321 F.3d 374 | 3rd Cir. | 2003
Before: SLOVITER, McKEE, and ROSENN, Circuit Judges.(cid:13) (Filed February 21, 2003)(cid:13) Leonard N. Sosnov (Argued)(cid:13) 1027 Abington Avenue(cid:13) Wyndmoor, PA 19038(cid:13) David Rudovsky(cid:13) Kairys, Rudovsky, Epstein &(cid:13) Messing(cid:13) 924 Cherry Street, Suite 500(cid:13) Philadelphia, PA 19107(cid:13) Counsel for Louis Mickens-Thomas(cid:13) Syndi L. Guido (Argued)(cid:13) Office of General Counsel(cid:13) Commonwealth of Pennsylvania(cid:13) 333 Market Street, 17th Floor(cid:13) Harrisburg, PA 17101(cid:13) Robert N. Campolongo(cid:13) Pennsylvania Board of Probation &(cid:13) Parole(cid:13) Executive Offices(cid:13) 1101 South Front Street, Suite 5100(cid:13) Harrisburg, PA 17108-1268(cid:13) Counsel for Vaughn, PA Bd Prob.(cid:13) and Parole, PA Bd Pardons,(cid:13) Atty. Gen. PA(cid:13) OPINION OF THE COURT(cid:13) ROSENN, Circuit Judge:(cid:13) This appeal has its genesis in the material modification of(cid:13) parole laws by the Pennsylvania legislature in 1996 and(cid:13) corresponding changes in the parole decisionmaking(cid:13) policies of the Pennsylvania Board of Probation and Parole(cid:13) ("Board").1 As a consequence, the post-1996 parole regime(cid:13) placed primary consideration on the risk to public safety by(cid:13) the parole petitioner as the dominant factor in evaluating(cid:13) parole applications. The United States District Court for the(cid:13) Eastern District of Pennsylvania held that the Board(cid:13) retroactively applied this policy change adversely to the(cid:13) _________________________________________________________________(cid:13) 1. The Board is the only named party electing to participate in this(cid:13) appeal, and the only party against whom our judgment in this case(cid:13) applies.(cid:13) 2(cid:13) parole applications of Louis Mickens-Thomas ("Thomas"), in(cid:13) violation of the Ex Post Facto clause. The Commonwealth(cid:13) timely appealed; Thomas cross-appealed on his claim that(cid:13) the Board violated his due process rights when it denied his(cid:13) parole applications. We affirm.2(cid:13) I.(cid:13) A. Pre-1996 Parole Considerations in Pennsylvania(cid:13) Thomas is currently serving a life sentence for the 1964(cid:13) rape and murder of a 12-year-old girl in Philadelphia,(cid:13) Pennsylvania. The parties agreed to vacate the original(cid:13) guilty verdict because of the unreliability of the expert(cid:13) whose testimony connected fibers and microscopic particles(cid:13) found on the victim to Thomas. In 1967, the state trial(cid:13) court granted Thomas a new trial; in 1969, he was again(cid:13) convicted.3 His second conviction was upheld by the(cid:13) _________________________________________________________________(cid:13) 2. The District Court exercised jurisdiction under 28 U.S.C. S 2254(a).(cid:13) We have appellate jurisdiction under 28 U.S.C. S 2253. Section 2253(cid:13) requires that, in habeas appeals where the alleged unlawful detention(cid:13) arises out of process issued by a state court, a certificate of appealability(cid:13) is required before appeal by a habeas petitioner will be heard. A(cid:13) certificate of appealability was issued by the District Court, and thus our(cid:13) jurisdiction is proper. Moreover, such a certificate may be unnecessary(cid:13) because the Commonwealth initiated the appellate proceedings, and the(cid:13) petitioner merely filed a cross-appeal. See Rios v. Wiley, 201 F. 3d 257,(cid:13) 262 n.5 (3d Cir. 2000). Although it appears state court recourse was(cid:13) exhausted by an appeal to the Pennsylvania Supreme Court, that case(cid:13) is not part of this record. However, exhaustion is not jurisdictional and(cid:13) is waivable. Narvaiz v. Johnson, 134 F.3d 688, 693 n.1 (5th Cir. 1998).(cid:13) Inasmuch as the Board has not made an issue thereof, exhaustion is(cid:13) deemed waived. We exercise plenary review in a habeas proceeding over(cid:13) a district court’s legal conclusions, and we review factual findings for(cid:13) clear error. Rios, 201 F.3d at 262. The relevant facts in the case before(cid:13) us are largely undisputed, and our decision rests upon the application(cid:13) of the Ex Post Facto clause to the facts at issue. Therefore, our review(cid:13) of the District Court is plenary.(cid:13) 3. More specifically, the first conviction was rejected because the(cid:13) prosecution’s lead witness, a technician who matched fibers and debris(cid:13) from Thomas’s shoe repair shop to those found on the girl’s body, was(cid:13) found to have falsified her credentials and to have perjured herself in(cid:13) another case. At the second trial, the technician’s supervisor(cid:13) corroborated the technician’s testimony and vouched for the correctness(cid:13) of the analysis.(cid:13) 3(cid:13) Pennsylvania Supreme Court in 1972. However, Thomas(cid:13) still professes innocence. Thomas is presently 74-years-old(cid:13) and has been in prison for nearly 40 years. His current(cid:13) efforts to seek release on parole have garnered the strong(cid:13) support of prisoner advocates, incurred the equally(cid:13) vehement opposition of the Philadelphia District Attorney,(cid:13) and have attracted considerable media scrutiny.(cid:13) Life sentences in Pennsylvania presumptively exclude any(cid:13) possibility of parole. The only exception occurs when the(cid:13) governor-appointed Pardons Board recommends(cid:13) commutation of the inmate’s sentence by majority vote, and(cid:13) the Governor subsequently approves the commutation.(cid:13) Thomas was one of only 27 sentences commuted by former(cid:13) Governor Casey out of nearly 3000 life terms being served(cid:13) during his tenure as governor. By the terms of his(cid:13) commutation, Thomas became eligible for parole on July(cid:13) 21, 1996. In recommending commutation, the Pardons(cid:13) Board noted Thomas’s attainment of a college degree, his(cid:13) participation in Alcoholics Anonymous, his participation in(cid:13) sex-offender therapy, the support of the Corrections(cid:13) Department, the long length of time served, the numerous(cid:13) recommendations from scholars, religious, and community(cid:13) leaders, and Thomas’s overall maturity and stability.(cid:13) Following a commutation, a prisoner seeking to be(cid:13) released must still submit to the same parole procedures(cid:13) applicable to all other prisoners. Furthermore, the parole(cid:13) must first be approved by the Board, which virtually has(cid:13) unreviewable power to grant or deny the parole application.(cid:13) Around the time of Thomas’s eligibility for parole, new(cid:13) appointments of then-Governor Ridge were placed on the(cid:13) Board in 1995;4 a parolee from the Pennsylvania prison(cid:13) system was arrested for murder in New Jersey in 1995; and(cid:13) in early 1996 a Pennsylvania Senate committee, in view of(cid:13) the New Jersey arrest, strongly recommended that the(cid:13) Board place added emphasis on community safety. In(cid:13) December 1996, Pennsylvania enacted a change in its law(cid:13) concerning the Board’s mission, which arguably placed(cid:13) _________________________________________________________________(cid:13) 4. Three of five members of the Parole Board were Governor Ridge(cid:13) appointees in 1995. In 1997, after changes in parole laws increased the(cid:13) size of the Board, six out of eight were Ridge appointees.(cid:13) 4(cid:13) greater emphasis on public safety as a criterion for parole(cid:13) release.(cid:13) In December 1996 the Pennsylvania legislature modified(cid:13) the law governing parole in Pennsylvania. The new(cid:13) language, inserted into the aspirational introductory(cid:13) provision of the Pennsylvania parole statutes, provides that(cid:13) the public safety must be considered "first and foremost" in(cid:13) the Board’s execution of its mission. The relevant statute,(cid:13) in its post-1996 form, provides as follows:5(cid:13) S 331.1. Public policy as to parole(cid:13) The parole system provides several benefits to the(cid:13) criminal justice system, including the provision of(cid:13) adequate supervision of the offender while protecting(cid:13) the public, the opportunity for the offender to become(cid:13) a useful member of society and the diversion of(cid:13) appropriate offenders from prison. In providing these(cid:13) benefits to the criminal justice system, the board shall(cid:13) first and foremost seek to protect the safety of the(cid:13) public. In addition to this goal, the board shall address(cid:13) input by crime victims and assist in the fair(cid:13) administration of justice by ensuring the custody,(cid:13) control and treatment of paroled offenders.(cid:13) 61 P.S. S 331.1(cid:13) The 1941-1996 statute, in effect at the time of Thomas’s(cid:13) conviction, made no specific mention of public safety. It(cid:13) provided:(cid:13) The value of parole as a disciplinary and corrective(cid:13) influence and process is hereby recognized, and it is(cid:13) declared to be the public policy of this Commonwealth(cid:13) that persons subject or sentenced to imprisonment for(cid:13) crime shall, on release therefrom, be subjected to a(cid:13) period of parole during which their rehabilitation,(cid:13) adjustment, and restoration to social and economic life(cid:13) and activities shall be aided and facilitated by guidance(cid:13) and supervision under a competent and efficient parole(cid:13) _________________________________________________________________(cid:13) 5. This provision is a preface to a comprehensive set of rules governing(cid:13) parole in Pennsylvania. Other provisions too were changed in 1996, but(cid:13) none materially for the purposes of this case.(cid:13) 5(cid:13) administration, and to that end it is the intent of this(cid:13) act to create a uniform and exclusive system for the(cid:13) administration of parole in this Commonwealth.(cid:13) To assess this modification of the statute, one must(cid:13) regard this change in the context of recent policy(cid:13) statements issued by the Board and other government(cid:13) officials. Other events coincident with the 1996 revision(cid:13) must also be considered to determine whether, in practice,(cid:13) the parole policies of the Commonwealth have undergone(cid:13) any substantive changes.6 The Board’s 1989 Manual of(cid:13) Operations and Procedures recognized that "[p]robation and(cid:13) parole services must consider that offenders can change(cid:13) their behavior patterns when desirous, capable, and given(cid:13) the opportunity, help, dignity, and respect they deserve as(cid:13) human beings." App. 284. The Manual goes on to state(cid:13) that, in considering an inmate for parole, the Board must(cid:13) "weigh[ ] numerous factors relative to the welfare of the(cid:13) client and the safety of the community," including(cid:13) seriousness of the offense; length of the sentence;(cid:13) institutional adjustment (behavior and program(cid:13) adjustment); and assessment of the effect of rehabilitation(cid:13) services while incarcerated. Whether the individual can be(cid:13) safely supervised in the community, personality(cid:13) characteristics, any history of family violence, strength of(cid:13) the parole plan (home and employment), testimony from(cid:13) victims, and opinions of the sentencing judge and(cid:13) prosecuting attorney must also be considered.(cid:13) In reaching its parole decision, "[t]he Board. . . feel[s](cid:13) that an individual should be given every consideration for(cid:13) parole at the expiration of the minimum sentence." App.(cid:13) 285. The 1990 Board-authored "Parole Decision Making(cid:13) Guidelines: A Statement on Policy Procedure and(cid:13) Philosophy," stated that "[a]n eligibility for parole expresses(cid:13) a philosophy of presumed release unless information(cid:13) _________________________________________________________________(cid:13) 6. The Board argues that the statutory provision pertains only to(cid:13) supervision of inmates previously granted parole, and not to the(cid:13) determination of parole eligibility. However, even if this were so, the plain(cid:13) language of the statute is merely one barometer of a change in parole(cid:13) policy. Accordingly, we look to all the Board’s actions and statements of(cid:13) policy to determine how it interpreted the statutory provisions.(cid:13) 6(cid:13) reviewed demonstrates by its preponderance that the public(cid:13) safety interests of the community outweigh the liberty(cid:13) interests of the inmate." App. 243.(cid:13) A decisional protocol called the "Parole Decision Making(cid:13) Guidelines" played a critical role in the Board’s(cid:13) decisionmaking process pre-1996. The Guidelines provided(cid:13) an objective prediction of the likelihood of a successful(cid:13) parole by assigning numerical values to various criteria,(cid:13) based on historical patterns of parolee recidivism rates.(cid:13) According to the Board authored 1991 "Guidelines: A(cid:13) Special Report Prepared for the House Judiciary(cid:13) Committee," the Guidelines considered factors which, based(cid:13) on a study of past instances of recidivism, were predictors(cid:13) of future recidivism in potential parolees. App. 256. For(cid:13) example, historically, those convicted of theft offenses have(cid:13) high recidivism rates. Thus, they are assigned a higher(cid:13) score; similarly, substance abusers are high recidivists, and(cid:13) correspondingly, they have higher scores assigned in the(cid:13) Guidelines. If enough of these negative predictors are(cid:13) present, the aggregate score will fall above a threshold(cid:13) value, and the Guidelines will recommend against parole.(cid:13) App. 246.(cid:13) In addition to risk of recidivism, "risk to the community"(cid:13) is also a relevant factor under the Guidelines in(cid:13) determining whether parole is warranted. App. 252. Thus(cid:13) the Guidelines, in addition to calculating the risk of(cid:13) recidivism, add additional points for offenders whose post-(cid:13) parole conduct might include violent behavior, categorizing(cid:13) them as having "high assaultive behavior potential." App.(cid:13) 52. Therefore, a person who initially committed a violent(cid:13) crime will be evaluated as a parole candidate under the(cid:13) Guidelines, based upon his or her risk to the public as a(cid:13) function of both the likelihood of recidivism and the severity(cid:13) of the crime he or she might commit as a recidivist. The(cid:13) Board’s 1990 Statement on Policy Procedure and(cid:13) Philosophy notes that(cid:13) [i]nherent in the concept of risk management is the(cid:13) notion that some crimes, although less likely to be(cid:13) repeated, have more serious consequences than others(cid:13) if repeated. In other words, although some offenders(cid:13) may be low risk from the viewpoint of recidivism and(cid:13) 7(cid:13) parole supervision failure, the stakes are high in terms(cid:13) of protecting the public if their new crime is violent or(cid:13) serious in nature.(cid:13) App. 246.(cid:13) According to the House Judiciary Report, the Guidelines(cid:13) are "related to an empirically sound, criterion-referenced(cid:13) policy assessment which evaluates each inmate in terms of(cid:13) criminal justice policy and normative past practice in parole(cid:13) decision making." App. 256. Although the Guidelines aspire(cid:13) to objectivity in parole decision making, the Board(cid:13) periodically has countermanded their recommendations.(cid:13) The 1990 Statement on Policy, Procedure and Philosophy(cid:13) declared that the Guidelines protocol typically determined(cid:13) "approximately eighty percent of the decisions rendered."(cid:13) App. 247. The Statement notes, however "that the(cid:13) structuring of discretion does not eliminate it; the burden(cid:13) of the decision remains with the decision maker to evaluate(cid:13) the merit of each case." App. 249.(cid:13) Thus, before 1996, about 20% of such decisions were(cid:13) decided contrary to the Guidelines recommendation.(cid:13) Nonetheless, a discretionary Guidelines departure must(cid:13) give full weight to all the factors, both for and against(cid:13) release. The Report stated that decisions which(cid:13) countermand the Guidelines are "rarities," and"require(cid:13) written explanation to justify the policy exception." In(cid:13) reaching a decision outside the Guidelines, the Board(cid:13) cannot merely recite factors already incorporated in the(cid:13) Guidelines analysis; instead it must consider(cid:13) "consequential characteristics" of the applicant that are(cid:13) "objectively unique" to the factors already incorporated into(cid:13) the Guidelines analysis.7 App. 254. A Guidelines worksheet(cid:13) is provided along with the formal numerical protocol, to(cid:13) permit elucidation of non-Guidelines factors reached in a(cid:13) parole decision, as well as a checklist (Part IV.B. of the(cid:13) Guidelines) for designation of common non-Guidelines(cid:13) _________________________________________________________________(cid:13) 7. Factors considered within the Guidelines analysis include substance(cid:13) abuse, prison misconduct, nature of the underlying offense, and victim(cid:13) injury.(cid:13) 8(cid:13) factors which may have been significant in reaching a(cid:13) decision contrary to the Guidelines recommendation. 8(cid:13) In early 1995, Robert "Mudman" Simon, who had been(cid:13) released on parole from his Pennsylvania prison sentence,(cid:13) was arrested and charged with murder in New Jersey. 9 In(cid:13) mid-1995 Simon’s release led to the publication of a(cid:13) "System-Wide Assessment" of the Board, by the(cid:13) Pennsylvania Inspector General, in which it was determined(cid:13) that more emphasis on public safety and on the nature of(cid:13) the underlying crime was needed in making parole(cid:13) decisions. The System-Wide Assessment noted that the(cid:13) Board management generally "has emphasized [inmate](cid:13) interests over community protection," and that one faction(cid:13) of Board officials perceives "reintegration into society [as](cid:13) the primary mission," while another faction "focuses . . . on(cid:13) the protection of society." App. 297.(cid:13) The Chairman of the Pennsylvania Senate Judiciary(cid:13) Committee, reporting on the investigation of the parole of(cid:13) Simon, published in February 1996, noted that following a(cid:13) 1989 prison riot in Pennsylvania, "reduction in prison(cid:13) overcrowding through the parole process became an(cid:13) objective of [the Board] coequal with assuring public(cid:13) safety." App. 326. The Report also noted that the Board(cid:13) recently "has set out to establish public safety as a priority(cid:13) including a more careful review of parole eligible cases."(cid:13) App. 343. Accordingly, the Report recommended that(cid:13) "[e]xisting statutes and policies should be looked at,(cid:13) amended, restated and/or purged as necessary to(cid:13) effectuate the new corrections philosophy of Pennsylvania(cid:13) [emphasizing] public safety. . . ." App. 351 (emphasis(cid:13) added.)(cid:13) _________________________________________________________________(cid:13) 8. These factors include the presence of psychotic or dangerous(cid:13) behavioral characteristics manifested during the parole interview; recent(cid:13) psychiatric reports causing concern; a pattern of habitual offense of(cid:13) assaultive crimes; or an unfavorable recommendation from the(cid:13) Department of Corrections staff.(cid:13) 9. Former Governor Ridge made a campaign issue of the commutation(cid:13) and release of Reginald McFadden, who also ended up killing again upon(cid:13) his parole in 1994. This was considered by some to be instrumental in(cid:13) the defeat of Ridge’s opponent, then-Lt. Governor Singel, who, as a(cid:13) member of the Pardons Board, had voted to release McFadden.(cid:13) 9(cid:13) The Board’s self-assessment report, entitled "Fiscal Years(cid:13) 1995-1997 Biennial Report," stated that "[i]n recent years,(cid:13) the Governor and General Assembly have mandated(cid:13) through statute that the foremost concern for the Board(cid:13) must be the protection of the safety of the public .. . ." The(cid:13) Report went on to note recent "heightened awareness and(cid:13) concern for public safety," which prompted it to institute(cid:13) more careful review procedures for cases involving"violent(cid:13) offenders." App. 219. Thus, both the Judiciary Committee(cid:13) Report of February 1996 and the contemporaneous(cid:13) Biennial Report gave public notice that henceforth the(cid:13) "foremost concern" of the Board would be the safety of the(cid:13) public.(cid:13) B. Thomas’s Parole Applications(cid:13) We now turn to the effect of the Board’s new policy on(cid:13) Thomas’s parole application. When Governor Casey(cid:13) commuted Thomas’s sentence, he authorized the(cid:13) Department of Corrections to "prerelease" Thomas,(cid:13) presumably into a transitional facility, prior to Thomas’s(cid:13) parole-eligibility date. This the Corrections Department(cid:13) declined to do. App. 663. Then, in the Board’s first review(cid:13) of Thomas’s case in September 1996, it also declined to(cid:13) parole him on the ground that, under the new law passed(cid:13) in 1995, "prerelease" was made a necessary precondition of(cid:13) parole. The Commonwealth Court heard Thomas’s(cid:13) mandamus action in which he sought to direct the Board to(cid:13) hear his parole petition. In that case, the Board conceded(cid:13) that its application of the "prerelease" law violated the Ex(cid:13) Post Facto clause. The court remanded the case to the(cid:13) Board, and ordered it to hear the merits of the parole(cid:13) application and issue its decision within 10 days. See(cid:13) Mickens-Thomas v. Pennsylvania Board of Probation and(cid:13) Parole, 699 A.2d 792 (Pa. Commw. Ct. 1997).(cid:13) Soon thereafter, in August 1997, the Board issued its(cid:13) decision, relying in part on its Decision Making Guidelines(cid:13) to reach a conclusion as to parole eligibility. 10 Thomas(cid:13) _________________________________________________________________(cid:13) 10. The Guidelines manual states that they were"designed to represent(cid:13) observable standards of justice in making decisions and to link behavior(cid:13) with societal sanctions in a clearer manner. . . . A process of structured(cid:13) review acts to balance the inmate’s liberty interest with the interests of(cid:13) society for a safe and secure community."(cid:13) 10(cid:13) received a Guidelines-based recommendation for release,(cid:13) App. 432, along with the recommendations of all voting(cid:13) Department of Corrections institutional staff, including the(cid:13) prison counselor and housing officer. See Department of(cid:13) Corrections Vote Sheet, March 11, 1996, App. 631. Thomas(cid:13) demonstrated his participation in pre-release counseling,(cid:13) including Alcoholics Anonymous and sex offender therapy,(cid:13) as well as participation in college courses and job training.(cid:13) Thomas also had post-release support networks in place.(cid:13) App. 44. Nonetheless, the Board denied Thomas parole in(cid:13) 1997. The Board stated its reasons for the denial in a(cid:13) formal letter to Thomas called the "Board Decision." The(cid:13) reasons given were as follows: "Assaultive instant offense.(cid:13) Very high assaultive behavior potential. Victim injury.(cid:13) Unfavorable recommendation from District Attorney.(cid:13) Conviction of prior assault offense." App. 441. Many of(cid:13) these factors were automatic designations; for example,(cid:13) Thomas’s past crime was a sex offense, which caused him(cid:13) to be automatically classified on the Board Decision as(cid:13) having "very high assaultive behavior potential." App. 52;(cid:13) Board Reply Brief 14.(cid:13) The Board’s 1997 Decision urged Thomas to secure the(cid:13) following before his next application review: investigation of(cid:13) a home plan; the availability of out-patient sex-offender(cid:13) treatment; participation in a program plan prescribed by(cid:13) Department of Corrections officials; maintenance of a good(cid:13) conduct record; a continuing institutional recommendation(cid:13) for parole; and an evaluation by mental health(cid:13) professionals, with experience with sex offenders. The(cid:13) Board made these recommendations in spite of Thomas’s(cid:13) apparent compliance with all of the Board’s suggestions(cid:13) prior to the hearing. For example, he had a good conduct(cid:13) record and the endorsement of prison staff.(cid:13) The Board urged a psychiatric examination, despite the(cid:13) existence of a pre-commutation 1993 psychiatric report(cid:13) supporting Thomas’s release.11 There were other(cid:13) _________________________________________________________________(cid:13) 11. In particular, the Board seemed concerned, in its 1997 Guidelines(cid:13) worksheet, that Thomas had only undergone psychological, and not(cid:13) psychiatric evaluations. This 1993 report, authored by a psychiatrist,(cid:13) belies the Board’s claim that Thomas had never received a psychiatric(cid:13) evaluation.(cid:13) 11(cid:13) psychological evaluations in his file that did not(cid:13) contraindicate release. Although Thomas had engaged in(cid:13) sex offender therapy, there is some indication, based on(cid:13) handwritten notes on the Board’s decision making(cid:13) worksheet, that the Board may have been troubled by(cid:13) Thomas’s presence in a "deniers" group -- those who deny(cid:13) responsibility for the underlying offense -- rather than an(cid:13) "admitters" group. App. 434. The Board Decision makes no(cid:13) specific mention of the admitter-denier distinction, and its(cid:13) internal notes make only passing mention of the issue.12(cid:13) Later, in 1997, the Pennsylvania Supreme Court heard(cid:13) Thomas’s habeas petition but summarily denied it.(cid:13) Thereafter, Thomas apparently complied with all of the(cid:13) Board’s prerequisites stated in its 1997 Decision. He(cid:13) maintained the positive recommendation of corrections(cid:13) authorities, who once more unanimously recommended his(cid:13) release and noted that he was in compliance with treatment(cid:13) programs. The prison counselor, corrections officer and(cid:13) psychologist all endorsed his release. App. 634. He(cid:13) continued to participate in a sex-offender therapy program(cid:13) -- although it was a "deniers" program -- along with an(cid:13) Alcoholics Anonymous program. Post-release support(cid:13) networks were in place. And the Guidelines assigned(cid:13) Thomas a risk-assessment score which militated in favor of(cid:13) release. App. 424.(cid:13) Despite his compliance with essentially all of the Board’s(cid:13) conditions, it again denied parole in March 1998, stating:(cid:13) "Assaultive instant offense. Very high assaultive behavior(cid:13) potential. Victim injury. Your need for counseling and(cid:13) treatment." App. 440. In this latest Board Decision, it again(cid:13) advised Thomas to seek counseling and treatment, to(cid:13) participate in prescribed programming, to maintain a clean(cid:13) record and obtain institutional recommendation for the(cid:13) purposes of his next application. Unlike the 1997 decision,(cid:13) the 1998 decision recommended no specific sex offender(cid:13) treatment, nor mentioned in its internal decision making(cid:13) _________________________________________________________________(cid:13) 12. The Board is not required to give every reason for its denial on the(cid:13) Board Decision. App. 248. However, its internal notes fail to show that(cid:13) it considered the admitter-denier problem to be a serious matter. The(cid:13) issue is merely mentioned in a neutral way.(cid:13) 12(cid:13) worksheet that Thomas was in a "denier" group. Moreover,(cid:13) despite the comment that Thomas needed "counseling and(cid:13) treatment," psychiatric and psychological evaluations did(cid:13) not contraindicate his release. Presumably in response to(cid:13) the 1997 Board Decision’s admonition that Thomas needed(cid:13) to be evaluated by a mental health professional, the Board(cid:13) noted, in its worksheet, that a 1998 psychological(cid:13) evaluation showed Thomas to be an "average risk(cid:13) candidate." App. 426. The Department of Corrections(cid:13) psychologist, in the 1998 Vote Sheet, noted "No(cid:13) Psychological Contraindications" for release. App. 634.(cid:13) A 1996 psychological evaluation did show an "antisocial(cid:13) personality," and "possible sexual preoccupation and(cid:13) psychosexual immaturity." App. 623. However, the(cid:13) decisionmaking worksheet does not reflect that the Board(cid:13) was deeply concerned with those findings, and instead only(cid:13) made mention, in a handwritten notation, of the 1998(cid:13) psychological report’s conclusion that Thomas was an(cid:13) "average risk candidate." No notation was made of two(cid:13) earlier psychological evaluations, which had more clearly(cid:13) favored release. One 1993 report called Thomas "a good(cid:13) candidate for commutation from the psychological(cid:13) perspective." App. 649a. A second 1993 psychiatric report(cid:13) added there was no "psychiatric contraindication[to(cid:13) commutation]" and that Thomas "has developed(cid:13) significantly during his years of imprisonment." App. 650.(cid:13) In December 1999, Thomas sought a writ of habeas corpus(cid:13) in the United States District Court.(cid:13) Again, the Board denied his parole in 2000, during the(cid:13) pendency of these habeas corpus proceedings. The Board(cid:13) gave as its reason the cryptic statement that it"has(cid:13) determined that the mandates to protect the safety of the(cid:13) public and to assist in the fair administration of justice(cid:13) cannot be achieved through your release on parole." App.(cid:13) 439. Again, all voting members of the Department of(cid:13) Corrections institutional staff, including his counselor and(cid:13) work supervisor, unanimously recommended his parole.(cid:13) App. 624. Again, he demonstrated a continued record of(cid:13) good conduct in prison and participation in sex offender(cid:13) therapy and all other programming prescribed by the(cid:13) Department of Corrections. Nonetheless, the Board denied(cid:13) 13(cid:13) parole. Again, the Board advised Thomas to maintain his(cid:13) Department of Corrections recommendation as a(cid:13) precondition for consideration at his 2002 parole hearing.(cid:13) But, in 2000 the Board revived its 1997 recommendation(cid:13) that Thomas should undergo sex offender therapy as a(cid:13) suggested pre-condition for release. Handwritten notes(cid:13) again show that the Board may have been concerned that(cid:13) he was in a "denier" group -- although, once more, no(cid:13) mention of this concern is made in the formal Board(cid:13) Decision. The lack of admitter therapy is simply stated in a(cid:13) neutral, non-critical way in the Guidelines worksheet. App.(cid:13) 415.(cid:13) Finally, although the decision-making guidelines had(cid:13) assigned Thomas a favorability score that counseled in(cid:13) favor of parole on both the 1997 and 1998 applications, the(cid:13) 2000 decision, despite no evidence of changes in his(cid:13) situation, reached a different outcome. App. 414. The Board(cid:13) interviewer classified Thomas as a habitual substance(cid:13) abuser on the Guidelines form, which increased Thomas’s(cid:13) risk score by 3 and placed him in an unfavorable category(cid:13) for release. The Board did not indicate why it made this(cid:13) material alteration to what appears to be a boilerplate risk-(cid:13) assessment protocol. Thomas apparently did have a record(cid:13) of alcohol abuse prior to his incarceration in 1964 (for(cid:13) which he attended Alcoholics Anonymous while in prison)(cid:13) but it is unclear why, if past alcohol abuse over forty years(cid:13) ago was a relevant factor, it had not been considered on his(cid:13) two prior Guidelines evaluations.(cid:13) Moreover, the Guidelines were modified since his last(cid:13) application, with a score of 2 now added to Thomas’s(cid:13) overall score as a result of "Victim Injury" (the past two(cid:13) evaluation forms assigned only a score of "1" for Victim(cid:13) Injury). As a direct result of these changes Thomas’s score(cid:13) ascended to nine, placing him in a category exceeding(cid:13) seven. Therefore, the Guidelines contraindicated parole. In(cid:13) summary, the Board denied Thomas parole a total of three(cid:13) times, in 1997, 1998 and 2000, although he complied each(cid:13) time with all of the Board’s recommendations, except for(cid:13) his continued enrollment in the deniers group. The Board(cid:13) denied parole to Thomas alone of all 266 prisoners whose(cid:13) life sentences had been commuted.(cid:13) 14(cid:13) In Thomas’s current habeas petition, he alleges that the(cid:13) Board denied his parole in violation of the Ex Post Facto(cid:13) clause, by applying retroactively the revised December 1996(cid:13) parole statute. According to Thomas, he had a(cid:13) constitutional expectation that his parole petition would be(cid:13) evaluated under the laws in effect when he was convicted.(cid:13) The District Court agreed that the Board violated the Ex(cid:13) Post Facto clause by applying the 1996 statutory mandate.(cid:13) However, the Court declined to rule outright that Thomas(cid:13) would have been paroled under the prior rule; instead, it(cid:13) remanded the case to the Parole Board to rehear the matter(cid:13) under the pre-1996 laws. Thomas also asked that the(cid:13) District Court order his release on the grounds that his due(cid:13) process rights were violated. The District Court held that,(cid:13) although Thomas had complied with all the seeming(cid:13) prerequisites for relief as prescribed by the Board, the(cid:13) presence of any evidence sufficient to show that the Board(cid:13) based its decision on a rational and good faith exercise of(cid:13) discretion, vindicated its action. Thus, the District Court(cid:13) concluded, there was no due process violation. See(cid:13) Mickens-Thomas v. Vaughn, 217 F.Supp.2d 570 (E.D. Pa.(cid:13) 2002).(cid:13) The District Court remanded the case to the Board to(cid:13) apply its pre-1996 parole policies to the Thomas petition.(cid:13) The Board appealed, and Thomas cross-appealed, on the(cid:13) denial of his due process claim and on the court’s failure to(cid:13) grant him release outright as a result of the Ex Post Facto(cid:13) violation.(cid:13) II. Ex Post Facto Violation(cid:13) A. The New Parole Policy of 1996(cid:13) The Ex Post Facto clause of the United States(cid:13) Constitution applies to a statutory or policy change that(cid:13) "alters the definition of criminal conduct or increases the(cid:13) penalty by which a crime is punishable." California Dep’t of(cid:13) Corrections v. Morales, 514 U.S. 499, 506 n.3 (1995). A new(cid:13) law or policy violates the Ex Post Facto clause (1) when it(cid:13) is retrospective, i.e., when it "appl[ies] to events occurring(cid:13) before its enactment," and (2) when it "disadvantage[s] the(cid:13) 15(cid:13) offender affected by it." Weaver v. Graham , 450 U.S. 24, 29(cid:13) (1981); see Coady v. Vaughn, 251 F.3d 480, 488 (3d Cir.(cid:13) 2001). As to the first criterion for an Ex Post Facto(cid:13) violation, the Board strenuously argues in its brief (p. 14)(cid:13) that "the 1996 amendments . . . did not change the Board’s(cid:13) standards for determining parole." First, it asserts that(cid:13) Pennsylvania’s statement of public policy for parole, 61 P.S.(cid:13) S 331.1, refers to the supervision of parolees, rather than to(cid:13) conditions of release.(cid:13) The foregoing argument has little merit. The statute(cid:13) unequivocally has been interpreted by Pennsylvania courts(cid:13) to express broad and general aspirations of Pennsylvania’s(cid:13) parole policy. See Stewart v. Pennsylvania Bd. of Probation(cid:13) and Parole, 714 A.2d 502, 508 (Pa. Commw. Ct. 1998)(cid:13) ("Section 1 of the Parole Act, 61 P.S. SS 331.1, . . .(cid:13) enunciates the state’s public policy concerning parole(cid:13) . . . ."). The essential matter before us is not whether the(cid:13) statute on its face pertains to parole decisionmaking, but(cid:13) whether, in practice, the new language has altered the(cid:13) fundament for reviewing parole applications. See Garner v.(cid:13) Jones, 529 U.S. 244, 256 (2000). We look beyond the(cid:13) language of the statute and examine the Board’s(cid:13) pronouncements of policy and its public statements that(cid:13) shed light on the interpretation of its statutory mandate.(cid:13) These suggest that after 1996 the Board gave foremost(cid:13) importance to the public safety factor. This is confirmed by(cid:13) the report in the September 20, 2000 Harrisburg Patriot-(cid:13) News, when then-Board chairman William Ward observed(cid:13) that legislative changes around 1995 recast the Board’s(cid:13) mission to put public safety first.(cid:13) The Board also asserts that its policy historically has(cid:13) placed equal emphasis on the interests of the inmate and(cid:13) the interests of public safety, and it points in its brief to us(cid:13) to statutory language in effect in the 1940s to prove this(cid:13) point: "whenever in its opinion [1] the best interests of the(cid:13) convict justify or require his being paroled and[2] it does(cid:13) not appear that the interest of the Commonwealth will be(cid:13) injured thereby," a prisoner will be granted parole. Board(cid:13) Brief at 11-12. The Board correctly notes that the potential(cid:13) risk to public safety in granting parole has always been a(cid:13) consideration in the decisional process. It claims that other(cid:13) 16(cid:13) provisions of the parole statute have, under both the earlier(cid:13) and the current versions, required that the Board"consider(cid:13) the nature and circumstances of the offense committed,(cid:13) [and] the general character and background of the(cid:13) prisoner." 61 P.S. S 331.19.13 However, to state that public(cid:13) safety was always a consideration does not mean that the(cid:13) Board gave it the same weight after 1996 in the decisional(cid:13) equation.(cid:13) The record is convincing that after 1996, the Board(cid:13) applied to the public safety interest far greater weight. The(cid:13) evidence here demonstrates that since 1996, the Board has(cid:13) given special weight to the risk to public safety. Pre-1996,(cid:13) a prisoner could be denied parole because of public safety(cid:13) concerns only if those concerns together with other relevant(cid:13) factors outweighed, by a preponderance, the liberty(cid:13) interests of the inmate. The 1996 policy change placed first(cid:13) and foremost the public safety to the disadvantage of the(cid:13) remaining liberty interest of the prisoner.(cid:13) The Pennsylvania courts have suggested that the 1996(cid:13) public safety directive has caused the Board to review the(cid:13) petitions of violent offenders with redoubled scrutiny: "As a(cid:13) result [of statutory and policy changes in 1996], violent(cid:13) offenders are subjected to a more stringent standard of(cid:13) review for parole eligibility than nonviolent offenders. The(cid:13) _________________________________________________________________(cid:13) 13. The provision provides in pertinent part:(cid:13) It shall be the duty of the board . . . to consider the nature and(cid:13) circumstances of the offense committed, any recommendations(cid:13) made by the trial judge and prosecuting attorney, the general(cid:13) character and background of the prisoner, participation by a(cid:13) prisoner who is serving a sentence for a crime of violence as defined(cid:13) in 42 Pa.C.S. SS 9714(g) (relating to sentences for second and(cid:13) subsequent offenses) in a victim impact education program offered(cid:13) by the Department of Corrections and . . . the testimony of the(cid:13) victim or the victim’s family . . . . The board shall further consider(cid:13) the notes of testimony of the sentencing hearing, if any, together(cid:13) with such additional information regarding the nature and(cid:13) circumstances of the offense committed for which sentence was(cid:13) imposed as may be available. The board shall further cause the(cid:13) conduct of the person while in prison and his physical, mental and(cid:13) behavior condition and history, his history of family violence and his(cid:13) complete criminal record . . . to be reported and investigated.(cid:13) 17(cid:13) purpose behind the classification and the disparate(cid:13) treatment between the violent and nonviolent offenders is(cid:13) the protection of public safety." Myers v. Ridge, 712 A.2d(cid:13) 791, 799 (Pa. Commw. Ct. 1998). Furthermore, the policy(cid:13) change around 1996 took place in the ambience of(cid:13) numerous policy statements that shed light on the Board’s(cid:13) interpretation of its statutory mission: it clearly viewed its(cid:13) statutory mandate to require special emphasis on public(cid:13) safety.(cid:13) Our attention is directed to the 50th Anniversary Report(cid:13) of the Board (1991), which states in its concluding(cid:13) paragraph that "protection of society" is the Board’s(cid:13) "primary goal." App. 187. Read in context, however, this(cid:13) passage applies to the Board’s supervision of parolees. This(cid:13) same passage provided that "conditional release" permits(cid:13) the Board to meet its goal of protecting society. An earlier(cid:13) section of the document states that "[t]he immediate goal of(cid:13) parole supervision is the protection of society," by closely(cid:13) supervising the parolee and setting "conditions" for(cid:13) continued release, pertaining to work, health, education or(cid:13) other needs, that ensure smooth reintegration and, hence,(cid:13) the public safety. App. 185 (emphasis added). Upon(cid:13) analyzing this language, it is obvious that the Board meant(cid:13) in this report that "conditional release," with fixed(cid:13) conditions for continued parole, is designed to safeguard(cid:13) the public after a parole has been granted. Thus, this 1991(cid:13) anniversary report sheds no light on the post-1996 Board(cid:13) treatment of "public safety" as a factor before parole is(cid:13) granted.(cid:13) The statistical evidence is quite staggering here, and(cid:13) strongly confirms the change in policy in 1996: of the 266(cid:13) historical instances of commuted sentences on which the(cid:13) Board has kept records, all were granted parole on the first(cid:13) or second application. Many, if not most, of these original(cid:13) sentences were for violent crimes. Doubtless, these earlier(cid:13) Parole Boards spanned a wide spectrum of political and(cid:13) penological philosophies. Yet, the gubernatorial grant of(cid:13) commutation of sentence had such significance that the(cid:13) Board agreed to parole every commutee on his or her first(cid:13) or second application. The Thomas application is(cid:13) distinguished from these 266 cases only by the intervening(cid:13) policy directive of 1996, emphasizing public safety.(cid:13) 18(cid:13) In addition to these statistics, substantive declarations of(cid:13) Board policy strongly support the proposition that, after(cid:13) 1996, the Board applied a new standard. A 1996 report by(cid:13) the Legislative Judiciary Committee strongly exhorted the(cid:13) Board to reform its parole policies by placing greater stress(cid:13) on public safety. A 1997 self-assessment by the Board(cid:13) specifically noted that during the 1995-1997 period, public(cid:13) safety became the Board’s new "foremost concern." The new(cid:13) Guidelines, implemented between 1998 and 2000, placed(cid:13) more weight on "Victim Injury." The 2000 Board Decision(cid:13) denying Thomas’s parole noted that its action was(cid:13) consistent with the Board’s "mandate" to protect the public.(cid:13) This language did not appear on earlier Board decisions(cid:13) and reflects its new parole policy.(cid:13) These declarations stand in bold contrast to the pre-1996(cid:13) policies, which commanded that the Board give weight to(cid:13) various factors in the parole process, such as Department(cid:13) of Corrections staff recommendations, educational(cid:13) accomplishments, job training, and therapy programs. This(cid:13) factor-based approach strongly suggests that dispositive(cid:13) weight should not be given to any one factor.14 Pre-1996,(cid:13) release upon eligibility for parole was presumed, and any(cid:13) decision to deny parole based on public safety(cid:13) considerations had to be supported by specific reasons,(cid:13) which outweighed those factors favoring release. Prior to(cid:13) 1996, a Board recommendation contrary to the Guidelines(cid:13) required that the Board have "appropriate reasons for [its(cid:13) parole denial] decision." Because the pre-1996 Guidelines(cid:13) already factored in the risk to public safety vis-a-vis(cid:13) relevant recidivism indicators, the Board after 1996 could(cid:13) not give added, and certainly not exclusive, weight to public(cid:13) safety in overruling the Guidelines.(cid:13) We conclude, then, that prior to 1996, the Board’s(cid:13) concern for potential risks to public safety could not be the(cid:13) sole or dominant basis for parole denial under the existing(cid:13) Guidelines. Considerations of public safety were already(cid:13) _________________________________________________________________(cid:13) 14. The Guidelines themselves embody this philosophy. They are(cid:13) designed so that: "No single reason-for-refusal will justify the denial of(cid:13) parole: a preponderance of negative reasons will countervail release."(cid:13) App. 253.(cid:13) 19(cid:13) incorporated into its Guidelines analysis; the Board had to(cid:13) point to "unique" factors as a basis for its rejection of the(cid:13) Guidelines. Moreover, the Board had to weigh all factors,(cid:13) militating for and against parole, and make its decision on(cid:13) the totality of the factors pertinent to parole, and give(cid:13) appropriate weight to the interests of the inmate. Heavy foot(cid:13) application on one factor could not have been the basis of(cid:13) granting or rejecting parole. Policy declarations in and after(cid:13) 1996 demonstrate that Board stance shifted and that,(cid:13) indeed, post-1996 considerations of public safety became(cid:13) the dominant concern of the Board.(cid:13) B. Application of New 1996 Policy to Thomas(cid:13) The possession of a discretionary component in a parole(cid:13) policy does not per se exempt it from constitutional(cid:13) scrutiny. "The presence of discretion does not displace the(cid:13) protections of the Ex Post Facto clause." Garner, 529 U.S.(cid:13) at 253; cf. Winsett v. McGinnes, 617 F.2d 996, 1007 (3d Cir.(cid:13) 1980) (en banc) (holding that prison officials’"discretion(cid:13) must be exercised consistently with the purpose and policy"(cid:13) governing early release program to satisfy due process). A(cid:13) Parole Board policy, although partly discretionary, is still(cid:13) subject to ex post facto analysis when there are sufficiently(cid:13) discernible criteria to suggest to a reviewing body that the(cid:13) new retroactive policies are being applied against the(cid:13) offender’s interest.(cid:13) In this case, as in our Winsett decision, a prison release(cid:13) authority is not permitted to circumvent its constitutional(cid:13) obligations merely because it has some discretion:"[I]t is by(cid:13) no means clear that the [relevant authorities] may, under(cid:13) the rules, invoke any criterion [they] choose[ ]." Winsett, 617(cid:13) F.2d at 1006. Rather, the Board has, by both its past(cid:13) decisions to grant parole for commuted sentences, and by(cid:13) its formal declarations of policy, expounded discernible(cid:13) parameters that govern its discretion. See id . Here, the(cid:13) changes in parole policy can be shown to have been applied(cid:13) to Thomas’s parole application, even though the Board(cid:13) possessed some discretion both before and after the 1996(cid:13) policy change.(cid:13) Although we are unable to express precisely what moved(cid:13) the Board to deny Thomas’s petition, there is significant(cid:13) 20(cid:13) evidence that it acted upon policies that were established(cid:13) after Thomas’s crime and conviction. Although discretion(cid:13) inheres within the Board’s parole authority, and new Board(cid:13) members may carry new ideas regarding the exercise of(cid:13) that discretion, and old Board members may change their(cid:13) mind in the light of new considerations, Thomas is(cid:13) nevertheless entitled to have the Board give genuine(cid:13) consideration and due regard to the factors prescribed by(cid:13) the Board’s pre-1996 policies. We agree that the Board is(cid:13) entitled to learn from past experiences and mistakes. Board(cid:13) Brief at 17. This is so, just as a legislature might determine(cid:13) sentences for some crimes are too light and order judges to(cid:13) weigh certain factors more heavily in rendering a sentence.(cid:13) That a Board or legislature may learn from experience does(cid:13) not mean that those who were sentenced at an earlier(cid:13) juncture may now be more severely re-sentenced in the(cid:13) light of newly-found wisdom. This is precisely what the Ex(cid:13) Post Facto clause prohibits. Under the Board’s reasoning, a(cid:13) determination, founded on newly discovered experience,(cid:13) could, by virtue of the Board’s exalted discretion, forever(cid:13) deny a prisoner’s preexisting right to parole consideration.(cid:13) Although some discretion might still exist within the pre-(cid:13) 1996 parameters, a parole decision that fails to address any(cid:13) of the criteria mandated by Board policy, such as(cid:13) institutional recommendations, willingness to undergo(cid:13) counseling and educational achievement, and instead(cid:13) utterly ignores all factors counseling in favor of release,(cid:13) falls outside of the realm of the legitimate exercise of(cid:13) discretion under the pre-1996 policies. Inference instructs(cid:13) us that the Board inappropriately relied on policies(cid:13) implemented in 1996, rather than the parole policies in(cid:13) place at the time of Thomas’s crime and conviction.(cid:13) In its briefs to this court, the Board purports to have(cid:13) reasons apart from public safety for its Thomas decisions.(cid:13) Those reasons appear to be asserted primarily as a post(cid:13) hoc defense to the allegations made in these proceedings.(cid:13) The Board argues that Thomas’s "instant assault offense"(cid:13) and "very high assaultive potential," both functions of the(cid:13) nature of the past crime, were not the primary bases on(cid:13) which the decision to deny parole was made. It claims that,(cid:13) upon reading Thomas’s file, "it is easy to see why the Board(cid:13) 21(cid:13) found the [arguments against releasing Thomas] so(cid:13) persuasive." Board Reply Brief at 21. It asserts that(cid:13) numerous reasons were considered in support of its(cid:13) decision, including an unfavorable recommendation from(cid:13) the District Attorney, lack of sex offender therapy, and(cid:13) questionable psychological evaluations. However, these(cid:13) were not bona fide considerations in the decisions to deny(cid:13) parole. Our analysis shows that the primary basis for the(cid:13) parole denials was the risk of potential harm to public(cid:13) safety.(cid:13) Under the Guidelines, Thomas was entitled to parole at(cid:13) his hearings in both 1997 and 1998. He is the only(cid:13) prisoner out of 266 commuted sentences who was not(cid:13) granted parole in his first or second application. The voting(cid:13) members of the Department of Corrections staff(cid:13) unanimously recommended Thomas for release at each(cid:13) application. The pre-1996 policies place significant weight(cid:13) on factors relating to an inmate’s potential to adapt to life(cid:13) on the outside, and on the recommendations of the(cid:13) institutional staff. The pre-1996 policies suggest that no(cid:13) single factor should be controlling in a decision to deny(cid:13) parole to an applicant. Moreover, the pre-1996 Decision(cid:13) Making Guidelines were given significant, although not(cid:13) dispositive weight. A departure from the Guidelines(cid:13) required a recitation of unique factors, outweighing those in(cid:13) the Guidelines analysis. The Board Decisions on each of(cid:13) Thomas’s parole hearings rely heavily on "high assaultive(cid:13) behavior potential," which relates primarily to the nature of(cid:13) the original offense, despite many other significant factors(cid:13) favoring parole.(cid:13) Thus, reviewing the pre-1996 documents pertaining to(cid:13) parole, it becomes evident that, although the risk of(cid:13) potential danger to the public has always been a factor, it(cid:13) became the controlling feature of the Board’s decision after(cid:13) 1996. The Board defaulted in its duty to consider factors(cid:13) other than the underlying offense and risk to public safety;(cid:13) it has failed to address any of the factors favoring release.(cid:13) C. Board Decisions(cid:13) In 1997, after the Department of Corrections denied(cid:13) Thomas pre-release, soon thereafter the Board denied(cid:13) 22(cid:13) Thomas parole on the very ground that he had not(cid:13) undergone a pre-release phase. The statutory pre-release(cid:13) requirement was adopted after Thomas’s sentence was(cid:13) commuted. The Board later conceded in a state court suit(cid:13) initiated by Thomas that the law concerning the pre-release(cid:13) requirement should not have been applied to him. The(cid:13) Board’s actions in this respect conveniently disregarded the(cid:13) Ex Post Facto clause to support its decision to deny parole.(cid:13) We have carefully analyzed the Board’s reports of(cid:13) disposition of Thomas’s parole applications. The Board’s(cid:13) 1997 and 1998 Decisions denied Thomas parole on the(cid:13) basis of several summary factors, including the severity of(cid:13) his underlying offense, his potential for future assaults, a(cid:13) prior assault offense, adverse recommendation from the(cid:13) District Attorney,15 and Thomas’s need for counseling and(cid:13) treatment. The Board also set forth suggestions,(cid:13) presumably to improve Thomas’s next effort for parole,(cid:13) including participation in prescriptive programming, good(cid:13) prison conduct, sex offender therapy, and positive(cid:13) psychological evaluations. All of these appear to have been(cid:13) met prior to the 1997 and 1998 decisions: All voting(cid:13) officials from the Department of Corrections recommended(cid:13) parole in both 1997 and 1998; he had complied with all(cid:13) prescriptive programming; a 1993 psychological and a(cid:13) psychiatric evaluation, made in anticipation of his(cid:13) commutation hearing, recommended release. The 1998(cid:13) Department of Corrections Vote Sheet showed "No(cid:13) Psychological Contraindications" to release; he had(cid:13) participated in sex offender therapy; he had job training;(cid:13) and he had a post-release support network in place. Rather(cid:13) than explain in what manner its recommendations had not(cid:13) been met, or what additional steps needed to be taken, or(cid:13) whether some insurmountable barrier existed to Thomas’s(cid:13) parole, the Board essentially reiterated the same(cid:13) recommendations for improving Thomas’s parole candidacy(cid:13) in each subsequent Decision.(cid:13) Given its indifference to Thomas’s efforts to improve his(cid:13) _________________________________________________________________(cid:13) 15. We discount the 1997 Board Decision’s reliance on the District(cid:13) Attorney’s recommendation because it does not reappear on any later(cid:13) Board Decisions.(cid:13) 23(cid:13) parole candidacy, and its repeated reliance on Thomas’s(cid:13) "instant offense" and his potential for future"assaultive(cid:13) behavior," despite the Guidelines’ finding that Thomas was(cid:13) not a recidivism risk, the Board appeared to rely exclusively(cid:13) on the nature of the underlying offense and the potential(cid:13) danger to the public if Thomas were released. However, the(cid:13) Board, in its briefs to this court, suggested it had other(cid:13) reasons than public safety, and submitted that Thomas(cid:13) had only participated in "denier" sex offender therapy,(cid:13) rather than "admitter" therapy; that is, he was engaged in(cid:13) a form of therapy for offenders who refused to admit their(cid:13) crimes. This concern did not appear in the formal Board(cid:13) Decisions and, therefore, must be disregarded.(cid:13) The Board’s own internal notes shed light on its(cid:13) deliberations in this regard. We recognize that the Board is(cid:13) not required to share its specific reasons for denying parole.(cid:13) The Board’s internal files in 1997 and 2000, however,(cid:13) merely noted, in a neutral way, that Thomas participated(cid:13) only in denier therapy and denied guilt for his crime(cid:13) without further comment or discussion of how this factor(cid:13) may have outweighed others favoring release. Significantly,(cid:13) the Board in 1997 and 1998 failed to mention lack of(cid:13) responsibility (or any other factor) in the section of the(cid:13) Guidelines worksheet where specific space is allotted to(cid:13) provide unique reasons for departing from a Guidelines(cid:13) recommendation. Instead, we have only the terse Board(cid:13) Decision and the Board’s handwritten notes from which to(cid:13) glean its rationale for the parole denial.(cid:13) In contrast to the scrawled notation of Thomas’s lack of(cid:13) admitter therapy in its 1997 and 2000 worksheets, the(cid:13) Board underscores this point now in its briefs to us.(cid:13) Similarly, it discusses in its briefs how the benefits of the(cid:13) inmate sex offender therapy program are not fully realized,(cid:13) unless the inmate admits guilt for his or her crimes.(cid:13) However, the original, official deliberations showed that the(cid:13) Board failed to consider these matters at the times it(cid:13) reviewed Thomas’s applications.(cid:13) Moreover, the recommendation that Thomas receive sex(cid:13) offender therapy, which appeared on the 1997 report, did(cid:13) not appear on the 1998 Decision or worksheet. Then,(cid:13) inexplicably, the recommendation for sex offender therapy(cid:13) 24(cid:13) reappeared on Thomas’s 2000 parole-refusal report. This(cid:13) casts still more doubt on the genuineness of the concern. It(cid:13) is also not clear that the Board’s renewed concern over(cid:13) Thomas’s "denier" therapy was ever properly communicated(cid:13) to Thomas, given that the reasons for denial in the Board(cid:13) Decision are vague and boilerplate. They nowhere mention(cid:13) the admitter-denier issue.(cid:13) According to its briefs, the Board, in its 1998 and 2000(cid:13) Decisions, may have relied on a 1996 psychological report(cid:13) that showed "evidence of possible sexual preoccupation and(cid:13) psychosexual immaturity," as well as an "antisocial(cid:13) personality." Board Reply Brief at 26. However, there is no(cid:13) evidence that the report recommended against release, and(cid:13) the Board never weighed explicitly the report against the(cid:13) balance of all the other favorable recommendations for(cid:13) release by counselors and corrections staff. No reference(cid:13) was made to two 1993 pre-commutation reports by a(cid:13) psychologist and a psychiatrist, respectively, both strongly(cid:13) recommending commutation.(cid:13) Furthermore, a 1999 psychological report, although(cid:13) acknowledging the negative factors cited in the 1996 report,(cid:13) never expressly recommended against release. On the(cid:13) contrary, the report made suggestions as to how to(cid:13) structure Thomas’s parole once granted. App. 623.(cid:13) Meanwhile, a prison psychologist, on the 1998 Department(cid:13) of Corrections Vote Sheet, recommended release and noted(cid:13) that there were "no psychological contraindications" against(cid:13) release. The Board’s own worksheet in 1998 merely noted(cid:13) that psychological evaluations showed Thomas to be an(cid:13) "average risk candidate."(cid:13) In addition, many of the factors listed in the 1997 and(cid:13) 1998 Decisions were automatic designations. For example,(cid:13) "very high assaultive behavior potential" is assigned to a(cid:13) parole applicant whenever an applicant is convicted of a(cid:13) sexual offense. There is no indication whatever that the(cid:13) Board seriously contemplated the gravity of the public(cid:13) safety threat; nor is there any evidence that the Board(cid:13) followed its own procedures by pointing to factors(cid:13) independent of the Guidelines that counseled against(cid:13) granting parole.(cid:13) 25(cid:13) In 2000, the Board again denied Thomas’s parole, this(cid:13) time because "the mandates to protect the safety of the(cid:13) public and to assist in the fair administration of justice(cid:13) cannot be achieved through your release on parole."(cid:13) Although, again, it suggested sex offender therapy,(cid:13) favorable recommendations from Department of Corrections(cid:13) officials, prescriptive programming and continued good(cid:13) conduct, the decisive element of the Board’s decision was(cid:13) protecting "the safety of the public."(cid:13) In 1997 and 1998 the Guidelines protocol resulted in a(cid:13) conclusion that Thomas should be released, but he was(cid:13) not. In 2000, the protocol recommended against parole. The(cid:13) data entered into the chart for past substance abuse(cid:13) changed, and thus he was then classified as a habitual(cid:13) offender with history of past abuse. The record shows some(cid:13) alcohol abuse by Thomas, but no drug use. Moreover, this(cid:13) reclassification on the Guidelines worksheet increased his(cid:13) overall objective score and placed him in the range of cases(cid:13) where the Guidelines recommended against parole. There is(cid:13) no evidence that alcohol abuse should, suddenly, as of the(cid:13) 2000 report, be given such significance: The Guidelines(cid:13) recommendation in 2000 is not worthy of consideration(cid:13) because it appears to have been deliberately designed to(cid:13) achieve a non-parole decision.16(cid:13) Most forcefully, the 2000 decision report highlighted the(cid:13) Board’s new rationale for denying parole, a rationale which(cid:13) implicitly pervaded all of the Board Decisions on Thomas’s(cid:13) application: it bluntly stated that Thomas’s release(cid:13) interfered with its mission "to protect the safety of the(cid:13) public." Although public safety had been a part of the(cid:13) Board’s pre-1996 criteria, it had never been an exclusive, or(cid:13) even the most important, criterion. However, the Board(cid:13) does not attempt to offer any other explanation for its 2000(cid:13) decision, while, in 1997 and 1998 it summarily(cid:13) _________________________________________________________________(cid:13) 16. Also, the Guidelines themselves changed, as of 2000, and victim(cid:13) injury was given a higher value (two points instead of one), militating(cid:13) more strongly against parole. This new valuation was reflected in(cid:13) Thomas’s aggregate Guidelines-based score. This further evidences the(cid:13) advent of new policies and emphasis on public safety on the part of the(cid:13) Board.(cid:13) 26(cid:13) recapitulated: "assaultive offense," potential for "assaultive(cid:13) behavior," and "victim injury" as reasons for its parole(cid:13) determinations. The reliance on these factors, and its(cid:13) failure to credibly consider any other factors, leads us to(cid:13) the ineluctable conclusion that the Board relied almost(cid:13) exclusively in 1997, 1998 and 2000 on the nature of the(cid:13) past offense and the potential danger to public safety.(cid:13) The Board protests that the "assaultive potential"(cid:13) designation does not "require an automatic parole refusal."(cid:13) On the record before us, however, we do not agree. The(cid:13) Guidelines did not show him to be a recidivism risk. The(cid:13) Board did not consider seriously psychological(cid:13) contraindications or any other non-Guidelines factors that(cid:13) might have militated against parole. The Board’s denial of(cid:13) Thomas’s parole, despite its claims that the decision was(cid:13) the result of the discretion vested in it by the pre-1996(cid:13) policies, exceeded any reasonable interpretation of the(cid:13) applicable policies. It appears that the Board was applying(cid:13) the new policy. Now, belatedly, in its briefs, the Board(cid:13) seeks to eviscerate the grounds for its decisions with a(cid:13) gloss of compliance with the pre-1996 policies. This will not(cid:13) do.(cid:13) D. Implications of Winklespecht(cid:13) Since oral argument in this matter, the Board has called(cid:13) to our attention the recent Pennsylvania Supreme Court(cid:13) decision, Winklespecht v. Pennsylvania Board of Probation(cid:13) and Parole, ___ A.2d ___, 2002 WL 31898105 (Pa. 2002).(cid:13) The Board cites this case in support of the proposition that(cid:13) S 331.1’s concern with "protect[ing] the safety of the public,"(cid:13) added "nothing new to the parole process and[has] always(cid:13) been [an] underlying concern[ ]." Id. The Pennsylvania(cid:13) Supreme Court held that S 331.1 does not change(cid:13) Pennsylvania policy as to the criteria for parole"[n]or did(cid:13) the addition of this (new) language create a new offense or(cid:13) increase the penalty for an existing offense." Focusing on(cid:13) the added language to S 331.1 concerning "protect[ing] the(cid:13) safety of the public" and "assist[ing] in the fair(cid:13) administration of justice," the court concluded that these(cid:13) concepts have always been underlying concerns.(cid:13) 27(cid:13) This decision, made after the Board’s actions on(cid:13) Thomas’s parole, came too late to alter the Board’s view of(cid:13) the statutory amendment on the outcome of this case. Not(cid:13) having the benefit of the Supreme Court decision, the(cid:13) evidence before us shows that the Board interpreted(cid:13) S 331.1 to mandate foremost the consideration of public(cid:13) safety. The Board mistakenly construed the 1996 statutory(cid:13) change to signify a substantive change in its parole(cid:13) function. See Gall v. Parker, 231 F.3d 265, 304 (6th Cir.(cid:13) 2000). As we noted previously, a public statement of the(cid:13) Board chairman and Board policy declaration confirm this(cid:13) substantive change in Board policy. The Pennsylvania(cid:13) Commonwealth Court too understood the 1996 amendment(cid:13) to enact a substantive change in Board policy. See Stewart,(cid:13) 714 A.2d at 508; Myers, 712 A.2d at 799. The Board’s(cid:13) actions and policy pronouncements demonstrate a marked(cid:13) added weight on public safety concerns, uninfluenced by(cid:13) the subsequent Court interpretation of the statute.(cid:13) E. Adverse Impact of Retrospective Policy on Thomas(cid:13) As to the second Ex Post Facto criterion, that the change(cid:13) must adversely affect the offender, the Board argues that(cid:13) Thomas, having been sentenced to life, "had no legitimate(cid:13) expectation of ever being paroled." Board Brief at 10-11. It(cid:13) notes that, during the 1970s, only 10% of life sentences(cid:13) were commuted and paroled. That figure diminished to less(cid:13) than half a percent in the 1990s. The Governor’s power to(cid:13) grant commutation was in his absolute discretion, and(cid:13) thus, according to the Board, Thomas’s eligibility for parole(cid:13) was entirely speculative. The Board does not dispute that(cid:13) the possibility of parole at sentencing based on some(cid:13) explicit criteria gave rise to a liberty interest. Hence, the(cid:13) procedures for reviewing parole applications must be(cid:13) constitutionally sound. (cid:13) Garner held that the Ex Post Facto clause prohibited the(cid:13) application of post-conviction laws to prisoners that would(cid:13) result in a significant increase in the chances of prolonged(cid:13) incarceration. 529 U.S. at 251. Prisoners are entitled to(cid:13) know the range of punishments available at the time of(cid:13) sentencing, and during the adjudication of their case, so(cid:13) that they can plea bargain and strategize effectively: The Ex(cid:13) 28(cid:13) Post Facto clause "(1) . . . prevents legislatures from(cid:13) interfering with the executive and judicial roles of(cid:13) prosecution and punishment; and (2) it assures that(cid:13) legislative acts give fair warning of what actions will be(cid:13) punished and the degree to which they will be punished."(cid:13) Coady, 251 F.3d at 487-88. Therefore, an offender, prior to(cid:13) his conviction and sentencing, is entitled to know not only(cid:13) his maximum possible punishment, but also his or her(cid:13) chances of receiving early release, since this too is a(cid:13) relevant factor in the plea bargaining calculus. An adverse(cid:13) change in one’s prospects for release disadvantages a(cid:13) prisoner just as surely as an upward change in the(cid:13) minimum duration of sentence.(cid:13) The possibility of commutation existed at the time of(cid:13) Thomas’s conviction and sentence. The relevant criterion(cid:13) for determining the applicability of ex post facto analysis is(cid:13) the effect of new policies on "eligibility for reduced(cid:13) imprisonment," rather than any fixed guarantee of release.(cid:13) Lynce v. Mathis, 519 U.S. 433, 445 (1997) (emphasis(cid:13) added). Therefore, a sentence that contained the right to(cid:13) parole consideration would give rise to a constitutional(cid:13) expectation that the parole guidelines extant at the time of(cid:13) the crime would be applied. See Garner, 529 U.S. at 250.(cid:13) Eligibility for a commutation of a life sentence entails the(cid:13) possibility of parole, albeit a more distant possibility than(cid:13) for sentences that carry the possibility of parole ab initio. It(cid:13) also gives rise to the expectation that the parole criteria in(cid:13) effect at the time of the crime will be applied.(cid:13) The Board contends that there was never a "significant"(cid:13) possibility, given the unlikelihood of commutation, that(cid:13) Thomas would ever be paroled. Garner, 529 U.S. at 256.(cid:13) Indeed, as the Board contends, in most cases of life(cid:13) sentences in Pennsylvania, parole will never be an option as(cid:13) commutations are quite rare. However, as unlikely as these(cid:13) initial prospects for parole might have been, the application(cid:13) of the new parole policies in Thomas’s case rendered them(cid:13) even more remote. The new policy "substantially increased(cid:13) the period of incarceration;" it reduced the possibilities of(cid:13) ever obtaining release.(cid:13) The Board’s reliance on California Dept. of Corrections v.(cid:13) Morales, 514 U.S. 499, 508-09 (1995) is misplaced.(cid:13) 29(cid:13) Although the parole policy change in Morales wrought a(cid:13) small change in the average duration of a prison sentence,(cid:13) the change was held to be too minuscule to rise to a(cid:13) constitutional violation. Morales considered the effect of a(cid:13) procedural change in parole law, which provided for a(cid:13) greater wait-period between first and second hearings. Id.(cid:13) at 507. Here the substantive criteria for parole release have(cid:13) changed.(cid:13) Lynce v. Mathis set forth a key distinction between the(cid:13) Morales case and this petition. In Lynce, a law in effect at(cid:13) the time of conviction provided that if a prison population(cid:13) reached approximately 98% of its capacity, good conduct(cid:13) credits needed for early release could be acquired at an(cid:13) accelerated pace. The law was changed during the(cid:13) prisoner’s sentence, and his accelerated credits, earned(cid:13) during a time of over-98% prison capacity, were cancelled(cid:13) and parole denied. 519 U.S. at 438-39.(cid:13) The Lynce prison officials argued that, at the time of(cid:13) conviction, it was entirely speculative whether the prison(cid:13) would become overcrowded during the petitioner’s(cid:13) incarceration, and thus he was excluded from ex post facto(cid:13) protection under the holding in Morales. However, Lynce(cid:13) distinguished Morales, because there was no evidence in(cid:13) Morales that the change affected the petitioner’s own(cid:13) sentence detrimentally. Lynce, 519 U.S. at 447. In Lynce,(cid:13) the population did exceed 98% during petitioner’s(cid:13) incarceration, and by his own conduct the prisoner(cid:13) achieved enough credits for good behavior, so that he(cid:13) became eligible for release under the old rules. The change(cid:13) in policy had the effect of increasing the punishment in his(cid:13) individual case and thus violated ex post facto. Id.(cid:13) Thus, under Lynce’s reasoning, the parole change(cid:13) substantially impacted Thomas in violation of the Ex Post(cid:13) Facto clause. Moreover, Thomas is entitled to the benefits(cid:13) of his good behavior in prison; the opportunity to reduce(cid:13) his sentence through commutation, no matter how(cid:13) speculative, existed at the time of Thomas’s crime. Thomas(cid:13) successfully attained a commutation of his sentence; he(cid:13) was entitled to corresponding reduction in sentence. We,(cid:13) therefore, hold that to retroactively apply changes in the(cid:13) parole laws made after conviction for a life sentence in(cid:13) 30(cid:13) Pennsylvania that adversely affect the release of prisoners(cid:13) whose sentences have been commuted, violates the Ex Post(cid:13) Facto clause.(cid:13) III. Thomas’s Due Process Claim(cid:13) Thomas argues that the Board’s handling of his(cid:13) application without any real consideration of its merits, in(cid:13) violation of the Board’s own procedures, offends due(cid:13) process, and that this court should itself order him(cid:13) released. Although the Board has not given due(cid:13) consideration to the relevant factors, this can be explained(cid:13) by its misguided reliance on the post-1996 criteria.(cid:13) Moreover, we are exceedingly reluctant to usurp the Board’s(cid:13) functions and, except in our review capacity, substitute our(cid:13) own judgment for that of the parole Board. Although there(cid:13) were flaws and oversights in the Board’s consideration of(cid:13) Thomas’s applications, we are not entirely convinced that(cid:13) the Board is unable to give Thomas a fair hearing in light(cid:13) of the important considerations we have set forth in this(cid:13) opinion.(cid:13) IV. Conclusion(cid:13) Ordinarily, the Board’s decision to parole or deny parole(cid:13) to a prisoner is based on the consideration of many factors,(cid:13) with no one factor being dispositive. We expect that, on(cid:13) remand, the Board will not be defensive, but instead will(cid:13) fairly consider Thomas’s application in the light of our(cid:13) observations and Ex Post Facto prohibitions. If the(cid:13) Guidelines recommend release, the Board should fairly(cid:13) consider the weight of this recommendation. A decision(cid:13) contrary to a Guidelines recommendation must be(cid:13) buttressed by unique factors which outweigh the(cid:13) Guidelines endorsement. Moreover, release on parole is a(cid:13) Board policy presumption, and parole should be granted(cid:13) unless countervailing negative factors affirmatively(cid:13) outweigh reasons supporting release.(cid:13) In conclusion, the Order of the District Court is hereby(cid:13) affirmed, with directions to remand the matter to the Board(cid:13) for further proceedings consistent with this opinion,(cid:13) including a new hearing for Thomas and the Board’s(cid:13) 31(cid:13) written decision thereon within 45 days after the mandate(cid:13) of this court.(cid:13) A True Copy:(cid:13) Teste:(cid:13) Clerk of the United States Court of Appeals(cid:13) for the Third Circuit(cid:13) 32(cid:13)