Rivera-Feliciano v. Acevedo-Vila

• Decision Date: 15 February 2006
• Docket Number: No. 05-2473.,05-2473.
• Citation: 438 F.3d 50
• Parties: Carmen RIVERA-FELICIANO; María Flores-Feliciano; Mendelson Ortiz-Nicolau; Edgardo Hernández-Ortiz; Inés Navedo-Vázquez; Gilberto Rivera-Rodríguez; José J. Rivera-Aneiro; Héctor L. Rivera-Ortiz; Wilgberto Mario Feliciano; Carlos A. Rosario-Adorno; Domingo Gonzalez-Marie; Alexis Ortiz-Berríos; Angel Marcano-Ortiz; Pedro Beltrán-Carrasquillo; Luis Meléndez-ramos; and the class of all the inmates convicted of murder that currently participate in the AOC Electronic Surveillance Program, Plaintiffs, Appellees, v. Hon. Aníbal ACEVEDO-VILÁ, Governor of Puerto Rico; Hon. Roberto Sánchez-Ramos, Secretary of Justice of Puerto Rico; Miguel Pereira-Castillo, Secretary of Corrections and Rehabilitation of Puerto Rico and Administrator of Corrections of Puerto Rico; Hon. José R. Lozada, Director of the Bureau of Special Investigations of Puerto Rico, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

438 F.3d 50

Carmen RIVERA-FELICIANO; María Flores-Feliciano; Mendelson Ortiz-Nicolau; Edgardo Hernández-Ortiz; Inés Navedo-Vázquez; Gilberto Rivera-Rodríguez; José J. Rivera-Aneiro; Héctor L. Rivera-Ortiz; Wilgberto Mario Feliciano; Carlos A. Rosario-Adorno; Domingo Gonzalez-Marie; Alexis Ortiz-Berríos; Angel Marcano-Ortiz; Pedro Beltrán-Carrasquillo; Luis Meléndez-ramos; and the class of all the inmates convicted of murder that currently participate in the AOC Electronic Surveillance Program, Plaintiffs, Appellees, v. Hon. Aníbal ACEVEDO-VILÁ, Governor of Puerto Rico; Hon. Roberto Sánchez-Ramos, Secretary of Justice of Puerto Rico; Miguel Pereira-Castillo, Secretary of Corrections and Rehabilitation of Puerto Rico and Administrator of Corrections of Puerto Rico; Hon. José R. Lozada, Director of the Bureau of Special Investigations of Puerto Rico, Defendants, Appellants.

No. 05-2473.

United States Court of Appeals, First Circuit.

Heard January 10, 2006.

Decided February 15, 2006.

Salvador Antonetti-Stutts, Solicitor General of Puerto Rico, with whom Mariana D. Negrón-Vargas, Deputy Solicitor General, Maite D. Oronoz-Rodríguez, Deputy Solicitor General, and Doraliz E. Ortiz-De-León, Assistant Solicitor General, were on brief, for appellants.

Guillermo J. Ramos Luiña, with whom Carlos V. García Gutiérrez, Alejandra Bird López, Rafael E. Rodríguez Rivera, and Civil Action and Education Corporation were on brief, for appellees.

Before TORRUELLA and LYNCH, Circuit Judges, and LASKER^*, District Judge.

LYNCH, Circuit Judge.

In the 1970's inmates brought litigation alleging that conditions at the Puerto Rico prisons were unconstitutional; this resulted in a number of findings of constitutional violations and federal court remedial orders. See generally Morales Feliciano v. Rullan, 378 F.3d 42 (1st Cir.2004) (providing history of prior litigation).

In 1989, in response to overcrowding within the prison system, the Puerto Rico Administration of Corrections (AOC), through a "normative memorandum," established an Electronic Surveillance Program (ESP) under which certain inmates wearing electronic surveillance devices (anklets) were released from confinement in prison, but subject to supervision and strict rules. From the beginning of the program in 1989, inmates who had been convicted of murder were allowed by prison administrators to participate in the ESP. The normative memorandum establishing the ESP in 1989 was formalized in 1994, when the AOC adopted Regulation No. 5065. The AOC found the authority to implement these measures in the act creating the AOC, known as the "Organic Act." See Organic Act of the Correctional Administration, P.R. Laws Ann. tit. 4, §§ 1101 et seq.

On May 26, 1995 the Commonwealth's legislature enacted Law No. 49, 1995 P.R. Laws 49, which, inter alia, stated that inmates convicted of murder were excluded from participation in the ESP. Law No. 49 expressly authorized the AOC to establish and supervise the ESP, and, in an amendment to the AOC's Organic Act, specified grounds for exclusion from the program. The specific exclusion involved here reads as follows:

(a) Any convict who is serving a sentence for the following crimes:

(1) Murder, rape, incest, sodomy or lewd and lascivious acts when the victim is under fourteen (14) years of age....

P.R. Laws Ann. tit. 4, § 1136a. Law No. 49 also contained a grandfather clause allowing continuation in the ESP for all persons who were participating in the program as of the date of effectiveness of the Act, also May 26, 1995. Each of the inmate plaintiffs in this case committed the crime of murder before the effective date of Law No. 49 and began participation in the ESP after the effective date of Law No. 49, and so are not within the grandfather clause. It is very much disputed whether allowing the plaintiffs to participate in the ESP in the first place was permissible under Law No. 49.

Thereafter, a scene of regulatory hopscotch ensued about the interpretation of Law No. 49, with the primary question being characterized as one of retroactivity of the law: whether Law No. 49 could be applied to those who were convicted of a murder committed¹ prior to the effective date of the Act. Soon after Law No. 49 was passed, the AOC took the position that the law would apply to all convicts. A number of inmates who had been convicted of murders committed before the effective date of Law No. 49 challenged the application of the law to them in the Puerto Rico courts. These courts held that Law No. 49 could not be applied retroactively to those who committed murder before the effective date of the Act. At least one court based its decision not only on the constitutional prohibition against ex post facto laws, but also on the separate "principle of retroactivity of the more benign criminal law," which is codified in the Penal Code of Puerto Rico.² See Sanabria-Morales v. Commonwealth, No. TD96-0258 (P.R. 1a Inst. Sept. 4, 1996). In another case before the Puerto Rico Court of Appeals, the Solicitor General of the Commonwealth admitted that the retroactive application of Law No. 49 would be unconstitutional. See Robles-Gonzales v. Caraballo-Torres, No. KLRA9600062 (P.R. Cir. Oct. 14, 1996). At least partially as a result of litigation, some inmates who had been convicted of murder before May 26, 1995 were admitted for the first time to the ESP after Law No. 49 was enacted.

The AOC, in response to that earlier litigation, issued an agency memorandum on August 15, 1996, indicating that Law No. 49 could not be applied retroactively to "any case sentenced prior to May 26, 1995." This was followed up on May 12, 1997 by another memorandum indicating that Law No. 49 could not be applied retroactively.

Then, on October 27, 1999, the AOC promulgated Regulation No. 6041, entitled "Regulation to Establish Procedures for the Electronic Surveillance Program," to comply with Law No. 49. These regulations expressly excluded from the ESP all persons convicted of first-degree murder, but did not exclude persons convicted of second-degree murder.

This prompted another round of lawsuits brought in Puerto Rico courts by inmates who had been convicted of murders committed prior to enactment of the Law No. 49, alleging constitutional and local law violations. In one case, the court ordered the AOC to consider the inmate for the ESP, finding that he otherwise met the eligibility requirements. See Martinez-Vargas v. Corrections Administration, No. KAC 94-1278 (P.R. 1a Inst. Feb. 11, 1997). In another case involving one of the plaintiffs here, Mendelson Ortiz-Nicolau, the AOC entered a stipulation that Law No. 49 would only be applied prospectively, meaning that Ortiz could not be considered ineligible for the ESP based on his murder conviction. See Ortiz-Nicolau v. Corrections Administration, No. KPE99-2586 (P.R. 1a Inst. Nov. 8, 1999).

After these decisions and in an apparent attempt to avoid retroactivity concerns, the AOC implemented a policy which applied differential criteria depending on when the inmate committed the crime. In December 2000, two of the plaintiffs here, María Flores-Feliciano and Carmen Rivera-Feliciano, requested reconsideration by the AOC of its determination that they were not eligible for the ESP. In a legal opinion, the AOC recommended that their application be reconsidered based on application of the new policy. According to the district court, the policy "appeared [to cause] confusion within the AOC as to which Regulation and eligibility criteria would apply to each inmate requesting ESP privilege."

Then, on May 15, 2001, the AOC promulgated Administrative Order AC-2001-012 which was meant to clarify matters. It did exactly the opposite. It also provided for differential treatment of inmate eligibility, based on whether the inmate committed the crime before or after October 27, 1999, the date Regulation No. 6041 was adopted. It also was unclear on the applicability of Law No. 49. On one hand, it provided that Law No. 49 was applicable to all persons who committed their crimes prior to October 27, 1999. On the other hand, it also suggested, through an application of the principle of the most benign rule from the Puerto Rico Penal Code, that Law No. 49 would not apply to persons convicted of crimes before the date of effectiveness, in direct contradiction to the statutory text (save for the grandfather clause).

A March 19, 2004 order, Administrative Order AC-2004-002, purported to correct the problem created by the May 15, 2001 order by expressly repealing it. Miguel Pereira-Castillo, who was appointed to the position of Secretary of Corrections and Rehabilitation and Administrator of Corrections in April 2003 and continues in that position today, testified that despite this repeal, he continued to admit murder convicts into the ESP. He explained that the reason he had done this was not because of ex post facto concerns, which he concluded were not a problem soon after taking office, but because of concerns related to Puerto Rico administrative law that had been communicated to him by an outside expert.

On May 4, 2004, the AOC adopted Regulation No. 6797, to formalize the March 19, 2004 order and govern the ESP going forward. The new regulation modified Regulation No. 6041 to refer to "murder" instead of "murder in the first degree." By this, it intended to close the loophole for second-degree murderers. It did not expressly address any retroactivity issues. Nonetheless, the district court found that the regulation was still being applied only to those who had been convicted of murder after the effective date of Law No. 49. Indeed, the director of the ESP testified that one person convicted of murder prior to 1995 had been released in December 2004.

On January 2, 2005, a new administration took control of the Commonwealth's executive branch with the election of Aníbal Acevedo-Vilá as Governor. Acevedo-Vilá, along with Roberto...