Hamm v. Latessa, MCI

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 94-1999

RALPH C. HAMM, III,

Petitioner, Appellant,

v.

ARTHUR LATESSA, SUPERINTENDENT OF MCI, ET AL.,

Respondents, Appellees.
No. 94-2018

RALPH C. HAMM, III,

Petitioner, Appellee,

v.

ARTHUR LATESSA, SUPERINTENDENT OF MCI, ET AL.,

Respondents, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Walter Jay Skinner, Senior U.S. District Judge]

Before

Selya, Cyr and Stahl,
Circuit Judges.

Daniel S. Tarlow, with whom John F. Tocci and Glovsky &

Associates were on brief, for petitioner.

William J. Meade, Assistant Attorney General, with whom

Scott Harshbarger, Attorney General, was on brief, for

respondents.

December 28, 1995

SELYA, Circuit Judge. Petitioner Ralph C. Hamm, III,
SELYA, Circuit Judge.

is currently serving two concurrent, parole-eligible life

sentences in a Massachusetts state penitentiary. He faces an

additional twenty-six to forty years in prison from and after the

culmination of his life sentences. Hamm solicits a writ of

habeas corpus, naming as respondents the superintendent of the

state correctional facility where he is confined, the

Commissioner of Correction, and the Parole Board (hereinafter

collectively the respondent or the Commonwealth), and contending

that a policy implemented by the Commonwealth after his

incarceration delayed his eligibility for a parole hearing. In

his estimation, the change in policy transgressed both due

process and the ban on ex post facto laws. The district court

rejected the latter claim but granted the writ on due process

grounds and ordered, inter alia, a nunc pro tunc parole hearing.

The petitioner appeals from both the dismissal of his

ex post facto claim and from the limited grant of relief. The

Commonwealth cross-appeals from the due process ruling and the

allowance of any relief. We hold that the Commonwealth's

implementation of the challenged policy neither abridged the

petitioner's rights under the Due Process Clause nor violated the

Ex Post Facto Clause. Hence, we reverse the district court's

order and dismiss the habeas application.

I. BACKGROUND
I. BACKGROUND

We divide the introductory section of our opinion into

five segments.

2

A. The Underlying Convictions and Sentences.
A. The Underlying Convictions and Sentences.

These appeals have their genesis in events that

occurred over a quarter-century ago. In 1969, following a bench

trial, a Massachusetts court found the petitioner guilty of

charges stemming from a brutal attack and robbery that occurred

the previous year. A more complete account of the crimes,

unnecessary here, is available in Commonwealth v. Hamm, 471

N.E.2d 416, 418-19 (Mass. App. Ct. 1984) (Hamm I). The trial

court sentenced petitioner to two concurrent, parole-eligible

terms of life imprisonment for his convictions on counts of armed

robbery and assault with intent to rape, and to a series of

consecutive sentences totalling sixty-eight to eighty years on

the other counts of conviction (including mayhem and assault with

intent to murder). These consecutive sentences were to be served

"from and after" the life sentences.1 The appeals court, in an

unpublished rescript, reduced the from-and-after sentences to

twenty-six to forty years but upheld the convictions and

sentences in all other respects.

B. The Parole-Eligibility Statute.
B. The Parole-Eligibility Statute.

The Massachusetts statute governing the parole

eligibility of convicts serving terms of life imprisonment

provides (and substantially provided in 1968) that:

Every prisoner who is serving a sentence
for life in a correctional institution of the
commonwealth [with specified exceptions not
relevant here] shall be eligible for parole,

1Sacrificing originality for clarity, we refer herein to
this group of sentences as the "from-and-after sentences."

3

and the parole board shall, within sixty days
before the expiration of fifteen years of
such sentence, conduct a public hearing
before the full membership.
. . . .
After such hearing the parole board may,
by a vote of a majority of its members, grant
to such prisoner a parole permit to be at
liberty upon such terms and conditions as it
may prescribe for the unexpired term of his
sentence. If such permit is not granted, the
parole board shall, at least once in each
ensuing three year period, consider carefully
and thoroughly the merits of each such case .
. . .

Mass. Gen. L. ch. 127, 133A. Until 1977, the Commonwealth

considered inmates who were not only serving life sentences but

also facing the grim prospect of overhanging from-and-after

sentences as coming within the purview of section 133A. Based on

that interpretation of the statute, the Commonwealth granted such

inmates parole hearings (for possible parole from their life

sentences into their from-and-after sentences) once they had

served close to fifteen years. Accordingly, after the state

court sentenced Hamm, correctional officials advised him that the

parole-eligibility date referable to his life sentences would be

November 28, 1983.2

C. The 1977 Aggregation Policy.
C. The 1977 Aggregation Policy.

In 1977, the Commonwealth recast its interpretation of

section 133A. The impetus for change was the decision of the

Massachusetts Supreme Judicial Court (SJC) in Henschel v.

2The respondent fixed the parole-eligibility date in 1969
and informed the petitioner of it at that time. It should be
noted, however, that, giving credit for time served awaiting
trial and sentencing, the Commonwealth deemed the petitioner's
effective date of sentence to be November 29, 1968.

4

Commissioner of Correction, 330 N.E.2d 480 (Mass. 1975).

Henschel required the aggregation for parole-eligibility purposes

of a prisoner's consecutive county house of correction and state

institution sentences. See id. at 483-85. The SJC advanced a

thoughtful justification in support of aggregation:

To follow the defendant's [non-aggregation]
approach would require the board to make a
series of decisions granting parole from one
sentence to the next rather than a single
decision on the basis of one parole
eligibility date for all sentences. The
former procedure makes little sense since the
decision to grant parole is to be based on
whether the board believes the prisoner can
live freely outside of prison without
violating the law.

Id. at 484. The Commonwealth found this rationale to be equally

convincing in the context of making decisions to parole prisoners

serving life sentences into overhanging from-and-after sentences.

Consequently, it rethought its earlier interpretation of section

133A and revised its policies regarding parole eligibility for

certain classes of inmates, including lifers who faced impending

from-and-after sentences. Under the neoteric policy, such

inmates were not regarded as falling under section 133A and would

no longer receive parole hearings at the fifteen-year mark;

instead, the parole-ineligible portion of the prisoner's life

sentence (fifteen years) would be aggregated with the parole-

ineligible portion of his from-and-after sentences to arrive at a

"real" parole-eligibility date, that is to say, a single date at

which a favorable parole decision would result in the prisoner's

actual release from incarceration, not just his parole from one

5

sentence into another.3 While this paradigm was not compelled

by the holding in Henschel (which did not specifically address

the aggregation of life sentences with from-and-after sentences),

the respondent determined that the new arrangement more

faithfully mirrored the tenets undergirding Henschel.

In 1982 the year before Hamm would have received his

initial section 133A hearing under the former policy the

Commonwealth applied the new policy to him and recalculated his

parole-eligibility date.4 The aggregation resulted in a single,

3The document explaining the new policy, issued jointly by
the Department of Correction and the Parole Board, bore the title
"New Policies and Practices Regarding Aggregation of `From and
After' Sentences (Henschel Decision)." It states in relevant
part:

[I]t has become necessary to revise existing
procedures and policies covering aggregation
of "from and after" (i.e. consecutive)
sentences for purposes of computing parole
eligibility and good conduct deductions.

. . . .
Life Sentences

Life sentences on which there is no parole
eligibility . . . cannot be aggregated with
any other sentences for parole eligibility
purposes. Life sentences which do carry
parole eligibility . . . will be aggregated

with other sentences for parole eligibility
purposes . . . .

4For much of the life of this litigation, the Commonwealth
stubbornly insisted that it aggregated Hamm's sentences pursuant
to a different, long-established policy, and that its newly
contrived 1977 policy did not effect any change regarding
prisoners such as Hamm. Dissatisfied with the record on this
point, we retained appellate jurisdiction and remanded for
factfinding. The district court conducted an evidentiary hearing
and found, on the basis of the petitioner's prison records and
testimony from former and current counsel to the Parole Board,
that prior to 1977 the respondent did in fact follow a practice
of providing fifteen-year parole hearings to life prisoners

6

"real" parole-eligibility date of November 2001.5 Though this

structural change obviated the need for the petitioner to obtain

two parole permits to secure his release in 2001, he claims that

it also impermissibly deprived him of an opportunity for release

at an earlier date.

The petitioner's thesis runs along the following lines.

Massachusetts law affords prisoners serving indeterminate terms

of years various ways to reduce their sentences. These same

options, Hamm claims, are not available to prisoners who are

serving life sentences. Thus, if he had been paroled into his

(indeterminate) from-and-after sentences in 1983, he could have

availed himself of these opportunities and possibly could have

gained his freedom earlier than 2001. Under the 1977 policy,

however, he effectively remains on "life sentence status" during

the full term of his immurement and, therefore, cannot take

advantage of these early-release opportunities, which include:

(1) Establishing a "Wrap-up" Date. Once paroled into

his from-and-after sentences, the petitioner would immediately

facing from-and-after sentences. The Commonwealth now accepts
this finding and has recanted its assertion that it did not
retroactively subject the petitioner to a new policy.

5The exact manner in which the respondent arrived at this
date is inscrutable. The underlying calculation is not revealed
in the court papers and Hamm's post-1982 prison records (which
from time to time have indicated various parole-eligibility dates
ranging from 1999 to 2001) are little help. We need not probe
the point too deeply, however, inasmuch as the Commonwealth has
not disputed the petitioner's contention that his parole-
eligibility date under the 1977 aggregation policy is in November
of 2001. Like the district court, we will assume that to be the
correct date.

7

acquire, subject to divestiture for misconduct, statutory good

time under Mass. Gen. L. ch. 127, 129. This "good time" would

be based on the top end of his indeterminate sentences (forty

years) and would, the petitioner claims, amount to sixteen and

one-half years. He could earn additional good-time credits (up

to seven and one-half days per month) by participating in

educational and vocational programs.6 See Mass. Gen. L. ch.

127, 129D. Moreover, the sentencing court (both initially and

on resentencing) gave the petitioner 210 days credit on his four

from-and-after sentences for pre-sentence incarceration. Hamm

theorizes that this credit applies separately to each of his four

from-and-after sentences, yielding an aggregate credit of two

years and four months for jail time.

We assume arguendo the accuracy of the petitioner's

figures without independently verifying them.7 These potential

reductions, totalling twenty-three years and one month, would, if

garnered, enable him to leave prison without undergoing a second

parole hearing after serving just sixteen years and eleven months

6Good-time credits that a convict earns while serving a life
sentence apparently do not reduce his life sentence or his
parole-ineligible term; we are told that they are simply "banked"
and only become useful to him in the event that his life sentence
is commuted to a term of years. Upon parole into a from-and-
after sentence, the convict would lose his "banked" good-time
credits.

7The record is tenebrous as to many of Hamm's claims, and
some of them, e.g., the claim of an entitlement to an 840-day
credit for pre-sentence incarceration, strike us as
counterintuitive.

8

on his from-and-after sentences.8 Hence, if the petitioner had

been paroled into his from-and-after sentences in November of

1983, he might have established a wrap-up date in October 2000,

thus bringing about his release more than a year earlier than his

current aggregated parole-eligibility date.

(2) Early Parole. Once paroled into his from-and-

after sentences, the petitioner could also reduce the parole-

ineligibility period of these sentences, which otherwise would

remain at seventeen years and four months. First, he asserts

that he would be credited automatically with the same two years

and four months of jail time. But see note 7, supra, and

accompanying text. Second, his earned good time would

effectively count as time served toward his parole-ineligible

term. On this basis, he argues that if he had gained parole from

his life sentences in 1983 and earned section 129D credits from

then on at the maximum rate, he might have been eligible for

"real" parole as early as November of 1995.9

(3) Special Parole. The petitioner's final

8This optimistic calculation assumes, inter alia, that Hamm

would earn section 129D good time at the maximum possible rate
over the duration of his from-and-after sentences. If Hamm
serves sixteen years and eleven months of his from-and-after
sentences on his best behavior, he could theoretically accumulate
1,522.5 days of earned good time.

9The petitioner arrives at this date by taking the following
route: 208 months (Hamm's statutory parole-ineligible term) less
28 months (pre-sentence jail credits) less 36 months (maximum
possible section 129D credits during first twelve years of from-
and-after sentences) = 144 months. If Hamm had begun serving his
from-and-after sentences in November of 1983, and if his other
assumptions proved true, he had a possibility of securing a
parole hearing in November, 1995.

9

opportunity-related theory suggests that aggregation has already

deprived him of the possibility of obtaining special

consideration parole as early as 1989, after serving just one-

third of his from-and-after minimum sentences, less jail credits.

See Hamm v. Commissioner of Correction, 564 N.E.2d 1032, 1033

n.5 (Mass. App. Ct.) (Hamm II), rev. denied, 566 N.E.2d 1131

(Mass. 1991). The respondent effectively parries this thrust,

stating that Hamm may apply for this type of parole consideration

even under the 1977 aggregation policy. Finding no evidence in

the record that the petitioner has made an effort to apply for

special consideration parole, or that the Parole Board would not

consider his request, we cannot conclude that aggregation has

deprived the petitioner of this benefit. See id. Accordingly,

we do not further discuss this aspect of Hamm's claim of harm.

D. The 1988 Policy.
D. The 1988 Policy.

The Commonwealth revisited its parole-eligibility

policy anent life prisoners facing from-and-after sentences in

1988, and resumed the practice of providing them with parole

hearings at or near the fifteen-year mark. A 1990 document

prepared by the respondent, entitled "Parole Eligibility

Regulations, Policies, Procedures," explains that parole-eligible

life sentences are an exception to the general aggregation policy

"because of the statutory requirement that a parole hearing be

held after a definite period of time." The about-face did not

ameliorate the petitioner's professed plight; the respondent

declined to apply this policy retroactively because such an

10

application, it feared, might hurt prisoners approaching their

aggregated parole-eligibility dates. Thus, Hamm's parole-

eligibility date was not recalculated, and he remains

incarcerated with no parole hearing on the horizon until November

of 2001.

E. The Habeas Proceedings.
E. The Habeas Proceedings.

The petitioner initiated state habeas proceedings in

1990, arguing, among other things, that the Commonwealth's

failure to provide him with a parole hearing in 1983 deprived him

of his right to due process of law, and that the 1977 policy, as

applied to him, violated the prohibition on ex post facto laws.

A state superior court judge dismissed the petition, and the

Massachusetts Appeals Court upheld the aggregation of the

petitioner's sentences for purposes of determining parole

eligibility.10 See Hamm II, 564 N.E. 2d at 1033-34. After the

SJC denied further appellate review, the petitioner initiated

federal habeas proceedings.

10The court appeared to misconstrue the petitioner's ex post
facto argument; rather than focusing on whether the 1977 policy,
as applied, differed materially from the policy in effect in
1968, the court focused on the 1988 policy and ruled that Hamm
was not entitled to enjoy its benefits. On this point, the court
wrote:

The plaintiff's situation does not present an
ex post facto issue. The rules have not been
changed adversely to him. Rather, the
reverse has occurred: after his offenses and
sentencing, a rule has changed in a manner
that, if applied to him, would work to his
advantage or so the plaintiff seems to
think.

Hamm II, 564 N.E.2d at 1034-35.

11

The district court found that the Commonwealth had in

fact applied a change in the law to petitioner, but it concluded

that the change did not harm him and therefore posed no ex post

facto problem. On the due process claim, the court took a more

receptive stance. It interpreted section 133A as mandating that

petitioner receive a parole hearing on his life sentences after

fifteen years, and ruled that the Commonwealth's failure to

provide him a hearing in that time frame deprived him of due

process. The court ordered the state to convene such a hearing

nunc pro tunc, and to continue convening such hearings at three-

year intervals should parole be denied. See Hamm v. Latessa, No.

91-10667-WJS, slip op. at 14 (D. Mass. May 18, 1994) (Hamm III).

The court also decreed that if, despite the serial parole

hearings, the petitioner remained in custody beyond 2001, then in

such event, the 1977 policy should be applied to him as written

from that date forward. See id.

II. ANALYSIS
II. ANALYSIS

We bifurcate our analysis, examining each of the

petitioner's constitutional claims under a separate heading.

A. The Due Process Claim.
A. The Due Process Claim.

The district court found that section 133A applied to

the petitioner and afforded him a liberty interest in the

convening of a parole hearing in 1983 (as he neared the fifteen-

year mark of his life sentences). The court based this finding

on its interpretation of section 133A, emphasizing that the

statute is written in mandatory and unequivocal terms "Every

12

prisoner who is serving a sentence for life . . . shall be

eligible for parole, and the parole board shall, within sixty

days before the expiration of fifteen years of such sentence,

conduct a public hearing . . . ." (emphasis supplied) and makes

no exception on its face for life prisoners who also have from-

and-after sentences in prospect. To buttress this view, the

court noted that the aggregation policy expressed in section 133A

could not apply to the petitioner because his life sentences by

definition contain no "minimum" sentence, and therefore cannot be

aggregated with his from-and-after sentences to determine parole

eligibility. Building on this foundation, the court held that

the petitioner had an unequivocal statutory right to be

considered for parole into his from-and-after sentences once he

had served fifteen years of his life sentences, and that the

Commonwealth unconstitutionally deprived him of this liberty

interest by aggregating his life sentences with his from-and-

after sentences and by failing to grant him an initial parole

hearing in 1983.

We cannot accept the lower court's analysis. It is

settled that a statute providing for early release or other

benefits under stipulated conditions may sometimes confer upon

prison inmates a liberty interest protected by the Due Process

Clause.11 See Board of Pardons v. Allen, 482 U.S. 369, 373-81

11This is so even though, as a general rule, a convict has
"no constitutional or inherent right . . . to be conditionally
released before the expiration of a valid sentence." Greenholtz

v. Nebraska Penal Inmates, 442 U.S. 1, 7 (1979). The Greenholtz

generality like virtually all generalities admits of some

13

(1987); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 12

(1979); Wolff v. McDonnel, 418 U.S. 539, 556-72 (1974); see also

Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 461-62

(1989) (restating principle and citing cases but finding no

liberty interest created by state regulations governing

visitation). At the time the district court issued its order,

constitutional doctrine suggested that a state creates such a

liberty interest "by establishing `substantive predicates' to

govern official decision-making . . . and, further, by mandating

the outcome to be reached upon a finding that the relevant

criteria have been met." Thompson, 490 U.S. at 462 (quoting

Hewitt v. Helms, 459 U.S. 460, 472 (1983), and omitting

citation). The statute at issue in Allen, for example, used

"mandatory language (`shall') to `creat[e] a presumption that

parole release will be granted' when the designated findings are

made." Allen, 482 U.S. at 377-78 (quoting Greenholtz, 442 U.S.

at 12) (alterations in original).

In recent years, the tectonic plates have shifted. In

Sandin v. Conner, 115 S. Ct. 2293 (1995), the Justices explained

that, rather than relying on the presence or absence of mandatory

language in determining whether a statute or regulation confers a

liberty interest, courts should focus their inquiry on the nature

of the interest allegedly created by the state. See id. at 2297-

3000. State-created liberty interests "will be generally limited

to freedom from restraint which, while not exceeding the sentence

exceptions.

14

in such an unexpected manner as to give rise to protection by the

Due Process Clause of its own force . . . nonetheless imposes

atypical and significant hardship on the inmate in relation to

the ordinary incidents of prison life." Id. at 2300 (citations

omitted).

While the question of whether a state law creates a

liberty interest protected by the Due Process Clause is clearly

one of federal constitutional law, the preliminary question of

parsing the state law to determine its substance is not within

the primary domain of a federal habeas court. See Estelle v.

McGuire, 502 U.S. 62, 67-68 (1991). Federal courts "are bound by

a State's interpretation of its own statute." Garner v.

Louisiana, 368 U.S. 157, 166 (1961). Particularly relevant here

is Hebert v. Louisiana, 272 U.S. 312 (1926). In Hebert, a

convicted defendant claimed that a state court's incorrect

construction of state law led to the imposition of a more onerous

sentence and thereby violated the Due Process Clause. The Court

rejected that claim, stating:

Whether state statutes shall be construed one
way or another is a state question, the final
decision of which rests with the courts of
the State. The due process of law clause in
the Fourteenth Amendment does not take up the
statutes of the several States and make them
the test of what it requires; nor does it
enable this Court to revise the decisions of
the state courts on questions of state law.

Id. at 316. The rule, then, is that a federal habeas court will

not disturb the state courts' construction or application of

state law unless it can be shown that such construction or

15

application offends the Constitution or some (applicable) federal

statute. See Bowser v. Boggs, 20 F.3d 1060, 1065 (10th Cir.

1994); Smith v. McCotter, 786 F.2d 697, 700 (5th Cir. 1986); cf.

Martinez v. California, 444 U.S. 277, 282 (1980) (explaining that

a state's interest in fashioning its own rules of state law is

paramount to any federal interest except protecting individuals

from state action that is wholly arbitrary and irrational).

Given the clearly demarcated boundaries of federal

habeas review, the proper function of the court below was not to

second-guess the state court as to what substantive guarantees

the Commonwealth's statutory and regulatory mosaic provided under

the particular circumstances, but, rather, simply to determine

whether the respondent's application of its parole scheme, deemed

lawful by the state's courts, violated the Due Process Clause.

The district court set out to accomplish the former task instead

of the latter. In so doing, it erred.

Here, a Massachusetts state court has already ruled

that section 133A, as it read both in 1968 and 1983, conveyed no

right to a fifteen-year hearing, and, moreover, that the

respondent's aggregation of Hamm's sentences was a permissible

policy notwithstanding any contrary signposts in the text of the

state statute. See Hamm II, 564 N.E.2d at 1033-34. We believe

that we are duty bound to follow this authoritative exposition of

state law and, concomitantly, to reject the district court's

16

impromptu interpretation of state law.12 See McGuire, 502 U.S.

at 67-68; Garner, 368 U.S. at 166.

We have considered and rejected the petitioner's

argument that the state appellate court's decision is "so

inconsistent with the statute's language and history that the

state court decision itself [comprises] a wholly arbitrary and

irrational action in violation of due process." Ellard v.

Alabama Bd. of Pardons and Paroles, 824 F.2d 937, 944 n.7 (11th

Cir. 1987) (citation and internal quotation marks omitted), cert.

denied, 485 U.S. 981 (1988). A federal court must not exercise

the raw power to strike down state laws in the name of the

Constitution with too much gusto. Section 133A is silent on the

parole eligibility of life prisoners facing from-and-after

12We reach this conclusion cognizant that what we deem a
controlling state court interpretation of state law emanated from
an intermediate appellate court. Intermediate appellate court
decisions "are trustworthy data for ascertaining state law,"
Losacco v. F.D. Rich Constr. Co., 992 F.2d 382, 384 (1st Cir.),

cert. denied, 114 S. Ct. 324 (1993), and, in the absence of other

telltales indicating that the state's highest tribunal would have
ruled otherwise, we believe it is prudent to accept the appeals
court's interpretation as authoritative. See, e.g., Fidelity

Union Trust Co. v. Field, 311 U.S. 169, 177-78 (1940) ("An

intermediate state court in declaring and applying the state law
is acting as an organ of the State and its determination, in the
absence of more convincing evidence of what the state law is,
should be followed by a federal court in deciding a state
question.").
The respondent's 1988 about-face and its return to a
non-aggregation policy for life inmates does not suggest a
different outcome. Given the language of the statute and the
discretion reposed in the Parole Board, it is entirely plausible
that both the 1977 and 1988 policies are permissible
interpretations of state law. Cf. Strickland v. Commissioner,

Me. Dept. of Human Servs., 48 F.3d 12, 17-18 (1st Cir.) (holding

that an agency's rule may receive the usual degree of deference
even when it represents a "sharp departure from a longstanding
prior interpretation"), cert. denied, 116 S. Ct. 145 (1995).

17

sentences; a Massachusetts court had never before ruled on the

issue: and the appeals court based its holding on Henschel, which

provided a defensible rationale for an aggregation policy.13

Under these circumstances, it would be unprincipled to declare by

federal fiat that the Due Process Clause broadly nullifies the

Commonwealth's power to construe and apply its laws correctly.

See Lerner v. Gill, 751 F.2d 450, 459 (1st Cir.), cert. denied,

472 U.S. 1010 (1985).

The petitioner has also asserted that his fourteen

years of state-induced reliance on a prospective 1983 parole

hearing, followed by the state's abrupt shift in policy, deprived

him of due process. In mounting this challenge, he embraces our

decisions in Lerner and in DeWitt v. Ventetuolo, 6 F.3d 32 (1st

Cir. 1993), cert. denied, 114 S. Ct. 1542 (1994). Hamm's ardor

is mislaid. Those cases addressed the power of a state court

retroactively to correct an erroneous sentence or a mistaken

interpretation of state law. See DeWitt, 6 F.3d at 34-35;

Lerner, 751 F.2d at 458-59. However, the calculation of the

petitioner's original parole-eligibility date was not

"incorrect," so he arguably possessed a greater interest in

seeing it carried out than would a prisoner who was the

beneficiary of a botched calculation. Nevertheless, the

13Henschel supports the view that, since parole decisions

are premised on whether the Parole Board believes a convict can
live outside prison without behaving in an antisocial manner, the
Parole Board should not normally be required to make a series of
decisions paroling a convict from one sentence to another. See

Henschel, 330 N.E.2d at 484.

18

Lerner/DeWitt line of cases does not invalidate the

Commonwealth's actions. We explain briefly.

Though we observed in Lerner, 751 F.2d at 458, that

"unforeseeable changes . . . made after the passage of a

substantial period of time may, in some presumably extreme

circumstances, be fundamentally unfair and hence violative of due

process even if designed to correct an illegal sentence," this

observation is inapposite here. In the first place, we do not

think that the Massachusetts Appeals Court decision was

unforeseeable; as stated above, the statute was silent on the

precise situation, there was no decisional law directly on the

point, and Henschel adumbrated the result reached in Hamm II. In

the second place, a convict must show special prejudice stemming

from a changed interpretation. See DeWitt, 6 F.3d at 35. This

requisite showing must consist of something more tangible than

merely demonstrating that "hopes were raised only to be dashed."

Lerner, 751 F.2d at 459. Hamm has not suffered prejudice even

remotely approaching that sustained by Lerner, whose parole-

ineligibility period was extended from ten years to twenty years

after he had (1) undergone two parole hearings, (2) moved into a

minimum-security facility and accepted other privileges, and (3)

transported his family to another state and caused them to invest

in a business to create an employment opportunity for him, see

id. at 453 to whom we denied relief under the Due Process

Clause, see id. at 459.

In this case, all roads lead to Rome. We hold that the

19

Commonwealth did not infract the petitioner's rights under the

Due Process Clause when it failed to provide him a parole hearing

in 1983. The administrative scheme in force at that time,

approved as lawful by a state appellate court, did not mandate

that petitioner receive a parole hearing after fifteen years. In

ruling to the contrary, the district court erred.

B. The Ex Post Facto Claim.
B. The Ex Post Facto Claim.

Article 1, 10 of the Constitution ("No State shall .

. . pass any . . . ex post facto Law") has been interpreted to

forbid the enactment of

any statute which punishes as a crime an act
previously committed, which was innocent when
done; which makes more burdensome the
punishment for a crime, after its commission,
or which deprives one charged with crime of
any defense available according to law at the
time when the act was committed . . . .

Beazell v. Ohio, 269 U.S. 167, 169-70 (1925); see also California

Dept. of Corrections v. Morales, 115 S. Ct. 1597, 1601 (1995)

(stating that "the Clause is aimed at laws that retroactively

alter the definition of crimes or increase the punishment for

criminal acts") (citation and internal quotation marks omitted);

Collins v. Youngblood, 497 U.S. 37, 42 (1990) (quoting Beazell).

Petitioner asseverates that, by depriving him of opportunities to

obtain his release earlier than November of 2001, the 1977

aggregation policy made his punishment more burdensome and is,

therefore, an impermissible ex post facto law. The Commonwealth

demurs. In its view, the 1977 policy is not a "law" subject to

the ex post facto proscription, and in all events, the resultant

20

aggregation did not increase the petitioner's punishment.

Because we agree with the Commonwealth's second contention, we

need not decide the thorny question of whether the 1977 policy

comprised a "law" subject to ex post facto analysis.14

In line with the foregoing, we assume for argument's

sake, but do not decide, that the 1977 aggregation policy

constituted a regulation possessing the full force and effect of

law, and that it is therefore subject to analysis under the Ex

Post Facto Clause. This assumption brings us to the decisive

question: Does the 1977 policy, as applied to the petitioner,

infringe the constitutional proscription against ex post facto

laws?

14We note in passing that, although the Supreme Court has
not addressed the question of whether an administrative policy or
regulation can be an ex post facto law, a number of courts have
held that binding administrative regulations, as opposed to those
that serve merely as guidelines for discretionary decisionmaking,
are laws subject to ex post facto analysis. See, e.g., Akins v.

Snow, 922 F.2d 1558, 1561 (11th Cir. 1991) (holding that Georgia

parole board's new regulation promulgated pursuant to delegated
legislative power that changed period between inmate's parole
hearings from one year to eight years was a law subject to ex
post facto analysis), cert. denied, 501 U.S. 1260 (1991);

Rodriguez v. United States Parole Comm'n, 594 F.2d 170, 174 (7th

Cir. 1979) (deeming a new regulation that eliminated a parole
hearing after one-third of a prisoner's sentence "tantamount to a
statute" for ex post facto purposes); Love v. Fitzharris, 460

F.2d 382, 385 (9th Cir. 1972) (holding that a state's
recalculation of a prisoner's parole-eligibility date under a new
interpretation of the governing statutes violated the Ex Post
Facto Clause because the state had changed its interpretation
midstream), vacated as moot, 409 U.S. 1100 (1973). There are, of

course, cases mostly involving the federal Parole Commission's
guidelines that can be read as holding the other way. See,

e.g., Kelly v. Southerland, 967 F.2d 1531, 1532-33 (11th Cir.

1992); Inglese v. United States Parole Comm'n, 768 F.2d 932, 936

(7th Cir. 1985). We see nothing to be gained from entering this
thicket without a compelling need to do so.

21

It is a universal truth that, for a law to offend the

Ex Post Facto Clause, it must be "more onerous than the prior

law." Dobbert v. Florida, 432 U.S. 282, 294 (1977). The

prescribed inquiry demands that we compare the new law with the

old in its totality to ascertain "if the new may be fairly

characterized as more onerous." Id. The inquiry must be carried

out in practical, as opposed to purely theoretical, terms; the ex

post facto prohibition does not foreclose every change in the law

that possesses some imaginable risk of adversely affecting an

inmate's punishment. See Morales, 115 S. Ct. at 1602. In the

last analysis, "the question of what legislative adjustments will

be held to be of sufficient moment to transgress the

constitutional prohibition must be a matter of degree." Id. at

1603.

There is no mechanical formula for identifying which

legislative changes have a sufficiently profound impact on

substantive crimes or punishments to cross the constitutional

line and which do not. Consequently, courts must determine, case

by case, whether a particular change in the governing law

"produces a sufficient risk of increasing the measure of

punishment attached to the covered crimes." Id. If so, the Ex

Post Facto Clause comes into play. See Hill v. Jackson, 64 F.3d

163, 167-170 (4th Cir. 1995).

Morales is the touchstone of modern ex post facto

jurisprudence. There, the Justices examined a state statute that

permitted parole boards to defer parole suitability hearings for

22

up to three years for double murderers and certain other

prisoners if the board specifically found that it was

unreasonable to expect that parole would be granted during the

intervening years. The Court concluded that the statute created

"only the most speculative and attenuated possibility of

producing the prohibited effect of increasing the measure of

punishment for covered crimes," and held that these "conjectural

effects" were insufficient to animate the Ex Post Facto Clause.

Morales, 115 S. Ct. at 1603 (footnote and internal citations

omitted).

Buttressing its conclusion, the Court identified

several aspects of the statute that neutralized the risk of

increasing the measure of punishment. First, the statute applied

only to "a class of prisoners for whom the likelihood of release

on parole is quite remote." Id. at 1603. Second, the statute

cabined the parole board's discretion by requiring it to make a

specific finding that a particular prisoner was unlikely to be

paroled. See id. Third, the statute only applied to those who

were denied parole eligibility the first time around, thus

restricting the affected class to those least likely to be found

suitable for parole. See id. Finally, though the statute

addressed the frequency of suitability hearings, it empowered the

board to "tailor the frequency of subsequent suitability hearings

to the particular circumstances of the individual prisoner." Id.

The Court also noted that "the possibility of immediate release

after a finding of suitability for parole is largely theoretical;

23

in many cases, the prisoner's parole release date comes at least

several years after a finding of suitability," and so "the

practical effect of a hearing postponement is not significant."

Id. (citation and internal quotation marks omitted).

At bottom, Morales is about the risk or likelihood of

harm: the Court upheld the California statute largely because it

found the risk of increased punishment posed by the new law to be

speculative and, at any rate, to fall within acceptably small

boundaries.15 Viewed against this backdrop, Hamm's case

founders. Though the parole scheme in effect in 1968 may have

afforded him the possibility of terminating his incarceration as

early as 1995 if a series of events materialized, it seems highly

unlikely that these events would have come to pass. The

likelihood of harm, therefore, is tiny. And, moreover, it is at

least equally possible that, because of the structural

differences imposed by the two policies, Hamm may well have

languished in prison longer under the old scheme than under the

new. On balance, then, it is virtually impossible to

15The dissent strongly suggests that Morales stands for the

bright-line proposition that any action which substantially
delays, or deprives a prisoner of, an initial parole hearing
works a per se violation of the Ex Post Facto Clause. The

Morales Court rejected a similar argument, emphasizing that such

an "arbitrary line has absolutely no basis in the Constitution.
If a delay in parole hearings raises ex post facto concerns, it

is because that delay effectively increases a prisoner's term of
confinement, and not because the hearing itself has independent
constitutional significance." Morales, 115 S. Ct. at 1603 n.4.

The dissent's mechanical approach not only ignores this
admonition but also overlooks Morales's central holding, namely,

that a proper ex post facto inquiry must focus on the risk that
the prisoner will be subject to an increased measure of
punishment.

24

prognosticate the risk that the petitioner may be released at a

later date because the 1977 policy rather than its predecessor,

controls in his case.

Under the original policy, unless the petitioner

managed to obtain parole in 1983 and thereafter amassed all

possible credits, he would still have to be paroled a second time

in order to be released as early as 1995, or, alternatively, to

garner every conceivable credit in order to attain a wrap-up date

in October of 2000. The record is bereft of any evidence

suggesting that Hamm would probably achieve prompt parole into

his from-and-after sentences, become a model prisoner, go on to

earn all available credits, and then be paroled out of, or

otherwise released from, his from-and-after sentences at any time

before 2001.16 In fine, this case, like Morales, involves a

situation in which the possibility of harm is entirely

speculative.17

16If past is prologue, cf. W. Shakespeare, The Tempest, act

II, sc. i (1612), all of these prospects seem extremely dubious.
Hamm's disciplinary record reveals a cavalcade of misconduct,
including episodes of inciting a prison riot, arson, assaulting a
guard, attempting an escape, conspiring to take a hostage,
organizing a work stoppage, and possessing controlled substances.
These are not the emblemata of an inmate who is likely either to
inspire a parole board to act favorably on his behalf or to
accumulate good-time credits at a rapid rate.

17There are, of course, other similarities to Morales. We

mention two of them. First, the challenged policy here like
the statute at issue in Morales, 115 S. Ct at 1603 applies only

to a limited class of prisoners (here, life inmates who face the
overhanging prospect of from-and-after sentences) for whom the
likelihood of release on parole is considerably below the norm.
Second, the availability of special parole, see supra Part

I(C)(3), offers the Parole Board the flexibility that the Morales

Court deemed important. See id. at 1604.

25

This case also possesses a further dimension that

weighs against the petitioner's position. Whereas the new law in

Morales could not conceivably have inured to a prisoner's

benefit, the new aggregation policy that the Commonwealth adopted

in 1977 might very well redound to the petitioner's advantage.

After all, the 1977 policy eliminates the need for two parole

permits and ensures that the petitioner will be eligible for

parole from all his sentences at one fell swoop. Under the old

policy, if the respondent denied the petitioner parole into his

from-and-after sentences in 1983, 1986, and 1989 not an

unlikely eventuality in light of Hamm's mottled record his

wrap-up date, even assuming the accrual of all conceivable

credits, would not occur until sometime in 2006. This is a full

five years after the date on which he could be paroled from all

his sentences under the 1977 policy.

This scenario prompted the district court to conclude

that "[i]n 1982, when the respondent recalculated the

petitioner's parole eligibility, it was not clear whether the

petitioner would be helped or harmed by aggregation; the balance

sheet is unclear even today." Hamm III, slip op. at 10.18

18The Morales Court pointed out that the relevant inquiry

must not focus "on whether a legislative change produces some
ambiguous sort of `disadvantage,' . . . but on whether any such
change . . . increases the penalty by which a crime is
punishable." Morales, 115 S. Ct. at 1602 n.3. Despite the fact

that the district court issued its opinion without the benefit of
Morales and framed the corresponding part of its ruling as an

inquiry into whether the 1977 policy resulted in a
"[d]isadvantage to the petitioner," it nonetheless made a
thoroughgoing examination of the uncertainty inherent in
comparing potential results under the old and new policies.

26

This statement is unarguably accurate, and the uncertainty that

it portends strips the veneer of plausibility from the

petitioner's ex post facto initiative. Morales makes it crystal

clear that such uncertainty militates against the petitioner

because any other approach would "effectively shift[] to the

State the burden of persuasion as to [the prisoner's] ex post

facto claim." Id. at 1603 n.6. A party who asserts an ex post

facto claim must show a real possibility of cognizable harm, not

a theoretical possibility bound up in gossamer strands of

speculation and surmise.

We find illuminating a recent decision of another court

that needed to construct the ex post facto balance of prospective

benefits and burdens. In United States v. McGee, 60 F.3d 1266

(7th Cir. 1995), the court addressed an amendment that became law

following the defendant's conviction but before the imposition of

sentence. The amendment eliminated a twelve-month minimum

sentence for the offense of conviction and replaced it with a

range of twenty-one to twenty-four months. The district court

imposed the maximum twenty-four-month sentence. The defendant

appealed, claiming that the amendment violated the ex post facto

prohibition because it removed the possibility of a shorter

sentence, i.e., a sentence of between twelve and twenty-one

months. The Seventh Circuit disagreed. It noted that, although

the amendment eliminated an opportunity for a milder sentence, it

also placed a ceiling on the maximum available sentence, thus

narrowing "the range of punishment to [the defendant's] benefit."

27

Id. at 1271. This potential benefit made an evaluation of the

risk that the new law might subject the prisoner to harsher

punishment too speculative to constitute an ex post facto

violation. See id.

The Seventh Circuit's rationale is persuasive here.

Due to the peculiar concatenation of circumstances especially

the profound uncertainty over how the petitioner would have fared

under the old system and the potential benefits that may accrue

to him under the new regime the potential risk of more

Draconian punishment under the 1977 policy defies reliable

measurement. As a result, we hold that the application of the

new policy to the petitioner did not insult the Ex Post Facto

Clause.

III. CONCLUSION
III. CONCLUSION

We need go no further. For the foregoing reasons, we

reverse the district court's order and dismiss the application

for a writ of habeas corpus.

It is so ordered.
It is so ordered.

Separate Opinion Follows

STAHL, Circuit Judge (concurring in part and
STAHL, Circuit Judge (concurring in part and

dissenting in part). I agree that the Commonwealth did not
dissenting in part).

violate Hamm's rights under the Due Process Clause when it

failed to provide him a parole hearing in 1983. Unlike my

28

colleagues, however, I am persuaded that, as applied to Hamm

and other similarly-situated prisoners, the 1977 aggregation

policy is an unconstitutional ex post facto law. First, I

believe that the 1977 aggregation policy, which effectively

altered the date of Hamm's initial parole hearing, is a "law"

subject to ex post facto limitations. Second, contrary to my

colleagues, I believe that the 1977 policy, as applied to

Hamm and other similarly-situated prisoners, clearly produces

a risk of increasing the measure of punishment sufficient to

violate the Ex Post Facto Clause. Hence, I respectfully

dissent from parts II.B.-III.

I.
I.

Article 1, 10 of the Constitution clearly

proscribes the authority of a state to enact any ex post

facto law. As the majority explains, it is long settled that

the Clause forbids

any statute which punishes as a crime an
act previously committed, which was
innocent when done; which makes more
burdensome the punishment for a crime,
after its commission, or which deprives
one charged with crime of any defense
available according to law at the time
when the act was committed.

Collins v. Youngblood, 497 U.S. 37, 42 (1990) (quoting

Beazell v. Ohio, 269 U.S. 167, 169-70 (1925)); see also

California Dep't of Corrections v. Morales, 115 S. Ct. 1597,

1601 (1995) ("the Clause is aimed at laws that retroactively

alter the definition of crimes or increase the punishment for

-29-
29

criminal acts") (internal quotation omitted). In general, an

ex post facto inquiry requires a two-step analysis. See

Miller v. Florida, 482 U.S. 423, 430 (1987). A court should

ask (1) whether the challenged provision is a "law" that acts

retrospectively, and (2) whether the burden the law

retrospectively imposes is of sufficient type and degree to

violate the Constitution.

In this case, Hamm argues that the 1977 aggregation

policy violated the Ex Post Facto Clause by retroactively

depriving him of opportunities to obtain his release earlier

than November 2001. In response, the Commonwealth contends

that the 1977 aggregation policy was not a "law" subject to

ex post facto limitation, and that, in any event, the

aggregation did not increase Hamm's punishment. My

colleagues agree with the second contention, and therefore

find it unnecessary to consider the first. Because, as I

explain more fully infra at 35-43, I believe that the 1977

aggregation policy engendered a sufficient risk of increasing

Hamm's punishment, I cannot avoid the first prong of the

Commonwealth's argument. Accordingly, I proceed first to

explore fully whether the 1977 aggregation policy is a "law"

subject to ex post facto proscription, and, second, to

discuss my disagreement with the majority over whether the

-30-
30

new policy produces a risk of increasing the measure of

punishment sufficient to violate the Constitution.19

A. Is the 1977 Aggregation Policy a "Law"?

I agree with the district court that the 1977

aggregation policy was a "law" for purposes of ex post facto

analysis. Although the aggregation policy was not formally

promulgated as a regulation governing the Parole Board, it

was as binding on the Parole Board, on a case-by-case basis,

as an act passed by the legislature would have been.

Moreover, the Commonwealth does not argue that, once the

policy had been promulgated, the Parole Board had any

discretion to deviate from the policy in any particular

instance.

The Supreme Court has not addressed the question of

whether an administrative policy or regulation can be an ex

post facto law. A number of circuit courts, however, have

held that binding administrative regulations, as opposed to

those that serve merely as guidelines for discretionary

decisionmaking, are laws subject to ex post facto limitation.

For example, in a case factually similar to this one, the

Ninth Circuit held that the California Department of

Corrections's recalculation of a prisoner's parole-

eligibility date under its new interpretation of the

19. I do not restate the facts or outline the prior
proceedings. For a complete discussion of these matters, see
Majority Opinion at 2-12.

-31-
31

governing statutes violated the Ex Post Facto Clause because

"the Department has changed its interpretation of the

authority itself." Love v. Fitzharris, 460 F.2d 382, 385

(9th Cir. 1972), vacated as moot, 409 U.S. 1100 (1973). The

Love court stated that:

the interpretation of the relationship
between the statutes . . . by the
administrative agency charged with their
enforcement has the force and effect of
law. . . . [N]ot only defendants, in
contemplating their pleas, but also trial
courts, in imposing sentences, are
entitled to rely on such administrative
interpretations. . . . A new
administrative interpretation which
subjects the prisoner already sentenced
to more severe punishment has the same
effect as a new statute lengthening his
present term . . . .

Id. (citations omitted). The Eleventh Circuit similarly

concluded that a regulation, promulgated pursuant to the

Georgia parole board's delegated legislative power, that

changed the period between inmate's parole hearings from one

to eight years was a "law" subject to ex post facto

limitation. Akins v. Snow, 922 F.2d 1558, 1561 (11th Cir.),

cert. denied, 501 U.S. 1260 (1991); see also Rodriguez v.

United States Parole Comm'n, 594 F.2d 170, 174 (7th Cir.

1979) (new regulation eliminating parole hearing after one-

third of sentence is "tantamount to a statute" for ex post

facto purposes).

In those cases holding that particular

administrative regulations or guidelines were not laws

-32-
32

subject to the Ex Post Facto Clause, courts have often

premised their holdings, at least in part, on the advisory

nature of the regulation or guidelines in question. See,

e.g., Kelly v. Southerland, 967 F.2d 1531, 1532-33 (11th Cir.

1992) (rescission guidelines promulgated by federal Parole

Commission did not violate Ex Post Facto Clause because they

both were subject to amendment by the Commission and merely

guided, but did not dictate, actual parole decisions); Smith

v. United States Parole Comm'n, 875 F.2d 1361, 1367 (9th Cir.

1988) (finding parole "regulation" was not an ex post facto

law and noting that "the operative factor in assessing

whether a directive constitutes a `law' for ex post facto

purposes is the discretion that the Parole Commission retains

to modify that directive or to ignore it altogether as the

circumstances may require"); Inglese v. United States Parole

Comm'n, 768 F.2d 932, 936 (7th Cir. 1985) ("The power to

exercise discretion indicates that the [parole] guidelines

are merely guides, and not law: guides may be discarded when

circumstances require; laws may not."). Moreover, these

cases involve the federal Parole Commission's guidelines,

which are "truly advisory" because the Commission possesses

the authority to disregard them in the appropriate

circumstances. Bailey v. Gardebring, 940 F.2d 1150, 1158

(8th Cir. 1991) (Lay, C.J., dissenting), cert. denied, 112 S.

Ct. 1516 (1992). The Commonwealth makes no claim that its

-33-
33

aggregation policy was merely "advisory" or that it was free

to disregard the policy in a particular case.

The Commonwealth does postulate, however, that

because it had discretion to adopt the 1977 aggregation

policy in the first place and to modify the policy

subsequently, as it did in 1988, the policy should not be

considered a law. Although a number of the federal Parole

Commission cases have relied in part on this reasoning,20

see, e.g., Smith, 875 F.2d at 1367, I would reject it here.

The argument not only exalts form over substance but its

logic suggests that even legislative acts, because they too

may be modified, should be immune to challenge under the Ex

Post Facto Clause. See Bailey, 940 F.2d at 1158 (Lay, C.J.,

dissenting). A binding policy or regulation, promulgated

pursuant to delegated legislative authority by an

administrative body that implicitly retains authority to

amend it in the future, is no different in its force and

effect than a law passed by a legislature that retains

authority to amend or revoke that law. The Commonwealth's

20. The Commonwealth claims that the Eighth Circuit adopted
this reasoning in Bailey, which held that a change in

Minnesota parole board regulations abolishing annual review
of prospective release dates and limiting the board's
discretion in changing such dates did not constitute a law
for ex post facto purposes, even though the board lacked
discretion to disregard its regulations in any given case.
However, the relevant section of Bailey, 940 F.2d at 1156,

drew the concurrence of a second panel member as to the
result only, and not its reasoning, id. at 1157 (Stuart, J.,

concurring).

-34-
34

Parole Board possessed delegated legislative authority to

promulgate the aggregation policy: "The parole board shall .

. . make rules relative to the performance of its duties."

Mass. Gen. L. ch. 27, 5(e). Furthermore, under

Massachusetts law, an agency regulation21 "promulgated

pursuant to a legislative grant of power generally [has] the

force of law." Kenney v. Commissioner of Correction, 468

N.E.2d 616, 619 (Mass. 1984). Thus, because the 1977

aggregation policy was effectively a regulation having the

full force and effect of law, I would hold that it is subject

to limitation under the Ex Post Facto Clause.

21. That the 1977 policy was not formally deemed a
"regulation" also does not seem to matter: Under
Massachusetts law, a "regulation"

includes the whole or any part of every

rule, regulation, standard or other

requirement of general application and

future effect . . . adopted by an agency

to implement or interpret the law
enforced or administered by it.

Mass. Gen. L. ch. 30A, 1(5) (emphasis added).

-35-
35

B. Does the 1977 Aggregation Policy Produce a Sufficient

Risk of Increasing the Measure of Punishment?

I now turn to the issue at the heart of my

disagreement with the majority: Whether, as applied to Hamm

and other similarly-situated prisoners, the 1977 aggregation

policy produces a risk of increased punishment sufficient to

violate the Ex Post Facto Clause? My colleagues answer this

question in the negative, basing their conclusion on two

premises. First they deem it highly unlikely that, under the

prior policy, Hamm would have won early parole from his life

sentence and acquired the necessary good-time credits to

advance the date of his ultimate parole hearing to a point

earlier than 2001. Hence, they conclude that any harm to

Hamm ensuing from the 1977 aggregation policy is highly

speculative. Second, they posit that, due to structural

differences between the two policies, a "real" benefit

accrues to Hamm under the new policy. Then, combining these

two premises, my colleagues ultimately conclude that, on

balance, the 1977 aggregation policy does not violate the Ex

Post Facto Clause. I strongly disagree.

My colleagues favorably compare the risk of

increased punishment occasioned by the 1977 aggregation

policy with the risk of increased punishment recently

examined by the Supreme Court in California Dep't of

Corrections v. Morales, 115 S. Ct. 1597 (1995). In Morales,

-36-
36

the Court considered an amendment permitting the California

state parole board to defer annual parole-suitability

hearings for up to three years for prisoners at least twice

convicted of murder. Id. at 1600. In upholding the

amendment, the Court rejected the contention that it violated

the Ex Post Facto Clause simply because the deferral of

subsequent suitability hearings deprived affected prisoners

of an opportunity to gain an earlier release from prison.

Id. at 1602 n.3. The Court explained that just because the

amendment caused the loss of some theoretical opportunity to

gain an earlier release did not mean that it necessarily

violates the Constitution. Id. Instead, the Court held

that, for ex post facto purposes, the test is whether the

loss of that opportunity actually produces a "sufficient risk

of increasing the measure of punishment for the attached

crimes." Id. at 1603.

In applying this test, the Court focused on several

factors that significantly minimized the California

amendment's risk of harm. Morales, 115 S. Ct. at 1603-05.

First, the Court noted the amendment's limited application.

Id. at 1603. The amendment had no effect on any prisoner

unless the California parole board first found that the

prisoner was both unsuitable for parole and unlikely to be

found suitable at subsequent hearings during the deferral

period. Id. at 1604. Moreover, the Court noted that the

-37-
37

amendment did not affect "the date of any prisoner's initial

parole suitability hearing: it affected the timing only of

subsequent hearings." Id. at 1605.

Next, the Court observed, inter alia, that, even

with respect to a prisoner who might have actually received a

favorable recommendation at an omitted hearing, the practical

effect of the amendment on that prisoner's ultimate release

date was only slight. Morales, 115 S. Ct. 1605. At the

deferred hearings, the parole board determined only a

prisoner's "suitability" for parole but did not set actual

parole dates. Id. The Court noted that, significantly, in

many cases, an actual parole date comes several years after a

finding of suitability. Id. Moreover, under California law,

evidence that a prisoner in fact had been "suitable" for a

year or two prior to the date of the prisoner's delayed

hearing would be relevant in setting the prisoner's actual

parole date. Id. Hence, the Court concluded that, in most

cases, any delay resulting from the amendment could be

corrected by the parole board when it set the prisoner's

ultimate release date. Id.

In short, the Court recognized that the

amendment's built-in limitations, severely restricting both

its application and potential effect, effectively minimized

any risk of increased punishment caused by the elimination of

subsequent suitability hearings. Furthermore, the Court

-38-
38

carefully limited the breadth of its holding, expressly

disavowing any opinion "as to the constitutionality of any of

a number of statutes that might alter the timing of parole

hearings under circumstances different from those present

here." Morales, 115 S. Ct. at 1603 n.6.

On close analysis, I believe the effect of the 1977

aggregation policy challenged here differs significantly from

the risk of increased harm produced by the Morales amendment.

First, in contrast to the Morales amendment, the adoption of

the 1977 aggregation policy potentially affects all

Massachusetts prisoners previously eligible for parole from a

life sentence into consecutive from-and-after sentences. No

provision in the policy limits the class of affected

prisoners to only those adjudged by the Commonwealth's Parole

Board (or some similar body) to be unlikely to win early

parole or to earn significant good-time credits. Moreover,

where the Morales amendment affected only subsequent

hearings, the 1977 aggregation policy essentially delays an

affected prisoner's initial parole hearing.

Second, also in contrast to Morales, the impact of

the 1977 aggregation policy on those it affects is

substantial. For example, under the prior policy, Hamm could

have terminated his incarceration as early as 1995, through

the acquisition of earned and statutory good-time credits and

-39-
39

the application of his jail credits.22 The 1977

aggregation policy extinguished that possibility; Hamm's term

of incarceration cannot end under the 1977 policy before his

first-available parole hearing in 2001. Thus, in contrast to

the amendment in Morales, which will have little, if any,

real impact on an affected prisoner's actual time in prison,

the 1977 aggregation policy could potentially increase Hamm's

prison term by up to six years. See Weaver v. Graham, 450

U.S. 24, 26-27, 31-34 (1981) (holding that new state statute

reducing amount of good time that could be earned

prospectively by current inmates violates Ex Post Facto

Clause because it removed existing opportunity for shortened

prison time).

My colleagues gloss over these clear distinctions

by positing that, whatever the risk might have been at the

outset, given the brutal nature of Hamm's crime and his poor

record as a prisoner, it is highly unlikely that Hamm could

have availed himself of the opportunity to obtain an earlier

release. Such analysis, however, is more akin to a harmless

error inquiry focusing on the particulars of Hamm's case than

to a proper ex post facto inquiry into whether the new law

22. As does the majority, I assume the accuracy of Hamm's
claim of entitlement to 840 days of jail credit. See

Majority at 8. I note, however, that the claim is not

critical to my analysis. Even without the 840 days, the 1977
aggregation policy deprives Hamm of the opportunity to
advance his initial ultimate parole date by over three and
half years.

-40-
40

posed a sufficient risk of increasing the measure of

punishment. Moreover, while it is clear that Hamm bears the

ultimate burden of establishing that the new law changes the

measure of punishment, Morales, 115 at 1603 n.6, this does

not mean that he must necessarily show "that he would have

been sentenced to a lesser term under the measure or range of

punishments in place under the previous statutory scheme."

Id. (citing Lindsey v. Washington, 301 U.S. 397, 401 (1937));

see also id. at 1607 (Stevens, Souter, J.J., dissenting);

Miller v. Florida, 482 U.S. 423, 432 (1987) (reaffirming

Lindsey). Indeed, the proper "inquiry looks to the

challenged provision, and not to any special circumstances

that may mitigate its effect on the particular individual."

Weaver, 450 U.S. at 33.

In any event, the fact of the matter is that the

1977 aggregation policy completely deprived Hamm of his once-

existing opportunity to gain a release from prison as much as

six years earlier than he can now. Moreover, notwithstanding

my colleagues' post hoc evaluation of Hamm's chances, because

Hamm never received a parole hearing, no findings exist to

inform us whether or not the Commonwealth would have found

Hamm to be a likely candidate for early parole from his life

sentence. Indeed, without such findings or even knowledge

concerning the standards and policies that guide the

Commonwealth's Parole Board in making such recommendations,

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this court can only speculate as to whether the 1977

aggregation policy posed a sufficient risk to Hamm.23

In Morales, the Court reasoned that the delay in

parole suitability hearings caused by the challenged

amendment did not produce a sufficient risk of punishment

because, in major part, the amendment affected only a

carefully limited class of prisoners, and the impact of any

delay on an affected prisoner's actual time in prison was

negligible. Implicit in the Court's holding, however, is the

recognition that delay in a parole hearing produces some

possibility of an increase in punishment. Where, as here,

the delay is not predicated on a finding that the prisoner is

an unlikely candidate for parole, and the delay may

significantly increase the prisoner's sentence, I believe,

even in Hamm's case, such delay produces a "sufficient risk

of increasing the measure of punishment." Morales, 115 at

1603.

As noted, my colleagues also base their conclusion

on the premise that the 1977 aggregation policy arguably

provides a "real" benefit to Hamm and other affected

prisoners. I believe, however, that it is this putative

"benefit" that is too "speculative" to merit significant

23. The fact that the record lacks the opinion, much less
the findings, of the Commonwealth's Parole Board on Hamm's
suitability for early parole clearly underscores the
inappropriateness of my colleagues' "harmless error" style
review.

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weight in the ex post facto inquiry. Any fair analysis

reveals that the supposed benefit arising from the 1977

aggregation policy assumes several rather contradictory

predicates. For example, to find that Hamm would benefit

from the 1977 policy, I would need to assume both (1) that,

under the prior policy, the Commonwealth's Parole Board would

have refused to grant Hamm parole from his life sentence at

least three times (in 1983, 1986, and 1989), or that, if the

board did grant him such initial parole, he would have

subsequently failed to accrue good-time credits, and (2)

that, under the new policy, the Parole Board would then grant

him "real" parole into society at large in 2001

(notwithstanding that the board would not even have granted

Hamm parole from his life sentence into his lengthy from-and-

after sentences on at least three prior occasions). In other

words, the Parole Board would have to deny Hamm's request for

parole from one lengthy sentence into another at least three

times, but then, a short time later, be willing essentially

to grant Hamm a complete release from prison. The inherent

contradiction in such assumptions discloses the difficulty of

quantifying such a "benefit," or even determining whether one

genuinely exists. Thus, I believe that any benefit

engendered by the 1977 aggregation policy is much too

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speculative to serve as an effective counterweight to its

real risk of harm.24

II.
II.

In sum, I believe that the 1977 aggregation policy

is a "law" subject to ex post facto limitation, and that the

policy produces a risk of increasing the measure of

punishment sufficient to violate the Ex Post Facto Clause of

the Constitution. Accordingly, I dissent from parts II.B.-

III.

24. My colleagues find further support in the Seventh
Circuit's recent decision in United States v. McGee, 60 F.3d

1266, 1271 (7th Cir. 1995). In McGee, the Seventh Circuit

rejected an ex post facto challenge to a sentencing provision
that substituted a mandatory range of 21 to 24 months in
place of an open-ended 12 month minimum sentence for the
offense of conviction. Id. I find the analogy inapt because

in McGee the district court had actually sentenced the

defendant to the maximum 24 months under the new sentencing
range prior to the Seventh Circuit's review. Thus, the
Seventh Court could fairly quantify both the benefit and the
harm produced by the new sentencing range. Significantly,
the fact that the district court had sentenced the defendant
to the maximum possible under the new sentencing scheme
clearly suggested that, if anything, it would have given the
defendant a higher, not lesser, sentence under the old
scheme. In our case, however, Hamm received no analogous
treatment. He received no parole hearing. Thus, instead of
fairly quantifying the risk as the McGee court did, we can

only speculate as to the effect the 1977 aggregation policy
will ultimately have on his sentence.

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