concurring.
I agree with the result reached by the majority, but arrive there by a different route. In my view, Pennsylvania law provides a procedure through which DeFoy may present his claim to the state courts and indicates that they have jurisdiction over that remedy. However, it would be futile to require him to pursue his efforts in the state forum, because, on several occasions, the Commonwealth Court has denied claims similar to DeFoy’s on the merits. Therefore, the District Court should excuse exhaustion of state remedies and proceed to decide the case.
*446A.
As the majority notes, the means by which a state prisoner may seek relief in state courts from a denial of parole based on a constitutional violation is a matter of considerable jurisprudential confusion. In Burkett v. Love, 89 F.3d 135 (3d Cir.1996), we reviewed the opinions of the Pennsylvania Supreme Court and the Commonwealth Court as of that time and concluded that a prisoner had “available three potential ways of attacking the denial of parole in Pennsylvania courts — appeal, mandamus or habeas corpus.”
Following our decision in Burkett, the Pennsylvania Supreme Court held that Parole Board decisions are not “adjudications” under state law and, therefore, they are not appealable. Rogers v. Pa. Bd. Of Prob. & Parole, 555 Pa. 285, 724 A.2d 319 (1999). However, in a footnote the Court said,
“While appellants are not entitled to appellate review of a Parole Board decision, they may be entitled to pursue allegations of constitutional, violations against the Parole Board through a writ of mandamus, or through an action under 42 U.S.C. § 1983.5 Mandamus is an extraordinary remedy which is available to compel the Parole Board to conduct a hearing or to apply the correct law.”
Id. at 323 n. 5 (internal citations omitted).
In Coady v. Vaughn, 251 F.3d 480, 489 (3d Cir.2001), we certified a narrow question to the Pennsylvania Supreme Court — • may a person who has been refused parole obtain review in a Pennsylvania state court of a claim that the denial “violated the ex post facto clause of the United States constitution,” and, if so, “may review be appropriately secured on direct appeal, through a petition for a writ of mandamus, or in some other manner.” Coady, 251 F.3d at 489.
In response to our inquiry, the Pennsylvania Supreme Court acknowledged that “parole denial claims are not normally suited to review by way of mandamus” and “mandamus will not lie to compel a purely discretionary act.” Coady v. Vaughn, 564 Pa. 604, 770 A.2d 287, 290 (2001). However, the court explained
“where ... discretionary actions and criteria are not being contested ... an action for mandamus remains viable as a means for examining whether statutory requirements have been altered in a manner that violates the ex post facto clause. Such an action could be brought in the original jurisdiction of the Commonwealth Court.”
Id.; see also Hall v. Pa. Bd. of Prob. & Parole, 578 Pa. 245, 851 A.2d 859 (2004) (entertaining an appeal from Commonwealth Court’s dismissal of a mandamus petition and holding that the ex post facto clause had not been violated.); Finnegan v. Pa. Bd. of Prob. & Parole, 576 Pa. 59, 838 A.2d 684, 687 (2003) (citing Coady and concluding that mandamus is the “proper avenue for seeking relief” under the ex post facto clause of the United States Constitution).
Although in Coady the Pennsylvania Supreme Court did not consider the availability of mandamus for constitutional challenges other than those raising the ex post facto clause,6 no subsequent opinion by that court has expressly confined the hold*447ing in Coady to preclude other constitm tional challenges.
In Winklespecht v. Pennsylvania Board of Probation & Parole, 571 Pa. 685, 813 A.2d 688 (2002), the Court considered the merits of the appellant’s ex post facto claim, but concluded that no relief was due. The Court declined to decide whether ha-beas corpus was an available remedy for a “true constitutional claim.” Id. at 692.
Justice Castille’s concurring opinions, both joined by Justice Newman, in Coady and Winklespecht suggest that a constitutional challenge to a parole denial may by cognizable under Pennsylvania’s habeas corpus statute. Justice Castille noted that “because the practical effect of a parole denial is the continuation of the prisoner’s incarceration, a petition for writ of habeas corpus would seem to be the logical and appropriate manner to raise a viable constitutional claim stemming from the Parole Board’s decision.” Coady v. Vaughn, 564 Pa. 604, 770 A.2d 287, 291 (2001) (Castille, J., concurring). Justice Castille stated that comments on habeas corpus to the contrary in Weaver v. Pa. Bd. of Prob. & Parole, 688 A.2d 766 (Pa.Commw.Ct.1997), were “problematic to say the least.” Id. at 294.
I have found no opinion of the Pennsylvania Supreme Court post -Coady containing any language suggesting that only constitutional claims raising an ex post facto charge are subject to review. Similarly, research has not uncovered any holding of the Pennsylvania Commonwealth Court after Coady stating that mandamus jurisdiction is limited to ex post facto claims. In fact, in Voss v. Pennsylvania Board of Probation & Parole, 788 A.2d 1107 (Pa. Commw.Ct.2001), a post -Coady case, the Court addressed the merits of a mandamus case involving constitutional issues other than the ex post facto clause. Voss sustained an inmate’s due process challenge, concluding that it was “not persuaded that” denial of a “parole application based upon a [concept of] ‘achieving the fair administration of justice’ ... meets the requirements of due process.” Id. at 1111.
Similarly, in Evans v. Pennsylvania Board of Probation & Parole, 820 A.2d 904 (Pa.Commw.Ct.2003), also post-Coady, an inmate presented claims of both an ex post facto clause violation and a denial of due process. The Court denied both claims on the merits but conceded a constitutional right to due process in parole cases. Id. The Court did not deny mandamus jurisdiction on either claim.
Weaver, 688 A.2d 766, is a pre-Coady opinion. In that case, the prisoner alleged a Fifth Amendment violation in being denied parole because he refused to admit guilt in order to qualify for the Sex Offender Treatment program. Id. at 769. The Commonwealth Court found that it had no jurisdiction to consider the claim as a direct appeal, a holding later confirmed by Rogers. Id. at 770-71. In the course of discussing the availability of mandamus, the court said that, “Mandamus cannot be used to say that an agency considered improper factors....” Id. at 777. The Court explained
“Because there is no constitutional prohibition against using Weaver’s refusal to admit that he committed the rape for which he was convicted as a basis for denying participation in treatment program, and because a failure to successfully complete that program is a valid reason for denying parole, Weaver has failed to set forth a cause of action in mandamus.”
Id. at 779.
In other portions of its opinion, however, Weaver referred to constitutional violations “that are wholly extraneous to the *448decision of whether or not to grant parole, i.e., retaliation for bringing a lawsuit, race, religion and national origin.” Id. at 773. These matters are “non-legitimate and non-bona fide reasons for denying parole because they have no relation to the parole process.” Id. A fair reading of Weaver reveals that it recognizes that mandamus jurisdiction exists in the Commonwealth Court for constitutional violations that should not enter into a parole decision.
Less than a year after Weaver, in a case “in the nature of mandamus,” the Commonwealth Court suggested that mandamus was available to remedy constitutional violations in the refusal of parole. Myers v. Ridge, 712 A.2d 791 (Pa.Commw.Ct.1998). The Court noted that “decisions to grant or deny parole” are not usually reviewable except where “a constitutional or statutory violation has occurred.” Id. at 794. Myers did not discuss or cite Weaver even though the factual predicates and legal issues were similar.
My research persuades me that Pennsylvania does provide a remedy for constitutional violations that infect parole denial proceedings. The state supreme court seemingly would permit the use of mandamus for that purpose. The court has not definitively addressed the question of whether habeas corpus is available.7
I am convinced that the courts of Pennsylvania would not deny jurisdiction over claims of constitutional violations in prison settings or elsewhere. Consequently, I would hold that DeFoy’s claim would find a jurisdictional basis in the Pennsylvania courts.
B.
The exhaustion of state remedies requirement is excused when resort to the state courts would be futile. Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997); Whitney v. Horn, 280 F.3d 240 (3d Cir.2002); Lines v. Larkins, 208 F.3d 153 (3d Cir.2000). The Pennsylvania courts have rejected the constitutional theory espoused by DeFoy on a number of occasions and there is no reason to expect a different result if he would be required to bring an action for mandamus. See Byrd v. Pennsylvania Bd. of Prob. & Parole, 826 A.2d 65 (Pa.Commw.Ct.2003); Sontag v. Ward, 789 A.2d 778 (Pa. Commw.Ct.2001); Weaver, 688 A.2d 766 (Pa.Commw.Ct.1997).
C.
In these circumstances, where a remedy potentially exists but attempting to exercise it would be futile, I agree with the majority that exhaustion is not required and the District Court should decide the case.
The issues in this case are important, but in the absence of a fully developed record, like the majority, I intimate no view as to whether DeFoy has a cause of action. Some sources bearing on the issue are McKune v. Lile, 536 U.S. 24, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002); Ainsworth v. Risley, 317 F.3d 1 (1st Cir.2002); see also Rauser v. Horn, 241 F.3d 330 (3d Cir. 2001); Kerr v. Farrey, 95 F.3d 472 (7th Cir.1996); Seth Grossman, Note: A Thin Line Between Concurrence and Dissent: Rehabilitating Sex Offenders in the Wake of McKune v. Lile, 25 Cardoza L.Rev. 1111 (2004) (reviewing denial of parole to inmates later vindicated by DNA evidence).
A development of the record on the current practices of the Department of Corrections and the Board of Parole with respect to the implementation of the Sex *449Offender Treatment Program may be in order. Consideration of alternatives to admissions of guilt as a prerequisite to participation in a program or eligibility for parole may be crucial. See e.g., Jonathan Kaden, Therapy for Convicted Sex Offenders: Pursuing Rehabilitation Without Incrimination, 89 J.Crim. L. & Criminology 347 (1998); Colorado Dep’t of Corrections: State Sex Offender Treatment Programs, 50 State Survey 2000.
. Whether § 1983 is a proper remedy for denial of parole was argued before the United States Supreme Court on December 6, 2004 in the case of Wilkinson v. Dotson, No. 03-287, 2004 WL 2924064.
. Given the limited question this Court certified, the answer was jurisprudentially correct.
. In Winklespecht, the court noted, "... we leave for another day the question of the propriety of habeas corpus as a remedy." Winklespecht, 813 A.2d at 692.