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Roy A. Daniel et al v. Isaac Fulwood

September 30, 2011


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document No.: 17



This motion comes before the court on the defendants' motion to dismiss. The plaintiffs are federal inmates who "were convicted of offenses against the District of Columbia that occurred on or before March 3, 1985," and the defendants are the Chairman and two Commissioners of the United States Parole Commission ("USPC"). The plaintiffs allege that, when determining whether the plaintiffs qualified for parole, the defendants violated the Ex Post Facto Clause of the Constitution by retroactively applying parole guidelines issued in 2000 ("2000 Guidelines"), instead of applying the regulations in place at the time of the plaintiffs' respective convictions ("1972 Regulations"). In addition, the plaintiffs allege that the defendants violated the Due Process Clause of the Fifth Amendment by denying them a fair parole review hearing.

Because the plaintiffs' allegations, accepted as true, do not plausibly suggest that retroactively applying the 2000 Guidelines created a significant risk of a longer incarceration period than applying the 1972 Regulations would have, the court grants the defendants' motion to dismiss the plaintiffs' ex post facto claims. Similarly, because the parole regulations do not create a constitutionally protected liberty interest, the court grants the defendants' motion to dismiss the plaintiffs' due process claim.


A. Legal Shifts in Parole Regimes Between 1972 and 2000

The regulatory framework governing a federal inmate's suitability for parole in the District of Columbia has changed several times over the past forty years. From 1932 to 1997, the D.C. Parole Board ("the Board") retained discretion to determine when a prisoner would be suitable for parole. See D.C. CODE § 24-204 (1973). Regulations created in 1972 established several factors for the Board to evaluate when making parole determinations. Id. In 1985, the Board adopted further regulations that detailed and narrowed the scope of its discretion. D.C. MUN. REGS. tit. 28, § 100 (1987).

In 1997, responsibility for parole determinations was transferred to federal authority, so that the USPC began conducting parole hearings for D.C. inmates. D.C. CODE §§ 24-101 (2001 & Supp. 2005). In 2000, the United States Parole Commission issued new guidelines for determining whether an inmate is eligible for parole. See generally 63 Fed. Reg. 39172 (July 21, 1998). These guidelines lie at the heart of the plaintiffs' complaint. Because the differences among the various parole regimes are essential to the court's legal analysis, the court discusses these regulations in further detail below.

1. The 1972 Regulations

From 1932 to 1997, the D.C. Parole Board was vested with the authority to grant parole to prisoners sentenced under D.C. law. See Austin v. Reilly, 606 F. Supp. 2d 4, 8 (D.D.C. 2009). Prior to 1972, the relevant provision of the District of Columbia Code ("D.C. Code") stated:

Whenever it shall appear to the Board of Parole that there is a reasonable probability that a prisoner will live and remain at liberty without violating the law, that his release is not incompatible with the welfare of society, and that he has served the minimum sentence imposed or the prescribed portion of his sentence, as the case may be, the Board may authorize his release on parole upon such terms and conditions as the Board shall from time to time prescribe.

Id. (quoting D.C. CODE § 24-204 (1973)).

In 1972, the Board promulgated a set of regulations outlining a list of non-exclusive factors that it could consider when determining whether an inmate was suitable for parole. Wilson v. Fulwood, 772 F. Supp. 2d 246, 252 (D.D.C. 2011). These regulations granted the Board "nearly complete discretion" to determine whether parole was appropriate. Id. The factors that the Board could consider when making parole decisions included:

(a) The offense, noting the nature of the violation, mitigating or aggravating circumstances and the activities and adjustment of the offender following arrest if on bond or in the community under any presentence type arrangement;

(b) Prior history of criminality noting the nature and pattern of any prior offenses as they may relate to the current circumstances;

(c) Personal and social history of the offender, including such factors as his family situation, educational development, socialization, marital history, employment history, use of leisure time and prior military experience, if any;

(d) Physical and emotional health and/or problems which may have played a role in the individual's socialization process, and efforts made to overcome any such problems;

(e) Institutional experience, including information as to the offender's overall general adjustment, his ability to handle interpersonal relationships, his behavior responses, his planning for himself, setting meaningful goals in areas of academic schooling, vocational education or training, involvements in self-improvement activity and therapy and his utilization of available resources to overcome recognized problems. Achievements in accomplishing goals and efforts put forth in any involvements in established programs to overcome problems are carefully evaluated;

(f) Community resources available to assist the offender with regard to his needs and problems, which will supplement treatment and training programs begun in the institution, and be available to assist the offender to further serve in his efforts to reintegrate himself back into the community and within his family unit as a productive useful individual.

Id. (citing 9 D.C.R.R. ch.2, § 105.1 (1972)).

2. The 1987 Regulations

In 1985, the Board formally adopted new regulations, which were codified in 1987 ("1987 Regulations"). Sellmon v. Reilly, 551 F. Supp. 2d 66, 69 (D.D.C. 2008) (citing D.C. MUN. REGS. tit. 28, § 100 (1987)). In order to structure the Board's discretion and promote consistency in its parole release decisions, the 1987 Regulations outlined four explicit factors that the Board would consider in each inmate's case. Sellmon, 551 F. Supp. 2d at 70. The Board would award or take away points for each factor, in order to arrive at a "total point score" indicating whether the prisoner was suitable for parole. Id.

The first two factors in this formula used information known at the time of incarceration, and the other two were based on post-incarceration information. D.C. MUN. REGS. tit. 28, § 100 (1987). The factors that the Board would consider were the inmate's "degree of risk" to offend again, the "type of risk" that he posed, his "institutional adjustment" and his "program participation." Id.

The first factor, the prisoner's "degree of risk," was based on a Salient Factor Score ("SFS"), an actuarial device assessing an inmate's "degree of risk" known at the time of his incarceration. Id. In calculating a prisoner's SFS, the Board would consider six factors: (1) prior convictions and adjudications; (2) prior commitments of more than thirty days; (3) age at the commission of current offense; (4) recent commitment-free period; (5) status of prisoner at the time of the current offense; and (6) history of heroin or opiate dependence. See D.C. MUN. REGS. tit. 28, §§ 204.4-204.17 (1987). In turn, the prisoner's SFS placed him in one of four risk categories: low; fair; moderate; or high risk. Id. § 204.17. Each category also corresponded to a numerical score, allowing the Board to apply a baseline score to each prisoner. Sellmon, 551 F. Supp. at 70 (citing D.C. MUN. REGS. tit. 28, § 100 (1987)).

The Board would then alter this baseline score by taking into account the other three factors required to determine the prisoner's "total point score." Id. The second factor, the "type of risk," required examining whether the prisoner's current or past offenses involved violence, weapons or drug trafficking. Id. (citing D.C. MUN. REGS. tit. 28, ยง 204.18 (1987)). If any of ...

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