# Opposition Brief — Henneberry v. Sutton

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1990
- **Citation:** 498 U.S. 950

## Text

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 ..,....

*e eeeneeeneenktseneeneeeneeneeeneteeeneneenseeees?

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2757%3A2. Public record. Not legal advice.