dissenting.
When William Prater was sentenced in 1973 to life in prison for his role in the conspiracy to murder Joseph Yablonski and his family, the relevant federal statute regarding parole read:
If it appears to the Board of Parole from a report by the proper institutional officers or upon application by a prisoner eligible for release on parole, that there is a reasonable probability that such prisoner will live and remain at liberty without violating the laws, and if in the opinion of the Board such release is not incompatible with the welfare of society, the Board may in its discretion authorize the release of such prisoner on parole____
18 U.S.C. § 4203(a) (1969) (emphasis supplied). When Prater applied for parole in 1982, the statute under the terms of which his application was denied provided:
If an eligible prisoner has substantially observed the rules of the institution or institutions to which he has been confined, and if the Commission, upon consideration of the nature and circumstances of the offense and the history and characteristics of the prisoner, determines:
(1) that release would not depreciate the seriousness of his offense or promote disrespect for the law; and
(2) that release would not jeopardize the public welfare;
... such prisoner shall be released.
18 U.S.C. § 4206(a) (1985) (emphasis supplied). Prater, whose parole was denied because “release at this time would depreciate the seriousness of your offense behavior,” sought a writ of habeas corpus in federal district court on the ground that his continued detention violated the ex post facto clause of Article I, section 9 of the federal Constitution. The district court granted the government’s motion to dismiss the petition, and on appeal a panel of this court reversed and remanded the case to the district court for a factual inquiry into the practices of the United States Parole Commission under the older statute. Prater v. United States Parole Commission, 764 F.2d 1230 (7th Cir.), vacated, 775 F.2d 1157 (7th Cir.1985). I rely substantially on that panel opinion for a detailed statement of reasons for my dissent here.
I
Prior to that panel decision in this case, this court had two opportunities to address closely analogous changes in the Illinois parole statute,1 which were alleged to have *958violated the ex post facto prohibition of Article I, section 8. In Welsh v. Mizell, 668 F.2d 328 (7th Cir.), cert. denied, 459 U.S. 923, 103 S.Ct. 235, 74 L.Ed.2d 186 (1982), we held that a new Illinois statute, which explicitly required consideration of depreciation of offense severity, implicated the ex post facto clause and, as a matter of law, disadvantaged Illinois prisoners who were sentenced before the change in the statute. Thus we said:
Criterion (2) ... is a marked departure [from the superseded parole statute], importing for the first time into the parole decision considerations of retributive justice (the relationship between time served and the nature of the offense) and general deterrence (incarceration as a means of promoting general respect for law). Furthermore, the [new] statute allows any one of the criteria to serve as a basis for parole denial. Not only is criterion (2) new, therefore, but it can also be determinative. The district court failed to realize that Welsh’s petition presented exactly that case: the Parole Board gave only the second of the three factors as its reason for denying parole, and that factor could not have had decisive weight under the Board’s [old] procedures.
It thus appears that the change in the law has worked a substantial harm to Welsh. At the time of his offense, exemplary conduct during his imprisonment might well have resulted in parole. Under the later enactment, no evidence of satisfactory rehabilitation can overcome a finding that the nature of his crime makes him a socially undesirable candidate for parole____
Id. at 331 (footnotes omitted). The Welsh decision was, however, soon overruled by our decision in Heirens v. Mizell, 729 F.2d 449 (7th Cir.), cert. denied, 469 U.S. 842, 105 S.Ct. 147, 83 L.Ed.2d 85 (1984). In reaction to Welsh, the panel in Heirens looked beyond the face of the two statutes to examine the actual practice of the Illinois Parole Board under the old parole statute, concluding:
[The Illinois legislature] merely codified the Board’s prior practice and procedure, that is, it simply explicitly articulated the Parole Board’s broad range of discretion which had always existed. Since the Parole Board considered both general deterrence and retributive justice prior to 1973, the application of criterion (2) to inmates who committed their crimes before 1973 does not violate the ex post facto prohibition of the United States Constitution. The second criterion is not disadvantageous to an offender who committed his crime before January 1, 1973, as that criterion merely includes factors which were considered in making parole decisions prior to that date.
729 F.2d at 463 (emphasis in original).
The panel that originally heard Prater’s appeal applied Heirens as the law of the circuit, ruling that “disadvantage” for ex post facto purposes2 is “a factual question involving the actual practice of the Parole Board before and after the statutory change.” Prater, 764 F.2d at 1236. The one difference between the panel’s approach and the approach in Heirens is that the panel remanded the case to the district court for a hearing concerning the Board’s practices, rather than resolving this issue of fact at the appellate level. Despite the availability to the panel in Heirens of a law review article by the former chairman of the Illinois Parole Board, see Heirens, 729 *959F.2d at 460 (citing Fields, Illinois Parole and Pardon Board Adult Parole Decisions, 62 Ill.B.J. 20 (1973)), the Prater panel thought the approach to fact-finding in Heirens an exception to the usual practice. Finally, the panel placed on the petitioner the burden of demonstrating “that the operation of the later statute is significantly more onerous in its effect than the operation of the former statute,” id. at 1239, and the panel noted that this burden was a heavy one, see id.
The en banc majority here appears reluctant to follow the clear precedent in this circuit that is provided by Heirens. Although they are entitled to do this, the manner in which they sweep that controlling decision under the carpet is far from satisfying. See supra at 956. After all, if a factual inquiry can “cook” a petitioner’s “goose,” why can it not also demonstrate that he was disadvantaged by a statutory change that turned out not to be a mere codification of prior practice? Further, it seems that the use of law review articles as evidence of the Parole Commission’s pre-1976 practices is as inappropriate a substitute for an evidentiary hearing here as it was in Heirens.
II
Leaving Heirens to one side, and merely “compar[ing] the parole statute in force in 1969 with the statute enacted in 1976 under which Prater was denied parole,” supra at 954, I still cannot accept the majority’s reasoning or conclusion. Certainly, I am surprised to see no reference at all in the majority opinion to Welsh v. Mizell, 668 F.2d 328, in which a unanimous panel of this court applied exactly this sort of “facial” analysis to two very similar Illinois statutes — and concluded that the change in statutory provisions would disadvantage a prisoner sentenced under the first.
The majority concludes that the 1976 statute is “if anything ... more liberal,” supra at 954, a conclusion that I cannot help but think would surprise members of the 94th Congress, who enacted the new statute. This conclusion is based on the substitution of a mandatory “shall be released” for a permissive “may ... authorize release”. But, as Judge Swygert notes, infra at 961-62, this permissive/mandatory distinction is not the only difference between the two statutes. A new criterion has been added to the statute, which, in the mandatory language of the 1976 statute, bars parole to any prisoner “whose release would ... depreciate the seriousness of his offense or promote disrespect for the law.” A facial analysis of the 1969 statute would suggest that this same prisoner would have at least a chance at release, as long as it was not also found that his release would be “incompatible with the welfare of society.” A panel of this court found such a change significant in Welsh: “At the time of his offense, exemplary conduct might well have resulted in parole. Under the later enactment, no evidence of satisfactory rehabilitation can overcome a finding that the nature of his crime makes him a socially undesirable candidate for parole.” 668 F.2d at 331.
The majority does away with this objection by deftly demonstrating how general deterrence was clearly (though implicitly) a consideration under the 1969 statute. The 1973 guidelines, promulgated to guide the Parole Commission in its administration of the 1969 statute, provide that “the reasons for parole denial may include, but are not limited to ... [the consideration that] (1) Release at this time would depreciate the seriousness of the offense committed and would thus be incompatible with the welfare of society.” 28 C.F.R. § 2.13(b) (1974) (emphasis supplied). Since it is agreed that the 1969 statute bars parole in any case in which release would be incompatible with the welfare of society, and since the 1973 regulation equates depreciation of offense severity with the welfare of society, the majority concludes that the 1969 statute bars release if it would depreciate the severity of the offense. “The clincher,” in the majority’s opinion, “is the 1973 guidelines.” Supra at 955. Of course, the majority never explains why guidelines may be used to bring out “implicit” mean*960ings in statutes when those guidelines are assertedly not enactments to which the ex post facto prohibition applies.3 Beyond that, this theory never explains away the permissive language of § 2.13(b) of the regulations. See Rifai v. United States Parole Commission, 586 F.2d 695, 699 (9th Cir.1978) (“[0]ffense severity has never been excluded as a consideration for parole release determinations.”) (emphasis supplied).
The author of today’s majority opinion, in his dissent from the panel opinion in the present case, expressed concern that “[a]ny federal prisoner who committed his crime before the enactment of the 1976 statute has a potential ex post facto claim under [the panel’s decision].” Prater, 764 F.2d at 1242 (Posner, J., dissenting). Thus, it is worth noting that the en banc majority, while precluding ex post facto claims, has opened a different door through which those denied parole can make their way to this court. The mandatory/permissive distinction, as I read it, creates an entitlement to parole (providing the conditions of the statute are met). See Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) (statute providing that prisoners shall be released unless they fall into particular classifications creates an “expectancy of release” that “is entitled to some measure of constitutional protection”).
Ill
In sum, I believe that this case ought to be remanded for a factual inquiry into the practices of the United States Parole Commission under the 1969 parole statute, as Heirens would require. I might agree with Judge Swygert’s able analysis were we writing on a clean slate, but as I have sought to demonstrate, the slate here is far from clean. In fact, our court has few slates as cluttered as this one regarding the ex post facto prohibition and parole statutes. We have failed, I believe, to develop doctrine in this area that is uninfluenced by the result of a particular case.
William Prater was partly responsible for one of the most brutal crimes in labor union history. I have no sympathy for his plight, but I believe that his case ought to have been decided in accordance with the law of the circuit. Therefore, I must respectfully dissent.
. Ill.Rev.Stat. ch. 38, § 1003-3-5(c) (1982) provides that an offender should not be paroled if:
(1) there is substantial risk that [he] will not conform to reasonable conditions of parole; or
(2) his release at that time would depreciate the seriousness of his offense or promote disrespect for the law; or
(3) his release would have a substantially adverse effect on institutional discipline.
The older statute had provided only that the sentencing judge and State’s Attorney should *958transmit to the Parole Board a statement of all “facts or circumstances which may tend to throw light on the question as to whether such prisoner ... is capable again of becoming a law-abiding citizen." Ill.Rev.Stat. ch. 38, § 806 (1961). It also required the Parole Board to give “due consideration and weight ... to the record of the prisoner’s conduct kept by the superintendent or warden.” Id. § 808a. See Welsh, 668 F.2d at 330-31; Heirens, 729 F.2d at 458.
. ”[T]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981) (footnotes omitted).
. I find most of the discussion of the ex post facto effect of the Commission's sentencing guidelines not only contradictory (in light of the majority’s use of the 1973 guidelines in its "facial" analysis), but also unnecessary. In any event, I now think that it is worth mentioning that the law of this circuit on this point is not so clear as the majority suggests. It is true that in Inglese v. United States Parole Commission, 768 F.2d 932 (7th Cir.1985), we held that the 1973 parole guidelines were not "laws” for purposes of the ex post facto prohibition. But in Rodriguez v. United States Parole Commission, 594 F.2d 170 (7th Cir.1979), this court held that other regulations promulgated under the same rulemaking power as that used in Inglese (18 U.S.C. § 4203(a)(1)) and involving the same "notice and comment" procedures, were "tantamount to a statute for the purpose of ... the ex post facto clause." Rodriguez, 594 F.2d at 179. Thus, it would appear that the appropriate test is less a mechanical inquiry into whether the regulations are "legislative” than it is a functional one into how much discretion the Commission retains and how much individualized attention the offender receives. See Inglese, 768 F.2d at 941-42 (Cudahy, J., concurring).