[00:00:02] Speaker 00: Case number 13-5177, R.A. [00:00:05] Speaker 00: Bailey, Appellant vs. Isaac Fullwood, Jr., Chairman of U.S. [00:00:08] Speaker 00: Parole Commission at L. Mr. Sutleyman for the Appellant, Ms. [00:00:12] Speaker 00: Lyons for the Appellees. [00:00:48] Speaker 03: Let's wait until that courtroom clears. [00:00:52] Speaker 03: All right, Mr. Sacramento. [00:00:53] Speaker 03: Good morning. [00:00:53] Speaker 01: Good morning, Your Honor. [00:00:55] Speaker 01: Judge Henderson, and may it please the court, I'd like to reserve four minutes for rebuttal. [00:00:59] Speaker 01: The retroactive application of a parole regulation violates the ex post facto clause of the Constitution when it creates a significant risk of increasing the duration of an inmate's incarceration. [00:01:11] Speaker 01: The Commission's 2010 and 2012 decisions denying Mr. Bailey parole created such a risk for three reasons. [00:01:18] Speaker 01: First, by their clear text, the DC regulations applicable when Mr. Bailey was convicted [00:01:24] Speaker 01: stretchered and limited the Commission's discretion to depart from those regulations' numerical scoring system. [00:01:31] Speaker 01: Second, the Commission's regulations adopted in 2000 contained no such limitation, besting it with unfettered discretion to grant or deny parole notwithstanding the guidelines on the basis of any factor. [00:01:43] Speaker 01: Third, [00:01:44] Speaker 01: The 2010 and 2012 decisions retroactively applied the Commission's new unlimited discretion by departing from his numerical score solely on the basis of factors that were not enumerated and therefore were not permissible under the D.C. [00:01:58] Speaker 01: regulations at the time. [00:02:01] Speaker 04: So can I ask you, how are you reading, this is in your addendum at page seven, section 2004-22 [00:02:13] Speaker 04: of the board may in unusual circumstances. [00:02:17] Speaker 01: Yes, Your Honor. [00:02:18] Speaker 01: Section 22 implements the regulations prior statement in section 204.1 stating that the commission or at the time the D.C. [00:02:25] Speaker 01: board could depart from the numerical score on the basis of certain enumerated factors. [00:02:30] Speaker 01: What section 22 says that in unusual circumstances [00:02:33] Speaker 01: the board and now the commission may waive the SFS, that's the salient factor score, and the pre- and post-incarceration factors. [00:02:40] Speaker 01: Now, the SFS score and the pre- and post-incarceration factors together create a numerical recommendation to grant or deny parole. [00:02:48] Speaker 01: Now, what Section 22 says is that the board and now the commission can waive the numerical recommendation in unusual circumstances, and that's exactly what Section 2041 says. [00:02:59] Speaker 04: And the pre- and post-incarceration factors set forth in this chapter. [00:03:05] Speaker 01: That's right. [00:03:05] Speaker 01: The pre- and post-incarceration factors are in Section 204.18, which appears on Addendum 5 and 6. [00:03:12] Speaker 01: Now, the way that the D.C. [00:03:14] Speaker 01: parole regulations at the time worked is, first there was the calculation of a sailing factor score. [00:03:20] Speaker 01: Then there was the application of pre- and post-incarceration factors. [00:03:23] Speaker 04: So Mr. Siegelman, I guess what I'm focusing on is how do you read 22, what you're calling Section 22, as a limitation on discretion? [00:03:34] Speaker 01: Section 22 is a grant of limited discretion. [00:03:38] Speaker 01: And so what Section 22 says is that the Board could depart on the basis of certain factors. [00:03:45] Speaker 01: Now, elsewhere in the regulations, it says that those factors are limited. [00:03:48] Speaker 01: And that's in Section 1. [00:03:50] Speaker 01: And so Section 22 is an implementation [00:03:53] Speaker 01: of the process that's summarized in Section 1. [00:03:57] Speaker 01: You can see this in the structure of the regulations. [00:03:59] Speaker 01: Section 1 says that the board shall calculate a score and then, and this is a quote, the any parole decision falling outside the numerically determined guideline. [00:04:10] Speaker 01: That is, falling outside of the SFS score plus the pre-imposed incarceration factors. [00:04:15] Speaker 04: So just follow through with me on this. [00:04:18] Speaker 04: In other words, are you saying that necessarily the board's 1991 policy is [00:04:32] Speaker 04: implementing Section 22, if I can put it that way? [00:04:35] Speaker 01: Yes, Your Honor. [00:04:36] Speaker 01: What the 1991 policy guideline did was define terms that appeared in the 1987 regulations. [00:04:44] Speaker 01: And so by defining those terms, and it's implementing the entire regulations, including Section 22, and the appendices 2-1 and 2-2. [00:04:52] Speaker 01: And so the terms that appear in the appendices 2.1 and 2.2 as enumerated permissible grounds for departing from the numerical system are then in turn defined in the 1991 policy document. [00:05:01] Speaker 04: So if you look at your addendum at 28, subparagraph 8? [00:05:08] Speaker 01: Yes, Your Honor. [00:05:11] Speaker 04: Is that the limitation? [00:05:13] Speaker 01: Yes, your honor. [00:05:14] Speaker 01: And so it's a limitation in conjunction with Section 2041, plus Appendices 2, plus the 1991 guideline. [00:05:23] Speaker 01: Section 2041 says that the board may depart, but it has to do so on the basis of enumerated factors in Appendices 2. [00:05:29] Speaker 01: Appendix 2 is for parole rehearsals. [00:05:32] Speaker 01: Then in Appendix 2, which appears on page [00:05:35] Speaker 01: Addendum 15, it lists three reasons that can justify departure from the numerical recommendation. [00:05:42] Speaker 01: Those three reasons are change in the availability of community resources leading to a better parole prognosis, poor medical prognosis, or other change in circumstances. [00:05:51] Speaker 01: The 1991 guidelines then define those three terms, including other change in circumstances. [00:05:57] Speaker 01: And importantly, other change in circumstances is defined as [00:06:02] Speaker 01: occurring when the capabilities or characteristics of an offender are altered or modified in ways that minimize the likelihood of repeated criminal involvement. [00:06:10] Speaker 01: That is, it's a reason why someone would be a better rather than a worse world risk. [00:06:17] Speaker 04: That helps your clients. [00:06:19] Speaker 04: How? [00:06:20] Speaker 01: The reason why Mr. Bailey's challenge succeeds on the basis of this is that in 2010 and 2012, the Commission denied him parole, notwithstanding the fact that the numerical scoring system indicated that he should be granted parole. [00:06:33] Speaker 01: when it made that decision to depart from the numerical recommendation, it gave certain considerations for departing it. [00:06:40] Speaker 01: And none of those considerations were enumerated in the 1987 guideline as elaborated upon by the 1991 policy guideline. [00:06:48] Speaker 01: As a result, the Commission was retroactively applying the unlimited discretion that's found in the 2000 guidelines. [00:06:56] Speaker 03: And so... So what you're saying is that before, when the [00:07:01] Speaker 03: In applying the 87 regs, you could only look at changes in circumstances that they could only exercise their discretion in a way that helped the parolee. [00:07:16] Speaker 01: No, Your Honor, so it may appear that way on the basis of the 1987 regulations, but the 1991 policy guideline... Well, I mean adding, I didn't add that, adding [00:07:26] Speaker 01: what the ninety-one guidelines uh... so uh... no your honor of the commission could but to go to the park in either direction but only on the basis of the number of factors and so uh... the nineteen ninety-one policy that defines and this is on the end of [00:07:41] Speaker 01: 29 factors countervailing a recommendation to grant parole. [00:07:44] Speaker 01: And it lists nine factors here. [00:07:47] Speaker 01: Now, it's not entirely clear which of these are applicable at a parole rehearing, but at least some of them are. [00:07:52] Speaker 01: And so we can be absolutely certain that factor seven, which appears on addendum 30 and 31, [00:07:57] Speaker 01: is applicable in parole rehearings like Mr. Bailey's. [00:08:00] Speaker 01: The reason why we know that factor is applicable is because it separately says in subsection B on addendum 31 that in parole reconsideration hearings, the following offense is occurring, et cetera. [00:08:12] Speaker 01: And so it defines which offenses count as repeated or extremely serious negative institutional behavior for the purposes of rehearing. [00:08:20] Speaker 01: So at least some factors do apply. [00:08:22] Speaker 05: How do you reconcile mega-rave and [00:08:31] Speaker 05: your view of the limited discretion that the board has? [00:08:35] Speaker 01: I'll address those cases in turn. [00:08:37] Speaker 01: So first, Ellis, this court's case was addressing a separate question of whether the numerical scoring system created a liberty interest under the due process laws of the Constitution. [00:08:47] Speaker 01: And so the question there was whether the numerical score to grant parole [00:08:50] Speaker 01: is a liberty interest? [00:08:51] Speaker 01: And the answer is no. [00:08:52] Speaker 01: And the reason is because there's discretion to depart from that recommendation. [00:08:57] Speaker 01: And all parties agree that there is such discretion. [00:08:59] Speaker 01: So anything beyond that holding is dicta. [00:09:03] Speaker 01: Now, that dicta, even if we take it as a holding, doesn't decide this case for two reasons. [00:09:09] Speaker 01: So the court in Ellis said that the board, in that case, relied on what it took to be an unlisted factor. [00:09:15] Speaker 01: And so that unlisted factor that was considered was at an initial parole hearing. [00:09:20] Speaker 01: Now, the factors that could be considered at an initial parole hearing are listed in Appendix 2.1, and this is at addendum page, I'm sorry, addendum page 12. [00:09:35] Speaker 01: And one of the factors listed is other, and other remains undefined in the 1991 policy guidelines. [00:09:42] Speaker 01: So, as an initial matter, it's clear from the opinion analysis that it was saying that the unlisted factor could be considered as other, where other, unlike other [00:09:50] Speaker 01: change in circumstances remains undefined. [00:09:53] Speaker 01: Second, Ellis did not consider the 1991 policy guideline. [00:09:58] Speaker 01: And so the court in Ellis didn't have the benefit of the Supreme Court's decision in Garner, which instructed that policy guidelines not like the 1991 policy guideline. [00:10:07] Speaker 01: have to be looked at in order to determine what the parole board's actual practice was at the time. [00:10:13] Speaker 01: And so for those two reasons, the dictate analysis doesn't decide this case. [00:10:18] Speaker 01: Now turning to McCray, McCray similarly addressed the question of whether the numerical scoring system created a liberty interest for the purposes of the due process clause. [00:10:30] Speaker 01: Now in a footnote in that case, it also rejected [00:10:33] Speaker 01: the prisoners argument that the parole board had violated section 2041. [00:10:40] Speaker 01: But the rejection of that argument, it didn't say that 2041 doesn't apply or that the board could rely on unenumerated unspecified factors. [00:10:50] Speaker 01: rather, it held that that requirement was satisfied in that case. [00:10:54] Speaker 01: And indeed, the record of that case confirms that. [00:10:57] Speaker 01: This is in the green brief, page 24, note 7. [00:11:00] Speaker 01: All of the factors that were enumerated, I'm sorry, all of the factors that were considered by the board in the CRAIG were in fact enumerated in [00:11:08] Speaker 01: the 1987 and 1991 guidelines. [00:11:12] Speaker 01: And so McCrary simply says that the requirement of 2041 that the board rely only on enumerated factors does apply, and it was satisfied in that case. [00:11:21] Speaker 01: And so both of those cases are, in fact, consistent with the reading that I'm offering here, and that's the plain text reading. [00:11:27] Speaker 01: that the requirement in Section 2041, again, that any parole release decision falling outside the numerically determined guideline must be explained by reference to the specific aggravating factors and mitigating factors that are listed. [00:11:42] Speaker 01: And so no case of the DC Court of Appeals [00:11:46] Speaker 01: nor any case in this circuit, has decided the question or addressed the question of why or of what factors the board and now the commission may rely on in departing from the numerical recommendation to grant or deny parole. [00:12:00] Speaker 01: That question is addressed here, and the answer to that question is provided by the plain text of the statute. [00:12:07] Speaker 01: So now one further question is whether the government has ever provided an interpretation of these regulations that accounts for that sentence in Section 2041 that requires that there be specific factors that the Commission rely on. [00:12:25] Speaker 01: And the government has never offered such an interpretation. [00:12:28] Speaker 01: Instead, the government returns to the overarching purpose of the statute. [00:12:32] Speaker 01: Now there's no question that the statute that governed at the time granted a substantial amount of discretion to the board to make rule release considerations, but that discretion was cabined by the 1987 regulations. [00:12:46] Speaker 01: Understanding why the [00:12:47] Speaker 01: DC Parole Board decided to make that change in policy and take what was previously a broader discretion and to structure and limit it is revealed by the history behind those DC regulations. [00:13:00] Speaker 01: Prior to 1987, the governing statute provided a great deal of discretion and the Parole Board's regulations mirrored the statute. [00:13:10] Speaker 01: But the board determined that parole release decisions were being made in an inconsistent and irrational manner. [00:13:19] Speaker 01: And as a result of that, it decided to impose structuring limits on its discretion. [00:13:23] Speaker 01: And specifically, this is discussed in this court's case, Blair Bay, and also in the district court's case in Selma in 2008. [00:13:31] Speaker 01: And so in Selman, the court quoted at length from the report on the development of the Parole Policy Guidelines for the District of Columbia Parole Board. [00:13:41] Speaker 01: And this is essentially the legislative history behind the 1987 regulations. [00:13:46] Speaker 01: And what those, as the court in Selman explained, the principles that guided the implementation of the 1987 guidelines was to provide structure, was to provide consistency. [00:13:56] Speaker 01: And this is important. [00:13:58] Speaker 01: This is a quote. [00:13:59] Speaker 01: The touchstone of the parole decision-making process should be based on offender characteristics that have a statistically determined bearing on the offender's risk of future involvement in criminal behavior. [00:14:10] Speaker 01: And so what the 1987 guidelines did in conjunction with the 1991 policy guideline that elaborated on those initial 1987 guidelines, what they collectively did was to enumerate those factors that in the parole board's judgment at the time had a statistically [00:14:26] Speaker 01: established relationship to future criminal involvement. [00:14:30] Speaker 01: And so it wrote a list of what factors those were. [00:14:32] Speaker 01: And so now the Commission now has made a different policy judgment that there may be other considerations that could warrant a judgment that an offender is a greater risk to society. [00:14:42] Speaker 01: And the commission is free to make that policy judgment, as the political branches always are. [00:14:47] Speaker 01: However, what it can't do is retroactively change that policy determination to impose on offenders that committed their crimes in the late 80s and early 90s a more stringent parole regime that was based on the policy determination that the DC court made at the time. [00:15:04] Speaker 01: If there are no other questions. [00:15:06] Speaker 03: All right. [00:15:07] Speaker 03: We'll give you some time to reply. [00:15:11] Speaker 03: Thank you. [00:15:23] Speaker 02: Good morning. [00:15:24] Speaker 02: May it please the court. [00:15:26] Speaker 02: I'd like to start by simply noting that the chair of the parole commission, Isaac Fullwood, has retired recently, and the new acting chair is Patricia Smoot. [00:15:34] Speaker 02: It is undisputed in this case that Mr. Bailey has been eligible for parole since 2010. [00:15:38] Speaker 02: Or before then. [00:15:42] Speaker 02: Certainly no later than. [00:15:43] Speaker 02: The issue is whether the parole commission's denial in 2010 and 2012 violated the ex post facto clause. [00:15:50] Speaker 02: It did not. [00:15:51] Speaker 02: It's clear from the record that the Pearl Commission applied the 1987 DC Board of Pearl guidelines, which I'm just going to call the 87 guidelines, which were in effect when he raped a Howard University student in 1993. [00:16:04] Speaker 02: The Commission exercised its discretion based on finding Bailey a more serious risk than the point score indicated, similar to the way that had happened in Phillips. [00:16:18] Speaker 02: For that reason, Phillips is a good guide for this case in terms of how to resolve it. [00:16:27] Speaker 02: There's a secondary issue in the case, which I will address if the court has questions, about whether these claims should be addressed at all based on Mr. Ailey having filed a civil action in 2010, which has made its way through not one but two court systems. [00:16:41] Speaker 02: But as to the ex post facto claim, [00:16:44] Speaker 02: The test is whether the new standards create a significant risk of increasing punishment beyond the standards in place at the time of offense. [00:16:54] Speaker 02: that the commission was applying its 2,000 guidelines, but the paperwork and the record, the decisions, the pre-hearing reports that go ahead and apply the salient factor score, I would note that Mr. Bailey has a salient factor score initially calculated at 8. [00:17:11] Speaker 02: He's never challenged that. [00:17:13] Speaker 02: The parole commission has certainly gone through the process of applying the DC [00:17:17] Speaker 02: And there's nothing to suggest on the record that anything else is going on. [00:17:22] Speaker 02: So the suggestion that the 2,000 federal guidelines regulations have been applied here is simply incorrect. [00:17:28] Speaker 04: I think part of the argument, isn't it, that when you look at what happened when the Commission was applying its own guidelines, it gave the same reasons? [00:17:39] Speaker 02: It gave the same reasons from what, yes. [00:17:41] Speaker 02: There is no doubt that there is a similarity in the reasoning of the Poll Commission under both things. [00:17:47] Speaker 02: On the other hand, it's examining the same question, which is whether the individual is a suitable risk to release back into the community. [00:17:54] Speaker 04: And how does this fit with what counsel says is the structure and text of what you're calling the 87 regulations? [00:18:08] Speaker 02: Yes, Your Honor. [00:18:09] Speaker 02: Council suggested during his presentation that the 87 regulations cavend the discretion of then the D.C. [00:18:18] Speaker 02: Parole Board and we respectfully disagree with that notion. [00:18:21] Speaker 04: Do you have some different legislative history just so I'm clear about that? [00:18:26] Speaker 02: We don't point to anything in our brief. [00:18:28] Speaker 02: We simply point to the text of the 87 guidelines. [00:18:31] Speaker 02: And another place I would point, Your Honor, to that isn't directly on point for this, but I think is illustrative, is that the joint appendix on page 90, there's a letter that go with the 1992 policy guidelines. [00:18:42] Speaker 02: And the letter simply states that the DC Board of Parole was acting to eliminate any interpretation that the board was restricted [00:18:51] Speaker 02: this is with regard to re-parole decisions, it's not directly applicable here, but to eliminate the interpretation that the board was restricted to using the specific aggravating and mitigating factors listed in the document. [00:19:04] Speaker 04: And what year is that? [00:19:05] Speaker 02: That's in 1992, that letter 37. [00:19:06] Speaker 02: Yeah, okay. [00:19:09] Speaker 02: And I think that's indicative of how the court should look at the regime. [00:19:13] Speaker 02: The D.C. [00:19:13] Speaker 02: Parole Board did not view these [00:19:17] Speaker 02: these guidelines as cabining its discretion. [00:19:20] Speaker 02: It gave it a way to regularize it, to formalize it, to structure it. [00:19:23] Speaker 02: But it reserved, as the statute does, it reserved for itself the opportunity to depart in appropriate circumstances in regard to... Yeah. [00:19:33] Speaker 04: So I went through with Council for Appellant this Section 22. [00:19:41] Speaker 04: And what is the flaw in his analysis? [00:19:45] Speaker 02: I think it's either under-inclusive or over-inclusive, and I'm not going to take a position because I get them confused, but 204.1 is the broader grant of discretion for the Board to deny release or grant release, grant parole, to anybody whose number doesn't match up with what they're doing, essentially, under the guidelines. [00:20:08] Speaker 02: particular application of when that could happen. [00:20:11] Speaker 04: Well, Section 1, the last sentence, is certainly a limitation, isn't it? [00:20:19] Speaker 02: Yes, it's a limitation in terms of if the decision is outside the numerically determined range, whichever way it goes, it needs to be explained. [00:20:31] Speaker 04: Well, by reference to? [00:20:33] Speaker 02: Right. [00:20:34] Speaker 02: But the aggravating and mitigating factors include such things as what kinds of history of institutional conduct and other things are being used. [00:20:47] Speaker 02: But more importantly, 204.22 then takes that beyond 204.1 and says, in unusual circumstances, all you have to do is explain your reasons, what you consider. [00:21:00] Speaker 04: Well, that's if you ignore [00:21:03] Speaker 04: how they defined unusual circumstances. [00:21:08] Speaker 04: In other words, your reading, as I understand it, gives no weight to the 1991 definition. [00:21:18] Speaker 04: Am I wrong about that? [00:21:20] Speaker 02: What I would say about the 91 guidelines, Your Honor, is that the definitional changes didn't alter the structure of the appendix 2-2. [00:21:31] Speaker 02: which allows departure in either direction. [00:21:34] Speaker 02: There's no conflict in applying the definitions, and there's no restriction. [00:21:40] Speaker 02: The things that are enumerated are there, but there's nothing in 204.1 or anywhere else in those Section 204 procedures that says you really are only limited to those factors in every single case. [00:21:54] Speaker 04: So that's what's missing. [00:21:56] Speaker 02: That's what's missing. [00:21:57] Speaker 02: It's basically a prohibition. [00:21:58] Speaker 04: A specific sentence. [00:22:03] Speaker 04: I mean, they've said everything but that in your view. [00:22:07] Speaker 02: I don't think so. [00:22:08] Speaker 02: I think, and once again, I point to the board's, you know, the 92 letters, the most recent thing we have from the board on its view of what it was doing with its regulations. [00:22:18] Speaker 04: And what specifically do you think supports your position? [00:22:25] Speaker 02: It's my analogy, of course, but it's the notion that... So there's nothing in that letter specifically addressing the situation here. [00:22:36] Speaker 04: No, I'm saying it's my analogy, but that it does reflect... And the purpose is totally consistent with Appellant's analysis of the structure and text. [00:22:48] Speaker 04: to ensure consistency and equity? [00:22:50] Speaker 02: What I'm suggesting is that the language in the letter suggests that the D.C. [00:22:54] Speaker 02: Board was intent on reserving for itself not being cabin to restricting the aggravating or mitigating factors listed. [00:23:05] Speaker 04: Extending your analysis, it doesn't say that. [00:23:10] Speaker 04: But it's the 92 letter that you think is your strongest support? [00:23:18] Speaker 02: Well, other than the language of the procedures themselves. [00:23:23] Speaker 04: Well, you haven't shown me why the path that council has acknowledged isn't totally reflective of what the board had in mind. [00:23:36] Speaker 04: That's all. [00:23:37] Speaker 04: I'm trying to find out how you get beyond that text and structure. [00:23:41] Speaker 02: Okay, well I would also point to, this is an Appendix 2-2, which appears on Addendum 15 to the opening amicus brief. [00:23:52] Speaker 02: It leaves itself substantial discretion by using a term as broadly defined as other change in circumstances, and I realize that's defined. [00:24:01] Speaker 04: And that's defined, yes, at 28. [00:24:04] Speaker 04: And so you have to deal with that, don't you? [00:24:08] Speaker 02: You do, but the definitions are not written in a way that have in the discretion as much as an amicus suggests. [00:24:19] Speaker 04: Well, the problem is what the board has said is that if otherwise the defendant is recommended for parole, [00:24:36] Speaker 04: I mean, the language is funny, but it's, you know, factors countervailing a recommendation to deny parole. [00:24:43] Speaker 02: Yes, it has both. [00:24:44] Speaker 02: It has factors countervailing and then factors countervailing the other way. [00:24:48] Speaker 02: I would not have written it that way myself, but I wasn't there. [00:24:52] Speaker 02: But in either case, the factors that are then enumerated [00:25:00] Speaker 02: include, you know, some of them include words like ordinarily and... Where are you? [00:25:07] Speaker 02: For example, addendum page 25. [00:25:11] Speaker 02: Oh, that's not, wait, that's not a great example. [00:25:14] Speaker 04: Yeah, we need to be on 27. [00:25:24] Speaker 02: Well, just, I mean, take the absence of or change in community resources. [00:25:31] Speaker 02: That's obviously a factor that can go either way. [00:25:35] Speaker 02: And page addendum 30, factor six, is where the incident offense involved unusual cruelty to victims [00:25:49] Speaker 02: That's not defined in a way that is readily susceptible to saying yes or no. [00:26:00] Speaker 02: So I look at these as a guide, but we do not view these, the parole commission does not view these guidelines as calving the discretion that it preserves for unusual cases where, as this court addressed in Phillips, where this total points score just doesn't [00:26:19] Speaker 02: reflect what the commission perceives to be the right level of risk for the person. [00:26:24] Speaker 02: As to Ellis and McCray, I think the important point about Ellis is that it looks to McCray. [00:26:30] Speaker 02: It specifically says we're looking to McCray. [00:26:33] Speaker 02: And McCray is the DC Court of Appeals in 1995 assessing this system as not a rigid formula or a constraint on the parole board's discretion. [00:26:43] Speaker 02: And another point about McCray is that the offender there, who admittedly had a much more extensive criminal history than Mr. Bailey, but the comparison point is that he had made little or no effort toward rehabilitation. [00:26:56] Speaker 02: And that is one of the main reasons that the parole commission has relied upon to deny Mr. Bailey. [00:27:00] Speaker 02: parole to this point, is that he has not achieved any programming. [00:27:06] Speaker 02: They call it programming. [00:27:07] Speaker 02: I hate that word. [00:27:09] Speaker 02: He hasn't had any sex offender education to help him reduce the risk to society upon his release. [00:27:16] Speaker 02: And so I think McCray, as looked to in Ellis, is, in addition to Phillips, instructive about why this case does not present, as Fletcher required, a creditable claim of an ex post-factor violation. [00:27:32] Speaker 02: There are no further questions. [00:27:34] Speaker 02: Ask the decision to be affirmed. [00:27:35] Speaker 03: I do have one question on 204.22. [00:27:38] Speaker 03: And it says the board may waive not only the SFS, but also the pre and post incarceration factors, which sounds like, if you didn't have anything else, that the sky's the limit. [00:27:54] Speaker 03: They could pick out a, because they can waive those factors that are enumerated and come up with something [00:28:04] Speaker 02: That's right. [00:28:05] Speaker 03: That's right. [00:28:06] Speaker 02: It's that broader grant of discretion. [00:28:09] Speaker 02: It is a very broad system of discretion, admittedly. [00:28:14] Speaker 02: That's absolutely true. [00:28:15] Speaker 02: You're reading it exactly correctly. [00:28:16] Speaker 02: That's what the plain language says. [00:28:18] Speaker 04: And then they defined what they meant. [00:28:21] Speaker 02: Defined without limitation, defined somewhat. [00:28:25] Speaker 02: But that's not how the courts have looked at it. [00:28:27] Speaker 02: That's not how the DC Board of Parole looked at it when it still existed. [00:28:32] Speaker 02: And therefore, there isn't an exposed fact of violation here. [00:28:34] Speaker 04: And how do you know that? [00:28:36] Speaker 04: And you're relying on this 92 letter? [00:28:39] Speaker 02: I'm relying on part of the 92 letter. [00:28:41] Speaker 02: I'm relying on McCray, where the DC Court of Appeals described the 1987 guidelines as a scoring system, but not a rigid formula or a constraint on the parole's or its discretion. [00:28:54] Speaker 02: So I'm relying on that authority, which this court looked to in Ellis as important. [00:28:59] Speaker 02: And I think it is important, because that reflects [00:29:02] Speaker 02: the view of the District of Columbia report on that issue. [00:29:08] Speaker 05: You started out by saying that the Commission here had actually applied the 1987 guide. [00:29:18] Speaker 05: And I guess our discussion about [00:29:21] Speaker 05: how they are applying it, or about the meaning of the 1987 guidelines and the 1991 policy is to say what they did was consistent with the 1987 guidelines. [00:29:39] Speaker 05: Council, of course, is arguing that the way they applied it isn't consistent, so they must have been applying something else. [00:29:46] Speaker 05: But if that's the case, since the Commission says that's what they're applying, is this an ex post facto challenge or is it just at most saying they misapplied the guidelines? [00:30:00] Speaker 02: I agree that it's pure speculation based on the record and I think there's an ordinary presumption applied that government officials who are doing their jobs and saying they're doing them are doing them the way they say they're doing them. [00:30:11] Speaker 02: This speculation is [00:30:13] Speaker 02: basis here. [00:30:17] Speaker 02: So I agree that, and I tried to say this at some point in my presentation, that I didn't think this met the creditable claim standard from Fletcher that even gets you over the hurdle of the searching analysis. [00:30:28] Speaker 02: I'm maybe not getting these terms exactly right. [00:30:32] Speaker 02: Well, that's the Gambrell case. [00:30:35] Speaker 04: That's next. [00:30:38] Speaker 02: I'll defer to my colleague. [00:30:39] Speaker 04: We're here in Bailey, yeah. [00:30:41] Speaker 02: Thank you, Your Honor. [00:30:42] Speaker 02: No further questions. [00:30:43] Speaker 02: I ask that the judgment be confirmed. [00:30:45] Speaker 03: All right. [00:30:46] Speaker 03: Thank you. [00:30:46] Speaker 03: Does Mr. Seligman have any time? [00:30:52] Speaker 03: Why don't you take two minutes? [00:30:53] Speaker 01: Thank you, Your Honors. [00:30:56] Speaker 01: I'd like to make two points in rebuttal. [00:30:58] Speaker 01: First, the government has still not offered an interpretation of the crucial sentence in Section 204.1 that explicitly states that the Commission's discretion is limited to relying on specifically enumerated factors to depart from a numerical recommendation to grant parole. [00:31:15] Speaker 01: Instead, the government suggests that [00:31:18] Speaker 01: that categorical imperative that uses the word shall can be disregarded in certain circumstances, but there's no textual indication that that's the case. [00:31:26] Speaker 01: Instead, the government relies on the 1992 letter, and the government is correct that that letter says that the board was explaining that it didn't want a cabinet's discretion, but what the government omits [00:31:39] Speaker 01: is that the 1992 regulations relating to parole set-offs, which is the time in between parole hearings, explicitly state that the grounds on which the board could rely included but were not limited to the enumerated grounds. [00:31:54] Speaker 01: And so that's actual difference between the 1987 and 1991 parole guidelines that are relevant to the suitability for parole. [00:32:01] Speaker 01: It differs from the text of the regulations that apply to a set-off. [00:32:05] Speaker 01: And so the 1992 letter rather confirms [00:32:08] Speaker 01: that the board's discretion was limited. [00:32:13] Speaker 01: Second, I'd like to address the pre- and post-incarceration factors that Judge Henderson was curious about. [00:32:17] Speaker 03: You must not read waived to mean ignore. [00:32:20] Speaker 01: Right, and so the parole guidelines are not the clearest in the world, but the text does demonstrate that the pre- and post-incarceration factors that are referenced in Section 22, it refers to the pre- and post-incarceration factors that are previously accounted for in Section 18, and that is on page addendum [00:32:40] Speaker 01: and then five and six. [00:32:42] Speaker 01: Now this is all clear, I think, in the appendices, and specifically appendix two one. [00:32:47] Speaker 01: So what happens is the salient factor score is calculated, and that creates a risk category of low, medium, high, and I think very high. [00:32:56] Speaker 01: And so once that risk category is decided, there's a point score. [00:33:01] Speaker 01: And that point score can be adjusted by pre and post incarceration factors pursuant to section 18. [00:33:06] Speaker 01: And this appears in appendix [00:33:09] Speaker 01: to 1 on addendum 9 and 10. [00:33:13] Speaker 01: And so the salient factor score generates an initial point. [00:33:16] Speaker 01: Then that point score is adjusted by the pre and post incarceration factors pursuant to section 18. [00:33:22] Speaker 01: And then that combined score is called the total point score. [00:33:26] Speaker 01: The total point score then generates a yes or no answer, a recommendation to grant or deny parole. [00:33:32] Speaker 01: And it is from that, the salient factor score plus the pre and post incarceration factors. [00:33:38] Speaker 01: That determination is what the board can depart from on the basis of specifically enumerated factors in Appendices 2.1 and 2.2. [00:33:46] Speaker 01: And so the pre and post incarceration factors that can be waived are part of the numerical score. [00:33:51] Speaker 01: And that's crucial to understanding the extent of the [00:33:54] Speaker 01: of the commission's discretion. [00:33:55] Speaker 03: In other words, you'd read that sentence to say, waive the SFS and the pre- and post-incarceration factors that were used to arrive at it? [00:34:05] Speaker 01: That's right. [00:34:06] Speaker 01: And so I think this is particularly clear on Addendum 11, which implements the regulations. [00:34:11] Speaker 01: On Addendum 11, there's a table that says at the top, sailing factor score category. [00:34:16] Speaker 01: It's low, fair, moderate, high. [00:34:18] Speaker 01: There's points associated with that. [00:34:19] Speaker 01: those points can be adjusted by going up for certain types of risk, that is pre-incarceration factors, then post-incarceration factors are in the next two rows, and that generates what's called a total point score. [00:34:32] Speaker 01: That's in the middle of the page. [00:34:33] Speaker 01: And then the total point score is translated into a recommendation to grant or deny parole. [00:34:38] Speaker 01: Now, below that, at the bottom of the page, [00:34:40] Speaker 01: There's a worksheet that says, number five, decision is within, below, or above the guidelines. [00:34:45] Speaker 01: And then there's a heading that says reason if outside the guidelines. [00:34:49] Speaker 01: And so the guidelines were the numerical calculation that happened before. [00:34:52] Speaker 01: Then the reasons that are listed below that are reasons to depart from the numerically determined guideline recommendation. [00:34:58] Speaker 01: And that's exactly what the regulations say in section 22. [00:35:02] Speaker 01: And so it's clear from the regulations that the [00:35:06] Speaker 01: discretion to depart from the numerically generated recommendation grant or denied role is limited to those enumerated factors which are different from the pre and post incarceration factors. [00:35:17] Speaker 01: And I'd also like to answer Judge Brown's question about whether this is an ex post facto question at all. [00:35:21] Speaker 01: And so I take it that your question is whether the board, the commission simply misapplied the regulations or whether it was retroactively applied. [00:35:29] Speaker 01: And so the Commission was retroactively applying what it took to be unlimited discretion under the 2000 guidelines. [00:35:37] Speaker 01: And so this is clear for at least two reasons. [00:35:39] Speaker 01: First, the administrative record in Mr. Bailey's history confirms that the analysis stayed the same from 2004 and 2007 when the Commission was explicitly applying the 2000 regulations, and 2010 and 2012. [00:35:53] Speaker 01: when it was purporting to apply the 1987 regulations. [00:35:57] Speaker 01: Now, the person remained the same, which the government has stressed. [00:36:01] Speaker 01: But the analysis should have changed, because under the district court's order in the Salmon case, it directed the Commission to begin applying the 1987 regulations. [00:36:10] Speaker 05: But the only... But the analysis would only change if, in fact, the Commission thought that they were restricted by the structure [00:36:20] Speaker 05: of the 1987 guidelines and the 1991 policy, as you have described it. [00:36:26] Speaker 05: But they could have thought that the other category and the unusual circumstances category gave them broad discretion. [00:36:35] Speaker 05: So they could have thought, I mean, there's no reason for us to assume that they lied. [00:36:41] Speaker 05: They said, we applied the 1987 factors, which suggests that [00:36:48] Speaker 05: The way you've described it, perhaps they did. [00:36:50] Speaker 05: But if they got it wrong, that's not an ex post facto problem. [00:36:54] Speaker 01: That's a misapplication problem. [00:36:55] Speaker 01: So there's no question that we need not establish that there was any bad faith on the part of the commission and no one is suggesting that they lied. [00:37:03] Speaker 01: or consciously lied when they were saying that they applied the 1987 regulations. [00:37:08] Speaker 01: But what's clear from the administrative record is that the Commission applied a different and more stringent role regime. [00:37:15] Speaker 01: Now, whether that's characterized as – the brief's here, or I attempt to characterize it – as a retroactive application of the 2000 guidelines, [00:37:23] Speaker 01: Or, as the plaintiffs in Gamberl have suggested, that it's a new and unwritten set of parole guidelines. [00:37:34] Speaker 01: That actually doesn't matter. [00:37:35] Speaker 01: What matters is that there's something new and that it's harsher. [00:37:38] Speaker 01: It doesn't matter whether it's the 2000 guidelines or something else. [00:37:42] Speaker 01: All that matters is that it's new and it's harsher. [00:37:44] Speaker 01: And I know I'm over my time, but I'd like to address this court's decision in Phillips, which is, in some respects, most on point to this case. [00:37:53] Speaker 03: All right. [00:37:53] Speaker 03: Did Ms. [00:37:54] Speaker 03: Lyons mention it if she did? [00:37:55] Speaker 01: If she did. [00:37:56] Speaker 01: Yes, Your Honor. [00:37:57] Speaker 01: And so this court in Phillips rejected the ex post-facto claim of Mr. Phillips, who was paroled, sentenced prior to the 1987 guidelines. [00:38:07] Speaker 01: And the court did not reach or address the issue here. [00:38:12] Speaker 01: And to see why. [00:38:14] Speaker 01: The court in Phillips held that the plaintiff incorrectly characterized the Commission's decision in that case. [00:38:22] Speaker 01: What he said the Commission decided was that it relied on offense accountability, apart from the numerical recommendation. [00:38:27] Speaker 01: And this court held that that's not in fact. [00:38:29] Speaker 01: what the Commission relied on. [00:38:32] Speaker 01: Instead, it made the determination that Mr. Phillips was a more serious risk than his points were indicated, and the Court went on, Mr. Phillips had not given any reason in his briefs to think that the Board wouldn't have come to the same conclusion. [00:38:45] Speaker 01: Now, what the Court didn't address in Phillips is what factors the Commission could rely on in making the determination that Mr. Phillips was a more serious risk. [00:38:54] Speaker 01: And Mr. Phillips didn't press that argument and the court didn't address it. [00:38:58] Speaker 01: And when you look at the record of that case, it's clear that the commission, in fact, relied on enumerated factors. [00:39:04] Speaker 01: The facts of that case are that the commission relied on Mr. Phillips went to his ex-girlfriend's apartment, forced her to lure her new boyfriend to his apartment, and stabbed that new boyfriend to death. [00:39:16] Speaker 01: and after that he stabbed the ex-girlfriend. [00:39:21] Speaker 01: After he was released, after being arrested for those two crimes, he went back to the same apartment and confronted her new companion and stabbed him to death after an altercation, and that new companion was an off-duty police officer. [00:39:33] Speaker 01: These are the factors that the Commission considered in denying Mr. Phillips parole, and each of these factors [00:39:39] Speaker 01: could be considered under the 1987's enumerated list. [00:39:42] Speaker 01: In particular, on Green Addendum 29, the second factor, ongoing criminal behavior or community adjustment as evidenced by failure to remain free of criminal activity over sustained periods of time. [00:39:52] Speaker 01: He was arrested after two violent felonies and committed another one after that. [00:39:57] Speaker 01: Factor three, also on Green Addendum 29, a history of repetitive, sophisticated criminal behavior for serious crimes involving premeditation or methodical planning or assault of criminal behavior. [00:40:08] Speaker 01: And both of those are satisfied in the Phillips case because he premeditated going over to his ex-girlfriend's apartment. [00:40:14] Speaker 01: Finally, on Green Addendum 30, unusual cruelty to victims, which includes, among other things, physical, mental, or emotional abuse, [00:40:22] Speaker 01: beyond the degree necessary to sustain the conviction, and forcing his ex-girlfriend to lure her new boyfriend to his death certainly counts as emotionally abusive. [00:40:30] Speaker 01: And so the result of all of this is that the Phillips Court confronted a situation in which the Commission in fact relies solely upon enumerated factors under the 1987 and 1991 guidelines. [00:40:41] Speaker 01: And so it didn't reach the issue in this case, but even if it had reached the issue in this case, the requirements of the regulations to rely on specifically enumerated factors were satisfied. [00:40:51] Speaker 03: All right, Mr. Seligman, you were appointed by the court to represent Mr. Bailey, and you've done an outstanding job. [00:41:02] Speaker 03: The court thanks you. [00:41:03] Speaker 01: Thank you, Judge Henderson. [00:41:04] Speaker 01: Thank you, Judge.