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Sellmon v. Reilly

May 5, 2008


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


Plaintiffs Tony Sellmon, Carlton Martin, Charles Phillips, Darius Smith, Daru Swinton, Benson West-El, Curtis Eason, and James Gambrell*fn1 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 plaintiff's 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.



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 (1987) (repealed Aug. 5, 2000).)*fn2

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 decision-making 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. at4.)

After serving his or her minimum sentence, a D.C. Code offender became eligible to considered for parole.*fn3 Once a prisoner became eligible for parole, the D.C. Parole Board would then determine whether he or she was suitable for parole.*fn4 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 criminal behavior; (3) the offender had a lengthy history of criminally related alcohol abuse; (4) the offender had a history of repetitive sophisticated criminal behavior; (5) the offender had an unusually serious prior record of at least five felony convictions; or (6) the offender's crime involved unusual cruelty to victims. See D.C. MUN. REGS. tit. 28, app. 2-1.

B. 1991 Policy Guideline

In 1991, to ensure consistent and equitable application of the 1987 Regulations, the Board adopted a policy guideline to define the terms used in the appendices to the 1987 Regulations (the "1991 Policy Guideline"). (Pls.' Joint Stmt. ¶ 65; Pls.' Joint Ex. 8 [1991 Policy Guideline] at 1 (The purpose of the 1991 Policy Guideline was "[t]o define criteria and parameters for determining the applicability of descriptive terminology used in the [1987 Regulations] for release decisionmaking, and to facilitate consistency in [Regulation] Application.").)

The Board explained that "negative institutional behavior" in initial parole cases meant:

(1) one Class I Offense for murder, manslaughter, kidnapping, armed robbery, or first degree burglary at any time during the minimum sentence; (2) one Class I Offense during the twelve months preceding the hearing or during the last half of the minimum sentence up to a period of three years, whichever is longer; or (3) two Class II Offenses during this same time frame. (See Pls.' Ex. 8 at 2.) In parole reconsideration cases, "negative institutional behavior" was defined as either (1) one Class I Offense or (2) two Class II Offenses occurring since the preceding release consideration on the sentence. (Id.)

The Board further clarified that "sustained program or work assignment achievement" in the context of an initial parole consideration meant "[s]uccessful completion of one or more educational or vocational programs, or program levels, each of which enabled the offender to develop an academic or job-related skill, OR enabled the offender to progress to a higher level of difficulty or skill in the program area." (Id. at 3.) In parole reconsideration cases, an offender would be found to have "sustained work or program achievement" if he or she completed the required programs since the last consideration for release. (Id.)

Finally, the Board defined each of the unique or "unusual circumstances" listed in appendix 2-1 of the 1987 Regulations.*fn5 The Board also added and defined three additional "unusual circumstances" that would justify a departure from the action indicated by the total base point score: (1) repeated or extremely serious negative institutional behavior;*fn6 (2) lengthy history of criminally-related substance abuse;*fn7 and (3) absence of community resources which ensure the safety of the community.*fn8 (Id. at 6-9.)

C. 2000 Guidelines

Between 1998 and 2000, the USPC drafted new parole regulations and guidelines (the "2000 Guidelines") that it applied to any offender who received an initial parole hearing after August 5, 1998. (Pls.' Joint Stmt. ¶ 14.) The USPC justified its revisions explaining that its research demonstrated that "[t]he point score system used by the D.C. Board of Parole ha[d] resulted in a high rate of upward departures from the guidelines based upon factors that should be included in the guidelines . . . ." 63 Fed. Reg. 17771, 17772 (Apr. 10, 1998). The USPC claimed that in a random sample of 100 cases decided by the Board in 1997, over half resulted in upward departures. 63 Fed. Reg. 39172, 39172 (July 21, 1998). The USPC also undertook a study to "identify factors relevant to current offense and criminal history that [could] be empirically correlated with repeat violent crime." Id. Based on these studies, the USPC replaced the 1987 Regulations with the 2000 Guidelines for D.C. Code offenders who received their first hearing after August 5, 1998. (Pls.' Joint Stmt. ¶ 89.) The USPC was concerned that its new guidelines might increase the period of incarceration that D.C. Code offenders would have to serve, but it has not analyzed whether this in fact has occurred. (Id.)

Similar to the 1987 Regulations, the 2000 Guidelines use a point score system to determine whether a candidate is presumptively suitable for parole. This system begins with a calculation of the Salient Factor Score ("SFS"), which assesses the degree of risk that a parole candidate will become a recidivist. See 28 C.F.R. §§ 2.80(c) and 2.20. The candidate's "criminal conduct (including the nature and circumstances of the current offense) . . . [is then] used to assist the Commission in determining the probable seriousness of the recidivism that is predicted by the Salient Factor Score." Id. § 2.80(c). Like the 1987 Regulations, the 2000 Guidelines also determine the "type of risk" posed by the parole candidate by looking at his or her history of violence, the use of weapon, and/or death of the victim as a result of the candidate's crime. Id. § 2.80(f). Under the 2000 Guidelines, a candidate can receive as many as 7 points based on the "type of risk" factor. Id. Any parole candidate serving a sentence for a crime of violence that resulted in the death of the victim automatically had 5 points added to his or her base point score. (Pls.' Joint Stmt. ¶ 126.)

After calculating both the degree and type of risk posed by an offender, the base point score is converted into a "base guideline range" of months that are added to the parolee's minimum sentence imposed by the court. See 28 C.F.R. § 2.80(h). Any offender with a base point score of greater than 3 points will, absent superior program achievement, have additional months added to his or her parole eligibility period. Id. §§ 2.80(h), (i).

After adding the base guideline range to the parole eligibility period, the USPC then adds or subtracts months to reflect negative institutional behavior and/or superior program achievement. See 28 C.F.R. §§ 2.80(j), (k), & (l). The final range of months is referred to as the "total guideline range," which is "the amount of time [an offender] may expect to serve with continued good conduct and ordinary program achievement." 65 Fed. Reg. 70663, 70664 (Nov. 27, 2000). Until a parole candidate has served a period of time equal to the bottom of his total guideline range, the candidate is presumed to be unsuitable for parole. See 28 C.F.R. §§ 2.80(h), (i), & (l).

Finally, similar to the 1987 Regulations, the 2000 Guidelines permit the USPC to deny parole to a candidate who is presumptively eligible under "unusual circumstances." The 2000 Guidelines provide examples of "unusual circumstances" but do not limit the discretion of the USPC to depart on any basis that it classifies as "unusual" except that it cannot have been "fully taken into account in the guidelines." 28 C.F.R. § 280(n).


Each plaintiff is a D.C. Code offender who committed his crime and was sentenced prior to August 5, 1998, when the D.C. Parole Board was responsible for determining the criteria to apply to D.C. Code Offenders. Since August 5, 1998, the USPC has decided plaintiffs' parole requests. Plaintiffs can be grouped into four categories according to the timing of their offenses and of their initial parole hearings. James Gambrell and Curtis Eason committed their offenses after the Board adopted the 1987 Regulations and were considered by the USPC under the 1987 Regulations. Charles Phillips and Benson West-El committed their offenses before the Board adopted the 1987 Regulations and were considered by the USPC under the 2000 Guidelines. Tony Sellmon and Carlton Martin committed their offenses after the Board adopted the 1987 Regulations, but before the 1991 Policy Guideline was enacted, and were considered by the USPC under the 2000 Guidelines. Finally, Darius Smith and Daru Swinton committed their offenses after the 1987 Regulations and 1991 Policy Guideline were adopted, and were considered by the USPC under the 2000 Guidelines.

A. Plaintiffs Considered Under the Parole Board's 1987 Regulations: Gambrell and Eason

1. James Gambrell

James Gambrell was sentenced on January 3, 1991, to imprisonment for a term of 12 years to life for Murder II While Armed for an offense he committed on February 13, 1989. (Gambrell's Stmt of Undisputed Material Facts ["Gambrell Stmt."] ¶ 1; Gambrell Ex. 2 [Sentence Monitoring Computation Data] at 2.) Gambrell first became eligible for parole on November 26, 1999, after serving his minimum sentence. (Gambrell Ex. 2 at 3.) At Gambrell's initial parole hearing on July 14, 1998, the D.C. Parole Board represented that it would apply the 1987 Regulations. (Gambrell Stmt. ¶ 3; 28 C.F.R. § 2.80(a)(4).) Parole was denied and the Board set a rehearing date for August 20, 1999. (Id.) On December 9, 1999, a USPC Pre-Hearing Assessment Reviewer prepared a reconsideration prehearing assessment for Mr. Gambrell. (Id. ¶ 5.) In his report, the Reviewer expressed his concern that "[t]he major issue[] is whether this is sufficient accountability for the murder of an unarmed guard during a robbery. The history in this case is extremely volatile with numerous incidents of his possession of weapons and assaultive behavior." (Gambrell Ex. 4 [D.C. Reconsideration Pre-Hearing Assessment of James Gambrell (Dec. 9, 1999)] at 3.) On December 14, 1999, Gambrell appeared before a USPC hearing examiner. (Gambrell Stmt. ¶ 6.) The Hearing Examiner reduced Gambrell's total point score by one point for sustained program achievement since his last year, giving him a total point score of 0, which indicated that Gambrell was presumed suitable for parole. (Id.) The Hearing Examiner noted that Gambrell had programmed well, had received no disciplinary infractions, and had a total point score of 0, but nonetheless recommended a departure from the D.C. Parole Guidelines stating that "a close review of the crime itself as well as the subject's history would suggest that he represents a clear threat to the community and should not be released at this time." (Gambrell Ex. 5 [D.C. Reconsideration Hearing Summary of James Gambrell (Dec. 14, 1999)] at 2.) On January 18, 2000, the USPC adopted the Hearing Examiner's conclusions and recommendations and departed from the recommended action under the 1987 to deny Gambrell's request for parole. (Gambrell's Stmt. ¶ 8.) The USPC gave Gambrell a four-year set-off for August 2003. (Id.)

The USPC conducted Gambrell's second rehearing on July 1, 2003, at which time Gambrell again received a total point score of 0 and was presumptively suitable for parole. (Id. ¶ 9.) The Hearing Examiner again recommended a denial of the parole request based on the same reasons previously used to deny parole on January 18, 2000, and the USPC again denied parole on July 29, 2003. (Id. ¶ 10.) The USPC gave Gambrell a three-year set-off, with rehearing scheduled for July 2006. (Id.) After Gambrell's third rehearing, at which he again received a total point score of 0, the USPC again denied parole based on the same reasons and gave him a two-year set-off. (Id. ¶¶ 11-12.) Between Gambrell's third and fourth rehearings, Gambrell brought this lawsuit. (Id. ¶ 19.)

On July 24, 2007, the USPC conducted Gambrell's fourth rehearing. (Id. ¶ 20.) Gambrell had completed the Challenge Program between hearings pursuant to the USPC's request at his prior hearing, and he had not been subject to any disciplinary actions. (Id.) The Hearing Examiner recommended parole, writing that Gambrell "is remorseful for his instant offense and said that he has demonstrated that through his corrective action and programming. This examiner believes giving the subject a parole date at this juncture is appropriate and would not lessen the severity of the offense. It would hold him accountable for his actions and the subject has done everything possible in order for him to succeed." (Id.) Executive Reviewer Kostbar disagreed and recommended that Gambrell be given a five-year set-off, explaining that "19 years is simply not enough time for an individual to serve in a crime of this nature, and I believe that release at this time, or any time in the near future, would depreciate the seriousness of the offense behavior and promote disrespect for the law." (Gambrell Ex. 11 [Rehearing Summary of James Gambrell (Jul. 24, 2007)] at 3.) On August 10, 2007, the USPC adopted the Executive Reviewer's conclusions and recommendations and denied parole, citing the same reasons for departing from the guidelines as it had in the prior three rehearings, but giving Gambrell a five-year set-off and setting rehearing for July 2012. (Gambrell Stmt. ¶ 24.)

2. Curtis Eason

On November 9, 1988, Curtis Eason was sentenced to a term of 14 years to life for the crime of Murder in the Second Degree While Armed. (Eason's Stmt. of Material Facts ["Eason Stmt."] ¶ 1.) Eason became eligible for parole on March 18, 1998, after serving his minimum sentence. (Id. ¶ 2.) On February 20, 1998, the D.C. Parole Board held Eason's initial hearing and determined that Eason had a total point score of 3, which indicated that he was not presumed suitable for parole. (Id. ¶ 3.) The Board denied Eason parole on November 23, 1998, and gave him a one year set-off and a rehearing date of March 18, 1999. (Id. ¶¶ 4-5.) The Board gave Eason two special instructions for reconsideration: (1) "program participation" and (2) "no new disciplinary reports." (Id.)

On March 9, 1999, a USPC Pre-Hearing Assessment Reviewer prepared an assessment and computed a total point score of 2. The Reviewer noted that "[Eason] is now within the parolable guidelines with a total point score of 2. The issue is whether or not 11 years in custody is adequate accountability for the taking of a life during a robbery offense." (Eason Ex. 4 [D.C. Reconsideration Prehearing Assessment (March 9, 1999)] at 3.) At the hearing, the Examiner noted that Eason had followed the Board's instructions for reconsideration, had continued programming well, and had no new disciplinary infractions, but recommended departing from the 1987 Regulations and denying parole. (Eason Stmt. ¶ 9.) The Examiner stated that:

The prisoner certainly is doing extremely well in terms of programming and conduct, however in this examiner's opinion, the prisoner's favorable institutional adjustment does not outweigh the issues of risk or accountability. This examiner would believe that . . . for the nature of the prisoner's instant offense some minimum sentence service up to 20 years would be indicated or possibly even more. It appears that the prisoner has served between 10 and 11 years in continuous custody at this juncture and again in this examiner's opinion, it simply would not be sufficient for purposes of accountability, not to mention risk. (Id.) The USPC adopted the Examiner's recommendation finding that a departure from the Regulations was warranted because Eason was "a more serious risk than indicated by [his] total point score . . ." based on his prior criminal history. (Eason Ex. 6 [Notice of Action (April 23, 1999)] at 1.) The USPC gave Eason a five-year set-off with a rehearing date of March 2004. (Eason Stmt. ¶ 10.)

The USPC conducted Eason's second rehearing on March 2, 2004, at which time the Hearing Examiner reduced Eason's total point score by one point for program achievement, giving him a total point score of 1, which rendered him presumptively suitable for parole. (Id. ¶ 11.) The Hearing Examiner recommended that parole be granted. (Id.) The Executive Reviewer, however, rejected the Examiner's decision and recommended denial of parole on the basis that

[a] review of the file documents reveals that although the offender was permitted to plead to the reduced offense of Murder II, the offense behavior has all of the elements of Murder I. There was planning, aforethought, etc. The offender brought to the table a serious assault/violent criminal history and must still be considered

[a] threat to the public safety. Although he has made a generally good inst[itutional] adjustment, the behavioral accountability factor has not been met. In many jurisdictions release for a case of this magnitude would not be seriously considered until[] at least 20 years had been served. It is noted also that at the 1999 hearing the USPC imposed the maximum "setoff" (5 yrs) and would possibly have made a more lengthy one if permitted.

(Id.) The USPC adopted the recommendation of the Executive Reviewer and departed from the 1987 Regulations in denying Eason parole. The Notice of Action stated that "[a]fter consideration of all factors and information presented, a departure from the guidelines is warranted because your offense behavior is more serious than your conviction to Murder II in that the murder was planned and an act of revenge. Consequently, the Commission has determined additional time incarcerated is necessary for accountability purposes." (See Eason Ex. 8 [Notice of Action (Apr. 1, 2004)] at 1.) The USPC gave Eason a three-year set-off with a rehearing date of March 2007. (See Eason Stmt. ¶ 12.)

The USPC conducted Eason's third rehearing on March 13, 2007, and reduced his total point score to 0 for sustained program achievement. (Id. ¶ 13.) The Hearing Examiner recommended a grant of parole. Executive Reviewer Jeffrey Kostbar disagreed.

This is a highly aggravated case and outside the "heartland" of a 2nd degree murder case. The case specifics are more closely associated with a 1st degree, premeditated murder. Consequently I believe that the subject should serve much more time on this term, possibly as long [as] 25 - 30 years. A decision less than that, would, in my opinion, depreciate the seriousness of the [offense] behavior and promote disrespect for the rule of law . . .

(Eason Ex. 9 [Hearing Summary (Mar. 13, 2007)] at 3-4.) The USPC adopted Kostbar's recommendation and denied Eason's request for parole, noting that "additional time is necessary for accountability purposes." ...

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