823 F. Supp. 2d 13
D.D.C.2011Background
- Six federal inmates convicted under D.C. Code offenses pre-dating March 3, 1985 challenged retroactive application of the USPC 2000 parole guidelines.
- Parole hearings for these inmates were governed by the 1972 Regulations at sentencing but occurred under the 2000 Guidelines post-1997 transfer of parole duties to the USPC.
- Congress abolished the D.C. Parole Board in 1997, transferring parole determinations for D.C. inmates to the USPC.
- Plaintiffs allege Ex Post Facto violation and Due Process violation based on retroactive guideline application and lack of a liberty interest, respectively.
- Court evaluates facial and practical effects by comparing the 1972 Regulations to the 2000 Guidelines, and whether the 1987 Regulations are a valid proxy, for ex post facto analysis.
- Court grants dismissal of both the Ex Post Facto and Due Process claims, finding no plausible risk of longer incarceration and no constitutionally protected liberty interest in parole under the 1972 Regulations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ex post facto: whether 2000 Guidelines create a significant risk of longer incarceration | Daniel argues the 2000 Guidelines increase incarceration length versus 1972 Regulations. | Fulwood asserts no significant risk given the broad discretion under 1972 Regulations and lack of comparable predictability. | Plaintiffs fail to plausibly show a significant risk; claim dismissed. |
| Interchangeability of pre-1987 vs 1987 regulations for ex post facto analysis | Plaintiffs claim 1972 and 1987 are substantially the same and may be treated interchangeably. | Defendants contend 1987 Regulations materially changed procedures; not interchangeable with 1972. | Not interchangeable; court analyzes facial/practical differences between 1972 and 2000 guidelines instead. |
| Facial differences between 1972 Regulations and 2000 Guidelines show significant risk? | Differences in offense accountability, presumption, institutional experience, and discretion suggest longer terms under 2000 Guidelines. | Differences do not demonstrate a significant risk given broad discretion under 1972 Regulations. | Facial differences do not plausibly show a significant risk of longer incarceration. |
| Practical differences between 1972 Regulations and 2000 Guidelines show significant risk? | Under 2000 Guidelines, focus on offense seriousness, criminal history, and disciplinary impacts could lengthen terms. | USPC could consider many factors under both regimes; predictive comparison is too speculative. | No plausible practical effect showing extended incarceration; ex post facto claim dismissed. |
| Due process liberty interest in parole under the 1972 Regulations | Pre-2000 behavior/work achievements could earn favorable parole outcomes akin to good time credits. | No liberty interest; parole determinations under discretionary 1972 Regulations do not create enforceable rights. | No constitutionally cognizable liberty interest; due process claim dismissed. |
Key Cases Cited
- Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1 (U.S. 1979) (parole does not create automatic liberty interest absent mandatory language)
- Blair-Bey v. Quick, 151 F.3d 1036 (D.C. Cir. 1998) (discretionary parole regimes; no liberty interest from discretionary rules)
- Davis v. Henderson, 652 A.2d 634 (D.C. 1995) (1997 shift; 1987 regulations not equivalent proxy for ex post facto analysis)
- Phillips v. Fulwood, 616 F.3d 577 (D.C. Cir. 2010) (ex post facto requires practical effect showing longer incarceration, not facial differences alone)
- Sellmon v. Reilly, 551 F. Supp. 2d 66 (D.D.C. 2008) (2000 Guidelines can create significant risk vs 1987 regulations when differences affect outcome)
- Morales v. California Dep’t of Corr., 514 U.S. 499 (U.S. 1995) (ex post facto cannot rest on speculative outcomes)
- Fletcher v. District of Columbia, 433 F.3d 867 (D.C. Cir. 2006) (ex post facto analysis requires comparing challenged regime to regime in place when offense committed)
- Phillips v. Fulwood, 616 F.3d 577 (D.C. Cir. 2010) (reiterates practical effect standard for ex post facto)