Foster v. Booker

• Decision Date: 18 February 2010
• Docket Number: No. 08-1372.,No. 08-1626.,No. 08-1371.,08-1371.,08-1372.,08-1626.
• Citation: 595 F.3d 353
• Parties: Kenneth FOSTER, et al., Plaintiffs-Appellees (08-1371/1626); Plaintiffs/Cross-Appellants (08-1372), v. Sharee BOOKER, in his/her official capacity as member of the Michigan Parole Board, et al., Defendants-Appellants (08-1371/1626); Defendants/Cross-Appellees (08-1372).
• Court: U.S. Court of Appeals — Sixth Circuit

595 F.3d 353

Kenneth FOSTER, et al., Plaintiffs-Appellees (08-1371/1626); Plaintiffs/Cross-Appellants (08-1372), v. Sharee BOOKER, in his/her official capacity as member of the Michigan Parole Board, et al., Defendants-Appellants (08-1371/1626); Defendants/Cross-Appellees (08-1372).

No. 08-1371.

No. 08-1372.

No. 08-1626.

United States Court of Appeals, Sixth Circuit.

Argued: November 3, 2009.

Decided and Filed: February 18, 2010.

ARGUED: Kevin R. Himebaugh, Office of the Michigan Attorney General, Lansing, Michigan, for Defendants. Paul D. Reingold, Michigan Clinical Law Program, Ann Arbor, Michigan, for Plaintiffs. ON BRIEF: Kevin R. Himebaugh, Office of the Michigan Attorney General, Lansing, Michigan, for Defendants. Paul D. Reingold, Michigan Clinical Law Program, Ann Arbor, Michigan, for Plaintiffs.

Before: KENNEDY and ROGERS, Circuit Judges; HOOD, District Judge.^*

OPINION

ROGERS, Circuit Judge.

Defendants, the Michigan Parole Board and the Director of the Michigan Department of Corrections, appeal the district court's grant of summary judgment in favor of plaintiffs on their ex post facto claim. Plaintiffs, inmates in the custody of the Michigan Department of Corrections sentenced to life imprisonment with the possibility of parole for offenses committed before October 1, 1992, brought this § 1983 action to challenge the Michigan Parole Board's application of post-1992 changes to Michigan's parole laws to plaintiffs' parole review. The district court, in determining that application of the changes to plaintiffs violated the Ex Post Facto Clause, relied on statistics showing average annual rates of parole and average years served at parole from 1942 to 2004, as well as evidence that the post-1992 reconstituted Parole Board had curtailed the exercise of its discretion in a wholesale fashion. The district court subsequently entered a permanent injunction and awarded plaintiffs' costs and attorney fees.

To the extent that plaintiffs face a risk of increased punishment under the post-1992 parole laws as compared to the laws in effect when they committed their offenses, we cannot conclude that changes to the parole laws caused such an increase. Rather, the new Board's low rates of parole may be attributable largely to the legitimate exercise of discretion in granting fewer paroles. Even assuming that changes in the number of paroles did not result from a stricter exercise of discretion, it is not clear that plaintiffs have shown a sufficient risk of increased punishment to prevail on their ex post facto claim. Thus plaintiffs were not entitled to judgment as a matter of law, and the summary judgment and grant of injunctive relief must be reversed.

I.

Plaintiffs filed this class action lawsuit against the Michigan Parole Board and the Director of the Michigan Department of Corrections pursuant to 42 U.S.C. § 1983. Plaintiffs allege that changes to Michigan's parole laws in 1992 and 1999, as implemented and applied retroactively to their parole review, violate the Ex Post Facto and Due Process Clauses of the United States Constitution. The district court granted plaintiffs' motion for class certification. The parties later agreed to define the class as

[a]ll parolable lifers in the custody of the Michigan Department of Corrections who committed crimes (for which they received a parolable life sentence) before October 1, 1992, and whose parole the "new" parole board has denied, passed over, expressed no interest in pursuing, or otherwise rejected or deferred. Excluded from this definition are so-called "drug lifers" who were convicted of distribution or possession of controlled substances, regardless of whether the crime was one originally subject to parolable life or one converted to parolable life at a later time.

"Parolable lifer" is a term used by the parties and the district court to refer to a "prisoner sentenced to imprisonment for life" for an offense other than first degree murder, first degree criminal sexual conduct, or a few other specific categories of offenses. See Mich. Comp. Laws § 791.234(6)-(7). Thus the plaintiff class generally includes inmates sentenced to life with the possibility of parole, for pre-1992 non-drug crimes.

An inmate sentenced to parolable life for a crime committed before October 1, 1992, comes within the Board's jurisdiction after he or she has served ten calendar years of the life sentence. Mich. Comp. Laws § 791.234(7)(a). Once an inmate comes within the Board's jurisdiction, the Board may parole the inmate at any time, see id., although "release on parole is discretionary with the parole board," id. § 791.234(11). At all times relevant to this lawsuit, the statutory discretion has been limited by the requirement that a "prisoner shall not be given liberty on parole until the board has reasonable assurance, after consideration of all of the facts and circumstances, including the prisoner's mental and social attitude, that the prisoner will not become a menace to society or to the public safety." Id. § 791.233(1)(a). If the Board decides not to parole an inmate after he or she has served ten years, then the Board reviews the inmate for parole periodically thereafter, until the inmate "is paroled, discharged, or deceased." Id. § 791.234(8)(b).

If the Board decides to move forward with the parole process, either at the ten-year mark or following an inmate's subsequent review, then the Board holds a public hearing. Id. § 791.234(8)(c). The Board must give notice of the hearing to the inmate's sentencing judge (or that judge's successor in office). Id. If the sentencing judge "files written objections to the granting of the parole within 30 days of receipt of the notice of hearing," then the process comes to an end. Id. Absent an objection, however, the Board ultimately decides whether to grant parole after holding the public hearing. See id. § 791.234(8)(a)-(d).

Plaintiffs' ex post facto and due process claims are based on the cumulative effect of statutory changes to the structure and composition of the Board in 1992 and changes to parole procedures in 1992 and 1999. From the Board's establishment in 1953 until 1992, Board members were "within the state civil service." 1953 Mich. Pub. Acts No. 232 at p. 413 (§ 32); see also 1982 Mich. Pub. Acts No. 314 at p. 1356 (§ 32(1)). According to one former Director of the Michigan Department of Corrections, serving as a Board member "was like any other civil service job: a member could stay until he or she wanted to leave or was removed for cause." In 1992, however, the Michigan Legislature repealed the provision that had established the civil service board, 1992 Mich. Pub. Acts No. 181 at p. 1125 (§ 32(3)), and created instead a board of ten members "who shall not be within the state civil service," Mich. Comp. Laws § 791.231 a(1) (emphasis added); see 1992 Mich. Pub. Acts No. 181 at p. 1124 (§ 31a(1)). This represented a three-member increase in the size of the Board. Compare 1982 Mich. Pub. Acts No. 314 at p. 1356 (§ 32(1)) ("There is established in the department a parole board consisting of 7 members ...."), with Mich. Comp. Laws § 791.231a(1) ("Beginning October 1, 1992, there is established in the department, a parole board consisting of 10 members...."). As of 1992, Board members are limited to four-year terms, although a member may seek reappointment at the end of his or her term. Mich. Comp. Laws § 791.231a(2). The law now also requires that "[a]t least 4 members of the parole board shall be persons who, at the time of their appointment, have never been employed by or appointed to a position in the department of corrections." Id.

Like the structure and composition of the Board, the procedure for paroling inmates sentenced to parolable life has also changed over time. Until 1982, inmates sentenced to parolable life could expect an initial interview with the Board after having served seven years, with subsequent interviews "at no greater than 36-month intervals following the initial interview," i.e., a 7+3+3 interview structure. MDOC Policy Directive, Parole Board Interview and Decision Criteria, PD-DWA-45.05 (effective Oct. 15, 1982); see MDOC Policy Directive, Parole Board Interview and Decision Criteria, PD-DWA-45.05 (effective Nov. 15, 1980); MDOC Policy Directive, Parole Board Interview and Decision Criteria, PD-DWA-45.05 (effective June 18, 1979). In 1982, the Michigan Legislature amended the law to require the initial interview at the four-year mark with subsequent interviews "biennially thereafter," i.e., a 4+2+2 interview structure. 1982 Mich. Pub. Acts No. 314 at p. 1356 (§ 34(4)(a)). The Legislature changed the law again a decade later such that, as of 1992, a Board member is not statutorily required to interview an inmate sentenced to parolable life before the inmate comes within the Board's jurisdiction. Rather, the initial interview is required only after the inmate has served ten years. Mich. Comp. Laws § 791.234(8)(a); see 1992 Mich. Pub. Acts No. 181 at p. 1127 (§ 34(4)(a)). Moreover, as of 1992, the inmate could expect to be reinterviewed as infrequently as every five years, i.e., a 10+5+5 interview structure, not every two or three years as had been the previous practice. 1992 Mich. Pub. Acts No. 181 at p. 1127 (§ 34(4)(a)).

In 1999, the Legislature eliminated the statutory reinterview requirement altogether. As a result, as of 1999, a Board member need only interview an inmate sentenced to parolable life after the inmate has served ten years. See Mich. Comp. Laws § 791.234(8)(a); 1999 Mich. Pub. Acts No. 191 at p. 1076 (§ 34(6)(a)). Interviews take place "thereafter as determined by the" Board. Mich. Comp. Laws § 791.234(8)(a). Rather than requiring regular reinterview of an inmate, the statute now requires the Board to review the inmate's paper file at five-year intervals. Id. § 791.234(8)(b); see 1999 Mich. Pub. Acts No. 191 at p. 1076 (§ 34(6)(b)). At oral argument, however, the...