Appeal from the Superior Court of the District of Columbia. (Hon. Luke C. Moore, Judge in Chambers).
Before Ferren and King, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: King
KING, Associate Judge: James Davis appeals the Superior Court's denial of his petition for a writ of habeas corpus, alleging that the District of Columbia Parole Board ("Board") violated the ex post facto clause of the Constitution by applying a numerical scoring system ("salient factor score"), adopted after he was sentenced, to determine his parole eligibility. Because salient factor scores merely formalize the method by which the Board can exercise its discretion to grant parole, the guidelines do not offend the ex post facto clause. Therefore, we affirm. *fn1
Davis has been serving an aggregate sentence of eleven to thirty-three years for armed rape and attempted robbery imposed by the Superior Court in 1980. The Board denied Davis's initial parole request in June 1990 because his "negative institutional behavior placed him outside of the guidelines for parole at that time." Before his parole reconsideration hearing scheduled for March 21, 1991, Davis escaped from a halfway house and remained at large for 235 days. Upon his return to custody he was admitted to the mental health unit at Lorton where he was maintained on medication because he "appeared very paranoid." Davis was again denied parole on June 2, 1992, due to his escape, and because, as the hearing officer noted, for Davis "the real and perceived are blurred." The Board scheduled Davis for parole reconsideration by June 2, 1993. *fn2
When Davis was convicted in 1980, the Board had no formalized scoring system, but was required by regulation to consider factors such as the inmate's offense, prior history of criminality, personal and social history, physical and emotional health, institutional experience, and availability of community resources, when exercising its discretion to authorize parole. See 9 DCRR § 105.1 (a)-(f) (1981). The decision to grant parole remained within the discretion of the Board, provided "there a reasonable probability that a prisoner would live and remain at liberty without violating the law, that his release not incompatible with the welfare of society," 9 DCRR § 105, a provision that mirrored the parole statute then in effect. See (infra) note 3.
In 1987 the Board created the salient factor scores "to guide the Board in making the decision whether to grant or deny parole." White v. Hyman, 647 A.2d 1175, 1179 (D.C. 1994) (discussing present parole guidelines). The scoring system "consist of pre and post-incarceration factors," similar to those required to be considered under the previous system, such as the nature of the offense, prior convictions, drug abuse history, institutional adjustment, and disciplinary infractions. 28 DCMR §§ 204.1, 204.4-204.18 (1987). "The purpose of the [new scoring] system is 'to enable the Board to exercise its discretion,'" White, 647 A.2d at 1179 (citing 28 DCMR § 204.1), when a prisoner's "release is not incompatible with the safety of the community." 28 DCMR § 204.1. The discretion conferred by the 1980 guidelines thus survived in the 1987 revisions. See White, 647 A.2d at 1179 ("where the Board, in the exercise of that discretion, departs from the numerical system, it shall 'specify in writing those factors which it used.' § 204.22. Departures must be explained, but they are not proscribed.").
Despite the fact that the parole guidelines reflect a discretionary approach to granting parole, *fn3 in his brief Davis contends that the application of the salient factor scores to his parole determination subjected him to an ex post facto violation because the scores "ostensibly removed any prospect for his early release [on parole] through the board acting with unfettered discretion [which it had under the old guidelines]." In support of this claim, Davis relies on Supreme Court cases holding that changes in other statutory guidelines are ex post facto violations. See Weaver v. Graham, 450 U.S. 24, 36, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981) (statutory change in formulation of good time credits is a violation of the ex post facto clause where change "constricts the inmate's opportunity to earn early release" and accrual of good time credits is actually altered); Lindsey v. Washington, 301 U.S. 397, 402, 81 L. Ed. 1182, 57 S. Ct. 797 (1937) (change in sentencing guidelines after offender's commission of crime is ex post facto violation where change "deprived of all opportunity to receive a sentence" as short as under the old guidelines). These cases can be distinguished, because in Weaver, the formula for calculating monthly good time credits was altered to reduce the accumulation of the credits, which actually increased Weaver's prison time by two years, Weaver, 450 U.S. at 26-27, 33-36, and in Lindsey, the change in sentencing guidelines removed all opportunity to receive a lesser sentence. Lindsey, 301 U.S. at 401-402. The new District of Columbia parole guidelines, however, merely formalize the manner in which the Board exercises the discretion conferred upon it by the governing provision in effect when Davis was sentenced. See D.C. Code § 24-204, (supra) note 3.
We find support in eases interpreting the effect of similar changes in the federal parole guidelines, which have also been challenged on ex post facto grounds. Before 1976, "the United States Board of Parole . . . exercised its discretion without reference to any explicit standards other than its statutory mandate." Warren v. United States Parole Comm'n, 212 U.S. App. D.C. 137, 139, 659 F.2d 183, 185 (1981), cert. denied, 455 U.S. 950, 71 L. Ed. 2d 665, 102 S. Ct. 1454 (1982). *fn4 The statutory mandate for determining parole for federal prisoners at the time Warren was convicted provided for a much broader exercise of discretion than the District's parole guidelines in place at the time Davis was convicted. See supra note 4. The District's former guidelines based parole determination upon consideration of six categories of factors, and generally did not provide for a grant of parole where the prisoner did not substantially observe institutional rules. See 28 DCMR §§ 105.1 (a)-(f), 105.2 (1987).
In 1976 the Federal Parole Commission promulgated a set of parole guidelines which were designed, in part, to "structure . . . the exercise of discretion by parole officials." Warren, 212 U.S. App. D.C. at 145, 659 F.2d at 191. These new guidelines include assignments of salient factor scores based on consideration of factors such as prior criminal history, nature of offense, and drug use history. 28 C.F.R. § 2.20 (1994); see generally, Warren, 212 U.S. App. D.C. at 143-47, 659 F.2d at 189-193 (discussing change in federal parole guidelines). These new federal parole guidelines are nearly identical to the system later adopted by the District, which are the subject of Davis's challenge. Compare 28 C.F.R. § 2.20 with 28 DCMR §§ 204.1 - 204.22.
In addressing a claim that the change in the federal parole guidelines, promulgated after an offender's conviction, subjected him to an ex post facto violation, the Court of Appeals for the D.C. Circuit observed:
Precisely because [the offender] was sentenced to be held at the discretion of the parole authorities, under the ex post facto clause he is entitled to an opportunity to have that discretion exercised; anything less would impermissibly augment his penalty. But an entitlement to have discretion exercised does not imply an entitlement to have it exercised in a particular way; the essence of discretion is the absence of fixed rules.
Warren, 212 U.S. App. D.C. at 150, 659 F.2d at 196 (footnote omitted) (emphasis in original). In analyzing the discretion retained by the U.S. Parole Board in the salient factor scoring system, and the scope of the change from the general statutory mandate to formalized factor consideration, the Warren Court held, "what clinches the case is that Warren was sentenced to be held in federal prison at the discretion -- howsoever exercised -- of the parole authorities, so that guidelines which merely rationalize the exercise of that discretion do not offend the ex post facto clause." Warren, 212 U.S. App. D.C. at 149, 659 F.2d at 195. *fn5 A fortiori, if the change in the scope of the United States Parole Board's discretion from general statutory mandate to formalized salient factor scoring system does not violate the ex post facto clause, the change in the exercise of the District of Columbia Parole Board's discretion from informal factor consideration to virtually the same formalized salient factor scoring system does not violate the clause either.
While the Supreme Court has not expressly ruled on this issue, *fn6 it has discussed at some length the Warren case and some of the other federal authorities cited above, (supra) note 5, in a case where it contrasted the retrospective application of the federal parole guidelines to the retrospective application of the federal sentencing guidelines. See Miller v. Florida, 482 U.S. 423, 434-35, 96 L. Ed. 2d 351, 107 S. Ct. 2446 (1987). In holding that the retrospective application of the sentencing guidelines violated the ex post facto clause, the Court uncritically distinguished cases which have "articulated several reasons why the ex post facto prohibition does not apply" to the federal parole guidelines, and specifically held that the parole cases were "inapposite" to the ex post facto challenge of the sentencing guidelines. *fn7 Id. In making this determination, the Court noted that the revised sentencing guidelines "create a high hurdle that must be cleared before discretion can be exercised," whereas the revised parole guidelines are more akin to "flexible 'guideposts' for use in the exercise of discretion." Id.
Because the exercise of discretion to which Davis is entitled is available under the new guidelines, as it was previously, we hold that the change in the manner in which that discretion is exercised by the Board does not run afoul of the ex post facto clause. Accordingly, the ...