Burnette v. Fahey

• Decision Date: 09 July 2012
• Docket Number: No. 11–1324.,11–1324.
• Citation: 687 F.3d 171
• Parties: Sharon BURNETTE; Pamela K. Burroughs; Frank Carter, Jr.; Edward Conquest; Donald W. Hoffman; Monty King, formerly known as Imond Monty Hicks; Larry Macon; Marvin McClain; Benjamin Purdue, Jr.; Henry Stump; Barbara Tabor, Suing on behalf of themselves and all others similarly situated, Plaintiffs–Appellants, v. Helen F. FAHEY, In her capacity as Chair of the Virginia Parole Board; Carol Ann Sievers, In her capacity as Vice–Chair of the Virginia Parole Board; Jackie T. Stump, In his capacity as a Member of the Virginia Parole Board; Michael M. Hawes, In his capacity as a Member of the Virginia Parole Board; Rudolph C. McCollum, Jr., In his capacity as a Member of the Virginia Parole Board, Defendants–Appellees, Steven Wayne Goodman, Amicus Supporting Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

687 F.3d 171

Sharon BURNETTE; Pamela K. Burroughs; Frank Carter, Jr.; Edward Conquest; Donald W. Hoffman; Monty King, formerly known as Imond Monty Hicks; Larry Macon; Marvin McClain; Benjamin Purdue, Jr.; Henry Stump; Barbara Tabor, Suing on behalf of themselves and all others similarly situated, Plaintiffs–Appellants,

v. Helen F. FAHEY, In her capacity as Chair of the Virginia Parole Board; Carol Ann Sievers, In her capacity as Vice–Chair of the Virginia Parole Board; Jackie T. Stump, In his capacity as a Member of the Virginia Parole Board; Michael M. Hawes, In his capacity as a Member of the Virginia Parole Board; Rudolph C. McCollum, Jr., In his capacity as a Member of the Virginia Parole Board, Defendants–Appellees,Steven Wayne Goodman, Amicus Supporting Appellant.

No. 11–1324.

United States Court of Appeals, Fourth Circuit.

Argued: March 21, 2012.

Decided: July 9, 2012.

ARGUED:Stephen Atherton Northup, Troutman Sanders, LLP, Richmond, Virginia, for Appellants. Earle Duncan Getchell, Jr., Office of the Attorney General of Virginia, Richmond, Virginia, for Appellees. ON BRIEF:Robert A. Angle, Robert M. Luck, III, Troutman Sanders, LLP, Richmond, Virginia; Abigail Turner, Alex R. Gulotta, Gail Starling Marshall, Legal Aid Justice Center, Charlottesville, Virginia, for Appellants. Kenneth T. Cuccinelli, II, Attorney General of Virginia, Stephen R. McCullough, Senior Appellate Counsel, Charles E. James, Jr., Chief Deputy Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellees. Steven W. Goodman, Dillwyn, Virginia, Amicus Curiae for Appellants.

Before NIEMEYER, GREGORY, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge FLOYD wrote the opinion, in which Judge NIEMEYER concurred. Judge GREGORY wrote a dissenting opinion.

OPINION

FLOYD, Circuit Judge:

Appellants (the Inmates), eleven inmates in the custody of the Virginia Department of Corrections (DOC), brought this action against members of the Virginia Parole Board (the Board) in their official capacities. The Inmates contend that the Board has adopted policies and procedures with respect to parole-eligible inmates imprisoned for violent offenses that violate the Due Process and Ex Post Facto Clauses of the United States Constitution. Most notably, they assert that the Board has implemented an unwritten policy of denying parole to persons incarcerated for violent offenses. The district court granted Appellees' motion to dismiss the complaint, and the Inmates filed this timely appeal. Because we agree that the complaint fails to set forth sufficient facts to establish a plausible entitlement to relief under either a due process or ex post facto theory, we affirm.

I.

A.

Prior to 1994, Virginia law provided for discretionary parole ¹ of incarcerated offenders. By legislation enacted in 1994, the General Assembly abolished discretionary parole for all persons incarcerated for felony offenses committed on or after January 1, 1995. SeeVa.Code Ann. § 53.1–165.1. This legislation did not disrupt the availability of discretionary parole for persons who committed crimes prior to 1995, however.

The Virginia Code entrusts the administration of the discretionary parole system to the Board, and it vests the Board with broad discretion in carrying out its responsibilities. Section 53.1–136 of the Code obligates the Board to “[a]dopt ... general rules governing the granting of parole and eligibility requirements, which shall be published and posted for public review.” Id. § 53.1–136(1). And this section further instructs that the Board “shall ... [r]elease on parole” parole-eligible persons who “are found suitable for parole, according to those rules” adopted by the Board. Id. § 53.1–136(2)(a). But the Board may not release any person without first conducting a “thorough investigation ... into the prisoner's history, physical and mental condition and character and his conduct, employment and attitude while in prison” and “determin[ing] that his release on parole will not be incompatible with the interests of society or of the prisoner.” Id. § 53.1–155(A). As a general rule, the Board must consider parole-eligible inmates on an annual basis, but it may defer subsequent review for up to three years if an inmate has at least ten years remaining on his sentence. Id. § 53.1–154.

In addition to discretionary parole, Virginia has a system of conditional release for geriatric prisoners, which it instituted in 1995. See id. § 53.1–40.01. This program is available to prisoners (i) ages sixty-five or older who have served at least five years of their imposed sentences or (ii) ages sixty or older who have served as least ten years of their imposed sentences. Id. Again, the Virginia Code grants the Board discretion to promulgate regulations implementing the geriatric release program. See id. The Board's written policy permits it to release an inmate under the geriatric release program only upon a finding of “compelling reasons.”

B.

The Inmates allege that, since the abolition of parole for new felony offenders in 1995, the Board has instituted policies and procedural changes that effect a de facto abolition of parole for parole-eligible persons convicted of violent offenses, defined in the complaint as “murder, rape, sodomy, robbery, assault, abduction, use of a weapon, and any other felony that the Board considers to be violent.”

As the Inmates observe, the Board has ceased utilizing a risk assessment tool that was in use prior to 1995. In addition, the Board has eliminated face-to-face interviews of prisoners by Board members, supplanting them with interviews, often via video, by parole examiners who then submit reports to the Board through an electronic database. Board members also have stopped meeting in person; instead, they circulate an inmate's file before voting electronically to grant or deny parole. And, pursuant to a 2002 rule change, the Board has decreased the frequency of its meetings with inmates' families and representatives, who now may schedule such meetings no more than once every two years and may meet with only one of the five Board members.

In addition to these procedural changes, the Inmates note that, in 1998, the Board repealed prior rules governing parole that it had published in the Virginia Administrative Code. In place of these rules, it distributed a “Policy Manual.” This Manual outlines fourteen factors that, according to the Board, guide its discretion in parole decisions. The nature of the offense of incarceration is one such factor, along with considerations of rehabilitation and the risk posed by the prisoner to himself and to society upon his release.

Despite the multiplicity of factors identified in this Manual, the Inmates allege that, in practice, the Board “has relied primarily, if not exclusively, on the ‘serious nature and circumstances of the crime’ when making parole determinations with regard to inmates convicted of violent offenses” and has failed to give “fair or meaningful consideration to other factors in its Policy Manual.” They claim that the Board's procedural changes reflect its choice to consider only the nature of the original offense. The exclusive reliance on this consideration, the Inmates aver, “has resulted in virtually automatic and repeated denials of parole for inmates convicted of violent offenses, even when the other factors in the Manual and the statute would favor release.”

C.

The Inmates cite extensive statistical evidence to support their claim of a de facto abolition of parole for those convicted of violent offenses. Prior to the elimination of discretionary parole for new offenders, they note, Virginia's parole-grant rate—the percentage of those considered who were granted parole—exceeded 40%. In 1989, 42% of those considered were released on parole, and from 1990 to 1993, the parole-grant rate averaged over 41%. As a result of this relatively high grant rate, offenders generally did not serve the entire length of their sentences: in 1993, a person convicted of a violent offense in Virginia served, on average, only 38% of his total sentence. And, according to the Inmates, these numbers led participants in the court system, including defendants and sentencing judges, to anticipate early release.

Since 1995, however, Virginia has seen a precipitous decrease in the parole-grant rate. The rate for all parole-eligible inmates dipped to 18% in fiscal year (FY) 1996. It further declined to 8% in FY 2000 and to less than 5% in FY 2008. Violent offenders face still lower parole-grant rates: the rate for inmates convicted of violent offenses ranged between 3.7% and 2.1% per year from FY 2002 to FY 2008. And many of those granted parole were nearing their mandatory parole release dates, often having “already served more than 85% of the time before their mandatory parole release date[s].”

The Inmates contend that one factor, the seriousness of the offense, has played the primary or exclusive role in motivating the Board to deny parole to violent offenders. In FYs 2006 and 2007, for example, the Board cited “ ‘the serious nature and circumstances of the crime’ or words to that effect” as the sole reason for its decision in approximately 45% of all parole denials.

According to the Inmates, this focus on the seriousness of the offense has also infected the Board's administration of the geriatric release program. They allege that since the program went into effect in 1995, the Board has granted only seven geriatric release petitions. And it has named the serious nature of the original offense as the reason for 95% of the denials.

D.

The Inmates ² are among those parole-eligible inmates convicted of violent offenses committed prior to January 1, 1995, who have been denied parole. Each was convicted of at least one count of murder. Their sentences range from eighty years' imprisonment to multiple life terms, and each has served at least twenty-three years of his or...