Roller v. Gunn

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GARY LEE ROLLER,

Plaintiff-Appellant,

v.

WILLIAM E. GUNN, Executive

Director of the South Carolina

Department of Probation, Parole and

No. 96-6992

Pardon Services; SOUTH CAROLINA

DEPARTMENT OF PROBATION, PAROLE

AND PARDON SERVICES,

Defendants-Appellees,

UNITED STATES OF AMERICA,

Intervenor.

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Henry M. Herlong, Jr., District Judge.

(CA-90-3054-3-20-J)

Argued: December 2, 1996

Decided: February 19, 1997

Before WILKINSON, Chief Judge, and RUSSELL and HALL,

Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Chief Judge Wilkinson wrote the

opinion, in which Judge Russell joined. Judge Hall wrote an opinion

concurring in part and dissenting in part.

_________________________________________________________________

COUNSEL

ARGUED: Rochelle Romosca McKim, W. Gaston Fairey, FAIREY,

PARISE & MILLS, P.A., Columbia, South Carolina, for Appellant.

Carl Norman Lundberg, Chief Legal Counsel, SOUTH CAROLINA

DEPARTMENT OF PROBATION, PAROLE AND PARDON SER-

VICES, Columbia, South Carolina, for Appellees. Richard Alan

Olderman, Appellate Staff, Civil Division, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Intervenor.

ON BRIEF: Charles Molony Condon, Attorney General, Donald J.

Zelenka, Assistant Deputy Attorney General, Reginald I. Lloyd,

Assistant Attorney General, OFFICE OF THE ATTORNEY GEN-

ERAL, Columbia, South Carolina, for Appellees. Frank W. Hunger,

Assistant Attorney General, J. Rene Josey, United States Attorney,

Barbara L. Herwig, Appellate Staff, Civil Division, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Inter-

venor.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

Appellant, Gary Lee Roller, challenges the constitutionality of sec-

tion 804 of the Prison Litigation Reform Act ("PLRA"), Pub. L. No.

104-134, 110 Stat. 1321, §§ 801-810 (Apr. 26, 1996), which requires

prisoners proceeding in forma pauperis to pay a partial filing fee

before filing a lawsuit or proceeding with an appeal. We think the Act

represents a legitimate exercise of Congress' power to reduce frivo-

lous lawsuits in the federal courts. We reject Roller's contentions that

the filing fee requirement imposes an unconstitutional barrier on

access to the courts or that it violates the Constitution's equal protec-

tion guarantee.

Roller also appeals the district court's conclusion that the retro-

spective application of amendments to South Carolina's parole proce-

dures does not constitute a violation of the Ex Post Facto Clause. The

Supreme Court's recent decision in California Dept. of Corrections

v. Morales, 115 S. Ct. 1597 (1995), permits the states to adopt

2

changes to their parole procedures which produce no more than a

speculative possibility of affecting a prisoner's punishment. Under

Morales, the changes to South Carolina's parole procedures do not

violate the Ex Post Facto Clause. Accordingly, we affirm the judg-

ment of the district court.

I.

In early 1983, Gary Lee Roller was convicted of voluntary man-

slaughter and grand larceny in South Carolina state court for crimes

committed on December 13, 1982. On March 25, 1983, he was sen-

tenced to thirty-five years imprisonment.

In December 1990, Roller filed a complaint under 42 U.S.C.

§ 1983 challenging the application of amendments to the parole laws

of South Carolina on ex post facto grounds. The amendments, passed

in 1986, modified South Carolina Code section 24-21-645 so that a

prisoner convicted of committing a violent crime would only have his

case reviewed every two years after an initial negative parole determi-

nation rather than every year. Additionally, the amendments required

a two-thirds majority of the parole board to authorize parole for vio-

lent offenders rather than a simple majority. By its terms, the

amended version of section 24-21-645 applied to Roller despite the

fact that he had committed his crimes and been convicted prior to its

enactment.

The district court entered judgment for the South Carolina Depart-

ment of Probation, Parole, and Pardon Services, but was reversed by

this court in Roller v. Cavanaugh, 984 F.2d 120 (4th Cir. 1993). The

case was remanded with instructions to grant declaratory relief in

favor of Roller.

In April 1995, the Supreme Court decided California Dept. Of Cor-

rections v. Morales, 115 S. Ct. 1597 (1995). Morales held that the

retroactive application of a California statute which changed the fre-

quency of parole hearings for multiple murderers from every year to

once every three years did not violate the Ex Post Facto Clause. In

January 1996, South Carolina, arguing that Morales represented a sig-

nificant change in the law, moved under Fed. R. Civ. P. 60(b) for

modification of the court's order declaring the retrospective applica-

3

tion of the 1986 amendments to section 24-21-645 unconstitutional.

On June 5, 1996, the district court concluded on the basis of Morales

that "the application of § 24-21-645 to Roller does not violate the Ex

Post Facto Clause." Roller v. Gunn, 932 F. Supp. 729, 730 (D.S.C.

1996). Roller then filed the instant appeal.

On appeal, Roller moved this court to declare the filing fee require-

ment of the PLRA and a similar requirement providing for the pay-

ment of costs unconstitutional. Roller has paid the full amount of the

$105 filing fee under protest pending our decision.

II.

A.

We turn initially to Roller's contentions that the filing fee provi-

sions of the PLRA constitute an unconstitutional barrier to access to

the courts and violate the constitutional guarantee of equal protection.

Congress has long regulated the access of indigent litigants to the

federal judicial system. The first federal in forma pauperis ("IFP")

statute was enacted in 1892. Act of July 20, 1892, ch. 209, 27 Stat.

252 (codified as amended at 28 U.S.C. § 1915). Concerned that citi-

zens were being denied their day in court, Congress proposed to

"open the United States courts to a class of American citizens who

have rights to be adjudicated, but are now excluded practically for

want of sufficient money or property to enter the courts under their

rules." H.R. Rep. No. 1709, 52d Cong., 1st Sess. 1 (1892). Despite

Congress' admonition that "[t]he proposed law will not admit of vex-

atious litigation," id., the statute's noble purpose has been threatened

by a flood of meritless lawsuits.

Unsurprisingly, prisoners proved responsible for much of this liti-

gation. In some instances, individual prisoners have filed an astonish-

ing number of frivolous lawsuits. See, e.g., Shieh v. Kakita, 116 S. Ct.

1311 (1996) (prisoner prospectively barred from filing petitions for

certiorari in forma pauperis after filing 10 frivolous petitions in less

than three years); In re McDonald, 489 U.S. 180, 184 (1989) (pris-

oner prospectively barred from using in forma pauperis procedures to

4

file extraordinary writs after 73 frivolous filings between 1971 and

1989); In re Green, 669 F.2d 779, 781 (D.C. Cir. 1981) (prisoner filed

"between 600 and 700 complaints in the federal and state courts"). In

1995, prisoners brought over 25% of the civil cases filed in the fed-

eral district courts. Administrative Office of the United States Courts,

1995 Federal Court Management Statistics 167. In this circuit alone,

IFP filings accounted for almost half of the court's 1995 caseload,

Nasim v. Warden, Maryland House of Correction, 64 F.3d 951, 954

n.2 (4th Cir. 1995) (en banc), and prisoners were responsible for 75%

of those filings. Id. at 953-54 n.1.

Congress recognized that the explosion of IFP litigation presents

problems for our legal system. It was obviously concerned that the

limited resources of the federal judiciary not be expended on cases

whose frivolity was manifest, but whose sheer numerosity represented

a formidable and time consuming task. As the Supreme Court has

noted, "[t]he goal of fairly dispensing justice . . . is compromised

when the Court is forced to devote its limited resources to the pro-

cessing of repetitious and frivolous requests." In re Sindram, 498 U.S.

177, 179-80 (1991).

Finding that the proliferation of prisoner litigation was due signifi-

cantly to the lack of economic disincentives to filing meritless cases,

Congress passed the Prison Litigation Reform Act, Pub. L. No. 104-

134, 110 Stat. 1321, §§ 801-810 (Apr. 26, 1996). The goal of the

PLRA amendments to the in forma pauperis statute, 28 U.S.C.

§ 1915, is straightforward:

Section 2 will require prisoners to pay a very small share of

the large burden they place on the Federal judicial system

by paying a small filing fee upon commencement of law-

suits. In doing so, the provision will deter frivolous inmate

lawsuits. The modest monetary outlay will force prisoners

to think twice about the case and not just file reflexively.

Prisoners will have to make the same decision that law-

abiding Americans must make: Is the lawsuit worth the

price?

141 Cong. Rec. at S7526 (May 25, 1995) (statement of Senator Kyl)

(citation omitted).

5

The PLRA thus makes several changes to 28 U.S.C.§ 1915. The

Act requires prisoners seeking IFP status to execute an affidavit

attesting to their impoverishment and to file with the court a certified

copy of their prison trust account. 28 U.S.C. § 1915(1) & (2). More-

over, under the PLRA amendments,

if a prisoner brings a civil action or files an appeal in forma

pauperis, the prisoner shall be required to pay the full

amount of a filing fee. The court shall assess, and when

funds exist, collect, as a partial payment of any court fees

required by law, an initial partial filing fee of 20 percent of

the greater of --

(A) the average monthly deposits to the prisoner's

account; or

(B) the average monthly balance in the prisoner's

account for the 6-month period immediately preceding the

filing of the complaint or notice of appeal.

(2) After payment of the initial partial filing fee, the pris-

oner shall be required to make monthly payments of 20 per-

cent of the preceding month's income credited to the

prisoner's account. The agency having custody of the pris-

oner shall forward payments from the prisoner's account to

the clerk of the court each time the amount in the account

exceeds $10 until the filing fees are paid.

28 U.S.C. § 1915(3)(b)(1) & (b)(2). The amendments also state that

"[i]n no event shall a prisoner be prohibited from bringing a civil

action or appealing a civil or criminal judgment for the reason that the

prisoner has no assets and no means by which to pay the initial partial

filing fee." 28 U.S.C. § 1915(4).

In addition, the PLRA amendments provide that if a district court

in its discretion awards a judgment against a prisoner and includes

costs, the prisoner "shall be required to pay the full amount of the

costs ordered" and "shall be required to make payments for costs

under this subsection in the same manner as is provided for filing fees

. . . ." 28 U.S.C. § 1915(f)(2)(A) & (B).

6

B.

Roller first contends that the PLRA amendments to 28 U.S.C.

§ 1915 constitute a violation of his constitutional right of access to the

courts. See Bounds v. Smith, 430 U.S. 817 (1977). He argues that by

imposing liability for fees and costs on inmates wishing to pursue

appeals, the PLRA amendments have the practical effect of foreclos-

ing access for those prisoners who are unable or unwilling to assume

the financial burdens imposed by the statute.

Roller's mistakes are fundamental. To begin with, the right of

access to federal courts is not a free-floating right, but rather is sub-

ject to Congress' Article III power to set limits on federal jurisdiction.

Indeed, Congress is neither "constitutionally required to create Article

III courts to hear and decide cases within the judicial power of the

United States," nor to vest those courts that are created "with all the

jurisdiction it was authorized to bestow under Article III." Palmore

v. United States, 411 U.S. 389, 400-01 (1973). Congress is no more

compelled to guarantee free access to federal courts than it is to pro-

vide unlimited access to them. The Supreme Court has never recog-

nized an "unlimited rule that an indigent at all times and in all cases

has the right to relief without the payment of fees." United States v.

Kras, 409 U.S. 434, 450 (1973). If we were to adopt Roller's argu-

ment, all filing fees would be unconstitutional, which, of course, they

are not. "The correct principle is that reasonable costs may be

imposed on persons who want to sue." Lumbert v. Illinois Dept. of

Corrections, 827 F.2d 257, 259 (7th Cir. 1987). 1

_________________________________________________________________

1 The Supreme Court has struck down filing fee requirements in certain

state court cases involving domestic disputes. However, these cases

address situations where a filing fee presents an insurmountable barrier

to the protection of certain fundamental rights. For example, in M.L.B.

v. S.L.J., 65 U.S.L.W. 4035 (U.S. Dec. 16, 1996), the Supreme Court

held that Mississippi could not condition an appeal from the termination

of parental rights on the payment of a $2,532.36 record preparation fee.

Similarly, in Boddie v. Connecticut, 401 U.S. 371 (1971), the Court held

that Connecticut could not deny a married couple access to divorce pro-

ceedings due to an inability to pay court fees. However, the Court has

made clear that in "the mine run of cases" which do not involve "state

controls or intrusions on family relationships" filing fees may be

required. See M.L.B., 65 U.S.L.W. at 4041.

7

Indeed, this Court has already upheld the practice of requiring pris-

oners to pay filing fees. In Evans v. Croom, 650 F.2d 521 (4th Cir.

1981), we approved a district court rule requiring partial filing fees

in prisoner IFP lawsuits. The rule that we approved bears many simi-

larities to the scheme adopted by the PLRA. The district court in

Evans had instructed the clerk to obtain a certified copy of each plain-

tiff prisoner's trust fund account for the six month period preceding

the lawsuit. The court further instructed the clerk to require payment

of a partial filing fee not to exceed 15% of the amount of money

received in the trust fund account during the previous six month

period. We upheld the district court's order, observing that prisoners

had no financial disincentives to litigate, hence"nothing to lose and

everything to gain" from suing. Id. at 523. We also noted that the dis-

trict court's order simply forced the prisoner to weigh whether the

"merit of the claim" was worth "the cost of pursuing it." Id. at 524

(citation omitted).

We recently reaffirmed Evans in Nasim v. Warden, Maryland

House of Correction, 64 F.3d 951 (4th Cir. 1995) (en banc), observ-

ing that some financial accountability could be built into the system

that would retain access to the courts "without overwhelming the effi-

cient administration of justice with meritless cases." Id. at 954 & n.3.

Nine other circuits have upheld the imposition of partial filing fees on

IFP plaintiffs. See In re Stump, 449 F.2d 1297, 1298 (1st Cir. 1971);

In re Epps, 888 F.2d 964, 967 (2d Cir. 1989); Bullock v. Suolmela,

710 F.2d 102, 103 (3d Cir. 1983); Smith v. Martinez, 706 F.2d 572,

574 (5th Cir. 1983); Clark v. Ocean Brand Tuna , 974 F.2d 48, 50 (6th

Cir. 1992); Bryan v. Johnson, 821 F.2d 455, 458 (7th Cir. 1987); In

re Williamson, 786 F.2d 1336, 1339-41 (8th Cir. 1986); Olivares v.

Marshall, 59 F.3d 109, 111 (9th Cir. 1995); Collier v. Tatum, 722

F.2d 653, 655 (11th Cir. 1983).

As meritless as his filing fee contention is Roller's claim that he

is denied access to the courts by the PLRA provision requiring pay-

_________________________________________________________________

Roller's case is not implicated by M.L.B. or Boddie. It clearly does not

involve "state controls or intrusions on family relationships." It also does

not present the sort of insurmountable barrier to filing suit considered in

those cases.

8

ment of costs assessed against a prisoner, 28 U.S.C.§ 1915(f)(2). In

Flint v. Haynes, 651 F.2d 970 (4th Cir. 1981), this circuit held that

"a district court is empowered to award costs even when it has previ-

ously granted a litigant the benefits" of IFP status. Id. at 972. We

went on to reject the argument that requiring payment of costs

infringed an IFP litigant's right of access to the courts:

[T]he appellants argue that in order to insure that indigent

civil rights litigants have access to the courts to redress their

grievances, costs should rarely be assessed in these circum-

stances. However, when costs are assessed only in extreme

or exceptional cases, those persons granted leave to proceed

in forma pauperis have virtually nothing to lose and every-

thing to gain, and the purpose of § 1915 -- equal access for

the poor and rich -- is distorted. Non-indigents who con-

template litigation are routinely forced to decide whether

their claim is worth it. We see no reason to treat indigents

differently in this respect.

Id. at 973 (citations omitted); see also Weaver v. Toombs, 948 F.2d

1004, 1008 (6th Cir. 1991); Harris v. Forsyth , 742 F.2d 1277, 1277-

78 (11th Cir. 1984).

In effect, the PLRA simply follows the course set by the federal

courts in cases like Evans v. Croom and Flint v. Haynes. The statute's

approach is hardly draconian. Section 1915 requires a modest initial

filing fee before a case may proceed, 28 U.S.C.§ 1915(b)(1), and

thereafter a prisoner is required to pay only "20 percent of the preced-

ing month's income credited to the prisoner's account" until the total

fee is paid, 28 U.S.C. § 1915(b)(2). To further ensure that prisoners

need not "totally deprive themselves of those small amenities of life

which they are permitted to acquire in a prison or mental hospital

beyond the food, clothing, and lodging already furnished by the

state," Evans, 650 F.2d at 524 (citation omitted), section 1915 allows

payment to be taken from the prisoner's account only where "the

amount in the account exceeds $10 . . . ." 28 U.S.C. § 1915(b)(2).

Furthermore, the PLRA provides that "[i]n no event shall a prisoner

be prohibited from bringing a civil action or appealing a civil or crim-

inal judgment for the reason that the prisoner has no assets and no

means by which to pay the initial partial filing fee." 28 U.S.C.

9

§ 1915(b)(4). These mild steps do not begin to impose an unconstitu-

tional burden on a prisoner's access to the courts.

Roller maintains that even though the PLRA amendments include

safeguards to ensure the truly indigent will have access to the courts,

the practical effect of the amendments will be that prisoners with

other expenses will be unable to afford lawsuits. This argument, how-

ever, misses the entire point of the statute. Requiring prisoners to

make economic decisions about filing lawsuits does not deny access

to the courts; it merely places the indigent prisoner in a position simi-

lar to that faced by those whose basic costs of living are not paid by

the state. Those living outside of prisons cannot file a lawsuit every

time they suffer a real or imagined slight. Instead, they must weigh

the importance of redress before resorting to the legal system. If a

prisoner determines that his funds are better spent on other items

rather than filing a civil rights suit, "he has demonstrated an implied

evaluation of that suit" that the courts should be entitled to honor.

Lumbert, 827 F.2d at 260.

C.

Roller contends finally that the PLRA amendments violate the

Constitution's guarantee of equal protection. Prisoners are not a sus-

pect class. See Pryor v. Brennan, 914 F.2d 921, 923 (7th Cir. 1990);

Moss v. Clark, 886 F.2d 686, 690 (4th Cir. 1989). Nor is indigency

a suspect classification. See Harris v. McRae , 448 U.S. 297, 323

(1980); Maher v. Roe, 432 U.S. 464, 471 (1977). Moreover, as we

have explained above, the PLRA amendments do not burden any fun-

damental rights. We therefore review the PLRA amendments under

a rational basis standard. "Unless a classification trammels fundamen-

tal personal rights or is drawn upon inherent suspect distinctions such

as race, religion, or alienage, our decisions presume the constitution-

ality of the statutory discrimination and require only that the classifi-

cation challenged be rationally related to a legitimate state interest."

City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976).

The PLRA amendments easily satisfy the rational basis standard.

Congress has acted in an area in which it has important responsibili-

ties. As the Supreme Court recognized in Hanna v. Plumer, 380 U.S.

460 (1965), "the constitutional provision for a federal court system

10

(augmented by the Necessary and Proper Clause) carries with it con-

gressional power to make rules governing the practice and pleadings

in those courts . . . ." Id. at 472. Moreover, the goal of the Act --

curbing frivolous IFP litigation -- is clearly proper. We have earlier

discussed the legitimacy of this interest, and we shall not repeat that

discussion here.

Roller, however, maintains that the means Congress used to further

its clearly legitimate goal are irrational, contending that Congress

impermissibly singled out the prison population for the filing fee

requirement.2 We disagree. There are a host of rational grounds for

imposing the filing fee requirement on prisoners."The Constitution

does not require things which are different in fact . . . to be treated

in law as though they were the same." Tigner v. Texas, 310 U.S. 141,

147 (1940). Prisoners are not similarly situated to non-prisoners. They

have their basic material needs provided at state expense. They are

further provided with free paper, postage, and legal assistance. They

often have free time on their hands that other litigants do not possess.

See Lumbert, 827 F.2d at 259. As a result, the federal courts have

observed that prisoner litigation has assumed something of the nature

of a "recreational activity." See, e.g., Gabel v. Lynaugh, 835 F.2d 124,

125 n.1 (5th Cir. 1988). Whether recreational or not, there has been

_________________________________________________________________

2 Roller, relying primarily on Rinaldi v. Yeager, 384 U.S. 305 (1966),

contends that the PLRA amendments do not satisfy the requirements of

rationality. Roller's reliance on Rinaldi, however, is misplaced. In

Rinaldi, the Supreme Court found a New Jersey statute violated equal

protection because it required a single class of unsuccessful criminal

appellants -- imprisoned indigents -- to reimburse the state for the costs

of trial transcripts. Indigent appellants who had been convicted of a

crime and had been unsuccessful on appeal, but who had received pun-

ishments other than imprisonment, were not subject to this requirement.

The Supreme Court found there was simply no basis for this distinction.

As the Supreme Court subsequently characterized its decision, "the New

Jersey distinction . . . was invidious and without rationality for it was not

related to the fiscal objectives of the statute and rested on no administra-

tive convenience." Schlib v. Kueble, 404 U.S. 357, 369 (1971).

Rinaldi simply is not applicable here. Congress has not singled out a

single class of appellants to pay a "penalty" if unsuccessful. Instead,

Congress has uniformly imposed a requirement on those prisoners wish-

ing to take advantage of the privilege of IFP status.

11

a far greater opportunity for abuse of the federal judicial system in the

prison setting. See 141 Cong. Rec. S7256 (May 25, 1995) (statement

of Sen. Kyl) (noting that over one-fourth of civil cases filed in federal

district courts were filed by prisoners, and that the vast majority of

these cases ended in no relief for the prisoner). Congress could ratio-

nally have concluded that this abuse of the federal judicial system by

inmates was likely to continue absent significant changes in the IFP

statute.

There are other reasons why Congress may have viewed the prison

setting as uniquely appropriate for a filing fee requirement. Many fed-

eral courts had adopted varied plans for prisoner filings similar to the

PLRA amendments. Congress may have wanted to establish uniform

national standards for the handling of such cases in the federal courts.

Congress may also have wanted to establish a means of ensuring that

those who claim IFP status truly are indigent. The PLRA amendments

establish a uniform method for making such determinations among

prisoners. Furthermore, because prisoners are under the control of the

state, it is administratively easier for the courts to check the finances

of inmates than other IFP plaintiffs. Congress may have limited the

filing fee requirements to prisoners because of this administrative

convenience. After all, a legislature "may take one step at a time,

addressing itself to the phase of the problem which seems most acute

to the legislative mind." Bowen v. Owens, 476 U.S. 340, 347 (1986)

(quoting Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955)).

In sum, the equal protection question is not a close one. The legis-

lative solution is entirely rational, does not violate any fundamental

rights, and does not single out a suspect class for disparate treatment.

We therefore hold the PLRA amendments to 28 U.S.C.§ 1915 to be

constitutional.

III.

Roller contends that the district court erred when it held the appli-

cation of section 24-21-645 constitutional. He maintains that the

Supreme Court's decision in California Dept. of Corrections v.

Morales, 115 S. Ct. 1597 (1995), did not call into question the valid-

12

ity of this court's ruling in Roller v. Cavanaugh, 984 F.2d 120 (4th

Cir. 1993).3

We disagree. The Cavanaugh decision reasoned that any retroac-

tive reduction in the frequency of parole consideration would violate

the Ex Post Facto Clause because such a change would necessarily

eliminate an opportunity for early release. This is precisely the argu-

ment the Supreme Court rejected in Morales. 116 S. Ct. at 1602-03;

see also Jones v. Georgia State Board of Pardons and Paroles, 59

F.3d 1145, 1149 n.8 (11th Cir. 1995) (noting that Morales called into

question the validity of Akins v. Snow, 922 F.2d 1558 (11th Cir.

1991), a case which rested on the same reasoning as Cavanaugh).

Indeed, as ours and other circuits have already recognized, Morales

holds that the Ex Post Facto Clause does not foreclose every change

in state parole procedures that poses a speculative risk of increasing

a prisoner's punishment. See Artway v. New Jersey, 81 F.3d 1235,

1260-61 (3d Cir. 1996); Hamm v. Latessa, 72 F.3d 947, 959 (1st Cir.

1995); United States v. Reese, 71 F.3d 582, 591 (6th Cir. 1995);

Allison v. Kyle, 66 F.3d 71, 74-75 (5th Cir. 1995); Hill v. Jackson, 64

F.3d 163, 168 (4th Cir. 1995); Jones, 59 F.3d at 1149-50.

In Morales, the Supreme Court considered the retroactive applica-

tion of a California statute which changed the frequency of parole

consideration for multiple murderers from every year to every three

_________________________________________________________________

3 Prior to this circuit's decision in Roller v. Cavanaugh, the South Car-

olina Supreme Court had held that section 24-21-645 did not violate the

Ex Post Facto Clauses of either the United States or South Carolina Con-

stitutions. Gunter v. South Carolina, 378 S.E.2d 443, 444 (S.C. 1989).

However, in Griffin v. South Carolina, 433 S.E.2d 862, 863-64 (S.C.

1993), the South Carolina Supreme Court, relying on Roller v.

Cavanaugh, reversed Gunter. Given that the Griffin decision was wholly

predicated on federal precedent, there is no independent state law ground

that would moot our consideration of this issue. As the Supreme Court

stated in Michigan v. Long, 463 U.S. 1032, 1040-41 (1983), "when, as

in this case, a state court decision fairly appears to rest primarily on fed-

eral law, or to be interwoven with the federal law, and when the ade-

quacy and independence of any possible state law ground is not clear

from the face of the opinion, we will accept as the most reasonable

explanation that the state court decided the case the way it did because

it believed that federal law required it to do so."

13

years. Finding that the California law involved"only the most specu-

lative and attenuated possibility of producing the prohibited effect of

increasing the measure of punishment for covered crimes," 115 S. Ct.

at 1603, the Court held that California's change in parole procedures

did not violate the Ex Post Facto Clause. While the Court declined

to express a view "as to the constitutionality of any of a number of

other statutes that might alter the timing of parole hearings," id. at

1603 n.5, it did clarify the principles we must use to analyze the con-

stitutionality of changes in parole procedures.

Morales instructs that a law which changes the frequency of parole

hearings will implicate the Ex Post Facto Clause only when "it pro-

duces a sufficient risk of increasing the measure of punishment

attached to the covered crimes." Id. at 1603. The sufficient risk

inquiry "cannot be embraced within a formula or stated in a general

proposition," but rather is a matter of "degree." Id. However, where

the legislative adjustment creates only a "speculative and attenuated"

risk of increasing punishment it will withstand constitutional attack.

Id.; Dobbert v. Florida, 432 U.S. 282, 294 (1977).

The South Carolina law we examine today bears a strong resem-

blance to the California statute sustained in Morales. Neither the Cali-

fornia law nor the South Carolina statute increase in any way the

actual sentence of imprisonment. Like the California measure, the

South Carolina law applies only to prisoners convicted of violent

crimes -- prisoners which the South Carolina legislature determined

were unlikely to receive release on parole. See Morales, 115 S.Ct. at

1603. As with California's law, section 24-21-645"has no effect on

the date of any prisoner's initial parole suitability hearing; it affects

the timing only of subsequent hearings." Id. at 1604 (emphasis in

original). Like the California provision, the South Carolina law has

not changed the substantive standards for qualifying for parole; parole

determinations remain within the total discretion of the parole board.

See id. at 1602. However, unlike the California statute, which

changed the frequency of parole hearings from once a year to once

every three years, section 24-21-645 has only changed the frequency

of parole hearings to every two years.

Despite these similarities and the fact that the South Carolina stat-

ute calls for a greater frequency of parole hearings than the statute

14

upheld in Morales, Roller contends that Morales should be limited to

its facts. He argues that since section 24-21-645 does not include

every provision included in the California statute, the retroactive

application of the South Carolina law constitutes a violation of the Ex

Post Facto Clause. For example, the California statute requires the

parole board to make a factual finding that "it is not reasonable to

expect that parole would be granted at a hearing during the following

years," before it may defer future parole hearings. Morales, 115 S. Ct.

at 1604 (citation omitted). Roller maintains that since no individual-

ized findings are required under the South Carolina law, the possibil-

ity that he might experience a change of circumstances that would

increase his chances of parole during the year his hearing was

deferred are significantly greater than under the statute sustained in

Morales. He thus contends that section 24-21-645 has increased sig-

nificantly his punishment by foreclosing for a year an opportunity for

release.

Roller's claim, however, boils down to mere speculation about his

release. Such conjecture is insufficient under Morales to establish a

violation of the Ex Post Facto Clause. In South Carolina, the determi-

nation of parole is subject to the broad discretion of the parole board.

S.C. Code Ann. § 24-21-645. Forecasts on how the board might

decide to exercise its discretion in any given case are merely in the

nature of conjecture. Roller simply fails "to provide support for his

speculation that . . . prisoners subject to [24-21-645] might experience

an unanticipated change that is sufficiently monumental to alter their

suitability for release on parole." Morales , 115 S. Ct. at 1604. Fur-

thermore, as the district court noted, there is nothing on the face of

section 24-21-645 that limits the parole board's authority to schedule

expedited hearings if presented with suitable circumstances. Roller v.

Gunn, 932 F. Supp. 729, 730 (D.S.C. 1996). In Morales, this same

consideration led the Supreme Court to conclude that even if a prison-

er's circumstances drastically changed during the period that his

parole hearing had been delayed, "there is no reason to conclude that

the amendment will have any effect on any prisoner's actual term of

confinement." 115 S. Ct. at 1604.

Roller also contends that section 24-21-645 effects an impermissi-

ble change in the standards for parole because it requires a two-thirds

vote of the parole board rather than the simple majority required by

15

the predecessor statute. This argument is foreclosed by Dobbert v.

Florida, 432 U.S. 282 (1977). In Dobbert, the trial judge overruled

the jury's recommendation of life imprisonment and imposed a sen-

tence of death. The criminal defendant claimed that the statute which

allowed a trial judge to determine finally, after a jury recommenda-

tion, whether the death sentence was appropriate violated the Ex Post

Facto Clause because under the old statute the final death penalty

determination would have been made by a majority of the jury. The

Supreme Court rejected this claim because it was based on conjecture,

stating, "[I]t certainly cannot be said with assurance that, had his trial

been conducted under the old statute, the jury would have returned a

verdict of life." Id. at 294.

Like the claim of the petitioner in Dobbert, Roller's claim is specu-

lative. There is no way of knowing whether a particular board mem-

ber's vote would be the same under the new two-thirds majority rule

as it would have been under the old rule. As the Supreme Court noted

in Dobbert, "[The jurors] may have chosen leniency when they knew

that that decision rested ultimately on the shoulders of the trial judge,

but might not have followed the same course if their vote were final."

Id. at 294 n.7. Similarly, parole board members might be more likely

to vote for granting parole under the two-thirds rule, knowing that any

favorable decision must be concurred in by a greater number of their

colleagues.

Morales likewise compels us to uphold the retrospective applica-

tion of the two-thirds vote requirement. The Court specifically cau-

tioned the judiciary against the "micromanagement of an endless

array of legislative adjustments to parole and sentencing procedures."

116 S. Ct. at 1603. If we were to invalidate the two-thirds majority

requirement, we would be ignoring the Court's admonition and open-

ing the door to a host of challenges to state parole practices. For

example, a state that allowed parole on a simple majority vote would

violate the Ex Post Facto Clause if the parole board's membership

changed from three to four members because a prisoner would have

to convince three-fourths of the board rather than two-thirds in order

to gain parole. If Morales stands for anything, it stands for the propo-

sition that this sort of judicial fine-tuning is not appropriate. See

Cavallaro v. Groose, 908 S.W.2d 133, 136 (Mo. 1995) (holding that

a change from a three member board to a five member board did not

16

violate the Ex Post Facto Clause). The two-thirds majority require-

ment is simply a procedural change in South Carolina's parole sys-

tem, and "[e]ven though it may work to the disadvantage of a

defendant, a procedural change is not ex post facto." Dobbert, 432

U.S. at 293.

In the end, if we adopt Roller's arguments, we would be required

to strike down every retrospective application of parole procedures

which do not conform exactly to the California statute considered in

Morales. We have already rejected this proposition. In Hill v.

Jackson, 64 F.3d 163 (4th Cir. 1995), this court upheld a change in

Virginia's parole law which applied to a group of prisoners broader

than the class of prisoners affected by the California law upheld in

Morales. Instead of being limited to multiple murderers, the Virginia

parole policy deferred parole hearings for up to three years for those

prisoners serving life sentences or serving sentences of 70 years or

more for a violent offense. Yet we upheld the Virginia procedure, not-

ing among other things that, "[a]s in Morales, the Parole Board's pol-

icy has no effect on the substantive standards for scheduling an

inmate's initial parole eligibility date, nor does it change the criteria

for determining either an inmate's suitability for parole or his or her

release date." Id. at 169. These same features characterize the South

Carolina law as well.

Our federal system does not require that every state model its

parole procedures after those of California or indeed of any other

state. "It is difficult to imagine an activity in which a State has a

stronger interest, or one that is more intricately bound up with state

laws, regulations, and procedures, than the administration of its pris-

ons." Preiser v. Rodriguez, 411 U.S. 475, 491-92 (1973). Our federal-

ism allows states to try different solutions to the problems of

confinement and release, and to adopt diverse approaches to parole

procedures for those within state custody. The rejoinder that states

can experiment with parole procedures, but only prospectively, is no

rejoinder at all -- that position would require that states process

inmates by at least two different sets of rules in every institution.

The South Carolina statute represents a limited change in parole

procedures designed to relieve the state "from the costly and time

consuming responsibility of scheduling parole hearings" for prisoners

17

who have a low probability of being released. Morales, 115 S. Ct. at

1602 (citation omitted). The lesson of Morales is that the state may

adopt such a change unless a prisoner can "show`with assurance' . . .

that he would have received parole under the old system." Johnson v.

Gomez, 92 F.3d 964, 968 (9th Cir. 1996) (citations omitted). At best,

Roller can contend that he will miss an "opportunity to take advantage

of provisions for early release," and under Morales that is simply

insufficient to establish an ex post facto violation. 115 S. Ct. at 1602

n.3 (emphasis in original).

IV.

We hold that the Prison Litigation Reform Act's filing fee and pay-

ment of costs requirements are constitutional. We affirm the district

court's judgment that the application of section 24-21-645 to plaintiff

does not constitute a violation of the Ex Post Facto Clause.

AFFIRMED

HALL, Circuit Judge, concurring in part and dissenting in part:

I agree that the PLRA withstands the constitutional attacks levelled

upon it by Roller, and I therefore concur in Part II of Chief Judge

Wilkinson's opinion. I do not believe, however, that Morales dictates

the result reached by the majority in Part III of its opinion, and, there-

fore, I dissent from the affirmance of the district court's judgment that

South Carolina's amendment to its parole statutes is constitutional.

A

In concluding that the California statute did not violate the Ex Post

Facto clause because it "create[d] only the most speculative and atten-

uated possibility of producing the prohibited effect of increasing the

measure of punishment for covered crimes," the Supreme Court in

Morales emphasized two features of the statute: (1) the amended pro-

cedure "applies only to a class of prisoners for whom the likelihood

of release on parole is quite remote," and (2) the Parole Board's

authority was carefully tailored to achieve the amendment's purpose

of eliminating hearings "for prisoners who have no chance of being

18

released." Morales, 115 S.Ct. at 1603-04. Unlike the situation pres-

ented in Hill v. Jackson, 64 F.3d 163 (4th Cir. 1995), where we

applied the Morales analysis to uphold a Virginia statute that changed

the frequency of parole-eligibility hearings, the South Carolina

amendments do not "bear[ ] a strong resemblance to the California

statute sustained in Morales," ante at 14. Comparison of the three

statutes (California, Virginia,1 and South Carolina) manifests that the

degree of change effected by the South Carolina law is one that is of

"sufficient moment to transgress the constitutional prohibition."

Morales, 115 S. Ct. at 1603 (quoting Beazell v. Ohio, 269 U.S. 167,

171 (1925)).

B

The statute in Morales applies only to prisoners who had been

"convicted of more than one offense involving the taking of a life."

The Virginia policy considered in Hill applies "only to a narrow class

of inmates," estimated by the Parole Board to comprise some 3% of

the prison population, who are serving (1) a life sentence, or (2) a sen-

tence or sentences totalling at least 70 years for at least one violent

offense and for which there are at least 10 years left to be served

before mandatory release. Hill, 64 F.3d at 169. Clearly, then, these

two statutes affect only the worst of the worst.

The South Carolina statute, on the other hand, applies to all

inmates convicted of a "violent crime," as that term is defined in S.C.

Code Ann. § 16-1-60 (Law. Co-op. Supp. 1995)."Violent crime"

includes far more offenses than those covered by the deferral rules in

California and Virginia. For instance, § 16-1-60 includes crimes for

which only a 1-10 year sentence is prescribed. See, e.g., S.C. Code

§ 44-53-370(e)(1)(a) (Law. Co-op. Supp. 1995) (sale, cultivation,

possession, etc., of 10-100 pounds of marijuana). We are simply left

to guess about how many South Carolina inmates are affected by this

provision because the district court made no findings in this regard,

and the State makes no effort on this appeal to point out any legisla-

tive findings or other authority that would suggest that the amendment

_________________________________________________________________

1 Although Hill dealt with a Parole Board policy that was appreciably

narrower in scope than the statute permitted, I will use the term "statute"

in referring to the law involved in that case.

19

in question "applies only to a class of prisoners for whom the likeli-

hood of release on parole is quite remote." Morales, 115 S. Ct. at

1603. A comparison of the facial differences among the three groups

affected -- multiple murderers in California, those with at least a 70-

year sentence in Virginia, and certain drug traffickers, burglars, sex

offenders and others in South Carolina serving as little as 1-10 years

-- demonstrates that the South Carolina law casts a much wider net.

Contrary to the majority's assertion, then, the South Carolina statute

does not, at least with respect to the class of persons affected, "bear[ ]

a strong resemblance to the California statute sustained in Morales."

Ante at 14.

C

I turn, then, to the second feature of the California statute noted in

Morales, the "careful[ ] tailor[ing]" of the Board's authority to relieve

it of the "costly and time-consuming responsibility of scheduling

parole hearings for prisoners who have no chance of being released."

115 S. Ct. at 1604 (quoting In re Jackson, 39 Cal.3d 464, 473, 216

Cal. Rptr. 760, 764, 703 P.2d 100, 105 (1985)). In all three statutes,

the date of the initial parole hearing is unaffected and the substantive

standards for eligibility remain the same. But a detailed comparison

of the procedures regarding deferrals in California and Virginia on the

one hand, and South Carolina on the other, illustrates starkly critical

differences.

First, the "default requirement" in Virginia and California is annual

review. In California, the Board must conclude that"it is not reason-

able to expect that parole would be granted at a hearing during the

following years," and it must state the bases for such finding.

Morales, 115 S. Ct. at 1604. Similarly, deferrals in Virginia "are not

automatic." Hill, 64 F.3d at 169. In other words, every inmate in these

states will receive annual hearings unless the Parole Board affirma-

tively decides that deferral is warranted on the basis of the evidence

considered at the last hearing. In South Carolina, however, the default

requirement for the affected class of inmates is two years, and there

is no provision requiring a finding that deferral is warranted.

Second, deferral decisions in Virginia are subject to appeal at any

time during the deferral period. The Supreme Court noted that while

20

the California law was unclear, "the reliability of the Board's [defer-

ral] determination may also be enhanced by the possibility of an

administrative appeal." Morales, 115 S. Ct. at 1604. Although the

majority finds no express statutory restriction on the South Carolina

Board's authority to schedule expedited hearings, ante at 15, there is

neither evidence in the record nor assertion by the State that such

authority exists. In any event, there is clearly no provision for an

appeal from the Board's refusal to schedule an expedited hearing. In

other words, while the Board might be able to get around the two-year

rule, an inmate cannot challenge a decision not to expedite a hearing.

Third, the Supreme Court noted in Morales that the possibility of

immediate release after a finding of suitability for parole is largely

"theoretica[l]" and that "in many cases, the prisoner's parole release

date comes at least several years after a finding of suitability." Id. at

1605; see also In re Jackson, 39 Cal. Rptr. at 474 (noting that several

inmate petitions received by that court involved periods between the

date of the suitability finding and the proposed release date that varied

from three and a half years to nineteen years). 2 There is no reason to

believe that anything approaching this situation obtains in South Car-

olina. See S.C. Code Ann. § 24-21-645 (providing for a 90-day "pro-

visional parole" period prior to release).

D

The amendment to the South Carolina parole statute made another

change that has no counterpart in the statutes under consideration in

Morales and Hill. When Roller was sentenced in 1983, the parole

statute in effect provided for parole upon authorization by a majority

of the Board. 1981 S.C. Acts No. 100 § 13. Three years after he was

sentenced, the provision was amended to require that at least two-

thirds of the Board's members were needed to authorize the parole of

persons convicted of a "violent crime," 1986 S.C. Acts No. 462 § 31,

_________________________________________________________________

2 The hearings at issue in Morales involved the suitability for parole.

The actual release date, however, is determined by a matrix of facts relat-

ing to the crime and victim. According to the State of California, even

had Morales been found suitable for parole at the initial hearing, he could

not have been released until approximately 2001. See Petitioner's brief,

U.S.S.Ct., 1994 WL 596809 *22 n.8.

21

and that two-thirds requirement remains in effect today, codified in

§ 24-21-645. The practical effect of this is that the inmate must now

garner the votes of five Parole Board members rather than a simple

majority of four. The majority considers this change apart from the

other retrospective changes in the statute and declares that any ex post

facto challenge is foreclosed by Dobbert v. Florida, 432 U.S. 282

(1977). I disagree.

As a preliminary matter, I believe that the two-thirds requirement

must be considered together with the other changes to the parole stat-

ute. See id., 432 U.S. at 294 ("We must compare the two statutory

procedures in toto to determine if the new may be fairly characterized

as more onerous."). If, as I argue below, the new two-thirds require-

ment makes parole tougher to attain, then this factor must be exam-

ined in conjunction with the amendment's decrease in the frequency

of the hearings to determine whether the overall changes to the statute

violate the Ex Post Facto Clause.

The majority's view that the two-thirds requirement might actually

inure to the inmate's advantage flows from neither Dobbert nor com-

mon sense. See ante at 16 ("[P]arole board members might be more

likely to vote for granting parole under the two-thirds rule, knowing

that any favorable decision must be concurred in by a greater number

of their colleagues."). The footnote in Dobbert to which the majority

refers, ante at 16 (citing id. at 294 n.7), was merely the Supreme

Court's response to the petitioner's argument that the discrete portion

of the amendment under consideration -- permitting trial judge

review of a jury recommendation of life imprisonment in a capital

case -- was more onerous than the prior statute that left the sentenc-

ing decision (death or life imprisonment) up to the jury. The Court

went on to find that the overall changes, of which trial judge review

was only part, "afford[ ] significantly more safeguards to the defen-

dant than did the old [statute]," id. at 295, so much so that the Court

characterized the overall changes as "ameliorative." Id. at 294. No one

would argue that inmates affected by the South Carolina amendments

are now in a better position than they were before the statutory

changes.

The majority also notes that Morales compels upholding the two-

thirds requirement because to do otherwise would amount to the judi-

22

cial "micromanagement" that the Court cautioned against. Ante at 16.

Morales does no such thing. The California statute involved an

exceedingly speculative possibility that the punishment of the affected

inmates would be increased: The statute applies only to multiple mur-

derers, presumably a small fraction of the inmate population; the

Board has to affirmatively decide that a hearing should be deferred

and to explain why; the inmate might be able to appeal the deferral

decision, and the Board could, of its own volition, advance a hearing

date where a change in circumstances warranted; and, significantly,

under California's system, the determination of parole suitability

often precedes the actual release date by several years. South Caroli-

na's amendments, on the other hand, affect persons convicted of rela-

tively minor crimes; mandate automatic deferrals, with no provision

for an administrative appeal; increase the percentage of the Board that

must vote to grant parole. In addition, there is no indication that a

grant of parole is not ordinarily followed promptly by actual release.

If Morales is our guide, the South Carolina statute increases the pun-

ishment by decreasing the likelihood of release on parole to a degree

that offends the Ex Post Facto Clause.

23