Petition for Writ of Certiorari — Gillis, Superintendent, State Correctional Institution at Coal Township v. Hollawell and Pennsylvania Board of Probation and Parole v. Mickens-Thomas

\) Supreme @eurt, U.S

\\ FILED

NoS 24% JUL | 8 2003

- a

In the Supreme Court of the United States

FRANK D. GILLIS, ET AL.,

Petitioners

Vv,

JOHN HOLLAWELL, ET AL.,

Respondents

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

PETITION FOR WRIT OF-CERTIORARI

D. MICHAEL FISHER

Attorney General

Commonwealth of Pennsylvania

JOHN G. KNORR, III

Chief Deputy Attorney General

Counsel of Record

CALVIN R. KOONS

Senior Deputy Attorney General

Office of Attorney General

15th Floor, Strawberry Sq.

Harrisburg, PA 17120

(717) 787-1144

QUESTIONS PRESENTED

1. Whether the internal policies and practices of a

parole agency, which do not bind that agency and may be

changed or disregarded whenever it wishes, are “laws”

which may not be altered without triggering the

protections of the Ex Post Facto Clause?

2. Whether a change to the “aspirational introductory

provision” of a parole statute, which leaves the parole

board, as before, with virtually unreviewable discretion to

grant or deny parole, violates the Ex Post Facto Clause by

increasing the punishment for previously committed

offenses?

PARTIES TO THE PROCEEDING

This petition seeks review of two judgments, involving

identical or closely related questions, on a writ of

certiorari to the same court. See Sup. Ct. R. 12.4. The two

judgments were entered, respectively, in Hollawell v.

Gillis, et al., No. 01-1063 (3d Cir.), and in Mickens-Thomas

v. Vaughn, et al., No. 02-2047 (3d Cir.).

In the Hollaweil case, the petitioners are Frank D.

Gillis, the Superintendent of the State Correctional

Institution at Coal Township, Pennsylvania; and

Benjamin A. Martinez, the Acting Chairman of the

Pennsylvania Board of Probation and Parole.’ The

respondent is John Hollawell.

In the Mickens-Thomas case, the petitioner is the

Pennsylvania Board of Probation and Parole. The

respondent is Louis Mickens-Thomas.

'Mr. Martinez has been substituted for William Ward, his

predecessor in office, pursuant to Sup. Ct. R. 35.3.

a.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............0-000005-

PARTIES TO THE PROCEEDING ................ ii

TABLE OF AUTHORITIES ................-0-5. v

En ica ein dn uascvsves 1

STATEMENT OF JURISDICTION ................ 1

CONSTITUTIONAL AND STATUTORY PROVISIONS

ie es. 1

STATEMENT OF THECASE ................... 3

REASONS FOR GRANTING THE WRIT........... 18

I. The Court of Appeals’ Holding, That the Board’s

Internal Policies Are “Laws” for Ex Post Facto

Purposes, Conflicts with the Decisions of Most of

the Courts Which Have Considered Similar

be 0 6 6G oe ees eee ate a ews 19

II. The Court of Appeals’ Decision Conflicts with

Decisions of the Supreme Court of Pennsylvania,

on a Matter Directly Affecting the Administration

of Pennsylvania’s Parole System ............. 23

CAG LCS ee ed wee te ve kee weeeens 26

APPENDIX

Hollawell v. Gillis

Court of Appeals Opinion ..............006. la

-iii-

ee ee eee eee eee 17a

Mickens-Thomas v. Vaughn

Court of Appenie Ontetiom .... cc cece cece. 23a

ee PR EEE eT 6la

Court of Appeals Order on Rehearing ........ 8la

Record Excerpts ,

1993-95 Biennial Report (Ex. P-13)....... 83a

1995-97 Biennial Report (Ex. P-14)....... 83a

Guidelines: A Statement on Policy, Procedure

and Philosophy (Ex. P-15) ........... 84a

Guidelines: A Special Report (Ex. P-16) .... 85a

TABLE OF AUTHORITIES

Cases Page

Akins v. Snow,

922 P.2d:1556 (1 lth Cir. 1991). ... 2c esccceee 19

Barna v. Travis,

239 P.36 360 GR Gir. BOOED) « «00 oc ecewit's es 0's 22

Blair-Bey v. Quick,

163 P.38 1056 G.C. Cit. IGP) vce eviews svecs 22

Borough of Pottstown v. Pennsylvania Municipal

Retirement Bd.,

551 Pa. 605, 712 A.2d 741 (1998) ........... 24

Coady v. Vaughn,

564 Pa. 604, 770 A.2d 287 (2001) ......... 4,25

Comm. v. Thomas,

—- 4B Pa. 43, 202 A.2d BES (IGT). ice er ecnes 9

Commonwealth ex. rel. Sparks v. Russell

403 Pa. 320, 169 A.2d 884 (1961) ........... 25

Corley v. Bd. of Probation and Parole,

478 A.2d 146 (Pa.Cmwlth. 1984) ............ 24

DiNapoli v. Northeast Regional Parole Comm’n

708 FAG BSS Gas Car. TOG no + civ wieie's sow eetcn 20

Eighty-Four Mining Co. v. Three Rivers

Rehabilitation, Inc,

554 Pa. 443, 721 A.2d 1061 (1999) .......... 24

Flemming v. Oregon Bd. of Parole,

998 F.2d 721 (9th Cir. 1993) ........0eesees 22

Garner v. Jones,

DAI. BOO Ge a < oleic be 56 Fede le Vie bee 0 19

Griggs v. Maryland,

963. F.3d SSS 4th Cie: JO0L) . ww cc ticin's cece 21

Gwong v. Singletary,

663 So.2d 109 Pim, 1996). ccc cei deiviciecse- 22

Lomax v. Warden, Maryland Correctional

Training Center,

356 Md. 569, 741 A.2d 476 (1999) ...... re

Lopata v. Pa. Unemployment Compensation

Bd. of Review,

507 Pa. 570, 493 A.2d 657 (1985) ......... 5, 24

Marshall v. Bd. of Probation and Parole,

638 A.2d 451 (Pa.Cmwith. 1994) ............. 4

Mickens-Thomas v. Bd. of Probation and Parole,

699 A.2d 792 (Pa.Cmwith. 1997) ............ 10

Miller v. Florida,

463 UD. GBS CAGE) ioc hoe eRe AS 21, 23

Pa. Human Relations Comm’n v. Norristown

Area Sch. Dist.,

473 Pa. 334, 374 A.2d 671 (1977) ........... 24

Portley v. Grossman,

G44 UD. EBLE (Ee cS acwccccnvebester bees 21

Prater v. U.S. Parole Comm’n,

802 F.2d 948 (7th Cir. 1966) ............ 20, 26

Reynolds v. Bd. of Probation and Parole,

809 A.2d 426 (Pa.Cmwlth. 2002) ............ 25

Rogers v. Bd. of Probation and Parole,

555 Pa. 285, 724 A.2d 319 (1999) ..... ieee ae

Ruip v. United States,

$55 F.2d 1331 (6th Cir. 1977) 2... wee ees 20

Shabazz v. Gabry,

12S F.Sa SUP es Ca. SGT) ee ee 22

Sourbeer v. Robinson,

791 F.2d 1094 (3d Cle. 1906) 26. eS. 24

Stansbury v. Hannigan,

265 Kan. 404, 960 P.2d 227 (1998) .......... 22

State v. Simon,

161 N.J. 416, 737 A.2d 1 (1999).............. 6

U.S. ex rel. Forman v. McCall

709 F.2d 852 (Sd Car. IGSS) i ee seen 20

U.S. ex rel. Forman v. McCall,

776 F.2a LISS CG Cars TRS ee ee 20

Warren v. U.S. Parole Comm’n,

659 F.2d 183 (D.C. Cir. 1961) .2......6%. 20, 21

Winklespecht v. Pa. Bd. of Probation and Parole,

571 Pa. 685, 813 A.2d 688 (2002) .. 14, 15, 18, 25

Statutes and Rules (Pennsylvania)

Act of August 6, 1941, P.L. 861, § 1,

previously codified at Pa. Stat. Ann.,

tit. 61, § 331.1 (Purdon) ........--- +e eee eeee 2

Act of Nov. 17, 1995, P.L. 1339

(Spec. Sess. No. 1), No. 35 ..--- eee eee eee eee 7

Act of Nov. 17, 1995, P.L. 1145

(Spec. Sess. No. 1), No. lsh ad oe ce hs 7

Act of Dec. 18, 1996, P.L. 1098, No. 164 .........-. 7

Act of Nov. 24, 1998, P.L. 882, No. 111 .........-. 7

Act of Dec. 21, 1998, P.L. 1077, No. 143 .........- 7

Pa. Stat. Ann., tit. 18, § 11.502 (Purdon 2000) ..... 7

Pa. Stat. Ann., tit. 45, §§ 1102 et seq.

(Purdon 1991) ....... 2. eee eee eee e eres 4

Pa. Stat. Ann., tit. 71, §§ 745.1 et seq.

(Purdon 1990) ...2....- eee eee rere eres 4

Probation and Parole Act,

Pa. Stat. Ann., tit. 61, §§ 331.1 through

331.34a (Purdon 1999) ......---2eeeees passim

BORE avcccseeveveseecesens 2, 14, 16, 25

BGSSLIGD .... cc erccccvcreceveceseees 7

BOEEE Shas vivchscveavsevnseceseteds 3

i.) © | Se 3,8

SS Seer ee eee ee eee 7

i) } 3, 4, 7, 8, 10, 16, 17

§ 331.21(a) and 331.2la ......--- eee eens 7

SD - 3

KS 7 / Ge 7

Statutes and Rules (Federal)

28 U.S.C. § 1254 2... ce eee eee errr eee ees 1

BO UBS. BBV vec ccvccccrsccccecevecese 10

EPP ESSE LET TERT TTT TE eT eee ii

RT Te TET TERETE Te ere eT ii

Constitutional Provisions

Fe: GO, EG, GD ek ee’ bw 44 Kae cts comes G

es Goes Ge Be Be GD Saiwch db vcdodoinea passim

Other Authorities

PA. DEPT. OF CORRECTIONS,

2000 Annual Statistical Report

http: / /www.cor.state.pa.us/info ......... 6, 8,9

OPINIONS BELOW

The decisions in Hollawell v. Gillis are not reported.

The decision of the Court of Appeals is reprinted in the

appendix to this petition (“Pet. App.”) at la; and the

decision of the District Court is reprinted at Pet. App.

17a.

The decision of the Court of Appeals in Mickens-

Thomas v. Vaughn is reported at 321 F.3d 374 and is.

reprinted at Pet. App. 23a. The decision of the District

Court is reported at 217 F.Supp.2d 570 and is reprinted

at Pet. App. 6la.

STATEMENT OF JURISDICTION

The judgment of the Court of Appeals in Hollawell v.

Gillis was entered on April 23, 2003, Pet. App. 2a, and

this petition is being filed within 90 days thereafter.

The judgment in Mickens-Thomas v. Vaughn was

entered on February 21, 2003. Pet. App. 24a. A petition

for rehearing was timely filed, and was denied on March

24, 2003. Pet. App. 82a. This petition is being filed within

90 days thereafter.

The Court has jurisdiction pursuant to 28 U.S.C. §

1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

| INVOLVED

1. Article I, Section 10, clause 1 of the United States

Constitution provides in relevant part that “[n]o State

shall ... pass any ex post facto law....”

2. Section 331.1 of the Pennsylvania Probation and

Parole Act, as amended in 1996, provides as follows:

ge

The parole system provides several benefits to the

criminal justice system, including the provision of

adequate supervision of the offender while protecting

the public, the opportunity for the offender to become

a useful member of society and the diversion of

appropriate offenders from prison.

In providing these benefits to the criminal justice

system, the board shall first and foremost seek to

protect the safety of the public. In addition to this

goal, the board shall address input by crime victims

and assist in the fair administration of justice by

ensuring the custody, control and treatment of

paroled offenders.

Pa. Stat. Ann., tit. 61, § 331.1 (Purdon 1999), as amended

by Act of December 18, 1996, P.L. 1098, No. 164, § 1.

3. Before its amendment in 1996, Section 331.1

provided as follows:

The value of parole as a disciplinary and corrective

influence and process is hereby recognized, and it is

declared to be the public policy of this Commonwealth

that persons subject or sentenced to imprisonment for

crime shall, on release therefrom, be subjected to a

period of parole during which their rehabilitation,

adjustment, and restoration to social and economic

life and activities shall be aided and facilitated by

guidance and supervision under a competent and

efficient parole administration, and to that end it is

the intent of this act to create a uniform and exclusive

system for the administration of parole in this

Commonwealth.

Act of August 6, 1941, P.L. 861, § 1, previously codified at

Pa. Stat. Ann., tit. 61, § 331.1 (Purdon).

a

STATEMENT OF THE CASE

These cases are habeas corpus actions brought by

state prisoners challenging the denial of parole, and arise

out of a 1996 amendment to Pennsylvania’s parole

statute. In upholding their challenge, the Court of

Appeals, unlike other courts which have considered

similar issues, first held that the internal policies of

Pennsylvania’s Parole Board are “laws” which cannot be

changed without implicating the Ex Post Facto Clause.

The Court of Appeals then held that the amendment to

the parole statute had worked such a change, giving no

weight to decisions of the Pennsylvania courts, including

the highest court of the Commonwealth, which rejected

similar claims and held that the amendment introduced

“nothing new’ to the parole process.

1. a. Parole in Pennsylvania is governed by the

Probation and Parole Act, Pa. Stat. Ann., tit. 61, §§ 331.1

through 331.34a (Purdon 1999) (“Parole Act”). Enacted in

1941, the Parole Act establishes the Board of Probation

and Parole, which among other things has the “exclusive

power to parole and reparole” all persons sentenced to

two years or more of imprisonment. Jd., § 331.17.

Prisoners are not eligible for parole until they have

served their minimum sentence. Id., § 331.21(a). In

deciding whether to grant a parole, the Board is to inform

itself of the prisoner’s complete criminal record, conduct

while in prison, and “physical, mental and behavior

condition and history”; and the Board is to consider “the

nature and circumstances of the offense committed,” any

recommendations of the trial judge and prosecutor, and

“the general character and background of the prisoner.”

Id., § 331.19. In addition, a member or designee of the

Board must have “seen and heard” the prisoner “in

person” before granting or denying parole. Id., § 331.22.

Be

j

:

But within these limits, the Act confers unfettered

discretion upon the Board. The Board, “in [its]

discretion,” may release on parole any prisoner “whenever

in its opinion the best interests of the convict justify or

require his being paroled and it does not appear that the

interests of the Commonwealth will be injured thereby.”

Id., § 331.21. Thus, “the granting of parole is wholly

discretionary” with the Board. Coady v. Vaughn, 564 Pa.

604, 608, 770 A.2d 287, 290 (2001); “a prisoner has only

a right to apply for parole ... and to have that application

considered by the Board.” Rogers v. Bd. of Probation and

Parole, 555 Pa. 285, 288, n.2, 724 A.2d 319, 321 n.2

(1999). .

Since the legislature “has conferred upon the Parole

Board sole discretion” to grant or deny paroles, Rogers,

555 Pa. at 291, 724 A.2d at 322 (emphasis added), the

grant or denial of parole is not ordinarily subject to

judicial review. While the Pennsylvania courts will

entertain an action in mandamus to compel the Board to

exercise its discretion, see, e.g., Marshall v. Bd. of

Probation and Parole, 638 A.2d 451 (Pa.Cmwith. 1994), or

to assert a constitutional challenge to the denial of parole,

Coady v. Vaughn, supra (claim of ex post facto violation

may be addressed in mandamus action), the decisions of

the Board are not otherwise reviewable by the courts.

Rogers v. Bd. of Probation and Parole, supra.

Nor has the Board adopted administrative regulations

governing the grant or denial of parole. Under

Pennsylvania law, the promulgation of such regulations

is governed by a _ statutory rulemaking process’;

?See the Commonwealth Documents Law, Pa. Stat. Ann.

tit. 45, §§ 1102 et seq. (Purdon 1991), and the Regulatory

Review Act, Pa. Stat. Ann. tit. 71, §§ 745.1 et seg. (Purdon

(continued...)

wi.

regulations thus adopted, if they are substantive rules,

have the force and effect of law and bind the adopting

agency, while other agency directives do not. See, e.g.,

Lopata v. Pa. Unemployment Compensation Bd. of Review,

907 Pa. 570, 575-76, 493 A.2d 657 (1985). Pursuant to

this process, the Board has adopted regulations on a

variety of subjects, but not on the substantive criteria for

parole decisions. See generally Pa. Code, tit. 37, Pt. II.

The Board has, however, developed internal guidelines

to aid its decision-making. The “Parole Decision Making

Guidelines” structure the Board’s decision-making

process, but they neither eliminate nor control the

Board’s discretion in deciding cases; rather, they were

designed to reflect the Board’s decision-making practices.

The Guidelines attempt to judge the likelihood of a

successful parole by assigning numerical values to a

number of criteria, thought to be of value in predicting

the likelihood of recidivism and the potential for violent

behavior. The total score thus produced provides a

recommendation for or against parole. See Pet. App. 30a.

This score, however, does not end the process; it “is

intended to guide the decision-maker but not dictate the

decision.” Pet. App. 86a. The Guidelines allow for the

consideration of countervailing factors which, in the

judgment of the decision-maker, may outweigh the

numerical score; the Guidelines form lists some of the

most common such factors,’ but does not purport to be

exhaustive. The final decision on parole remains in the

2(...continued)

1990).

°For example, a history of participation in institutional

programs might outweigh a negative recommendation from the

numerical score. Similarly, unfavorable recommendations from

the Department of Corrections, sentencing judge or prosecutors

might outweigh a positive recommendation.

-5-

hands of the Board; as the Board’s 1990 “Statement on

Policy, Procedure and Philosophy” notes, “the structuring

of discretion does not eliminate it; the burden of decision

remains with the decision maker to evaluate the merits of

each case.” Pet. App. 84a, quoted at Pet. App. 31a.

The information in the record, although “dated,

indicates that as of 1989 the Board’s ultimate decision

departed from the Guidelines recommendation in about

20% of the cases. Pet. App. 3la, 86a-87a. In addition, the

Guidelines, which were first developed in 1980, have

themselves been modified several times over the years to

better reflect the Board’s actual decision-making

practices. See Pet. App. 84a (Board’s “Statement on

Policy, Procedure and Philosophy’).

b. In the aftermath of a 1989 prison riot, the Board

began pursuing a deliberate policy of “reduction in prison

overcrowding through the parole process,” and began

granting tlearly 80% of parole applications. Pet. App. 33a,

83a-84a.* In 1994 and 1995, however, two Pennsylvania

prisoners committed murders, including the murder of a

New Jersey police officer, while on parole. Pet. App. 32a

& n.9; see State v. Simon, 161 N.J. 416, 737 A.2d 1

(1999). In the aftermath of these crimes, investigations by

Pennsylvania’s Inspector General and the Chairman of

the State Senate Judiciary Committee recommended that

Pennsylvania’s corrections philosophy should place more

emphasis on public safety, and that existing statutes and

policies should be changed accordingly. See Pet. App.

32a-33a.

‘Similar statistics appear in the Pennsylvania Department

of Corrections’ 2000 Annual Statistical Report, p. 45, available

at http: / /www.cor.state.pa.us/info (visited May 22, 2003).

-6-

Over the next several years, the Pennsylvania

legislature enacted or amended a number of statutes

relating to parole, including the Parole Act itself.5 Most

relevant to these cases, in December of 1996, the

legislature amended Section 331.1 of the Parole Act, Pa.

Stat. Ann., tit. 61 § 331.1 (Purdon 1999). Section 331.1

is, as the Court of Appeals said, a “preface to the

comprehensive set of rules governing parole in

Pennsylvania.” Pet. App. 28a n.5. As amended, Section

331.1 recounts the benefits of the parole system,

“including the provision of adequate supervision of the

offender while protecting the public, the opportunity for

the offender to become a useful member of society and

the diversion of appropriate offenders from prison.” It

then provides that in providing these benefits, “the

‘These included provisions authorizing parole agents to

search parolees and their property, see Pa. Stat. Ann., tit. 61,

§ 331.27a (Purdon 1999), added by Act of Nov. 17, 1995, P.L.

1339 (Spec. Sess. No. 1), No. 35; authorizing electronic -

monitoring of parolees and the establishment of intensive

supervision units, see Pa. Stat. Ann., tit. 61, § 331.16b(a)(10)-

(11), added by Act of Nov. 17, 1995, P.L. 1145 (Spec. Sess. No.

1), No. 37; expanding the Board from five members to nine, see

Pa. Stat. Ann., tit. 61, § 331.2 (Purdon 1999), amended by Act

of Dec. 18, 1996, P.L. 1098, No. 164; permitting crime victims

to petition the Board to deny a parole application, see Pa. Stat.

Ann., tit. 18, § 11.502 (Purdon 2000), added by Act of Nov. 24,

1998, P.L. 882, No. 111; requiring, as a condition of eligibility

for parole, that prisoners convicted of crimes of violence

participate in a crime impact education program, see Pa. Stat.

Ann., tit. 61, § 331.21(b.1) (Purdon 1999), added by Act of Dec.

21, 1998, P.L. 1077, No. 143; and permitting the immediate

detention of parolees charged with offenses, see Pa. Stat. Ann.,

tit. 61, §§ 331.21(a) and 331.21la(a.1), amended by Act of Dec.

21, 1998, P.L. 1077, No. 143.

-7-

[Bjoard shall first and foremost seek to protect the safety

of the public.”°

This amendment, to what the Court of Appeals called

the “aspirational introductory” provision to the Parole

Act, Pet. App. 27a, did not alter the conditions of

eligibility for parole, see id., § 331.21, nor did it alter the

matters which the Board was required to consider in

deciding parole applications, see id., § 331.19, nor did it

alter the Board’s authority to grant parole “in [its]

discretion.” Id., § 331.21. Nevertheless, the amendment

to Section 331.1, and in particular the exhortation to the

Board to consider the public safety “first and foremost,”

is the only statutory change alleged to have affected the

parole decisions challenged in these cases.

In the meantime, the Board had likewise acted. By

February of 1996, the Chairman of the Judiciary

Committee reported that the Board had “set out to

establish public safety as a priority including a more

careful review of parole eligible cases....” See Pet. App.

33a. Although: the Board did not change its Guidelines at

this time, the rate at which the Board granted paroles

dropped dramatically, from 77% in the years immediately

after the 1989 prison riot, to 38% in the fiscal year ending

in June of 1996. Pet. App. 83a-84a (Board’s Biennial

Reports); see Pet. App. 33a.’

These events occurred well before Section 331.1 was

amended in December of 1996. After the statute was

-

*The complete text of Section 331.1, before and after its

amendment, is reprinted above at 1-2.

* See also PA. DEPT. OF CORRECTIONS, 2000 Annual Statistical

Report, p. 45, available at http://www.cor.state.pa.us/info

(visited May 22, 2003).

-8-

amended, the rate at which the Board granted paroles

actually rose slightly, to 42% in the calendar year ending

in June of 1997.° Pet. App. 84a. (Board’s 1995-97

Biennial Report). At some point between 1998 and 2000,

the Board also revised its Guidelines to bring them into

line with its actual practices. See Pet. App. 44a, 53a n.16,

84a (Board’s Statement on Policy, Philosophy and

Procedure)(policy should reflect decision-making

practice).

Against this background are the two cases presented

in this petition.

2. Mickens-Thomas v. Vaughn. a. In 1964, Louis

Mickens-Thomas raped and strangled twelve-year old

Edith Connor. Pet. App. 26a, 61a-62a. He was convicted

of first-degree murder and sentenced to life without the

possibility of parole. See Pet. App. 26a, 62a; Comm. uv.

Thomas, 448 Pa. 42, 292 A.2d 352 (1972). In 1995, on the

recommendation of the Commonwealth’s Board of

Pardons,’ the Governor of Pennsylvania commuted

Mickens-Thomas’ sentence to a minimum term of about

32 years, making him eligible for parole in July of 1996.

Pet. App. 64a-65a.

*That rate has continued to rise. See PA. DEPT. OF

CORRECTIONS, 2000 Annual Statistical Report, supra at p. 45

(parole grants rose from 38.8% in calendar year 1996, to 49.8%

in 2000).

°The Board of Pardons is an agency separate from the

Board of Probation and Parole. See Pet. App. 63a n.1, quoting

PA. CONST., art. 4, § 9.

-9-

A panel of the Board considered Mickens-Thomas’

parole application in August of 1997.'° The Board denied

his application, citing the brutal nature of his crime, his

prior history of assault, the unfavorable recommendation

of the District Attorney, and his “very high potential” for

assaultive behavior. At his next review, in March of 1998,

a second panel denied his application for much the same

reasons, citing in addition his need for counseling and

treatment.'’ On both occasions, the Board of Pardons

concurred with the Parole Board’s decision.’* Pet. App.

34a-37a, 66a-68a. While Mickens-Thomas’ habeas

petition was pending in the District Court, the Board

denied his parole application a third time, in March of

2000. Pet. App. 68a.

b. After exhausting his state court remedies, Pet. App.

25a n.1, Mickens-Thomas brought this habeas action

pursuant to 28 U.S.C. § 2254(a). He claimed that “the

retroactive application of changes in rules, guidelines,

‘Initially, the Board declined to consider Mickens-Thomas’

application on its merits, on the ground that he had not spent

the requisite time in a pre-release center, 4s required by

Section 331.34a of the Parole Act. The Board later conceded,

however, that this provision, which was not included in the Act

until 1995, could not constitutionally be applied to Mickens-

Thomas. Pet. App. 65a-67a; see Mickens-Thomas v. Bd. of

Probation and Parole, 699 A.2d 792 (Pa.Cmwlth. 1997).

"'Mickens-Thomas has consistently refused to accept

responsibility for his crime. His only participation in sex

offender therapy has been in a limited program for “deniers”

like himself. Pet. App. 26a, 36a.

Under the law in effect at the time Mickens-Thomas

committed his offense, the Board of Pardons may overrule the

Parole Board’s decision and order his immediate parole. See Pa.

Stat. Ann., tit. 61, § 331.21, historical note (Purdon 1999).

-10-

policies or statutes” to deny his parole violated the Ex

Post Facto Clause.'* Pet. App. 7 la-72a.

The District Court agreed. The District Court looked

first to the December 1996 amendment to Section 331.1

of the Parole Act, particularly the provision that the

Board “shall first and foremost seek to protect the safety

of the public.” Pet. App. 74a. The District Court then

looked to a variety of other materials — the Board’s

statement, drawn from its 1995-1997 biennial report,

that the Board “is committed to protecting the safety of

the public,” Pet. App. 74a; evidence that, before 1995, the

Board had historically paroled other life prisoners whose

sentence had been commuted, Pet. App. 69a, 77a; and

Statistical evidence showing that parole releases had

dropped dramatically between 1991 and the first quarter

of 1996. Pet. App. 73a-74a. From this, the District Court

concluded that “ijt seems clear that the Board has

adopted the policy change made ir: the [December] 1996

amendment.”

The District Court thus reasoned that the “practical

application,” Pet. App. 76a, of the December 1996

amendment had “increased to a significant degree the

likelihood that petitioner will be in jail longer than if the

pre- 1996 policy would have been followed.” Pet. App. 77a.

The District Court ordered the Board to re-hear Mickens-

Thomas’ parole application “under the standards that

existed prior to the amendment to [of] the Probation and

Parole Act.” Pet. App. 80a. The District Court did not

discuss what those “standards” were, or how they differed

‘SHe claimed also that he had a “reasonable and objective

expectation,” Pet. App. 77a, amounting to a liberty interest, in

being paroled, and that the Board’s refusal to do so deprived

him of both procedural and substantive due process. The

District Court rejected this claim, Pet. App. 77a-79a, and it is

not before the Court in this petition.

ee

from the standards which the Board had applied to

Mickens-Thomas’ applications.

c. The Board appealed, but the Court of Appeals

affirmed the District Court’s decision.'* The Court of

Appeals turned first to the law governing parole before

the December 1996 amendment to Section 331.1. To

ascertain that law, the Court of Appeals looked, not to the

“comprehensive set of rules,” Pet. App. 28a n.5, contained

in the Parole Act, but rather to the Board’s internal

forms, manuals and reports, especially the Parole

Guidelines and materials relating to them.'* See Pet. App.

29a-32a. The Court of Appeals also relied heavily on the

Board’s historical practice of granting parole to life

-prisoners whose sentence had been commuted. Pet. App.

44a, 69a.

Based on these materials, the Court of Appeals

concluded that “the Board has, by both its past decisions

to grant parole for commuted sentences, and by its formal

declarations of policy, expounded discernible parameters

that govern its discretion.” Pet. App. 46a. The Court of

Appeals distilled those “parameters” as follows:

[P]re-1996 policies ... commanded that the Board give

weight to various factors in the parole process, such

Mickens-Thomas cross-appealed from the District Court’s

denial of his due process claim, but the Court of Appeals

affirmed the District Court’s decision in this respect as well.

Pet. App. 25a, 59a.

‘SThe Court of Appeals cited, for example, the Board’s 1989

Manual of Operations, Pet. App. 29a; a 1990 paper entitled

“Parole Decision Making Guidelines: A Statement on Policy

Procedure and Philosophy,” Pet. App. 30a; and a 1991 report

on the Guidelines prepared for the Pennsylvania House

Judiciary Committee. Pet. App. 30a.

-12-

as Department of Corrections staff recommendations,

educational accomplishments, job training, and

therapy programs. ... [Rjelease upon eligibility for

parole was presumed, and any decision to deny parole

based on public safety considerations had to be

supported by specific reasons, which outweighed

those factors favoring release. ... [T]he Board’s

concern for potential risks to public safety c »uld not

be the sole or dominant basis for parole denial under

the existing Guidelines. Considerations of public

safety were already incorporated in its Guidelines

analysis; the Board had to point to “unique” factors as

a basis for its rejection of the Guidelines.

Pet. App. 44a-45a. While “some discretion might still

exist within the[se] parameters,” a parole decision which

failed to adhere to them “falls outside the realm of the

legitimate exercise of discretion.” Pet. App. 47a.

Nor, in the Court of Appeals’ view, could the Board

alter these “parameters” without ex pest facto

implications. While “new Board members mey carry new

ideas regarding the exercise of [their] discretion, and old

Board members may change their mind in the light of

new considerations,” they may not apply their “newly-

found wisdom” to deny a prisoner’s “preexisting right to

parole consideration,” any more than a legislature could

later re-sentence that prisoner more severely. “This is

precisely what the Ex Post Facto Clause prohibits.” Pet.

App. 47a.

The Court of Appeals then examined the Board’s

decisions on Mickens-Thomas’ parole applications in light

of the pre-1996 “parameters” it had identified. Pet. App.

34a-39a, 49a-54a. The Board argued that its decisions

were legitimate exercises of the discretion conferred by

the Parole Act, but the Court of Appeals disagreed. In the

Court of Appeals’ view, “under the Guidelines [Mickens-

-13-

]Thomas was entitled to parole,” Pet. App. 48a; and the

Board’s departure from its Guidelines, based on “the

nature of the underlying offense and the potential danger

to the public if [Mickens-]Thomas were released,” Pet.

App. 50a, was not justified. “[T]he Board’s denial of

[Mickens-]Thomas’ parole, despite its claims that the

decision was the result of the discretion vested in it by

the pre-1996 policies, exceeded any reasonable

interpretation of th{ose] policies.” Pet. App. 54a.

Rather, the Court of Appeals held that the Board’s

actions were the product of a “new parole policy of 1996,”

Pet. App. 40a, which in turn was rooted in the

amendment to Section 331.1 of the Parole Act in

December of that year. Pet. App. 40a-44a. The Court of

Appeals found evidence of this “new policy” in the

remarks of legislators, courts, and the Board itself, Pet.

App. 43a-44a, 55a; and laid special emphasis on the

Board’s earlier actions in granting paroles to prisoners

whose sentences had been commuted. Pet. App. 44a.

Under this “new policy,” the Board gave “foremost

importance,” Pet. App. 4la, to considerations of public

safety, as opposed to other factors. Pet. App. 45a. As the

Court of Appeals saw it, while “public safety had been a

part of the Board’s pre-1996 criteria, it had never been an

exclusive, or even the most important, criterion.” Pet.

App. 53a-54a.

The Court of Appeals acknowledged the decision of the

Supreme Court of Pennsylvania in Winklespecht v. Pa. Bd.

of Probation and Parole, 571 Pa. 685, 813 A.2d 688

(2002), but accorded it no weight. See Pet. App. 54a-55a.

In Winklespecht, the state Supreme Court had considered

and rejected an ex post facto challenge, based on the

amendment to Section 331.1 of the Parole Act, to the

denial of parole. The Pennsylvania Supreme Court said:

-14-

Although the language concerning “protect[ing} the

safety of the public” and “assist[ing] in the fair

administration of justice” was added to § 331.1 in

1996, these concepts are nothing new to the parole

process and have always been underlying concerns.

Both versions of § 331.1 leave the decision regarding

the grant of parole within the discretion of the Board;

the fact that some language was added in 1996, which

clarified the policy underlying the parole process, does

nothing that increases Winklespecht’s punishment.

Winklespecht, 813 A.2d at 692 (plurality opinion). Accord

id. at 693 (Castille, J., concurring); id. at 695-97 (Saylor,

J., concurring and dissenting). The Court of Appeals,

however, dismissed Winklespecht as of no significance

because it “came too late to alter the Board’s view of the

statutory amendment on the outcome of this case.” In the

Court of Appeals’ view, the Board — which had

successfully argued for the interpretation of the statute

adopted by the state Supreme Court in Winklespecht —

was “uninfluenced” by that interpretation. bid.

Accordingly, the Court of Appeals held that the denial

of Mickens-Thomas parole, on the basis of the “new

policy of 1996,” violated the Ex Post Facto Clause, and

remanded for the Board to issue a new decision on his

application within 45 days. In making this decision, the

Board was to adhere to its pre- 1996 policies, as described

by the Court of Appeals:

If the Guidelines recommend release, the Board

should fairly consider the weight of this

recommendation. A decision contrary to a Guidelines

recommendation must be buttressed by unique

factors which outweigh the Guidelines endorsement.

Moreover, release on parole is a Board policy

presumption, and parole should be granted unless

-15-

countervailing negative factors affirmatively outweigh

reasons supporting release.

Pet. App. 59a.

The Court of Appeals denied rehearing and rehearing

en banc, and likewise denied a motion to stay its

mandate pending the filing of this petition. On May 23,

2003, the Board, pursuant to the mandate, issued its

new decision o.: Mickens-Thomas’ application, and again

denied it. On June 4, 2003, Mickens-Thomas filed

motions in the Court of Appeals, claiming that the

Board’s decision was not consistent with the Court of

Appeals’ judgment « id asking for his immediate release

from custody; those motions are pending as of the filing

of this petition.

3. Hollawell v. Gillis. a. John Hollawell is serving a

sentence of six and a half to twenty-three years for

corrupt organization offenses, bribery and conspiracy.

Pet. App. 3a. The Board denied his application for parole

in July of 1999, on the ground that “the mandates to

protect the public and to assist in the fair administration

of justice cannot be achieved through your release on

parole.” Pet. App. 18a. After pursuing his state court

remedies, he filed this habeas action in the District

Court, claiming that the Board’s action violated the Ex

Post Facto Clause. Like Mickens-Thomas, Hollawell based

his claim on the amendment to Section 331.1 of the

Parole Act.

b. The District Court disagreed. The District Court

recognized that the text of Section 331.1 had changed,

Pet. App. 19a; but held that, considered within the

context of “all of the statutory procedures relating to

parole,” ibid, this change in the statutory text had not

worked a change in substance. The District Court relied

for this holding on Section 21 of the Parole Act, which at

-16-

all relevant times has empowered the Board to parole

convicts “whenever in its opinion ... it does not appear

that the interests of the Commonwealth will be injured

thereby.” Pa. Stat. Ann., tit. 61, § 331.21, quoted at Pet.

App. 21la. Thus, in the District Court’s view,

[although the old version of ... § 331.1 did not contain

a directive that the Parole Board protect the public,

protection of the public was always a factor the Parole

Board was obliged to consider. ... Both before and

after the 1996 amendment to § 331.1, the Parole

Board was charged with protecting the aaa The law

in this respect did not change.

Pet. App. 20a-21a. The District Court accordingly denied

Hollawell’s petition.

c. The Court of Appeals reversed, relying entirely on

its intervening decision in Mickens-Thomas.” See Pet.

App. 12a. The factual record in Hollawell was far less

extensive than that on which the Mickens-Thomas panel

had relied. The Mickens-Thomas panel had before it the

Board’s entire file on Mickens-Thomas, Pet. App. 70a-

71a, and the panel had relied heavily on its extensive

review of the Board’s decisions, worksheets and internal

notes on his applications. See Pet. App. 34a-39a, 49a-

54a. No such materials were available to the Hollawell

panel. The Mickens-Thomas panel had likewise relied

heavily on what it called the “staggering,” Pet. App. 44a,

quoted at Pet. App. 15a, statistical evidence on earlier

grants of paroles to those with commuted life sentences.

‘6By the time the Court of Appeals issued its decision in

Hollawell on April 23, it had not only decided Mickens-Thomas

(on February 21) but had also denied the petitioners’ request

for rehearing or rehearing en banc (on March 24).

sig.

These statistics had no bearing on Hollawell, who is not

a commuted life prisoner.

Nevertheless, the Court of Appeals held that no

further factual development was needed in light of the

Mickens-Thomas decision, Pet. App. 15a-16a, which it

read as broadly applicable: “Mickens-Thomas clearly holds

as a legal matter that the Pennsylvania statute violates

the Ex Post Facto Clause.” Pet. App. 16a. The panel

recognized that in Winklespecht the state Supreme Court

had recently come to the opposite conclusion on the

same issue. Pet. App. 15a (“We are aware of the recent

decision of the Pennsylvania Supreme Court considering

whether the statutory amendment violates the Ex Post

Facto Clause....”) The panel made no comment on

Winklespecht, however, except to observe that it was

bound by the decision in Mickens-Thomas.

REASONS FOR GRANTING THE WRIT

The Court of Appeals committed two distinct,

although related, errors in these cases. First, it held that

the “law” governing parole in Pennsylvania is embodied in

the internal guidelines and practices of the Board, which

cannot be changed without ex post facto implications.

Building upon this first error, the Court of Appeals then

erroneously concluded that the amendment to Section

331.1 had worked just such a change. Both of these

holdings should be reviewed by the Court. The first

conflicts with virtually all federal and state courts which

have considered similar issues; while the second is at

odds with the highest court of Pennsylvania on an issue

which directly affects the administration of the

Commonwealth’s parole system.

-18-

I. The Court of Appeals’ Holding, That the Board’s

Internal Policies Are “Laws” for Ex Post Facto

Purposes, Conflicts with the Decisions of Most of

the Courts Which Have Considered Similar Issues.

The internal policies of parole agencies come in a wide

variety of forms: administrative regulations, guidelines,

operating manuals, directives, memoranda, and so on.

The proper analysis of these policies under the Ex Post

Facto Clause, and in particular whether such policies are

“laws” within the meaning of the Clause, presents an

important and recurring issue which the Court has not

addressed. The Courts of Appeals and state courts,

however, have frequently confronted it, and have reached

a fair degree of consensus. Most of these courts have

concluded that policies which embody mandatory rules

binding the parole agency — often because they have

been formally adopted, through some prescribed

procedure, as regulations — are “laws” which trigger the

protections of the Ex Post Facto Clause when they are

altered. See, e.g., Akins v. Snow, 922.F.2d 1558, 1561

(11th Cir. 1991) (Georgia regulations adopted pursuant

-to grant of quasi-legislative power are “laws” for ex post

facto purposes), overruled on other grounds, Garner v.

Jones, 529 U.S. 244 (2000).’” Policies, however, which do

not place binding constraints on a parole agency’s

discretion —policies which merely structure the exercise

of agency discretion, or indicate how the agency intends

to exercise its discretion — are not “laws” within the

meaning of the Ex Post Facto Clause.

‘In Garner, the Court held that the Georgia regulations

considered in Akins did not necessarily violate the Ex Post

Facto Clause, because they did not necessarily create a

“significant risk of increased punishment.” 529 U.S. at 257.

-19-

Thus, the Courts of Appeals are unanimous in holding

that the guidelines used by the United States Parole

Commission are not “laws” for ex post facto purposes.

See, e.g., Prater v. U.S. Parole Comm’n, 802 F.2d 948, 951

(7th Cir. 1986) (en banc) (collecting cases); DiNapoli v.

Northeast Regional Parole Comm’n, 764 F.2d 143, 146-

47(2d Cir. 1985) (collecting cases). The Parole

Commission’s guidelines, like the Pennsylvania Board’s

guidelines in this case, score prisoners along a series of

variables designed to measure the severity of their crime

and the risk of parole violation; the resulting score then

produces a recommended disposition. Pet. App. 30a-3 1a;

see Warren v. U.S. Parole Comm’n, 659 F.2d 183, 192-93

(D.C. Cir. 1981). The Parole Commission, however, like

the Pennsylvania Board, remains free to depart from the

guidelines when circumstances warrant, and it is this

factor which the Courts of Appeals have found

dispositive.'* Id., at 193. The Sixth Circuit explained:

These guidelines are not law, but guideposts which

assist the Parole Commission ... in exercising its

discretion. Nor do these guidelines have the

characteristics of law. They are not fixed and rigid,

- but are flexible. The-Commission remains free to

make parole decisions outside of these guidelines.

Ruip v. United States, 555 F.2d 1331, 1335 (6th Cir.

1977), quoted in DiNapoli, 764 F.2d at 146. Accord Prater

v. U.S. Parole Comm’n, 802 F.2d at 954 (guidelines are |

‘Only the Third Circuit initially resisted this analysis, see

U.S. ex rel. Forman v. McCall, 709 F.2d 852 (3d Cir. 1983), but

eventually even the Third Circuit conceded that the guidelines

were administered so flexibly that they were not “laws” for ex

post facto purposes. See U.S. ex rel. Forman v. McCall, 776 F.2d

1156, 1163 (3d Cir. 1985) (Commission decisions accorded

with guidelines in only 75.4% of cases).

-20-

interpretive rather than legislative rules). Or, as the

District of Columbia Circuit explained in Warren:

The punishment prescribed for Warren was to be held

after his minimum term at the mercy of parole

authorities exercising their discretion as best they

could. The mere fact that the Parole Commission’s

mercy is now channeled, structured and rationalized

by a formal system of guidelines does not worsen

Warren’s position. He was sentenced to be held at

their discretion. He is being held at their discretion.

Id., at 196. Accord Portley v. Grossman, 444 U.S. 1311

(1980) (Rehnquist, J., in chambers) (no ex post facto

violation from a “change in guidelines assisting the

_ Commission in the exercise of its discretion”). Cf Miller v.

Florida, 482 U.S. 423, 435 (1987) (distinguishing Florida’s

sentencing guidelines on the ground that, unlike the

federal parole guidelines, they bind sentencing courts);

U.S. v. Seacott, 15 F.3d 1380 (7th Cir. 1994) (federal

sentencing guidelines are “laws” because, unlike the

parole guidelines, they tightly control the discretion of the

courts).

The courts have applied the same analysis, with the

same results, to state parole policies. Thus, in Griggs v.

Maryland, 263 F.3d 355 (4th Cir. 2001), the court

rejected an ex post facto challenge to an announcement

by the Governor that he would not approve parole to

prisoners serving a life sentence unless they were very

old or terminally ill. The Fourth Circuit relied in turn on

Lomax v. Warden, Maryland Correctional Training Center,

356 Md. 569, 741 A.2d 476 (1999), which had rejected an

identical challenge. The Lomax court recognized that a

“law,” for ex post facto purposes, may include some

administrative regulations. Id., at 577. Nevertheless, the

ex post facto prohibition is “inapplicable to parole

guidelines which do not have the force and effect of law

-21-

but are merely policies ... that show how ... discretion is

likely to be exercised.” Ibid (internal quotation marks

omitted). In this case, the challenged policy was “simply

an announcement of guidelines as to how the Governor

would exercise the discretion which he has under the

law. The Governor’s announcement did not bind him, and

he can employ different guidelines whenever he desires

to do so.” Ibid. ;

Still other courts have said the same. “The Ex Post

Facto Clause does not apply to guidelines that do not

create mandatory rules for release but are promulgated

simply to guide the parole board in the exercise of its

discretion. ... Such guidelines are not laws’ within the

meaning of the Ex Post Facto Clause.” Barna v. Travis,

239 F.3d 169, 171 (2d Cir. 2001) (policy of denying parole

to prisoners convicted of crimes of violence did not

implicate ex post facto protections). Accord Shabazz uv.

Gabry, 123 F.3d 909, 915 &n.12 (6th Cir. 1997)

(properly promulgated Michigan administrative regulation

was “law” for ex post facto purposes, but internal

memoranda and policy directives were not); Blair- v.

Quick, 151 F.3d 1036 (D.C. Cir. 1998) (guidelines which

merely codified agency practice, and which agency was

free to ignore, not “laws”). Cf. Flemming v. Oregon Bd. of

Parole, 998 F.2d 721 (9th Cir. 1993) (Oregon regulations,

which under state law had the force and effect of law, are

“laws”); Gwong v. Singletary, 683 So.2d 109 (Fla. 1996)

(same, Florida regulations); Stansbury v. Hannigan, 265

Kan. 404, 960 P.2d 227 (1998) (same, Kansas

regulations).

In these cases, by contrast, the Third Circuit paid no

attention to whether the Board’s Guidelines have any

mandatory or binding character under Pennsylvania

-22-

op cha Oil tt a eee iE .

Ps ' oe en

law’’; indeed, the Third Circuit offered no support at all

for its assertion that the Guidelines “govern [the Board’s]

discretion.” Pet. App. 46a. Cf, e.g., Miller v. Florida, 482

U.S. at 435 (looking to Florida law to establish binding

character of state sentencing guidelines). In addition, the

Third Circuit, unlike other courts, brushed aside

evidence that the guidelines do not, on their face, purport

to supplant the exercise of Board discretion”; and, unlike

other courts, brushed aside evidence that, in practice, the

Board departs from its guidelines in a substantial

percentage of cases. See Pet. App. 3la (about 20% of

cases decided contrary to Guidelines).

The Third Circuit’s decisions in these cases thus

cannot be reconciled with the body of law just described.

The Court should therefore review these cases to resolve

this conflict.

Il. The Court of Appeals’ Decision Conflicts with

Decisions of the Supreme Court of Pennsylvania,

on a Matter Directly. Affecting the Administration

of Pennsylvania’s Parole System.

The Court of Appeals’ decision likewise brings it into

conflict, on several levels, with the highest court of

Pennsylvania. First, the Court of Appeals’ assertion —

which it made no effort to support — that the Board’s

Guidelines constitute binding rules which “govern its

discretion,” Pet. App. 46a, conflicts with well-settled

principles of Pennsylvania administrative law.

'°As we suggested above, supra at 4-6, and discuss in more

detail below, they do not.

2«'T}he structuring of discretion does not eliminate it; the

burden of decision remains with the decision maker to evaluate

the merits of each case.” Pet. App. 3la, quoting Board’s

“Statement on Policy, Procedure and Philosophy.”

-23-

As we explained above, supra at 4, Pennsylvania

administrative regulations which are adopted in

accordance with the statutory notice-and-comment

process have the force of law and create controlling

standards of conduct which bind the adopting agency.

E.g., Borough of Pottstown v. Pennsylvania Municipal

Retirement Bd., 551 Pa. 605, 609-10, 712 A.2d 741, 743

(1998); see Sourbeer v. Robinson, 791 F.2d 1094, 1097

n.1, 1100-01 &n.4. (3d Cir. 1986). Thus, for example, the

Board’s regulations at Pa.Code, tit. 37, § 75.3

(presumptive backtime ranges for parole violators) govern

the Board’s own decision-making. See, e.g., Corley v. Bd.

of Probation and Parole, 478 A.2d 146, 148 (Pa.Cmwith.

1984) (Board must justify departure from presumptive

backtime range).

Agency directives which are not adopted through this

process, however, lack legal force. They are either invalid

regulations which should have been promulgated in

accordance with the statutory process. see, e.g., Lopata

v. Pa. Unemployment Compensation Review Bd., 507 Pa.

at 575-76; or, like the Board’s Guidelines, they are mere

statements of agency policy which need not be so

adopted. See, e.g., Pa. Human Relations Comm’n uv.

Norristown Area Sch. Dist., 473 Pa. 334, 346-51, 374 A.2d

671, 677-80 (1977). Such statements “do[] not establish

a binding norm upon that agency,” but simply “announce

the agency’s provisional intentions for the future.” Eighty-

Four Mining Co. v. Three Rivers Rehabilitation, Inc., 554 Pa.

443, 453, 721 A.2d 1061, 1066 (1999). The Court of

Appeals’ claim that the Board’s Guidelines “govern its

discretion,” cannot be squared with these principles.

Second, the Court of Appeals’ resulting vision of

Pennsylvania’s parole system, in which the Board’s

discretion is narrowly cabined within the “parameters”

identified by the Court of Appeals, see, e.g., Pet. App. 47a

-24-

(“some discretion might still exist within the[se]

parameters,” emphasis added), is completely at odds with

the scheme of unfettered discretion established by the

Parole Act and confirmed in decision after decision by the

Pennsylvania Supreme Court. See, e.g., Coady v. Vaughn,

964 Pa. at 608, 770 A.2d at 290; Rogers v. Bd. of

Probation and Parole, 555 Pa. at 288 n.2, 724 A.2d at 321

n.2; Commonwealth ex. rel. Sparks v. Russell, 403 Pa.

320, 169 A.2d 884 (1961).

Finally, and most acutely, the Court of Appeals’

decision in these cases conflicts with the Pennsylvania

Supreme Court’s decision in Winklespecht v. Bd. of

Probation and Parole, supra, as well as with the

Pennsylvania Commonwealth Court’s earlier decision in

Reynolds v. Bd. of Probation and Parole, 809 A.2d 426

(Pa.Cmwlth. 2002). Simply put, in Winklespect and

Reynolds the Pennsylvania courts held that the

amendment to Section 331.1 does not violate the Ex Post

Facto Clause, and in Mickens-Thomas and Hollawell the

Court of Appeals-held that it does. Pet. App. 15a-16a.

Thus, the Court of Appeals sees a Board hedged abou!

with “parameters” which were suddenly altered, while the

Pennsylvania courts see a Board exercising unfettered

discretion both before and after the amendment to

Section 331.1. Winklespecht, 813 A.2d at 692 (“Both

versions of § 331.1 leave the grant of parole within the

discretion of the Board”). The courts of Pennsylvania see

a parole system in which protecting the safety of the

public is and always has been “an underlying concern,”

Winklespecht, 813 A.2d at 692 (plurality opinion), while

the Court of Appeals envisions a parole regime in which

“concern for potential risks to public safety could not be

the sole or dominant basis for parole denial,” Pet. App.

-25-

45a — a regime which not only conflicts with

Winklespecht but is downright bizarre.”'

These holdings are not compatible, and their

incompatibility flows directly from the Court of Appeals’

disregard for Pennsylvania law discussed above. It is

obviously unsatisfactory to have the Court of Appeals at

loggerheads with Pennsylvania’s highest court on an

issue which is not only thoroughly entwined with issues

of state law, but which also directly affects the

administration of the Commonwealth’s criminal justice

system. Pennsylvania must therefore ask the Court to

resolve this impasse.

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

D. MICHAEL FISHER

Attorney General

Commonwealth of Pennsylvania

JOHN G. KNORR, III

Chief Deputy Attorney General

Counsel of Record

CALVIN R. KOONS

Senior Deputy Attorney General

21See Prater v. U.S. Parole Comm’n, 802 F.2d at 950

(dismissing the “weird possibility” that a “responsible parole

commission could take the position that while releasing the

prisoner would be incompatible with the welfare of society, he

should be released anyway”).

-26-

June 18, 2003

Office of Attorney General

15th Floor, Strawberry Sq.

Harrisburg, PA 17120

(717) 787-1144

COUNSEL FOR PETITIONERS

-27-