hearings accorded to the members of the class.
Burbank asserts that adoption of explicit criteria is
constitutionally required and necessary to ensure that the
Board does not continue its practice of denying parole on the
basis of the ex post facto policies condemned in Welsh.
While there admittedly is some similarity between the issues
raised on behalf of the class in Burbank and those raised by
Jacobs, they are not identical. The relief Jacobs seeks —
release — is broader than the injunctive relief sought by the
class in Burbank. Moreover, unlike Jacobs, the plaintiff in
Burbank does not directly challenge on due process grounds the
adequacy of the reasons given for the denial of his parole,
even though those reasons are exactly the same as the reasons
given to Jacobs. The issue in Burbank is whether Welsh or due
process compels the Board to issue specific criteria for parole
release decisions. Resolution of this issue does not
necessarily dispose of the issues raised by Jacobs — whether a
particular set of reasons for parole denial comply with due
process or violate the ex post facto clause. Since the issues
presented in Burbank differ from those asserted by Jacobs,
Jacobs' rights are not fully protected by his membership in the
Burbank class. Under these circumstances, dismissal of the
individual petition brought by Jacobs is not warranted. See
Crawford v. Bell, 599 F.2d 890, 893 (9th Cir. 1979).
IV. MOTION TO DISMISS HORTON'S PETITION
Respondents seek to dismiss Horton's petition on grounds of
mootness. They state that the Board has granted Horton a
rehearing on his application for parole which is scheduled for
January 6, 1983. Relying on Bradford v. Weinstein,
423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975), respondents contend
that the petition is now moot because Horton has received all
the relief he sought.
The fact that the Board has scheduled Horton for a new
hearing does not render this action moot. Horton seeks more
than just a new parole bearing. He seeks a new hearing that
comports with due process and that does not consider criteria
foreclosed by the ex post facto clause. Whether the newly
scheduled hearing will adequately safeguard Horton's
constitutional rights is speculative. The possibility that
Horton will again be denied parole for improper or inadequate
reasons is sufficient to satisfy the case or controversy
requirement of Article III. See Chapman v. Kleindienst,
507 F.2d 1246, 1249-50 (7th Cir. 1974).
The instant case is distinguishable from Bradford, supra. In
Bradford, the prisoner had not only been released on parole,
but discharged from custody. Therefore, at the time his case
came before the Supreme Court, he no longer had any present
interest affected by parole release procedures. Since Horton is
still subject to the parole policies he challenges in his
petition, his case is not moot.
V. MOTIONS FOR SUMMARY JUDGMENT
The claims asserted in the petitions are premised primarily
on two recent decisions of the Seventh Circuit. Relying on
Welsh v. Mizell, supra, both Jacobs and Horton contend that
their parole release hearings violated the ex post facto
clause. Additionally, relying on United States ex. rel. Scott
v. Illinois Pardon and Parole Board, 669 F.2d 1185 (7th Cir.),
cert. denied, ___ U.S. ___, 103 S.Ct. 468, 74 L.Ed.2d 617
(1982), petitioners assert that the reasons given for the
denial of their applications for parole release were so vague
as to violate due process. Finding that petitioners are
entitled to relief on due process grounds, the court does not
reach the petitioners' ex post facto claims.
A state has no duty to establish a parole system, and where
such a system has been implemented, a prisoner has no
constitutional or inherent right to be paroled. Greenholtz v.
Inmates of the Nebraska Penal and Correctional Complex,
442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979).
Nonetheless, as Greenholtz recognized, a state statute
governing parole may provide an inmate with a legitimate
release thereby giving rise to a liberty interest entitled to
protection under the due process clause. In Scott, supra, the
Seventh Circuit examined the relevant Illinois statutes and
regulations governing parole to determine if they created a
liberty interest subject to considerations of due process.
Applying the analysis employed in Greenholtz, the court
concluded that Illinois law creates "a legitimate expectation
of parole entitled to some measure of constitutional
protection." Scott, supra, 669 F.2d at 1190. The court further
held that a statement of reasons for the denial of parole is
included among the minimum procedural protections required by
due process in the context of parole release determinations.
Id. at 1192.
Respondents argue that Scott is not controlling precedent
here. Citing Welsh as authority, they contend that the court
must examine the parole statutes in effect at the time
petitioners committed their crimes to determine if due process
applies. They maintain that the statutes governing parole at
that time, unlike those considered in Scott, did not purport to
limit the Board's discretion thereby creating a protectible
liberty interest in parole release. Absent a legitimate
expectation of parole release under the relevant statutes,
petitioners, according to respondents' reasoning, have no
constitutional right to due process safeguards such as an
adequate statement of reasons for parole denial.
Respondents' argument is built on a fallacious premise.
Nothing in Welsh requires the Board to consider petitioners for
parole under the statutes in effect at the time of their
crimes. The broad reading of Welsh urged by respondents finds
support neither in the language of Welsh nor the cases
interpreting the ex post facto clause.
The issue before the court in Welsh was whether the Board
could deny petitioner parole on the sole basis of the second of
three criterion contained in the 1973 revisions to the parole
statutes. The court found that this criterion, based on
considerations of general deterrence, imported a new factor
into the parole release process that could not have had
decisive weight in decision-making under prior law. The court
found that reliance on this factor alone as a reason for parole
denial substantially disadvantaged petitioner. Therefore,
retroactive application of the second criterion to petitioner,
who had committed his crime prior to 1973, violated the ex post
facto clause. The court remanded the case back to the Board
"for reconsideration under the relevant guidelines" stating:
We hold only that the constraints on the Parole
Board's discretion in Welsh's case must be those
contained in the statute and regulations that
were in effect in 1962, not those subsequently
Id. at 332.
Welsh does not foreclose the Board from applying the present
parole statute to prisoners who committed offenses prior to
1973. It only forecloses exclusive application of factors based
on general deterrence, such as the seriousness nature of the
parole applicant's offense. As noted in that opinion, the other
two criteria contained in the present statute "invite the
Parole Board to look at many of the same factors as under
previous law." Id. at 331. By implication, denial of parole on
the basis of one of those criteria, alone or in conjunction
with other reasons unspecified in the statute,*fn3 does not
contravene the ex post facto clause.
The ex post facto provision of the Constitution forbids
enactment of laws that enhance the punishment of a crime after
its commission. See Lindsey v. Washington, 301 U.S. 397, 401,
57 S.Ct. 797, 799, 81 L.Ed. 1182 (1937). It does not, however,
prohibit a state from enacting changes in its criminal
statutes. That this is not the purpose of the ex post facto law
was made clear in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct.
2290, 53 L.Ed.2d 344 (1977):
[T]he inhibition upon the passage of ex post facto
laws does not give a criminal a right to be tried,
in all respects, by the
law in force when the crime charged was
committed. The constitutional provision was
intended to secure substantial personal rights
against arbitrary and oppressive legislation, and
not to limit the legislative control of remedies
and modes of procedure which do not affect
matters of substance.
Id. at 293, 97 S.Ct. at 2298 (citations omitted).