Petition for Writ of Certiorari — Demmerick Eric Brown, Petitioner v. Karen D. Brown, et al.

Supreme Court briefSep 29, 2022

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IN THE

SUPREME COURT OF THE UNITED STATES

______________________

DEMMERICK ERIC BROWN,

Petitioner,

KAREN D. BROWN, HAROLD CLARKE, WENDY BROWN,

Respondents.

______________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

______________________

PETITION FOR WRIT OF CERTIORARI

______________________

John J. Korzen

Counsel of Record

Wake Forest University School of Law

Appellate Advocacy Clinic

P.O. Box 7206

Winston-Salem, NC 27109-7206

(336) 758-5832

QUESTION PRESENTED

Petitioner committed several offenses in the 1980s. He received lengthy

consecutive sentences, began serving them, and earned credit for good behavior. In

1994, the state legislature amended the applicable statute to allow the parole board

to revoke the good time credit of mandatory parolees who violated parole. In 1995,

the parole board adopted a policy requiring such revocation. Petitioner received

mandatory parole in 2013 and later violated parole. Under the 1995 policy, more

than twenty-three years of good time credit he earned while serving the sentences

imposed in the 1980s was retroactively revoked and added to his sentence.

The question presented is whether retroactive application of a parole board

policy to revoke the good time credits of a parolee violates the Ex Post Facto Clause.

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

iii

LIST OF ALL PROCEEDINGS

1. Denrick Eric Brown, No. 1131268, a/k/a Demmerick Eric Brown v. Ken

Stolle, No. 151904, Supreme Court of Virginia. Judgment entered February

23, 2016.

2. Denrick Eric Brown, a/k/a Demmerick Eric Brown, No. 1131268 v. Ken

Stolle, No. 151904, Supreme Court of Virginia. Judgment entered May 17,

2016.

3. Denrick Eric Brown, a/k/a Demmerick Eric Brown. No. 1131268 v. Ken

Stolle, No. 151904, Supreme Court of Virginia. Judgment entered October 6,

2016.

4. Demmerick Eric Brown, (a/k/a Denrick Brown) v. Karen Brown et al., No.

1:17cv52 (CMH/JFA), District Court for Eastern District of Virginia,

Alexandria Division. Judgment entered January 24, 2019.

5. Demmerick Eric Brown (a/k/a Denrick Brown) v. Karen Brown et al., No.

1:17cv52 (CMH/JFA), District Court for Eastern District of Virginia,

Alexandria Division. Judgment entered March 18, 2020.

6. Demmerick Eric Brown, a/k/a Demmerick Brown v. Karen D. Brown et al.,

No. 20-6448, United States Court of Appeals for the Fourth Circuit.

Judgment entered April 20, 2022

7. Demmerick Eric Brown a/k/a Demmerick Brown v. Karen D. Brown et al.,

No. 20-6448, United States Court of Appeals for the Fourth Circuit.

Judgment entered May 17, 2022.

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

LIST OF PARTIES ........................................................................................................ ii

LIST OF ALL PROCEEDINGS ................................................................................... iii

TABLE OF AUTHORITIES ........................................................................................ vii

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 1

CONSTITUTIONAL PROVISION INVOLVED ........................................................... 1

STATEMENT OF THE CASE....................................................................................... 2

Applicable law in the 1980s ............................................................................... 2

Changes to Virginia parole law in 1994-95....................................................... 3

Petitioner’s mandatory parole and loss of good time credit ............................. 4

Procedural history ............................................................................................. 5

REASONS FOR GRANTING THE PETITION ............................................................ 7

I. The Fourth Circuit’s Ex Post Facto Analysis Conflicts With This

Court’s Decisions. .................................................................................................... 7

A. Parole board policies are subject to ex post facto limitations ........................... 8

B. The VPB policy created a significant risk of increased punishment ............. 10

1. Before the 1994 statutory amendment and the 1995 VPB policy

Change, the VPB did not have authority to revoke good time

Credit upon violation of mandatory parole. ............................................. 10

2. Even if the VPB had authority to revoke good time credit before

its 1995 policy change, this Court’s decisions require the risk of

increased punishment arising from the policy to be considered ............. 12

II. The Fourth Circuit’s Ex Post Facto Analysis Conflicts With The

Third, Sixth, Seventh, Ninth, And D.C. Circuits. ................................................. 16

III. The Application Of Ex Post Facto Limitations To Parole Board Policies

Is Important ........................................................................................................... 19

A. Like legislatures, parole boards have the power to increase the

measure of punishment attached to crimes. ................................................. 20

B. Punitive and retroactive parole board policy changes are inconsistent

with the purpose of the Ex Post Facto Clause, affect multitudes, and

occur too often. ................................................................................................ 22

CONCLUSION............................................................................................................. 25

APPENDIX A: Opinion of the Fourth Circuit ........................................................... 1a

APPENDIX B: Memorandum Opinion of the Eastern District of Virginia ............ 18a

APPENDIX C: Order of the Supreme Court of Virginia ........................................ 36a

APPENDIX D: Order of the Fourth Circuit............................................................. 37a

vii

TABLE OF AUTHORITIES

Cases

Page(s)

Barna v. Travis,

239 F.3d 169 (2d Cir. 2001) .................................................................................... 18

Burnette v. Fahey,

687 F.3d 171 (4th Cir. 2012) ........................................................................ 9, 17, 18

Cal. Dep’t of Corrs. v. Morales,

514 U.S. 499 (1995) ...................................................................... 7, 8, 10, 13, 23, 24

Calder v. Bull,

3 U.S. (3 Dall.) 386 (1798) ........................................................................................ 7

Collins v. Youngblood,

497 U.S. 37 (1990) .................................................................................................... 7

Cummings v. Missouri,

71 U.S. 277 (4 Wall.) (1867) ................................................................................... 10

Fletcher v. Reilly,

433 F.3d 867 (D.C. Cir. 2006) .......................................................................... 16, 17

Garner v. Jones,

529 U.S. 244 (2000) ........................................................................................ 7, 8, 10

Glascoe v. Bezy,

421 F.3d 543 (7th Cir. 2005) ............................................................................ 16, 17

Greenfield v. Scafati,

277 F. Supp. 644 (D. Mass. 1967),

summarily aff’d, 390 U.S. 713 (1968) ............................................................... 14-15

Himes v. Thompson,

336 F.3d 848 (9th Cir. 2003) .................................................................................. 16

Holmes v. Christie,

14 F.4th 250 (3d Cir. 2021) .................................................................................... 16

Johnson v. United States,

529 U.S. 694 (2002) ................................................................................................ 11

viii

Lindsey v. Washington,

301 U.S. 397 (1937) ................................................................................................ 14

Lynce v. Mathis,

519 U.S. 433 (1997) ............................................................................................ 8, 12

Michael v. Ghee,

498 F.3d 372 (6th Cir. 2007) ............................................................................ 16, 17

Mickens-Thomas v. Vaughn,

321 F.3d 374 (3d Cir. 2003) .................................................................................... 19

Miller v. Florida,

482 U.S. 423 (1987) ................................................................................................ 14

Peugh v. United States,

569 U.S. 530 (2013) .................................................................................. 7, 8, 12, 23

Robles v. Dennison,

745 F. Supp. 2d 244 (W.D.N.Y. 2010) .................................................................... 18

Ross’ Case,

19 Mass. 165 (1966) ................................................................................................ 23

Warren v. Baskerville,

233 F.3d 204 (4th Cir. 2000) ...................................................... 6, 10, 11, 14, 18, 19

Weaver v. Graham,

450 U.S. 24 (1981) .......................................................................................... 8, 9, 12

Woodley v. Dep’t of Corr.,

74 F. Supp. 2d 623 (E.D. Va. 1999) ................................................................. 3-4, 13

Statutes

Page

VA. CODE ANN. § 53.1-159 .......................................................................... 3, 5, 10-11, 12

VA. CODE ANN. § 53.1-165 .............................................................................................. 3

Other Authorities

Page

Amy Robinson-Oost, Evaluation as the Proper Function of the Parole Board:

An Analysis of New York State’s Proposed Safe Parole Act,

16 CUNY L. Rev. 129 (2012) .................................................................................. 19

Beth Schwarzapfel, Parole Boards: Problems and Promise,

28 Fed. Sent’g Rep. 79 (2015)................................................................................. 20

Brian J. Ostrom et al., Truth-in-Sentencing in Virginia,

Nat’l Inst. of Just., Doc. No.187677 (1999) ............................................................ 15

Confined and Costly: How Supervisions Violations are Filling Prisons and

Burdening Budgets, Council of State Governments Justice Center (June 18,

(2019), https://csgjusticecenter.org/publications/confined-costly.......................... 21

Danielle Kaeble, Probation and Parole in the United States, 2020,

Bureau of Justice Statistics (Dec. 2021),

https://bjs.ojp.gov/content/pub/pdf/ppus20.pdf ...................................................... 20

Governor’s Commission on Parole Abolition and Sentencing Reform,

Final Report (1994)................................................................................................. 24

Kelli Stevens-Martin et al., Technical Revocations of Probation in One

Jurisdiction: Uncovering the Hidden Realities, 17 Fed. Prob. 17 (2014) ............. 21

Kevin R. Reitz & Edward E. Rhine, Parole Release and Supervision:

Critical Drivers of American Prison Policy,

3 Ann. Rev. Criminology 281 (2020) ...................................................................... 20

Michael A. Fletcher, Virginia Attacks Crime by Abolishing Parole,

Lengthening Prison Sentences, The Baltimore Sun (Oct. 2, 1994),

https://www.baltimoresun.com/news/bs-xpm-1994-10-02-1994275041story.html............................................................................................................ 4 n.2

Michael Ostermann, How Do Former Inmates Perform in the Community?

A Survival Analysis of Rearrests, Reconvictions, and Technical Parole

Violations, 61 Crime & Delinq. 163 (2015)............................................................ 21

Paul D. Reingold & Kimberly Thomas, Wrong Turn on the Ex Post Facto

Clause, 106 Cal. L. Rev. 593 (2018) ................................................................. 19, 23

Peter van Agymael, Incarceration’s Impact on Kids and Families,

The Human Toll of Jail (2016), http://humantollofjail.ver.org/the-family-

jailcycle/#:~:text=Studies%20show%20that%the%20growth,care%2C%20

separated%20from%their%20family ..................................................................... 24

Ryken Grattet & Jeffrey Lin, Supervision Intensity and Parole Outcomes:

A Competing Risks Approach to Criminal and Technical Parole Violations,

33 Just. Q. 565 (2016)............................................................................................. 21

The Federalist No. 44 .................................................................................................. 22

The Federalist No. 84 .................................................................................................. 22

Virginia Parole Board Policy Manual, Part II.J.4 (July 1997) .................................... 4

Wayne A. Logan, “Democratic Despotism” and Constitutional Constraint:

An Empirical Analysis of Ex Post Facto Claims in State Courts,

12 W&M Bill of Rts. J. 349 (2004) ......................................................................... 25

Wendy Sawyer and Peter Wagner, Mass Incarceration: The Whole Pie,

Prison Pol’y Initiative (Mar. 14, 2022),

https://www.prisonpolicy.org/reports/pie 2022.html ....................................... 20, 21

PETITION FOR A WRIT OF CERTIORARI

Demmerick Eric Brown respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for the Fourth Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the Fourth Circuit is

unreported and found at Pet. 1a-17a. The opinion of the United States District

Court for the Eastern District of Virginia is unreported and found at Pet. 18a-35a.

The order from the Supreme Court of Virginia is unreported and found at Pet. 36a.

JURISDICTION

The United States Court of Appeals for the Fourth Circuit denied Brown’s

Petition for Rehearing En Banc on May 17, 2022. Pet. 37a. Brown obtained an

extension of time to file this Petition for a Writ of Certiorari until September 29,

2022. This Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

Article I, Section 10, Clause 1 of the United States Constitution provides that

“No State shall . . . pass any . . .ex post facto Law.”

STATEMENT OF THE CASE

Petitioner Demmerick Brown earned more than twenty-three years of good

time credit while serving consecutive sentences for offenses he committed in the

1980s. In 1995, per a recently amended Virginia statute, the Virginia Parole Board

(“VPB”) adopted a new rule that good time credit would be revoked for individuals

who violated conditions of mandatory parole. Petitioner was released on mandatory

parole in October 2013. In August 2015, after he violated parole, the board revoked

all the many years of good time credit he had earned, relying on its 1995 policy.

Petitioner has sought relief under the Ex Post Facto Clause ever since.

Applicable law in the 1980s.

In the 1980s, while Petitioner was in his twenties, he committed a string of

larcenies and other offenses. JA 147-48.1 Petitioner was first sentenced to serve

seven years and six months in prison on grand larceny and burglary charges in

1981-82. Pet. 19a. In December 1983, Petitioner was released on discretionary

parole, but on January 23, 1984, Petitioner was arrested and subsequently

convicted of two more charges resulting in a new sentence of seventeen years. Id. In

March 1987, Petitioner was again released on discretionary parole; at that time, he

had four years and eight months left to serve on his sentences. Id. In July 1987,

Petitioner was arrested once more and charged in three separate county courts for a

string of offences that had occurred in July 1987. Id. Petitioner proceeded to spend

the next twenty-six years in a Virginia state prison. Pet. 3a.

While serving his sentences, Petitioner earned more than twenty-three years

of “good time” credit by participating in rehabilitation, therapeutic, and vocational

programs; performing certain work duties; and otherwise maintaining good

behavior. JA 95, 143, 150. When he was convicted and sentenced, a then-existing

VPB policy entitled a prisoner to complete each consecutive sentence one at a time

once they had served the term for that sentence less good time credit. Woodley v.

1 This Petition cites the Joint Appendix the parties filed below as “JA”.

Dep’t of Corr., 74 F. Supp. 2d 623, 629 (E.D. Va. 1999). After one consecutive

sentence was complete the prisoner would serve the next, “and so on” until he began

serving the last sentence imposed. Id. After a sentence was complete, “it was

treated as though the inmate had served it in its entirety when he was paroled.” Id.

Changes to Virginia parole law in 1994-95

The Virginia General Assembly enacted the state’s first parole system, which

was discretionary parole, in 1942. JA 101. Procedures for revocation of discretionary

parole were set out in a statute. See VA. CODE ANN. § 53.1-165.

The Virginia General Assembly later created “mandatory parole.” See id. §

53.1-159. Unlike discretionary parole, which depends on subjective evaluations and

predictions of future behavior, “mandatory parole” provides that every inmate “shall

be released on parole by the Virginia Parole Board six months prior to his date of

final release.” Id.

In 1994, in response to a “tough-on-crime” initiative, the Virginia General

Assembly amended the mandatory parole statute, § 53.1-159. The amended statute

provided that for persons released on mandatory parole whose parole was

subsequently revoked, “[f]inal discharge may be extended to require the prisoner to

serve the full portion of the term imposed by the sentencing court which was

unexpired when the prisoner was released on parole.” Id. “Final discharge” was

defined to mean “that a prisoner is released from confinement having satisfied the

full term imposed by the sentencing court without regard to good conduct credit.” Id.

(emphasis added).2

In 1995, pursuant to this statutory amendment, the VPB adopted a new

policy regarding mandatory parole revocation, providing:

The Virginia Parole Board shall upon revocation of parole pursuant to

53.1-159, require the prisoner to serve the full portion of the term

imposed by the sentencing court which was unexpired when the prisoner

was released on parole without regard to good conduct credit.

Virginia Parole Board Policy Manual, Part II.J.4 (July 1997). Thus, the purpose and

effect of the 1994 statutory amendment and the 1995 parole board policy change

was to prolong periods of incarceration for mandatory parole violators by requiring

parolees to serve time previously credited to them for good conduct.

Petitioner’s mandatory parole and loss of good time credit

Petitioner was considered for discretionary parole on his one eligible sentence

in October 2011, indicating he had served the six consecutive sentences for which he

was not eligible for discretionary parole. See JA 60-62, 87-88, 118, 149, 181, 441. He

was denied discretionary parole from that sentence in 2011 and in 2012. JA 289.

In October 2013, Petitioner was given mandatory parole under § 53.1-159 and

released from confinement. JA 64-65, 123-24, 130-31, 274. In January 2015,

2 The Virginia General Assembly also abolished discretionary parole, but only

prospectively for felonies committed in and after 1995. See Michael A. Fletcher,

Virginia Attacks Crime by Abolishing Parole, Lengthening Prison Sentences, The

Baltimore Sun (Oct. 2, 1994), https://www.baltimoresun.com/news/bs-xpm-1994-1002-1994275041-story.html. In making the Commonwealth’s sentencing laws more

severe, the Virginia General Assembly “brushed aside expert testimony and the

experiences of other states that have found no correlation between imprisoning

more people for longer periods and reducing crime.” Id.

Petitioner was convicted of a new charge of larceny. JA 150. In August 2015, his

mandatory parole was accordingly revoked. JA 155-56, 165. Per the 1994 statutory

amendment and 1995 VPB policy change, the twenty-three plus years of good time

credit he had previously earned was revoked and imposed on his sentence. JA 15556, 165, 396, 406.

Virginia Department of Corrections records reveal that the loss of good time

credit was solely due to the 1994 amendment to § 53.1-159 and the 1995 parole

board policy—not any pre-existing statute or parole board policy. See JA 156, 165. A

record from September 15, 2015, when Petitioner’s good time credit was revoked,

states: “Effective 5/11/95, per policy of the Virginia Parole Board under code section

53.1-159, all time not physically served on applicable sentences prior to mandatory

parole will be served.” JA 156; see also JA 165 (identical statement on record dated

August 7, 2017).

Procedural history

Four months after the loss of all his good time credit, Petitioner timely filed a

pro se habeas petition in the Virginia Supreme Court in December 2015. JA 278.

Because the 1995 VPB policy change enhanced his punishment for crimes he

committed and was sentenced for in the 1980s, Petitioner contended in part that the

application of the policy to his sentences violated the Ex Post Facto Clause. See JA

283, 293-94, 296-98, 312-13. The Virginia Supreme Court dismissed Petitioner’s

state habeas petition on two grounds: first, that his challenge to his release on

mandatory parole had accrued more than one year before his petition was filed and

second, that his claim for loss of good time credit was not cognizable in habeas

corpus. Pet. 36a.

Petitioner then filed a pro se habeas corpus petition in the Eastern District of

Virginia. The district court held that Petitioner’s one-year statute of limitations

began to run in October 2013, the date of his mandatory parole, rather than when

he lost good time credit in 2015. Pet. 23a. It also reasoned that there was no ex post

facto violation. Pet. 29a-30a. The district court declined to issue a certificate of

appealability. Pet. 35a. Petitioner filed a pro se notice of appeal, JA 461-62, and the

Fourth Circuit granted a certificate of appealability on four issues, three procedural

and one on whether Petitioner’s constitutional rights had been violated. See Fourth

Circuit Case No. 20-6448, ECF Doc. 20.

After briefing and oral argument, a Fourth Circuit panel agreed with

Petitioner that the merits should be reached, finding many of his contentions on the

first three certified issues “compelling” but held his ex post facto claim was

controlled and barred by Warren v. Baskerville, 233 F.3d 204 (4th Cir. 2000). Pet.

13a. The court reasoned that policy determinations do not carry the force of law for

ex post facto purposes and did not consider whether the VPB’s 1995 policy created a

significant risk of increased punishment. Pet. 18a-19a. The court also relied on

Warren’s conclusion that the VPB had the power under § 53.1-165 to revoke good

time credits before Petitioner’s original conviction. Pet. 19a. The Fourth Circuit

denied rehearing en banc. Pet. 37a.

REASONS FOR GRANTING THE PETITION

The Constitution prohibits States from passing any “ex post facto Law.” U.S.

Const. art. I, § 10, cl. 1. The Ex Post Facto Clause prohibits the application of law

that “changes the punishment, and inflicts a greater punishment, than the law

annexed to the crime, when committed.” Calder v. Bull, 3 U.S. (3 Dall.) 386, 390

(1798); see also Cal. Dep’t. of Corrs. v. Morales, 514 U.S. 499, 504 (1995) (citing

Collins v. Youngblood, 497 U.S. 37, 41 (1990)) (“In accordance with this original

understanding, we have held that the Clause is aimed at laws that ‘retroactively

alter the definition of crimes or increase the punishment for criminal acts.’”).

Here, Petitioner contends that a VPB policy change violates his ex post facto

rights and that his Petition merits this Court’s review, for three main reasons.

First, the Fourth Circuit’s ex post facto analysis conflicts with this Court’s precedent

in two significant ways. Second, the Fourth Circuit’s ex post facto analysis conflicts

with the analysis in five other circuits. Third, how courts should analyze ex post

facto claims arising from retroactive application of parole board policy changes is an

important question.

The Fourth Circuit’s Ex Post Facto Analysis Conflicts With This

Court’s Decisions.

Whether the retroactive application of a parole law amendment violates the

Ex Post Facto Clause “is often a question of particular difficulty when the discretion

vested in a parole board is taken into account.” Garner v. Jones, 529 U.S. 244, 249

(2000). But the presence of parole board discretion does not displace ex post facto

limitations. See Peugh v. United States, 569 U.S. 530, 546 (2013) (“[A] law can run

afoul of the Clause even if it does not alter the statutory maximum punishment

attached to a crime.”). Rather, the “touchstone inquiry” in ex post facto challenges is

whether a change in law presents a “sufficient risk of increasing the measure of

punishment attached to the covered crimes.” Morales, 514 U.S. at 509. The “bulk” of

this analysis focuses on “the effect of the law on the inmate’s sentence.” Lynce v.

Mathis, 519 U.S. 433, 444 (1997).

Parole board policies are subject to ex post facto limitations.

The Fourth Circuit erred in concluding that parole board policy changes

“lack the force of law” for ex post facto purposes. Pet. 16a. Changes to parole board

rules and policies may violate the Ex Post Facto Clause. Peugh, 569 U.S. at 545

(“This Court’s precedents make clear, that the coverage of the Ex Post Facto Clause

is not limited to legislative acts.”); Garner, 529 U.S. at 257; Lynce, 519 U.S. at 445–

46; Weaver v. Graham, 450 U.S. 24, 32-33 (1981).

Policy statements and a parole board’s actual practices “provide important

instruction as to how the Board interprets its enabling statute and regulations, and

therefore whether, as a matter of fact, the amendment . . . created a significant risk

of increased punishment.” Garner, 529 U.S. at 256. An agency’s policies and

practices often “indicate the manner in which it is exercising its discretion.” Id.

Accordingly, parole board policies must be considered in ex post facto claims. Id.

(“The Court of Appeals erred in not considering the Board’s internal policy

statement.”).

Parole board policy decisions have the power to change the application of law

to parolees and their sentences. Id. at 256-57. If a parole board internally decides to

change its enforcement of a parole law against parolees, then the law, in operation,

has changed. When that change creates a sufficient risk of a longer period of

incarceration than under the earlier application, the law violates the Ex Post Facto

Clause. Id. at 255; see also Weaver, 450 U.S. at 30 (“[I]t is the effect, not the form, of

the law that determines whether it is ex post facto.”).

The court below reaffirmed its holding in Warren that ex post facto protection

does not extend to discretionary parole board policy decisions. Pet. 15a. The court

relied in part on dicta from a subsequent Fourth Circuit decision, Burnette v. Fahey,

687 F.3d 171, 184 n.6 (4th Cir. 2012). The court reasoned that “whether dicta or

not—the reasoning in Burnette is persuasive.” Pet. 16a. In a footnote, and relying on

Warren, Burnette had stated that the Ex Post Facto Clause’s scope is limited to

“enactments of the legislature and to ‘legislative rules,’ i.e., rules promulgated by

administrative agencies pursuant to a delegation of legislative authority . . .

administrative policies that merely articulate an agency’s interpretation of a

statute, however, are not subject to ex post facto limitation.” 687 F.3d at 184 n.6

(citing Warren v. Baskerville, 233 F.3d 204, 207 (2000)). This interpretation directly

conflicts with Garner and this Court’s decisions that retroactive application of

parole board policy changes may violate the Ex Post Facto Clause.

The VPB policy created a significant risk of increased

punishment.

The Constitution “intended that the rights of the citizen should be secure

against deprivation for past conduct by legislative enactment, under any form,

however disguised.” Cummings v. Missouri, 71 U.S. 277, 325 (4 Wall.) (1867). When

presented with an ex post facto challenge, a court must determine whether a change

in law, whatever its form, creates “a sufficient risk of increasing the measure of

punishment attached to the covered crimes.” Morales, 514 U.S. at 509; Garner, 529

U.S. at 255. This standard requires a “rigorous analysis of the level of risk created

by the change in law.” Garner, 529 U.S. at 255.

Before the 1994 statutory amendment and the 1995 VPB

policy change, the VPB did not have authority to revoke

good time credit upon violation of mandatory parole.

When Petitioner was sentenced in the 1980s, neither the mandatory parole

statute, § 53.1-159, nor the general parole revocation statute, § 53.1-165, gave the

VPB authority to revoke the previously accumulated good time credit of mandatory

parole violators and incarcerate them for that time. Although the Fourth Circuit

concluded that such authority was rooted in the general parole revocation statute, §

53.1-165, Warren, 233 F.3d at 207, there is nothing in the statutory text conferring

such authority and that statute does not govern mandatory parole.

Moreover, in amending the mandatory parole statute, § 53.1-159, the

Virginia legislature recognized that the VPB did not possess the authority to revoke

a mandatory parole violator’s good conduct credit prior to its enactment. See 1994

General Assemb., Summary of Legis. Proposal (“Amend and reenact Section 53.1-

156 and 53.1-159 of the Code of VA to providing [sic] the Parole Board with

statutory authority to revoke releasees’ parole and require them to be subject to

reincarceration at any time up to the maximum penalty allowed by law, thereby

forfeiting their previously accrued good time.”).

Thus, it was not until the 1994 amendment to the mandatory parole statute,

§ 53.1-159, that the VPB became authorized to revoke mandatory parole violators’

good time credit. The VPB then passed the policy at issue in 1995. Both the 1994

statutory amendment, the sole statutory authority that the VPB relied on in

adopting its 1995 policy, and the 1995 policy were passed years after Petitioner was

sentenced for his crimes. They had the effect of increasing his punishment when

they were later applied to him, in violation of his rights under the Ex Post Facto

Clause. See Johnson v. United States, 529 U.S. 694, 702 (2000) (stating that, for ex

post facto analysis, the Court “attribute[s] postrevocation penalties to the original

conviction”).

In rejecting Petitioner’s ex post facto claim, the Fourth Circuit repeated its

prior historical error from Warren that the 1995 VPB policy change “was merely a

‘policy decision that was within the parameters of existing state law.’” Pet. 15a

(quoting Warren, 233 F.3d at 206-07). The court wrongly reasoned that the VPB

already had authority to reincarcerate mandatory parole violators for the entire

portion of their original sentence under § 53.1-165, which was enacted before

Petitioner’s convictions. Pet. 15a (citing Warren, 233 F.3d at 206–07). As noted

above, it was § 53.1-159, amended in 1994, that provided the VPB with the

authority to revoke good time credits of mandatory parolees such as Petitioner.

Even if the VPB had authority to revoke good time credit

before its 1995 policy change, this Court’s precedents

require the risk of increased punishment arising from

the policy to be considered.

The courts below were required to analyze whether the 1995 policy created a

sufficient risk of increased punishment, even if the VPB had possessed authority to

revoke the good time credit of mandatory parole violators before 1995. When the

upper boundary of a parole board’s power to punish remains unchanged, the board’s

practices and policies may nevertheless create a sufficient risk of increased

punishment. Peugh, 569 U.S. at 546. If a change in the operation of law

significantly alters the consequences attached to crime already completed, the

alteration changes “the quantum of punishment,” in violation of the Ex Post Facto

Clause.Weaver, 450 U.S. at 32. The Ex Post Facto Clause also forbids the States to

enhance the measure of punishment by altering the substantive “formula” used to

calculate terms of incarceration. Morales, 514 U.S. at 506.

Moreover, retroactive alteration of early release provisions implicates the Ex

Post Facto Clause. Lynce, 519 U.S. at 446-47. Good time credit is a determinant of

an inmate’s prison term, and an inmate’s “effective sentence is altered once this

determinant is changed.” Weaver, 450 U.S. at 32. As eligibility for reduced

imprisonment is a significant consideration in both plea bargaining and sentence

computation, “the removal of such provisions can constitute an increase in

punishment.” Id.

Here, the 1995 policy change plainly altered the legal consequences of crimes

committed before its effective date. Even if the VPB possessed the authority under §

53.1-165 to require mandatory parole violators to serve the full remainder of their

original sentences without the benefit of good time, it did not routinely exercise that

power. See Woodley, 74 F. Supp. 2d at 630 (determining that the effect of the 1995

policy change “was that the VPB would now incarcerate all violators and require

them to serve the remainder of their sentence”).

Even assuming the VPB had discretion to revoke the good time credit of

mandatory parolees who violated their parole conditions before 1995, in 1995 the

VPB changed its policy and began to require all mandatory parolees who violated a

condition of parole to serve the full remainder of their original sentences. See

Garner, 529 U.S. at 256 (explaining that the issue presented was whether the law

“as applied” to a prisoner’s sentence “created a significant risk of increasing his

punishment”). As applied to Petitioner, the revocation of his previously earned good

time credit altered the terms of his originally imposed sentences, adding an

additional twenty-three years to his sentence. Yet, the Fourth Circuit failed to

analyze whether the policy change created a significant risk of increased

punishment.

Using its delegated lawmaking authority to require all mandatory parole

violators to serve the remainder of their unserved sentence without regard for

previously earned good time credit, the VPB “effectively eliminated the lower end”

of punishment under the law. See Morales, 514 U.S. at 506. This Court has

repeatedly held that such changes violate the Ex Post Facto Clause. See Weaver, 450

U.S. at 34 (invalidating on ex post facto grounds a statute that retroactively reduced

the amount of “gain time” credits originally available to prisoners at the time of

their crimes and sentences); Miller v. Florida, 482 U.S. 423, 433-34 (1987) (holding

that an increase in presumptive sentencing ranges, which occurred after petitioner

committed his crime but before he was sentenced, violated the Ex Post Facto

Clause); Lindsey v. Washington, 301 U.S. 397, 401 (1937) (holding that a change in

law, which occurred between the commission of the crime and petitioner’s

sentencing, removing the sentencing judge’s discretion to impose a sentence below

the fifteen year maximum and requiring the maximum fifteen-year sentence

violated the Ex Post Facto Clause).

In rejecting ex post facto challenges to the VPB 1995 policy change, the

Fourth Circuit has quoted this Court out of context and reasoned that the Ex Post

Facto Clause should not be used for “the micromanagement of an endless array of

legislative adjustments to parole and sentencing procedures.” Warren, 233 F.3d at

208 (quoting Morales, 514 U.S. at 508). The changes this Court referred to in

Morales, like limiting the hours of a prison law library or setting page limits on

documents seeking gubernatorial pardons, create “only the most speculative and

attenuated risk” of increasing the punishment for past crimes. Morales, 514 U.S. at

508, 514. In contrast, the 1995 VPB policy change caused the retroactive revocation

of twenty-three years of good time credit. The risk of increased punishment was not

speculative, and the increased punishment is significant. Greenfield v. Scafati, 277

F. Supp. 644, 646 (D. Mass. 1967) (“The difference between no penalty, other than a

termination of the parole, and a substantial increase in imprisonment for violation,

is far from inconsequential.”), summarily aff’d, 390 U.S. 713 (1968).

Moreover, historical context informs the risk of the increased punishment

analysis. The 1994 amendment and 1995 policy change were enacted as part of a

Truth-in-Sentencing reform that was explicitly aimed at lengthening incarceration

periods for violent or repeat offenders as part of a “hard-on-crime” initiative by a

newly elected governor. William P. Barr & Richard Cullen, Governor’s Commission

on Parole Abolition and Sentencing Reform, Final Report 1-5 (Aug. 1994),

http://www.vcsc.virginia.gov/1994%20Final%20Report%20Gov's%20Commission%2

0on%20Parole%20Abolition%20&%20Sentencing%20Reform.pdf. Unlike in Morales,

where “a prisoner’s ultimate date of release would be entirely unaffected by the

change,” 514 U.S. at 513, the effect of the 1994 statutory amendment and 1995

policy change was postponement of release dates and lengthened periods of

confinement across the Commonwealth of Virginia. See Brain J. Ostrom et. al.,

Truth-in-Sentencing in Virginia, Nat’l Inst. of Just., Doc. No. 187677 (1999). Failing

to analyze the risk of increased punishment arising from the policy change was

therefore inconsistent with this Court’s precedent.

The 1995 VPB policy change penalizes mandatory parole violators by

revoking previously earned good time credit for past crimes. As a result, these

individuals are serving additional time they would not have served before 1995.

This practice raises clear ex post facto concerns. Greenfield, 390 U.S. at 713

(affirming that a statute which imposes sanctions for parole violations upon

prisoners originally sentenced before the statute’s enactment violates the Ex Post

Facto Clause). Accordingly, the Fourth’s Circuit’s failure to conduct an ex post facto

analysis of the increased risk of punishment to Petitioner from the VPB policy

change contradicts this Court’s precedent. Review is warranted.

II.

The Fourth Circuit’s Ex Post Facto Analysis Conflicts With The

Third, Sixth, Seventh, Ninth, And D.C. Circuits.

The Fourth Circuit’s failure to address whether a discretionary parole board

policy violates the Ex Post Facto Clause by creating a significant risk of increased

punishment conflicts with decisions from the Third, Sixth, Seventh, Ninth, and D.C.

Circuits. The Court should grant certiorari to resolve the Circuit split over the

proper analysis for the retroactive application of parole board policies.

The Third, Sixth, Seventh, Ninth, and D.C. Circuits agree that the primary

inquiry in an ex post facto analysis is not the form of the law but whether it creates

a significant risk of increased punishment. See Holmes v. Christie, 14 F.4th 250, 264

(3d Cir. 2021) (noting that “a challenged rule’s constitutionality hinges on its effect,

not its form”); Michael v. Ghee, 498 F.3d 372, 383 (6th Cir. 2007) (holding the

primary analysis is not whether the challenged regulation is a law but whether it

creates a significant risk of increased time served); Glascoe v. Bezy, 421 F.3d 543,

547-48 (7th Cir. 2005) (same); Himes v. Thompson, 336 F.3d 848, 855 (9th Cir. 2003)

(same); Fletcher v. Reilly, 433 F.3d 867, 876-77 (D.C. Cir. 2006) (citing Garner, 529

U.S. at 251) (stating the controlling inquiry is whether the Board’s exercise of

discretion in practice created a significant risk of increasing incarceration).

For example, the Seventh Circuit, following this Court’s Garner decision,

concluded that it must first consider whether the retroactive application of new

parole guidelines “create[d] a significant risk of increased punishment.” Glascoe,

421 F.3d at 547. Upon determining the new guidelines did not create such a risk,

the court reasoned that it did not need to evaluate the government’s argument that

ex post facto limitations did not apply to discretionary guidelines. Id. at 548 (citing

Warren, 233 F.3d at 208).

Furthermore, similarly following Garner, the Sixth and D.C. Circuits rejected

their prior analyses distinguishing between law and policies in ex post facto

analyses. The Sixth Circuit concluded its prior decision that parole guidelines were

not subject to ex post facto limitations was inconsistent with Garner. See Michael,

498 F.3d at 381 (concluding “the Court made clear that guidelines that affect

discretion, rather than mandate outcomes, are nevertheless subject to ex post facto

scrutiny”). Id. Additionally, the D.C. Circuit held that Garner “foreclosed our

categorical distinction between a measure with the force of law and guidelines

[that] are merely policy statements from which the Commission may depart in its

discretion.” Fletcher v. D.C., 391 F.3d 250, 251 (D.C. Cir. 2004) (internal quotations

omitted).

In stark contrast, the Fourth Circuit continues to distinguish between parole

board policies and laws. See Burnette, 687 F.3d at 185 n.6 (“Administrative policies

that merely articulate an agency's interpretation of a statute . . . are not subject to

the ex post facto limitation.”) That circuit’s primary inquiry is whether the parole

board exercised its “previously existing discretionary authority under statute.”

Warren, 233 F.3d 204 at 208; see also Burnette, 687 F.3d at 185 n 6; Brown, Pet.

15a. In Warren, the court’s ex post facto analysis focused on whether the parole

board had the discretion to revoke mandatory parole violators’ good time credit

“within the parameters of existing state law” prior to conviction. 233 F.3d at 208.

The court did not address whether the amendment or policy decision significantly

increased the risk of increased punishment.

Here, applying Warren, the Fourth Circuit determined that the 1995 policy

change, requiring revocation of Petitioner’s twenty-three plus years of good time

credit, did not violate the Ex Post Facto Clause. Pet. 16a-17a. The court reaffirmed

its own minority rule that policies interpreting statutes are not subject to ex post

facto analysis. Pet. 16a-17a (citing Burnette, 687 F.3d at 185 n.6). Moreover, it held

that the policy “constituted an exercise of the Board's delegated lawmaking

authority to adopt general rules governing the granting of parole” that predated

Petitioner’s conviction. Id.

The Second Circuit appears to be the only circuit in agreement . Similar to

the Fourth Circuit, the Second Circuit does not apply ex post facto analysis to

guidelines “promulgated simply to guide the parole board in the exercise of its

discretion.” Barna v. Travis, 239 F.3d 169, 171 (2d Cir. 2001); see also Robles v.

Dennison, 745 F. Supp. 2d 244, 300 (W.D.N.Y. 2010) (noting that the “Second

Circuit has explicitly rejected the notion that New York State's parole guidelines

constitute ‘laws’ within the meaning of the ex post facto clause” and citing Barna,

239 F.3d at 171), aff’d, 449 F. App’x 51 (2d Cir. 2011).

The Fourth Circuit’s Warren analysis results in a different outcome than

similar ex post facto cases in the Third, Sixth, Seventh, Ninth, and D.C. Circuits.

Compare Mickens-Thomas v. Vaughn, 321 F.3d 374, 393 (3d Cir. 2003) (holding ex

post facto limitations applied to a parole board’s exercise of its amended authority to

revise parole eligibility guidelines) with Warren, 233 F.3d at 208 (holding ex post

facto limitations did not apply to the parole board’s exercise of its amended

authority to change parole board policies revoking good time credit).

Because the Fourth Circuit’s ex post facto analysis of discretionary parole

policies is contrary to the significant risk of increased punishment test in five other

circuits, review is warranted.

III.

The Application Of Ex Post Facto Limitations To Parole Board

Policies Is Important.

Parole is a critical part of this country’s criminal justice system. It decreases

the prison population, reduces the costs of incarceration, and, most importantly,

affects the amount of time a person serves in prison. See Amy RobinsonOost, Evaluation as the Proper Function of the Parole Board: An Analysis of New

York State’s Proposed Safe Parole Act, 16 CUNY L. Rev. 129, 134 (2012) (noting an

increase in availability of parole and probation would decrease prison populations

by 10% saving $3 billion in costs); Paul D. Reingold & Kimberly Thomas, Wrong

Turn on the Ex Post Facto Clause, 106 Cal. L. Rev. 593, 630 (2018) (stating parole

affects the time served in prison reducing costs).

With nearly two million individuals currently incarcerated, a parole board’s

exercise of discretion potentially impacts the amount of time served by hundreds of

thousands of prisoners. Wendy Sawyer & Peter Wagner, Mass Incarceration: The

Whole Pie, Prison Pol’y Initiative (Mar. 14, 2022), https://www.prisonpolicy.org/

reports/pie 2022.html. Because parole board policies carry the force of law and those

policies, such as the 1995 VPB policy, are often intended to be punitive, this case is

important and merits review.

Like legislatures, parole boards have the power to increase the

measure of punishment attached to crimes.

In most states, “no court or state agency holds greater power than parole

boards over time actually served by the majority of offenders sent to prison.” Kevin

R. Reitz & Edward E. Rhine, Parole Release and Supervision: Critical Drivers of

American Prison Policy, 3 Ann. Rev. Criminology, 281, 281 (2020); see also Beth

Schwarzapfel, Parole Boards: Problems and Promise, 28 Fed. Sent’g Rep. 79, 79

(2015) (noting parole boards in twenty-six states have “almost unlimited discretion”

in determining parole). Thus, more than 800,000 people rely primarily on parole

boards to protect their constitutional right against ex post facto incarceration. See

Danielle Kaeble, Probation and Parole in the United States, 2020, Bureau of Justice

Statistics (Dec. 2021), https://bjs.ojp.gov/content /pub/pdf/ppus20.pdf (determining

there were 862,100 individuals on parole in 2020).

Parole boards, like state legislatures, sometimes exercise their power

punitively, such as by revoking good time credit for parole violations. Reitz & Rhine,

supra at 282. This power has been used to punish parole violators with

reincarceration. See id. at 288 (the number of revocations increased by 918% from

1980 to 2008); see also Sawyer & Wagner, supra (finding 1 in 5 inmates are in

prison for violating parole or probation); Confined and Costly: How Supervision

Violation are Filling Prisons and Burdening Budgets, Council of State Governments

Justice Center (June 18, 2019), https://csgjusticecenter.org/publications/confinedcostly/ (finding 45% of state prisoners were admitted due to parole or probation

violations). Parole boards also use their discretion to determine the likelihood of

recidivism and existence of parole violations. Michael Ostermann, How Do Former

Inmates Perform in the Community? A Survival Analysis of Rearrests,

Reconvictions, and Technical Parole Violations, 61 Crime & Delinq. 163, 163 (2015).

While Petitioner’s case involves parole revocation due to criminal recidivism,

parole boards often revoke for technical violations as well. Id. In fact, studies

indicate that nearly half of parole revocations are based on technical violations as

opposed to criminal recidivism. Kelli Stevens-Martin et al, Technical Revocations of

Probation in One Jurisdiction: Uncovering the Hidden Realities, 78 Fed. Prob. 16,

17 tbl. 1 (2014). Moreover, technical parole violations have a disproportionate

impact on vulnerable mentally impaired parolees. Ryken Grattet & Jeffrey Lin,

Supervision Intensity and Parole Outcomes: A Competing Risks Approach to

Criminal and Technical Parole Violations, 33 Just. Q. 565, 576 (2016) (stating

mental health diagnosis increases the likelihood of a technical violation by 95%).

Given the power that parole boards possess, parole board policies have an

arguably bigger impact on criminal justice than laws passed by state or federal

legislatures. See Reitz & Rhine, supra, 285 (noting that “[w]ithout any formal

changes in the law, low-visibility shifts in the exercise of release discretion could

turn a state’s prison policy on a dime”). Recognizing how easily this power can be

abused by legislatures, the Framers created the Ex Post Facto Clause to prevent

such punitive actions. Federalist No. 84 (A. Hamilton) (“[T]he practice of arbitrary

imprisonments, have been, in all ages, the favorite and most formidable

instruments of tyranny.”) (emphasis added).

The Fourth Circuit, however, does not place those same limitations on parole

boards, even when parole rules clearly enhance the measure of punishment for

certain crimes. By this reasoning, parole boards may retroactively postpone the

release of prisoners without regard for constitutional limitations. Put another way,

in the Fourth Circuit, the Ex Post Facto Clause prevents legislatures from

retroactively enhancing punishment through new legislation but allows parole

board policy to achieve the same result.

Because parole boards have the power to retroactively punish hundreds of

thousands of individuals each year by postponing their release dates, this is an

issue of significant importance meriting review.

Punitive and retroactive parole board policy changes are

inconsistent with the purpose of the Ex Post Facto Clause,

affect multitudes, and occur too often.

Because the Fourth Circuit’s ex post facto jurisprudence is inconsistent with

the protections of the Clause as understood by the Framers, see The Federalist No.

44 (J. Madison) (describing ex post facto limitations as a “constitutional bulwark in

favor of personal security and private rights”); id. No. 84 (A. Hamilton) (describing

ex post facto laws as “formidable instruments of tyranny”), review is warranted. See

Morales, 514 U.S. at 521-22 (Stevens, J dissenting) (noting that “[i]n light of the

importance that the Framers placed on the Ex Post Facto Clause, we have always

enforced the prohibition against the retroactive enhancement scrupulously”).

Prohibiting ex post facto legislation while at the same time allowing parole

boards—vested with lawmaking authority by state legislatures—to retroactively

increase the punishment does not serve the values the Ex Post Facto Clause was

designed to protect. See Ross’ Case, 19 Mass. 165, 170 (1824) (“A party ought to

know, at the time of committing the offence, the whole extent of the punishment; for

it may sometimes be a matter of calculation, whether he will commit the offence,

considering the severity of the punishment.”); see also Peugh, 569 U.S. at 561

(Thomas, J., dissenting) (explaining how laws that retroactively increased

punishment for certain crimes were “understood to be ex post facto at the time of the

founding”).

In response to “tough-on-crime” political campaigns beginning in the 1960s,

parole statutes and policies have harshened treatment of prisoners, resulting in the

exact harm the Ex Post Facto Clause was intended to prevent. See Reingold &

Thomas, supra, at 629 (“[N]early all the statutory and policy changes regarding

parole over the past fifty years have been in the direction of harsher treatment for

prisoners, as a result of political shifts from the 1960s to the 2000s.”); Reitz &

Rhine, supra, 285, 288 (stating that a 918% increase in parole revocation was “an

important driver of American incarceration growth” from 1980 to 2000).

Parole board changes like the 1995 VPB policy were intended to punish

offenders, prolong periods of incarceration, and reduce availability for parole for

certain classes of criminals, such as violent, repeat offenders or murderers. See

Governor’s Commission on Parole Abolition and Sentencing Reform, supra, at 2;

Lynce, 519 U.S. at 892. While such tough-on-crime initiatives are “legitimate when

they operate prospectively, [ ] their importance and prevalence surely justify careful

review when those measures change the consequences of past conduct.” Morales,

514 U.S. at 521-22 (Stevens, J., dissenting).

Punitive parole board policies do not merely punish parolees; they also

punish innocent individuals within their communities, their families, and most

importantly their children. More than 2.5 million children in this country have at

least one parent in prison. Peter van Agymael, Incarceration’s Impact on Kids and

Families, The Human Toll of Jail (2016) http://humantollofjail.vera.org/the-familyjailcycle/#:~:text=Studies%20show%20that%20the%20growth,care%2C%20separate

d%20from%20their%20family. Children whose parents are behind bars suffer from

higher rates of homelessness, experience increased rates of poverty, and often find

themselves in an overcrowded foster care system. Id. The effects on the families of

incarcerated individuals follow them from arrest, to sentencing, to parole, and in

many instances, to reincarceration.

Punitive and retroactive parole board policy changes occur too often. A survey

of ex post facto claims between 1992 and 2002 found there were more than 200

challenges to custody modifications such as revocation of good time credit, making

these claims the second most common ex post facto challenges after sentence

enhancement provisions. Wayne A. Logan, “Democratic Despotism” and

Constitutional Constraint: An Empirical Analysis of Ex Post Facto Claims in State

Courts, 12 W&M Bill of Rts. J. 349, 466, 469 (2004). Among the more successful

claims were parole-based claims involving the retroactive forfeiture of

“imprisonment time credits.” Id. at 479.

In sum, based on this Court’s ex post facto decisions, the circuit conflict, and

the question’s importance, this Court’s review is warranted. The Court should take

this opportunity to clarify how the Ex Post Facto Clause applies to the retroactive

application of parole board policy changes.

CONCLUSION

The petition for a writ of certiorari should be granted.

JOHN J. KORZEN

Counsel of Record

WAKE FOREST UNIVERSITY SCHOOL OF LAW

APPELLATE ADVOCACY CLINIC

PO Box 7206

Winston-Salem, NC 27109

(336) 758-5832

korzenjj@wfu.edu

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