Knox v. Lanham, JFM-93-1891.

• Decision Date: 31 July 1995
• Docket Number: No. JFM-93-1891.,JFM-93-1891.
• Citation: 895 F. Supp. 750
• Parties: Donald KNOX, et al. v. Richard A. LANHAM, Sr., et al.
• Court: U.S. District Court — District of Maryland

895 F. Supp. 750

Donald KNOX, et al. v. Richard A. LANHAM, Sr., et al.

No. JFM-93-1891.

United States District Court, D. Maryland.

July 31, 1995.

COPYRIGHT MATERIAL OMITTED

Frances Elizabeth Kessler, Baltimore, MD, for plaintiffs.

Wallace Ward, pro se.

Charles Hatfield, pro se.

John Lee Worsham, pro se.

Stephanie Judith Lane-Weber, Baltimore, MD, for defendants.

MEMORANDUM

MOTZ, Chief Judge.

Plaintiffs are prisoners committed to the custody of the Maryland Commissioner of Correction ("Commissioner") who are serving life sentences with the possibility of parole.¹ Prior to 1993, plaintiffs were classified to minimum or pre-release security (the two lowest levels), and several participated in work release and/or family leave programs. In the spring of 1993, participation in family leave and work release programs by prisoners serving life sentences was suspended. Further, plaintiffs were reclassified to at least medium security.

Plaintiffs have filed suit under 42 U.S.C. § 1983 on behalf of themselves and other inmates who are similarly situated.² They assert claims based on violations of the Ex Post Facto Clause, the Equal Protection Clause, the Due Process Clause, and the Eighth Amendment. Defendants are various state corrections officials and parole commissioners. Plaintiffs seek injunctive, declaratory, and monetary relief. Discovery has been completed and defendants have moved to dismiss the complaint or, in the alternative, for summary judgment. Plaintiffs have also filed a motion for partial summary judgment.

I.

A.

As of June 1, 1993, plaintiffs were classified to minimum or pre-release security levels.³ Some were on active work release and had participated in family leaves. On April 28, 1993, the Commissioner suspended lifer participation in the family leave program. On June 2, 1993, the Commissioner removed all inmates serving a life sentence no portion of which had been suspended from the pre-release system, returned all such inmates to a medium security facility, and upon arrival at a medium security facility placed them briefly in administrative segregation.⁴ On June 7, 1993 and June 9, 1993, the Commissioner and his deputy reclassified all lifers in the Division of Correction to at least medium security.

The Commissioner states that he transferred and reclassified plaintiffs following four incidents involving lifers on work release that jeopardized public safety. On December 27, 1993, the Deputy Commissioner issued a memorandum clarifying that the prohibition against classifying lifers below medium security was still in effect, but that with the approval of the Commissioner or his deputy, the prohibition would not apply to those serving life with all but a portion of their sentences suspended. Most recently, the Commissioner promulgated an amendment to the Maryland Division of Correction Directive 100-1 ("DCD 100-1") governing classification of inmates effective December 1, 1994. This amendment, Change Notice 35-94, stated: "An inmate with a life sentence, except an inmate sentenced to life with all but a portion suspended, shall not be reduced below medium security." These series of actions by the Commissioner⁵ are one focus of plaintiffs' challenge: namely the lifers' removal from pre-release programs and facilities and their permanent classification to at least medium security.

A second focus of plaintiffs' amended complaint, particularly for their ex post facto challenge, is their allegation that the Maryland Parole Commission requires active work release for plaintiffs before it will recommend parole. To attain parole, an inmate sentenced to a life sentence in Maryland must be recommended for parole by the Parole Commission, and then be approved by the Governor. Md.Ann.Code art. 41, § 4-504(b)(3). Plaintiffs point to Parole Commission practices, such as recent hearings at which participation in work release is required before a parole recommendation will be made, to establish that the unwritten requirement exists.

Plaintiffs cite scores of Parole Commission admonitions to plaintiffs over the past few decades that they must progress to lower security classifications and spend time on work release before the Commission would consider making a parole recommendation. For example, one member of the plaintiff class, Eugene Allen, was advised by the Parole Commission in 1985 that "he must begin to move through the System, advancing to lesser security and ultimately gaining a minimum of 2 years on work release if his case is ever to reach the full Commission for possible submission to the Governor's Office." Further, this "unwritten requirement" is allegedly still in force despite the change in the Division of Correction policy that absolutely prevents a life inmate from progressing to lower security or spending time on work release. For example, in just the first two months of 1995, the Parole Commission denied parole recommendations to five plaintiffs with the express direction that they progress to lesser security and work release. In the same time period, the Parole Commission denied parole recommendations to five other plaintiffs in order to wait for "resolution of the lifer policy," even though the Commissioner of Corrections had issued his final Change Notice 35-94 effective December 1, 1994. Plaintiffs claim that this unwritten Parole Commission requirement of the now unattainable lower security classification and time on work release effectively denies them any possibility of parole.

B.

Plaintiffs' Amended Complaint contains seven counts. Counts 1 and 3 allege violations of procedural due process in the Commissioner's removal of plaintiffs from the family leave program (Count 1) and his removal of them from pre-release facilities, his removal of them from the work release program, and his increasing their security level (Count 3). Counts 2 and 4 allege violations of equal protection in the Commissioner's removal of plaintiffs from the family leave program (Count 2) and his removal of them from pre-release facilities, his removal of them from the work release program, and his increasing their security level (Count 4).

Count 5 alleges a violation of the Ex Post Facto Clause in the Commissioner's removal of plaintiffs from work release, family leave, and pre-release facilities and his permanently increasing their security level. Count 5 also alleges a violation of the Ex Post Facto Clause in the Parole Commission's refusal to recommend plaintiffs for parole until they are classified to lower security status and participate in work release and family leave programs.

Count 6 alleges that the actions of the Commissioner and the Parole Commission each constitute mental torture in violation of the Eighth and Fourteenth Amendments' prohibition of cruel and unusual punishment. Count 7 alleges that the plaintiffs' placement on administrative segregation upon being transferred to medium security facilities violated their right to substantive due process under the Fourteenth Amendment.

II.

Article 1 of the Constitution of the United States provides that "No State shall ... pass any ... ex post facto Law." U.S. Const. art. I, § 10, cl. 1. Ex post facto laws include, among others, "`every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.'" Miller v. Florida, 482 U.S. 423, 429, 107 S.Ct. 2446, 2450, 96 L.Ed.2d 351 (1987) (quoting Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648 (1798)). Plaintiffs contend that the Commissioner's removal of them to higher security and the Parole Commission's refusal to recommend parole unless plaintiffs are on active work release (which requires a lower security classification) are ex post facto laws that retroactively inflict greater punishment on them by effectively denying them parole.

A similar case raising an ex post facto challenge to an earlier version of Maryland's DCD 100-1 (then called DCR 100-1) was litigated recently in front of Judge Kaufman. Faruq v. Herndon, 831 F.Supp. 1262 (D.Md. 1993). There, the plaintiffs were two classes of inmates⁶ challenging changes to DCR 100-1 that allegedly slowed their progression to lower security levels and thus made it more difficult to attain parole. Id. at 1265. First, Judge Kaufman ruled that the then-existing DCR 100-1 was not a "law" because while it was promulgated pursuant to delegated legislative authority, the regulation was "being exercised in a discretionary way." Id. at 1280. Second, Judge Kaufman held that even if DCR 100-1 could be considered a "law," there was no ex post facto violation. Judge Kaufman found that to establish that plaintiffs were disadvantaged by DCR 100-1 required "showing a causal nexus between classification security level and release on parole." Id. at 1281. Judge Kaufman found that the evidence established that parole was granted in an individualized manner and that the Parole Commission did not have an un-written policy requiring time at a lower security level before being granted or recommended for parole. Judge Kaufman therefore ruled that plaintiffs had failed to establish the "appropriate nexus between security classification and release on parole" and that they were "disadvantaged sufficiently" by the then-existing DCR 100-1 to prevail on their ex post facto attack on the regulation. Id. at 1282.

The material facts in Faruq are quite similar to those in the instant case, and Judge Kaufman's analysis is applicable and instructive. However, DCR 100-1 has been changed again, and its constitutionality must be considered anew. The conventional approach of analysis requires that I make two inquiries in answering this question. First, I must determine whether the policies challenged by the plaintiffs are "laws" under the Ex Post Facto Clause. Second, I must decide whether, if they are such "laws," they constitute retroactive punishment against plaintiffs.⁷

A.

The Constitution prohibits ex post facto...