Ari Bailey v. Isaac Fulwood, Jr.
417 App. D.C. 127
| D.C. Cir. | 2015Background
- Ari Bailey, convicted of a December 1993 rape, is serving 15–45 years and sought parole multiple times; denials following 2010 and 2012 rehearings are at issue.
- At the time of Bailey’s offense, the D.C. Board governed parole under the 1987 Guidelines (point-based with permitted written departures) and a 1991 Policy Guideline clarifying terms.
- Congress transferred D.C. parole authority to the U.S. Parole Commission (USPC) in 1998; the USPC adopted 2000 Guidelines that differed substantially from the 1987 Guidelines.
- After district-court decisions (including Sellmon) found retroactive use of the 2000 Guidelines could violate the Ex Post Facto Clause, the USPC adopted a rule applying the 1987 Guidelines to offenders who committed crimes between March 4, 1985 and August 4, 1998 (the “Sellmon Rule”).
- The USPC applied the 1987 Guidelines at Bailey’s 2010 and 2012 rehearings but declined parole by departing from the numerical recommendation, citing public-safety concerns and lack of rehabilitative programming.
- Bailey sued under the Ex Post Facto Clause; the district court dismissed for failure to state a claim, and the D.C. Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether USPC’s denials violated the Ex Post Facto Clause by relying on factors impermissible under the 1987 Guidelines/1991 Policy but permissible under the 2000 Guidelines | Bailey (via amicus) contends USPC effectively applied the stricter 2000 practice despite purporting to apply the 1987 scheme, creating a retroactive increase in punishment | USPC and gov’t argue it applied the 1987 Guidelines (per the Sellmon Rule); the 1987 Guidelines and 1991 Policy never constrained the Board/USPC’s statutory discretion, so no retroactive law was applied | Court held no ex post facto violation: USPC applied 1987 Guidelines and relied on permissible statutory discretion to depart; Ex Post Facto Clause requires retroactive application of a rule and none occurred |
| Whether the 1987 Guidelines or 1991 Policy limited the Board/USPC’s discretion such that relying on other factors would be retroactive law | Bailey contended those documents constrained discretion and forbade the factors used | Gov’t pointed to D.C. Court of Appeals and D.C. Circuit precedent interpreting those guidelines as advisory and preserving broad statutory discretion under D.C. Code § 24-204(a) | Court held 1987 Guidelines and 1991 Policy are guidance only and do not cabin statutory parole discretion; departures must be explained but are permitted |
| Whether a parole agency’s invocation of the older rule, standing alone, bars an ex post facto claim when the agency in practice followed a later, stricter scheme (Sellmon argument) | Amicus argued that labeling the 1987 rules while actually following 2000 practices should not defeat an ex post facto challenge | Gov’t argued Ex Post Facto analysis targets retroactive application of law; if agency cites and applies the old rule, no retroactivity exists | Court held Ex Post Facto requires retroactive legal change; mere allegation of misapplication does not implicate Clause; agency’s stated application of 1987 rules here was dispositive |
| Availability of other remedies if no Ex Post Facto violation is found | Bailey argued constitutional protection should be enforced and practical remedies are needed | Gov’t noted habeas, § 1983, APA, and other remedies remain for misapplication claims though they differ in scope and availability | Court observed alternative legal avenues exist to challenge misapplication, and Ex Post Facto Clause is not the vehicle absent retroactive rule application |
Key Cases Cited
- Garner v. Jones, 529 U.S. 244 (2000) (Ex Post Facto Clause bars retroactive parole-rule changes that substantially increase risk of longer incarceration)
- Fletcher v. Reilly, 433 F.3d 867 (D.C. Cir. 2006) (recognized substantial differences between 1987 and 2000 Guidelines; warned against retroactive application)
- Fletcher v. District of Columbia, 391 F.3d 250 (D.C. Cir. 2004) (Ex Post Facto analysis looks to practical effect and actual practices, not labels)
- Phillips v. Fulwood, 616 F.3d 577 (D.C. Cir. 2010) (parole regulations may not be applied retroactively when they increase risk of continued incarceration)
- Ellis v. District of Columbia, 84 F.3d 1413 (D.C. Cir. 1996) (1987 Guidelines did not constrain parole board’s discretion; departures permitted with written explanation)
- McRae v. Hyman, 667 A.2d 1356 (D.C. 1995) (D.C. Court of Appeals: parole statute vests discretionary authority; 1987 Guidelines guide but do not bind)
- Sellmon v. Reilly, 551 F. Supp. 2d 66 (D.D.C. 2008) (district court found retroactive application of 2000 Guidelines risked longer incarceration and ordered reevaluations)