622 F.3d 215 (3rd Cir. 2010), 09-3017, PA Prison Soc. v. Cortes

Docket Nº:09-3017, 09-3018.
Citation:622 F.3d 215
Opinion Judge:ALARC
Party Name:PA PRISON SOCIETY; Julia D. Hall; Gregory H. Knight; Fight for Lifers Inc.; William Goldsby; Joan Porter; Graterfriends Inc.; Joan F. Gauker; Vincent Johnson; Friends Committee to Abolish the Death Penalty Inc.; Kurt Rosenberg; Pennsylvania Abolitionists United Against the Death Penalty; Terry Rumsey; Roger Buehl; Douglas Hollis; Dianna Hollis v. P
Attorney:Thomas W. Corbett, Jr., Attorney General, Richard A. Sheetz, Jr., Executive Deputy Attorney General, Amy Zapp (Argued), Chief Deputy Attorney General, Special Litigation Section, Office of the Attorney General, Harrisburg, PA, for Appellants/Cross-Appellees. Stephen A. Whintson (Argued), Philadel...
Judge Panel:Before: SCIRICA, AMBRO and ALARC
Case Date:October 01, 2010
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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622 F.3d 215 (3rd Cir. 2010)

PA PRISON SOCIETY; Julia D. Hall; Gregory H. Knight; Fight for Lifers Inc.; William Goldsby; Joan Porter; Graterfriends Inc.; Joan F. Gauker; Vincent Johnson; Friends Committee to Abolish the Death Penalty Inc.; Kurt Rosenberg; Pennsylvania Abolitionists United Against the Death Penalty; Terry Rumsey; Roger Buehl; Douglas Hollis; Dianna Hollis

v.

Pedro A. CORTES, Secretary, Commonwealth of Pennsylvania; Honorable Edward G. Rendell; Joseph B. Scarnati, Lt. Governor; Thomas W. Corbett, Jr.; Louise B. Williams; Russell A. Walsh, Ph.D.; John E. Wetzel

(Pursuant to Fed. R.App. P. 43)

Joseph B. Scarnati, Thomas W. Corbett, Louise B. Williams, Russell A. Walsh, John E. Wetzel, Appellants.

Pennsylvania Prison Society; Douglas Hollis; Parole Plaintiffs, Keith Smith, Jackie Lee Thompson

(Pursuant to F.R.A.P. 12(A))

v.

Pedro A. Cortes; Honorable Edward G. Rendell; Joseph B. Scarnati, Lt. Governor; Thomas W. Corbett, Jr.; Louise B. Williams; Russell A. Walsh, Ph.D.; John A. Wetzel

Pennsylvania Prison Society, Douglas Hollis, Keith Smith, Jackie Lee Thompson, Appellants.

Nos. 09-3017, 09-3018.

United States Court of Appeals, Third Circuit.

October 1, 2010

Argued April 19, 2010.

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Thomas W. Corbett, Jr., Attorney General, Richard A. Sheetz, Jr., Executive Deputy Attorney General, Amy Zapp (Argued), Chief Deputy Attorney General, Special Litigation Section, Office of the Attorney General, Harrisburg, PA, for Appellants/Cross-Appellees.

Stephen A. Whintson (Argued), Philadelphia, PA, for Appellees/Cross-Appellants.

Before: SCIRICA, AMBRO and ALARCÓN [*], Circuit Judges.

OPINION

ALARCÓ N, Circuit Judge.

We are asked to decide whether an amendment to Article IV, § 9(a) of the Constitution of the Commonwealth of Pennsylvania, that alters the voting procedures employed by the Pennsylvania Board of Pardons to require unanimity in recommending pardons and commutations for life-sentenced prisoners to the Governor, violates the Ex Post Facto Clause of the United States Constitution.

The District Court ruled that the constitutional amendment, passed by Pennsylvania voters in 1997 (" 1997 Amendment" ), violates the Ex Post Facto Clause for prisoners sentenced to a term of life imprisonment prior to its effective date. Because none of the prisoners who are seeking relief in this action has shown that there is a significant risk the 1997 Amendment will increase the length of their punishment, an element essential to establishing an ex post facto violation, Plaintiffs have failed to state a viable claim. We will therefore reverse and remand with instructions to dismiss the ex post facto action.

I

Under the Constitution of the Commonwealth of Pennsylvania, the Governor is empowered " in all criminal cases except impeachment ... to grant reprieves, commutation of sentences and pardons...." Pa. Const. art. IV, § 9(a). " Like Article II of the U.S. Constitution, Article IV of the Pennsylvania Constitution delineates powers of the executive branch." Pa. Prison Soc'y v. Cortés, 508 F.3d 156, 159 n. 4 (3d Cir.2007) (" Prison Society I " ). The Governor's decision whether to commute a sentence is based upon recommendations made by the Pennsylvania Board of Pardons (" the Board of Pardons" ), also part of the executive branch. Pa. Const. art. IV, § 9(b)1; see also Commonwealth ex rel. Cater v. Myers, 412 Pa. 67, 71, 194 A.2d 185 (1963) ( " The Board of Pardons is a board of clemency which is constitutionally ordained to recommend to the Governor of

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Pennsylvania the grant or denial of clemency, i.e., commutation of sentence or pardon of persons who have been convicted of and sentenced for crime." ).2

Prior to November 4, 1997, Article IV, § 9(a) of the Constitution of the Commonwealth of Pennsylvania provided, in relevant part, that:

In all criminal cases except impeachment the Governor shall have the power to remit fines and forfeitures, to grant reprieves, commutation of sentences and pardons; but no pardon shall be granted, nor sentence commuted, except on the recommendation in writing of a majority of the Board of Pardons, after full hearing in open session, upon public notice....

Pa. Const. art. IV, § 9(a) (amended 1997) (emphasis added).

In 1997, a ballot question proposing an amendment to the constitution that would alter the composition of and voting procedures employed by the Board of Pardons was scheduled to be submitted to Pennsylvania voters. The proposed ballot question read:

Shall the Pennsylvania Constitution be amended to require a unanimous recommendation of the Board of Pardons before the Governor can pardon or commute the sentence of an individual sentenced in a criminal case to death or life imprisonment, to require only a majority vote of the Senate to approve the Governor's appointments to the Board, and to substitute a crime victim for an attorney and a corrections expert for a penologist as Board members?

Pa. Prison Soc'y v. Commonwealth, 565 Pa. 526, 532, 776 A.2d 971 (2001). The 1997 Amendment of the Board of Pardons' procedures was motivated by a 1994 incident in which Reginald McFadden, a prisoner sentenced to life imprisonment who had been granted commutation by the Governor, after a majority of the Board of Pardons voted to recommend it, committed a new murder in the State of New York. (2d Amend Compl. ¶ 26); see also Hearings on Pennsylvania Board of Probation and Parole Reforms Before the House Judiciary Comm., 1995 Gen. Assembly 179th Sess. (Pa. June 9, 1995); S. of Pa. Judiciary Comm., Chairman's Rep. Investigation into the Parole of Robert Simon, 1995 Gen. Assembly, 179th Sess. 1-6 (Pa.1996); (Appellants' Br. 19 (citing A000522-A000525, testimony of Mark Singel)); Appellees' Br. 43. 3.

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On November 4, 1997, Pennsylvania voters approved the ballot measure. Article IV, § 9(a) of the Constitution of the Commonwealth of Pennsylvania was amended to read as follows:

In all criminal cases except impeachment the Governor shall have power to remit fines and forfeitures, to grant reprieves, commutation of sentences and pardons; but no pardon shall be granted, nor sentence commuted, except on the recommendation in writing of a majority of the Board of Pardons, and in the case of a sentence of death or life imprisonment, on the unanimous recommendation in writing of the Board of Pardons, after full hearing in open session, upon due public notice.

Pa. Const., art. IV, § 9(a). Accordingly, the 1997 Amendment changed the number of votes needed to support the Pardon Board's recommendation to the Governor that a life sentence be commuted to a term of years with the possibility of parole from majority to unanimous and substituted a crime victim instead of an attorney and a corrections expert instead of a penologist as Board members.

A

Pennsylvania law distinguishes between the exercise of the Governor's clemency power to grant pardons and commutations pursuant to the Constitution of the Commonwealth, and the authority to release a prisoner on parole, which is an independent function of the Board of Probation and Parole. Unlike the Board of Pardons, which is constitutionally mandated and operates as a function of the Pennsylvania Department of Justice, 71 Pa.Stat. § 12, the Pennsylvania Board of Probation and Parole is an independent board, originally created by the Parole Act of 1941. See Parole Act of 1941, 1941 Pa. Laws 861 (codified as amended at 61 Pa. Stat. Ann. §§ 331.1-.21 repealed by Act of Aug. 11, 2009, ch. 61, 2009 Pa. Laws 33). The Parole Act states that " [t]he parole system provides several benefits to the criminal justice system, including the provision of adequate supervision of the offender while protecting the public, the opportunity for the offender to become a useful member of society and the diversion of appropriate offenders from prison." Id.; see also 61 Pa. Cons.Stat. § 6111(a)-(b) (2010) (providing that the Board of Probation and Parole is " an independent administrative board for the administration of the probation and parole laws of this Commonwealth" consisting of nine members who are appointed by the Governor).

By contrast, " [t]he constitutional power of the Governor to grant pardons and commutations of sentence is exclusive ..." Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 585, 28 A.2d 897 (1942). As the Pennsylvania Supreme Court explained in Commonwealth v. Zook, 532 Pa. 79, 114, 615 A.2d 1 (1992):

The Governor's power to commute sentences is found within Article IV, § 9 of the Pennsylvania Constitution. Under our Constitution of 1776, § 20, the Supreme Executive Council had the power to grant pardons and remit fines in all cases except in cases of impeachment. This doctrine has evolved over the years into the present day enactment, which provides in pertinent part: (a) In all criminal cases except impeachment, the Governor shall have power to remit fines and forfeitures, to grant reprieves, commutation of sentences and pardons; but no pardon shall be granted, nor sentence commuted, except on the recommendation in writing of a majority of the Board of Pardons, after full hearing in open session, upon due public notice....

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Id. (citing Pa. Const. art. IV, § 9) (citations omitted). 4 In Banks, the court discussed the differences between the concepts of parole and pardons and explained that:

[t]here is a radical difference between a pardon and a parole. A pardon is the exercise of the sovereign's prerogative of mercy. It completely frees the offender from the control of the state. It not only exempts him from further punishment but relieves him from all...

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