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November 12, 2007

Unpacking the legal and practical consequences of parole changes

Adam Liptak's latest "Sidebar" column in the New York Times, "Contemplating the Meaning of 'Life,'" highlights an issue that many courts are likely to confront as parole opportunities get tighter and tighter.  Here are snippets from a piece flagging an issue that could justify a lot of serious scholarship:

In 1977, when Gerald L. Hessell was sentenced to life in prison for second-degree murder, a gallon of gas cost 62 cents and a life term in Michigan meant about 15 years. But Michigan changed its parole system in 1992, replacing a parole board made up of civil servants with political appointees. The new board summarized its thinking in a presentation to the state’s judges in 2001: “A life sentence means life in prison.”

Mr. Hessell was released the other day, thanks in part to a decision from a federal judge in Detroit last month ruling that the state had violated the ex post facto clause of the Constitution when it changed the parole rules.  The clause says the government cannot increase punishments retroactively. Mr. Hessell was 19 when he was sentenced, and he is 50 now. “I was told by my attorney at the time that I could look to do about 12 to 15 years provided I had a clean record,” he said last week. “It was a 31-year fight to get out.”

It is not clear how the federal judge’s decision will affect about 1,000 other Michigan lifers sentenced before 1992.  The judge, Marianne O. Battani, has yet to decide exactly what should follow from her ruling, and the state has said it will almost certainly appeal once she does....

It used to be, the plaintiffs in the Detroit suit said, that more than 5 percent of lifers were paroled every year. These days, the number has dropped to less than a fifth of a percent.  A survey of 95 current and retired judges by the Michigan bar released in 2002 indicated that a majority thought that lifers eligible for parole would serve fewer than 20 years....

Courts in other states have also been struggling with how far states can go in changing their pardon and parole systems retroactively. In 1997, for example, the Pennsylvania board of pardons reserved a seat for a crime victim and required a unanimous rather than majority vote.

Last year, a lower court ruled that those changes violated the ex post facto clause.  Last Monday, a federal appeals court in Philadelphia said the particular plaintiffs in the suit may not have had standing to sue and ordered the trial judge to look into that.  It did not address the central question in the case.

November 12, 2007 at 08:37 AM | Permalink


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The authors intended for the prohibition of ex post facto laws to extend to civil laws as well as criminal laws, as James Madison noted in Federalist No. 44:

"Bills of attainder, ex-post facto laws, and laws impairing the obligation of contracts are contrary to the first principles of the social compact, and to every principle of sound legislation.... [T]he sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more industrious and less informed parts of the community. They have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding. They very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measure, inspire a general prudence and industry, and give a regular course to the business of society."

The references to "prudence and industry'' and giving a "regular course to the business of society'' suggest that the constitutional prohibition against ex post facto laws should be seen as applying to both civil and criminal laws because of public policy reasons. In Federalist No. 84, Madison also refers to criminal laws:

"The establishment of the writ of habeas corpus, the prohibition of ex-post-facto laws, and of titles of nobility, to which we have no corresponding provision in our Constitution, are perhaps greater security to liberty and republicanism than any it contains. The creation of crimes after the commission of the fact, or ... the subjecting of men to punishment for things which, when they were done, were breaches of no law ... have been, in all ages, the favorite and most formidable instruments of tyranny."

Posted by: George | Nov 12, 2007 11:28:28 AM

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