Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. No. TH 83-18-C - S. Hugh Dillin, Chief Judge.
Cudahy and Posner, Circuit Judges and Swygert, Senior Circuit Judge.
This is an appeal from a denial of a writ of habeas corpus. Petitioner argued in district court that the application to his case of a parole statute and related guidelines adopted subsequent to his sentencing is a violation of the ex post facto prohibition of the United States Constitution. The district court found that the new guidelines and statute could not be shown to create any additional disadvantage to the petitioner and denied his petition. We vacate and remand.
Petitioner-Appellant, William J. Prater, is serving a life sentence imposed upon him in the Western District of Pennsylvania for the offense of conspiracy to injure, oppress or threaten a U.S. citizen. The conspiracy of which Mr. Prater was convicted resulted in the murder of United Mine Workers official Joseph Yablonski and two family members on December 31, 1969. This was a notorious murder and was widely deplored at the time.
On February 3, 1982, two hearing examiners conducted Mr. Prater's initial parole hearing at the United States Penitentiary at Terre Haute, Indiana, pursuant to the provisions of 28 C.F.R. § 2.13 (1981). After consideration of the relevant factors, the panel recommended parole effective August 8, 1982. Subsequently, the application for parole was designated for original jurisdiction and referred to the National Commissioners pursuant to the provisions of 28 C.F.R. § 2.17 (1981).
On March 24, 1982, the National Commissioners issued a notice of action which set a presumptive parole eligibility date of April 14, 1988. The reason stated by the commissioners for this action was that "release at this time would depreciate the severity of your offense behavior." After an appeal to and hearing before the full commission in June of 1982, the commission affirmed the deferment of Mr. Prater's parole to April of 1988.
Throughout Mr. Prater's ten years of confinement he has maintained a clear institutional record of no disciplinary "write-ups" and has worked in prison industries; he had no prior convictions or history of drug dependence. He therefore received the highest possible "salient factor" score of ten (10). The special prosecutor investigating the Yablonski murders, Richard A. Sprague, and sentencing Judge Gerald J. Weber recommended clemency in view of Mr. Prater's cooperation with the government in the prosecution of other conspirators.
On January 28, 1983, Prater filed a petition for writ of habeas corpus in the district court. One of the grounds for relief, and the only one raised on this appeal, is that the denial of parole for the reason that Prater's release would depreciate the severity of his offense was in violation of the ex post facto clause of the United States Constitution.
The district court entered an order to show cause and the respondents responded on March 23, 1983. The response did not deny any of the factual allegations, but asserted that the respondents were entitled to dismissal of the petition as a matter of law. On May 16, 1983, the petitioner filed a motion for judgment on the pleadings noting the absence of a dispute as to any material fact in asserting that he was entitled to judgment as a matter of law.
The respondents filed a memorandum in response to the motion for judgment on the pleadings and supplemented their response by the filing of three additional exhibits relating to the Parole Commission's action. Subsequently, the district court, ruling on the respondents' motion to dismiss and petitioner's motion for judgment on the pleadings and finding that no evidentiary hearing was necessary, granted the respondents' motion and dismissed the petition. Petitioner Prater then took this appeal.
Petitioner's argument on appeal is relatively straightforward. He pleaded guilty in 1973 to an offense committed in 1969 for which he was sentenced in June 1973. In 1969 and in 1973, the standard for parole release was governed by 18 U.S.C. § 4203 (1969) which required a determination that the prisoner would live at liberty without violating the law and that release was not "incompatible with the welfare of society."*fn1 There were no formal regulatory guidelines for the exercise of the Board's discretion at the time of Mr. Prater's offense or his plea of guilty.
In November 1973, the Parole Board adopted regulations which prescribed reasons for denial of parole and established guidelines for the length of time to be served based on the "salient factor" scores of individual characteristics and offense severity ratings. 38 Fed. Reg. 31942-45 (1973). In addition to the "institutional performance" and "public welfare" standards recognized in the then - applicable statute, the new regulations provided that the reasons for parole denial could include the factor that "release, in the opinion of the Commission, would depreciate the seriousness of the offense or promote disrespect for the law." 28 C.F.R. § 2.13(d)(2) (1981).*fn2 In 1976 Congress passed the Parole Commission and Reorganization Act of 1976, P.L. 94-233, 90 Stat. 219, codified at 18 U.S.C. § 4206(a)(1) (Supp. 1982).*fn3 Whereas the 1973 guidelines permitted the Parole Board to consider depreciation of the seriousness of the offense (thereby perhaps just codifying prior practice), Congress made that criterion a precondition of parole in the new act.
The "new" criterion contained in the 1973 guidelines and the 1976 statute relating to the depreciation of the seriousness of the offense and the promotion of disrespect for the law is a standard based on "retributive justice" (the relationship between time served and the nature of the offense) and "general deterrence" (incarceration as a means of promoting general respect for the law). See Heirens v. Mizell, 729 F.2d 449, 452 (7th Cir.), cert. denied, 469 U.S. 842, 105 S. Ct. 147, 83 L. Ed. 2d 85 (1984). The contention here, as in Heirens, is that the introduction of an explicit general deterrence criterion into a parole scheme ostensibly guided solely by considerations of rehabilitation, rise of release to society and special deterrence (involving the characteristics of the prisoner himself and not the effect of his parole treatment on others) operates as a ex post facto law in violation of the Constitution. The argument is that this "new" criterion introduces a factor subsequent to the time of the commission of the crime and the time of the guilty plea and of sentencing, which makes it more difficult for the prisoner to win parole. We shall focus our analysis on the statutory change rather than on the introduction of the guidelines since a number of courts have held that such guidelines do not preclude or severely limit the exercise of discretion and therefore do not operate as ex post facto laws. Dufresne v. Baer, 744 F.2d 1543 (11th Cir. 1984); Warren v. United States Parole Comm'n, 212 U.S. App. D.C. 137, 659 F.2d 183 (D.C. Cir. 1981), cert. denied, 455 U.S. 950, 102 S. Ct. 1454, 71 L. Ed. 2d 665 (1982); Rifai v. United States Parole Comm'n, 586 F.2d 695 (9th Cir. 1978); Ruip v. United States, 555 F.2d 1331 (6th Cir. 1977). This principle, which may, at least in a general way, have been approved by this circuit in Zeidman v. United States Parole Comm'n, 593 F.2d 806, 807 (7th Cir. 1979), cannot in any event be applied to validate the 1976 statute which is before us.
On a closely analogous problem this circuit has, in effect, marched to the top of the hill and then down again on the other side. Thus, in Welsh v. Mizell, 668 F.2d 328, 331 (7th Cir.), cert. denied, 459 U.S. 923, 74 L. Ed. 2d 186, 103 S. Ct. 235 (1982), we held that the explicit introduction of similar retributive general deterrent considerations into the Illinois Parole statute operated as an ex post facto law and could not be applied to prisoners whose crimes were committed before the adoption of the statutory change. In Heirens, supra, however, we overruled Mizell because we determined from an examination of parole practice in Illinois that general deterrence had in fact been a valid consideration by the Parole Board even before the statutory revision which made this consideration one for explicit examination. In other words, we determined that, with respect to the Illinois statute, the adoption of a "depreciation of the seriousness of the offense" standard merely made explicit what had formerly been implicit in the administration of the parole statute and therefore there had been no violation of the ex post facto prohibition.
The facts of Heirens are somewhat like the facts in this case. William Heirens had been sentenced in 1946, in Illinois courts, to life imprisonment for each of three murders, and had been sentenced for other crimes to lesser terms, to run consecutively to the three life terms, which were themselves to run consecutively. In 1981 Heirens filed a petition for a writ of habeas corpus in federal court; he had been denied parole for the reason that release would depreciate the seriousness of his crime, and he claimed that the imposition of that criterion, adopted by the legislature in 1972, was in his case a violation of the ex post facto clause of the Constitution. While his petition was before the district court, we decided Welsh, saying that the "depreciation of the seriousness" standard was a marked departure from previous practice, and that its application to Welsh, who had been sentenced before the Illinois legislature had promulgated that standard, was indeed an ex post facto violation. The magistrate who had been assigned Heirens' petition ordered the Parole Board to give Heirens a new hearing, under Welsh, applying standards in effect at the time of Heirens' sentencing. The Parole Board made several attempts to justify the denial of parole but could not convince the magistrate that parole was being denied for reasons other than the retroactively inapplicable general deterrence rationale. The magistrate therefore ordered Heirens' release, and the Parole Board appealed.
In overruling Welsh, this court began by looking closely at existing practice before the passage of the Illinois statute. It found that although rehabilitative progress was considered by the Parole Board under the older practice, it was by no means the only consideration.
The Parole Board was effectively given unlimited discretion in deciding whether or not to parole a particular prisoner with the single exception that the Board include in its consideration the prisoner's conduct record while confined. We cannot conclude, as the court did in Welsh, that the statute's requirement that the Board consider an applicant's prison record eliminated all other pertinent criteria, including general deterrence and ...