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Sixth Circuit Holds Pre-1992 Michigan Lifers Not Entitled to Ex Post Facto Relief
In what may prove to be a major blow to parole-eligible life-sentenced prisoners in Michigan, the Sixth Circuit has rejected an as-applied ex post facto challenge to the retroactive application of changes in Michigan’s parole laws.
The prisoners, a class of “parolable lifers” who committed certain non-drug offenses before October 1, 1992, filed suit in federal district court pursuant to 42 U.S.C. § 1983, alleging that changes to Michigan’s parole laws in 1992 and 1999, as implemented and applied retroactively, violated the due process and ex post facto clauses of the U.S. Constitution.
Relying on Sweeton v. Brown, 27 F.3d 1162 (6th Cir. 1994) (en banc) [PLN, Nov. 1994, p.13], the district court dismissed the due process claim on the ground that Michigan prisoners lack a constitutionally protected federal liberty interest in parole.
The Sixth Circuit affirmed the dismissal on appeal.
The bulk of the Sixth Circuit’s opinion, however, focused on the district court’s ex post facto analysis. As a preliminary matter, the district court had held that Shabazz v. Garry, 123 F.3d 909 (6th Cir. 1997) [PLN, June 1998, p.19], did not preclude the prisoners’ ex post facto challenge. In Shabazz, the Sixth Circuit had rejected a facial challenge to the constitutionality of a 1992 change which reduced the frequency of parole reviews.
Because the Michigan legislature made additional changes to the parole laws in 1999, the cumulative effect of the 1992 and 1999 changes, the district court reasoned, could not have been resolved by the 1997 ruling in Shabazz.
As the district court put it, a “state cannot continuously make changes in the parole process that, taken together, create a sufficient risk of an increased penalty; but, when looked at alone, would not violate the Ex Post Facto Clause.”
Examining the record before it, the district court concluded that the combined effect of all the statutory changes – which had induced the Board to adopt a “life means life” policy – had sufficiently disadvantaged the plaintiff class to constitute an ex post facto violation.
In arriving at its conclusion, the district court relied largely on statistical evidence showing a decline in the rate of parole in Michigan, from a steady 5-15 percent between 1942 and 1984 to just 0.15% between 1995 and 2004.
To the Sixth Circuit, however, the data effectively skipped over by the district court – covering the period from 1985 to 1994 – were just as significant as the data the district court considered relevant. The numbers from that period revealed average annual parole rates ranging between 0.18% and 0.6% – not significantly different from the 0.15% rate of subsequent years.
Moreover, the appellate court concluded, it could not distinguish the effect of the Board’s legitimate exercise of its discretion from the effect of statutory changes to the parole process. Relying on Garner v. Jones, 529 U.S. 244, 253 (2000) [PLN, June 2000, p.5], the Sixth Circuit held that regardless of cause or motivation, “If the Parole Board decided within its discretion to get tougher, that would hardly amount to an ex post facto violation as long as it was within the Parole Board’s discretion to get tougher.”
The case was remanded to the district court to enter judgment in favor of the defendants. See: Foster v. Booker, 595 F.3d 353 (6th Cir. 2010), cert. denied.
The prisoners, a class of “parolable lifers” who committed certain non-drug offenses before October 1, 1992, filed suit in federal district court pursuant to 42 U.S.C. § 1983, alleging that changes to Michigan’s parole laws in 1992 and 1999, as implemented and applied retroactively, violated the due process and ex post facto clauses of the U.S. Constitution.
Relying on Sweeton v. Brown, 27 F.3d 1162 (6th Cir. 1994) (en banc) [PLN, Nov. 1994, p.13], the district court dismissed the due process claim on the ground that Michigan prisoners lack a constitutionally protected federal liberty interest in parole.
The Sixth Circuit affirmed the dismissal on appeal.
The bulk of the Sixth Circuit’s opinion, however, focused on the district court’s ex post facto analysis. As a preliminary matter, the district court had held that Shabazz v. Garry, 123 F.3d 909 (6th Cir. 1997) [PLN, June 1998, p.19], did not preclude the prisoners’ ex post facto challenge. In Shabazz, the Sixth Circuit had rejected a facial challenge to the constitutionality of a 1992 change which reduced the frequency of parole reviews.
Because the Michigan legislature made additional changes to the parole laws in 1999, the cumulative effect of the 1992 and 1999 changes, the district court reasoned, could not have been resolved by the 1997 ruling in Shabazz.
As the district court put it, a “state cannot continuously make changes in the parole process that, taken together, create a sufficient risk of an increased penalty; but, when looked at alone, would not violate the Ex Post Facto Clause.”
Examining the record before it, the district court concluded that the combined effect of all the statutory changes – which had induced the Board to adopt a “life means life” policy – had sufficiently disadvantaged the plaintiff class to constitute an ex post facto violation.
In arriving at its conclusion, the district court relied largely on statistical evidence showing a decline in the rate of parole in Michigan, from a steady 5-15 percent between 1942 and 1984 to just 0.15% between 1995 and 2004.
To the Sixth Circuit, however, the data effectively skipped over by the district court – covering the period from 1985 to 1994 – were just as significant as the data the district court considered relevant. The numbers from that period revealed average annual parole rates ranging between 0.18% and 0.6% – not significantly different from the 0.15% rate of subsequent years.
Moreover, the appellate court concluded, it could not distinguish the effect of the Board’s legitimate exercise of its discretion from the effect of statutory changes to the parole process. Relying on Garner v. Jones, 529 U.S. 244, 253 (2000) [PLN, June 2000, p.5], the Sixth Circuit held that regardless of cause or motivation, “If the Parole Board decided within its discretion to get tougher, that would hardly amount to an ex post facto violation as long as it was within the Parole Board’s discretion to get tougher.”
The case was remanded to the district court to enter judgment in favor of the defendants. See: Foster v. Booker, 595 F.3d 353 (6th Cir. 2010), cert. denied.
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