Amicus Curiae Brief — California Dept. of Corrections v. Morales

No. 93-1462 rar ae

IN THE e.

Supreme Court of the United States

OCTOBER TERM, 1994

CALIFORNIA DEPARTMENT

OF CORRECTIONS, et ai.,

v.

JOSE RAMON MORALES,

Petitioners,

Respondent.

On Writ of Certiorari To The =

United States Court of Appeals

For The Ninth Circuit

BRIEF OF NATIONAL LEGAL AID AND

DEFENDER ASSOCIATION, D.C. PRISONERS’ LEGAL

SERVICES PROJECT, INC. AND CLARENDON FOUNDATION

AS AMICI CURIAE IN SUPPORT OF RESPONDENT

Robert Burke Ronald D. Maines*

Senior Attorney Jonathan L. Kvanvig

Defender Division Maines & Harshman, Chrid.

National Legal Aid And 2300 M Street, N.W.

Defender Association Suite 900

1625 K Street., N.W., Ste. 800 Washington, D.C. 20037

Washington, D.C. 20006 (202) 223-2817

(202) 452-0620

Jonathan Smith *Counsel of Record

1400 20th Street, N.W., Ste. 117

Washington, D.C. 20036

(202) 775-0323

December 6, 1994

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .........200e0002, ii

INTEREST OF AMICI CURIAE ............... 1

SUMMARY OF ARGUMENT ................. 3

SE 9 a0 cd wkend hee0 t be SOUS 02 80 +

I, THE COURT OF APPEALS PROPERLY

ANALYZED THE UNCONSTITUTIONAL

EFFECT OF THE 1981 AMENDMENT. . 5

Il. PETITIONERS’ ACTUAL HARM TEST

IS INCONSISTENT WITH THE

PRINCIPLES UNDERLYING THE BAN

AGAINST EX POST FACTO LAWS. .. 9

GREET Ce coe cen eb ees edeesesocecs 15

TABLE OF AUTHORITIES

Cases: Page

Calder v. Bull, 3 Dall. 386 (1798)... ........054. 4

Cummings v. Missouri, 4 Wall. 277 (1867) ......... 4

Dobbert v. Florida, 432 U.S. 282 (1977) ....... 5, 13

Lindsey v. Washington, 301 U.S. 397 (1937) .... 5,12,13

Malloy v. South Carolina, 237 U.S. 180 (1915) ...... 4

Miller v. Florida, 482 U.S. 423 (1987) .......... 11

Morales v. Calif. Dept. of Corrections,

16 F.3d 1001 (9th Cir. 1994) ...........04.. 5,18

Powell v. Ducharme, 998 F.2d 710 (9th Cir. 1993) ... 12

Warden v. Marrero, 417 U.S. 653 (1974) .......... 6

Weaver v. Graham, 450 U.S. 24 (1981) ....... passim

Constitution:

Art. I, Sec. 9, cl.3 (Ex Post Facto Clause) ..... passim

Art. I, Sec. 10, cl. | (Ex Post Facto Clause) .... passim

Other Sources:

W. Blackstone, | COMMENTARIES 46........... 4

THE FEDERALIST, No. 44 (J. Madison)........ 4,12

THE FEDERALIST, No. 84 (A. Hamilton)......... 4

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1994

No. 93-1462

CALIFORNIA DEPARTMENT

OF CORRECTIONS, e¢t al.,

Petitioners,

v.

JOSE RAMON MORALES,

Respondent.

On Writ of Certiorari To The

United States Court of Appeals

Por The Ninth Circuit

BRIEF OF NATIONAL LEGAL AID AND

DEFENDER ASSOCIATION, D.C. PRISONERS’ LEGAL

SERVICES PROJECT, INC. AND CLARENDON FOUNDATION

AS AMICI CURIAE IN SUPPORT OF RESPONDENT

INTEREST OF AMICI CURIAE

Pursuant to Rule 37.3 of this Court, National Legal

Aid And Defender Association, D.C. Prisoners’ Project,

Inc. and Clarendon Foundation respectfully submit this brief

amici curiae in support of Respondent. Written consent to

the filing of this brief has been granted by counsei for al!

ial. P_

sMe

parties. Copies of the letters of consent have been lodged

with the Clerk of the Court.

National Legal Aid And Defender Association is a not-

for-profit organization whose members include the majority

of public defender offices, coordinated assigned counsel!

systems and legal services agencies throughout the Nation.

The organization also includes two thousand individual

members. NLADA’s primary purpose is to assist in

providing effective legal services to persons unable to retain

counsel. In carrying out this purpose, NLADA has a strong

interest in protecting its members’ clients’ constitutional

rights.

D.C. Prisoners’ Legal Services Project, Inc. is a

private, non-profit, public interest law firm established to

provide free legal services to prisoners confined to the

District of Columbia correctional system. The Project

represents prisoners in individual and class action litigation

concerning conditions of confinement, parole, access to

medical care and access to the courts.

Clarendon Foundation is a non-profit, non-partisan legal

and educational foundation concerned with contemporary

issues related to the Constitution, democratic government

and the attendant rights and responsibilities of citizenship.

The foundation participates in various forums in cases where

the resolution of constitutional! issues will implicate the broad

rule of law.

Because this case raises a fundamental! constitutional!

question with significant ramifications for the public interest,

amici believe that their perspective will complement the brief

of Respondent and assist the Court in the proper resolution

of this case.

ofe

SUMMARY OF ARGUMENT

This case comes to the Court at a time when there are

substantial legislative initiatives throughout the States, as

well as at the Federal ievel, to tighten parole eligibility

requirements. As an expression of the will of the people,

a legislature’s statutory response is delimited only by the

requirements of the Constitution. But those requirements,

regardless of the political or social climate of the day, must

be strictly honored. The retrospective statute challenged

in this case cannot stand because it violates one of the most

basic of such limitations upon governmental action -- the

proscription against ex post facto laws.

The court of appeals properly assessed the ex post facto

mature of the statute in question, reasoning

straightforward logic that a law making parole hearings less

accessible effectively increases a prisoner’s sentence because

a hearing is a condition of parole eligibility. Petitioners’

rejoinder -- that there is not a causal relationship between

the frequency of hearings and parole -- relies upon

Petitioners’ assessment of the probability of harm in this

particular case. That approach is ill-conceived, however,

because the analysis of an ex post facto law can coherently

be undertaken only with reference to the class of individuals

potentially subject to its adverse effects. Moreover,

Petitioners’ actual harm test is wholly inconsistent with the

Principles upon which the ex post facto ban was predicated.

The guarantees of fair notice and governmental restraint --

critical features of the social compact -- would be emptied

of any genuine reliability under Petitioners’ approach.

Finally, an actual harm test conflicts with decisions of the

Court which make clear that the appropriate focus of an ex

post facto challenge is the texts of the prior and subsequent

laws, rather than the State’s quantification of probability

of actual harm in the aftermath of the retrospective law’s

application.

Se

sihe

ARGUMENT

Article I of the Federal Constitution establishes that

neither Congress nor any State shall pass any “ex post facto

Law.” See Art. I, Sec. 9, cl. 3; Art. I, Sec. 10, cl. 1.

The ex post facto prohibition forbids Congress and the States

from enacting any law “which imposes a punishment for an

act which was not punishable at the time it was committed;

or imposes additional punishment to that then prescribed."

Weaver v. Graham, 450 U.S. 24 (1981), citing Cummings

v. Missouri, 4 Wall. 277, 325-326, 18 L.Ed. 356 (1867).

Alexander Hamilton regarded the ex post facto proscription

as one of a triad of constitutional securities "perhaps greater

. to liberty and republicanism than any [provisions the

Constitution] contains." THE FEDERALIST, No. 84.

In addition, the earliest authorities explain that the

Clauses were aimed at a second concern -- that legislative

enactments “give fair warning of their effect and permit indi-

viduals to rely on their meaning until explicitly changed. °

Weaver v. Graham, supra, at 28-29, citing Calder v. Bull,

3 Dall. 386, 388 (1798); 1 W. Blackstone, COMMENTAR-

IES 46. Implicit in the prohibition is the notion that indi-

viduals be punished only in accordance with standards of

conduct they might have ascertained before acting.

James Madison viewed ex post facto laws as “contrary

to the first principles of the social compact and to every

principle of sound legislation,” warning that "[o)ne legisla-

tive interference is but the first link of a long chain of repe-

titions, every subsequent interference being naturally pro-

duced by the effects of the preceding." THE FEDERALIST,

No. 44. The ban restricts governmental power by restraining

arbitrary and potentially vindictive legislation. Malloy v.

South Carolina, 237 U.S. 180, 183 (1915). Thus, a core

meaning of the ex post facto prohibition is a concern for

“the lack of fair notice and governmental restraint when the

legislature increases punishment beyond what was prescribed

«Be

_ the crime was consummated." Weaver, 450 U.S. at

In light of these principles, this Court in Weaver, su-

pra, said that two critical elements must be present for a

criminal or penal law to be ex post facto: "It must be retro-

spective, that is, it must apply to events occurring before

its enactment, and it must disadvantage the offender affected

by it." Id. at 29, citing Lindsey v. Washington, 301 U.S.

397, 401(1937). Further, the Court has held that no ex post

facto violation occurs if a change does not alter “substantia!

personal rights," but merely changes “modes of procedure

which do not affect matters of substance." Dobbert v.

Florida, 432 U.S. 282, 293 (1977). :

Viewed in the context of these legal parameters, it is

clear (1) that the Ninth Circuit’s analysis of the effect of

the 1981 amendment was sound, and (2) that Petitioners’

actual harm test would do violence to the principles underly-

ing the ex post facto proscriptions.

I. THE COURT OF APPEALS PROPERLY

ANALYZED THE UNCONSTITUTIONAL

EFFECT OF THE 1981 AMENDMENT.

1. In this case, the Ninth Circuit ruled that the

retrospective reduction in the frequency of parole eligibility

hearings violated the proscriptions against ex post facto

penalties. “By increasing the interval between parole

hearings, the state has denied Morales opportunities for

parole that existed under prior law, thereby making the

punishment for his crime greater than it was under the law

in effect at the time his crime was committed." Morales

v. Calif. Dept. of Corrections, 16 F.3d. 1001, 1004 (1994).

The court’s reasoning was straightforward: "Logic dictates

that because a prisoner cannot be paroled without first

having a parole hearing, a parole hearing is a requirement

for parole eligibility. .... Accordingly, any retrospective law

afhe

making parole hearings less accessible would effectively

increase the sentence and violate the ex post facto clause.

We base this conclusion on the Supreme Court’s observation

that the denial of parole is a part of a defendant’s punish-

ment. Warden v. Marrero, 417 U.S. 653, 662 (1974)." Ibid.

In rejoinder, Petitioners assert that the Ninth Circuit's

rationale is a "flawed syllogism." Petitioners’ Brief at 12.

They argue that the denial of the opportunity for parole in

this case was not substantial within the meaning of Weaver,

Petitioners’ Brief at 11-12. The essence of Petitioners’ argu-

ment is that a "positive showing of detriment to the inmate, *

id. at 19, cannot be made on the facts of this case because

"li}t is inconceivable that any reasonable person could find

that respondent would be ready for parole in the year imme-

diately following the completion of his minimum term of

imprisonment given the record in this case." Jd. at 22.

"The Board’s findings, in light of the facts before it as to

respondent’s crimes and personality, are unimpeachable.

Therefore, respondent was not detrimentally affected by

postponement because he had no ‘reasonable’ expectation

that the next annual hearings, were they to be held, would

result in the granting of parole.“ Ibid. Petitioners thereby

advocate an actual harm test which would require "a positive

showing of detriment to the inmate,” Petitioners’ Brief at

19, in order to meet the Weaver standard.

2. Petitioners’ counter-argument to the Ninth Circuit’s

rationale is unsound. Petitioners’ criticism of the Ninth

Circuit’s reasoning is directed toward that court’s employ-

ment of the concept of causation in the context of assessment

of harm. The Ninth Circuit argued, in essence, that inas-

much as a parole hearing is a condition for being paroled,

decreasing the frequency of parole hearings decreases the

chances of being paroled. If the chances of being paroled

are decreased, the inmate consequently suffers an inci case

in punishment, constituting a cognizable harm under the

Weaver test. Petitioners challenge the part of this argument

ste

which sets forth a causal relationship between a parole

hearing and the probability of an inmate’s being paroled.

They attack this as a “flawed syllogism” on the ground that

"(t}here is no inherent relation between the number of

hearings and parole because frequency of appearance does

not imply improvement of character.” Petitioners’ Brief at

21.

Petitioners further claim that the change in the law is

not substantive because in order to cancel parole hearings

that would have been held under the prior law, the parole

board must determine that there is no “reasonable expecta-

tion” that the inmate would meet parole eligibility require-

ments. /bid.

The error in Petitioners’ argument can be seen by

considering more carefully the nature of the causal connec-

tion identified by the court of appeals. This Court has de-

fined a cognizable “harm” as a disadvantage flowing from

a retrospective application of a law. Weaver, 450 U.S. at

29. More formally, such a harm can be said to occur when

a condition is introduced which brings about negative conse-

quences. One way of viewing this relationship -- the way

Petitioner’s view it -- would be to think of causality in terms

of necessary or sufficient conditions for the occurrence of

some further event -- here, the proposition that decreasing

the frequency of eligibility hearings for Mr. Morales is a

sufficient cause of a decrease in his chances of parole. But

causation in this context must be thought of in a different

sense. For example, smoking is a cause of cancer, but not

a determinative cause because some people who smoke

never contract cancer. Rather, the cause is merely

probabilistic: Among the class of individuals who smoke,

the chances of any one of them contracting cancer is higher

than it is for the class of non-smokers.

Likewise, if the new law detrimentally affects the

timing of parole for some inmates, it can be said to be a

cause of that outcome, in the probabilistic sense. It may

be the case, as Petitioners claim, that Mr. Morales would

not be affected by the change in this way. But that is not

relevant because the validity of a causal dynamic in the sense

in which the Ninth Circuit applied it only lies with reference

to a general class of individuals. This is wholly appropriate

because, as discussed below, that is the only level at which

analysis of an ex post facto challenge can be addressed

coherently. It is thus non-responsive for Petitioners to coun-

ter with an argument having to do with the degree of likeli-

hood that Morales himself will be disadvantaged by the retro-

spective law.

This is plain when one considers that the law at the

time of Morales’ conviction and sentencing provided that

he could be considered for a parole hearing at a certain

juncture. In the view of the then applicable law, those in

the class of which Morales is a member would be eligible

for parole review according to how the legislature laid out

that portion of the statute. Petitioners may argue -- even

reasonably argue -- that the possibility of Morales benefitting

from the timetable of that law is slim. The fact remains,

however, that the law structured formerly so as to counte-

nance that possibility, has now been changed in a way that

diminishes the possibility. Because the “denial of parole

is a part of a defendant’s punishment," 16 F.3d at 1004,

the later law is more onerous. As this Court has said: “The

presence or absence of an affirmative, enforceable right is

not relevant ... to the ex post facto prohibition ... Critical

to relief under the Ex Post Facto Clause is not an

individual’s right to less punishment, but the lack of fair

notice and governmental restraint ... Thus, even if a statute

merely alters pena! provisions accorded by the grace of the

legislature, it violates the Clause if it is both retrospective

and more onerous than the law in effect on the date of the

offense." Weaver, 450 U.S.at 29.

st

II. PETITIONERS’ ACTUAL HARM TEST

IS INCONSISTENT WITH THE PRINCIPLES

UNDERLYING THE BAN AGAINST

EX POST FACTO LAWS.

1. The assessment of Mr. Morales’ worthiness for

parole is obviously a proper consideration for the parole

board whenever Mr. Morales becomes eligible for parole

review. But it is manifestly not a valid factor in determining

whether the retrospective law disadvantages him. For this

would put the State in the position of attempting to quantify

empirically the likelihood of harm which might fall upon

an inmate as a predicate for assessing the constitutionality

of the retrospective law. This would be an unlawful

procedure for several reasons.

First, the task of quantifying the likelihood of harm

would occur not with enactment of the law by the legislature,

but by definition, at a time after the date of the offense. The

legislators who had authored the law would have no know!l-

edge of its actual impact in a given case. Petitioners’

proposal would thereby transform the parole board into a

quasi-legislative body whose actual iicvm assessment had

the force of prior law. That state of affairs would be no

different in practical effect than if the legislature had written

a subsequent law which expressly dictated that "Jose Ramon

Morales” should not be paroled because of a determination

that there is a “reasonable expectation" any earlier parole

eligibility would be denied. That would clearly be contrary

to “every principle of sound legislation,” THE FEDERAL -

IST, No. 44 (J. Madison). Moreover, it is well-established

that one of the purposes of the ex post facto prohibition is

to “uphold the separation of powers by confining the

legislature to penal decisions with prospective effect and

the judiciary and executive to applications of existing penal

law." Weaver, 450 U.S. at n. 10.

" *

Moreover, nothing in the text of the Ex Post Facto

Clauses suggests that a quantification of the likelihood of

harm is a threshold step in applying the ex post facto

proscriptions. The reason should be obvious: The question

of the effect of the new law on the timing of Morales’ parole

eligibility is only proper in the context of a comparison of

the two laws. It is laws themselves -- the legislative acts -

- which are the subject of the Ex Post Facto Clauses. See

Art. I, Sec. 9, cl. 3; Art. I, Sec. 10, cl. 1. Institutional

mechanisms such as parole boards, which are susceptible

to changing assessments, are plainly outside the scope of

the text. To reiterate, while the assessments of parole

boards are fitting in the forum of parole eligibility review,

they are utterly inappropriate for testing the constitutionality

of a law. Thus, the only proper approach for evaluating

an ex post facto challenge is a comparison of the texts of

the prior and subsequent laws. As this Court said in

Weaver, the proper focus of whether a retrospective statute

is more onerous “looks to the challenged provision, and not

to any special circumstances that may mitigate its effect on

the particular individual." Jd. at 33 (emphasis added). '

That a comparison of the texts of the respective laws

is the only valid procedure for testing an ex post facto

challenge, follows from the phrasing of the ex post facto

provisos ia the Constitution, which by their terms proscribe

the passage of such laws. See Art. I, Sec. 9, cl. 3; Art.

I. Sec. 10, cl. 1. It is at the level of the acts of legislatures

that the ban focuses. Concern for “the lack of fair notice

and governmental! restraint" -- limitations which go to the

1 Petitioners’ reliance upon Weaver to support its actual harm test is

misplaced. Weaver did involve a situation where the offenders would be subject

to “actual harm” by retroactive application of the sentencing guidelines to them.

But nowhere in Weaver does the Court suggest that this is the type of harm

necessary to meet its test. Indeed, Weaver implicitly endorses a comparative

analysis. See Weaver, 450 U.S. at 38 (Rehnquist, C.J., concurring in the

judgment).

nature of legislative actions -- are the core principles from

which the Weaver test derives. Miller v. Florida, 482 U.S.

423, 430 (1987). These are notions which courts can only

explore in an a priori way by comparing the texts of two

laws. An actual, quantifiable proof of harm is no more

appropriate in this context, than would be a requirement that

an inmate prove he “personally” lacked “fair notice" of the

more onerous penalty. These are judgments which can only

be made by comparing the two laws.

Furthermore, nothing in the Court’s prior pronounce-

ments concerning the meaning or the underlying principles

of the ex post facto ban suggests that a calculation of likeli-

hood of harm is a legitimate factor in the equation. Marking

bounds which will affect crucial liberty interests by resorting

to a formula of "reasonable expectations," see Petitioners’

Brief at 21, is grossly imprecise, even if it were procedurally

valid. Indeed, the fact that the “reasonable expectation"

approach is the best the California legislature could design

is, itself, strong evidence that such an assessment is danger-

ously vague.”

The circumstances of the instant case require special

scrutiny because the change in the law at issue is the plain

product of a current political climate in which harsher

sentencing and stricter parole requirements are gaining

currency. Properly effectuated, of course, that result is a

wholly legitimate exercise of the legislature. But improperly

carried out, it is a grave constitutional violation. Madison’s

characterization of ex post facto violations as “contrary to

2 The feasibility of an actual harm test may be further undermined by

the rule of lenity, which “prescribes the result when a criminal statute is

ambiguous: the more lenient interpretation must prevail." U.S. v. R.L.C.,

112 S.Ct. 1329, 1339(1992)(Scalia,J., concurring in the judgment). The very

notion that the benefit of doubt mus flow to the defendant in cases where a

statute is unclear suggests the overriding primacy of the text itself in matters

affecting the potential degree of punishment.

- ¥

the first principles of the social compact,” THE FEDERAL -

IST, No. 44, is particularly instructive on this score. The

social com_act -- as reflected in the terms of our Federal

charter -- fixes the bounds of proper governmental action

in consideration of the citizenry’s submission to legislative

enactments. For the compact to be valid, the members of

society must be able to rely upon the legislature’s respectful

adherence to those bounds. The quintessential example of

a breach of that responsibility is legislative action which

violates a fixed constitutional principle because of a change

in political wind or social sentiment. It appears that

precisely this type of breach has occurred here.

2. Ironically, Petitioners acknowledge by implication

the impropriety of their actual harm argument. Relying upon

the Ninth Circuit's ruling in Powell v. Ducharme, 998 F.2d

710 (1993), Petitioners conclude that “speculation cannot

be used to determine whether a new law prejudices an

inmate." Petitioners’ Brief at n. 7. The logical upshot of

this position is that the "reasonable expectation" assessment

of a parole board -- itself an inherently speculative endeavor

-- should not be part of the ex post facto analysis. That

analysis should focus on a comparison of the texts of the

laws in question.

Petitioners’ exclusive focus on the degree of likelihood

of parole is at odds with this Court’s seminal decision in

Lindsey v. Washington, 301 U.S. 397 (1937). In Lindsey,

the law in effect at the time the crime was committed

provided for a maximum sentence of 15 years, and a

minimum sentence of not less than six months. At the time

Lindsey was sentenced, the law had been changed to provide

for a mandatory 15-year sentence. To resolve the question

whether the later law was more onerous than the former,

the Court compared the “practical operation of the two

Statutes as applied to petitioner’s offense." Jd. at 400.

Although it was true, as the State contended, that Lindsey

might have been sentenced to fifteen years under the prior

wii

law, the Court stressed that the “ex post facto clause looks

to the standard of punishment prescribed by the statute,

rather than to the sentence actually imposed." Jd. at 401.

"[A]n increase in the possible penalty is ex post facto

regardless of the length of the sentence actually imposed,

since the measure of punishment prescribed by the statute

is more severe than that of the earlier. /bid. Thus, the

Court held that the removal of the possibility of a sentence

of less than fifteen years operated to Lindsey’s detriment

because the degree of punishment required under the new

statute was more onerous than under the previous law.

Lindsey establishes that the proper analytical context

for an ex post facto challenge is a comparison of the texts

of the prior and later laws. See also Weaver, 450 U.S. at

30 ("When a court engages in ex post facto analysis, which

is concerned solely with whether a statute assigns more

disadvantageous criminal or penal consequences to an act

than did the law in place when the act occurred, it is

irrelevant whether the statutory change touches any vested

rights....The critical question is whether the law changes

the legal consequences of acts completed before its effective

date")(emphasis added). The matter of detriment or harm

to the challenger is assessed in that context only. A

divergent procedure of the sort advocated by Petitioners,

which calls for speculative quantification of the probability

of “actual harm," is inconsistent with Lindsey and must be

rejected.

There is at least one other sense in which Petitioners’

argument for an actual harm test is analytically deficient.

At the most fundamental level, the argument appears to beg

the basic question. Once a parole board is satisfied that the

likelihood of harm has been adequately quantified so as to

rule out a concern for actual harm, the inquiry ends. This

result, however, conflicts with the "axiom[ ] that [a subse-

quent law] must be more onerous than the prior law."

Dobbert, 432 U.S. at 29. For it may be the case that a law

fe

causes actual harm but also has ameliorative qualities

outweighing the harm, and thus be constitutional; or a law

may Cause actual harm, have ameliorative qualities, but still

be more onerous when examined in toto -- and therefore be

unconstitutional. See Weaver, 450 U.S. at 38 (Rehnquist,

C.J., concurring in the judgment). Because Petitioners’ test

relying on an assessment of actual harm bypasses the

required comparison and moves immediately to a legal

conclusion -- the conclusion which is supposed to be the

result of first comparing the two laws in question -- it must

be rejected.

For these reasons, Petitioners’ criticism of the Ninth

Circuit’s holding is ill-founded. Moreover, as shown,

Petitioners’ actual harm test is inconsistent with the underly-

ing principles of the ex post facto proscription and is

analytically deficient.

~ *

CONCLUSION

Accordingly, the Court should affirm the decision of

the Ninth Circuit.

Respectfully submitted,

Robert Burke Ronald D. Maines*

Senior Attorney Jonathan L. Kvanvig

Defender Division Maines & Harshman, Chrtd.

National Legal Aid And 2300 M Street, N.W.

Defender Association Suite 900

1625 K Street., N.W., Ste. 800 Washington, D.C. 20037

Washington, D.C. 20006 (202) 223-2817

(202) 452-0620

Jonathan Smith *Counsel of Record’

Executive Director

D.C. Prisoners’ Legal

Services Project, Inc.

1400 20th Street, N.W., Ste. 117

Washington, D.C. 20036

(202) 775-0323

December 6, 1994