Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal Action No. 1-97-cv-01731) District Judge: Honorable A. Richard Caputo .
The opinion of the court was delivered by: ALARCÓN, Circuit Judge
Before: SCIRICA, AMBRO and ALARCÓN*fn1 , Circuit Judges
We are asked to decide whether an amendment to Article IV, § 9(a) of the Constitution of the Commonwealth of Pennsylvania, that alters the voting procedures employed by the Pennsylvania Board of Pardons to require unanimity in recommending pardons and commutations for life-sentenced prisoners to the Governor, violates the Ex Post Facto Clause of the United States Constitution.
The District Court ruled that the constitutional amendment, passed by Pennsylvania voters in 1997 ("1997 Amendment"), violates the Ex Post Facto Clause for prisoners sentenced to a term of life imprisonment prior to its effective date. Because none of the prisoners who are seeking relief in this action has shown that there is a significant risk the 1997 Amendment will increase the length of their punishment, an element essential to establishing an ex post facto violation, Plaintiffs have failed to state a viable claim. We will therefore reverse and remand with instructions to dismiss the ex post facto action.
Under the Constitution of the Commonwealth of Pennsylvania, the Governor is empowered "in all criminal cases except impeachment . . . to grant reprieves, commutation of sentences and pardons. . . ." Pa. Const. art. IV, § 9(a). "Like Article II of the U. S. Constitution, Article IV of the Pennsylvania Constitution delineates powers of the executive branch." Pa. Prison Soc'y v. Cortés, 508 F.3d 156, 159 n.4 (3d Cir. 2007) ("Prison Society I"). The Governor's decision whether to commute a sentence is based upon recommendations made by the Pennsylvania Board of Pardons ("the Board of Pardons"), also part of the executive branch. Pa. Const. art. IV, § 9(b)*fn2 ; see also Commonwealth ex rel. Cater v. Myers, 412 Pa. 67, 71 (1963) ("The Board of Pardons is a board of clemency which is constitutionally ordained to recommend to the Governor of Pennsylvania the grant or denial of clemency, i.e., commutation of sentence or pardon of persons who have been convicted of and sentenced for crime.").*fn3
Prior to November 4, 1997, Article IV, § 9(a) of the Constitution of the Commonwealth of Pennsylvania provided, in relevant part, that:
In all criminal cases except impeachment the Governor shall have the power to remit fines and forfeitures, to grant reprieves, commutation of sentences and pardons; but no pardon shall be granted, nor sentence commuted, except on the recommendation in writing of a majority of the Board of Pardons, after full hearing in open session, upon public notice . . . .
Pa. Const. art. IV, § 9(a) (amended 1997) (emphasis added).
In 1997, a ballot question proposing an amendment to the constitution that would alter the composition of and voting procedures employed by the Board of Pardons was scheduled to be submitted to Pennsylvania voters. The proposed ballot question read:
Shall the Pennsylvania Constitution be amended to require a unanimous recommendation of the Board of Pardons before the Governor can pardon or commute the sentence of an individual sentenced in a criminal case to death or life imprisonment, to require only a majority vote of the Senate to approve the Governor's appointments to the Board, and to substitute a crime victim for an attorney and a corrections expert for a penologist as Board members?
Pa. Prison Soc'y v. Commonwealth, 565 Pa. 526, 532 (2001). The 1997 Amendment of the Board of Pardons' procedures was motivated by a 1994 incident in which Reginald McFadden, a prisoner sentenced to life imprisonment who had been granted commutation by the Governor, after a majority of the Board of Pardons voted to recommend it, committed a new murder in the State of New York. (2d Amend Compl. ¶ 26); see also Hearings on Pennsylvania Board of Probation and Parole Reforms Before the House Judiciary Comm., 1995 Gen. Assembly 179th Sess. (Pa. June 9, 1995); S. of Pa. Judiciary Comm., Chairman's Rep. Investigation into the Parole of Robert Simon, 1995 Gen. Assembly, 179th Sess. 1-6 (Pa. 1996); (Appellants' Br. 19 (citing A000522-A000525, testimony of Mark Singel)); Appellees' Br. 43.)*fn4 .
On November 4, 1997, Pennsylvania voters approved the ballot measure. Article IV, § 9 (a) of the Constitution of the Commonwealth of Pennsylvania was amended to read as follows:
In all criminal cases except impeachment, the Governor shall have power to remit fines and forfeitures, to grant reprieves, commutation of sentences and pardons; but no pardon shall be granted, nor sentence commuted, except on the recommendation in writing of a majority of the Board of Pardons, and, in the case of a sentence of death or life imprisonment, on the unanimous recommendation in writing of the Board of Pardons, after full hearing in open session, upon due public notice.
Pa. Const., art. IV, § 9(a). Accordingly, the 1997 Amendment changed the number of votes needed to support the Pardon Board's recommendation to the Governor that a life sentence be commuted to a term of years with the possibility of parole from majority to unanimous and substituted a crime victim instead of an attorney and a corrections expert instead of a penologist as Board members.
Pennsylvania law distinguishes between the exercise of the Governor's clemency power to grant pardons and commutations pursuant to the Constitution of the Commonwealth, and the authority to release a prisoner on parole, which is an independent function of the Board of Probation and Parole. Unlike the Board of Pardons, which is constitutionally mandated and operates as a function of the Pennsylvania Department of Justice, 71 Pa. Cons. Stat. § 12, the Pennsylvania Board of Probation and Parole is an independent board, originally created by the Parole Act of 1941. See Parole Act of 1941, 1941 Pa. Laws 861 (codified as amended at 61 Pa. Stat. Ann. §§ 331.1-.21 repealed by Act of Aug. 11, 2009, ch. 61, 2009 Pa. Laws 33). The Parole Act states that "[t]he parole system provides several benefits to the criminal justice system, including the provision of adequate supervision of the offender while protecting the public, the opportunity for the offender to become a useful member of society and the diversion of appropriate offenders from prison." Id.; see also 61 Pa. Cons. Stat. § 6111(a)-(b) (2010) (providing that the Board of Probation and Parole is "an independent administrative board for the administration of the probation and parole laws of this Commonwealth" consisting of nine members who are appointed by the Governor).
By contrast, "[t]he constitutional power of the Governor to grant pardons and commutations of sentence is exclusive. . . " Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 585 (1942). As the Pennsylvania Supreme Court explained in Commonwealth v. Zook, 532 Pa. 79, 114 (1992):
The Governor's power to commute sentences is found within Article IV, § 9 of the Pennsylvania Constitution. Under our Constitution of 1776, § 20, the Supreme Executive Council had the power to grant pardons and remit fines in all cases except in cases of impeachment. This doctrine has evolved over the years into the present day enactment, which provides in pertinent part: (a) In all criminal cases except impeachment, the Governor shall have power to remit fines and forfeitures, to grant reprieves, commutation of sentences and pardons; but no pardon shall be granted, nor sentence commuted, except on the recommendation in writing of a majority of the Board of Pardons, after full hearing in open session, upon due public notice . . . .
Id. (citing Pa. Const. art. IV, § 9) (citations omitted).*fn5 In Banks, the court discussed the differences between the concepts of parole and pardons and explained that:
[t]here is a radical difference between a pardon and a parole. A pardon is the exercise of the sovereign's prerogative of mercy. It completely frees the offender from the control of the state. It not only exempts him from further punishment but relieves him from all the legal disabilities resulting from his conviction. It blots out the very existence of his guilt, so that, in the eye of the law, he is thereafter as innocent as if he had never committed the offense. A parole, on the other hand, does not obliterate the crime or forgive the offender. It is not an act of clemency, but a penological measure for the disciplinary treatment of prisoners who seem capable of rehabilitation outside of prison walls. It does not set aside or affect the sentence; the convict remains in the legal custody of the state and under the control of its agents, subject at any time, for breach of condition, to be returned to the penal institution. Neither is a parole a commutation of sentence within the meaning of that term in the constitutional provision. When our present constitution was adopted, parole, as a penological expedient, was unknown to American jurists and legislators, and commutation was then generally understood as meaning a reduction in the length of the sentence, effecting a discharge of the prisoner without any further supervision over him by the state authorities.
Banks, 345 Pa. at 584-85 (citations omitted). See also Commonwealth v. Sutley, 474 Pa. 256, 273-74, 274 n.12 (1977) ("The power of commutation is an adjunct of the pardoning power, and can be granted only by the authority in which the pardoning power resides. . . . As defined by this Court, the pardon is: the exercise of the sovereign's prerogative of mercy. . . .") (citations and internal quotations omitted).
This action was originally brought as a petition for review in the Commonwealth Court of Pennsylvania on October 16, 1997, before the ballot question proposing the 1997 Amendment had been approved by voters. In the original action, the Pennsylvania Prison Society and others challenged the ballot question as violative of various provisions of the United States and Pennsylvania Constitutions.*fn6 See Pa. Prison Soc'y v. Commonwealth, 727 A.2d 632, 635 (Pa. Commw. Ct. 1999), rev'd, 565 Pa. 526 (2001).
On November 12, 1997, after voters approved the 1997 Amendment, the Commonwealth removed the action to the United States District Court for the Middle District of Pennsylvania pursuant to 28 U.S.C. § 1441(a). On January 5, 1998, Plaintiffs filed an amended complaint alleging that the 1997 Amendment violates various provisions of the United States Constitution. On January 15, 1998, the District Court granted the parties' joint motion to remand the state law claims and to stay the federal claims pending resolution of the state law claims.
The Commonwealth Court determined that "the November 4, 1997 vote on the ballot question [was] null and void, as the single ballot question contained five amendments to the Pennsylvania Constitution." Pa. Prison Soc'y v. Commonwealth, 727 A.2d at 636. On July 25, 2001, the Supreme Court of Pennsylvania reversed the Commonwealth Court and upheld the 1997 Amendment as properly submitted. Pa. Prison Soc'y v. Commonwealth, 565 Pa. 526, 530, 537 (2001) (holding that "the voters should be given free opportunity to modify the fundamental law as may seem to them fit . . . .") (quoting Taylor v. King, 284 Pa. 235 (1925) (overruled in part by Stander v. Kelley, 433 Pa. 406 (1969)).
On July 29, 2002, after resolution of the state law claims, Plaintiffs filed a second amended complaint in the District Court presenting federal and state constitutional challenges to the 1997 Amendment, including a claim that for prisoners sentenced to life imprisonment prior to the effective date of the 1997 Amendment, the change in the voting requirements for the Board of Pardons violates the Ex Post Facto Clause as alleged in Count II. Plaintiffs' second amended complaint also alleges that the 1997 Amendment violates: the rights of life prisoners and prisoners under death sentence under the Due Process Clause (Count I); the Equal Protection Clause (Count III); Pennsylvania voters' rights under the Due Process Clause (Count IV); the Eighth Amendment (Counts V and VI); and the Guarantee Clause (Count VII). Plaintiffs also brought claims under the Pennsylvania Constitution (Counts VII and VIII). In their second amended complaint, Plaintiffs requested declaratory and injunctive relief.
On August 12, 2002, the Commonwealth moved to dismiss Plaintiffs' second amended complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). On March 6, 2003, the District Court issued a memorandum in which it granted the Commonwealth's motion to dismiss Counts III through VIII pursuant to Rule 12(b)(6), and ordered the dismissal of the claim in Count I that due process rights of inmates with life sentences were violated. The District Court denied the Commonwealth's motion to dismiss the due process claims of inmates under death sentences as alleged in Count I, as well as the Commonwealth's motion to dismiss the prison inmates' claim under the Ex Post Facto Clause as alleged in Count II. (Mem. Op., March 6, 2003.)
In denying the motion to dismiss the ex post facto claim, the District Court relied upon Supreme Court cases analyzing the impact of changes in the eligibility requirements for parole release enacted by various states. It concluded that resolution of the ex post facto claim required a factual analysis, because "when an amendment 'does not by its own terms show a significant risk, the [prisoner] must demonstrate, by evidence drawn from the rule's practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier rule.'" (Id. at 11-12 (quoting Garner v. Jones, 529 U.S. 244, 255 (2000) (considering whether an amendment to a Georgia rule that changed parole reconsideration review procedures violated the Ex Post Facto Clause)).)
Both sides moved for reconsideration of the District Court's March 6, 2003, order. The Plaintiffs argued that the District Court should reconsider its ruling on the ex post facto claim in light of Smith v. Doe, 538 U.S. 84 (2003), wherein the Supreme Court held that in determining whether legislation violates the Ex Post Facto Clause, a court must "ascertain whether the legislature meant the statute to establish 'civil' proceedings." Id. at 92 (quoting Kansas v. Hendricks, 521 U.S. 346, 361 (1997)). The District Court denied the Plaintiffs' motion for reconsideration. It held that
[t]he present case is distinguishable from both Doe and Hendricks in that it involves a challenge to retroactive changes in state law governing prisoners' parole, instead of challenges to legislation regarding "sexual predators" or sexual offenders. The Supreme Court has consistently held that, in cases regarding retroactive changes in state law governing prisoners' parole, the relevant inquiry is whether the amendments create a significant risk of prolonging prisoners' sentences.
(Mem. Op., May 6, 2003, at 5-6 (emphasis added) (citing Garner, 529 U.S. at 251; Lynce v. Mathis, 519 U.S. 433, 441 (1997) (considering whether revisions in Florida law impacting the award of early parole release credits to prison inmates violates the Ex Post Facto Clause); Cal. Dep't of Corr. v. Morales, 514 U.S. 499 (1995) (considering whether a law changing the procedures concerning the accessibility of parole suitability hearings violated the Ex Post Facto Clause); Mickens-Thomas v. Vaughn, 321 F.3d 374 (3d Cir. 2003) (considering whether material modifications of Pennsylvania parole laws violated the Ex Post Facto Clause).)
The Commonwealth moved the District Court to reconsider its partial denial of Plaintiffs' due process claim in Count I regarding prisoners sentenced to death, and urged it instead to dismiss the claim in its entirety. The Commonwealth argued that "[w]hether or not certain Board [of Pardons] members are biased against granting clemency does not render the amendment unconstitutional, although it may be grounds for disqualification in a particular case." (Defs.' Br. in Supp. of Mot. for Consideration, April 4, 2003, at 4-5.) The District Court agreed with the Commonwealth's argument in part. It held that
[t]he prejudice of individual Parole Board members is irrelevant, as Plaintiffs must establish that the amendments would not be valid under any set of circumstances. . . . Plaintiffs may still pursue the argument that the inclusion of a crime victim on the Board impermissibly introduces decision-maker bias into the parole process.
(Mem. Op., May 6, 2003 at 7) (emphases added).*fn7
On August 19, 2005, Plaintiffs filed a Motion for Summary Judgment. It was refiled on August 23, 2005 as an Amended Motion for Summary Judgment, pursuant to the District Court's instruction. Plaintiffs moved for summary judgment as to Count II on the ground that the 1997 Amendment "constitutes an improper ex post facto imposition of additional punishment in violation of the United States Constitution on persons who were sentenced to death or to life in prison prior to the effective date of such Amendment." (Pls.' Am. Mem. in Supp. of Their Mot. for Summ. J., Aug. 23, 2005.)
On September 13, 2005, the Commonwealth filed a Motion for Summary Judgment as to Plaintiffs' challenge to the inclusion of a crime victim on the Board of Pardons on the ground that it impermissibly introduced decision-maker bias into the clemency process in violation of the Due Process Clause. The Commonwealth also moved for summary judgment as to Plaintiffs' ex post facto claim, on the ground that Plaintiffs had "failed to show that the application of the Amendment will result in a longer period of incarceration for life-sentenced inmates [and they have not shown] that they themselves were individually disadvantaged by the Amendment." (Defs.' Br. in Supp. of Their Mot. Summ. J., at 23.)
On March 13, 2006, the District Court granted the Plaintiffs' Motion for Summary Judgment, holding that the new requirement of Board unanimity in recommending pardons for prisoners sentenced to life imprisonment who had committed their crimes before the 1997 Amendment's effective date violated the Ex Post Facto Clause. The District Court denied relief in all other respects. Pa. Prison Soc'y v. Rendell, 419 F. Supp. 2d 651, 662 (M.D. Pa. 2006).
The parties filed a timely appeal and cross-appeal to this Court. The Commonwealth argued that the District Court erred in failing to dismiss or, alternatively, to grant their motion for summary judgment on the ex post facto claim. Prison Society I, 508 F.3d at 160 n.6. The Commonwealth also argued, for the first time on appeal, that both the District Court and this Court lacked jurisdiction over Plaintiffs' claims because none of the Plaintiffs had standing under Article III of the U.S. Constitution. Id. at 169. This Court agreed that Plaintiffs' pleadings failed to allege facts demonstrating that they met the requirements for standing. Id. at 162-164 (organizational plaintiffs); 164 (voter/taxpayer plaintiffs); 164-169 (prisoner plaintiffs). This Court concluded that:
Because the issue of standing was raised for the first time on appeal, none of the plaintiffs have had the opportunity to present evidence or to litigate this issue. We will therefore dismiss this appeal without prejudice for lack of jurisdiction and remand to the District Court for further proceedings consistent with this Opinion to develop the record in order to determine plaintiffs' standing to bring this action.
Id. at 169. Based upon the conclusion that the Plaintiffs lacked standing, this Court did not reach the Commonwealth's argument that the District Court erred in failing to dismiss this action or, alternatively, grant summary judgment to the Commonwealth on the ex post facto claim. The Commonwealth's appeal was dismissed and the case was remanded to the District Court so that the Plaintiffs could present evidence or otherwise litigate the standing issue.
On remand, the District Court held an evidentiary hearing regarding the standing issue as to each plaintiff on June 2, 2008, August 6, 2008, and August 7, 2008. The District Court determined that the Pennsylvania Prison Society was the only plaintiff that "satisfie[d] all of the requirements needed to qualify for the organizational exception to the prohibition on third party standing." Pa. Prison Soc'y v. Cortés, 2009 U.S. Dist. LEXIS 48995 *4 (M.D. Pa. June 11, 2009). The District Court also concluded that none of the remaining individual prisoner plaintiffs had standing "because they have not suffered or shown that they will imminently suffer an injury resulting from the 1997 Amendments to the Pennsylvania Constitution."*fn8 Id. at *3. The District Court also denied a motion to intervene filed by prisoners Keith Smith and Jackie Lee Thompson, concluding that their "interests are adequately represented by . . . the Pennsylvania Prison Society." Id.
In its June 11, 2009 Memorandum Opinion, the District Court "reinstate[d]" its prior rulings on the Cross-motions for Summary Judgment filed by the parties in 2005 (Plaintiffs' motion filed August 23, 2005 and the Commonwealth's motion filed September 13, 2005). Id. at *49 (citing Mem. and Order, March 13, 2006, reported at Pa. Prison Soc'y v. Rendell, 419 F. Supp. 2d at 659, 661). In its March 13, 2006 Memorandum Opinion, the District Court concluded that the 1997 Amendment violates the Ex Post Facto Clause because retrospective application of the 1997 Amendment "clearly disadvantage[s] the applicants . . . [because its] change in voting requirements, from majority to unanimity, creates more than a speculative and attenuated risk of increasing the measure of punishment applied to life sentenced inmates." Pa. Prison Soc'y, 419 F. Supp. 2d at 661-62. The District Court considered evidence drawn from the new law's practical implementation, i.e., an analysis of the parties' stipulated rate and frequency of commutations granted to life-sentenced inmates in Pennsylvania between 1970 and 2005. It concluded that, as applied to those inmates sentenced after its effective date, the 1997 Amendment posed a "significant risk" of increased punishment. Id. at 658, 660-61 n.1 & n.2. Based upon its finding that "the total number of recommendations by the Board for commutation for life sentenced prisoners [was] significantly lower than the number of recommendations in the eight years prior to the [1997 A]mendments' passage," the District Court held that even though a less than unanimous vote did not guarantee a life sentenced prisoner commutation prior to the passage of the 1997 amendments and although commutation is not completely foreclosed following the passage of the amendments, the 1997 amendments significantly reduced the likelihood of a life sentenced prisoner receiving a recommendation by the Board for commutation and, as such, the 1997 amendments make commutations and parole even more remote for those inmates.
The Board of Pardons and the Pennsylvania Prison Society, as well as Hollis, Smith, and Thompson filed timely cross-appeals from the District Court's final order of June 11, 2009.
The District Court asserted jurisdiction over this matter pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1441(a). This Court has jurisdiction over the appeal from the District Court's final order pursuant to 28 U.S.C. § 1291.
Two dispositive issues remain in this protracted litigation. We must decide whether the District Court was required to conduct an evidentiary hearing to determine its subject matter jurisdiction over the ex post facto claim of each Plaintiff, pursuant to this Court's mandate in Prison Soc'y I. We must also address the question whether the 1997 Amendment, which concerns the exercise of a Governor's sovereign power of clemency as authorized by a state's voters, violates the Ex Post Facto Clause.
In Prison Soc'y I, this Court declined to reach the merits of the parties' cross-appeals from the District Court's order on the parties' Cross-Motions for Summary Judgment because the Second Amended Complaint did not demonstrate that any of the Plaintiffs had standing to assert their constitutional claims. For that reason, this Court dismissed the Commonwealth's appeal without prejudice, without reaching the merits of the cross-appeals and instructed the District Court to "develop the record in order to determine plaintiffs' standing to bring this action." Prison Soc'y I, 508 F.3d at 169.
The Board of Pardons argues that the District Court erred in permitting the Pennsylvania Prison Society to present evidence on the issue of its organizational standing because "[t]his Court's prior ruling in this case[, which] determined . . . that PPS, and all of the other organizational plaintiffs had failed to show standing," foreclosed further review of the issue by the District Court. (Appellants' Opening Br. 5.) Based upon the District Court's reading of this Court's opinion in Prison Soc'y I, it determined that the instruction upon remand was for it "to develop the record and determine standing for all plaintiffs in the current case, including the Pennsylvania Prison Society." Pa. Prison Soc'y v. Cortés, 2009 U.S. Dist. LEXIS 48995 at *38-39 (emphasis added). The District Court based its conclusion upon the fact that this Court "did not specify certain individuals or classes of Plaintiffs" in its remand order who should be allowed to present evidence of their standing to present ...