Opposition Brief — Henneberry v. Sutton

HAND DELIVERED

OCT 4 - 1990

OFFICE OF THE CLERK

SUPREME COURT U.S.

ORIGINAL RECEIVED 4,

No. 90-385

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1990

Joseph Henneberry,

Petitioner,

v.

Richard Lee Sutton,

Respondent.

On Petition For A Writ of Certiorari

To The Court of Appeals of Muryland

~

RESPONDENT’S BRIEF IN OPPOSITION

WITOLD J. WALCZAK*

LEGAL AID BUREAU, Inc.

809 East Baltimore Street

Baltimore, MD 21202

(301) 539-0390

STUART R. COHEN

LEGAL AID BUREAU, Inc.

Candler Building, 7th Floor

714 East Pratt Street

Baltimore, MD 21202

(301) 539-5340

Attorneys for Respondent

*Counsel of record

STATEMENT OF THE CASE) ....ccccccccccccce eecee

REASONS FOR DENYING THE WRIT eeeee38sneeee3eeeeees

SUMMARY

I.

II.

Itt.

IV.

CONCLUSION

APPENDIX

SHOULD CERTIORARI BE GRANTED, THIS

CASE WILL LIKELY BE MOOT AT THE TIME

OF REVIEW @eeeeseeeeeeeeneeeeeeeenesenereee

COLLINS V, YOUNGBLOOD ENDORSES THE

REASONIi:S OF THE COURT OF APPEALS BY

REAFFIRMING THE APPLICABILITY OF THE

EX POST FACTO CLAUSE TO STATUTORY

CHANGES THAT INCREASE PUNISHMENT ..

THERE IS NO REAL CONFLICT BETWEEN

THE COURT OF APPEALS’ DECISION AND

THAT OF OTHER STATES. INDEED, THE

ONE FACTUALLY SIMILAR CASE IS

CONSISTENT WITH THIS ONE ......2--.

THE EFFECT OF THE DECISION IS

LIMITED TO A UNIQUE SETTING ..,....

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13

LS

17

la

TABLE OF AUTHORITIES

Cases

Barksdale v. Franzen, 700 F.2d 1138 (7th Cir.

Beazell_ v. Ohio, 269 U.S. 167 (1925)

1983) ..

; ’

469 U.S. 238 (1985)

’

Jacobs, 420 U.S. 128 (1975)

Burnside v. White, 760 F.2d 217 (8th Cir.

cert. denied, 474 U.S. 1022

Calder v. Bull,

1985),

eoeeeoeeneteetensensteeeeeeneeeeeeeee

3 U.S.

(3 Dall.) 386 (1798)

’ U.S. 110 S.Ct.

—/

2715 (1990)

: : P

’

866 F.2€ 339 (10th Cir. 1989) ~ .cccccccccccccccccccece

Defunis v. Odegaard, 416 U.S. 312 (1974) ........... e°

Dobhbert vy. Florida, 432 U.S. 282 (1977) cccccccscccces

Fender v. Thompson, 883 F.2d 303 (4th Cir. 1989) .....

,

’

579 F.2d 238 (3rd Cir. 1978)

eeeeseeeeenteeeeeeeeeeeeeeee

Gilmore. v. Kansas Parole Board, 243 Kan.

410, cert. denied, 488 U.S. 930 (1988)

Gluckstern v. Sutton, 319 Md. 634,

(1990)

173, 756 P.2d

eeeeoeeteenstens8eneeeee

‘

574 A.2d 898

, 277 F. Supp. 244 (D. Mass.

Greenfield v. Scafati

(three-judge court), summarily aff’d, 399 U.S. 713

(1968)

Honig v. Doe, ___

Kring v. Missouri, 107 U.S. 221 (1883)

Lerrer v. Gill, 751 F.2d 450 (1st Cir.

cert. denied, 472 U.S. 1010

Love v. Fitzharris, 460 F.2d 382 (9th Cir.

ii

1967)

U.S. 108 S.Ct. 592 (1988)

1985),

1972)

11

8,11

5,8,9,10

11,12

11

14

1, passim

10,11

7

8,10,11

11

11

Table of Authorities Continued

Mayfield v. Ford, 664 F. Supp. 1285 (D. Neb. 1987) ... 14

Miller v. Florida, 482 U.S. ___, 107 S. ct. 2446 (1987). 12

Morrissey v. Brewer, 408 U.S. 471 (1972) w.eccececcees 4

Maree wv. me, 455 U.8. 476 (2962) cccccccccccescccece 7

Parton v. Armontrout, 895 F.2d 1214 (8th Cir. 1990) .. 11

, 65 Or. App. 259,

G7O Pade BEGL CAPSS) eveecccseccesvessecsccsvccesevecces 14

Powell _ vy. MeCormack, 395 U.S. 486 (1969) ~ .cccccccccces 7

j j ‘n, 594 F.2d 170

ee ee Re ) Err rrr er Oo TTT TTTTETEeTrTTe 10,14

Sas _v. Maryland, 334 P.2@ S06 (46h Cif. 19664) cccccees 2

Shepard v. Taylor, 556 F.2d 648 (2nd Cir. 1977) ...... 11

State v. Williams, 397 So. 2d 663 (Fla. 1981) ........ 6,15

Taylor v. Lane, 191 Ill. App. 101, 546 N.E.2d 1178

(19BD) cccccccccccccccceceeceseeceeneecsessesesesececs 14

Thompson v. Utah, 170 U.S. 343 (1898) wccctecccccccces 8,11

United States ex Rel. Chaka v. Lane, 685 F. Supp. 1069

i ns nn cic ei eeekdd SS RAREROS MAAK ROR L Sb oO 040% 14

State v. Valenzuela, 144 Ariz. 43, 659 P.2d 732 (1985) . 14,16

Warden, Lewisburg Penitentiary v. Marrero, 417 U.S.

653 (1974) e*eeeeees#s83scese4s85s47ees#ees85+eeee#eeeese+5e#e4#ee2e#e34e8eee#e#7#eoese4#seoes8ee#*ee#eee#ee#e#ee#ee#ee#e 10,11

Watson v. Estelle, 859 F.2d 105 (9th Cir. 1988) ...... 11

Watson v. State, 286 Md. 291, 407 A.2d 324 (1979) .... 2

Weaver v. Graham, 450 U.S. 24 (1981) www ceneccnenees 9,10,11

iii

Table of Authorities Continued

Constitutional & Statutory Provisions

iu. S. Const. Art. Ae 810, cl. z eeeeneeeeeeeeeeeeeeeeee

U. S. Const. Art. III,

Be cl. eo @eevreeeeneeeenteeeeeee

18 Use §3551 e@eeeeoseeeerteeeeeeeeee eeeeeneteeeeeee © eoeene_eoe

18 Pe Poe §4201, et seg. eeeeoeeeeeteeeeensteeeeeeeeeeeeeeee

Md. Ann. Code Art. 31B

§1(f£)(1)(i)-(iv) (1986 Repl. Vol. &

1989 Cum. Supp.)

§2(b) (1986 Repl. Vol. & 1989 Cum. Supp.) ......

§11(b)(1) (1986 Repl. Vol. & 1989 Cum. Supp.) ..

§11(b)(2) (1986 Repl. Vol. & 1989 Cum. Supp.) ..

Md. Ann. Code Art. 41

Bae (3067) 4s...

84-506 (1986 Repl.

Vol. & 1989 Cum. Supp.) .....

§4-516(b)(4) (1986 Repl. Vol. & 1989 Cum. Supp.).

Md. State Gov’t Code Ann.

810-201, et seg. (1984 Repl. Vol. &

1990 Cum. Supp.)

iv

passim

6

16

16

ae

No. 90-385

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1990

Joseph Henneberry,

Petitioner,

v.

Richard Lee Sutton,

Respondent.

On Petition For A Writ of Certiorari

To The Court of Appeals of Maryland

RESPONDENT’S BRIEF IN OPPOSITION

The Respondent, Richard Lee Sutton, respectfully requests

that this Court deny the petition for writ of certiorari seeking

review of the judgment by the Court of Appeals of Maryland in

this case. The opinion below is reported at Gluckstern v.

Sutton, 319 Md. 634, 574 A.2d 898 (1990); Petition at 1a-43a.

STATEMENT OF THE CASE

Respondent adds the following to the Petitioner’s statement

of the case. Petition at 2-6.

Patuxent Institution is a nationally unique prison}

established to treat and rehabilitate inmates with an

“intellectual deficiency or emotional imbalance."2 Patuxent

operates independently of, and separate from, all other Maryland

state prisons, pursuant to Md. Ann. Code Art. 31B. Decisions to

release inmates from the institution have historically been based

on considerations_of specific deterrence and rehabilitation. 3

There are approximately 600 inmates in the Patuxent program and

Petitioner argued below that only 18 of them "may be affected by

1 See Watson v. State, 286 Md. 291, 407 A.2d 324, 328

(1979); Sas v. Maryland, 334 F.2d 506, 516 (4th Cir. 1964).

2 The Institution’s. statutorily defined purpose is "to

provide efficient and adequate programs and services for

treatment with the goal of rehabilitation of eligible persons."

Md. Ann. Code Art. 31B, 82(b) (1986 Repl. Vol. & 1989 Cum.

Supp.). Appendix at la. ("Appendix" refers to this brief,

whereas "Petition" denotes the Petitioner’s submission.).

"Eligible persons" are defined as individuals (1) convicted

of a crime and serving a sentence of imprisonment with at least

three years remaining; (2) having an "intellectual deficiency or

emotional imbalance"; (3) likely to respond favorably to the

Institution’s treatment programs; and (4) who can be better

rehabilitated at Patuxent than in a more traditional prison. Id.

§1(£)(1)(i)-(iv). Appendix at 2a.

3 Patuxent’s parole statutes for 1982, 1976, and 1975 are

set forth in the Petition at 52a-54a. In essence, parole

decisions have focused on two considerations: whether the

inmate’s release (1) "will not impose an unreasonable risk on

society;" and (2) "will assist in [the inmate’s] treatment and

rehabilitation." Petition at 4a, 52a & 53a.

[this] case."4

Contrary to all other Maryland state prisons, prior to 1982

Patuxent had only one level and standard of parole review for

inmates serving life sentences.> Petition at 4a, 6a-7a. Once

the Patuxent Institutional Board of Review (hereinafter "Board")

decided that an inmate had satisfied the statutory criteria, page

2, note 3, supra, he or she was paroled. There was no

gubernatorial approval requirement. Petition at 4a. The 1982

statutory change at issue did not disturb the Board’s review

process, but it added a second layer of review in the form of the

Governor’s approval. Unlike the Board’s parole assessment,

however, the Governor’s review is not statutorily channelled by

any considerations, much less specific deterrence and

rehabilitation. ®

On October 4, 1984, the Board voted 5-2 to parole Mr.

es iti Moti Di * i R ] Brief of

Petitioner in the Court of Appeals at 7-8.

5 Every other Maryland state prison operates under the

auspices of the Division of Correction (hereinafter "DOC").

Decisions on parole from the DOC are made by the Maryland Parole

Commission, which evaluates inmates from a more traditional

perspective, one that includes considerations of general

deterrence and retribution in addition to rehabilitation and

specific deterrence. Md. Ann. Code Art. 41, §4-506 (1986 Repl.

Vol. & 1989 Cum. Supp.). Appendix at 3a. The Governor has been

required to approve the parole of DOC "lifers" since 1953. Md.

Ann. Code Art. 41, $124 (1957); Md. Ann. Code Art. 41, §4-

516(b)(4) (1986 Repl. Vol. & 1989 Cum. Supp.); Petition at 4a-5a.

6 The relevant statutory language read in 1982, and still

reads today, as follows: "An eligible person who is serving a

term of life imprisonment shall only be paroled with the approval

of the Governor." 1982 Md. Laws, Ch. 6; Md. Ann. Code Art. 31B.

811(b)(2). Petition at 8a.

Sutton. Record Extract 18 (hereinafter "E"). The decision was

based in part on a psychological evaluation which concluded that

Sutton’s "characterological problems ... had been modified" and

that "all test data show[] no indication of repressed rage or

overt tendencies towards violence." Jd. If Patuxent had applied

the statutory parole scheme in effect on the date of Sutton’s

offenses, he would have been released on parole in October, 1984.

Petition at 36a. However, because of the intervening 1982

statutory change at issue in this case, Patuxent did not release

Sutton while awaiting a decision by the Governor. Almost a year

later, on September 4, 1985, without having interviewed or met

Sutton, the Governor denied the parole without any substantive

explanation. E.23.

Pursuant to the Court of Appeals’ decision and the Circuit

Court’s order, the Board paroled Mr. Sutton on August 8, 1990.

Petition at 6 n.3. Patuxent did not release Mr. Sutton, holding

him on a parole retake warrant pending formal parole revocation

proceedings. 7”

On August 30, 1990, the Board, after a hearing, revoked Mr.

Sutton’s parole for reasons entirely unrelated to the issue

presented herein. An appeal of the revocation decision has been

noted pursuant to Maryland’s Administrative Procedure Act.8

Furthermore, on September 27, 1990, the Board voted not to

? See Morrissey v. Brewer, 408 U.S. 471 (1972).

8 Md. State Gov’t Code Ann. 810-201, et seg. (1984 Repl.

Vol. & 1990 Cum. Supp.).

reinstate Mr. Sutton on work release and recommended that he

again appear before the Board in October, 1990 to determine

whether he is still an "eligible person." Should the Board vote

to expel him from the program, Mr. Sutton would no longer be

subject to Patuxent’s jurisdiction, including the statutory

provision at issue in this case. He would be returned to the

custody of the Division of Correction within 90 days, where any

future parole would be subject to the statutes and regulations of

the Maryland Parole Commission, Md. Ann. Code Art. 31B, $11(b)(1)

(1986 Repl. Vol. & 1989 Cum. Supp.), Appendix at 4a-5a, which

have included a gubernatorial approval requirement since long

before Sutton’s offenses in 1974.2 See page 3, note 5, supra.

REASONS FOR DENYING THE WRIT

SUMMARY

This case will likely be moot in the near future because the

Board has revoked Mr. Sutton’s parole and has commenced

proceedings to expel him from the program. Even if it is not,

the Court of Appeals’ decision is a sensible and fair application

of relevant ex post facto principles. This Court’s subsequent

opinion in Collins v. Youngblood?® endorses the legal reasoning

9 Respondent’s counsel will notify the Court without delay

if and when Mr. Sutton’s status changes. Board of License

° , 469 U.S. 238, 240 (1985)

(per curiam) (citation omitted).

110 S.Ct. 2715 (1990).

10 U.S.

and the outcome of the decision below by reaffirming the

applicability of the Ex Post Facto Clause to statutory changes

that increase punishment. There is no direct conflict among the

courts of the several states on the issue. To the contrary, the

one truly similar case, State v. Williams,11 is in accord.

Finally, Petitioner’s assertion that the decision "discourag[es]

innovation" and will "bar[] states from changing parole

procedures," Petition at 7, dramatically overstates the

importance of the case.

I. SHOULD CERTIORARI BE GRANTED, THIS CASE WILL LIKELY BE

MOOT AT THE TIME OF REVIEW.

Mr. Sutton’s revocation from parole leaves in doubt the

justiciability of this case. U.S. Const. Art. III, a wae

His petition for a writ of habeas corpus sought only injunctive

relief, namely, his release on parole. E.10.12 The requested

relief was granted on August 8, 1990 when the Board ordered Mr.

Sutton’s parole. Petition at 6 n.3.

In proceedings independent of this case, the Board revoked

Sutton’s parole on August 30, 1990. So although the case would

not have been moot had Sutton remained on parole, jd., the

subsequent revocation means that the "issues presented are no

longer live [and] the parties lack a legally cognizable interest

11 397 So. 2d 663 (Fla. 1981).

12 There is no damage claim, E.7-10, nor has class action

status been requested or granted.

in the outcome." Powel] _v. McCormack, 395 U.S. 486, 496 (1969).

Whether or not the Governor is permitted to veto Sutton’s parole

is immaterial since Sutton is no longer under consideration for

parole.13 The Board could again recommend Sutton for parole in

the future, but the fact that they are recommending that he be

found "non-eligible" for the program indicates their current

belief that he is not likely to be rehabilitated. See page 2,

note 2, supra (definition of "eligible person"). This "Court has

never held that a mere physical or theoretical possibility [of

recurrence] was sufficient to satisfy the [capable of repetition

yet evading review] test...." Murphy v. Hunt, 455 U.S. 478, 482

(1982).

If Mr. Sutton is determined to be a "non-eligible" person

and is returned to the custody of the DOC, he will no longer be

subject to the statute at issue, and the case will be moot

because "in no event will the status [of Sutton] now be affectec

by any view this Court might express on the merits of this

controversy." Defunis v. Odegaard, 416 U.S. 312, 316 (1974).

See Honig v. Doe, _.__ ~iU.S. ___, —__, 108 S.Ct. 592, 601 (1988)

(respondent’s claim moot because no longer entitled to

protections of statute at issue); Board of Schoo] Comm’rs of City

of Indianapolis v. Jacobs, 420 U.S. 128, 129 (1975) (graduation

of plaintiffs who challenged school rule moots claims).

13 Resolution of Mr. Sutton’s appeal of the parole

revocation decision will take several months. It is an

intangible that further obscures the justiciability of the case.

|

II. COLLINS V. YOUNGBLOOD ENDORSES THE REASONING OF THE

COURT OF APPEALS BY REAFFIRMING THE APPLICABILITY OF

THE EX POST FACTO CLAUSE TO STATUTORY CHANGES THAT

INCREASE PUNISHMENT.

The Court of Appeals’ decision is fully consistent with this

Court’s subsequent opinion in Collins v. Youngblood, despite the

fact that Youngblood overruled two cases cited by the court

below.

The issue in Youngblood was whether changes in a post

conviction remedy were subject to the Ex Post Facto Clause. In

deciding that they were not, the Court clarified the scope of the

Clause. Language in Kring v. Missouri, 107 U.S. 221, 228-229

(1883) (any change which "alters the situation of a party to his

disadvantage"), and Thompson v. Utah, 170 U.S. 343, 352 (1898)

(any change that deprives defendant of "a substantial right"),

had "caused confusion in state and lower federal courts about the

scope of the Ex Post Facto Clause...", Youngblood, _.__~U.S. at

110 S. Ct. at 2722 (emphasis added), and had resulted in an

unjustified "enlargement" of the Clause. Jd. at » 130 8. Ct.

at 2721. The Court reiterated that its "early opinions"

established "an exclusive definition of ex post facto laws." Id.

at 110 S. Ct. at 2719 & 2721 ("The prohibition which may not

be evaded is the one defined by the Calder categories.").

Accordingly, the four categories set out in Calder vy. Bull, 3

U.S. (3 Dall.) 386 (1798),14 and restated in Beazel] v. Ohio, 269

14 The four Calder categories are:

lst. Every law that makes an action done

U.S. 167, 169-70 (1925), define the scope of the clause.

Youngblood, _.._ ~iU.S. at ___, 110 S. Ct. at 2720 & 2721.

Younghleed reaffirms the longstanding proposition that the

Ex Post Facto Clause prevents legislatures from retroactively

increasing the punishment for criminal acts. U.S. at __,

110 S.Ct. at 2719-20. To the extent statutory changes make

parole more difficult to obtain, they also make more burdensome

the punishment for the crime and increase the effective sentence

by "the reduced opportunity to shorten ... time in prison...."

Weaver v. Graham, 450 U.S. 24, 33-34 (1981).

The Supreme Court has expressly recognized the applicability

of the Ex Post Facto Clause to good time credits, which reduce

the amount of time inmates must actually spend in prison. Weaver

vy. Graham, supra. The Court stated that such credits were "one

determinant of ... a prison term -- and [the] effective sentence

is altered once this determinant is changed." 450 U.S. at 32 &

34. Weaver specifically relied on a case holding that a statute

delaying parole eligibility violated the Ex Post Facto Clause,

before the passing of the law, and which was

innecent when done, criminal; and punishes

such action. 2d. Every law that aggravates a

crime, or makes it greater than it was, when

committed. 3d. Every law that changes the

punishment, and inflicts a greater

, than the law annexed to the

crime, when committed. 4th. Every law that

alters the legal rules of evidence, and

receives less, or different, testimony, than

the law required at the time of the

commission of the offence, in order to

convict the offender.

3 U.S. (3 Dall.) at 390 (emphasis in original).

9

id. at 31-32, citing Rodriguez v. United States Parole Comm’n,

594 F.2d 170 (7th Cir. 1979), a fact noted in the Court of

Appeals’ opinion. Petition at 34a.15

Weaver also cited with approval several earlier Supreme

Court cases that implicitly or in dicta affirmed application of

the Ex Post Facto Clause to parole. 450 U.S. at 32. In

Greenfield v. Scafati, 277 F. Supp. 244 (D. Mass. 1967) (three-

judge court), summarily aff’d, 399 U.S. 713 (1968), Massachusetts

had changed its law to permit forfeiture of good time deductions

for a violation of parole. In holding unconstitutional the

retrospective application of the law, the district court stated

that there was "no distinction between depriving a prisoner of

the right to earn good conduct deductions and the right to

qualify for, and hence earn, parole." 277 F. Supp. at 646. In

Warden, Lewisburg Penitentiary v. Marrero, the Court stated in

dicta that:

a repealer of parole eligibility previously

available to imprisoned offenders would

clearly present the serious question under

the ex post facto clause ... of whether it

imposed a “greater or more severe punishment

than was prescribed by the law at the time of

the ... offence...."

417 U.S. 653, 663 (1974) (emphasis in original) (citations

15 petitioner contends that the Court of Appeals’ reliance

on Kring vy. Missouri, 107 U.S. 221, 2 S.Ct. 443 (1883), which was

overruled by Youngblood somehow renders the decision infirm. The

reference to Kring by the court below is preliminary language in

the introductory section of the discussion. 3la-32a. Excision of

it does not materially affect the disposition. The Court of

Appeals relied on Weaver vy. Graham and numerous other cases for

the proposition that retrospectively applied changes in parole

are subject to ex post facto scrutiny. Petition at 32a-36a.

10

omitted) .16

Weaver also spoke generally of "a prisoner’s eligibility for

reduced imprisonment” as a significant factor in defendants’

decisions to plea bargain and judges’ sentence calculations. 450

U.S. at 32. This supports the proposition that good time credits

and parole are a determinant of a defendant’s punishment. See

Marrero, 417 U.S. at 658.

Federal appeals courts have unvaryingly held applicable the

Ex Post Facto Clause to parole, following Weaver, Greenfield and

Marrero.}7

Given the uniform application of the Ex Post Facto Clause to

parole changes, the Court of Appeals’ decision is well within the

parameters of pre-Youngblood case law, the overruling of Kring

and Thompson notwithstanding. Since changes in parole directly

impact on "punishment," squarely falling within the third of the

Calder categories, the Court of Appeals’ decision also is in line

with Youngblood.

1° Marrero also cites Love v. Fitzharris, 460 F.2d 382 (9th

Cir. 1972), where the court of appeals held unconstitutional the

agency’s new statutory interpretation that delayed the offender’s

parole eligibility. 417 U.S. at 663.

17 See, e.g., Parton v. Armontrout, 895 F.2d 1214 (8th Cir.

’

1990); Fender vy. Thompson, 883 F.2d 303 (4th Cir. 1989); Devine

’ , 866 F.2d 339 (10th Cir.

1989); Watson v. Estelle, 859 F.2d 105 (9th Cir. 1988); Burnside

vy. White, 760 F.2d 217, 220 (8th Cir. 1985), cert. denied, 474

U.S. 1022; Lerner vy. Gill, 751 F.2d 450 (1st Cir. 1985), cert.

denied, 472 U.S. 1010; United States Ex Rel. Graham v. United

States Parole Comm’n, 629 F.2d 1040, 1043 (5th Cir. 1980);

‘n, 594 F.2d 170 (7th Cir.

1979); Gheraghty v. United States Parole Comm’n, 579 F.2d 238,

265 (3rd Cir. 1978); Shepard v. Taylor, 556 F.2d 648, 654 (2nd

Cir. 1977).

11

The focus of the case, therefore, shifts to whether the

gubernatorial approval requirement "disadvantaged" Sutton.

Miller v. Florida, 482 U.S. ___, ___, 107 S. Ct. 2446, 2451

(1987).28 Again, Youngblood implicitly affirms and strengthens

the decision below. Chief Justice Rehnquist, writing for the

Court in Youngblood, stated as follows:

[S]imply by labeling a law "procedural," a

legislature does not thereby immunize it from

scrutiny under the Ex Post Facto Clause. ...

Subtle ex post facto violations are no more

permissible than overt ones.

U.S. at , 110 S. Ct. at 2721 (citation omitted).

In this case, the Court of Appeals determined that the 1982

law disadvantaged Sutton, not only by making parole objectively

more difficult to obtain, but also because it had "in fact become

more difficult" since the Governor had vetoed the Board’s parole

recommendation. Petition at 36a.19 The Governor’s denial of

18 It is beyond dispute that Patuxent has applied the law

retrospectively, Petition at 8a-9a, which satisfies the first

Miller criterion.

19 The 1982 law imposes a more onerous burden on inmates by

expanding the reasons for which parole can be denied. The

Board’s discretion is channelled by the Institution’s enabling

statute, which requires it to consider the inmate’s risk to

society and the extent of his rehabilitation. Md. Ann. Code

Article 31B, 811(b)(2) (1986 Repl. Vol.); getataen at 52a, 53a,

54a. Conversely, Md. Ann. Code Art. 31B, $11(b)(2) legislates no

standards or guidelines circumscribing the Governor’s decision.

The absence of standards is, a fortiori, a different set of

criteria than that binding Patuxent’s Board. Moreover, as the

State’s highest elected official, the Governor is susceptible to

shifting political winds and the pressures of public opinion in a

way the parole board is not. The fact that the Governor’s

decision is made without any personal interaction with the inmate

lends credence to the proposition that he considers factors other

than whether the inmate has been rehabilitated and is no longer a

threat to public safety.

12

parole to twelve inmates who were approved by the Board?° is

evidence that the standards applied by the Governor are more

onerous than those of the Board. Unlike in Dobbert v. Florida,21

where the change in law could result in a life sentence rather

than the death penalty for the defendant, see discussion at page

14, note 22, infra, here the Governor is not permitted to parole

individuals whom the Board does not first approve.

Under the circumstances, the disadvantage to Sutton is

substantially more than "ge minimis," having kept Sutton

incarcerated for almost six years after the Board’s decision to

parole hin.

III. THERE IS NO REAL CONFLICT BETWEEN THE COURT OF APPEALS’

DECISION AND THAT OF OTHER STATES. INDEED, THE ONE

FACTUALLY SIMILAR CASE IS CONSISTENT WITH THIS ONE.

The allegedly conflicting decisions cited by Petitioner are

distinguishable on their facts. These cases, in the Petitioner’s

words, changed the “identity and/or size of the parole or release

decision maker." Petition at 12. Not one of the cases added a

new and second level of review, as occurred herein. Accordingly,

these cases are distinguishable on the ground that there is no

evidence of disadvantage, and the respective courts’ holdings are

20 Emergency Motion of the State of Maryland For Stay of

, Case No.: A-19

(filed July 5, 1990) at 5 n.5. The application was denied on

July 9, 1990.

21 432 U.S. 282 (1977).

13

premised precisely on this point.?22

In cases where the composition or size of a decision-making

body is altered, there is no change in the standard or measure

for getting parole. Furthermore, under those circumstances it is

virtually impossible to demonstrate that the former decision-

maker would have acted more benevolently toward the prisoner than

the existing board. Here, where a second reviewing authority is

22 The death penalty law changes at issue in Dobbert v.

Florida, 432 U.S. 282, 293 (1977), were not disadvantageous,

i.e., "no change in the quantum of punishment attached to the

crime." Jd. at 294. On the contrary, the Dobbert Court

determined that the net effect of the changes was "ameliorative."

Id. at 296. See also id. at 303-304 (Burger, C.J., concurring).

The Court held that the law was passed with the intent to

provide, and in effect did furnish, more judicial protection for

defendants in capital cases by making it more difficult to issue

death penalties. Jd. at 295. The changes in the instant case

cannot be characterized as ameliorative, nor were they intended

to improve the opportunities for release from Patuxent. The

Court of Appeals distinguished Dobbert on these grounds and on

the basis that in Dobbert "the trial judge was substituted for

the jury as the sole decision maker," whereas the gubernatorial

approval provision is an "additional requirement." Petition at

37a-38a.

The Petitioner’s other citations are no more apposite.

State v. Valenzuela, 144 Ariz. 43, 659 P.2d 732 (1985) (change

substituting commissioner of corrections for parole board to

determine good time forfeitures not disadvantageous); Perkey v.

, 65 Or. App. 259, 670 P.2d 1061, 1063

(1983) ("[T]he change has not prejudiced him in any way....");

, 664 F. Supp. 1285, 1289 (D. Neb. 1987)

("([Njothing in the statute gives any indication that a patient’s

commitment will be increased. In fact, it could just as easily

be shortened...."); Taylor v. Lane, 191 Ill. App. 101, 546 N.E.2d

1178, 1180-81 (1989) ("[I]ncrease in number of Board members may

actually increase petitioner’s chances for parole."); United

, 685 F. Supp. 1069, 1072 (N.D. Ill.

1988) ("merely codifies prior law" and therefore is not

disadvantageous); Gilmore. v. Kansas Parole Board, 243 Kan. 173,

756 P.2d 410, 415-16, cert. denied, 488 U.S. 930 (1988) (increase

in percentage of votes needed to get parole not unconstitutional

because internal administrative policy decision not fixed by

legislature).

14

added to, and given veto power over, an existing one,

disadvantage is demonstrable. But for the new law introducing

the Governor into the parole decision-making scheme, Mr. Sutton

would have been released on parole in 1984. The statutory change

not only imposes a higher standard for attaining parole, but also

actually disadvantaged Sutton.

In one case that is factually similar to this one, State v.

Williams, 397 So. 2d 663 (Fla. 1981), the Florida Supreme Court

held exactly as did the Court of Appeals of Maryland. In

Williams, subsequent to the commission of the offense but prior

to trial and sentencing, Florida’s legislature passed a law

permitting the trial courts to retain jurisdiction for the first

one third of the sentence, which allowed the judges to veto

paroles. Jd. at 664. In holding unconstitutional the

retrospective application of the law, the Florida Supreme Court

stated that "[the change] in effect imposes an additional

requirement before a prisoner can be paroled: he must obtain the

approval of both the parole commission and the trial court, as

compared to just the commission’s approval as it was under the

prior law," jd., and therefore the "consequences [of the law]

have a disadvantageous effect in that the prisoners’ sentences

are enhanced." Jd. at 665.

IV. THE EFFECT OF THE DECISION IS LIMITED TO A UNIQUE

SETTING.

The decision affects only a handful of Patuxent inmates,

estimated by Petitioner to be 18. See pages 2-3, supra.

Moreover, Petitioner has not directed this Court to other states

15

with similar parole configurations facing ex post facto

challenges, and respondent’s counsel is not aware of any. The

case is limited to the Patuxent Institution.

Petitioner’s apocalyptic argument that the decision will

prevent states from improving their criminal justice systems and

"discourage[] innovation" (pages 6-7) is belied not only by the

Ex Post Facto Clause itself, but by recent legislation in

Maryland and elsewhere. As the constitutional provision applies

only to retrospective changes, new parole and criminal justice

measures can always be applied prospectively without running

afoul of the Article I proscription. Indeed, the federal

government and many states have, for ex post facto reasons, set

up different parole and gain time policies depending on the date

of an inmate’s offense. 23

23 upon deciding to eliminate parole in the federal systen,

Congress enacted an elaborate scheme to safeguard the parole

opportunities of inmates whose offenses occurred before repeal of

the law. See 18 U.S.C. 83551 (historical note)(1985);_ Pub. L.

No. 98-473, 98 Stat. 1988 (1984) (repealing 18 U.S.C. 84201, et

seq. (1990 Cum. Supp.)). In Maryland, the Parole Commission has

three separate sets of parole standards, depending on the date of

an inmates’s offense. Maryland Parole Commission Guidelines 2-7,

2-7A, and 2-1. See also Barksdale v. Franzen, 700 F.2d 1138,

1040-41, n.2 (7th Cir. 1983)(Illinois good time policy); State v.

Valenzuela, 695 P.2d 732 (Ariz. 1985) (Arizona good time policy).

16

CONCLUSION

For the foregoing reasons, Respondent respectfully requests

that this Court deny the petition for writ of certiorari.

Respectfully submitted,

WITOLD J. WALCZAK*

LEGAL AID BUREAU, Inc.

809 East Baltimore Street

Baltimore, MD 21202

(301) 539-0390

STUART R. COHEN

LEGAL AID BUREAU, Inc.

Candler Building, 7th Floor

714 East Pratt Street

Baltimore, MD 21202

(301) 539-5340

Attorneys for Respondent

*Counsel of record

17

Md. Ann. Code Art.

(1986 Repl. Vol. &

Md. Ann. Code Art.

(1986 Repl. Vol. &

Md. Ann. Code Art.

(1986 Repl. Vol. &

Md. Ann. Code Art.

(1986 Repl. Vol. &

List of Appendices

Page

31B, 82(b)

1989 Cum. SUPP.) ccccccccccscccccccces la

31B, 81(f£)(1)(i)-(iv)

1989 Cum. Supp.) «sss. ccoccccccce coe 2a

41, 84-506

1989 Cum. Supp.) cccccccccccccccccces 3a

31B, §11(b)(1)

1989 Cum. Supp.) cccccccccccce cocccee 48-58

MD. ANN CODE ART. 31B, section 2 (1986 Repl. Vol. & 1989 Cum. Supp.).

§ 2. Institution created and continued; purpose.

(a) The Patuxent_Institution is created and continued as part of the Depart-

ment.

(b) The purpose of the Institution is to provide efficient and adequate pro-

grams and services for treatment with the goal of rehabilitation of eligible

persons. This shall include a range of program alternatives indicated by the

current state of knowiedge to be appropriate and effective for the population

being served. As an integral part of the program an effective research and

development effort should be established and maintained to evaluate and

recommend improvements on an on-going basis. (1977, ch. 678, $§ 6, 7; 1989,

chs. 6, 7.)

Effect of amendment. — Chapters 6 and 7,

both approved Mar. 20, 1989, and effective

from date of passage, made identical changes

Each in (b), substituted “treatment with the

gou! of” for “the treatment and” in the first

sentence

la

MD. ANN. CODE ART. 31B, section 1 (1986 Repl, Vol, & 1989 Cum. Supp,),

§ 1. Definitions.

(a) In this article, the following words have the meanings indicated unless

the context clearly requires otherwise.

(b) “Board of review” means the institutional board of review, created by

§ 6.

(c) “Commissioner” means the Commissioner of Correction.

(d) “Department” means the Department of Public Safety and Correctional

Services.

(e) “Director” means the director of Patuxent Institution.

(f) (1) “Eligible person” means a person who (i) has been convicted of a

crime and is serving a sentence of imprisonment with at least three years

remaining on it, (ii) has an intellectual deficiency or emotional unbalance,

(iii) is likely to respond favorably to the programs and services provided at

Patuxent Institution, (iv) can be better rehabilitated through those programs

and services than by other incarceration, and (v) meets the eligibility criteria

established by the Secretary under § 8 of this article.

(2) “Eligible person” does not include a person who (i) is serving 2 or more

sentences of imprisonment for life under the provisions of Article 27, § 412 of

the Code, (ii) is serving 1 or more sentences of imprisonment for life when a

court or jury has found, beyond a reasonable doubt, that one or more aggra-

vating circumstances existed under the provisions of Article 27, § 413 of the

Code, or (iii) has been con-ricted of murder in the first degree, rape in the first

degree, or a sexual offense in the first degree, unless the sentencing judge, at

the time of sentencing or in the exercise of the judge’s revisory power under

the Maryland Rules, recommends that the person be referred to the Institu-

tion for evaluation.

(g) “Evaluation team” means a team of at least three professiona! em-

ployees of the Institution, one of whom shal! be a social worker or behavioral

scientist, one a psychologist, and one a psychiatrist.

(h) “Institution” means the Patuxent Institution.

(i) “Secretary” means the Secretary of Public Safety and Correctional Ser-

vices.

()) “Victim” means:

(1) A person who suffers personal physica) injury or death as a direct result

of a crime; or

(2) If the victim is deceased, a designated family member of the victim.

(1987, ch. 164; 1989, chs. 6, 7.)

Effect of amendment. — The 1987 amend-

ment, effective July 1, 1987, in subsection (g),

designated the provisions of the subsection as

paragraph (1), redesignated former items (1),

(2), (3), and (4) as present items (i), (11), (in),

and (iv) therein, and added paragrap> (2)

Chapters 6 and 7, both approved Mar. 20,

1989, and effective from date of passage, made

identical changes. Each deleted former (b) and

redesignated the remaining subsections ac-

cordingly, in (f, deleted “and” preceding “(iv)”

in (1) and “or” preceding “(11)” in (2) and added

(v) on (1) and (iii) am (2); and added |)

MD. ANN. CODE ART. 41, section 4-506 (1986 Repl. Vol. & 1989 Cum. Supp,).

§ 4-506. Matters to be considered at hearing.

Each hearing examiner and Commission member determining if an inmate

is suitable for release on parole shall consider:

(1) The circumstances surrounding the crime;

(2) The physical, mental, and moral qualification of the inmate eligible for

parole;

(3) The progress of the inmate during his confinement, including the aca-

demic progress of the inmate in the mandatory education program required in

§ 22-102 of the Education Article;

(4) Whether or not there is reasonable probability that the inmate, if re-

leased on parole, will remain at liberty without violating the law;

(5) Whether’‘or not release on parole of the inmate is compatible with the

welfare of society;

(6) An updated victim impact statement or recommendation prepared un-

der § 4-504 (d) of this subtitle; and

(7) Any recommendation made by the sentencing judge at the time of sen-

tencing. (1976, ch. 540, §§ 1, 3; 1986, ch. 5, § 4; 1987, ch. 11, § 2; ch. 621;

1988, ch. 6, § 1; ch. 486.)

MD. ANN. CODE ART. 31B, section 11 (1986 Repl. Vol. & 1989 Cum. Supp.).

§ 11. Release from Institution.

(a) Upon expiration of sentence. — A person confined at the Institution

shal! be released upon expiration of his sentence in the same manner and

subject to the same conditions as if he were being released from a correctional

facility. The director shall notify the Commissioner 30 days prior to the re-

lease.

(b) Action by board of review prior to expiration of sentence. — After trans-

fer of a person to the Institution for treatment as an eligible person but prior

to the expiration of the person's sentence, the board of review, upon review of

the person may take the following action:

(1) If the board of review concludes that the person is no longer an eligible

person but should remain confined until released on parole in accordance with

norma! Parole Commission standards or expiration of his sentence or the

inmate requests a transfer in writing, the director shall notify the Commis-

sioner and send him a copy of the evaluation team’s report. Within 90 days

after that notice, the person shall be delivered to the appropriate correctional

facility designated by the Commissioner. This transfer shall not affect any

right to parole consideration that the person may then have.

(2) If the board of review concludes that (i) it will not impose an unreason-

able risk on society; and (ii) it will assist in the treatment and rehabilitation

of the eligible person, it may grant a parole from the Institution for a period

not exceeding one year.

(3) An eligible person who is serving a term of life imprisonment shall only

be paroled with the approval of the Governor.

(4) Except as provided in paragraph (5) of this subsection, a person who has

been sentenced to life imprisonment for rape in the first degree, a sexual

offense in the first degree, or murder in the first degree is not eligible for

parole until the person has served 15 ears or the equal of 15 years when

considering allowances for diminution of the period of confinement provided

for in Article 27, §§ 638C and 700 of the Code.

(5) A person who has been sentenced to life imprisonment as a result of a

proceeding under Article 27, § 413 of the Code is not eligible for parole until

the person has served 25 years or the equal of 25 years when considering the

allowances for diminution of the period of confinement provided for in Article

27, §& 638C and 700 of the Code.

(6) The board of review may attach reasonable conditions to the parole, at

any time make reasonable and appropriate modifications of these conditions,

and revoke the parole if it finds that the person has violated a condition of the

parole. The board of review shal! review the person's status prior to the expi-

ration of the parole period, and may extend the parole.

CONT'D

4a

eee SSS

CONT'D

MD. ANN. CODE ART. 31B, section ll.

(c) Notice of hearing and decision to victim; comment. — (1) The board of

review shall provide by mail written notice of an eligible person's parole

hearing to the victim.

(2) The board of review shall give the victim a reasonable opportunity to

comment on the parole in writing before the board decides whether to grant

parole to an eligible person.

(3) The board of review shall promptly notify the victim of the decision of

the board of review regarding parole.

(4) The victim may designate, in writing to the board of review, the name

and address of a representative, who is — resident of the State, to receive

notice for the victim.

(5) The board of review shal! delete the victim's address and phone number

before examination of any document by the eligible person or the eligible

person's representative.

(d) Approval by Secretary. — The board of review may not release an eligi-

ble person on parole until the parole decision has been approved by the Secre-

tary.

(e) Completion of three years oa parole. — If a person has successfully

completed three years on parole without violation, and the board of review

concludes that he is safe to be permanently released, it may, through the

director, petition the court that last sentenced the person to (1) suspend the

person's remaining sentence and terminate parole supervision upon the condi-

tions the court deems appropriate or (2) vacate the person's remaining sen-

tence. Notice of this petition shall be served upon the victim and the State's

Attorney that last prosecuted the person, and the State's Attorney shal! be a

party to the proceeding. After a hearing, the court may either grant or deny

the relief requested in the petition. (1977, ch. 678, §§ 6, 7; 1982, ch. 588; 1988,

ch. 438; 1989, chs. 6, 7.)

Effect of amendment. — The 1988 amend-

ment, effective July 1, 1988, reenacted the sec-

tion without change.

Chapters 6 and 7, both approved Mar. 20,

1989, and effective from date of passage, made

identical changes Each designated the former

second sentence of (b) (2) as present (b) (3), in-

serted present (b) (4) and (b) (5), ted the

former third and fourth sentences of (b) (2) as

present (b) (6); inserted present (c) and (d); re-

designated former (c) as present (e); in (b), sub-

stituted “after” for “at any time after” in the

introductory language and “may” for “shal!” in

(2), and in (e), inserted “victim and the” in the

second sentence.

Sa

SST ° i - md Rew ** oo

HAND.DELIVERED |

LEGAL AID BUREAU, INCORPORATED

PRISONER ASSISTANCE PROJECT OFFICE OF THE CLERK

809 E BALTIMORE STREET SUPREME COURT, U.S.

BALTIMORE, MARYLAND 21202 =

(301) $39-0390

JAMES J NOLAN JR PRESIDENT pach

October 4, 1990

Joseph F. Spaniol, Jr., Clerk

Supreme Court of the United States

Supreme Court Building

1 First Street, N.E.

Washington, D.C. 20543

RE: Joseph Henneberry v. Richard Lee Sutton

October Term, 199C; No.: 90-385

Dear Mr. Spaniol:

I enclose for filing one copy of Respondent’s Brief In

Opposition, a Motion for Leave to Proceed In Forma Pauperis and

supporting Affidavit, and a Rule 29 Certificate of Service.

cc: Evelyn 0. Cannon, Esq.

;

2

a