prescribed by
the Board’s pre-1996 policies. We agree that the Board is
entitled to learn from past experiences and mistakes. Board
Brief at 17. This is so, just as a legislature might determine
sentences for some crimes are too light and order judges to
weigh certain factors more heavily in rendering a sentence.
That a Board or legislature may learn from experience does
not mean that those who were sentenced at an earlier
juncture may now be more severely re-sentenced in the
light of newly-found wisdom. This is precisely what the Ex
Post Facto clause prohibits. Under the Board’s reasoning, a
determination, founded on newly discovered experience,
could, by virtue of the Board’s exalted discretion, forever
deny a prisoner’s preexisting right to parole consideration.

Although some discretion might still exist within the pre-
1996 parameters, a parole decision that fails to address any
of the criteria mandated by Board policy, such as
institutional recommendations, willingness to undergo
counseling and educational achievement, and instead
utterly ignores all factors counseling in favor of release,
falls outside of the realm of the legitimate exercise of
discretion under the pre-1996 policies. Inference instructs
us that the Board inappropriately relied on policies
implemented in 1996, rather than the parole policies in
place at the time of Thomas’s crime and conviction.

In its briefs to this court, the Board purports to have
reasons apart from public safety for its Thomas decisions.
Those reasons appear to be asserted primarily as a post
hoc defense to the allegations made in these proceedings.
The Board argues that Thomas’s "instant assault offense"
and "very high assaultive potential," both functions of the
nature of the past crime, were not the primary bases on
which the decision to deny parole was made. It claims that,
upon reading Thomas’s file, "it is easy to see why the Board

                                21


found the [arguments against releasing Thomas] so
persuasive." Board Reply Brief at 21. It asserts that
numerous reasons were considered in support of its
decision, including an unfavorable recommendation from
the District Attorney, lack of sex offender therapy, and
questionable psychological evaluations. However, these
were not bona fide considerations in the decisions to deny
parole. Our analysis shows that the primary basis for the
parole denials was the risk of potential harm to public
safety.

Under the Guidelines, Thomas was entitled to parole at
his hearings in both 1997 and 1998. He is the only
prisoner out of 266 commuted sentences who was not
granted parole in his first or second application. The voting
members of the Department of Corrections staff
unanimously recommended Thomas for release at each
application. The pre-1996 policies place significant weight
on factors relating to an inmate’s potential to adapt to life
on the outside, and on the recommendations of the
institutional staff. The pre-1996 policies suggest that no
single factor should be controlling in a decision to deny
parole to an applicant. Moreover, the pre-1996 Decision
Making Guidelines were given significant, although not
dispositive weight. A departure from the Guidelines
required a recitation of unique factors, outweighing those in
the Guidelines analysis. The Board Decisions on each of
Thomas’s parole hearings rely heavily on "high assaultive
behavior potential," which relates primarily to the nature of
the original offense, despite many other significant factors
favoring parole.

Thus, reviewing the pre-1996 documents pertaining to
parole, it becomes evident that, although the risk of
potential danger to the public has always been a factor, it
became the controlling feature of the Board’s decision after
1996. The Board defaulted in its duty to consider factors
other than the underlying offense and risk to public safety;
it has failed to address any of the factors favoring release.

C. Board Decisions

In 1997, after the Department of Corrections denied
Thomas pre-release, soon thereafter the Board denied

                                22


Thomas parole on the very ground that he had not
undergone a pre-release phase. The statutory pre-release
requirement was adopted after Thomas’s sentence was
commuted. The Board later conceded in a state court suit
initiated by Thomas that the law concerning the pre-release
requirement should not have been applied to him. The
Board’s actions in this respect conveniently disregarded the
Ex Post Facto clause to support its decision to deny parole.

We have carefully analyzed the Board’s reports of
disposition of Thomas’s parole applications. The Board’s
1997 and 1998 Decisions denied Thomas parole on the
basis of several summary factors, including the severity of
his underlying offense, his potential for future assaults, a
prior assault offense, adverse recommendation from the
District Attorney,15 and Thomas’s need for counseling and
treatment. The Board also set forth suggestions,
presumably to improve Thomas’s next effort for parole,
including participation in prescriptive programming, good
prison conduct, sex offender therapy, and positive
psychological evaluations. All of these appear to have been
met prior to the 1997 and 1998 decisions: All voting
officials from the Department of Corrections recommended
parole in both 1997 and 1998; he had complied with all
prescriptive programming; a 1993 psychological and a
psychiatric evaluation, made in anticipation of his
commutation hearing, recommended release. The 1998
Department of Corrections Vote Sheet showed "No
Psychological Contraindications" to release; he had
participated in sex offender therapy; he had job training;
and he had a post-release support network in place. Rather
than explain in what manner its recommendations had not
been met, or what additional steps needed to be taken, or
whether some insurmountable barrier existed to Thomas’s
parole, the Board essentially reiterated the same
recommendations for improving Thomas’s parole candidacy
in each subsequent Decision.

Given its indifference to Thomas’s efforts to improve his
_________________________________________________________________

15. We discount the 1997 Board Decision’s reliance on the District
Attorney’s recommendation because it does not reappear on any later
Board Decisions.

                                23


parole candidacy, and its repeated reliance on Thomas’s
"instant offense" and his potential for future"assaultive
behavior," despite the Guidelines’ finding that Thomas was
not a recidivism risk, the Board appeared to rely exclusively
on the nature of the underlying offense and the potential
danger to the public if Thomas were released. However, the
Board, in its briefs to this court, suggested it had other
reasons than public safety, and submitted that Thomas
had only participated in "denier" sex offender therapy,
rather than "admitter" therapy; that is, he was engaged in
a form of therapy for offenders who refused to admit their
crimes. This concern did not appear in the formal Board
Decisions and, therefore, must be disregarded.

The Board’s own internal notes shed light on its
deliberations in this regard. We recognize that the Board is
not required to share its specific reasons for denying parole.
The Board’s internal files in 1997 and 2000, however,
merely noted, in a neutral way, that Thomas participated
only in denier therapy and denied guilt for his crime
without further comment or discussion of how this factor
may have outweighed others favoring release. Significantly,
the Board in 1997 and 1998 failed to mention lack of
responsibility (or any other factor) in the section of the
Guidelines worksheet where specific space is allotted to
provide unique reasons for departing from a Guidelines
recommendation. Instead, we have only the terse Board
Decision and the Board’s handwritten notes from which to
glean its rationale for the parole denial.

In contrast to the scrawled notation of Thomas’s lack of
admitter therapy in its 1997 and 2000 worksheets, the
Board underscores this point now in its briefs to us.
Similarly, it discusses in its briefs how the benefits of the
inmate sex offender therapy program are not fully realized,
unless the inmate admits guilt for his or her crimes.
However, the original, official deliberations showed that the
Board failed to consider these matters at the times it
reviewed Thomas’s applications.

Moreover, the recommendation that Thomas receive sex
offender therapy, which appeared on the 1997 report, did
not appear on the 1998 Decision or worksheet. Then,
inexplicably, the recommendation for sex offender therapy

                                24


reappeared on Thomas’s 2000 parole-refusal report. This
casts still more doubt on the genuineness of the concern. It
is also not clear that the Board’s renewed concern over
Thomas’s "denier" therapy was ever properly communicated
to Thomas, given that the reasons for denial in the Board
Decision are vague and boilerplate. They nowhere mention
the admitter-denier issue.

According to its briefs, the Board, in its 1998 and 2000
Decisions, may have relied on a 1996 psychological report
that showed "evidence of possible sexual preoccupation and
psychosexual immaturity," as well as an "antisocial
personality." Board Reply Brief at 26. However, there is no
evidence that the report recommended against release, and
the Board never weighed explicitly the report against the
balance of all the other favorable recommendations for
release by counselors and corrections staff. No reference
was made to two 1993 pre-commutation reports by a
psychologist and a psychiatrist, respectively, both strongly
recommending commutation.

Furthermore, a 1999 psychological report, although
acknowledging the negative factors cited in the 1996 report,
never expressly recommended against release. On the
contrary, the report made suggestions as to how to
structure Thomas’s parole once granted. App. 623.
Meanwhile, a prison psychologist, on the 1998 Department
of Corrections Vote Sheet, recommended release and noted
that there were "no psychological contraindications" against
release. The Board’s own worksheet in 1998 merely noted
that psychological evaluations showed Thomas to be an
"average risk candidate."

In addition, many of the factors listed in the 1997 and
1998 Decisions were automatic designations. For example,
"very high assaultive behavior potential" is assigned to a
parole applicant whenever an applicant is convicted of a
sexual offense. There is no indication whatever that the
Board seriously contemplated the gravity of the public
safety threat; nor is there any evidence that the Board
followed its own procedures by pointing to factors
independent of the Guidelines that counseled against
granting parole.

                                25


In 2000, the Board again denied Thomas’s parole, this
time because "the mandates to protect the safety of the
public and to assist in the fair administration of justice
cannot be achieved through your release on parole."
Although, again, it suggested sex offender therapy,
favorable recommendations from Department of Corrections
officials, prescriptive programming and continued good
conduct, the decisive element of the Board’s decision was
protecting "the safety of the public."

In 1997 and 1998 the Guidelines protocol resulted in a
conclusion that Thomas should be released, but he was
not. In 2000, the protocol recommended against parole. The
data entered into the chart for past substance abuse
changed, and thus he was then classified as a habitual
offender with history of past abuse. The record shows some
alcohol abuse by Thomas, but no drug use. Moreover, this
reclassification on the Guidelines worksheet increased his
overall objective score and placed him in the range of cases
where the Guidelines recommended against parole. There is
no evidence that alcohol abuse should, suddenly, as of the
2000 report, be given such significance: The Guidelines
recommendation in 2000 is not worthy of consideration
because it appears to have been deliberately designed to
achieve a non-parole decision.16

Most forcefully, the 2000 decision report highlighted the
Board’s new rationale for denying parole, a rationale which
implicitly pervaded all of the Board Decisions on Thomas’s
application: it bluntly stated that Thomas’s release
interfered with its mission "to protect the safety of the
public." Although public safety had been a part of the
Board’s pre-1996 criteria, it had never been an exclusive, or
even the most important, criterion. However, the Board
does not attempt to offer any other explanation for its 2000
decision, while, in 1997 and 1998 it summarily
_________________________________________________________________

16. Also, the Guidelines themselves changed, as of 2000, and victim
injury was given a higher value (two points instead of one), militating
more strongly against parole. This new valuation was reflected in
Thomas’s aggregate Guidelines-based score. This further evidences the
advent of new policies and emphasis on public safety on the part of the
Board.

                                26


recapitulated: "assaultive offense," potential for "assaultive
behavior," and "victim injury" as reasons for its parole
determinations. The reliance on these factors, and its
failure to credibly consider any other factors, leads us to
the ineluctable conclusion that the Board relied almost
exclusively in 1997, 1998 and 2000 on the nature of the
past offense and the potential danger to public safety.

The Board protests that the "assaultive potential"
designation does not "require an automatic parole refusal."
On the record before us, however, we do not agree. The
Guidelines did not show him to be a recidivism risk. The
Board did not consider seriously psychological
contraindications or any other non-Guidelines factors that
might have militated against parole. The Board’s denial of
Thomas’s parole, despite its claims that the decision was
the result of the discretion vested in it by the pre-1996
policies, exceeded any reasonable interpretation of the
applicable policies. It appears that the Board was applying
the new policy. Now, belatedly, in its briefs, the Board
seeks to eviscerate the grounds for its decisions with a
gloss of compliance with the pre-1996 policies. This will not
do.

D. Implications of Winklespecht

Since oral argument in this matter, the Board has called
to our attention the recent Pennsylvania Supreme Court
decision, Winklespecht v. Pennsylvania Board of Probation
and Parole, ___ A.2d ___, 2002 WL 31898105 (Pa. 2002).
The Board cites this case in support of the proposition that
S 331.1’s concern with "protect[ing] the safety of the public,"
added "nothing new to the parole process and[has] always
been [an] underlying concern[ ]." Id. The Pennsylvania
Supreme Court held that S 331.1 does not change
Pennsylvania policy as to the criteria for parole"[n]or did
the addition of this (new) language create a new offense or
increase the penalty for an existing offense." Focusing on
the added language to S 331.1 concerning "protect[ing] the
safety of the public" and "assist[ing] in the fair
administration of justice," the court concluded that these
concepts have always been underlying concerns.

                                  27


This decision, made after the Board’s actions on
Thomas’s parole, came too late to alter the Board’s view of
the statutory amendment on the outcome of this case. Not
having the benefit of the Supreme Court decision, the
evidence before us shows that the Board interpreted
S 331.1 to mandate foremost the consideration of public
safety. The Board mistakenly construed the 1996 statutory
change to signify a substantive change in its parole
function. See Gall v. Parker, 231 F.3d 265, 304 (6th Cir.
2000). As we noted previously, a public statement of the
Board chairman and Board policy declaration confirm this
substantive change in Board policy. The Pennsylvania
Commonwealth Court too understood the 1996 amendment
to enact a substantive change in Board policy. See Stewart,
714 A.2d at 508; Myers, 712 A.2d at 799. The Board’s
actions and policy pronouncements demonstrate a marked
added weight on public safety concerns, uninfluenced by
the subsequent Court interpretation of the statute.

E. Adverse Impact of Retrospective Policy on Thomas

As to the second Ex Post Facto criterion, that the change
must adversely affect the offender, the Board argues that
Thomas, having been sentenced to life, "had no legitimate
expectation of ever being paroled." Board Brief at 10-11. It
notes that, during the 1970s, only 10% of life sentences
were commuted and paroled. That figure diminished to less
than half a percent in the 1990s. The Governor’s power to
grant commutation was in his absolute discretion, and
thus, according to the Board, Thomas’s eligibility for parole
was entirely speculative. The Board does not dispute that
the possibility of parole at sentencing based on some
explicit criteria gave rise to a liberty interest. Hence, the
procedures for reviewing parole applications must be
constitutionally sound.

Garner held that the Ex Post Facto clause prohibited the
application of post-conviction laws to prisoners that would
result in a significant increase in the chances of prolonged
incarceration. 529 U.S. at 251. Prisoners are entitled to
know the range of punishments available at the time of
sentencing, and during the adjudication of their case, so
that they can plea bargain and strategize effectively: The Ex

                                28


Post Facto clause "(1) . . . prevents legislatures from
interfering with the executive and judicial roles of
prosecution and punishment; and (2) it assures that
legislative acts give fair warning of what actions will be
punished and the degree to which they will be punished."
Coady, 251 F.3d at 487-88. Therefore, an offender, prior to
his conviction and sentencing, is entitled to know not only
his maximum possible punishment, but also his or her
chances of receiving early release, since this too is a
relevant factor in the plea bargaining calculus. An adverse
change in one’s prospects for release disadvantages a
prisoner just as surely as an upward change in the
minimum duration of sentence.

The possibility of commutation existed at the time of
Thomas’s conviction and sentence. The relevant criterion
for determining the applicability of ex post facto analysis is
the effect of new policies on "eligibility for reduced
imprisonment," rather than any fixed guarantee of release.
Lynce v. Mathis, 519 U.S. 433, 445 (1997) (emphasis
added). Therefore, a sentence that contained the right to
parole consideration would give rise to a constitutional
expectation that the parole guidelines extant at the time of
the crime would be applied. See Garner, 529 U.S. at 250.
Eligibility for a commutation of a life sentence entails the
possibility of parole, albeit a more distant possibility than
for sentences that carry the possibility of parole ab initio. It
also gives rise to the expectation that the parole criteria in
effect at the time of the crime will be applied.

The Board contends that there was never a "significant"
possibility, given the unlikelihood of commutation, that
Thomas would ever be paroled. Garner, 529 U.S. at 256.
Indeed, as the Board contends, in most cases of life
sentences in Pennsylvania, parole will never be an option as
commutations are quite rare. However, as unlikely as these
initial prospects for parole might have been, the application
of the new parole policies in Thomas’s case rendered them
even more remote. The new policy "substantially increased
the period of incarceration;" it reduced the possibilities of
ever obtaining release.
The Board’s reliance on California Dept. of Corrections v.
Morales, 514 U.S. 499, 508-09 (1995) is misplaced.

                                  29


Although the parole policy change in Morales wrought a
small change in the average duration of a prison sentence,
the change was held to be too minuscule to rise to a
constitutional violation. Morales considered the effect of a
procedural change in parole law, which provided for a
greater wait-period between first and second hearings. Id.
at 507. Here the substantive criteria for parole release have
changed.

Lynce v. Mathis set forth a key distinction between the
Morales case and this petition. In Lynce, a law in effect at
the time of conviction provided that if a prison population
reached approximately 98% of its capacity, good conduct
credits needed for early release could be acquired at an
accelerated pace. The law was changed during the
prisoner’s sentence, and his accelerated credits, earned
during a time of over-98% prison capacity, were cancelled
and parole denied. 519 U.S. at 438-39.

The Lynce prison officials argued that, at the time of
conviction, it was entirely speculative whether the prison
would become overcrowded during the petitioner’s
incarceration, and thus he was excluded from ex post facto
protection under the holding in Morales. However, Lynce
distinguished Morales, because there was no evidence in
Morales that the change affected the petitioner’s own
sentence detrimentally. Lynce, 519 U.S. at 447. In Lynce,
the population did exceed 98% during petitioner’s
incarceration, and by his own conduct the prisoner
achieved enough credits for good behavior, so that he
became eligible for release under the old rules. The change
in policy had the effect of increasing the punishment in his
individual case and thus violated ex post facto. Id.

Thus, under Lynce’s reasoning, the parole change
substantially impacted Thomas in violation of the Ex Post
Facto clause. Moreover, Thomas is entitled to the benefits
of his good behavior in prison; the opportunity to reduce
his sentence through commutation, no matter how
speculative, existed at the time of Thomas’s crime. Thomas
successfully attained a commutation of his sentence; he
was entitled to corresponding reduction in sentence. We,
therefore, hold that to retroactively apply changes in the
parole laws made after conviction for a life sentence in

                                  30


Pennsylvania that adversely affect the release of prisoners
whose sentences have been commuted, violates the Ex Post
Facto clause.

III. Thomas’s Due Process Claim
Thomas argues that the Board’s handling of his
application without any real consideration of its merits, in
violation of the Board’s own procedures, offends due
process, and that this court should itself order him
released. Although the Board has not given due
consideration to the relevant factors, this can be explained
by its misguided reliance on the post-1996 criteria.
Moreover, we are exceedingly reluctant to usurp the Board’s
functions and, except in our review capacity, substitute our
own judgment for that of the parole Board. Although there
were flaws and oversights in the Board’s consideration of
Thomas’s applications, we are not entirely convinced that
the Board is unable to give Thomas a fair hearing in light
of the important considerations we have set forth in this
opinion.

IV. Conclusion

Ordinarily, the Board’s decision to parole or deny parole
to a prisoner is based on the consideration of many factors,
with no one factor being dispositive. We expect that, on
remand, the Board will not be defensive, but instead will
fairly consider Thomas’s application in the light of our
observations and Ex Post Facto prohibitions. If the
Guidelines recommend release, the Board should fairly
consider the weight of this recommendation. A decision
contrary to a Guidelines recommendation must be
buttressed by unique factors which outweigh the
Guidelines endorsement. Moreover, release on parole is a
Board policy presumption, and parole should be granted
unless countervailing negative factors affirmatively
outweigh reasons supporting release.

In conclusion, the Order of the District Court is hereby
affirmed, with directions to remand the matter to the Board
for further proceedings consistent with this opinion,
including a new hearing for Thomas and the Board’s

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written decision thereon within 45 days after the mandate
of this court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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