Kenneth Foster v. Sharee Booker

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0045p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
Plaintiffs-Appellees (08-1371/1626); -
KENNETH FOSTER, et al.,

Plaintiffs/Cross-Appellants (08-1372), --
-
Nos. 08-1371/1372/1626

,
>
-
v.

-
-
SHAREE BOOKER, in his/her official capacity
-
as member of the Michigan Parole Board, et
al., -
Defendants-Appellants (08-1371/1626); -
Defendants/Cross-Appellees (08-1372). -
-
N
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
Nos. 05-71318; 05-72378—Marianne O. Battani, District Judge.
Argued: November 3, 2009
Decided and Filed: February 18, 2010
*
Before: KENNEDY and ROGERS, Circuit Judges; HOOD, District Judge.

_________________

COUNSEL
ARGUED: Kevin R. Himebaugh, OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, Lansing, Michigan, for Defendants. Paul D. Reingold, MICHIGAN
CLINICAL LAW PROGRAM, Ann Arbor, Michigan, for Plaintiffs. ON BRIEF:
Kevin R. Himebaugh, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Defendants. Paul D. Reingold, MICHIGAN CLINICAL LAW
PROGRAM, Ann Arbor, Michigan, for Plaintiffs.

*
The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.

1
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_________________

OPINION
_________________

ROGERS, Circuit Judge. Defendants, the Michigan Parole Board and the
Director of the Michigan Department of Corrections, appeal the district court’s grant of
summary judgment in favor of plaintiffs on their ex post facto claim. Plaintiffs, inmates
in the custody of the Michigan Department of Corrections sentenced to life
imprisonment with the possibility of parole for offenses committed before October 1,
1992, brought this § 1983 action to challenge the Michigan Parole Board’s application
of post-1992 changes to Michigan’s parole laws to plaintiffs’ parole review. The district
court, in determining that application of the changes to plaintiffs violated the Ex Post
Facto Clause, relied on statistics showing average annual rates of parole and average
years served at parole from 1942 to 2004, as well as evidence that the post-1992
reconstituted Parole Board had curtailed the exercise of its discretion in a wholesale
fashion. The district court subsequently entered a permanent injunction and awarded
plaintiffs’ costs and attorney fees.

To the extent that plaintiffs face a risk of increased punishment under the post-
1992 parole laws as compared to the laws in effect when they committed their offenses,
we cannot conclude that changes to the parole laws caused such an increase. Rather, the
new Board’s low rates of parole may be attributable largely to the legitimate exercise of
discretion in granting fewer paroles. Even assuming that changes in the number of
paroles did not result from a stricter exercise of discretion, it is not clear that plaintiffs
have shown a sufficient risk of increased punishment to prevail on their ex post facto
claim. Thus plaintiffs were not entitled to judgment as a matter of law, and the summary
judgment and grant of injunctive relief must be reversed.

I.

Plaintiffs filed this class action lawsuit against the Michigan Parole Board and
the Director of the Michigan Department of Corrections pursuant to 42 U.S.C. § 1983.
Nos. 08-1371/1372/1626 Foster, et al. v. Booker, et al. Page 3

Plaintiffs allege that changes to Michigan’s parole laws in 1992 and 1999, as
implemented and applied retroactively to their parole review, violate the Ex Post Facto
and Due Process Clauses of the United States Constitution. The district court granted
plaintiffs’ motion for class certification. The parties later agreed to define the class as

[a]ll parolable lifers in the custody of the Michigan Department of
Corrections who committed crimes (for which they received a parolable
life sentence) before October 1, 1992, and whose parole the “new” parole
board has denied, passed over, expressed no interest in pursuing, or
otherwise rejected or deferred. Excluded from this definition are so-
called “drug lifers” who were convicted of distribution or possession of
controlled substances, regardless of whether the crime was one originally
subject to parolable life or one converted to parolable life at a later time.

“Parolable lifer” is a term used by the parties and the district court to refer to a “prisoner
sentenced to imprisonment for life” for an offense other than first degree murder, first
degree criminal sexual conduct, or a few other specific categories of offenses. See Mich.
Comp. Laws § 791.234(6)-(7). Thus the plaintiff class generally includes inmates
sentenced to life with the possibility of parole, for pre-1992 non-drug crimes.

An inmate sentenced to parolable life for a crime committed before October 1,
1992, comes within the Board’s jurisdiction after he or she has served ten calendar years
of the life sentence. Mich. Comp. Laws § 791.234(7)(a). Once an inmate comes within
the Board’s jurisdiction, the Board may parole the inmate at any time, see id., although
“release on parole is discretionary with the parole board,” id. § 791.234(11). At all times
relevant to this lawsuit, the statutory discretion has been limited by the requirement that
a “prisoner shall not be given liberty on parole until the board has reasonable assurance,
after consideration of all of the facts and circumstances, including the prisoner’s mental
and social attitude, that the prisoner will not become a menace to society or to the public
safety.” Id. § 791.233(1)(a). If the Board decides not to parole an inmate after he or she
has served ten years, then the Board reviews the inmate for parole periodically
thereafter, until the inmate “is paroled, discharged, or deceased.” Id. § 791.234(8)(b).
Nos. 08-1371/1372/1626 Foster, et al. v. Booker, et al. Page 4

If the Board decides to move forward with the parole process, either at the ten-
year mark or following an inmate’s subsequent review, then the Board holds a public
hearing. Id. § 791.234(8)(c). The Board must give notice of the hearing to the inmate’s
sentencing judge (or that judge’s successor in office). Id. If the sentencing judge “files
written objections to the granting of the parole within 30 days of receipt of the notice of
hearing,” then the process comes to an end. Id. Absent an objection, however, the
Board ultimately decides whether to grant parole after holding the public hearing. See
id. § 791.234(8)(a)-(d).

Plaintiffs’ ex post facto and due process claims are based on the cumulative
effect of statutory changes to the structure and composition of the Board in 1992 and
changes to parole procedures in 1992 and 1999. From the Board’s establishment in 1953
until 1992, Board members were “within the state civil service.” 1953 Mich. Pub. Acts
No. 232 at p. 413 (§ 32); see also 1982 Mich. Pub. Acts No. 314 at p. 1356 (§ 32(1)).
According to one former Director of the Michigan Department of Corrections, serving
as a Board member “was like any other civil service job: a member could stay until he
or she wanted to leave or was removed for cause.” In 1992, however, the Michigan
Legislature repealed the provision that had established the civil service board, 1992
Mich. Pub. Acts No. 181 at p. 1125 (§ 32(3)), and created instead a board of ten
members “who shall not be within the state civil service,” Mich. Comp. Laws
§ 791.231a(1) (emphasis added); see 1992 Mich. Pub. Acts No. 181 at p. 1124
(§ 31a(1)). This represented a three-member increase in the size of the Board.
Compare 1982 Mich. Pub. Acts No. 314 at p. 1356 (§ 32(1)) (“There is established in
the department a parole board consisting of 7 members . . . .”), with Mich. Comp. Laws
§ 791.231a(1) (“Beginning October 1, 1992, there is established in the department, a
parole board consisting of 10 members . . . .”). As of 1992, Board members are limited
to four-year terms, although a member may seek reappointment at the end of his or her
term. Mich. Comp. Laws § 791.231a(2). The law now also requires that “[a]t least 4
members of the parole board shall be persons who, at the time of their appointment, have
never been employed by or appointed to a position in the department of corrections.”
Id.
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Like the structure and composition of the Board, the procedure for paroling
inmates sentenced to parolable life has also changed over time. Until 1982, inmates
sentenced to parolable life could expect an initial interview with the Board after having
served seven years, with subsequent interviews “at no greater than 36-month intervals
following the initial interview,” i.e., a 7+3+3 interview structure. MDOC Policy
Directive, Parole Board Interview and Decision Criteria, PD-DWA-45.05 (effective Oct.
15, 1982); see MDOC Policy Directive, Parole Board Interview and Decision Criteria,
PD-DWA-45.05 (effective Nov. 15, 1980); MDOC Policy Directive, Parole Board
Interview and Decision Criteria, PD-DWA-45.05 (effective June 18, 1979). In 1982, the
Michigan Legislature amended the law to require the initial interview at the four-year
mark with subsequent interviews “biennially thereafter,” i.e., a 4+2+2 interview
structure. 1982 Mich. Pub. Acts No. 314 at p. 1356 (§ 34(4)(a)). The Legislature
changed the law again a decade later such that, as of 1992, a Board member is not
statutorily required to interview an inmate sentenced to parolable life before the inmate
comes within the Board’s jurisdiction. Rather, the initial interview is required only after
the inmate has served ten years. Mich. Comp. Laws § 791.234(8)(a); see 1992 Mich.
Pub. Acts No. 181 at p. 1127 (§ 34(4)(a)). Moreover, as of 1992, the inmate could
expect to be reinterviewed as infrequently as every five years, i.e., a 10+5+5 interview
structure, not every two or three years as had been the previous practice. 1992 Mich.
Pub. Acts No. 181 at p. 1127 (§ 34(4)(a)).

In 1999, the Legislature eliminated the statutory reinterview requirement
altogether. As a result, as of 1999, a Board member need only interview an inmate
sentenced to parolable life after the inmate has served ten years. See Mich Comp. Laws
§ 791.234(8)(a); 1999 Mich. Pub. Acts No. 191 at p. 1076 (§ 34(6)(a)). Interviews take
place “thereafter as determined by the” Board. Mich. Comp. Laws § 791.234(8)(a).
Rather than requiring regular reinterview of an inmate, the statute now requires the
Board to review the inmate’s paper file at five-year intervals. Id. § 791.234(8)(b); see
1999 Mich. Pub. Acts No. 191 at p. 1076 (§ 34(6)(b)). At oral argument, however, the
Board’s counsel stated that, in practice, the Board exercises its discretion to reinterview
an inmate every ten years following the initial ten-year interview.
Nos. 08-1371/1372/1626 Foster, et al. v. Booker, et al. Page 6

Legislative changes in 1999 also curtailed an inmate’s right to judicial review of
the denial of parole. The Legislature had made an inmate’s right to appeal explicit in
1982 by providing that the “action of the parole board in granting or denying a parole
shall be appealable to the circuit court.” 1982 Mich. Pub. Acts No. 314 at p. 1357
(§ 34(5)). Before 1982, the law had provided only that the Board’s action of releasing
an inmate was “not . . . reviewable if in compliance with law.” 1953 Mich. Pub. Acts
No. 232 at p. 414 (§ 34); see 1958 Mich. Pub. Acts No. 211 at p. 281 (§ 34); 1978 Mich.
Pub. Acts No. 81 at p. 219 (§ 34(5)). As a result of the 1999 amendments, only the
prosecutor or the victim of an inmate’s crime has a statutory right to appeal the Board’s
decision to grant parole. Mich. Comp. Laws § 791.234(11); see 1999 Mich. Pub. Acts
No. 191 at p. 1077 (§ 34(9)).

Plaintiffs also allege that in the 1990s the Board stopped providing written
reasons to explain its lack of interest in moving an inmate forward to a public hearing.
See MDOC Policy Directive, Parole Board Interview and Decision Criteria, PD-DWA-
45.05 (effective Feb. 10, 1986) (setting forth Board’s practice of “prepar[ing] a written
summary of [Board’s] action on all parole denial cases”). This change appears to have
been within the statutory discretion of the Board. Since 1982, Michigan law has
required that “[w]hen the parole board makes a final determination not to release a
prisoner, the prisoner shall be provided with a written explanation of the reason for
denial.” Mich. Comp. Laws § 791.235(12); see 1982 Mich. Pub. Acts No. 314 at p.
1358 (§35(10)). The Michigan Court of Appeals in 2001, by interpreting “final
determination” to mean determinations that had progressed through all the steps in the
parole eligibility process, refused to require a written explanation at the “no interest”
stage. Gilmore v. Parole Bd., 635 N.W.2d 345, 357-58 (Mich. Ct. App. 2001). While
plaintiffs argue that a “subtle change” in the 1999 statutory amendments, dealing with
the requirement of a public hearing,1 provided the basis for the Board’s policy change

1
As of 1999, the statute provides that a “decision to grant or deny parole to [a] prisoner
[sentenced to parolable life] shall not be made until after a public hearing,” Mich. Comp. Laws
§ 791.234(8)(c); see 1999 Mich. Pub. Acts No. 191 at p. 1076 (§34(6)(c)), whereas the predecessor
provision had stated that a “parole shall not be granted a prisoner so sentenced until after a public hearing,”
1992 Mich. Pub. Acts No. 181 at p. 1127 (§ 34(4)(b)).
Nos. 08-1371/1372/1626 Foster, et al. v. Booker, et al. Page 7

in this regard, the Gilmore court did not mention, much less rely upon, that statutory
change.

In sum, the statutory amendments that provide the basis for plaintiffs’ ex post
facto challenge (1) altered the structure and composition of the Board; (2) reduced the
frequency of parole reviews after an initial ten-year interview; (3) substituted paper
reviews for in-person interviews; (4) eliminated plaintiffs’ right to appeal a denial of
parole; and (5) contained new language consistent with the Board’s practice of not
giving written reasons for a statement of “no interest” in moving forward with parole.
Plaintiffs allege that the Board’s retroactive application of the 1992 and 1999 changes
to the parole laws creates a significant risk that plaintiffs will face greater punishment
than they would have faced under the law in place at the time they committed their
offenses.

The Board initially moved to dismiss plaintiffs’ complaint for failure to state a
claim upon which relief can be granted. The district court granted in part and denied in
part the Board’s motion. See Foster-Bey v. Rubitschun, No. 05-71318, 2005 WL
2010181 (E.D. Mich. Aug. 18, 2005). Most significant for purposes of this appeal, the
district court granted the Board’s motion with regard to plaintiffs’ due process claim on
the ground that plaintiffs do not have a constitutionally protected liberty interest in
parole. Id. at *6. Moreover, to the extent that plaintiffs’ sentencing judges assumed that
parole procedures would not change over time, this assumption was improper and,
therefore, did not amount to a factual error in sentencing that violated due process. Id.
The district court denied the Board’s motion with respect to plaintiffs’ ex post facto
claim, id. at *7, and concluded that this court’s decision in Shabazz v. Gabry, 123 F.3d
909 (6th Cir. 1997), did not preclude plaintiffs’ ex post facto challenge, Foster-Bey,
2005 WL 2010181, at *5. In Shabazz, a more comprehensive plaintiff class lost a facial
challenge to the constitutionality of the 1992 change to a 10+5+5 interview structure.
The district court determined that, because the Michigan Legislature had made additional
changes to the parole laws in 1999 (after this court had decided Shabazz), the cumulative
effect of the 1992 and 1999 changes to Michigan’s parole laws could not have been
Nos. 08-1371/1372/1626 Foster, et al. v. Booker, et al. Page 8

litigated in Shabazz. Id. at *5 & n.10. According to the district court, a “state cannot
continuously make minor changes in the parole process that, taken together, create a
sufficient risk of an increased penalty; but, when looked at alone, would not violate the
Ex Post Facto Clause.” Id. at *5 n.10.

Following discovery, the parties cross-moved for summary judgment on
plaintiffs’ ex post facto claim. On October 23, 2007, the district court granted plaintiffs’
motion and denied the Board’s motion. See Foster-Bey v. Rubitschun, No. 05-71318,
2008 WL 7020690 (E.D. Mich. Oct. 23, 2008). The district court determined that the
discretionary nature of the Board’s decision whether to grant parole did not preclude
plaintiffs’ ex post facto challenge. Id. at *9. After considering the cumulative effect of
the challenged amendments to the parole laws, id. at *10, the district court concluded
that the “change in the make-up of the Michigan Parole Board, the Board’s
understanding of why the change occurred and how it was to exercise its discretion, its
redefining of the eligibility procedure for [inmates sentenced to parolable life], and
changes to the timing and intervals of the interview and review process, when considered
in total have significantly disadvantaged the class and constitute a violation of the Ex
Post Facto Clause,” id. at *23.

More specifically, the district court found that the pre-1992, or “old,” Board had
treated inmates serving parolable life sentences and inmates serving long indeterminate
sentences the same to ensure that inmates who had committed similar crimes—and who
had been similarly rehabilitated—would serve similar time in prison. Id. at *13-14. The
new Board, by contrast, took the position that “life means life” and, accordingly, treated
inmates sentenced to parolable life differently than inmates serving long indeterminate
sentences. Id. at *14-16. In addition, members of the new Board focused on the
seriousness of an inmate’s offense as the most relevant factor in deciding whether to
grant parole. Id. at *16-17. The district court found that this “myopic view of the
relevant factors” led to the “erosion of the substantive standard” for granting parole. Id.
Furthermore, the district court found that, in practice, the new Board does not review the
file of an inmate sentenced to parolable life any more frequently than every five years,
Nos. 08-1371/1372/1626 Foster, et al. v. Booker, et al. Page 9

no matter the inmate’s individual circumstances. Id. at *17-18. The district court also
determined that “the value of the [in-person] interview,” all but eliminated from the
parole process in 1999, “cannot be overstated.” Id. at *19.

The district court relied in large part on statistical evidence in concluding that,
as a result of the 1992 and 1999 changes to the parole laws, plaintiffs faced a sufficient
risk of increased punishment to prevail on their ex post facto claim. Id. at *19-23.
According to the district court, “parole rates from 1942 until 1984 show that [inmates
sentenced to parolable life] were paroled at a steady 5-15 percent rate, with the average
time served steady at 15-18 years.” Id. at *21 (internal quotation marks omitted). The
district court reported that the new Board’s parole rate was, by contrast, just 0.15%;
meanwhile, the “average number of years served climbed from 19.2 during 1995-99, to
23.2 during 2000-04.” Id. The district court assigned credit for the “pipeline
paroles”—paroles of inmates whom the old Board, near the end of its tenure, moved
forward to public hearings but for whom the decision whether to grant parole ultimately
rested with the new Board—to the old Board rather than the new Board. Id. at *20-21.
As a result, the district court refused to credit the new Board with any paroles during the
transition period from 1992 to 1994; thus, for purposes of the district court’s analysis,
the new Board effectively began its tenure in 1995. Id. at *21. The district court also
declined to consider the new Board’s post-2004 numbers, because plaintiffs filed their
class action complaint in April 2005. Id.

Importantly, the district court excused the marked decrease in the old Board’s
parole rates from 1985 to 1994 because the decrease was not due to a change in the
parole laws. Id. at *23. Rather, the decrease was attributable to a number of other
causes, including (1) the governor’s nine-time invocation of the Prison Overcrowding
Emergency Powers Act, which, with each invocation, moved forward by ninety days the
release dates for inmates with minimum sentences, thereby increasing the number of
inmates eligible for parole and “‘bur[ying]’ the Board with new cases”; (2) an overall
increase in the prison population and, in particular, an increase in the number of inmates
sentenced to parolable life in the mid-1970s (these inmates were just coming within the
Nos. 08-1371/1372/1626 Foster, et al. v. Booker, et al. Page 10

Board’s jurisdiction by the mid-1980s); and (3) a 1982 statutory amendment that
required more frequent parole interviews for inmates sentenced to parolable life—as of
1982, these inmates had a 4+2+2 interview structure. Id. at *21-23.

After granting plaintiffs’ motion for summary judgment, the district court
solicited proposed remedial orders from both parties. On February 7, 2008, the district
court entered a declaratory judgment “holding that the defendants have been and remain
in violation of the ex post facto clause of the U.S. Constitution.” The district court also
entered a permanent injunction with terms the court deemed the least restrictive it could
impose to cure the Board’s ex post facto violation. The district court’s injunctive order
required the Board to compile a list of the longest-serving first quartile of the plaintiff
class “as soon as practicable” and to interview those plaintiffs within five months of the
entry of the order. The injunctive order further instructed the Board to “apply the parole
laws, policies, procedures, and standards that were applied by the old parole board in the
decades before 1992,” to “the extent possible,” and listed a number of sources the Board
should consult for guidance. The district court ordered the Board to report back with the
results of the first-quartile interviews within six months and to have compiled a list of
second-quartile plaintiffs by that time.

The Board has since submitted two progress reports for the district court’s
review. On November 3, 2009, in response to the Board’s second progress report, the
district court supplemented its original injunctive order by imposing additional reporting
requirements. The district court’s supplemental order also required the Board to make
an inmate’s complete psychological records available for review online by all Board
members before they vote whether to move the inmate forward to a public hearing.

Subsequent to the entry of the initial remedial order, the district court awarded
plaintiffs’ costs and attorney fees. The Board now appeals the district court’s grant of
plaintiffs’ motion for summary judgment, entry of the declaratory judgment and
permanent injunction, and award of plaintiffs’ costs and attorney fees. Plaintiffs cross-
appeal the dismissal of their due process claim.
Nos. 08-1371/1372/1626 Foster, et al. v. Booker, et al. Page 11

After filing notice of their appeal, the Board twice moved this court to stay the
original injunctive order and all further district court proceedings during the pendency
of the appeal. A motions panel of this court denied both motions. Following oral
argument, however, and in response to the district court’s November 3, 2009,
supplemental order, the Board again moved to stay the original injunctive order and all
further district court proceedings. This panel granted the Board’s motion with respect
to the November 3, 2009, supplemental order but denied the Board’s motion in all other
respects. Thus the permanent injunction has remained in effect and the Board has
released a number of plaintiffs on parole during the pendency of this appeal.2 Indeed,
as of November 2009, three of four quartiles of the plaintiff class had been or were
currently going through the review process.

II.

A. Ex Post Facto Claim

Plaintiffs have not shown that they face a significant risk of increased
punishment as a result of the challenged statutory changes to Michigan’s parole process
rather than as a result of the new Board’s legitimate exercise of discretion in a way that
results in fewer paroles. In any event, we are not confident that plaintiffs have even
shown a significant risk of increased punishment under the post-1992 parole regime.
Accordingly, plaintiffs were not entitled to judgment as a matter of law.

The Ex Post Facto Clause is “aimed at laws that ‘retroactively alter the definition
of crimes or increase the punishment for criminal acts.’” Cal. Dep’t of Corr. v. Morales,
514 U.S. 499, 504 (1995) (citations omitted). When an inmate challenges an allegedly
ex post facto parole law, this court “must examine the relevant law in effect at the time
[the inmate’s] offense was committed and compare it with the retroactively-applied
version of the law.” Shabazz, 123 F.3d at 912. The “focus of the ex post facto inquiry

2
At oral argument, the Board’s counsel stated unequivocally on behalf of the state defendants that
if this court were to reverse the district court’s grant of plaintiffs’ motion for summary judgment, plaintiffs
paroled pursuant to the district court’s original injunctive order would not have their parole revoked solely
on the basis of this court’s reversal.
Nos. 08-1371/1372/1626 Foster, et al. v. Booker, et al. Page 12

is not on whether a legislative change produces some ambiguous sort of ‘disadvantage,’
. . . but on whether [the] change . . . increases the penalty by which a crime is
punishable.” Morales, 514 U.S. at 506 n.3. Where a legislative change is argued to
increase the risk of affecting a prisoner’s punishment, the Supreme Court has made clear
that the appropriate inquiry is whether the retroactively-applied version of the parole law
“produces a sufficient risk of increasing the measure of punishment attached to the
covered crimes.” Id. at 509. When the retroactively-applied version of the law “does
not by its own terms show a significant risk” of increased punishment, the inmate
bringing the ex post facto challenge “must demonstrate, by evidence drawn from the
[law]’s practical implementation by the agency charged with exercising discretion, that
[the law’s] retroactive application will result in a longer period of incarceration than
under the earlier” version of the law. Garner v. Jones, 529 U.S. 244, 255 (2000).

To the extent that plaintiffs have shown they face a significant risk of increased
punishment under the new parole regime, plaintiffs have not shown that this risk is
attributable to statutory changes to the parole process and not to a change in the way the
Board legitimately exercises its discretion. The decision whether to grant parole has
always been within the Board’s discretion. See Mich. Comp. Laws § 791.234(11).
Therefore, from the time plaintiffs committed their offenses, there was always the
possibility the Board would exercise its discretion in a way that would result in fewer
paroles and longer prison terms. As the Michigan Court of Appeals stated in People v.
Hill, 705 N.W.2d 139, 143 (Mich. Ct. App. 2005), “[t]here was always a ‘significant
risk’ that [plaintiffs] would be made to serve [their] life sentence[s].”

Throughout the time period relevant to this suit, the statutory scope of the
Board’s range of discretion has remained the same. Parole is within the Board’s
discretion, but a “prisoner shall not be given liberty on parole until the board has
reasonable assurance, after consideration of all of the facts and circumstances, including
the prisoner’s mental and social attitude, that the prisoner will not become a menace to
society or to the public safety.” Mich. Comp. Laws § 791.233(1)(a). Despite the fact
that the scope of the Board’s discretion has remained the same, plaintiffs argue that, in
Nos. 08-1371/1372/1626 Foster, et al. v. Booker, et al. Page 13

practice, the new Board applied a harsher standard than the old Board when deciding
whether to grant parole. However, plaintiffs’ contentions do not make out an ex post
facto violation.

If the Parole Board decided within its discretion to get tougher, that could hardly
amount to an ex post facto violation as long as it was within the Parole Board’s
discretion to get tougher. This would be true even if the tougher attitude resulted from
a change in personnel on the Board, even if the Board members independently developed
a tougher attitude, and even if the Board members partook of a general public attitude
that parole decisions should be tougher. By analogy, there is no ex post facto violation
if a lenient judge is replaced by a strict one in a particular jurisdiction, such that a certain
crime, say shoplifting or drunk driving, now regularly gets a sentence well above what
was previously the case. Without some legal change other than a difference in the
proper exercise of discretion, the shoplifter or the drunk driver simply had no ex post
facto-protected interest in the more lenient sentence, as long as the more severe sentence
was within the range available to the sentencing judge at the time of the crime.

Plaintiffs’ arguments that the new Board members acted in a tougher exercise of
their retained discretion thus cut against finding an ex post facto violation. Plaintiffs
point to evidence that changes to the parole laws in 1992 were motivated by the desire
to increase public safety by granting fewer paroles. Indeed, a report issued by the
Michigan Department of Corrections in 1997 suggests that, when the Legislature
“overhaul[ed]” the Board and the parole process itself in 1992, the “intent . . . was to
make Michigan’s communities safer by making more criminals serve more time and
keeping many more locked up for as long as possible.” Mich. Dep’t of Corr., Five Years
After: An Analysis of the Michigan Parole Board Since 1992, at 2 (1997). The report
also asserts that one of “the most important differences since the overhaul is a Parole
Board that is much less willing to release criminals who complete their minimum
sentences—and much less willing to release criminals at all, forcing many to serve their
maximum sentences.” Id.
Nos. 08-1371/1372/1626 Foster, et al. v. Booker, et al. Page 14

Plaintiffs contend that the new Board, which by statute must include at least four
members with no experience in the Department of Corrections, Mich. Comp. Laws
§ 791.231a(2), placed greater emphasis on an inmate’s underlying offense and less
emphasis on the inmate’s rehabilitation when deciding whether to grant parole.
Plaintiffs submitted the sworn statements of several members of the new Board to
support this contention. For example, Gary Gabry, a former county prosecutor who
chaired the new Board from 1992 to 1996, recalls:

I often found myself trying to get the focus off the crime and onto the
candidate’s recent record in prison. I pushed the board to focus more on
the prisoner’s behavior, adjustment and future plans and not primarily the
sentencing offense, but it nearly always fell on deaf ears with at least five
members of the board.

Gabry believes that after the addition of “school teachers and other professionals” to the
Board, “it was just much harder for a prisoner to get out on parole.” In Gabry’s opinion,
“the drop-off in . . . paroles . . . was largely a reflection of the new type of people who
were appointed to the parole board in 1992.”

Plaintiffs argue that the new Board’s low rates of parole “can only be attributed
to its ‘life means life’ policy.” As evidence of the existence of this policy, plaintiffs
quote public statements by and on behalf of the new Board. For example, when Stephen
Marschke, who served as a member (1992-1996) and then as chair (1996-2002) of the
new Board, submitted written testimony in support of proposed changes to the parole
laws in 1999, he stated:

It has been a long[-]standing philosophy of the Michigan Parole Board
that a life sentence means just that—life in prison. . . . It is the parole
board’s belief that something exceptional must occur which would cause
the parole board to request the sentencing judge or Governor to set aside
a life sentence. Good behavior is expected and is not in and of itself
grounds for parole.

Marschke Test. in Support of Proposed Legis. ¶ 2.
Nos. 08-1371/1372/1626 Foster, et al. v. Booker, et al. Page 15

At bottom, plaintiffs’ evidence shows that the new Board exercised its discretion
rigorously, resulting in fewer paroles than under the old Board. As the United States
Supreme Court has explained in the clearest terms,

[T]o the extent there inheres in ex post facto doctrine some idea of actual
or constructive notice to the criminal before commission of the offense
of the penalty for the transgression, we can say with some assurance that
where parole is concerned discretion, by its very definition, is subject to
changes in the manner in which it is informed and then exercised. The
idea of discretion is that it has the capacity, and the obligation, to change
and adapt based on experience. New insights into the accuracy of
predictions about the offense and the risk of recidivism consequent upon
the offender’s release, along with a complex of other factors, will inform
parole decisions.

Garner, 529 U.S. at 253 (citations omitted). The most that can be said here is that, based
on experience, the new Board’s discretion was informed and then exercised in a way that
made it more difficult for plaintiffs to secure release on parole.

“[T]he Ex Post Facto Clause gives [an inmate] no cause to complain that the
Board in place at the time of his offense has been replaced by a new, tough-on-crime
Board that is much more parsimonious with parole . . . .” Id. at 259 (Scalia, J.,
concurring). Plaintiffs conceded at oral argument that there would be no ex post facto
violation if the new Board had gradually changed the way it exercises discretion or if
Board members had been replaced one by one over time. There is, however, no reason
to distinguish between gradual change and wholesale change for purposes of this ex post
facto analysis. Nor is there a constitutional requirement that changes in the exercise of
discretion be made over time. Thus plaintiffs’ allegations pertaining to the composition
of the new Board do not establish an ex post facto violation.

With respect to plaintiffs’ loss of the right to appeal a denial of parole, any harm
resulting from this change to the law is too speculative to contribute to the alleged risk
of increased punishment in any significant way. From 1995 to 1999, inmates filed 3,800
appeals from Board decisions, but only about four percent of those cases were remanded
to the Board for reconsideration, and only about six-tenths of a percent ultimately
resulted in parole. Jackson v. Jamrog, 411 F.3d 615, 620 (6th Cir. 2005) (quoting House
Nos. 08-1371/1372/1626 Foster, et al. v. Booker, et al. Page 16

Legislative Analysis, First Analysis, H.B. 4624 at 9 (Mich. Mar. 21, 2000)). As the
Board points out, appeals by inmates sentenced to parolable life likely represented only
a fraction of those percentages. Plaintiffs counter that the right to appeal is “important”
because “just one successful case can change the law for all prisoners.” Although
plaintiffs’ statement is arguably true, it does not change the facts. Because the loss of
the right to appeal “creates only the most speculative and attenuated possibility of
producing the prohibited effect of increasing the measure of punishment” attached to
plaintiffs’ crimes, Morales, 514 U.S. at 509, this change in the law does not contribute
in a significant way to the risk of increased punishment alleged as the basis for the ex
post facto claim.

Plaintiffs have not shown that the remainder of the statutory and regulatory
changes to the parole process—i.e., the change to a 10+5+5 interview structure, the
substitution of paper reviews for in-person interviews, and the loss of written reasons to
explain a statement of “no interest” in moving forward with parole—as practically
implemented and applied retroactively, create a sufficient risk of increased punishment
to prevail on their ex post facto claim. First, this court decided previously that the
change from a 7+3+3 or a 4+2+2 interview structure to a 10+5+5 interview structure
does not on its face create a sufficient risk of increased punishment to establish an ex
post facto violation. See Shabazz, 123 F.3d at 914-15. Second, and more clearly
dispositive, to the extent that plaintiffs have shown a decrease in the average annual rate
of parole or an increase in the average years served at parole since the new Board took
office, this court cannot isolate the cause of those effects on the record in this case. In
other words, there is no way for this court to determine whether any decrease in the
parole rate or any increase in the average years served is due to the challenged statutory
changes to the parole process or to the Board’s stricter exercise of its discretion. Indeed,
plaintiffs’ ex post facto claim is explicitly premised on the cumulative effect of changes
to parole policies and procedures in 1992 and 1999—including changes in the way
Board members exercise their discretion. It is not enough for plaintiffs to show that “a
legislative change produces some ambiguous sort of ‘disadvantage.’” Morales, 514 U.S.
at 506 n.3. And plaintiffs cannot distinguish the effect of the statutory changes to the
Nos. 08-1371/1372/1626 Foster, et al. v. Booker, et al. Page 17

interview process from the effect of the Board’s more rigorous, yet still legitimate,
exercise of its discretion. Therefore, plaintiffs were not entitled to summary judgment
on their ex post facto claim.

In any event, we are not even confident the statistics show a significant risk of
increased punishment under the post-1992 parole laws as compared to the laws in effect
when plaintiffs committed their offenses. As a preliminary matter, the parties disagree
as to how this court should measure the effect of changes to the parole laws. Plaintiffs
assert that the average annual rate of parole is the relevant measure, and they compare
the new Board’s rates to the old Board’s rates in an effort to show that the statutory
changes created a significant risk of increased punishment. In contrast to plaintiffs, the
Board argues that the annual number of paroles is the proper measure and that plaintiffs’
ex post facto claim is unfounded because the new Board’s number of paroles (47) for the
ten-year period from 1995 to 2004 was greater than the old Board’s number of paroles
(28) for the ten-year period from 1983 to 1992.

In fact, the data suggest that the real difference between the tenures of the two
Boards was in the number of inmates sentenced to parolable life who had served ten
years and could thus be considered for parole. This number provides the denominator
for plaintiffs’ parole rate calculations. According to the data plaintiffs provided in their
brief on appeal, see Pls.’ Br. 35, 41-42,3 this number has increased significantly since
the early 1980s:

3
The support for these numbers in the record appears to come from Pls.’ Mot. for Summ. J. Ex.
20, Attach. to Decl. at 3 and Pls.’ Mot. for Summ. J. Ex. 52 at 9.
Both in the district court and on appeal, plaintiffs presented their data as five-year averages.
Plaintiffs claim that “[f]ive-year averages give a more accurate picture, offsetting year-to-year
fluctuations.” Pls.’ Br. 35. Although we make no judgment with respect to this assertion, because our
analysis is based on the data plaintiffs provided in their brief, and for which we find support in the record,
we also analyze the data in five-year intervals. The interval spanning the early 1990s is shortened to
exclude data from 1993 to 1994, during the transition from the old Board to the new Board.
Nos. 08-1371/1372/1626 Foster, et al. v. Booker, et al. Page 18

Date/Period Average Annual Number
of Inmates Sentenced to
Parolable Life and Subject
to Consideration for Parole
2000-04 14544
New Board 1995-99 1091
1990-92 740
1985-89 474
1980-84 141.0
1975-79 63.2
1970-74 72.8
1965-69 84.6
1960-64 125.4
1955-59 169.0
1950-54 184.2
1945-49 221.0
Old Board 1942-44 199.7

Despite the increasing number of inmates sentenced to parolable life who could
be paroled, according to the figures plaintiffs provided in their brief, Pls.’ Br. 41-42,5 the
new Board’s parole rates did not differ significantly from the old Board’s rates during
the final years of its tenure:

4
Our own calculations, based on the record, suggest that this number should be 1498.8. See Pls.’
Mot. for Summ. J. Ex. 52 at 9.
5
The support for these numbers in the record appears to come from Pls.’ Mot. for Summ. J. Ex.
52 at 9 and Defs.’ Mot. for Summ. J. Ex. 3 at 5-8.
Nos. 08-1371/1372/1626 Foster, et al. v. Booker, et al. Page 19

Date/Period Average Annual Average Years
Rate of Parole Served at Parole
2000-04 0.15% 23.2
New Board 1995-99 0.20% 19.2
1990-92 0.18%6 unknown
Old Board 1985-89 0.6% 15.1

These data suggest that the practical implementation of changes to the parole laws post-
1992 did not result in a parole rate significantly lower than the rate that had resulted
from the practical implementation of the old parole laws by the mid-1980s. In other
words, these numbers indicate that plaintiffs did not face a significant risk of increased
punishment under the new parole laws as compared to the old parole laws, as those laws
were implemented and applied in practice.

Plaintiffs provide a number of excuses for the old Board’s low rates during the
last seven years of its tenure, but do not acknowledge that the new Board inherited some
of the same problems that had plagued the old Board. Plaintiffs explain the old Board’s
low rates by pointing to an overall increase in the prison population as a result of tougher
criminal laws, reasoning that “[a]s the prison population mushroomed, the parole board
began to fall behind in its work.” Plaintiffs also attribute the old Board’s low parole
rates to (1) the governor’s repeated invocation of the Prison Overcrowding Emergency

6
Plaintiffs assert that the average annual rate of parole from 1990 to 1992 was 1.9%. Pls.’ Br.
41. However, to arrive at this number, plaintiffs included in their calculations—as actual paroles—thirty-
nine inmates sentenced to parolable life whom the old Board, near the end of its tenure, moved forward
to public hearings and who were not blocked by judicial veto. Id. at 39-40. The decision whether to parole
these inmates ultimately rested with the new Board after it took office. Indeed, the new Board paroled,
at most, only fifteen of these thirty-nine inmates in 1993 and 1994. Defs.’ Mot. for Summ. J. Ex. 3 at 6.
Plaintiffs argue that the old Board should receive credit for paroling the thirty-nine inmates, even though
not all were actually paroled, and even though none were actually paroled by the old Board, because “the
old board rarely denied parole after moving forward on a case.” Pls.’ Br. at 40. Thus “all or nearly all
would have been paroled if the old board had not been removed.” Id. (emphasis added).
Although the parties dispute whether the old Board or the new Board should receive credit for
inmates paroled in 1993 and 1994, we need not decide the issue. This table, like the previous table,
excludes data from these transition years.
We calculated 0.18% as the average annual rate of parole from 1990 to 1992 by summing the
number of inmates sentenced to parolable life who were actually paroled from 1990 to 1992—four, Defs.’
Mot. for Summ. J. Ex. 3 at 6—and then dividing by the number of years (three) to get the average annual
number of paroles (1.33). We then divided that number by the average annual number of inmates
sentenced to parolable life who could be considered for parole—740, according to plaintiffs’ brief, Pls.’
Br. 41; see Pls.’ Mot. for Summ. J. Ex. 52 at 9.
Nos. 08-1371/1372/1626 Foster, et al. v. Booker, et al. Page 20

Powers Act, which, with each invocation, moved up by ninety days the release dates for
inmates sentenced to a minimum term of years, thereby increasing the number of
possible paroles (i.e., increasing the denominator), see Oakland County Prosecuting
Attorney v. Mich. Dep’t of Corr., 305 N.W.2d 515, 517 & n.6 (Mich. 1981); (2) more
frequent interviews with inmates sentenced to parolable life under the 4+2+2 interview
structure after 1982; and (3) an increase in the number of inmates sentenced to parolable
life in the mid-1970s who were just becoming eligible for parole in the mid-1980s but
who, according to plaintiffs, were not yet ready for parole. William Hudson, who served
as a member (1980-1985) and then as chair (1985-1991) of the old Board, remembers:

It is fair to say that the board was overwhelmed by the numbers at some
point, and that we had to put our energy and resources into interviewing
prisoners who were most likely to be paroled. Lifer interviews got
pushed back, and even when we did lifer interviews, it was more to
comply with the law, and not with an eye to moving anyone forward to
parole, because we were so far behind in our work. In the best of
circumstances we kept just marginally abreast of the regular parole cases,
and no doubt in the mid-to-late 1980s and early 1990s the lifers suffered
for it.

Although the new Board had the benefit of three additional members and a
10+5+5 interview structure, when it took office it faced the same overwhelming numbers
the old Board had faced near the end of its tenure. The new Board did not enter the
environment that had prevailed from the 1940s to the 1970s, when the average annual
number of inmates sentenced to parolable life who were eligible for parole rarely
exceeded 200 and annual parole rates were relatively high. Rather, the new Board
stepped into the environment inhabited by the old Board in the mid-1980s and early
1990s, by which time the old Board’s parole rates had decreased significantly.

Plaintiffs have not shown that any decrease in the parole rate or any increase in
the average years served under the new Board was not attributable to the sheer number
of inmates within the new Board’s jurisdiction. And, again, the new Board’s parole rates
did not differ significantly from the old Board’s rates during the final years of its tenure.
This suggests that plaintiffs did not actually face a significant risk of increased
Nos. 08-1371/1372/1626 Foster, et al. v. Booker, et al. Page 21

punishment as a result of the new Board’s implementation of post-1992 changes to the
parole laws.

While our rejection of plaintiffs’ ex post facto claim relies primarily on the
impossibility of distinguishing the effect of the Board’s legitimate exercise of discretion
from the effect of statutory changes to the parole process on the record before this court,
our conclusion is bolstered by some doubt, outlined above, that the new Board’s parole
rates were in fact significantly lower than the old Board’s rates during its final years in
office.

We reverse the district court’s grant of summary judgment in plaintiffs’ favor and
vacate the permanent injunction. Because plaintiffs are no longer the prevailing party,
we also reverse the district court’s award of plaintiffs’ costs and attorney fees.

B. Due Process Claim

Plaintiffs’ cross-appeal in this case involves a due process claim raised in the
complaint as an alternative to the ex post facto claim. The due process claim was
dismissed at an early point in the litigation, primarily on the ground that Michigan
prisoners have no constitutionally protected liberty interest in parole. The dismissal was
proper, although the reasons for that conclusion depend on which of several theories
serves as the basis for the due process claim.

The due process claim could be taken as a challenge to the sufficiency of parole
procedures under general procedural due process principles applicable when liberty or
property interests are deprived by the government. The complaint at ¶ 117 alleges that
the changes to Michigan’s parole standards and policies “have deprived the plaintiffs of
meaningful parole review.” A different type of due process theory would be analogous
to ex post facto jurisprudence, protecting against punishment that could not have been
anticipated when the crime was committed, but where ex post facto protections
technically do not apply because the increased punishment does not result from a
promulgated statute or regulation. A third theory would be that constitutional due
Nos. 08-1371/1372/1626 Foster, et al. v. Booker, et al. Page 22

process precludes the imposition of punishment greater than that actually imposed or
contemplated by the sentencing judge.

The complaint does not state a claim under any of these theories. First,
considered as a claim under general procedural due process principles with regard to the
denial of parole, the district court properly dismissed on the ground that plaintiffs lack
a constitutionally protected liberty interest in parole. See Foster-Bey, 2005 WL
2010181, at *6 (citing Sweeton v. Brown, 27 F.3d 1162, 1164-65 (6th Cir. 1994) (en
banc)). Plaintiffs do not contest this, but rather argue that this is not the nature of their
claim.

We do not read the complaint, however, as raising the second possible type of
due process theory—that the Due Process Clause serves to extend ex post facto
protections to situations where punishment is tougher than the perpetrator had reason to
expect at the time of the crime, but not because of any promulgated law or regulation.
The due process allegations in the complaint are not phrased in those terms. In any
event, such a theory is not supported in the law. The district court, in denying the
motion to dismiss the ex post facto claim, relied on the allegations that laws and
regulations had caused the alleged changes in parole eligibility. The district court in
doing so recognized that the ex post facto claim would otherwise have to be dismissed,
relying on the following excerpt from our holding in Shabazz:

The Ex Post Facto Clause exists to protect citizens from retroactive
increases in punishment. Changes in the administration and enforcement
of statutes have little impact on these public expectations. . . . [T]he
internal memoranda and policy directives . . . are not published in the
Michigan Administrative Code or presented to the public for comment.
Accordingly, the Parole Board and the MDOC’s policies and directives
did not likely influence public expectations as to parole or create a
reliance interest in the public on a particular parole hearing schedule.

123 F.3d at 916. If unpublished policy statements do not implicate ex post facto
concerns in the parole context, it follows of necessity that pure changes in the exercise
of discretion do not do so. Further, there is no apparent reason that such limits on the
Nos. 08-1371/1372/1626 Foster, et al. v. Booker, et al. Page 23

applicability of the Ex Post Facto Clause should not govern an application of the Due
Process Clause that would protect the identical underlying interest.

The complaint appears instead to address a different concern—not that the
perpetrator could not be aware of the severity of punishment for his act, but that a
convicted defendant should not be punished more than the sentence provides. That this
is the gravamen of plaintiffs’ due process claim is reflected in ¶ 115 of the complaint:
“The changes to Michigan’s substantive parole standards and to the state’s parole laws
and policies, described above, could not have been foreseen by the state court trial
judges when they sentenced the plaintiffs.” This theory, however, is not supported in
the law on the facts alleged in the complaint.

We assume for the sake of argument that the Due Process Clause would prohibit
the imposition of punishment beyond limits explicitly imposed by the sentencing court,
at least in the absence of some further infraction. But that is not what is alleged in the
complaint. Instead, the complaint alleges the imposition of punishment within a range
explicitly imposed, but beyond the subjective expectation of the sentencing judge. We
are unaware of any authority that would make this a due process violation.

The closest cases cited by plaintiffs in this connection are different because they
reflect post-sentencing changes that conflict with explicit limits in the judge’s sentence.
The Seventh Circuit on direct appeal in United States v. Kerley, 838 F.2d 932, 941 (7th
Cir. 1988), remanded for resentencing, noting that the trial judge “may have sentenced
Kerley to a longer term in prison than the judge realized,” but the crux of the ruling was
that the trial judge had incorrectly stated at the sentencing hearing that the time served
could be less than one year, when the sentencing statute mandated a sentence of at least
one year. In Culter v. United States, 241 F. Supp. 2d 19, 22 (D.D.C. 2003), the court
relied on that fact that “the Court’s sentence was premised on an explicit understanding
of where petitioner would serve her time.” Plaintiffs’ complaint does not allege that
such explicit limits were contained in the sentences imposed on plaintiffs.

For these reasons, plaintiffs’ alternative due process claim fails, and the district
court properly dismissed it.
Nos. 08-1371/1372/1626 Foster, et al. v. Booker, et al. Page 24

III.

For the foregoing reasons, the district court’s grant of plaintiffs’ motion for
summary judgment is reversed and this case is remanded to the district court with
instructions to grant the Board’s motion for summary judgment. Accordingly, we vacate
the permanent injunction and reverse the award of plaintiffs’ costs and attorney fees. We
also affirm the district court’s dismissal of plaintiffs’ due process claim.