Sellmon v. Reilly

• Decision Date: 05 May 2008
• Docket Number: Civil Action No. 06-01650 (ESH).
• Parties: Tony R. SELLMON, et ah, Plaintiff, v. Edward F. REILLY, Jr., Chairman of the United States Parole Commission, et al., Defendants.
• Court: U.S. District Court — District of Columbia

551 F.Supp.2d 66

Tony R. SELLMON, et ah, Plaintiff, v. Edward F. REILLY, Jr., Chairman of the United States Parole Commission, et al., Defendants.

Civil Action No. 06-01650 (ESH).

United States District Court, District of Columbia.

May 5, 2008.

COPYRIGHT MATERIAL OMITTED

Jason Drew Wallach, Dickstein Shapiro LLP, Washington, DC, for Plaintiffs.

Kenneth Adebonojo, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, District Judge.

Plaintiffs Tony Sellmon, Carlton Martin, Charles Phillips, Darius Smith, Daru Swinton, Benson West-El, Curtis Eason, and James Gambrell¹ are inmates serving prison sentences for committing criminal offenses under the District of Columbia Code. Each committed his crime and was sentenced prior to August 5, 1998, when the United States Parole Commission ("USPC") took over responsibility from the District of Columbia Parole Board ("the Board") for conducting parole hearings for D.C.Code offenders. Although the facts of each plaintiffs case differ materially, all plaintiffs allege that USPC retroactively applied its own parole guidelines and practices so as to significantly increase the risk that they would serve longer terms of incarceration in violation of the Ex Post Facto Clause of the Constitution. Before the Court are plaintiffs' motion for summary judgment and defendants' motion for judgment on the pleadings. For the reasons stated herein, plaintiffs' motion will be granted in part and denied in part and defendants' motion will be granted in part and denied in part.

BACKGROUND

I. PAROLE PRACTICES FOR D.C. OFFENDERS

On August 5, 1997, Congress enacted the National Capital Revitalization and Self-Government Improvement Act ("the Revitalization Act"), Pub.L. No. 105-33, § 11231 111 Stat. 712, 734-37 (codified at D.C. CODE §§ 24-101 et seq. (2001 & Supp.2005)). (Pls.' Joint Stmt, of Material Facts ["Pls.' Joint Stmt."] ¶ 13.) The Revitalization Act abolished the D.C. Parole Board, see Pub.L. No. 105-33 § 11231(b), and directed the USPC to conduct parole hearings for D.C.Code offenders "pursuant to the parole laws and regulations of the District of Columbia." Id. § 11231(c). Since August 5, 1998, the USPC has conducted the hearings and decided the requests for parole of all persons convicted of violating the D.C.Code. (Pls.' Joint Stmt. ¶ 2.) Prior to this date, the D.C. Parole Board conducted the parole hearings for D.C.Code offenders, applying guidelines it formally adopted in 1985, and published in the District of Columbia Municipal Regulations in 1987 (the "1987 Regulations"). (Id. ¶ 18) (citing D.C. MUN. REGS. tit. 28, §§ 100 et seq. (1987) (repealed Aug. 5, 2000).)²

A. 1987 Regulations

The 1987 Regulations were adopted to "structure the exercise of the paroling authority's discretion" and to promote "increased consistency in parole release decisions and enhanced accountability of the Board" by making "explicit those factors that will be considered in each case." (Pls.' Joint Ex. 1 [Report on the Development of the Paroling Policy Guidelines for the District of Columbia Board of Parole] at 1-2) (emphasis in original). The Board's stated goals in promulgating formal parole regulations were to: (1) promote consistent decision-making; (2) make the Board's parole policies more explicit; (3) ensure that the offender's time served is proportionate to the sentence imposed by the court and risk posed by the offender; (4) "achiev[e] the sentencing purposes of incapacitation and specific deterrence, while promoting, to the fullest extent possible, the offender's efforts at rehabilitation;" (5) "penaliz[e] institutional misconduct;" and (6) "develop[] an evolutionary model of management control..." (Id. at 2-3.) In formulating the Regulations, the Board was guided by three principles: (1) "the touchstone of the parole decisionmaking process should be based on offender characteristics that have a statistically determined bearing on the offender's risk of future involvement in criminal behavior;" (2) "the court should addresse[] the purposes of retribution and general deterrence through the sentence it imposes ...." and the Board "will not function in a manner that might be viewed as the usurpation of the functions of the sentencing judge;" and (3) "in determining the factors to be used in assessing the guidelines, consideration should be given to their fairness as well as to their statistical reliability." (Id. at 3-4.) The Board concluded that "[g]uidelines oriented to the assessment of risk and institutional performance, therefore touching on the need for progress towards rehabilitation, [would] be consistent with the intent of this Act." (Id. at 4.)

After serving his or her minimum sentence, a D.C.Code offender became eligible to considered for parole.³ Once a prisoner became eligible for parole, the D.C. Parole Board would then determine whether he or she was suitable for parole.⁴ Under the 1987 Regulations, the D.C. Parole Board would make this determination employing an analytical framework that relied on both pre- and post-incarceration factors. (See Pls.' Joint Stmt. ¶ 30.) The Regulations were "comprised of four factors, two of which utilize[d] information known at the time of incarceration, the other two based on post-incarceration factors." (Pls.' Joint Ex. 1 at 5.) The D.C. Parole Board intentionally did not use an offense severity factor in its regulations because its philosophy was to let the "court-imposed sentence serve as its offense severity indicant." (Pls.' Joint Stmt. ¶ 32 (quoting Pls.' Joint Ex. 1 at 17).)

The first and "primary" factor the Board considered was the degree of risk posed by an offender. (See Pls.' Joint Ex. 1 at 5.) This factor was "based on [the] calculation of the Salient Factor Score ["SFS"]," an actuarial risk assessment device that relies exclusively on information known at the "time of incarceration." (Id.) In calculating a prisoner's SFS, the Board considered six pre-incarceration factors: (1) prior convictions and adjudications; (2) prior commitments of more than 30 days; (3) age at the commission of current offense; (4) recent commitment-free period; (5) status of prisoner at time of current offense; and (6) history of heroin or opiate dependence. See Fletcher v. Reilly, 433 F.3d 867, 871 (D.C.Cir.2006) ("Fletcher III") (citing D.C. MUN. REGS. tit. 28, § 204.4-204.16). The SFS placed the candidate into one of four risk categories (10-9 = low risk, 8-6 = fair risk, 5-4 = moderate risk, or 3-0 = high risk) from which the Board would determine a baseline number of points ("base point score") that provided 0 for low risk, 1 for fair risk, 2 for moderate risk, and 3 for high risk. (Pls.' Joint Ex. 1 at 5; D.C. MUN. REGS. tit. 28, § 204.17, app, 2-1.) The Board would then take the base point score and adjust it using the remaining pre-incarceration factor and the two-post incarceration factors to arrive at the Point Assignment Grid Score ("total point score"). (Pls.' Joint Ex. 1 at 5-6.)

The remaining pre-incarceration factor was the "type of risk" posed by the offender; "an aggravating factor applicable to those cases in which the Board ... made findings that the current offense, or the offender's pattern of past offenses, involved violence, weapons, or drug trafficking." (Id. at 5.) This factor recognized that "if an offender has already indicated through past behavior that he or she is capable of committing a type of crime that is considered particularly serious ..., [the Board] should be willing to tolerate a lesser degree of risk." (Id. at 21) (emphasis in original). If the Board determined that the parole candidate's current offense, or two prior felony convictions involved violence, weapons, and/or drug trafficking, then the Board could increase the baseline point score by a maximum of one point. D.C. MUN. REGS. tit. 28, § 204.18, app. 2-1.

The two post-incarceration factors were the offender's institutional adjustment, "an aggravating factor applicable to those cases in which the Board ... made findings that disciplinary infractions ... [were] either serious or repetitious enough to impact negatively on the parole decision," and the offender's program participation, "a mitigating factor applicable to those cases in which the Board has made findings that the program or work accomplishments of the prisoner ... [were] substantial enough to impact favorably on the parole decision." (Pls.' Joint Ex. 1 at 5.) The Board could add one point to the candidate's baseline point score for "negative institutional behavior" and subtract one point for sustained program or work assignment achievement. See D.C. MUN. REGS. tit. 28, § 204.18 & apps. 2-1, 2-2.

Once the Board calculated the offender's total point score, the 1987 Regulations directed that a parole request could be granted (with varying levels of supervision) at the initial hearing if the offender's final adjusted score was 0, 1, or 2, or denied if the offender's final adjusted score was 3-5. Id. § 204.19. In the case of a parole rehearing, parole could be granted for a score of 0-3, or denied if the score was 4-5. Id. § 204.21. The Board recognized, however, that "there occasionally will be unique circumstances that are not taken into account by either the Salient Factor Score or the type of risk assessment, but that none-the-less should impact on the release decision." (Pls.' Joint Ex. 1 at 22.) In such a case, the Parole Board could depart from the action indicated by the SFS by referencing an applicable aggravating or mitigating factor listed in Appendices 2-1 and 2-2. See D.C. MUN. REGS. tit. § 204.22. In Appendix 2-1 of the 1987 Regulations, the D.C. Parole Board listed six pre-incarceration factors that, if applicable, demonstrated that the candidate was a greater risk for parole than reflected by his or her total point score: (1) the offender repeatedly failed under parole supervision; (2) the current offense involved ongoing...