William J. PRATER, Petitioner-Appellant, v. U.S. PAROLE COMMISSION, and Thomas Keohane, Warden, Respondents-Appellees.
No. 84-1121.
United States Court of Appeals, Seventh Circuit.
Argued Nov. 14, 1984. Decided June 12, 1985.
764 F.2d 1230
Before CUDAHY and POSNER, Circuit Judges and SWYGERT, Senior Circuit Judge.
“The validity of delegations of discretionary powers does not rest merely upon the enumeration of precise standards or specific guiding factors. . . . [T]he Court [has] noted that the necessary power to delegate sufficient authority to effectuate congressional purposes may demand the grant of broad discretions to administrative agencies:
‘It is not necessary that Congress supply administrative officials with a specific formula for their guidance in a field where flexibility and the adaptation of the congressional policy to infinitely variable conditions constitutes the essence of the program. “If Congress shall lay down by legislative act an intelligible principle * * * such legislative action is not a forbidden delegation of legislative power. . . .“’ Standards prescribed by Congress are to be read in light of the conditions to which they are to be applied. “They derive much meaningful content from the purpose of the Act, its factual background and the statutory context in which they appear.” American Power & Light Co. v. S.E.C., 329 U.S. 90, 104, 67 S.Ct. 133, [142] 91 L.Ed. 103 [1946].’
“Even greater latitude must be recognized where Congress grants broad discretionary powers to courts, for the constitutional and functional role of courts necessarily requires the frequent application of judgment in the exercise of discretion.”
Since
James J. Barrett, Pine Ridge, Ky., for petitioner-appellant.
Carolyn N. Small, Asst. U.S. Atty., Indianapolis, Ind. (Sarah Evans Barker, U.S. Atty.), for respondents-appellees.
Posner, Circuit Judge, dissented with opinion.
This is an appeal from a denial of a writ of habeas corpus. Petitioner argued in district court that the application to his case of a parole statute and related guidelines adopted subsequent to his sentencing is a violation of the ex post facto prohibition of the
I.
Petitioner-Appellant, William J. Prater, is serving a life sentence imposed upon him in the Western District of Pennsylvania for the offense of conspiracy to injure, oppress or threaten a U.S. citizen. The conspiracy of which Mr. Prater was convicted resulted in the murder of United Minе Workers official Joseph Yablonski and two family members on December 31, 1969. This was a notorious murder and was widely deplored at the time.
On March 24, 1982, the National Commissioners issued a notice of action which set a presumptive parole eligibility date of April 14, 1988. The reason stated by the commissioners for this action was that “release at this time would depreciate the severity of your offense behavior.” After an appeal to and hearing before the full commission in June of 1982, the commission affirmed the deferment of Mr. Prater‘s parole to April of 1988.
Throughout Mr. Prater‘s ten years of confinement he has maintained a clear institutional record of no disciplinary “write-ups” and has worked in prison industries; he had no prior convictions or history of drug dependence. He therefore received the highest possible “salient factor” score of ten (10). The special prosecutor investigating the Yablonski murders, Richard A. Sprague, and sentencing Judge Gerald J. Weber recommended clemency in view of Mr. Prater‘s cooperation with the government in the prosecution of other conspirators.
On January 28, 1983, Prater filed a petition for writ of habeas corpus in the district court. One of the grounds for relief, and the only one raised on this appeal, is that the denial of parole for the reason that Prater‘s release would depreciate the severity оf his offense was in violation of the ex post facto clause of the
The district court entered an order to show cause and the respondents responded on March 23, 1983. The response did not deny any of the factual allegations, but asserted that the respondents were entitled to dismissal of the petition as a matter of law. On May 16, 1983, the petitioner filed a motion for judgment on the pleadings noting the absence of a dispute as to any material fact and asserting that he was entitled to judgment as a matter of law.
The respondents filed a memorandum in response to the motion for judgment on the pleadings and supplemented their response by the filing of three additional exhibits relating to the Parole Commission‘s action. Subsequently, the district court, ruling on the respondents’ motion to dismiss and petitioner‘s motion for judgment on the pleadings and finding that no evidentiary hearing was necessary, granted the respondents’ motion and dismissed the petition. Petitioner Prater then took this appeal.
Petitioner‘s argument on appeal is relatively straightforward. He pleaded guilty in 1973 to an offense committed in 1969 for which he was sentenced in June 1973. In 1969 and in 1973, the standard for parole release was governed by
In November 1973, the Parole Board adopted regulations which prescribed reasons for denial of parole and established guidelines for the length of time to be served based on the “salient factor” scores of individual characteristics and offense severity ratings. 38 Fed.Reg. 31942-45 (1973). In addition to the “institutional performance” and “public welfare” standаrds recognized in the then-applicable statute, the new regulations provided that the reasons for parole denial could include the factor that “[r]elease, in the opinion of the Commission, would depreciate the seriousness of the offense or promote disrespect for the law.”
The “new” criterion contained in the 1973 guidelines and the 1976 statute relating to the depreciation of the seriousness of the offense and the promotion of disrespect for the law is a standard based on “retributive justice” (the relationship bеtween time served and the nature of the offense) and “general deterrence” (incarceration as a means of promoting general respect for the law). See Heirens v. Mizell, 729 F.2d 449, 452 (7th Cir.), cert. denied, U.S., 105 S.Ct. 147, 83 L.Ed.2d 85 (1984). The contention here, as in Heirens, is that the introduction of an
II.
On a closely analogous problem this circuit has, in effect, marched to the top of the hill and then down again on the other side. Thus, in Welsh v. Mizell, 668 F.2d 328, 331 (7th Cir.), cert. denied, 459 U.S. 923, 103 S.Ct. 235, 74 L.Ed.2d 186 (1982), we held that the explicit introduction of similar retributive general deterrent considerations into the Illinois Parole statute operated as an ex post facto law and could not be applied to prisoners whose crimes were committed before the adoption of the statutory change. In Heirens, supra, however, we overruled Mizell because we determined from an examination of parole practice in Illinois that general deterrence had in fact been a valid consideration by the Parole Board even before the statutory revision which made this consideration one for explicit examination. In other words, we determined that, with respect to the Illinois statute, the adoption of a “depreciation of the seriousness of the offense” standard merely made explicit what had formerly been implicit in the administration of the parole statute and therefore there had been no violation of the ex post facto prohibition.
The facts of Heirens are somewhat like the facts in this case. William Heirens had been sentenced in 1946, in Illinois courts, to life imprisonment for each of three murders, and had been sentenced for other crimes to lesser terms, to run consecutively to the three life terms, which were themselves to run consecutively. In 1981 Heirens filed a petition for a writ of habeas corpus in federal court; he hаd been denied parole for the reason that release would depreciate the seriousness of his crime, and he claimed that the imposition of that criterion, adopted by the legislature in 1972, was in his case a violation of the ex post facto clause of the Constitution. While his petition was before the district court, we decided Welsh, saying that the “depreciation of the seriousness” standard was a marked departure from previous practice, and that its application to Welsh, who had been sentenced before the Illinois legislature had promulgated that standard, was indeed an ex post facto violation. The magistrate who had been assigned Heirens’ petition ordered the Parole Board to give Heirens a new hearing, under Welsh, applying standards in effect at the time of Heirens’ sentencing. The Parole Board made several attempts to justify the denial of parоle but could not convince the magistrate that parole was being denied for reasons other than the retroactively inapplicable general deterrence rationale. The magistrate therefore ordered Heirens’ release, and the Parole Board appealed.
In overruling Welsh, this court began by looking closely at existing practice before the passage of the Illinois statute. It
[T]he Parole Board was effectively given unlimited discretion in deciding whether or not to parole a particular prisoner with the single exception that the Board include in its consideration the prisoner‘s conduct record while confined. We cannot conclude, as the court did in Welsh, that the statute‘s requirement that the Board consider an applicant‘s prison record eliminated all other pertinent criteria, including general deterrence and retributive justice, from its lawful consideration, when the Parole Board‘s discretion was otherwise unlimited.
729 F.2d at 460 (emphasis in original). We quoted from People v. Nowak, 387 Ill. 11, 55 N.E.2d 63, cert. denied, 323 U.S. 745, 65 S.Ct. 67, 89 L.Ed. 597 (1944), in which the Illinois Supreme Court had said:
[Benefits under the provisions of the Parole Act] may be granted as a matter of grace and not as a legal right. Such acts of leniency, whether by pardon or parole, are administered by the executive branch of the government in the interests of society and the discipline, education and reformation of the one convicted.
729 F.2d at 462 (quoting Nowak, 55 N.E.2d at 65) (emphasis in Heirens). The Illinois court had thus made clear that in addition to education and reformation, the interests of society and discipline were to be taken into account in awarding parole.
We also pointed in Heirens to an article by Theodore Fields, a former Illinois Parole Board chairman, in which Mr. Fields discussed the new parole legislation. We quoted:
The duties of thе Parole Board are set forth by the Illinois statutes. The new statute which became law in January, 1973, was drafted by progressive experts in the corrections field. What did they provide as to the factors that the Board must take into consideration when making parole decisions? The statute sets forth that “the Board shall not parole a person eligible for parole if it determines that:
“(1) There is a substantial risk that he will not conform to the reasonable conditions of parole; or
“(2) his release at that time would depreciate the seriousness of his offense or promote disrespect for the law; or
“(3) his release would have a substantially adverse effect on institutional discipline.”
This statute sets forth the general criteria for denying parole that have been followed by the Board for some time.
729 F.2d at 460 (quoting Fields, Illinois Parole and Pardon Board Adult Parole Decisions, 62 III.B.J. 20, 20-21 (1973)) (emphasis in Heirens).
We concluded:
[The Illinois legislature] mеrely codified the Board‘s prior practice and procedure, that is, it simply explicitly articulated the Parole Board‘s broad range of discretion which had always existed. Since the Parole Board considered both general deterrence and retributive justice prior to 1973, the application of [the depreciation of the seriousness criterion] to inmates who committed their crimes before 1973 does not violate the ex post facto prohibition of the United States Constitution. [That] criterion is not disadvantageous to an offender who committed his crime before January 1, 1973, as that criterion merely includes factors which were considered in making parole decisions prior to that date.
III.
A.
“[T]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events before its enactment, аnd it must disadvantage the offender affected by it.” Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981) (footnotes omitted).4 In
In the case before us, as in Heirens, disadvantage is a factual question involving the actual practice of the Parole Board before and after the statutory change. The district court evidently considered the question to be a matter of law, and found no ex post facto violation. In a very brief paragraph the district judge drew the conclusion that the petitioner could not have been disadvantaged by the change in the law:
It is at this point that petitioner‘s ex post facto argument fails, because under the law as it existed in 1969, at the time оf the petitioner‘s offense, it would have been possible for the Board of Parole (the predecessor to the Parole Commission) to deny parole for the reason that release would depreciate the seriousness of the offense. Thus petitioner could not have been disadvantaged by his denial of parole for that reason in 1982.
But speculation that the Board might have acted in the same way under the old law does not settle the question of disadvantage, where the question is being decided as a matter of law. If we have nothing to go on but the assumption that parole could have been denied under the old law if it would depreciate the seriousness of the offense, and the requirement that parole must be denied under the new law if it would depreciate that seriousness, the prisoner could at least argue persuasively that he had been disadvantaged. Under the оlder statute the board was apparently entitled, in its discretion, to balance depreciation of seriousness against other factors, especially in borderline cases of such depreciation. Under the newer statute, no one could be released whose parole would depreciate the seriousness of the offense, whatever else was in his favor. The probability of release of someone whose release would thus depreciate his crime would tend to decline and this change was arguably to his disadvantage.
We feel, therefore, that the court below was incorrect in deciding as a matter of law that Prater could not have been disadvantaged by the change in the statute. It seems to us simply impossible to draw this conclusion out of the statutory language alone.
In Heirens, however, we held that where such a change in discretion involves the parole laws, the courts must look to the actual practice of the board before and after the change, and must not try to decide the question of disadvantage as a matter of law. The practical approach relied on in Heirens seems to us the right one, one grounded in the very nature of the
Certainly it is true, as the Supreme Court said in Weaver, that a change which required that prisoners receive fewer days for good time would lower each prisoner‘s expectation of early release; in that case the discretion of the parole board is not involved. Even though a prisoner might get out just as early by qualifying for extra days of good time, the Court did not countenance such speculation. 450 U.S. at 35-36, 101 S.Ct. at 967-968. The probability of early release was reduced, and that sufficed to violate the ex post facto laws when applied retroactivеly. Similarly, a change from a discretionary maximum sentence to a mandatory sentence of the same length would change expectations for the worse; under the earlier law each prisoner had some positive expectation of getting less than the maximum sentence, but under the later law he has no such expectation. Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182 (1937). Even though he might have gotten the maximum sentence under the old law, the change in expectations is clearly to his disadvantage, and would violate the ex post facto law. Weaver, 450 U.S. at 32 n. 17, 101 S.Ct. at 966 n. 17 (citing Lindsey v. Washington, supra).
But when we come to the necessarily elusive factors which must enter into the parole board‘s determination about release, such conclusions are inappropriate. Although on paper it can be made to look as though any law restricting the grounds on which a prisoner could be paroled worked to his disadvantage, that is not really the case. Consider a law which, unlike prior law, required the board to deny release unless it seemed to the board that release was for the good of all. Such a law would probably have no effect whatever on the practice of the board; it would merely tell the board not to release someone unless they thought it was the right thing to do, something we may assume the board has taken for granted all along. And yet it is beyond question that one area of the board‘s discretion—the discretion to parole even when it is not for the good of all—would have been cut off; and if these things had to be decided in the abstract, it would have to be said that the prisoner had been accordingly disadvantaged.
In our view, such a change would not violate the ex post facto clause, because no real disadvantage would have been suffered. Hence the question here is whether the actual change that was made by the 1976 law is like the “for-the-good-of-all” change, or whether in fact it disadvantages the prisoner. And that is a question of fact, as we made clear in Heirens, to be determined by an investigation of the practice of the board before and after the change. We would note that the “good-of-all” language in our example is not radically different from the sort of expansive language the Illinois Parole Board and the United States Parole Commission have been obliged to deal with.
B.
Since the court below considered this to be a question of law, it did not take evidence on the practice of the parole board. We remand for a reconsideration in the light of what we have said here and in Heirens. While Heirens involved a different statute and a different board, the statutes are nearly identical and the forces at work to produce the change were quite obviously similar. Before we will conclude that thе change in the federal parole law has worked to Prater‘s disadvantage, therefore, we must be convinced that the change in the statute worked a change in the actual practice of the federal parole authorities.
Our own perusal of the legislative history and the commentary unearth nothing which conflicts with the Heirens’ assumption that parole boards before 1970 did in fact consider depreciation of the seriousness of the offense in making their determinations. While the legislative history of the United States parole statute and the commentary relating to it are not conclusive on the point, there is indeed some significant commentary to the effect that the United States Board of Parole considered general deterrence, retributive justice and exemplary considerations before the adoption of the 1973 guidelines or the 1976 statute:
[T]he former chairman of the United States Board of Parole [George Reed] has provided an example of board maintenance of general deterrence aims:
You take a bank president who embezzles half a million dollars and he gets a substantial sentence—the judgment of the court is (A) he is going to observe the rulings of the institution, no question about that—he is not going to be a problem in the institution—and (B) probably if released he would not be the president of the bank, he would not have the opportunity to embezzle money. But there is a matter of public interest and the public welfare that there be some deterrent from people taking half a million dollars out of your bank or mine. In making decisions premised on this approach, the Board is really considering the “weightiness of considerations of retribution, moral reprobation, community reassurance or deterrence.”
Kastenmeier and Egglett, Parole Release Decisionmaking: Rehabilitation, Expertise, and the Demise of Mythology, 22 Am.U.L.Rev. 477, 508 (1973) (footnotes omitted).
And the same authors note that the former (pre-1973) statutory mandate for the Board was that it consider the “welfare of society.”
“Welfare,” obviously a vague term, lends itself to definitions ranging from public safety to public adverse reaction. Consequently, notwithstanding the possibility of a man‘s readiness for release in terms of his own personal makeup and even gauged by the measure of public safety, concern about public opinion [presumably about dangerousness] may deter an affirmative decision to release.
Id. at 516 (emphasis supplied; footnotes omitted). Thus, it appears that, although explicit recognition in administrative guidelines and in the applicable statute is relatively recent, the United States Board of Parole may have for a long time if not always—recognized and deferred to considerations of general deterrence, retribution and the like. See Warren v. United States Parole Comm‘n, 659 F.2d 183, 193 (D.C. Cir. 1981) (“[T]he guidelines embody what may well have been the Board‘s practice anyway.“). At least, we know of no basis in the legislative history or commentary whereby the impact of new guidelines and statutory provisions in the federal arena must, or should, be considered essentially different from the like circumstances with respect to parole in the state of Illinois, which we examined in Heirens. Nevertheless we are unable to find dispositive evidence that the statutory changes had no real effect on the practice of the parole authorities.
IV.
A.
The policy of the ex post facto clause is to insure that persons have fair notice of potential criminal punishment and will be able to rely for their conduct on the criminal law as it exists at the time of their acts. Reliability and regularity are the goals. See Weaver v. Graham, 450 U.S. 24, 28-29, 101 S.Ct. 960, 963-964, 67 L.Ed.2d 17 (1981); Warren v. United States Parole Comm‘n., 659 F.2d 183, 188 (D.C. Cir. 1981); L. TRIBE, AMERICAN CONSTITUTIONAL LAW, 474, 484 (1978). It seems implausible that the perpetrator of a grave and notorious crime could operate under a serious misapprehension that a parole board, armed with broad discretion, would fail to consider the public ramifications of his premature release from prison—whatever the formal state of the applicable statutes or guidelines.
Nevertheless, it may in fact be so; it may be that the 1976 statute changed parole practice and that Prater has been disadvantaged to some extent by the change in the law. We note that in his pleadings before the district court Prater raised factual issues concerning actual disadvantage to himself. He did not, however, address the question of parole practice. The trial judge, working under an erroneous view of the law, did not address the factual issue but ruled against Prater on the basis of his reading of the statute itself. Under these circumstances we must remand to allow consideration of the question of practice. If Prater can demonstrate, to the satisfaction of the district court, that his expectations of release at a certain time have been clearly and significantly reduced, then he should be permitted to invoke the ex post facto clause.
B.
The dissent suggests that we are inviting an increase in litigation by concluding that the change in practice involved in this case might implicate the ex post facto clause. That may or may not be a relevant consideration in approaching a constitutional provision. Whether it is or not, we foresee no such increase in litigation. As in Heirens, once the question of a violation has been decided in this case, future litigation should be foreclosed.
Moreover, if the dissent‘s primary concern is with litigation, it has chosen an odd way out of the difficulty it perceives. Whereas we have suggested that a determination about practice must be made that would settle the matter once and for all, the dissent would avoid remanding by finding the later statute “more liberal” in creating an entitlement to parole (providing the conditions of the statute are met). In the first place, finding such an entitlement in the language of the act itself suggests endless litigation. In the second place, unless there is a kind of ratchet that guarantees that all future statutes will be even
But even should the dissent be right, that the later statute creates an entitlement to parole, the inquiry cannot end there. The statute also creates a class for whom parole was formerly, under the law, within the discretion of the parole board and for whom parole is now statutorily impossible—namely, the class of prisoners whose release would depreciate the seriousness of their crime. See H.R. CONF. REP. No. 94-838, 94th Cong. 2d Sess. 26, reprinted in [1976] U.S. CODE CONG. & AD. NEWS 335, 351, 358 (“the release on parole of only those who meet the criteria of this act“). On the face of it, this class has been disadvantaged. But Heirens tells us to look beyond the words of the statute and to decide disadvantage as a question of fact. Since we do not have at our disposal the evidence thаt was apparently before the Heirens court, and since we are reluctant to take the dissent‘s advice and base a different outcome on a passage from a law review article, we are compelled to remand.6
The decision of the district court is vacated, and the cause is remanded for further proceedings not inconsistent with this opinion.
POSNER, Circuit Judge, dissenting.
My brethren have decided to remand the case for a factual inquiry into the practices followed by the Parole Board under the old statute. I disagree with this disposition, mainly because I do not think that the practices of courts or executive agencies are material in deciding whether a law is a forbidden ex post facto law. The prohibition in
The 1969 statute provides, “if it appears to the Board of Parole . . . that there is a reasonable probability that such prisoner will live and remain at liberty without violating the laws, and if in the opinion of the Board such release is not incompatible with the welfare of society, the Board may in its discretion authorize the release of such prisoner on parole.”
Whether the new statute is harsher than the Parole Board‘s practices under the old statute is an issue both difficult to resolve by the methods of litigation and remote from the central purpose of prohibiting ex post facto laws, which is to protect expectations. No person contemplating criminal activity should be encouraged tо rely on the current practices of judges, or prosecutors, or prison officials, or parole boards; that is not the sort of reliance that the prohibition against ex post facto laws ought to protect or does protect. Besides the parole-guidelines cases cited earlier, see Holguin v. Raines, 695 F.2d 372, 374 (9th Cir. 1982) (judicial interpretation of statute), and Glynn v. Auger, 678 F.2d 760, 761 (8th Cir. 1982) (per curiam) (double-celling of inmates)—illustrative cases where the prohibition was held inapplicable to nonlegislative actions that in fact increased the severity of punishment for a crime and did so retroactively. Of course there is the danger of a legislature‘s using delegation to executive, administrative, or judicial officers to get around the prohibition against ex post facto laws, and the closely related danger of encouraging legislatures to enact vague statutes. But these are not dangers in this case; there is no suggestion that either act delegates excessively, or is too vague. Hence it should be enough that under the 1969 act the Parole Board could have refused to parole someone because of the enormity of his crime, even if he was completely rehabilitated, and as harmless as a white mouse; it is unnecessary to add that, on occasion, it did so. See Garcia v. United States Board of Parole, 557 F.2d 100, 105 (7th Cir. 1977), where we upheld such a refusal as consistent with the 1969 act. The fact that the Parole Board may not often have exercised its power to deny parole because of the enormity of the crime would not give a prisoner a right to be paroled regardless of that enormity. In the nature of things, such power is unlikely to be exercised often; crimes as outrageous as Prater‘s are rare.
Heirens v. Mizell, 729 F.2d 449, 457-65 (7th Cir. 1984), does not compel my brethren‘s result. It is true that the court there inquired at length into the actual practice under the old statute, and found it consistent with the new. See id. at 459-63. That cooked the petitioner‘s goose; but to draw the negative inference that if the practice had been different the state would have lost is unwarranted, especially since Heirens cites with approval the district court‘s
Although my brethren only remand the case, let there be no misapprehension about the significance of this decision. Any federal prisoner who committed his crime before the enactment of the 1976 parole statute has a potential ex post facto claim under the decision today. The decision will also leave the Parole Commission in grave doubt as to whether it can apply the current statute to prisoners—who must be legion—who committed their crimes before 1976. The implications for state prisoners in this circuit are equally far-reaching, given the parallel prohibition in