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Third Circuit Upholds Unanimity Requirement for Pennsylvania Pardon Recommendations
The Third Circuit Court of Appeals has upheld a Pennsylvania law requiring a unanimous vote on pardon and commutation recommendations.
Article IV § 9(a) of Pennsylvania’s constitution authorizes the governor to commute or pardon a prisoner. Such authority is exercised upon a recommendation of the Pennsylvania Board of Pardons under Article IV § 9(b). Prior to 1997, § 9(a) authorized a recommendation upon a majority vote.
In 1994 the governor commuted Reginald McFadden’s life sentence for murdering a 67-year-old woman, upon a majority vote of the Board of Pardons. Just 92 days after his release, McFadden raped and murdered another woman. He also murdered a man and a 78-year-old woman.
In the wake of McFadden’s carnage, Pennsylvania voters amended the state constitution to require a unanimous vote on commutation and pardon recommendations; the amendment also required that the Board’s membership include a crime victim.
The constitutional amendment took effect on November 4, 1997. Eight days later, the Pennsylvania Prison Society and other plaintiffs challenged the amendment in federal court.
On March 13, 2006, the district court held “that the new requirement of Board unanimity in recommending pardons for prisoners sentenced to life imprisonment ... violated the Ex Post Facto Clause.” The court denied relief in all other respects. See: Pennsylvania Prison Society v. Rendell, 419 F.Supp.2d 651 (M.D. Pa. 2006) [PLN, Feb. 2007, p.25].
On appeal, the Third Circuit remanded for further consideration of the issue of standing. See: Pennsylvania Prison Society v. Cortes, 508 F.3d 156 (3d Cir. 2007) [PLN, April 2008, p.25]. The lower court subsequently concluded that the plaintiffs had standing, and reinstated its previous summary judgment ruling on June 11, 2009. See: Pennsylvania Prison Society v. Cortes, 2009 WL 1653543 (M.D. Pa. 2009).
On appeal after remand, the Third Circuit upheld the district court’s decision as to standing but reversed its ex post facto holding on three grounds.
First, the appellate court noted that the governor may deny a commutation or pardon for any reason or no reason at all. As such, the plaintiffs could not show “that the 1997 Amendment raises a ‘significant risk’ that commutations will be denied that otherwise would have been received,” citing Snodgrass v. Robinson, 512 F.3d 999, 1002 (8th Cir. 2008).
Second, the Court of Appeals disagreed with the district court’s determination that Mickens-Thomas v. Vaughn, 321 F.3d 374 (3d Cir. 2003) [PLN, June 2004, p.24] was controlling law, because pardon and parole are distinctly different. Given the unpredictability of the discretionary commutation process, the plaintiffs could not demonstrate a significant risk of increased punishment. Before or after enactment of the constitutional amendment, there was never any certainty that a Pennsylvania lifer would ever be released from prison.
Finally, the Third Circuit agreed “with the Board of Pardons that the 1997 Amendment presents no viable ex post facto claim because it only concerns a change in the voting procedures employed by the Board of Pardons, a change that does not affect the prisoners’ substantial rights and thus one that is ‘too slight’ to bring it within the scope of the Ex Post Facto Clause.” See: Pennsylvania Prison Society v. Cortes, 622 F.3d 215 (3d Cir. 2010), cert. denied.
Article IV § 9(a) of Pennsylvania’s constitution authorizes the governor to commute or pardon a prisoner. Such authority is exercised upon a recommendation of the Pennsylvania Board of Pardons under Article IV § 9(b). Prior to 1997, § 9(a) authorized a recommendation upon a majority vote.
In 1994 the governor commuted Reginald McFadden’s life sentence for murdering a 67-year-old woman, upon a majority vote of the Board of Pardons. Just 92 days after his release, McFadden raped and murdered another woman. He also murdered a man and a 78-year-old woman.
In the wake of McFadden’s carnage, Pennsylvania voters amended the state constitution to require a unanimous vote on commutation and pardon recommendations; the amendment also required that the Board’s membership include a crime victim.
The constitutional amendment took effect on November 4, 1997. Eight days later, the Pennsylvania Prison Society and other plaintiffs challenged the amendment in federal court.
On March 13, 2006, the district court held “that the new requirement of Board unanimity in recommending pardons for prisoners sentenced to life imprisonment ... violated the Ex Post Facto Clause.” The court denied relief in all other respects. See: Pennsylvania Prison Society v. Rendell, 419 F.Supp.2d 651 (M.D. Pa. 2006) [PLN, Feb. 2007, p.25].
On appeal, the Third Circuit remanded for further consideration of the issue of standing. See: Pennsylvania Prison Society v. Cortes, 508 F.3d 156 (3d Cir. 2007) [PLN, April 2008, p.25]. The lower court subsequently concluded that the plaintiffs had standing, and reinstated its previous summary judgment ruling on June 11, 2009. See: Pennsylvania Prison Society v. Cortes, 2009 WL 1653543 (M.D. Pa. 2009).
On appeal after remand, the Third Circuit upheld the district court’s decision as to standing but reversed its ex post facto holding on three grounds.
First, the appellate court noted that the governor may deny a commutation or pardon for any reason or no reason at all. As such, the plaintiffs could not show “that the 1997 Amendment raises a ‘significant risk’ that commutations will be denied that otherwise would have been received,” citing Snodgrass v. Robinson, 512 F.3d 999, 1002 (8th Cir. 2008).
Second, the Court of Appeals disagreed with the district court’s determination that Mickens-Thomas v. Vaughn, 321 F.3d 374 (3d Cir. 2003) [PLN, June 2004, p.24] was controlling law, because pardon and parole are distinctly different. Given the unpredictability of the discretionary commutation process, the plaintiffs could not demonstrate a significant risk of increased punishment. Before or after enactment of the constitutional amendment, there was never any certainty that a Pennsylvania lifer would ever be released from prison.
Finally, the Third Circuit agreed “with the Board of Pardons that the 1997 Amendment presents no viable ex post facto claim because it only concerns a change in the voting procedures employed by the Board of Pardons, a change that does not affect the prisoners’ substantial rights and thus one that is ‘too slight’ to bring it within the scope of the Ex Post Facto Clause.” See: Pennsylvania Prison Society v. Cortes, 622 F.3d 215 (3d Cir. 2010), cert. denied.
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Related legal cases
Pennsylvania Prison Society v. Cortes
| Year | 2010 |
|---|---|
| Cite | 622 F.3d 215 (3d Cir. 2010), cert. denied |
| Level | Court of Appeals |
| Injunction Status | N/A |
Pennsylvania Prison Society v. Cortes
| Year | 2009 |
|---|---|
| Cite | 2009 WL 1653543 (M.D. Pa. 2009) |
| Level | District Court |
| Injunction Status | N/A |