Pa Prison Society v. Cortes

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 09-3017

PA PRISON SOCIETY;
JULIA D. HALL; GREGORY H. KNIGHT;
FIGHT FOR LIFERS INC; WILLIAM GOLDSBY;
JOAN PORTER; GRATERFRIENDS INC.;
JOAN F. GAUKER; VINCENT JOHNSON;
FRIENDS COMMITTEE TO ABOLISH THE
DEATH PENALTY INC.; KURT ROSENBERG;
PENNSYLVANIA ABOLITIONISTS UNITED
AGAINST THE DEATH PENALTY; TERRY RUMSEY;
ROGER BUEHL; DOUGLAS HOLLIS; DIANNA HOLLIS

v.

PEDRO A. CORTES,
Secretary, Commonwealth of Pennsylvania;
HONORABLE EDWARD G. RENDELL;
JOSEPH B. SCARNATI, LT GOVERNOR;
THOMAS W. CORBETT, JR.; LOUISE B. WILLIAMS;
RUSSELL A. WALSH, Ph.D.; JOHN E. WETZEL

(Pursuant to Fed. R. App. P. 43)
 Joseph B. Scarnati, Thomas W. Corbett,
Louise B. Williams, Russell A. Walsh,
John E. Wetzel,
Appellants

No. 09-3018

PENNSYLVANIA PRISON SOCIETY;
DOUGLAS HOLLIS; PAROLE PLAINTIFFS,
KEITH SMITH, JACKIE LEE THOMPSON

(Pursuant to F.R.A.P. 12(A))

v.

PEDRO A. CORTES;
HONORABLE EDWARD G. RENDELL;
JOSEPH B. SCARNATI, LT. GOVERNOR;
THOMAS W. CORBETT, JR.; LOUISE B. WILLIAMS;
RUSSELL A. WALSH, Ph.D.; JOHN A. WETZEL

Pennsylvania Prison Society,
Douglas Hollis, Keith Smith,
Jackie Lee Thompson,
Appellants

2
 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

Argued April 19, 2010
Before: SCIRICA, AMBRO and ALARCÓN * , Circuit Judges

(Filed: October 1, 2010)

Thomas W. Corbbett, Jr.
Attorney General
Richard A. Sheetz, Jr.
Executive Deputy Attorney General
Amy Zapp (Argued)
Chief Deputy Attorney General
Special Litigation Section
Office of the Attorney General
16th Floor, Strawberry Square
Harrisburg, PA 17120
Counsel for Appellants/Cross-Appellees

*
Honorable Arthur L. Alarcón, Senior United States Circuit
Judge for the Ninth Circuit Court of Appeals, sitting by
designation.

3
Stephen A. Whintson (Argued)
245 North Broad Street
Suite 300
Philadelphia, PA 19107
Counsel for Appellees/Cross-Appellants

OPINION OF THE COURT

ALARCÓN, Circuit Judge

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

4
reverse and remand with instructions to dismiss the ex post facto
action.

I

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)1 ; see also Commonwealth ex rel. Cater v. Myers, 412 Pa.

1
Prior to its amendment, Pa. Const. art. IV, § 9(b) provided:

The Board of Pardons shall consist of the
Lieutenant Governor who shall be chairman, the
Attorney General and three members appointed by
the Governor with the consent of two-thirds or a
majority of the members elected to the Senate as
is specified by law for terms of six years. The
three members appointed by the Governor shall be
residents of Pennsylvania and shall be recognized
leaders in their fields; one shall be a member of

5
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.”).2

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

the bar, one a penologist, and the third a doctor of
medicine, psychiatrist or psychologist. The board
shall keep records of its actions, which shall at all
times be open for public inspection.

Pa. Const. art. IV, § 9(b) (amended 1997).
2
While commutations of sentences and pardons for persons
convicted of crimes are both acts carried out by the Governor of
Pennsylvania under his or her clemency power, the issue
relevant in this appeal involves only actions taken by the Board
of Pardons on applications for commutation by inmates
sentenced to life imprisonment without parole.

6
 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

7
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.)3 .

3
See also Changing Pennsylvania’s Sentencing Philosophy
Through the Elimination of Parole for Violent Offenders, 5
Widener J. Pub. L. 269 (1996), discussing the McFadden case:

One of the most sensational cases of early release
was that of Reginald McFadden. McFadden was
pardoned after serving less than twenty-five years
of a life sentence for murdering a sixty-year-old
Philadelphia woman. Ninety-two days after his
July 7, 1994, release to New York State, under the
interstate parole system, McFadden was charged
with, and later convicted of, beating and raping a
fifty-five-year-old South Nyack woman. He was
also charged with raping and murdering a
seventy-eight[-]year[-]old Long Island woman.
Marlene Aig, 24 Years, A Convict, He Played the
System, P ITTSBURGH P OST G AZETTE, May 30,
1995, at C1. More recently, McFadden was
convicted of the murder of a forty-two-year-old
Long Island man. Convicted Murderer Found
Guilty Again, H ARRISBURG P ATRIOT E VENING
N EWS, Mar. 14, 1996, at B4. Because parole is

8
 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

not available to persons sentenced to life
imprisonment, McFadden was released through
the pardon process.

Id. at 296 n.95.

9
Board members.

A

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

10
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).4 In Banks,

4
All fifty states have incorporated clemency provisions in
their respective constitutions. See Ala. Const. amend. 38;
Alaska Const. art. III, § 21; Ariz. Const. art. V, § 5; Ark. Const.
art. VI, § 18; Cal. Const. art. V, § 8; Colo. Const. art. IV, § 7;
Conn. Const. art. IV, § 13; Del. Const. art. VII, § 1; Fla. Const.

11
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

art. IV, § 8; Ga. Const. art. IV, § 2; Haw. Const. art. V, § 5;
Idaho Const. art. IV, § 7; Ill. Const. art. V, § 12; Ind. Const. art.
V, § 17; Iowa Const. art. 4, § 16; Kan. Const. art. I, § 7; Ky.
Const. § 77; La. Const. art. IV, § 5(E); Me. Const. art. V, pt. 1,
§ 11; Md. Const. art. II, § 20; Mass. Const. pt. II, ch. 2, § 1, art.
8; Mich. Const. art. V, § 14; Minn. Const. art. V, § 7; Miss.
Const. art. V, § 124; Mo. Const. art. IV, § 7; Mont. Const. art.
VI, § 12; Neb. Const. art. IV, § 13; Nev. Const. art. V, § 13;
N.H. Const. pt. 2, art. 52; N.J. Const. art. V, § 2; N.M. Const.
art. V, § 6; N.Y. Const. art. IV, § 4; N.C. Const. art. III, § 5(6);
N.D. Const. art. V, § 7; Ohio Const. art. III, § 11; Okla. Const.
art. VI, § 10; Or. Const. art. V, § 14; Pa. Const. art. IV, § 9; R.I.
Const. art. IX, § 13; S.C. Const. art. IV, § 14; S.D. Const. art.
IV, § 3; Tenn. Const. art. III, § 6; Tex. Const. art. IV, § 11; Utah
Const. art. VII, § 12; Vt. Const. ch. II, § 20; Va. Const. art. V,
§ 12; Wash. Const. art. III, § 9; W. Va. Const. art. VII, § 11;
Wis. Const. art. V, § 6; Wyo. Const. art. IV, § 5.

12
 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.

13
. . .”) (citations and internal quotations omitted).

B

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.5 See Pa. Prison

5
Various representational organizations, including the
Pennsylvania Prison Society, certain private individuals, and
three individual prisoners filed this original action challenging
the 1997 Amendment (collectively referred to as “Plaintiffs”).
Sued in their official capacities were Pedro A. Cortés, Secretary
of the Commonwealth of Pennsylvania; Edward Rendell,
Governor of Pennsylvania; and Board of Pardons members
Lieutenant Governor Joseph B. Scarnati, Attorney General
Thomas W. Corbett, Jr., Louise Williams, Dr. Russell Walsh,
and John Wetzel (collectively “the Commonwealth”).

Following the District Court’s judgment upon remand
from this Court’s decision in Prison Soc’y I, current Board of
Pardons members Lieutenant Governor Joseph B. Scarnati,
Attorney General Thomas W. Corbett, Jr., Louise Williams, Dr.
Russell Walsh, and John Wetzel (“the Board of Pardons”)
appealed. Neither the Governor nor the Secretary of State is
participating in these cross appeals. The only Plaintiffs who

14
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)).

filed a cross-appeal were the Pennsylvania Prison Society,
Douglas Hollis, Keith Smith, and Jackie Lee Thompson.

15
 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

16
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

17
 [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]

18
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).6

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

6
Neither party addressed Rule 12(b)(1) in any of the papers
filed in connection with the Commonwealth’s motion to dismiss
or in the parties’ cross-motions for reconsideration. The District
Court also did not discuss Rule 12(b)(1) in denying the
Commonwealth’s motion or in ruling on the parties’ cross-
motions for reconsideration.

19
“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

20
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

21
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.” 7
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,

7
Plaintiffs Roger Buehl, Douglas Hollis, and Vincent
Johnson were the only individual prisoner plaintiffs remaining
in the suit at the time of the District Court’s ruling.

22
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

23
 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.

Id. at 660-61.

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.

II

In Prison Soc’y I, this Court declined to reach the merits

24
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.

A

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 their claims to the District Court. Id. at *38. We are

25
persuaded that the District Court did not err in complying with
this Court’s mandate that it determine the standing of each
plaintiff before it could consider the merits of their
constitutional claims.

B

The Board of Pardons also argues that the District Court
erred in concluding that the Pennsylvania Prison Society had
organizational standing to bring this suit because its ruling was
based upon the erroneous conclusion that individual members
Keith Smith and Jackie Lee Thompson had standing to sue in
their own right. The Board of Pardons argues that Smith and
Thompson lacked standing because they “do not have live
claims as their ability to challenge the 1997 amendments is time-
barred.” (Appellants’ Reply Br. 8-9.) “We exercise plenary
review of standing . . . issues, but review for clear error the
factual elements underlying the District Court’s determination
of standing.” General Instrument Corp. v. Nu-Tek Elecs. &
Mfg., 197 F.3d 83, 86 (3d Cir. 1999).

[T]o satisfy Article III’s standing requirements, a
plaintiff must show (1) it has suffered an “injury
in fact” that is (a) concrete and particularized and
(b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to
the challenged action of the defendant; and (3) it
is likely, as opposed to merely speculative, that
the injury will be redressed by a favorable

26
 decision.

Friends of the Earth, Inc. v. Laidlaw, 528 U.S. 167, 180-81
(2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61 (1992)). When plaintiffs allege a future injury, that
injury must be “certainly impending,” not an injury that will
only occur at “some indefinite future time.” Lujan, 504 U.S. at
564 n.2. “‘[S]ome day’ intentions — without any description of
concrete plans, or indeed even any specification of when the
some day will be — do not support a finding of the ‘actual or
imminent’ injury that our cases require.” Id. at 564. This
requirement assures that “there is a real need to exercise the
power of judicial review in order to protect the interests of the
complaining party.” Schlesinger v. Reservists Comm. to Stop
the War, 418 U.S. 208, 221 (1974).

[A]n association has standing to bring suit on
behalf of its members when; (a) its members
would otherwise have standing to sue in their own
right; (b) the interests at stake are germane to the
organization’s purpose, and (c) neither the claim
asserted nor the relief requested requires the
participation of individual members in the
lawsuit.

Hunt v. Washington State Apple Advertising Comm’n, 432 U.S.
333, 343 (1977). Importantly, the organization must “make
specific allegations establishing that at least one identified
member ha[s] suffered or would suffer harm.” Summers v.

27
Earth Island Inst., 129 S. Ct. 1142, 1151 (2009).

In Prison Soc’y I, this Court concluded that “the record
[wa]s silent about the organizational plaintiffs’ members and
whether those members themselves meet the standing
requirements to bring this case.” Prison Soc’y I, 508 F.3d at
163. Upon remand, following months of discovery and three
days of evidentiary hearings, the District Court found that “the
evidence clearly shows that the Pennsylvania Prison Society
satisfies all of the requirements needed to qualify for the
organizational exception to the prohibition on third party
standing and may pursue relief on behalf of its members.” Pa.
Prison Soc’y v. Cortés, 2009 U.S. Dist. LEXIS 48995 at *43.

Applying the test for organizational standing set forth in
Hunt, the District Court found that the Pennsylvania Prison
Society had presented evidence that Smith and Thompson were
both members and had both received four-to-one (4-1) Board of
Pardons votes in favor of their application for a commutation
after the 1997 Amendment took effect. Id. at *40. Accordingly,
it concluded that Thompson and Smith had standing to bring a
constitutional challenge to the 1997 Amendment in his own
right. Id.

The Board of Pardons’ argument that Smith and
Thompson lacked standing to bring this action because they
failed to challenge the Board of Pardons’ denial of their prior
applications within the prescribed time frame for bringing such
challenges is not persuasive. (Appellants’ Opening Br. 27-28.)

28
The Board of Pardons has cited no authority, and we have found
none, holding that an ex post facto challenge to a constitutional
amendment must be brought within a given time period or else
it is forfeited. Moreover, the Pennsylvania Prison Society is not
seeking damages for past injuries. It is seeking declaratory
relief and an injunction. The Pennsylvania Prison Society has
alleged that Smith and Thompson have suffered an “injury-in-
fact” due to “imminent” future harm in connection with their
current and future applications for commutations, which is
sufficient for purposes of demonstrating standing to bring this
action. Smith testified before the District Court that he filed an
application in 2007 that is currently “at a standstill because of
the issue here. They said . . . that they [were] not moving any
applications until . . . this situation is resolved.” (J.A. 642.)
Thompson testified that he is “working on” a new application
for commutation that he intends to submit as soon as he clears
up an administrative obstacle pertaining to his Social Security
number. (Cross-Appellants’ Br. 33.) The Board of Pardons has
not demonstrated that Thompson and Smith are likely to receive
less favorable votes from the Board of Pardons than the four-to-
one votes they received the last time their applications were
reviewed by the Board of Pardons. For purposes of establishing
the District Court’s subject matter jurisdiction to consider their
complaint that their constitutional rights had been violated,
Smith and Thompson’s allegations were sufficient to withstand
a dismissal of their claims pursuant to Rule 12(b)(1).

We agree with the District Court’s conclusion that the

29
Pennsylvania Prison Society satisfied the second prong of the
Hunt test for organizational standing because it presented
evidence that “the interests that the Pennsylvania Prison Society
now seeks to assert are certainly germane to the Prison Society’s
purpose, as stated in the Second Amended Complaint, [which is]
‘to advocate for a humane, just, and restorative correctional
system, and to promote a rational approach to criminal justice
issues.’” Pa. Prison Soc’y v. Cortés, 2009 U.S. Dist. LEXIS
48995 at *43 (citing 2d Amend Compl. ¶ 5) (emphasis added).
The constitutionality of the commutations process is an interest
that is “germane to the organization’s purpose.” Hunt, 432 U.S.
at 343. The Prison Society has advocated for Pennsylvania’s
prisoner population since 1787. (2d Amend Compl. ¶ 5-9.) As
the Second Amended Complaint explained, the Prison Society
is concerned with promoting “a humane, just, and restorative
correctional system” and “a rational approach to criminal justice
issues.” (Id.)

Finally, the District Court concluded that the Prison
Society satisfied the third prong of the Hunt organizational
standing test because “[n]either the claim asserted [n]or the
relief requested [in the Second Amended Complaint] requires
the participation of individual Prison Society members in the
lawsuit since this suit alleges that the 1997 Amendments to the
Pennsylvania Constitution impact several life-sentenced
prisoners in Pennsylvania and violate the Ex Post Facto Clause
of the United States Constitution.” Pa. Prison Soc’y v. Cortés,
2009 U.S. Dist. LEXIS 48995 at *93. The District Court

30
correctly determined that the Pennsylvania Prison Society
“satisfie[d] the so-called ‘organizational exception’ to the
prohibition on third party standing and that the Prison Society’s
standing to bring this action on behalf of its members is
appropriate regardless of Mr. Smith and Mr. Thompson’s
attempted intervention in this case.” Id. at *42. As an
organization, the Pennsylvania Prison Society is entitled to
challenge the constitutionality of the 1997 Amendment and
pursue related prospective relief on behalf of its members.

The District Court did not err in concluding that the
Pennsylvania Prison Society had organizational standing to
represent its members who are prisoners sentenced to life
imprisonment. See Hunt, 432 U.S. at 343 (setting forth factors
an association must show to demonstrate that it has standing to
bring suit on behalf of its members).

C

Douglas Hollis argues in his cross-appeal that the District
Court erred in concluding that he “lacked standing because he
did not show a likelihood of receiving a majority vote in his
pending petition for commutation, although he possesses the
characteristics of lifers previously recommended for
commutation, he previously received a majority vote, and he has
a petition pending with the Board.” (Appellees/Cross-
Appellants’ Br. at 8.) Hollis asserts that the District Court’s
conclusion that he lacked standing to participate in this action is
irreconcilable with its holding that Smith and Thompson had

31
demonstrated standing to sue in their own right. Id. Hollis
argues that because he, like Smith and Thompson, received a
favorable four-to-one majority vote by the Board of Pardons in
a past application for commutation, and he has a pending
application for commutation, he has shown an injury-in-fact due
to imminent future harm sufficient to sue in his own right. The
Board of Pardons maintains that the District Court based its
ruling on findings of fact that were supported by the evidence,
and thus should not be disturbed by this Court unless they are
clearly erroneous. (Appellants’ Reply Br. 18.)

The District Court concluded that Hollis had not
demonstrated that he was “likely to receive a majority vote in
favor of review on the application currently pending before the
Board of Pardons.” Pa. Prison Soc’y v. Cortés, 2009 U.S. Dist.
LEXIS 48995 at *30. This conclusion was based upon the
District Court’s finding that in Hollis’s most recent application,
filed in 1994, he received an unfavorable one-to-four vote
against recommendation to the Governor. Id. at *24, 30. The
District Court appears to have rejected Hollis’s explanation that
the reason he received a one-to-four vote was because his

hearing was held immediately in the aftermath of
the emotionally charged atmosphere of the
November 1994 Gubernatorial election, wherein
Lieutenant Governor Singel had lost to Governor
R idge, in pa rt ba se d upon S ing e l’ s
recommendation to commute the life sentence of
Reginald McFadden, who turned around and

32
 committed a murder and rape in New York less
than a year after he got out.

Id. at *25. The Board of Pardons argues that, based upon the
trend developed in the statistical evidence presented concerning
the history of recommended commutations, Hollis would not
have received a recommendation for commutation because the
trend did not favor the exercise of clemency in Hollis’ case. Id.
at 27-31. The District Court concluded that “both Mr. Hollis’
personal commutation application history, along with the
general commutations review ‘trends’ identified by the
Defendants, show that the injury claimed by Mr. Hollis is, at this
time, speculative.” Id. at *30-31.

Hollis argues in his cross-appeal that the District Court’s
ruling, and this Court’s earlier instruction that a plaintiff must
show that he is “likely to receive a majority of votes favoring a
commutation recommendation from the Board,” Pa. Prison
Society I, 508 F.3d at 165, is inconsistent with the Supreme
Court’s holdings in Summers v. Earth Island Inst., 129 S. Ct.
1142 (2009), and Adarand Constructors v. Pena, 515 U.S. 200
(1995). (Cross-Appellants’ Br. 75-78.) Hollis argues that these
cases stand for the proposition that it is unnecessary to show the
actual outcome of future conduct to establish standing, i.e., that
the lifers here are not required to show that they would again
receive a favorable four-to-one Board vote recommending
commutation to have standing. (Id.) Rather, Hollis contends
that “the lifers here must [only] demonstrate that they have
definite plans to apply for commutation in the near future or

33
have an application currently pending.” (Id. at 78.)

The District Court held that Hollis had alleged only “a
potential injury, happening on some indeterminate future date
[that] is neither concrete nor particularized nor imminent, and
[thus] does not satisfy the ‘irreducible constitutional minimum’
of standing established by Article III.” Pa. Prison Soc’y v.
Cortés, 2009 U.S. Dist. LEXIS 48995 at *30 (quoting Bennett
v. Spear, 520 U.S. 154, 167 (1997)). “[A] finding is ‘clearly
erroneous’ when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.”
Anderson v. Bessemer City, 470 U.S. 564, 573 (1985) (quoting
United States v. United States Gypsum Co., 333 U.S. 364, 395
(1948)) (internal quotations omitted). “This standard plainly
does not entitle a reviewing court to reverse the finding of the
trier of fact simply because it is convinced that it would have
decided the case differently.” Anderson, 470 U.S. at 573. “In
applying the clearly erroneous standard to the findings of a
district court sitting without a jury, appellate courts must
constantly have in mind that their function is not to decide
factual issues de novo.” Zenith Radio Corp. v. Hazeltine
Research, Inc., 395 U.S. 100, 123 (1969). The Court explained
in Anderson:

If the district court’s account of the evidence is
plausible in light of the record viewed in its
entirety, the court of appeals may not reverse it
even though convinced that had it been sitting as

34
 the trier of fact, it would have weighed the
evidence differently. Where there are two
permissible views of the evidence, the factfinder’s
choice between them cannot be clearly erroneous.

Id. (citing United States v. Yellow Cab Co., 338 U.S. 338, 342
(1949)). We are persuaded that the District Court did not clearly
err in finding that Hollis lacked individual standing to
participate in this action. We also note that Hollis is a member
of the Pennsylvania Prison Society and that his interests are duly
represented by the Prison Society, notwithstanding the District
Court’s ruling that he lacked individual standing.

D

Keith Smith and Jackie Lee Thompson cross-appeal from
the District Court denial of their motion to intervene in this
action. The District Court construed Smith and Thompson’s
motion to intervene as a motion for permissive intervention and
denied it based upon the discretion provided to district courts
pursuant to Fed. R. Civ. P. 24(b). Pa. Prison Soc’y v. Cortés,
2009 U.S. Dist. LEXIS 48995 at *45-48. Smith and Thompson
argue that the District Court should have construed the motion
as a request to intervene as of right based upon Fed. R. Civ. P.
24(a). We review a district court’s ruling on a motion to
intervene for abuse of discretion. Kleissler v. United States
Forest Serv., 157 F.3d 964, 969 (3d Cir. 1998). This Court will
reverse such a matter only if we conclude that the trial “court
has abused its discretion by applying an improper legal standard

35
or reaching a conclusion we are confident is incorrect.” Id.

Rule 24 (a) of the Federal Rules of Civil Procedure
provides that, “[o]n timely motion, the court must permit anyone
to intervene who: (1) is given an unconditional right to
intervene by a federal statute; or (2) claims an interest relating
to the property or transaction that is the subject of the action,
and is so situated that disposing of the action may as a practical
matter impair or impede the movant’s ability to protect its
interest, unless existing parties adequately represent that
interest.” Fed. R. Civ. P. 24(a). Rule 24 (b) provides in
relevant part that “[o]n timely motion, the court may permit
anyone to intervene who: (A) is given a conditional right to
intervene by a federal statute; or (B) has a claim or defense that
shares with the main action a common question of law or fact.”
Fed. R. Civ. P. 24(b). Furthermore, “[i]n exercising its
discretion, the court must consider whether the intervention will
unduly delay or prejudice the adjudication of the original
parties’ rights.” Id.

The District Court concluded

(1) that the interests of Mr. Smith and Mr.
Thompson are adequately represented by the
Pennsylvania Prison Society and (2) that their
intervention into this case, after this Court’s grant
of summary judgment and the Court of Appeals’
remand, would be purely superfluous and add
unnecessary complexities that could potentially

36
 cause undue delay in the resolution of this case.

Pa. Prison Soc’y v. Cortés, 2009 U.S. Dist. LEXIS 48995 at
*48. The District Court further found that there was no
evidence that the Pennsylvania Prison Society had not been
diligent in prosecuting this action on behalf of its members. Id.
at *47. None of the arguments proferred by Smith and
Thompson in their cross-appeal demonstrates that their interests
have not been adequately represented by the Pennsylvania
Prison Society. The District Court did not abuse its discretion
in denying Smith and Thompson’s motion to intervene.

Accordingly, based upon its conclusion that the
Pennsylvania Prison Society had standing to bring this action,
the District Court properly “assume[d] jurisdiction to decide
whether the allegations [in the second amended complaint] state
a cause of action on which the court can grant relief as well as
to determine issues of fact arising in the controversy” with
respect to Plaintiffs’ ex post facto claim. Bell v. Hood, 327 U.S.
678, 682 (1946).

III

The Board of Pardons argues in this appeal, as did the
Commonwealth in Prison Soc’y I, that the District Court erred
in granting summary judgment in favor of the Pennsylvania
Prison Society because “the changes to Pennsylvania pardons
procedures made by the 1997 constitutional amendments did not
truly implicate the Ex Post Facto Clause.” (Appellants’ Br. 29.)
It maintains that this Court should “reverse [the District Court’s]

37
rulings and . . . remand this case to the district court with
directions either to dismiss this matter or to enter judgment in
their favor, as may be appropriate given the resolution of the
legal issues.” (Id. at 4.) In urging this Court to remand this
matter with directions that it be dismissed, the Board of Pardons
argues that “[t]he district court misapprehended critical
characteristics of commutations/pardons in Pennsylvania, which
compel the conclusion that the 1997 changes to voting
procedures do not fit the definition of “ex post facto.” (Id. at 5.)

We are persuaded that the District Court erred as a matter
of law in denying the Commonwealth’s motion to dismiss
Plaintiffs’ ex post facto claim pursuant to Fed. R. Civ. P.
12(b)(6) because the Prison Society has not stated a viable ex
post facto claim.

“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). In deciding a motion to
dismiss, a court must determine whether the complaint “pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. “While legal conclusions can provide the
framework of a complaint, they must be supported by factual
allegations.” Id. at 1950.

Plaintiffs allege in the Second Amended Complaint that

38
“[t]he changes in the pardons process effectuated by the
Amendment impose additional punishment on the Prisoner
Plaintiffs since there is distinctly less of an opportunity to obtain
a pardon or commutation.” (2d Amend Compl. ¶ 44.) Plaintiffs
also allege that “[p]rior to the Amendment, it was distinctly
more likely that the Prisoner Plaintiffs could obtain a pardon or
commutation. However, since the Amendment became law, the
Prisoner Plaintiffs are virtually shut out from that opportunity.”
(2d Amend Compl. ¶ 65.) These allegations fail to state a viable
claim as a matter of law because the legal conclusion that the
“Amendment impose[s] additional punishment” is not supported
by any of the factual allegations in the Second Amended
Complaint. The 1997 Amendment does not lengthen the
sentences imposed upon the prisoners represented by the
Pennsylvania Prison Society, who have been sentenced to serve
a term of life imprisonment without parole.

“There is no ex post facto violation where the
retroactively applied law does not make one’s punishment more
burdensome, but merely creates a disadvantage.” Spuck v.
Ridge, 347 F. App’x 727, 729 (3d Cir. 2009) (affirming the
district court’s dismissal of ex post fact claim where plaintiff’s
sentence was not lengthened or made more severe by the new
guidelines which made furlough opportunities unavailable
because that did not make the punishment more onerous) (citing
Hameen v. Delaware, 212 F.3d 226, 236 (3d Cir. 2000)).

While the District Court correctly determined that the
Pennsylvania Prison Society had standing to bring this action, in

39
ruling on the Commonwealth’s Rule 12(b)(6) motion to dismiss,
it erroneously concluded that Plaintiffs had alleged facts
sufficient to demonstrate that the 1997 Amendment could result
in a longer period of incarceration for inmates sentenced prior
to its adoption. (Mem. Order Den. Defs.’ Mot. to Dismiss,
March 6, 2003, at 11-12.) For this same reason, we must also
reverse the District Court’s order granting summary judgment in
favor of the Pennsylvania Prison Society.

As the Commonwealth has argued throughout this
litigation, there are three distinct reasons why Plaintiffs’ ex post
facto claim is not viable.8 First, the 1997 Amendment is not an
ex post facto law “[g]iven the ad hoc nature of [executive]
clemency, the retroactive application of the amendment cannot,
as a matter of law, have any widespread effect on the period of
incarceration for prisoners serving life sentences. . . .” (Defs.’
Reply in Supp. of Their Mot. to Dismiss 9 (quoting Solem v.
Helm, 463 U.S. 277, 300-301 (1983) (citing Connecticut Bd. of
Pardons v. Dumschat, 452 U.S. 458 (1981).)

Second, “[P]laintiffs cannot show that the passage of the

8
In Prison Soc’y I, this Court did not reach the merits of the
Commonwealth’s contention that the District Court erred in
denying its Rule 12(b)(6) motion, and in granting the Plaintiffs’
motion for summary judgment for violation of the Ex Post Facto
Clause, because the Plaintiffs failed to present any evidence of
a significant injury to satisfy the jurisdictional requirement of
demonstrating the existence of a case or controversy.

40
Amendment has resulted or will result in a longer period of
incarceration for life sentenced prisoners” because a life
sentence, absent the executive grant of a commutation, is still a
life sentence and nothing more. (Defs.’ Mem. in Supp. of Their
Mot. for Summ. J. 20 (emphasis added); see also Appellants’
Op. Br. 31 (citing Commonwealth v. Szczesniewski, 591 A.2d
1055, 1056 (Pa. Super. 1991) (holding that in Pennsylvania a
term of life imprisonment is no less than and no more than
natural life)); 61 P.S § 331.21(a) (Parole is not a possibility for
life- or death- sentenced prisoners).) The adoption of the 1997
Amendment did not increase the punishment. A term of life
imprisonment is no less than and no more than natural life.

Third, the 1997 Amendment does not trigger an ex post
facto inquiry because changes in the law that alter procedures
for obtaining commutation, but do not eliminate the possibility
of commutation, are procedural and thus not ex post facto laws.
(Appellants’ Br. 11, 29 (citing Artway v. Attorney Gen. of N.J.,
81 F.3d 1235, 1253 (3d Cir. 1996)).)

We will first address the requirements for triggering an
ex post facto inquiry when challenging a law that is violative of
the Ex Post Facto Clause. We will then address the arguments
concerning the deficiencies in Plaintiffs’ ex post facto claim
raised by the Commonwealth in its motion to dismiss, and
before this Court in Prison Soc’y I, and by the Board of Pardons
in the instant appeal.

A

41
 The Ex Post Facto Clause of the Constitution, U.S.
Const. art. I §§ 9 and 10, forbids the government from passing
any law “which imposes a punishment for an act which was not
punishable at the time it was committed; or imposes additional
punishment to that then prescribed.” Weaver, 450 U.S. 24, 28
(1981) (internal quotation omitted). The Ex Post Facto Clause
is intended to provide fair warning about new punishments and
to discourage arbitrary and oppressive legislation. Weaver, 450
U.S. at 28. To fall within the ex post facto prohibition, “two
critical elements must be present . . . : it must be retrospective,
that is, it must apply to events occurring before its enactment,
and it must disadvantage the offender affected by it.” Id. at 29
(footnotes omitted).

In Lindsey v. Washington, the Supreme Court explained
that, in reviewing a claim of an ex post facto violation, the focus
is on the “effect” of the new law. Lindsey, 301 U.S. at 400. In
Lindsey, at the time petitioners were convicted of grand larceny,
that crime was punishable by a maximum sentence of “not more
than fifteen years,” and a minimum sentence to be fixed by the
court in its discretion at some point between six months and five
years, after which time petitioners were eligible for parole. Id.
After petitioners committed their offense, but before they were
sentenced, Washington enacted a new state law that made the
maximum sentence provided by law mandatory, for those
felonies carrying maximum sentences. Id. Petitioners
challenged the new law in state court. The Supreme Court of
Washington sustained the sentence. Id. at 399. The Supreme

42
Court reversed. It held as follows:

[T]he Supreme Court of Washington, without
analysis or comparison of the practical operation
of the [new and old] statutes, [upheld the law,
declaring that] “[t]he amending act [did] not
change or inflict a greater punishment than the
law in force when the alleged crime was
committed[,] for the court could under the law in
force at that time pronounce a maximum sentence
of not more than fifteen years. The minimum and
maximum punishments remain the same as before
the enactment of the act of 1935.”

Id. at 399-400. The Court explained that “[t]he effect of the
new statute is to make mandatory what was before only the
maximum sentence.” Id. at 400. The Court reasoned as
follows:

Removal of the possibility of a sentence of less
than fifteen years . . . operates to [the] detriment
[of petitioners] in the sense that the standard of
punishment adopted by the new statute is more
onerous than that of the old. It could hardly be
thought that, if a punishment for murder of life
imprisonment or death were changed to death
alone, the latter penalty could be applied to
homicide committed before the change. Yet this
is only a more striking instance of the detriment

43
 which ensues from the revision of a statute
providing for a maximum and minimum
punishment by making the maximum compulsory.
. . . It is plainly to the substantial disadvantage of
petitioners to be deprived of all opportunity to
receive a sentence which would give them
freedom from custody and control prior to the
expiration of the fifteen-year term.

Id. at 401-02 (citation omitted).

In Weaver, the Supreme Court similarly held that a
Florida law which, “[o]n its face, reduce[d] the number of
monthly gain-time credits available to an inmate who abides by
prison rules and adequately performs his assigned tasks,”
violated the Ex Post Facto Clause because “[b]y definition, this
reduction in gain-time accumulation lengthens the period that
someone in petitioner’s position must spend in prison.” Weaver,
450 U.S. at 31. The Court noted that “a prisoner’s eligibility for
reduced imprisonment is a significant factor entering into both
the defendant’s decision to plea bargain and the judge’s
calculation of the sentence to be imposed.” Id. at 32 (citing
Wolff v. McDonnell, 418 U.S. 539, 557 (1974)). The Court
explained its conclusion as follows:

Critical to relief under the Ex Post Facto Clause
is not an individual’s right to less punishment, but
the lack of fair notice and governmental restraint
when the legislature increases punishment beyond

44
 what was prescribed when the crime was
consummated. Thus, even if a statute merely
alters penal provisions accorded by the grace of
the legislature, it violates the Clause if it is both
retrospective and more onerous than the law in
effect on the date of the offense.

Id. at 30-31. Citing Lindsey, the Court concluded that the
petitioner in Weaver “[was] similarly disadvantaged by the
reduced opportunity to shorten his time in prison simply through
good conduct.” Id. at 33-34.

Conversely, in Dobbert v. Florida, the Supreme Court
reviewed a “new statute . . . [that] altered the methods employed
in determining whether the death penalty was to be imposed,”
and concluded that there was no ex post facto violation because
though the challenged provisions changed the role of jury and
judge in sentencing, they did not add to the “quantum of
punishment.” Dobbert v. Florida, 432 U.S. 282, 293-94 (1977).
“[E]ven if a law operates to the defendant’s detriment, the ex
post facto prohibition does not restrict ‘legislative control of
remedies and modes of procedure which do not affect matters of
substance.’” Miller v. Florida, 482 U.S. 423, 433 (1987)
(quoting Dobbert, 432 U.S. at 293). “Hence, no ex post facto
violation occurs if the change in the law is merely procedural
and does ‘not increase the punishment, nor change the
ingredients of the offen[s]e or the ultimate facts necessary to
establish guilt.’” Id. (quoting Hopt v. Utah, 110 U.S. 574, 590
(1884)). “On the other hand, a change in the law that alters a

45
substantial right can be ex post facto ‘even if the statute takes a
seemingly procedural form.’” Id. (quoting Weaver, 450 U.S., at
29, n. 12).

In Cal. Dep’t of Corr. v. Morales, the Supreme Court
considered whether a law changing the procedures concerning
the accessibility of parole suitability hearings violated the Ex
Post Factor Clause. Cal. Dep’t of Corr. v. Morales, 514 U.S.
499 (1995). Morales filed a federal habeas corpus petition
asserting that an amendment to California’s parole procedures
that allowed the California Board of Prison Terms to decrease
the frequency of parole suitability hearings under certain
circumstances constituted an ex post facto law barred by the
United States Constitution.9 The district court denied the
petition. The Ninth Circuit Court of Appeals reversed, however,

9
Morales was convicted of murdering his wife while he was
out on parole for having committed a prior murder. Under the
law in place at the time he committed his second murder,
Morales would have been entitled to parole suitability hearings
on an annual basis. Morales, 514 U.S. at 503 (citation omitted).
After his second murder conviction, the California Legislature
authorized the California Board of Prison Terms to defer
subsequent suitability hearings for up to three years if the
prisoner has been convicted of “‘more than one offense which
involves the taking of a life’ and if the Board ‘finds that it is not
reasonable to expect that parole would be granted at a hearing
during the following years and states the bases for the finding.’”
Id. (quoting Cal. Penal Code Ann. § 3041.5(b)(2) (West 1982)).

46
holding that the retrospective law made a parole hearing less
accessible to respondent and thus effectively increased his
sentence in violation of the Ex Post Facto Clause. The
California Department of Corrections filed a petition for
certiorari before the Supreme Court, and it was granted.

Morales argued before the Court that the new law
increased the punishment attached to his crime because, under
Lindsey, Miller, and Weaver, “a legislature may not stiffen the
‘standard of punishment’ applicable to crimes that have already
been committed.” Morales, 514 U.S. at 505 (citations omitted).
The Supreme Court disagreed. It held that the new law did not
violate the Ex Post Facto Clause because

the focus of the ex post facto inquiry is not on
whether a legislative change produces some
ambiguous sort of ‘disadvantage,’ nor . . . on
whether an amendment affects a prisoner’s
‘opportunity to take advantage of provisions for
early release,’ but on whether any such change
alters the definition of criminal conduct or
increases the penalty by which a crime is
punishable.

Id. at 499, 506 n.3 (citation omitted) (emphasis added). The
Court distinguished Lindsey, Miller, and Weaver, explaining
that:

Both before and after the [new law], California
punished the offense of second-degree murder

47
 with an indeterminate sentence of “confinement
in the state prison for a term of 15 years to life.”
The amendment also left unchanged the
substantive formula for securing any reductions to
this sentencing range. Thus, although 15 years
was the formal “minimum” term of confinement,
respondent was able to secure a one-third “credit”
or reduction in this minimum by complying with
prison rules and regulations. The amendment had
no effect on the standards for fixing a prisoner’s
initial date of “eligibility” for parole, or for
determining his “suitability” for parole and setting
his release date.

Id. at 507 (citations omitted). The Court also rejected Morales’s
argument that “the Ex Post Facto Clause forbids any legislative
change that has any conceivable risk of affecting a prisoner’s
punishment . . . [where] there is ‘no principled way to determine
how significant a risk of enhanced confinement is to be
tolerated.’” Id. at 508 (quoting Brief for Respondent 39). In
rejecting Morales’s expansive view of the Ex Post Facto Clause,
the Court explained that adopting this contention

would require that we invalidate any of a number
of minor (and perhaps inevitable) mechanical
changes that might produce some remote risk of
impact on a prisoner’s expected term of
confinement [ . . . and charge the judiciary . . . ]
with the micromanagement of an endless array of

48
 legislative adjustments to parole and sentencing
procedures, including such innocuous adjustments
as changes to the membership of the Board of
Prison Terms, restrictions on the hours that
prisoners may use the prison law library,
reductions in the duration of the parole hearing,
restrictions on the time allotted for a convicted
defendant’s right of allocution before a sentencing
judge, and page limitations on a defendant’s
objections to presentence reports or on documents
seeking a pardon from the governor.

Id. at 508-09. The Court stated that while “[t]hese and countless
other changes might create some speculative, attenuated risk of
affecting a prisoner’s actual term of confinement by making it
more difficult for him to make a persuasive case for early
release, . . . that fact alone cannot end the matter for ex post
facto purposes.” Id. at 508-09.

In Garner v. Jones, 529 U.S. 244 (2000), the Supreme
Court considered whether an amendment to a Georgia rule that
changed parole reconsideration review procedures violated the
Ex Post Facto Clause. Id. at 246. Jones was convicted of
murder and sentenced in 1974 to a term of life in prison. Id. at
247. Having escaped and committed a second murder, Jones
was again convicted and sentenced to life in prison in 1982. Id.
Under Georgia law in effect at the time of Jones’s second
offense, the state’s Board of Pardons and Paroles was required
to consider inmates serving life sentences for parole after seven

49
years, and if not granted, every three years thereafter. Id. (citing
Ga. Code Ann. § 42-9-45(b) (1982)). “After Jones was
incarcerated but before he was initially considered for parole,
the Board [of Pardons] amended its rules to require that parole
reconsideration take place only once every eight years.” Jones
v. Garner, 164 F.3d 589, 590 (11th Cir. 1999) (citing Ga. Comp.
R. & Regs. r. 475-3-.05.(2) n.1).

Jones brought an action under 42 U.S.C. § 1983,
claiming, inter alia, that the amendment to Rule 475-3-.05(2)
violated the Ex Post Facto Clause. Id. The suit was filed
against individual members of the Parole Board. The district
court granted summary judgment in favor of the Parole Board on
the ground that the amendment to Rule 475-3-.05(2) “change[d]
only the timing between reconsideration hearings for inmates
sentenced to life in prison, thereby relieving the Board of the
necessity of holding parole hearings for prisoners who have no
reasonable chance of being released.” Garner, 529 U.S. at 248
(quotation omitted). The Eleventh Circuit reversed, holding that
retroactive application of the amended Georgia Rule differed in
material respects from the California law sustained in Morales
because it “seems certain” to result in some prisoners serving
extended periods of incarceration. Jones, 164 F.3d at 589;
Garner, 529 U.S. at 248-49. As such, the Eleventh Circuit held
that the amended Georgia Rule violated the Ex Post Facto
Clause. Jones, 164 F.3d at 595.

The Supreme Court reversed, explaining that “the
standard announced in Morales requires a more rigorous

50
analysis of the level of risk created by the change in law.”
Garner, 529 U.S. at 255.

When the rule does not by its own terms show a
significant risk, the respondent 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. Because Jones had not shown “that as applied to his own
sentence the law created a significant risk of increasing his
punishment,” the Supreme Court remanded the case to the
district court to determine “whether retroactive application of
the amendment to Rule 475-3-.05(2) increases, to a significant
degree, the likelihood or probability of prolonging [Jones’s]
incarceration.” Id. at 255-56.

It is thus clear from the Supreme Court cases that have
reviewed legislative changes affecting parole decisions that, to
demonstrate an ex post facto claim, a plaintiff must show that
the effect of a retroactive change in the law or policy created a
“significant risk” that the sentence ultimately served will be
increased above and beyond what was prescribed when the
crime was consummated, as a result of the new law. Allegations
that changes in the law have produced “some ambiguous sort of
‘disadvantage,’ [or] . . . affect[ed] a prisoner’s ‘opportunity to
take advantage of provisions for early release,’” are not

51
sufficient grounds for bringing an ex post facto claim. Morales,
514 U.S. at 506 n.3 (citations omitted). With these parameters
in mind, we will address the Board of Pardons’ arguments
concerning the viability of Pennsylvania Prison Society’s ex post
facto claim.

1

In granting the Plaintiffs’ Motion for Summary Judgment
on the ex post facto claim, in its March 13, 2006 memorandum
opinion, the District Court reasoned as follows:

[T]he 1997 amendment[’]s 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. Further, the requirement
of convincing all, rather than a majority, of the
Board members that commutation is warranted is
a more difficult task for any applicant, and will
equally disadvantage every applicant to which the
amendment is applied. As such, Plaintiffs have
offered evidence sufficient to demonstrate
individual disadvantage as required by the Third
Circuit in Richardson.

Pa. Prison Soc’y v. Rendell, 419 F. Supp. 2d at 662 (citation
omitted).

The Board of Pardons argued in its motion to dismiss,

52
and throughout this litigation, that Plaintiffs have failed to state
an ex post facto claim because, “in Pennsylvania, clemency is a
process separate and apart from criminal case due process and
involves a matter of executive — not judicial — grace.”
(Appellant’s Op. Br. 17.) The Board of Pardons asserts that
“[c]ommutation . . . is an ad hoc exercise of executive clemency.
A Governor may commute a sentence at any time for any reason
without reference to any standards.” (Defs.’ Reply in Supp. of
Their Mot. to Dismiss 9 (quoting Solem, 463 U.S. at 300-01
(citing Connecticut Board of Pardons v. Dumschat, 452 U.S.
458 (1981))).)

The 1997 Amendment concerns a change in procedures
required for seeking commutation from the Governor. “Unlike
probation, pardon and commutation decisions have not
traditionally been the business of courts; as such, they are rarely,
if ever, appropriate subjects for judicial review.” Dumschat,
452 U.S. at 464.

In Snodgrass v. Robinson, 512 F.3d 999 (8th Cir. 2008),
the Eighth Circuit affirmed a district court’s dismissal of an ex
post facto claim pursuant to Rule 12(b)(6). Id. at 1000-01.
Snodgrass challenged an Iowa law that altered commutation
procedures by changing the frequency with which a life
sentenced prisoner could apply to the Governor for
commutation. In addressing the plaintiff’s challenge, the Eighth
Circuit explained that

the focus of the ex post facto inquiry is not on

53
whether a legislative change produces some
ambiguous sort of “disadvantage,” nor . . . on
whether an amendment affects a prisoner’s
“opportunity to take advantage of provisions for
early release,” but on whether any such change
alters the definition of criminal conduct or
increases the penalty by which a crime is
punishable. Simply put, not every change in the
law raises ex post facto concerns. The changed
law must create a “significant risk” of increasing
the offender’s punishment.

Here, Snodgrass’s claim does not hinge on the
availability of parole, but on the availability of a
commutation--the only means by which she might
become eligible for parole. Whereas changes to
parole procedures may, in some circumstances
raise ex post facto concerns, changes to Iowa’s
procedures for commutation applications do not.
This is because most parole procedures are
distinct from the highly personal, policy oriented,
and legislatively unchecked authority of the Iowa
governor to grant sentence commutations.

The unpredictability of a wholly discretionary
grant of commutation in Iowa precludes
Snodgrass from demonstrating that the changes in
Iowa’s law raise a “significant risk” that she will
be denied a commutation she otherwise would

54
 have received. As such, she cannot demonstrate
there is a significant risk her punishment will be
longer than it would have been under former Iowa
Code Section 902.2. Accordingly, she cannot
make out an ex post facto claim.

Id. at 1002-03 (citations and footnote omitted); see also Smith
v. Sampson, 2009 U.S. Dist. LEXIS 84657 (E.D. Mich. Sept. 17,
2009) (granting defendants’ motion to dismiss plaintiff’s ex post
facto claim challenging a change in commutation procedures in
Michigan that are similar to those in Pennsylvania).

In Smith, the plaintiff’s “claim [was] that the
commutative effect of changes in [Michigan] state law have
impaired his opportunity for commutation in violation of the Ex
Post Facto Clause of the United States Constitution.” Smith,
2009 U.S. Dist. LEXIS 84657 at *3. In opposing the
defendants’ motion to dismiss, Smith argued that, under Garner,
he was entitled to show, “by evidence drawn from the rule’s
practical implementation by the agency charged with exercising
discretion, . . . its retroactive application will result in a longer
period of incarceration than under the earlier rule” because “the
requisite risk was not inherent in the framework of an amended
rule.” Id. at *4 (citing Garner, 529 U.S. at 255). The district
court held that “Garner [is] distinguishable given the
differences in the discretionary authority of the parole board and
the governor.” Id. Citing Snodgrass, the district court granted
the defendants’ motion to dismiss based upon its determination
that Smith “cannot show that the change [in the law] creates a

55
‘significant risk’ that he will be denied a commutation” because
“the impact of any change in the law . . . will never be more than
speculative relative to the governor’s exercise of her right to
commute sentences. Id. at *8 (citing Snodgrass, 512 F.3d at
1002 n.2).

It is well settled that, “[a]s a matter of law, parole and
commutation are different concepts, despite some surface
similarities.” Solem, 463 U.S. at 300. In Solem, the Supreme
Court explained:

Parole is a regular part of the rehabilitative
process. Assuming good behavior, it is the normal
expectation in the vast majority of cases. The law
generally specifies when a prisoner will be
eligible to be considered for parole, and details
the standards and procedures applicable at that
time. See, e. g., Greenholtz v. Nebraska Penal
Inmates, 442 U.S. 1 (1979) (detailing Nebraska
parole procedures); Morrissey v. Brewer, 408
U.S. 471, 477 (1972) (“the practice of releasing
prisoners on parole before the end of their
sentences has become an integral part of the
penological system”). Thus it is possible to
predict, at least to some extent, when parole might
be granted.

Id. at 300-01.

The Constitutions of the United States and of the

56
Commonwealth of Pennsylvania entrust clemency decisions to
the sole discretion of the executive branch. See U.S. Const. art.
II, § 2, cl. 1 (the President “shall have Power to grant Reprieves
and Pardons for Offenses against the United States . . .”); Pa.
Const. art. IV, § 9 (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 . . .”).

The genesis of the doctrine of the sovereign power to
grant clemency in the United States is found in the English
common law. “In England, the clemency power was vested in
the Crown and can be traced back to the 700’s.” Herrera v.
Collins, 506 U.S. 390, 412 (1993). As the Supreme Court
explained in Schick v. Reed, 419 U.S. 256 (1974):

At the time of the drafting and adoption of our
Constitution it was considered elementary that . .
. the king may extend his mercy on what terms he
pleases, and consequently may annex to his
pardon any condition that he thinks fit.

Id. at 261 (quotation marks and citation omitted). Historically,
the exercise of clemency authority has been considered “a matter
of grace.” See, e.g., Ohio Adult Parole Auth. v. Woodard, 523
U.S. 272, 282 (1998) (a petition for commutation is a “unilateral
hope”; clemency is “a matter of grace”); United States v. Wilson,
32 U.S. 150, 160 (1833) (“A pardon is an act of grace”).

In Wilson, drawing on England’s historical and judicial

57
experience, Chief Justice John Marshall explained the origin of
the executive pardon:

The constitution gives to the president, in general
terms, “the power to grant reprieves and pardons
for offences against the United States.”

As this power had been exercised, from time
immemorial, by the executive of that nation
whose language is our language, and to whose
judicial institutions ours bear a close
resemblance[,] we adopt their principles
respecting the operation and effect of a pardon,
and look into their books for the rules prescribing
the manner in which it is to be used by the person
who would avail himself of it.

A pardon is an act of grace, proceeding from the
power entrusted with the execution of the laws,
which exempts the individual, on whom it is
bestowed, from the punishment the law inflicts
for a crime he has committed. It is the private,
though official act of the executive magistrate,
delivered to the individual for whose benefit it is
intended, and not communicated officially to the
court. It is a constituent part of the judicial
system, that the judge sees only with judicial eyes,
and knows nothing respecting any particular case,
of which he is not informed judicially. A private

58
 deed, not communicated to him, whatever may be
its character, whether a pardon or release, is
totally unknown and cannot be acted on. The
looseness which would be introduced into judicial
proceedings, would prove fatal to the great
principles of justice, if the judge might notice and
act upon facts not brought regularly into the
cause. Such a proceeding, in ordinary cases,
would subvert the best established principles, and
overturn those rules which have been settled by
the wisdom of ages.

Wilson, 32 U.S. at 160-61.

In Ex parte Wells, 59 U.S. 307 (1856), the Court again
addressed the origin and exercise of executive clemency:

At the time of our separation from Great Britain,
[the pardon] power had been exercised by the
king, as the chief executive. Prior to the
revolution, the colonies, being in effect under the
laws of England, were accustomed to the exercise
of it in the various forms, as they may be found in
the English law books. They were, of course, to
be applied as occasions occurred, and they
constituted a part of the jurisprudence of
Anglo-America. At the time of the adoption of
the constitution, American statesmen were
conversant with the laws of England, and familiar

59
 with the prerogatives exercised by the crown.
Hence, when the words to grant pardons were
used in the constitution, they conveyed to the
mind the authority as exercised by the English
crown, or by its representatives in the colonies.
At that time both Englishmen and Americans
attached the same meaning to the word pardon. In
the convention which framed the constitution, no
effort was made to define or change its meaning,
although it was limited in cases of impeachment.

Id. at 311.

In Herrera, the Court reaffirmed the traditional
conception of clemency as a function of the executive branch,
separate from adjudicatory proceedings within the Judicial
Branch. Herrera, 506 U.S. at 411-13. The Court noted that one
of the great advantages of monarchy is “that there is a
magistrate, who has it in his power to extend mercy, wherever
he thinks it is deserved: holding a court of equity in his own
breast, to soften the rigour of the general law, in such criminal
cases as merit an exemption from punishment.” Id. at 412
(quoting 4 William Blackstone, Commentaries on the Laws of
England *397). In Dumschat, the Court instructed that “pardon
and commutation decisions have not traditionally been the
business of courts; as such, they are rarely, if ever, appropriate
subjects for judicial review.” Dumschat, 452 U.S. at 464; see
also Ohio Adult Parole Auth., 523 U.S. at 289 (“[I]t is true that
‘pardon and commutation decisions have not traditionally been

60
the business of courts . . .’”) (quoting Dumschat, 452 U.S. at
464)).

The Pennsylvania courts have held that the judiciary

can[not] impinge upon the exclusive jurisdiction
of the executive branch of the government in
[determining whether to commute a sentence].
Action by the Board of Pardons is in accordance
with constitutional provisions and in no way
comes under the aegis of the courts. Indeed, were
a court to review the conduct of a hearing before
the Board of Pardons it would be a clear invasion
by judicial direction of the immunity granted the
executive branch of our government. Such is not
consonant with our constitutional doctrine of
separation of powers.

Commonwealth ex rel. Cater v. Myers, 412 Pa. 67, 71 (1963)
(quoting Mississippi v. Johnson, 4 Wall. 475 (1866), which held
that “[t]he Congress is the legislative department of the
government; the President is the executive department. Neither
can be restrained in its action by the judicial department”), cert.
denied, 376 U.S. 933 (1964); see also Commonwealth v. Gaito,
419 A.2d 1208, 1212 (Pa. Super. Ct. 1980) (“The Governor’s
power to commute sentences, on recommendation of the Board
of Pardons, is exclusive, and courts may not in any way impinge
on the exercise of this power.”).

The Supreme Court has instructed that there are four

61
exceptions to the sovereign’s executive clemency powers. First,
a pardon cannot interfere with the vested property rights of third
parties in violation of the Takings Clause. See U.S. Const.
amend. V (“Nor shall private property be taken for public use,
without just compensation.”); see also Knote v. United States,
95 U.S. 149, 154 (1877) (“Neither does the pardon affect any
rights which have vested in others directly by the execution of
the judgment for the offence, or which have been acquired by
others whilst that judgment was in force.”); Ex parte Garland,
71 U.S. 333, 381 (1866) (“There is only this limitation to [the
pardon power’s] operation: it does not restore offices forfeited,
or property or interests vested in others in consequence of the
conviction and judgment.”). Second, in Hart v. United States,
118 U.S. 62 (1886), the Court instructed that a pardon cannot
require the payment of funds from the Treasury in violation of
the Spending Clause. Id. at 67; see also Knote, 95 U.S. at 154
(“The power of the pardon . . . cannot touch moneys in the
treasury of the United States, except expressly authorized by act
of Congress. The Constitution places this restriction upon the
pardoning power.”). Third, a pardon cannot require a prisoner
to forfeit his constitutional rights unreasonably. See Schick, 419
U.S. at 266 (noting that the pardon power “permits the
attachment of any conditions which does not otherwise offend
the Constitution”).

The Supreme Court has also instructed that the
procedures by which a pardon is granted must comply with the
Due Process Clause of the Fifth Amendment. Ohio Adult

62
Parole Auth., 523 U.S. at 276. “The Due Process Clause is not
violated, [however], where . . . the procedures in question do no
more than confirm that the clemency and pardon power is
committed, as is our tradition, to the authority of the executive.”
Id. Justice O’Connor explained in her concurrence in Ohio
Adult Parole Auth.:

[A]lthough it is true that “pardon and
commutation decisions have not traditionally been
the business of courts,” Dumschat, supra, at 464,
and that the decision whether to grant clemency is
entrusted to the Governor under [state] law, I
believe that the Court of Appeals correctly
concluded that some minimal procedural
safeguards apply to clemency proceedings.
Judicial intervention might, for example, be
warranted in the face of a scheme whereby a state
official flipped a coin to determine whether to
grant clemency, or in a case where the State
arbitrarily denied a prisoner any access to its
clemency process.

Id. at 289 (O’Connor, J. concurring).10

Beyond these judicially imposed limitations on the

10
The Pennsylvania Prison Society has not appealed from the
District Court’s denial of the Plaintiffs’ due process claim in this
cross-appeal.

63
executive clemency power, the remaining checks on the
sovereign power of the President or of a Governor are left to the
legislative branch and to the powers vested in the people.11

Here, the voters of the Commonwealth of Pennsylvania
expressly voted to limit the Governor’s clemency power, as they
are empowered to do under Article XI of the Pennsylvania
Constitution. Pa. Const. art. XI. By mandating that all
recommendations for a commutation considered by the
Governor must first be approved by a unanimous vote of the
Board of Pardons, the 1997 Amendment restricted, but did not

11
For example, Congress can check misuse of the pardon
power by impeaching the President. See e.g., U.S. Const. art. I,
§ 2, cl. 5 (“The House of Representatives ... shall have the sole
Power of Impeachment.”); id. art. I, § 3, cl. 6 (“The Senate shall
have the sole Power to try all Impeachments.”); id. art. II, § 4
(“The President ... shall be removed from Office on
Impeachment for, and Conviction of, Treason, Bribery, or other
High Crimes and Misdemeanors.”); Ex parte Grossman, 267
U.S. 87, 121 (1925) (noting that the President could be
impeached if he pardoned too many criminal contempts). The
voters also have the ability to check the executive clemency
power by choosing not to re-elect a President or Governor whom
they believe may be inappropriately using the pardon power.
Morrison v. Olson, 487 U.S. 654, 711 (1988) (Scalia, J.,
dissenting) (“Ultimately, there is the political check that the
people will replace those in the political branches . . . who are
guilty of abuse.”).

64
absolutely foreclose, the exercise of the Governor’s sovereign
power to grant a commutation to inmates sentenced to life
imprisonment. The power to grant or deny commutations, as
prescribed by the Commonwealth’s voters, rests solely with the
executive branch which may “deny the requested relief for any
constitutionally permissible reason or for no reason at all.” See
Dumschat, 452 U.S. at 467 (Brennan, J. concurring) (stating that
an inmate sentenced to life imprisonment for murder has “no
protectible liberty interest in a pardon” (citing Meachum, 427
U.S. at 228)). Accordingly, the Pennsylvania Prison Society has
not demonstrated that it has a viable claim that the 1997
Amendment raises a “significant risk” that commutations will be
denied that otherwise would have been received. Snodgrass,
512 F.3d at 1002.

2

The Board of Pardons also argues that the 1997
Amendment does not violate the Ex Post Facto Clause because
it does not “increase[] the penalty” by which a crime is
punishable of inmates who are sentenced to life without the
possibility of parole. (Appellants’ Reply Br. 10.) See Morales,
514 U.S. at 505. The District Court held that the retrospective
application of the 1997 Amendment violates the Ex Post Facto
Clause because the “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” and “disadvantage the applicants.”
Pa. Prison Soc’y v. Rendell, 419 F. Supp. 2d at 661.

65
 Citing the standard set forth in Garner, 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, and concluded
that as applied to those inmates sentenced after its effective date,
the 1997 Amendment posed a “significant risk” of increased
punishment. Pa. Prison Soc’y v. Rendell, 419 F. Supp. 2d at
660-61 n.1 & n.2. Based upon its finding that “the total number
of recommendations by the [Pardons] 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 concluded:

[E]ven 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.

Id. at 660-61.

In granting the Prison Society’s Motion for Summary

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Judgment, the District Court based its decision on the following
passage from Mickens-Thomas v. Vaughn:

[A]n offender, prior to his conviction and
sentencing, is entitled to know not only his
maximum possible punishment, but also his or her
chances of receiving early release, since this too
is a relevant factor in the plea bargaining calculus.
An adverse change in one’s prospects for release
disadvantages a prisoner just as surely as an
upward change in the minimum duration of
sentence.

Pa. Prison Soc’y v. Rendell, 419 F. Supp. 2d at 659 (quoting
Mickens-Thomas, 321 F.3d at 392).

Mickens-Thomas involved an ex post facto challenge to
a “material modification of [Pennsylvania] parole laws.”
Mickens-Thomas, 321 F.3d at 376 (emphasis added). Mickens-
Thomas was convicted of rape and murder in 1964. Id. He was
sentenced to life in prison. The Governor of Pennsylvania
commuted Mickens-Thomas’s life sentence. Id. at 377. In
December 1996, the Pennsylvania legislature changed the law
concerning the decision-making policies of the Pennsylvania
Board of Probation and Parole to require that the “primary
consideration” in determining whether a prisoner was eligible
for release on parole was “the risk to public safety by the parole
petitioner as the dominant factor in evaluating parole
applications.” Id. “The 1941-1996 statute, in effect at the time

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of Thomas’s conviction, made no specific mention of public
safety.” Id. Mickens-Thomas was denied parole over the course
of the following three years for various reasons, including that
his past crime was a sex offense and that he was “in a ‘deniers’
group – those who deny responsibility for the underlying
offense.” Id. at 381 (emphasis added).

In December 1999, Mickens-Thomas filed a petition for
a writ of habeas corpus in the United States District Court
“alleg[ing] that the Board denied his parole in violation of the
Ex Post Facto clause, by applying retroactively the revised
December 1996 parole statute.” Id. at 383.

The district court in Mickens-Thomas held that the
Pennsylvania Board of Probation and Parole “retroactively
applied this [statutory] policy change adversely to the parole
applications of Louis Mickens-Thomas . . . in violation of the Ex
Post Facto clause.” Id. at 376 (emphasis added). This Court
affirmed, holding that “to retroactively apply changes in the
parole laws[,] made after conviction for a life sentence in
Pennsylvania that adversely affect the release of prisoners whose
sentences have been commuted, violates the Ex Post Facto
clause.” Id. at 393 (emphasis added). This Court also
concluded that:

Pre-1996, a prisoner could be denied parole
because of public safety concerns only if those
concerns together with other relevant factors
outweighed, by a preponderance, the liberty

68
 interests of the inmate. The 1996 policy change
placed first and foremost the public safety to the
disadvantage of the remaining liberty interest of
the prisoner.

Id. at 385.

The issue presented in Mickens-Thomas is similar to the
arguments raised by the petitioners in Weaver, Morales, and
Garner in challenging the denial of release on parole. In each
of these cases, prisoners seeking release on parole challenged a
statutory change in parole release laws. Mickens-Thomas was
sentenced to life without the possibility of parole. He
challenged the retrospective application of Pennsylvania’s
parole laws, not the procedures employed by the Board of
Pardons for prisoners seeking a commutation.

In support of its decision on this matter, the District Court
relied on this Court’s statement in Mickens-Thomas that
“‘eligibility for a commutation of a life sentence entails the
possibility of parole[,]’ and although commutations ‘are quite
rare,’ application of the new parole policies rendered Thomas’
prospects for parole ‘even more remote’ in violation of the Ex
Post Facto Clause.” Pa. Prison Soc’y v. Rendell, 419 F. Supp.
2d at 659 (quoting Mickens-Thomas, 321 F.3d at 392). Based
upon this comment, the District Court concluded that the
retroactive application of the 1997 Amendment to the
Governor’s sovereign clemency powers created a “significant
risk” of increased punishment for life-sentenced prisoners. Id.

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We disagree. Mickens-Thomas is not dispositive on the question
whether the 1997 Amendment, which concerned the executive
clemency power, impaired a prisoner’s rights under the Ex Post
Facto Clause. Mickens-Thomas solely concerns a prisoner’s
right to parole. It does not address the viability of a claim
challenging the scope of a Governor’s clemency power to grant
commutation.

Furthermore, “[t]here is no constitutional or inherent
right of a convicted person to be conditionally released before
the expiration of a valid sentence.” Greenholtz v. Inmates of
Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979). “The
unpredictability of a wholly discretionary grant of commutation
. . . precludes [plaintiffs] from demonstrating that the changes in
. . . [the] law raise a ‘significant risk’ that [plaintiffs] will be
denied a commutation [they] otherwise would have received.”
Snodgrass, 512 F.3d at 1002. “As such, [Plaintiffs] cannot
demonstrate there is a significant risk [their] punishment will be
longer than it would have been under former [law].” Id.

There is no ex post facto violation where a retroactively
applied law does not make one’s punishment more burdensome,
but merely creates a disadvantage. See Hameen v. Delaware,
212 F.3d 226, 238 n.2 (3d Cir. 2000) (explaining that a law is
not ex post facto merely because it worked to the detriment or
substantial disadvantage of the defendants) (quotations and
citations omitted). The Pennsylvania Prison Society is
representing the interests of prisoners who are serving a
maximum sentence of life without the possibility of parole. See

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Mickens-Thomas, 321 F.3d at 377 (“Life sentences in
Pennsylvania presumptively exclude any possibility of parole.”).
“[I]n Pennsylvania, . . . the legal sentence is the maximum
sentence.” Commonwealth v. Sutley, 474 Pa. 256, 268 (1977)
(citations omitted); see also Commonwealth v. Daniel, 430 Pa.
642 (1968) (“Under Pennsylvania law . . . the maximum
sentence is the only portion of the sentence which has legal
validity . . . .”). The 1997 Amendment, therefore, does not
“increase[] the penalty by which [any of Plaintiffs’] crime[s]
[were] punishable,” because all of the crimes for which the
prisoners represented by the Pennsylvania Prison Society were
convicted were punishable by life in prison without the
possibility of parole at the time they were convicted and validly
sentenced. Morales, 514 U.S. at 506.

We disagree with the District Court’s conclusion that the
retrospective application of the 1997 Amendment to the
Governor’s clemency power “creates more than a speculative
and attenuated risk of increasing the measure of punishment
applied to life sentenced inamtes.” Pa. Prison Soc’y v. Rendell,
419 F. Supp. 2d at 661 (emphasis added).

3

Finally, the Board of Pardons argues that “the [District
C]ourt should have determined that, on its face, that [the Second
Amended Complaint] presented no viable ex post facto claim
arising from the 1997 constitutional amendment changing the
voting procedures of the Board of Pardons.” (Appellants’ Op.

71
Br. 28-29.) “Changes in procedures that might make it more
difficult to obtain . . . clemency do not carry with them ex post
facto consequences.” (Appellants’ Reply Br. 16.)

“Although the prohibitions against ex post facto laws
cannot be evaded just by calling a change in law procedural,
only the ‘alteration of a substantial right’ is forbidden.” United
States v. Molt, 758 F.2d 1198, 1200 (7th Cir. 1985) (quoting
Weaver, 450 U.S. at 29 n.12, and holding that a “change in the
standard for bail pending appeal is not an ex post facto law”);
see also McKenzie v. Day, 57 F.3d 1461, 1469 (9th Cir. 1995)
(McKenzie’s claim that the state violated his rights under the ex
post facto clause by changing the place and procedures
applicable to his execution is precluded by Holden v. Minnesota,
137 U.S. 483 (1890), which stands for the proposition that such
matters are “regulations that do not affect [the prisoner’s]
substantial rights.”).

In Molt, the Seventh Circuit explained that

the presumption is against construing a procedural
change as an ex post facto law, and [that] must
carry the day in the absence of a stronger showing
than made in this case that the change works an
increase in punishment. For though we have been
speaking of the Bail Reform Act as if it had
abolished the right to bail pending appeal, it did
no such thing; it merely made it harder to get bail
pending appeal . . . The change in the balance of

72
 advantages against the defendant is too slight to
bring the change within the scope of the ex post
facto clause.

Molt, 758 F.2d at 1200.

We agree with the Board of Pardons that the 1997
Amendment presents no viable ex post facto claim because it
only concerns a change in the voting procedures employed by
the Board of Pardons, a change that does not affect the
prisoners’ substantial rights and thus one that is “too slight” to
bring it within the scope of the Ex Post Facto Clause. Molt, 758
F.2d at 1200.

B

We are persuaded that the District Court erred as a matter
of law when it failed to grant the Commonwealth’s Motion to
Dismiss Plaintiffs’ ex post facto claim pursuant to Rule 12(b)(6).
For the same reasons, the District Court also erred in granting
summary judgment in favor of the Pennsylvania Prison Society.

“Generally, a denial of a motion to dismiss does not
conclusively determine anything because it merely decides that
questions of fact remain to be decided.” Pan Eastern
Exploration Co. v. Hufo Oils, 798 F.2d 837, 839 (5th Cir. 1986)
(citing Coleman by Lee v. Stanziani, 735 F.2d 118, 120 (3d Cir.
1984)). “If, [however,] on appeal from a final judgment, an
appellate court finds that the motion to dismiss should have been
granted, it can direct the lower court to dismiss.” Id. at 840; see

73
also Stinson v. Kaiser Gypsum Co., 972 F.2d 59, 63 (3d Cir.
1992) (reversing where “the district court should have granted
Kaiser’s motion to dismiss based on Pennsylvania’s two-year
statute of limitations” and remanding “so that it may do so”);
Liotta v. Nat’l Forge Co., 629 F.2d 903, 908 (3d Cir. 1980)
(reversing district court’s grant of summary judgment where a
motion to dismiss should have been granted and the case
remanded for further proceedings); Gardner v. The Calvert, 253
F.2d 395, 398 (3d Cir. 1958) (same).

IV

The Pennsylvania Prison Society argues in their cross-
appeal that the District Court erred because “[i]t did not enter a
declaratory judgment; it did not enter an injunction; it did not
even specify to whom, if anyone, its judgment applies.
(Appellees’/Cross-Appellants’ Br. 48-49.) Based upon our
conclusion that the Commonwealth’s Motion to Dismiss
Plaintiffs’ ex post facto claim pursuant to Rule 12(b)(6) should
have been granted because Plaintiffs have failed to state a viable
ex post facto claim, we will affirm the District Court’s denial of
the Pennsylvania Prison Society’s request for a declaratory
judgment and injunctive relief. See Bircoll v. Miami-Dade
County, 480 F.3d 1072, 1088 n.21 (11th Cir. 2007) (this Court
may affirm on any ground supported by the record).

CONCLUSION

For the foregoing reasons, we reverse the District Court’s
grant of summary judgment in favor of the Pennsylvania Prison

74
Society and remand this matter with instructions that the District
Court shall enter an order dismissing this action.

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