OPINION OF THE COURT
We are asked to decide whether an amendment to Article IV, § 9(a) of the Constitution of the Commonwealth of Pennsylvania, that alters the voting procedures employed by the Pennsylvania Board of Pardons to require unanimity in recommending pardons and commutations for life-sentenced prisoners to the Governor, violates the Ex Post Facto Clause of the United States Constitution.
The District Court ruled that the constitutional amendment, passed by Pennsylvania voters in 1997 (“1997 Amendment”), violates the Ex Post Facto Clause for prisoners sentenced to a term of life imprisonment prior to its effective date. Because none of the prisoners who are seeking relief in this action has shown that there is a significant risk the 1997 Amendment will increase the length of their punishment, an element essential to establishing an ex post facto violation, Plaintiffs have failed to state a viable claim. We will therefore reverse and remand with instructions to dismiss the ex post facto action.
I
Under the Constitution of the Commonwealth of Pennsylvania, the Governor is empowered “in all criminal cases except impeachment ... to grant reprieves, commutation of sentences and pardons.... ” Pa. Const. art. IV, § 9(a). “Like Article II of the U.S. Constitution, Article IV of the Pennsylvania Constitution delineates powers of the executive branch.”
Pa. Prison Soc’y v. Cortés,
Prior to November 4, 1997, Article IV, § 9(a) of the Constitution of the Commonwealth of Pennsylvania provided, in relevant part, that:
In all criminal cases except impeachment the Governor shall have the power to remit fines and forfeitures, to grant reprieves, commutation of sentences and pardons; but no pardon shall be granted, nor sentence commuted, except on the recommendation in writing of a majority of the Board of Pardons, after full hearing in open session, upon public notice ....
Pa. Const. art. IV, § 9(a) (amended 1997) (emphasis added).
In 1997, a ballot question proposing an amendment to the constitution that would alter the composition of and voting procedures employed by the Board of Pardons was scheduled to be submitted to Pennsylvania voters. The proposed ballot question read:
Shall,the Pennsylvania Constitution be amended to require a unanimous recommendation of the Board of Pardons before the Governor can pardon or commute the sentence of an individual sentenced in a criminal case to death or life imprisonment, to require only a majority vote of the Senate to approve the Governor’s appointments to the Board, and to substitute a crime victim for an attorney and a corrections expert for a penologist as Board members?
Pa.
Prison Soc’y v. Commonwealth,
*221 On November 4, 1997, Pennsylvania voters approved the ballot measure. Article IV, § 9(a) of the Constitution of the Commonwealth of Pennsylvania was amended to read as follows:
In all criminal cases except impeachment the Governor shall have power to remit fines and forfeitures, to grant reprieves, commutation of sentences and pardons; but no pardon shall be granted, nor sentence commuted, except on the recommendation in writing of a majority of the Board of Pardons, and in the case of a sentence of death or life imprisonment, on the unanimous recommendation in writing of the Board of Pardons, after full hearing in open session, upon due public notice.
Pa. Const., art. IV, § 9(a). Accordingly, the 1997 Amendment changed the number of votes needed to support the Pardon Board’s recommendation to the Governor that a life sentence be commuted to a term of years with the possibility of parole from majority to unanimous and substituted a crime victim instead of an attorney and a corrections expert instead of a penologist as Board members.
A
Pennsylvania law distinguishes between the exercise of the Governor’s clemency power to grant pardons and commutations pursuant to the Constitution of the Commonwealth, and the authority to release a prisoner on parole, which is an independent function of the Board of Probation and Parole. Unlike the Board of Pardons, which is constitutionally mandated and operates as a function of the Pennsylvania Department of Justice, 71 Pa.Stat. § 12, the Pennsylvania Board of Probation and Parole is an independent board, originally created by the Parole Act of 1941. See Parole Act of 1941, 1941 Pa. Laws 861 (codified as amended at 61 Pa. Stat. Ann. §§ 331.1-.21 repealed by Act of Aug. 11, 2009, ch. 61, 2009 Pa. Laws 33). The Parole Act states that “[t]he 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.” Id.; see also 61 Pa. Cons.Stat. § 6111(a)-(b) (2010) (providing that the Board of Probation and Parole is “an independent administrative board for the administration of the probation and parole laws of this Commonwealth” consisting of nine members who are appointed by the Governor).
By contrast, “[t]he constitutional power of the Governor to grant pardons and commutations of sentence is exclusive ...”
Commonwealth ex rel. Banks v. Cain,
The Governor’s power to commute sentences is found within Article IV, § 9 of the Pennsylvania Constitution. Under our Constitution of 1776, § 20, the Supreme Executive Council had the power to grant pardons and remit fines in all cases except in cases of impeachment. This doctrine has evolved over the years into the present day enactment, which provides in pertinent part: (a) In all criminal cases except impeachment, the Governor shall have power to remit fines and forfeitures, to grant reprieves, commutation of sentences and pardons; but no pardon shall be granted, nor sentence commuted, except on the recommendation in writing of a majority of the Board of Pardons, after full hearing in open session, upon due public notice....
*222 Id. (citing Pa. Const. art. IV, § 9) (citations omitted). 4 In Banks, the court discussed the differences between the concepts of parole and pardons and explained that:
[t]here is a radical difference between a pardon and a parole. A pardon is the exercise of the sovereign’s prerogative of mercy. It completely frees the offender from the control of the state. It not only exempts him from further punishment but relieves him from all the legal disabilities resulting from his conviction. It blots out the very existence of his guilt, so that, in the eye of the law, he is thereafter as innocent as if he had never committed the offense. A parole, on the other hand, does not obliterate the crime or forgive the offender. It is not an act of clemency, but a penological measure for the disciplinary treatment of prisoners who seem capable of rehabilitation outside of prison walls. It does not set aside or affect the sentence; the convict remains in the legal custody of the state and under the control of its agents, subject at any time, for breach of condition, to be returned to the penal institution. Neither is a parole a commutation of sentence within the meaning of that term in the constitutional provision. When our present constitution was adopted, parole, as a penological expedient, was unknown to American jurists and legislators, and commutation was then generally understood as meaning a reduction in the length of the sentence, effecting a discharge of the prisoner without any further supervision over him by the state authorities.
Banks,
B
This action was originally brought as a petition for review in the Commonwealth Court of Pennsylvania on October 16,1997, before the ballot question proposing the 1997 Amendment had been approved by voters. In the original action, the Pennsylvania Prison Society and others challenged the ballot question as violative of various provisions of the United States and Pennsylvania Constitutions.
5
See Pa.
*223
Prison Soc’y v. Commonwealth,
On November 12, 1997, after voters approved the 1997 Amendment, the Commonwealth removed the action to the United States District Court for the Middle District of Pennsylvania pursuant to 28 U.S.C. § 1441(a). On January 5, 1998, Plaintiffs filed an amended complaint alleging that the 1997 Amendment violates various provisions of the United States Constitution. On January 15, 1998, the District Court granted the parties’ joint motion to remand the state law claims and to stay the federal claims pending resolution of the state law claims.
The Commonwealth Court determined that “the November 4, 1997 vote on the ballot question [was] null and void, as the single ballot question contained five amendments to the Pennsylvania Constitution.”
Pa. Prison Soc’y v. Commonwealth,
On July 29, 2002, after resolution of the state law claims, Plaintiffs filed a second amended complaint in the District Court presenting federal and state constitutional challenges to the 1997 Amendment, including a claim that for prisoners sentenced to life imprisonment prior to the effective date of the 1997 Amendment, the change in the voting requirements for the Board of Pardons violates the Ex Post Facto Clause as alleged in Count II. Plaintiffs’ second amended complaint also alleges that the 1997 Amendment violates: the rights of life prisoners and prisoners under death sentence under the Due Process Clause (Count I); the Equal Protection Clause (Count III); Pennsylvania voters’ rights under the Due Process Clause (Count IV); the Eighth Amendment (Counts V and VI); and the Guarantee Clause (Count VII). Plaintiffs also brought claims under the Pennsylvania Constitution (Counts VII and VIII). In their second amended complaint, Plaintiffs requested declaratory and injunctive relief.
On August 12, 2002, the Commonwealth moved to dismiss Plaintiffs’ second amended complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). On March 6, 2003, the District Court issued a memorandum in which it granted the Commonwealth’s motion to dismiss Counts III through VIII pursuant to Rule 12(b)(6), and ordered the dismissal of the claim in Count I that due process rights of inmates with life sen *224 tences were violated. The District Court denied the Commonwealth’s motion to dismiss the due process claims of inmates under death sentences as alleged in Count I, as well as the Commonwealth’s motion to dismiss the prison inmates’ claim under the Ex Post Facto Clause as alleged in Count II. (Mem. Op., March 6, 2003.)
In denying the motion to dismiss the
ex post facto
claim, the District Court relied upon Supreme Court cases analyzing the impact of changes in the eligibility requirements for
parole
release enacted by various states. It concluded that resolution of the
ex post facto
claim required a factual analysis, because “when an amendment ‘does not by its own terms show a significant risk, the [prisoner] must demonstrate, by evidence drawn from the rule’s practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier rule.’ ”
(Id.
at 11-12 (quoting
Garner v. Jones,
Both sides moved for reconsideration of the District Court’s March 6, 2003, order. The Plaintiffs argued that the District Court should reconsider its ruling on the
ex post facto
claim in light of
Smith v. Doe,
[t]he present case is distinguishable from both Doe and Hendricks in that it involves a challenge to retroactive changes in state law governing prisoners’ parole, instead of challenges to legislation regarding “sexual predators” or sexual offenders. The Supreme Court has consistently held that, in cases regarding retroactive changes in state law governing prisoners’ parole, the relevant inquiry is whether the amendments create a significant risk of prolonging prisoners’ sentences.
(Mem. Op., May 6, 2003, at 5-6 (emphasis added)) (citing
Garner,
The Commonwealth moved the District Court to reconsider its partial denial of Plaintiffs’ due process claim in Count I regarding prisoners sentenced to death, and urged it instead to dismiss the claim in its entirety. The Commonwealth argued that “[w]hether or not certain Board [of Pardons] members are biased against granting clemency does not render the amendment unconstitutional, although it may be grounds for disqualification in a particular case.” (Defs.’ Br. in Supp. of Mot. for Consideration, April 4, 2003, at 4- *225 5.) The District Court agreed with the Commonwealth’s argument in part. It held that
[t]he prejudice of individual Parole Board members is irrelevant, as Plaintiffs must establish that the amendments would not be valid under any set of circumstances.... Plaintiffs may still pursue the argument that the inclusion of a crime victim on the Board impermissibly introduces decision-maker bias into the parole process.
(Mem. Op., May 6, 2003 at 7) (emphases added). 6
On August 19, 2005, Plaintiffs filed a Motion for Summary Judgment. It was refiled on August 23, 2005 as an Amended Motion for Summary Judgment, pursuant to the District Court’s instruction. Plaintiffs moved for summary judgment as to Count II on the ground that the 1997 Amendment “constitutes an improper ex post facto imposition of additional punishment in violation of the United States Constitution on persons who were sentenced to death or to life in prison prior to the effective date of such Amendment.” (Pls.’ Am. Mem. in Supp. of Their Mot. for Summ. J., Aug. 23, 2005.)
On September 13, 2005, the Commonwealth filed a Motion for Summary Judgment as to Plaintiffs’ challenge to the inclusion of a crime victim on the Board of Pardons on the ground that it impermissibly introduced decision-maker bias into the clemency process in violation of the Due Process Clause. The Commonwealth also moved for summary judgment as to Plaintiffs’ ex post facto claim, on the ground that Plaintiffs had “failed to show that the application of the Amendment will result in a longer period of incarceration for life-sentenced inmates [and they have not shown] that they themselves were individually disadvantaged by the Amendment.” (Defs.’ Br. in Supp. of Their Mot. Summ. J., at 23.)
On March 13, 2006, the District Court granted the Plaintiffs’ Motion for Summary Judgment, holding that the new requirement of Board unanimity in recommending pardons for prisoners sentenced to life imprisonment who had committed their crimes before the 1997 Amendment’s effective date violated the
Ex Post Facto
Clause. The District Court denied relief in all other respects.
Pa. Prison Soc’y v. Rendell,
The parties filed a timely appeal and cross-appeal to this Court. The Commonwealth argued that the District Court erred in failing to dismiss or, alternatively, to grant their motion for summary judgment on the
ex post facto
claim.
Prison Society I,
Because the issue of standing was raised for the first time on appeal, none of the plaintiffs have had the opportunity to present evidence or to litigate this issue. We will therefore dismiss this appeal *226 without prejudice for lack of jurisdiction and remand to the District Court for further proceedings consistent with this Opinion to develop the record in order to determine plaintiffs’ standing to bring this action.
Id. at 169. Based upon the conclusion that the Plaintiffs lacked standing, this Court did not reach the Commonwealth’s argument that the District Court erred in failing to dismiss this action or, alternatively, grant summary judgment to the Commonwealth on the ex post facto claim. The Commonwealth’s appeal was dismissed and the case was remanded to the District Court so that the Plaintiffs could present evidence or otherwise litigate the standing issue.
On remand, the District Court held an evidentiary hearing regarding the standing issue as to each plaintiff on June 2, 2008, August 6, 2008, and August 7, 2008. The District Court determined that the Pennsylvania Prison Society was the only plaintiff that “satisfie[d] all of the requirements needed to qualify for the organizational exception to the prohibition on third party standing.”
Pa. Prison Soc’y v. Cortés,
In its June 11, 2009 Memorandum Opinion, the District Court “reinstate[d]” its prior rulings on the Cross-motions for Summary Judgment filed by the parties in 2005 (Plaintiffs’ motion filed August 23, 2005 and the Commonwealth’s motion filed September 13, 2005).
Id.
at *16-17,
even though a less than unanimous vote did not guarantee a life sentenced prisoner commutation prior to the passage of the 1997 amendments and although *227 commutation is not completely foreclosed following the passage of the amendments, the 1997 amendments significantly reduced the likelihood of a life sentenced prisoner receiving a recommendation by the Board for commutation and, as such, the 1997 amendments make commutations and parole even more remote for those inmates.
Id. at 660-61.
The Board of Pardons and the Pennsylvania Prison Society, as well as Hollis, Smith, and Thompson filed timely cross-appeals from the District Court’s final order of June 11, 2009.
The District Court asserted jurisdiction over this matter pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1441(a). This Court has jurisdiction over the appeal from the District Court’s final order pursuant to 28 U.S.C. § 1291.
Two dispositive issues remain in this protracted litigation. We must decide whether the District Court was required to conduct an evidentiary hearing to determine its subject matter jurisdiction over the ex post facto claim of each Plaintiff, pursuant to this Court’s mandate in Prison Soc’y I. We must also address the question whether the 1997 Amendment, which concerns the exercise of a Governor’s sovereign power of clemency as authorized by a state’s voters, violates the Ex Post Facto Clause.
II
In
Prison Soc’y I,
this Court declined to reach the merits of the parties’ cross-appeals from the District Court’s order on the parties’ Cross-Motions for Summary Judgment because the Second Amended Complaint did not demonstrate that any of the Plaintiffs had standing to assert .their constitutional claims. For that reason, this Court dismissed the Commonwealth’s appeal without prejudice, without reaching the merits of the cross-appeals and instructed the District Court to “develop the record in order to determine plaintiffs’ standing to bring this action.”
Prison Soc’y I,
A
The Board of Pardons argues that the District Court erred in permitting the Pennsylvania Prison Society to present evidence on the issue of its organizational standing because “[t]his Court’s prior ruling in this case[, which] determined ... that PPS, and all of the other organizational plaintiffs had failed to show standing,” foreclosed further review of the issue by the District Court. (Appellants’ Opening Br. 5.) Based upon the District Court’s reading of this Court’s opinion in
Prison Soc’y I,
it determined that the instruction upon remand was for it “to develop the record and determine standing for
all plaintiffs
in the current case, including the Pennsylvania Prison Society.”
Pa. Prison Soc’y v. Cortés,
B
The Board of Pardons also argues that the District Court erred in concluding that the Pennsylvania Prison Society had organizational standing to bring
*228
this suit because its ruling was based upon the erroneous conclusion that individual members Keith Smith and Jackie Lee Thompson had standing to sue in their own right. The Board of Pardons argues that Smith and Thompson lacked standing because they “do not have live claims as their ability to challenge the 1997 amendments is time-barred.” (Appellants’ Reply Br. 8-9.) “We exercise plenary review of standing ... issues, but review for clear error the factual elements underlying the District Court’s determination of standing.”
General Instrument Corp. v. NuTek Elecs. & Mfg.,
[T]o satisfy Article Ill’s standing requirements, a plaintiff must show (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw,
[A]n association has standing to bring suit on behalf of its members when; (a) its members would otherwise have standing to sue in their own right; (b) the interests at stake are germane to the organization’s purpose, and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.
Hunt v. Washington State Apple Advertising Comm’n,
In
Prison Soc’y I,
this Court concluded that “the record [wa]s silent about the organizational plaintiffs’ members and whether those members themselves meet the standing requirements to bring this case.”
Prison Soc’y I,
Applying the test for organizational standing set forth in
Hunt,
the District Court found that the Pennsylvania Prison Society had presented evidence that Smith and Thompson were both members and had both received four-to-one (4-1) Board of Pardons votes in favor of their application for a commutation after the 1997
*229
Amendment took effect.
Id.
at *13,
The Board of Pardons’ argument that Smith and Thompson lacked standing to bring this action because they failed to challenge the Board of Pardons’ denial of their prior applications within the prescribed time frame for bringing such challenges is not persuasive. (Appellants’ Opening Br. 27-28.) The Board of Pardons has cited no authority, and we have found none, holding that an ex post facto challenge to a constitutional amendment must be brought within a given time period or else it is forfeited. Moreover, the Pennsylvania Prison Society is not seeking damages for past injuries. It is seeking declaratory relief and an injunction. The Pennsylvania Prison Society has alleged that Smith and Thompson have suffered an “injury-in-fact” due to “imminent” future harm in connection with their current and future applications for commutations, which is sufficient for purposes of demonstrating standing to bring this action. Smith testified before the District Court that he filed an application in 2007 that is currently “at a standstill because of the issue here. They said ... that they [were] not moving any applications until ... this situation is resolved.” (J.A. 642.) Thompson testified that he is “working on” a new application for commutation that he intends to submit as soon as he clears up an administrative obstacle pertaining to his Social Security number. (Cross-Appellants’ Br. 33.) The Board of Pardons has not demonstrated that Thompson and Smith are likely to receive less favorable votes from the Board of Pardons than the four-to-one votes they received the last time their applications were reviewed by the Board of Pardons. For purposes of establishing the District Court’s subject matter jurisdiction to consider their complaint that their constitutional rights had been violated, Smith and Thompson’s allegations were sufficient to withstand a dismissal of their claims pursuant to Rule 12(b)(1).
We agree with the District Court’s conclusion that the Pennsylvania Prison Society satisfied the second prong of the
Hunt
test for organizational standing because it presented evidence that “the interests that the Pennsylvania Prison Society now seeks to assert are certainly germane to the Prison Society’s purpose,
as stated in the Second Amended Complaint,
[which is] ‘to advocate for a humane, just, and restorative correctional system, and to promote a rational approach to criminal justice issues.’ ”
Pa. Prison Soc’y v. Cortés,
Finally, the District Court concluded that the Prison Society satisfied the third prong of the
Hunt
organizational standing test because “[n]either the claim asserted [n]or the relief requested [in the Second Amended Complaint] requires the participation of individual Prison Society members in the lawsuit since this suit alleges that the 1997 Amendments to the Pennsylvania Constitution impact several life-sentenced prisoners in Pennsylvania and
*230
violate the
Ex Post Facto
Clause of the United States Constitution.”
Pa. Prison Soc’y v. Cortés,
The District Court did not err in concluding that the Pennsylvania Prison Society had organizational standing to represent its members who are prisoners sentenced to life imprisonment.
See Hunt,
C
Douglas Hollis argues in his cross-appeal that the District Court erred in concluding that he “lacked standing because he did not show a likelihood of receiving a majority vote in his pending petition for commutation, although he possesses the characteristics of lifers previously recommended for commutation, he previously received a majority vote, and he has a petition pending with the Board.” (Appellees/Cross-Appellants’ Br. at 8.) Hollis asserts that the District Court’s conclusion that he lacked standing to participate in this action is irreconcilable with its holding that Smith and Thompson had demonstrated standing to sue in their own right. Id. Hollis argues that because he, like Smith and Thompson, received a favorable four-to-one majority vote by the Board of Pardons in a past application for commutation, and he has a pending application for commutation, he has shown an injury-in-fact due to imminent future harm sufficient to sue in his own right. The Board of Pardons maintains that the District Court based its ruling on findings of fact that were supported by the evidence, and thus should not be disturbed by this Court unless they are clearly erroneous. (Appellants’ Reply Br. 18.)
The District Court concluded that Hollis had not demonstrated that he was “likely to receive a majority vote in favor of review on the application currently pending before the Board of Pardons.”
Pa. Prison Soc’y v. Cortés,
hearing was held immediately in the aftermath of the emotionally charged atmosphere of the November 1994 Gubernatorial election, wherein Lieutenant Governor Singel had lost to Governor Ridge, in part based upon Singel’s recommendation to commute the life sentence of Reginald McFadden, who turned around and committed a murder and rape in New York less than a year after he got out.
Id.
at *9,
Hollis argues in his cross-appeal that the District Court’s ruling, and this Court’s earlier instruction that a plaintiff must show that he is “likely to receive a majority of votes favoring a commutation recommendation from the Board,”
Pa. Prison Society I,
The District Court held that Hollis had alleged only “a potential injury, happening on some indeterminate future date [that] is neither concrete nor particularized nor imminent, and [thus] does not satisfy the ‘irreducible constitutional minimum’ of standing established by Article III.”
Pa. Prison Soc’y v. Cortés,
If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.
Id.
(citing
United States v. Yellow Cab Co.,
D
Keith Smith and Jackie Lee Thompson cross-appeal from the District Court denial of their motion to intervene in this action. The District Court construed Smith and Thompson’s motion to intervene as a motion for permissive intervention and denied it based upon the discretion provided to district courts pursuant to Fed.R.Civ.P. 24(b).
Pa. Prison Soc’y v. Cortés,
Rule 24 (a) of the Federal Rules of Civil Procedure provides that, “[o]n timely motion, the court must permit anyone to intervene who: (1) is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.” Fed.R.Civ.P. 24(a). Rule 24(b) provides in relevant part that “[o]n timely motion, the court may permit anyone to intervene who: (A) is given a conditional right to intervene by a federal statute; or (B) has a claim or defense that shares with the main action a common question of law or fact.” Fed.R.Civ.P. 24(b). Furthermore, “[i]n exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” Id.
The District Court concluded
(1) that the interests of Mr. Smith and Mr. Thompson are adequately represented by the Pennsylvania Prison Society and (2) that their intervention into this case, after this Court’s grant of summary judgment and the Court of Appeals’ remand, would be purely superfluous and add unnecessary complexities that could potentially cause undue delay in the resolution of this case.
Pa. Prison Soc’y v. Cortés,
Accordingly, based upon its conclusion that the Pennsylvania Prison Society had standing to bring this action, the District Court properly “assume[d] jurisdiction to decide whether the allegations [in the second amended complaint] state a cause of action on which the court can grant relief as well as to determine issues of fact arising in the controversy” with respect to Plaintiffs’
ex post facto
claim.
Bell v. Hood,
*233 III
The Board of Pardons argues in this appeal, as did the Commonwealth in Prison Soc’y I, that the District Court erred in granting summary judgment in favor of the Pennsylvania Prison Society because “the changes to Pennsylvania pardons procedures made by the 1997 constitutional amendments did not truly implicate the Ex Post Facto Clause.” (Appellants’ Br. 29.) It maintains that this Court should “reverse [the District Court’s] rulings and ... remand this case to the district court with directions either to dismiss this matter or to enter judgment in their favor, as may be appropriate given the resolution of the legal issues.” (Id. at 4.) In urging this Court to remand this matter with directions that it be dismissed, the Board of Pardons argues that “[t]he district court misapprehended critical characteristics of commutations/pardons in Pennsylvania, which compel the conclusion that the 1997 changes to voting procedures do not fit the definition of “ex post facto.” ” (Id. at 5.)
We are persuaded that the District Court erred as a matter of law in denying the Commonwealth’s motion to dismiss Plaintiffs’ ex post facto claim pursuant to Fed.R.Civ.P. 12(b)(6) because the Prison Society has not stated a viable ex post facto claim.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ”
Ashcroft v. Iqbal,
— U.S. -,
Plaintiffs allege in the Second Amended Complaint that “[t]he changes in the pardons process effectuated by the Amendment impose additional punishment on the Prisoner Plaintiffs since there is distinctly less of an opportunity to obtain a pardon or commutation.” (2d Amend Compl. ¶ 44.) Plaintiffs also allege that “[p]rior to the Amendment, it was distinctly more likely that the Prisoner Plaintiffs could obtain a pardon or commutation. However, since the Amendment became law, the Prisoner Plaintiffs are virtually shut out from that opportunity.” (2d Amend Compl. ¶ 65.) These allegations fail to state a viable claim as a matter of law because the legal conclusion that the “Amendment impose[s] additional punishment” is not supported by any of the factual allegations in the Second Amended Complaint. The 1997 Amendment does not lengthen the sentences imposed upon the prisoners represented by the Pennsylvania Prison Society, who have been sentenced to serve a term of life imprisonment without parole.
“There is no
ex post facto
violation where the retroactively applied law does not make one’s punishment more burdensome, but merely creates a disadvantage.”
Spuck v. Ridge,
While the District Court correctly determined that the Pennsylvania Prison Society had standing to bring this action, in ruling on the Commonwealth’s Rule *234 12(b)(6) motion to dismiss, it erroneously concluded that Plaintiffs had alleged facts sufficient to demonstrate that the 1997 Amendment could result in a longer period of incarceration for inmates sentenced pri- or to its adoption. (Mem. Order Den. Defs.’ Mot. to Dismiss, March 6, 2003, at 11-12.) For this same reason, we must also reverse the District Court’s order granting summary judgment in favor of the Pennsylvania Prison Society.
As the Commonwealth has argued throughout this litigation, there are three distinct reasons why Plaintiffs’
ex post facto
claim is not viable.
8
First, the 1997 Amendment is not an
ex post facto
law “[g]iven the
ad hoc
nature of [executive] clemency, the retroactive application of the amendment cannot, as a matter of law, have any widespread effect on the period of incarceration for prisoners serving life sentences____” (Defs.’ Reply in Supp. of Them Mot. to Dismiss 9 (quoting
Solem v. Helm,
Second, “[P]laintiffs
cannot
show that the passage of the Amendment has resulted or will result in a longer period of incarceration for life sentenced prisoners” because a life sentence, absent the executive grant of a commutation, is still a life sentence and nothing more. (Defs.’ Mem. in Supp. of Their Mot. for Summ. J. 20 (emphasis added);
see also
Appellants’ Op. Br. 31 (citing
Commonwealth v. Szczesniewski,
Third, the 1997 Amendment does not trigger an
ex post facto
inquiry because changes in the law that alter procedures for obtaining commutation, but do not eliminate the possibility of commutation, are procedural and thus not
ex post facto
laws. (Appellants’ Br. 11, 29 (citing
Artway v. Attorney Gen. of N.J.,
We will first address the requirements for triggering an ex post facto inquiry when challenging a law that is violative of the Ex Post Facto Clause. We will then address the arguments concerning the deficiencies in Plaintiffs’ ex post facto claim raised by the Commonwealth in its motion to dismiss, and before this Court in Prison Soc’y I, and by the Board of Pardons in the instant appeal.
A
The
Ex Post Facto
Clause of the Constitution, U.S. Const. art. I §§ 9 and 10, forbids the government from passing any law “which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.”
Weaver v. Graham,
In
Lindsey v. Washington,
the Supreme Court explained that, in reviewing a claim of an
ex post facto
violation, the focus is on the “effect” of the new law.
Lindsey,
[T]he Supreme Court of Washington, without analysis or comparison of the practical operation of the [new and old] statutes, [upheld the law, declaring that] “[t]he amending act [did] not change or inflict a greater punishment than the law in force when the alleged crime was committed[,] for the court could under the law in force at that time pronounce a maximum sentence of not more than fifteen years. The minimum and maximum punishments remain the same as before the enactment of the act of 1935.”
Id.
at 399-400,
Removal of the possibility of a sentence of less than fifteen years ... operates to [the] detriment [of petitioners] in the sense that the standard of punishment adopted by the new statute is more onerous than that of the old. It could hardly be thought that, if a punishment for murder of life imprisonment or death were changed to death alone, the latter penalty could be applied to homicide committed before the change. Yet this is only a more striking instance of the detriment which ensues from the revision of a statute providing for a maximum and minimum punishment by making the maximum compulsory.... It is plainly to the substantial disadvantage of petitioners to be deprived of all opportunity to receive a sentence which would give them freedom from custody and control prior to the expiration of the fifteen-year term.
Id.
at 401-02,
In
Weaver,
the Supreme Court similarly held that a Florida law which, “[o]n its face, reducefd] the number of monthly gain-time credits available to an inmate who abides by prison rules and adequately performs his assigned tasks,” violated the
Ex Post Facto
Clause because “[b]y definition, this reduction in gain-time accumulation lengthens the period that someone in petitioner’s position must spend in prison.”
Weaver,
Critical to relief under the Ex Post Facto Clause is not an individual’s right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense.
Id.
at 30-31,
Conversely, in
Dobbert v. Florida,
the Supreme Court reviewed a “new statute ... [that] altered the methods employed in determining whether the death penalty was to be imposed,” and concluded that there was no
ex post facto
violation because though the challenged provisions changed the role of jury and judge in sentencing, they did not add to the “quantum of punishment.”
Dobbert v. Florida,
In
Cal. Dep’t of Corr. v. Morales,
the Supreme Court considered whether a law changing the procedures concerning the accessibility of parole suitability hearings violated the
Ex Post Factor
Clause.
Cal. Dep’t of Corr. v. Morales,
Morales argued before the Court that the new law increased the punishment attached to his crime because, under
Lindsey, Miller,
and
Weaver,
“a legislature may not stiffen the ‘standard of punishment’ applicable to crimes that have already been committed.”
Morales,
the focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of ‘disadvantage,’ nor ... on whether an amendment affects a prisoner’s ‘opportunity to take advantage of provisions for early release,’ but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable.
Id.
at 499, 506 n. 3,
Both before and after the [new law], California punished the offense of second-degree murder with an indeterminate sentence of “confinement in the state prison for a term of 15 years to life.” The amendment also left unchanged the substantive formula for securing any reductions to this sentencing range. Thus, although 15 years was the formal “minimum” term of confinement, respondent was able to secure a one-third “credit” or reduction in this minimum by complying with prison rules and regulations. The amendment had no effect on the standards for fixing a prisoner’s initial date of “eligibility” for parole, or for determining his “suitability” for parole and setting his release date.
Id.
at 507,
would require that we invalidate any of a number of minor (and perhaps inevitable) mechanical changes that might produce some remote risk of impact on a prisoner’s expected term of confinement [... and charge the judiciary ... ] with the micromanagement of an endless array of legislative adjustments to parole and sentencing procedures, including such innocuous adjustments as changes to the membership of the Board of Prison Terms, restrictions on the hours that prisoners may use the prison law library, reductions in the duration of the parole hearing, restrictions on the time allotted for a convicted defendant’s right of allocution before a sentencing judge, and page limitations on a defendant’s objections to presentence reports or on documents seeking a pardon from the governor.
Id.
at 508-09,
*238
In
Garner v. Jones, 529
U.S. 244,
Jones brought an action under 42 U.S.C. § 1983, claiming,
inter alia,
that the amendment to Rule 475-3-05(2) violated the
Ex Post Facto
Clause.
Id.
The suit was filed against individual members of the Parole Board. The district court granted summary judgment in favor of the Parole Board on the ground that the amendment to Rule 475-3-.05(2) “change[d] only the timing between reconsideration hearings for inmates sentenced to life in prison, thereby relieving the Board of the necessity of holding parole hearings for prisoners who have no reasonable chance of being released.”
Garner,
The Supreme Court reversed, explaining that “the standard announced in
Morales
requires a more rigorous analysis of the level of risk created by the change in law.”
Garner, 529
U.S. at 255,
When the rule does not by its own terms show a significant risk, the respondent must demonstrate, by evidence drawn from the rule’s practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier rule.
Id.
Because Jones had not shown “that as applied to his own sentence the law created a significant risk of increasing his punishment,” the Supreme Court remanded the case to the district court to determine “whether retroactive application of the amendment to Rule 475-3-05(2) increases, to a significant degree, the likelihood or probability of prolonging [Jones’s] incarceration.”
Id.
at 255-56,
It is thus clear from the Supreme Court cases that have reviewed legislative changes affecting
parole
decisions that, to demonstrate an
ex post facto
claim, a plaintiff must show that the effect of a retroactive change in the law or policy created a “significant risk” that the sentence ultimately served will be increased above and beyond what was prescribed when the crime was consummated, as a result of the new law. Allegations that changes in the law have produced “some ambiguous sort of ‘disadvantage,’ [or] ...
*239
affect[ed] a prisoner’s
‘opportunity
to take advantage of provisions for early release,’ ” are not sufficient grounds for bringing an
ex post facto
claim.
Morales,
1
In granting the Plaintiffs’ Motion for Summary Judgment on the ex post facto claim, in its March 13, 2006 memorandum opinion, the District Court reasoned as follows:
[T]he 1997 amendment[’]s change in voting requirements, from majority to unanimity, creates more than a speculative and attenuated risk of increasing the measure of punishment applied to life sentenced inmates. Further, the requirement of convincing all, rather than a majority, of the Board members that commutation is warranted is a more difficult task for any applicant, and will equally disadvantage every applicant to which the amendment is applied. As such, Plaintiffs have offered evidence sufficient to demonstrate individual disadvantage as required by the Third Circuit in Richardson v. Pennsylvania Board of Probation and Parole,423 F.3d 282 (3d Cir.2005)].
Pa. Prison Soc’y v. Rendell,
The Board of Pardons argued in its motion to dismiss, and throughout this litigation, that Plaintiffs have failed to state an
ex post facto
claim because, “in Pennsylvania, clemency is a process separate and apart from criminal case due process and involves a matter of executive — not judicial — grace.” (Appellant’s Op. Br. 17.) The Board of Pardons asserts that “[c]om-mutation ... is an ad
hoc
exercise of executive clemency. A Governor may commute a sentence at any time for any reason without reference to any standards.” (Defs.’ Reply in Supp. of Their Mot. to Dismiss 9 (quoting
Solem,
The 1997 Amendment concerns a change in procedures required for seeking commutation from the Governor. “Unlike probation, pardon and commutation decisions have not traditionally been the business of courts; as such, they are rarely, if ever, appropriate subjects for judicial review.”
Dumschat,
In
Snodgrass v. Robinson,
the focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of “disadvantage,” nor ... on whether an amendment affects a prisoner’s “opportunity to take advantage of provisions for early release,” but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable. Simply put, not every change in the law raises ex post facto concerns. The changed law must create a “significant risk” of increasing the offender’s punishment. Here, Snodgrass’s claim does not hinge on the availability of parole, but on the availability of a commutation — the only means by which she might become eligi *240 ble for parole. Whereas changes to parole procedures may, in some circumstances raise ex post facto concerns, changes to Iowa’s procedures for commutation applications do not. This is because most parole procedures are distinct from the highly personal, policy oriented, and legislatively unchecked authority of the Iowa governor to grant sentence commutations.
The unpredictability of a wholly discretionary grant of commutation in Iowa precludes Snodgrass from demonstrating that the changes in Iowa’s law raise a “significant risk” that she will be denied a commutation she otherwise would have received. As such, she cannot demonstrate there is a significant risk her punishment will be longer than it would have been under former Iowa Code Section 902.2. Accordingly, she cannot make out an ex post facto claim.
Id.
at 1002-03 (citations and footnote omitted);
see also Smith v. Sampson,
In
Smith,
the plaintiffs “claim [was] that the commutative effect of changes in [Michigan] state law have impaired his opportunity for commutation in violation of the
Ex Post Facto
Clause of the United States Constitution.”
Smith,
It is well settled that, “[a]s a matter of law, parole and commutation are different concepts, despite some surface similarities.”
Solem,
Parole is a regular part of the rehabilitative process. Assuming good behavior, it is the normal expectation in the vast majority of cases. The law generally specifies when a prisoner will be eligible to be considered for parole, and details the standards and procedures applicable at that time. See, e.g., Greenholtz v. Nebraska Penal Inmates,442 U.S. 1 [99 S.Ct. 2100 ,60 L.Ed.2d 668 ] (1979) (detailing Nebraska parole procedures); Morrissey v. Brewer,408 U.S. 471 , 477 [92 S.Ct. 2593 ,33 L.Ed.2d 484 ] (1972) (“the practice of releasing prisoners on parole before the end of their sentences has become an integral part of the penological system”). Thus it is possible to predict, at least to some extent, when parole might be granted.
Id.
at 300-01,
The Constitutions of the United States and of the Commonwealth of Pennsylvania *241 entrust clemency decisions to the sole discretion of the executive branch. See U.S. Const. art. II, § 2, cl. 1 (the President “shall have Power to grant Reprieves and Pardons for Offenses against the United States ... ”); Pa. Const. art. IV, § 9(a) (“In all criminal cases except impeachment the Governor shall have power to remit fines and forfeitures, to grant reprieves, commutation of sentences and pardons ...”).
The genesis of the doctrine of the sovereign power to grant clemency in the United States is found in the English common law. “In England, the clemency power was vested in the Crown and can be traced back to the 700’s.”
Herrera v. Collins,
At the time of the drafting and adoption of our Constitution it was considered elementary that ... the king may extend his mercy on what terms he pleases, and consequently may annex to his pardon any condition that he thinks fit.
Id.
at 261,
In Wilson, drawing on England’s historical and judicial experience, Chief Justice John Marshall explained the origin of the executive pardon:
The constitution gives to the president, in general terms, “the power to grant reprieves and pardons for offences against the United States.”
As this power had been exercised, from time immemorial, by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance!,] we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it. A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the court. It is a constituent part of the judicial system, that the judge sees only with judicial eyes, and knows nothing respecting any particular case, of which he is not informed judicially. A private deed, not communicated to him, whatever may be its character, whether a pardon or release, is totally unknown and cannot be acted on. The looseness which would be introduced into judicial proceedings, would prove fatal to the great principles of justice, if the judge might notice and act upon facts not brought regularly into the cause. Such a proceeding, in ordinary cases, would subvert the best established principles, and overturn those rules which have been settled by the wisdom of ages.
Wilson,
In
Ex parte Wells,
At the time of our separation from Great Britain, [the pardon] power had been exercised by the king, as the chief exec *242 utive. Prior to the revolution, the colonies, being in effect under the laws of England, were accustomed to the exercise of it in the various forms, as they may be found in the English law books. They were, of course, to be applied as occasions occurred, and they constituted a part of the jurisprudence of Anglo-America. At the time of the adoption of the constitution, American statesmen were conversant with the laws of England, and familiar with the prerogatives exercised by the crown. Hence, when the words to grant pardons were used in the constitution, they conveyed to the mind the authority as exercised by the English crown, or by its representatives in the colonies. At that time both Englishmen and Americans attached the same meaning to the word pardon. In the convention which framed the constitution, no effort was made to define or change its meaning, although it was limited in cases of impeachment.
Id. at 311.
In
Herrera,
the Court reaffirmed the traditional conception of clemency as a function of the executive branch, separate from adjudicatory proceedings within the Judicial Branch.
Herrera,
The Pennsylvania courts have held that the judiciary
can[not] impinge upon the exclusive jurisdiction of the executive branch of the government in [determining whether to commute a sentence]. Action by the Board of Pardons is in accordance with constitutional provisions and in no way comes under the aegis of the courts. Indeed, were a court to review the conduct of a hearing before the Board of Pardons it would be a clear invasion by judicial direction of the immunity granted the executive branch of our government. Such is not consonant with our constitutional doctrine of separation of powers.
Commonwealth ex rel. Cater v. Myers,
The Supreme Court has instructed that there are four exceptions to the sovereign’s executive clemency powers. First, a pardon cannot interfere with the vested property rights of third parties in violation of the Takings Clause.
See
U.S. Const.
*243
amend. V (“Nor shall private property be taken for public use, without just compensation.”);
see also Knote v. United States,
The Supreme Court has also instructed that the procedures by which a pardon is granted must comply with the Due Process Clause of the Fifth Amendment.
Ohio Adult Parole Auth.,
[Although it is true that “pardon and commutation decisions have not traditionally been the business of courts,” Dumschat, supra, at 464 [101 S.Ct. 2460 ], and that the decision whether to grant clemency is entrusted to the Governor under [state] law, I believe that the Court of Appeals correctly concluded that some minimal procedural safeguards apply to clemency proceedings. Judicial intervention might, for example, be warranted in the face of a scheme whereby a state official flipped a coin to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner any access to its clemency process.
Id.
at 289,
Beyond these judicially imposed limitations on the executive clemency power, the remaining checks on the sovereign power of the President or of a Governor are left to the legislative branch and to the powers vested in the people. 11
*244
Here, the voters of the Commonwealth of Pennsylvania expressly voted to limit the Governor’s clemency power, as they are empowered to do under Article XI of the Pennsylvania Constitution. Pa. Const. art. XI. By mandating that all recommendations for a commutation considered by the Governor must first be approved by a unanimous vote of the Board of Pardons, the 1997 Amendment restricted, but did not absolutely foreclose, the exercise of the Governor’s sovereign power to grant a commutation to inmates sentenced to life imprisonment. The power to grant or deny commutations, as prescribed by the Commonwealth’s voters, rests solely with the executive branch which may “deny the requested relief for any constitutionally permissible reason or for no reason at all.”
See Dumschat,
2
The Board of Pardons also argues that the 1997 Amendment does not violate the
Ex Post Facto
Clause because it does not “increase[ ] the penalty” by which a crime is punishable of inmates who are sentenced to life without the possibility of parole. (Appellants’ Reply Br. 10.)
See Morales,
Citing the standard set forth in
Gamer,
the District Court considered “evidence drawn from the [new law’s] practical implementation,” i.e., an analysis of the parties’ stipulated rate and frequency of commutations granted to life-sentenced inmates in Pennsylvania between 1970 and 2005, and concluded that as applied to those inmates sentenced after its effective date, the 1997 Amendment posed a “significant risk” of increased punishment.
Pa. Prison Soc’y v. Rendell,
[E]ven though a less than unanimous vote did not guarantee a life sentenced prisoner commutation prior to the passage of the 1997 amendments and although commutation is not completely foreclosed following the passage of the amendments, the 1997 amendments significantly reduced the likelihood of a life sentenced prisoner receiving a recommendation by the Board for commutation and, as such, the 1997 amendments make commutations and parole even more remote for those inmates.
Id. at 660-61.
In granting the Prison Society’s Motion for Summary Judgment, the District Court *245 based its decision on the following passage from Mickens-Thomas v. Vaughn:
[A]n 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.
Pa. Prison Soc’y v. Rendell,
Mickens-Thomas
involved an
ex post facto
challenge to a “material modification of [Pennsylvania]
parole
laws.”
Mickens-Thomas,
In December 1999, Mickens-Thomas filed a petition for a writ of habeas corpus in the United States District Court “alleging] that the Board denied his parole in violation, of the Ex Post Facto clause, by applying retroactively the revised December 1996 parole statute.” Id. at 383.
The district court in Mickens-Thomas held that the Pennsylvania Board of Probation and Parole “retroactively applied this [statutory] policy change adversely to the parole applications of Louis Mickens-Thomas ... in violation of the Ex Post Facto clause.” Id. at 376 (emphasis added). This Court affirmed, holding that “to retroactively apply changes in the parole laws[,] made after conviction for a life sentence in Pennsylvania that adversely affect the release of prisoners whose sentences have been commuted, violates the Ex Post Facto clause.” Id. at 393 (emphasis added). This Court also concluded that:
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.
Id. at 385.
The issue presented in Mickens-Thomas is similar to the arguments raised by the petitioners in Weaver, Morales, and Gamer in challenging the denial of release on parole. In each of these cases, prisoners seeking release on parole challenged a statutory change in parole release laws. Mickens-Thomas was sentenced to life without the possibility of parole. He challenged the retrospective application of Pennsylvania’s parole laws, not the procedures employed by the Board of Pardons for prisoners seeking a commutation.
In support of its decision on this matter, the District Court relied on this Court’s statement in
Mickens-Thomas
that “ ‘eli
*246
gibility for a commutation of a life sentence entails the possibility of parole[,]’ and although commutations ‘are quite rare,’ application of the new parole policies rendered Thomas’ prospects for parole ‘even more remote’ in violation of the
Ex Post Facto
Clause.”
Pa. Prison Soc’y v. Rendell,
Furthermore, “[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.”
Greenholtz v. Inmates of Neb. Penal & Corr. Complex,
There is no
ex post facto
violation where a retroactively applied law does not make one’s punishment more burdensome, but merely creates a disadvantage.
See Hameen v. Delaware,
We disagree with the District Court’s conclusion that the retrospective application of the 1997 Amendment to the Governor’s clemency power “creates more than a speculative and attenuated risk of
increasing
the measure of punishment applied to life sentenced inmates.”
Pa. Prison Soc’y v. Rendell,
3
Finally, the Board of Pardons argues that “the [District C]ourt should have determined that, on its face, that [the Second Amended Complaint] presented no viable *247 ex post facto claim arising from the 1997 constitutional amendment changing the voting procedures of the Board of Pardons.” (Appellants’ Op. Br. 28-29.) “Changes in procedures that might make it more difficult to obtain ... clemency do not carry with them ex post facto consequences.” (Appellants’ Reply Br. 16.)
“Although the prohibitions against
ex post facto
laws cannot be evaded just by calling a change in law procedural, only the ‘alteration of a substantial right’ is forbidden.”
United States v. Molt,
In Molt, the Seventh Circuit explained that
the presumption is against construing a procedural change as an ex post facto law, and [that] must carry the day in the absence of a stronger showing than made in this case that the change works an increase in punishment. For though we have been speaking of the Bail Reform Act as if it had abolished the right to bail pending appeal, it did no such thing; it merely made it harder to get bail pending appeal ... The change in the balance of advantages against the defendant is too slight to bring the change within the scope of the ex post facto clause.
Molt,
We agree with the Board of Pardons that the 1997 Amendment presents no viable
ex post facto
claim because it only concerns a change in the voting procedures employed by the Board of Pardons, a change that does not affect the prisoners’ substantial rights and thus one that is “too slight” to bring it within the scope of the
Ex Post Facto
Clause.
Molt,
B
We are persuaded that the District Court erred as a matter of law when it failed to grant the Commonwealth’s Motion to Dismiss Plaintiffs’ ex post facto claim pursuant to Rule 12(b)(6). For the same reasons, the District Court also erred in granting summary judgment in favor of the Pennsylvania Prison Society.
“Generally, a denial of a motion to dismiss does not conclusively determine anything because it merely decides that questions of fact remain to be decided.”
Pan Eastern Exploration Co. v. Hufo Oils,
IV
The Pennsylvania Prison Society argues in their cross-appeal that the District Court erred because “[i]t did not enter a declaratory judgment; it did not enter an injunction; it did not even specify to whom, if anyone, its judgment applies. (Appellees’/Cross-Appellants’ Br. 48-49.) Based upon our conclusion that the Commonwealth’s Motion to Dismiss Plaintiffs’
ex post facto
claim pursuant to Rule 12(b)(6) should have been granted because Plaintiffs have failed to state a viable
ex post facto
claim, we will affirm the District Court’s denial of the Pennsylvania Prison Society’s request for a declaratory judgment and injunctive relief.
See Bircoll v. Miami-Dade County,
CONCLUSION
For the foregoing reasons, we reverse the District Court’s grant of summary judgment in favor of the Pennsylvania Prison Society and remand this matter with instructions that the District Court shall enter an order dismissing this action.
Notes
. Prior to its amendment, Pa. Const. art. IV, § 9(b) provided:
The Board of Pardons shall consist of the Lieutenant Governor who shall be chairman, the Attorney General and three members appointed by the Governor with the consent of two-thirds or a majority of the members elected to the Senate as is specified by law for terms of six years. The three members appointed by the Governor shall be residents of Pennsylvania and shall be recognized leaders in their fields; one shall be a member of the bar, one a penologist, and the third a doctor of medicine, psychiatrist or psychologist. The board shall keep records of its actions, which shall at all times be open for public inspection.
Pa. Const. art. IV, § 9(b) (amended 1997).
. While commutations of sentences and pardons for persons convicted of crimes are both acts carried out by the Governor of Pennsylvania under his or her clemency power, the issue relevant in this appeal involves only actions taken by the Board of Pardons on applications for commutation by inmates sentenced to life imprisonment without parole.
. See also Changing Pennsylvania’s Sentencing Philosophy Through the Elimination of Parole for Violent Offenders, 5 Widener J. Pub.L. 269 (1996), discussing the McFadden case:
One of the most sensational cases of early release was that of Reginald McFadden. McFadden was pardoned after serving less than twenty-five years of a life sentence for murdering a sixty-year-old Philadelphia woman. Ninety-two days after his July 7, 1994, release to New York State, under the interstate parole system, McFadden was charged with, and later convicted of, beating and raping a fifty-five-year-old South Nyack woman. He was also charged with raping and murdering a seventy-eight[-]year[-]old Long Island woman. Marlene Aig, 24 Years, A Convict, He Played the System, Pittsburgh Post Gazette, May 30, 1995, at C 1. More recently, McFadden was convicted of the murder of a forty-two-year-old Long Island man. Convicted Murderer Found Guilty Again, Harrisburg Patriot Evening News, Mar. 14, 1996, at B4. Because parole is not available to persons sentenced to life imprisonment, McFadden was released through the pardon process.
Id. at 296 n. 95.
. All fifty states have incorporated clemency provisions in their respective constitutions. See Ala. Const. amend. 38; Alaska Const. art. III, § 21; Ariz. Const. art. V, § 5; Ark. Const. art. VI, § 18; Cal. Const. art. V, § 8; Colo. Const. art. IV, § 7; Conn. Const. art. IV, § 13; Del. Const. art. VII, § 1; Fla. Const. art. IV, § 8; Ga. Const. art. IV, § 2; Haw. Const. art. V, § 5; Idaho Const. art. IV, § 7; Ill. Const. art. V, § 12; Ind. Const. art. V, § 17; Iowa Const. art. 4, § 16; Kan. Const. art. I, § 7; Ky. Const. § 77; La. Const. art. IV, § 5(E); Me. Const. art. V, pt. 1, § 11; Md. Const. art. II, § 20; Mass. Const. pt. II, ch. 2, § 1, art. 8; Mich. Const. art. V, § 14; Minn. Const. art. V, § 7; Miss. Const. art. V, § 124; Mo. Const. art. IV, § 7; Mont. Const. art. VI, § 12; Neb. Const. art. IV, § 13; Nev. Const. art. V, § 13; N.H. Const. pt. 2, art. 52; N.J. Const. art. V, § 2; N.M. Const. art. V, § 6; N.Y. Const. art. IV, § 4; N.C. Const. art. III, § 5(6); N.D. Const. art. V, § 7; Ohio Const. art. III, § 11; Okla. Const. art. VI, § 10; Or. Const. art. V, § 14; Pa. Const. art. IV, § 9; R.I. Const. art. IX, § 13; S.C. Const. art. IV, § 14; S.D. Const. art. IV, § 3; Tenn. Const. art. III, § 6; Tex. Const. art. IV, § 11; Utah Const. art. VII, § 12; Vt. Const. ch. II, § 20; Va. Const. art. V, § 12; Wash. Const. art. III, § 9; W. Va. Const. art. VII, § 11; Wis. Const. art. V, § 6; Wyo. Const. art. IV, § 5.
. Various representational organizations, including the Pennsylvania Prison Society, certain private individuals, and three individual prisoners filed this original action challenging *223 the 1997 Amendment (collectively referred to as "Plaintiffs”). Sued in their official capacities were Pedro A. Cortés, Secretaiy of the Commonwealth of Pennsylvania; Edward Rendell, Governor of Pennsylvania; and Board of Pardons members Lieutenant Governor Joseph B. Scarnati, Attorney General Thomas W. Corbett, Jr., Louise Williams, Dr. Russell Walsh, and John Wetzel (collectively "the Commonwealth”).
Following the District Court’s judgment upon remand from this Court's decision in Prison Soc’y I, current Board of Pardons members Lieutenant Governor Joseph B. Scarnati, Attorney General Thomas W. Corbett, Jr., Louise Williams, Dr. Russell Walsh, and John Wetzel ("the Board of Pardons”) appealed. Neither the Governor nor the Secretary of State is participating in these cross appeals. The only Plaintiffs who filed a cross-appeal were the Pennsylvania Prison Society, Douglas Hollis, Keith Smith, and Jackie Lee Thompson.
. Neither party addressed Rule 12(b)(1) in any of the papers filed in connection with the Commonwealth's motion to dismiss or in the parties’ cross-motions for reconsideration. The District Court also did not discuss Rule 12(b)(1) in denying the Commonwealth's motion or in ruling on the parties' cross-motions for reconsideration.
. Plaintiffs Roger Buehl, Douglas Hollis, and Vincent Johnson were the only individual prisoner plaintiffs remaining in the suit at the time of the District Court’s ruling.
. In Prison Soc'y I, this Court did not reach the merits of the Commonwealth’s contention that the District Court erred in denying its Rule 12(b)(6) motion, and in granting the Plaintiffs’ motion for summary judgment for violation of the Ex Post Facto Clause, because the Plaintiffs failed to present any evidence of a significant injury to satisfy the jurisdictional requirement of demonstrating the existence of a case or controversy.
.
Morales was convicted
of
murdering his wife while he was out on parole for having committed a prior murder. Under the law in place at the time he committed his second murder, Morales would have been entitled to parole suitability hearings on an annual basis.
Morales,
. The Pennsylvania Prison Society has not appealed from the District Court's denial of the Plaintiffs’ due process claim in this cross-appeal.
. For example, Congress can check misuse of the pardon power by impeaching the President.
See e.g.,
U.S. Const. art. I, § 2, cl. 5 (“The House of Representatives ... shall have the sole Power of Impeachment.’’);
id.
art. I, § 3, cl. 6 (“The Senate shall have the sole Power to try all Impeachments.”);
id.
art. II, § 4 ("The President ... shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.”);
Ex parte Grossman,