[00:00:53] Speaker 04:
Thank you, and may it please the Court.

[00:00:55] Speaker 04:
Zach Schauff as amicus, supporting Appellant Edward Ford.

[00:00:59] Speaker 04:
And I'm hoping to reserve three minutes for rebuttal.

[00:01:02] Speaker 04:
So my plan today is to spend a few minutes discussing what I view as the key merits issue here, which is the ex post facto claim based on the timing of D.C.

[00:01:11] Speaker 04:
Code parole hearings.

[00:01:12] Speaker 04:
And then I'll circle back to whichever procedural issues the Court has questions about.

[00:01:16] Speaker 01:
So I don't think there's a genuine — Mr. Schauff, can — you don't think the key issue is your staff story claim?

[00:01:23] Speaker 04:
So I think the statutory claim is a predicate to the ex post facto claim.

[00:01:29] Speaker 04:
In that case, probably should start with a predicate if you don't mind.

[00:01:33] Speaker 04:
Sure.

[00:01:33] Speaker 04:
So I think the pre-existing DC law is clear that the parole commission,

[00:01:46] Speaker 04:
D.C.

[00:01:47] Speaker 04:
Parole Board and now Parole Commission are obligated to apply D.C.

[00:01:52] Speaker 04:
parole law to D.C.

[00:01:53] Speaker 04:
sentences.

[00:01:54] Speaker 04:
That includes all of the rules, regulations, and guidelines of the D.C.

[00:01:58] Speaker 04:
Board of Parole.

[00:02:01] Speaker 02:
The approach the commission has taken here violates that rule because... Does Mr. Ford make this argument below or did the district court analyze the statutory claim law?

[00:02:14] Speaker 04:
So I think the answer is yes.

[00:02:16] Speaker 04:
The district court's decision addresses this issue at pages 23 to 24.

[00:02:21] Speaker 02:
Do you talk about the statutes at all?

[00:02:24] Speaker 04:
delay, right?

[00:02:26] Speaker 04:
It talks about delay and it talks about the Seventh Circuit's decision in Thomas.

[00:02:30] Speaker 04:
It basically adopts the government's argument, which had teed up this issue, and this is MA 47 and 50 to 51, by telling the court that the practice that they have adopted of delaying the D.C.

[00:02:45] Speaker 04:
Code parole hearing is okay based on the Seventh Circuit's decision in Thomas.

[00:02:50] Speaker 04:
If you look at Thomas,

[00:02:51] Speaker 04:
Thomas identifies and analyzes all of the statutes that we rely on in our brief and that the government knocks forward for failing to cite.

[00:03:00] Speaker 02:
Did this report discuss the validity of Thomas?

[00:03:04] Speaker 04:
I don't think the district court, it's not obvious the district court considered departing from Thomas, but I think that the district court read Thomas, found it persuasive, agreed with Thomas, and as a result adopted the government's view and disagreed with the argument that Ford had raised and the government had teed up.

[00:03:27] Speaker 04:
And just on this preservation issue, I think the key point from my point of view is,

[00:03:33] Speaker 04:
that there's nothing to be gained by not addressing an argument that was not just addressed by the district court, but that was addressed by the government itself below.

[00:03:42] Speaker 04:
And on this point, and this is I think the key feature in both the statutory argument and in the ultimate ex post facto claim, that delaying the DC parole hearing

[00:03:57] Speaker 04:
isn't just some procedural change, it has a substantive effect.

[00:04:01] Speaker 04:
And the reason for that is that district law had set up a system where the earlier and the more frequently someone has their parole hearings, the lower they can reduce this grid score, which governs parole decisions under DC law.

[00:04:15] Speaker 03:
So I can ask a conceptual question about the connection between the statutory claims and the ex post facto claims.

[00:04:20] Speaker 03:
So it seems like the ex post facto claims

[00:04:25] Speaker 03:
The ex post facto claim is going to be something you could press even if the regulation is not ultra viris under the statutes, right?

[00:04:34] Speaker 03:
Because then you would say, well, the regulation might be fine, but it's still something that came into being after the fact.

[00:04:40] Speaker 03:
And so you'd have to apply the pre-existing regime to our client.

[00:04:44] Speaker 03:
I mean, I'm sorry, to Mr. Ford, not your client.

[00:04:47] Speaker 04:
Right.

[00:04:47] Speaker 04:
So we agree with that.

[00:04:48] Speaker 04:
I mean, there's no authority for delaying Ford's parole here and here.

[00:04:52] Speaker 04:
aside from 28 CFR 265, which is issued in 1989, and you can sort of have two views of that regulation.

[00:05:02] Speaker 04:
One is that it's just new, two is that it's new and invalid, but I think you only have to agree with the first piece to give Ford the predicate for his exposition.

[00:05:12] Speaker 03:
So then getting back to the question of preservation, because I don't want to stop you from making the statutory argument, because I'm interested in that as well, but on preservation,

[00:05:20] Speaker 03:
It seems like if all somebody asserts is an ex post facto claim, it's not necessarily the case that they're also preserving a predicate statutory claim because the ex post facto claim exists regardless, right?

[00:05:32] Speaker 04:
So I think that's right.

[00:05:35] Speaker 04:
In this case, these arguments are so close together, I think it's fair to read one is preserving the other.

[00:05:41] Speaker 04:
So this Thomas decision that the government and the district court relied on is a 1992 decision and

[00:05:49] Speaker 04:
came into play before actually the commission took over the duties of the DC Board of Parole and just holds that the approach of the commission is lawful.

[00:06:00] Speaker 04:
But the reasons why you think that it's lawful are also the same or the reasons I guess I should say you think that approach is unlawful is the same reasons you would think that

[00:06:09] Speaker 04:
there's a ex post facto problem here and that's that it alters the substantive standards of DC parole law that creates a problem under among other things DC code 24209 and also under the ex post facto clause.

[00:06:25] Speaker 03:
Yeah, and I suppose one could say that if you want to avoid a constitutional question, then you could resolve it on statutory grounds as another, potentially another reason maybe to.

[00:06:34] Speaker 04:
I mean, that's right.

[00:06:35] Speaker 04:
I mean, we certainly think that the decision in Thomas approving this approach is wrong for the reasons we give in our brief and that there is a ex post facto problem as well.

[00:06:47] Speaker 04:
And just to get back to this core issue of

[00:06:51] Speaker 04:
the change in standards.

[00:06:53] Speaker 04:
So the way it works under the D.C.

[00:06:55] Speaker 04:
parole law applicable to Ford is each time you come before the commission, you have the chance to lower this grid score, which is .

[00:07:03] Speaker 04:
.

[00:07:03] Speaker 04:
.

[00:07:03] Speaker 01:
Can I take you away from that again?

[00:07:05] Speaker 01:
I'm sorry, because I'm not sure that the statutory claim really can be separated from the exposed facto in a way that helps you.

[00:07:18] Speaker 01:
So I want to ask about that.

[00:07:19] Speaker 01:
So what is the comparator that yields 2000?

[00:07:26] Speaker 01:
I'm going to use that rather than 2002.

[00:07:28] Speaker 01:
2000 as the date rather than

[00:07:32] Speaker 01:
What is the earlier law that you are looking at?

[00:07:37] Speaker 04:
So I think the earlier law is the D.C.

[00:07:39] Speaker 04:
Board of Parole Regulations, and we're talking about the 1987 regulations here.

[00:07:45] Speaker 01:
Yes, but those weren't regulations about mixed cases.

[00:07:51] Speaker 01:
And if you look at J.A.

[00:07:53] Speaker 01:
213, this is a letter or a memo that Mr. Ford received in 1990.

[00:08:02] Speaker 01:
which is, in the first paragraph says, when you receive your consecutive D.C.

[00:08:08] Speaker 01:
Code sentence of 20 years to life, your parole eligibility date was computed to be May 22, 2010.

[00:08:16] Speaker 01:
So that says that his original, as calculated at the time, was 2010.

[00:08:23] Speaker 01:
That, I think, has to be a consequence of pre-Jetman Bay analysis, right?

[00:08:32] Speaker 01:
And that's actually the way you describe in your own brief of what the consequence of pre-Chapman Bay would be.

[00:08:38] Speaker 01:
Then the next paragraph says, new policies now dictate the way parole eligibility dates are computed.

[00:08:45] Speaker 01:
And I've determined your new parole eligibility date will be 2000.

[00:08:49] Speaker 01:
That's the consequence of Chapman Bay.

[00:08:52] Speaker 01:
But since Chapman Bay did not exist until after your client committed his offenses,

[00:09:00] Speaker 01:
On its face, it looks like he does better under the new rule than he would have done under the rule at the time, which was 2010.

[00:09:10] Speaker 01:
What's the answer to that?

[00:09:11] Speaker 04:
So the answer is the way to think about Chapman Bay is it holds that this previous calculation, the one that yielded the 2010 date, was just unlawful.

[00:09:22] Speaker 01:
And the way we think about- That may be right, but that doesn't necessarily mean that

[00:09:30] Speaker 01:
It's a comparator.

[00:09:32] Speaker 01:
Even an unlawful original rule is still the comparator for purposes of the ex post facto clause.

[00:09:41] Speaker 01:
In Daubert, the Supreme Court held, the challenge was to a death penalty received by the defendant.

[00:09:52] Speaker 01:
And he said, well, you couldn't have given me the death penalty on the date of my offense.

[00:09:59] Speaker 01:
because although there was a death penalty statute on that date.

[00:10:03] Speaker 01:
The Supreme Court since then held it unconstitutional.

[00:10:06] Speaker 01:
So he said that there was really no death penalty statute on the date.

[00:10:10] Speaker 01:
The Supreme Court said that's, quote, sophistry.

[00:10:14] Speaker 01:
And that statute's not removed for ex post facto purposes by the fact that we later declared unconstitutional.

[00:10:23] Speaker 01:
So your argument is you don't dispute that his original date was 2010.

[00:10:29] Speaker 01:
did better, your dispute is that the 2010 date was unlawful, right?

[00:10:36] Speaker 04:
We think that the 2010 date was unlawful, but it's unlawful in a different respect than the scenario you were just talking about.

[00:10:44] Speaker 04:
That case invalidated, just going from your description, a statute where the statute existed and it was invalidated.

[00:10:52] Speaker 04:
Here, what we have is this court takes an administrative interpretation of the statute and says,

[00:10:58] Speaker 04:
That interpretation you have has never been a law.

[00:11:02] Speaker 04:
So I think the appropriate comparator in that kind of case is... Well, that's not quite what they say.

[00:11:08] Speaker 01:
They said that was the law before.

[00:11:09] Speaker 01:
That was the way it was done before.

[00:11:12] Speaker 01:
And now, for the reasons we give in this opinion, we think it should be done this way.

[00:11:17] Speaker 01:
It's not so much Chapman Bay can be read as saying it's completely vague.

[00:11:22] Speaker 01:
Anything that happened before is vague.

[00:11:23] Speaker 01:
It certainly didn't address that question.

[00:11:25] Speaker 04:
I mean, we agree that it didn't address the question, but I think the baseline is it was interpreting what D.C.

[00:11:34] Speaker 04:
and U.S.

[00:11:35] Speaker 04:
Code law had always been.

[00:11:40] Speaker 01:
So, but even if you're right, it all depends on not only Chapman Bay, but also your interpretation of the statute.

[00:11:49] Speaker 01:
You can't win your ex post facto claim unless your interpretation of the statute is correct.

[00:11:58] Speaker 01:
So in that sense, it is a predicate.

[00:12:00] Speaker 04:
So I will answer that question in a second.

[00:12:02] Speaker 04:
I guess one other point about this discussion we've been having about the 2010 date is that's not an argument that government has ever made here.

[00:12:09] Speaker 04:
So I think it's not really in the case.

[00:12:12] Speaker 04:
On the predicate question,

[00:12:14] Speaker 04:
I think there's two different ways you could look at it.

[00:12:17] Speaker 04:
The way I think you should look at it is, the question you ask is, is there anything in pre-existing D.C.

[00:12:25] Speaker 04:
or federal law that authorized the commission to do what it did here and push back for its parole hearing?

[00:12:32] Speaker 04:
The answer to that question is no, and my first line answer is that should be enough.

[00:12:37] Speaker 04:
But if you disagree with me about that, then the question should be, well, at the bare minimum, when you have a rule that is contrary to the prior D.C.

[00:12:49] Speaker 04:
Code law for all the reasons to be given the brief, then there at least you have the predicate for an ex post facto violation.

[00:12:56] Speaker 04:
If I may, reserve the balance of my time.

[00:12:59] Speaker 01:
Well, before you reserve the balance of your time, are you giving up on your other claims regarding ex post facto?

[00:13:08] Speaker 01:
We're not giving them up.

[00:13:10] Speaker 01:
Your last one, your second one, you sort of concede the ambiguity of the memorandum upon which it relies, is that right?

[00:13:19] Speaker 01:
That's right.

[00:13:20] Speaker 01:
I mean, that argument... I'm asking you as amicus here.

[00:13:23] Speaker 01:
You're not counsel.

[00:13:24] Speaker 01:
You're amicus.

[00:13:26] Speaker 01:
You agree that with respect to the second one, there really isn't enough?

[00:13:30] Speaker 04:
I think it's ambiguous.

[00:13:35] Speaker 04:
We would say that on the summer judgment here, so you resolve ambiguity in Ford's favor.

[00:13:43] Speaker 04:
The other piece of that argument that I will concede in candor is that piece, unlike the sort of

[00:13:50] Speaker 04:
parole hearing day argument, I would concede, wasn't raised or addressed by the court or by Ford below.

[00:13:59] Speaker 04:
So that is a new argument.

[00:14:00] Speaker 04:
And we also maintain the argument about the grounds on which the commission denied Ford parole.

[00:14:08] Speaker 04:
But again, in candor, there's only a very narrow space you can try to fit that argument in after Bailey.

[00:14:14] Speaker 01:
So in terms of- That's the first of what you call your independent claims, is that what you mean?

[00:14:20] Speaker 01:
I'm getting lost on the numbers, but it sounded like you had two, what you called independent, different than the delay claims.

[00:14:26] Speaker 04:
That's right.

[00:14:26] Speaker 04:
So number one is about the set off date and using the same reasons for the set off and denying parole at the set off.

[00:14:33] Speaker 04:
And number two is using the three murder convictions as a predicate for unusually violent criminal conduct when the

[00:14:45] Speaker 01:
policy guidelines says you need five so those are the two other arguments and then there's the due process argument for both of those you think Bailey gives you trouble and at least the second one you don't think was

[00:14:59] Speaker 01:
not as clearly raised below as other ones.

[00:15:01] Speaker 04:
The set-off one, I think, wasn't as clearly raised below.

[00:15:04] Speaker 04:
The piece about the number of prior convictions is addressed in the district court's opinion, and I think it's fairly in the case.

[00:15:15] Speaker 03:
Can I ask you one question before you sit down?

[00:15:18] Speaker 01:
I think it's what you call the set off claim that's the same factors being used for both.

[00:15:24] Speaker 01:
Correct.

[00:15:25] Speaker 01:
Yeah.

[00:15:26] Speaker 01:
So there you say there is a new and different rule that was applied.

[00:15:32] Speaker 01:
but no citation as to what that new and different rule was.

[00:15:37] Speaker 01:
Do you have a citation for that?

[00:15:39] Speaker 04:
I think the new and different rule is just not to apply the principle from the memorandum about not using the same factors.

[00:15:48] Speaker 04:
We don't have a specific rule that was applied, and if you treat, this goes back to the Bailey question, if you treat that second part of Bailey as binding, then that is a problem for that argument, too.

[00:15:59] Speaker 01:
You try to distinguish that

[00:16:02] Speaker 01:
with respect to your three murders argument on the ground that Bailey wasn't a case where there was a clear current rule that was being, that if you applied it would apply, but there is no clear current rule even as to that one, as to the set-off claim, right?

[00:16:23] Speaker 01:
That's right.

[00:16:24] Speaker 01:
I agree with that.

[00:16:26] Speaker 03:
Back to your delay argument, your delay series of arguments.

[00:16:32] Speaker 03:
So in this kind of situation, if it were true that the regulation comes into effect and either it can't be applied retroactively to Ford or that it was in violation of the statutes to begin with, what's the relief in that sort of situation given that

[00:16:48] Speaker 03:
The question is, the concern is that hearings should have happened that didn't, can't undo that.

[00:16:53] Speaker 03:
So.

[00:16:54] Speaker 04:
Right, so I think the remedy here is actually pretty straightforward and has been done before.

[00:17:00] Speaker 04:
The commission, when it's had previous regulations invalidated as violating the ex post facto clause, has just gone back through each of the prior hearings and reconsidered them and sort of figured out what it would have done.

[00:17:13] Speaker 04:
had so but it's a lot of shoes I but that's right and we we site of those uh... I think pages forty nine fifty of our opening brief.

[00:17:23] Speaker 02:
Under the nineteen eighty-seven guidelines, is there really any practical limitation on the discretion that the board or the commission's exercise?

[00:17:35] Speaker 02:
We seem to think not in Bailey.

[00:17:38] Speaker 04:
So I think there's the answer under Bailey I think is

[00:17:43] Speaker 04:
there's very broad discretion.

[00:17:45] Speaker 04:
That doesn't really matter for our main ex post facto claim because the same is true for the U.S.

[00:17:54] Speaker 04:
sentencing guidelines.

[00:17:55] Speaker 04:
There's very broad discretion.

[00:17:56] Speaker 02:
That's a very different world in Pew than we have here, right?

[00:18:01] Speaker 02:
I mean, in the world in Pew, there's a safe harbor for a guideline that's within range.

[00:18:10] Speaker 02:
There's nothing like that here, right?

[00:18:12] Speaker 04:
So I think it's more alike than it is different, but just on this question of whether broad discretion gets rid of the ex post facto problem.

[00:18:24] Speaker 04:
I can barely answer that question, no.

[00:18:26] Speaker 04:
But on the specific point of

[00:18:29] Speaker 04:
the sort of similarities and differences at the district court level and the district court is not allowed to presume that in within guidelines sentence is reasonable so there is no safe harbor there the main obligations are two you know number one you've got to calculate the guidelines range correctly if you don't that's procedural error we have the same thing here if the commission doesn't get the good score right

[00:18:53] Speaker 04:
It goes back.

[00:18:54] Speaker 02:
But this isn't about the grid score, right?

[00:18:57] Speaker 02:
I mean, none of these, none of these parole hearings have been about the grid score.

[00:19:01] Speaker 02:
What they've been about is the fact that your client murdered three people over a three month period of time in three unrelated accidents.

[00:19:11] Speaker 02:
And that seems to, in every case,

[00:19:13] Speaker 02:
have swamped all other considerations.

[00:19:17] Speaker 02:
And it seems to me under Bailey that that's perfectly reasonable for a board to do that, a board or commission to do that.

[00:19:23] Speaker 02:
Isn't that what you're running up against at the end of the day?

[00:19:26] Speaker 04:
So we read the commission decisions differently.

[00:19:29] Speaker 04:
I think I agree with you, or rather, I guess what I would say about the commission's decisions is they're pretty terse.

[00:19:38] Speaker 04:
It's hard to get at what the reasoning is because they're kind of boilerplate and there's a few sentences.

[00:19:43] Speaker 04:
But I think the right way to read them is that the Commission is balancing the grid score against these factors, these murderers, that it thinks might warrant a departure.

[00:19:54] Speaker 04:
That, I think, flows from the presumption that the Board of Commission follow D.C.

[00:19:59] Speaker 04:
law, which is very clear that the grid score is an actuarial parole assessment that you have to use to assess someone's level of risk.

[00:20:08] Speaker 04:
And so absent something in the decisions of the contrary, that's the presumption this court should have too.

[00:20:14] Speaker 04:
And I think...

[00:20:16] Speaker 04:
imagining that the court is doing, or the commission is doing, what the government suggests in its briefing, just ignoring the grid scores in these departure cases, would render these decisions just irrational.

[00:20:28] Speaker 02:
I didn't mean to suggest they're ignoring the grid scores.

[00:20:31] Speaker 02:
It's just that there's another factor out there.

[00:20:34] Speaker 04:
That's the dangerousness.

[00:20:36] Speaker 04:
We agree that there's another factor.

[00:20:38] Speaker 04:
But if you think there's another factor that's being balanced against the grid score, then it matters tremendously getting that starting point right.

[00:20:45] Speaker 04:
And that is really our exposure to the clinic.

[00:20:49] Speaker 04:
Thank you, Johannes.

[00:20:58] Speaker 00:
Good morning.

[00:20:59] Speaker 00:
Peter Fathom Roth for the United States Parole Commission.

[00:21:01] Speaker 00:
This case, as Judge Griffith was just pointing out, it's really about whether

[00:21:10] Speaker 00:
Mr. Ford poses a risk and he does pose a risk in the view of the commissioners and in light of that risk, you know, regardless of whatever his grid score may have been, they have time and again reasonably rendered a conclusion that he cannot be paroled at that time.

[00:21:28] Speaker 00:
And the court also correctly pointed out that this appeal is presenting a host of issues that were not presented below.

[00:21:36] Speaker 03:
And in light of that... I don't understand the first argument you started with because it seems to me it just treats the grid as just entirely irrelevant.

[00:21:45] Speaker 03:
Why isn't it the case?

[00:21:47] Speaker 03:
Obviously the grid has some work to do, otherwise why have it?

[00:21:51] Speaker 03:
Right.

[00:21:52] Speaker 03:
And it at least has an anchoring effect in that it tells you this is a number that you start with.

[00:21:58] Speaker 03:
You may be absolutely right that you can depart from that number and the reasons that cause somebody to deny parole could cause them to deny parole again.

[00:22:07] Speaker 03:
But if you start from a different point, that seems like something of consequence.

[00:22:12] Speaker 03:
But it seems to me you're treating it as if it's of no consequence.

[00:22:18] Speaker 00:
I'm not saying it has no consequence.

[00:22:19] Speaker 00:
As each of the decisions of the Commission has noted,

[00:22:24] Speaker 00:
It's identifying what the grid score is, and then it says, but wait, there are these other things that sort of subsume the grid score, and that is the fact that the grid score does not adequately account for the fact that this gentleman did the three murders in the three month period.

[00:22:39] Speaker 03:
But it just seems to me, suppose the commission said explicitly, we start with a three.

[00:22:45] Speaker 03:
He's done some great things, but given that we start with a three, I can't give him a pearl.

[00:22:49] Speaker 03:
Had he started with a two, it might be different.

[00:22:51] Speaker 03:
Suppose they said that.

[00:22:52] Speaker 03:
Then we know to a moral certainty that where you start with matters, right?

[00:22:57] Speaker 00:
Right, and first of all, I would say that under Phillips, the question at this point is, is there harm today to Mr. Ford from the most recent

[00:23:14] Speaker 00:
parole hearing that's in the record.

[00:23:16] Speaker 00:
And I submit that there is not, because even at that time, the grid score indicated in 2012 that he should be paroled.

[00:23:23] Speaker 00:
There's also this 2016 one, which the court can or can't look at.

[00:23:27] Speaker 00:
But even at that time, he's been indicated for parole now since 2010.

[00:23:34] Speaker 00:
And time and again, regardless of that score, they have said, but wait, you're too dangerous, and the grid score doesn't adequately account for that.

[00:23:42] Speaker 01:
I haven't had a situation where he was at zero.

[00:23:44] Speaker 00:
No, that presumably if he's continuing to complete coursework will occur next time.

[00:23:48] Speaker 01:
So you have an argument that when he was a three, even if he would have been a two, it wouldn't have mattered because we know what they did when it was a two.

[00:24:01] Speaker 01:
And when he was a two, it wouldn't matter, because we already know what they did when he was a one.

[00:24:08] Speaker 01:
But we don't have the last point, which is what makes the case not moot, as far as I can tell.

[00:24:15] Speaker 01:
Because we don't know what would happen if it was a zero.

[00:24:18] Speaker 01:
We also don't know about the additional delay time and all that, right?

[00:24:23] Speaker 01:
I mean, the additional amount of time that he would have served.

[00:24:26] Speaker 00:
I submit that the analysis of the parole commission, each of the times, ever since 2010 that it's looked at Mr. Ford, all of those times,

[00:24:38] Speaker 00:
The score has already indicated he should be paroled.

[00:24:40] Speaker 00:
But they've never said, we're never going to let you out until the end.

[00:24:43] Speaker 00:
No, and I don't think they will say that.

[00:24:44] Speaker 00:
Every time they're going to look at him at that moment and say, will you pose a risk if paroled this year?

[00:24:52] Speaker 00:
And thus far, they have determined that he would pose a risk in each year.

[00:24:57] Speaker 00:
But I'm never asserting, the Parole Commission is not asserting that.

[00:25:01] Speaker 00:
He will never be suitable for parole.

[00:25:03] Speaker 00:
I think that is a overall assessment of Mr. Ford at that time.

[00:25:08] Speaker 00:
There may come a time when, frankly, he's old enough and not strong enough to pose the risk that they're afraid he would pose if paroled.

[00:25:16] Speaker 00:
But that's not the case yet, or at least it hasn't been in the various parole hearings that are currently before the court.

[00:25:22] Speaker 01:
What do you do about the Daniel case with respect to your argument that there's complete discretion and it doesn't matter?

[00:25:30] Speaker 01:
the questions that Judge Griffith was asking about to the extent to which the guidelines or the grid makes a difference.

[00:25:42] Speaker 00:
Again, the question isn't whether

[00:25:45] Speaker 00:
they are considered, they do, they are considered and they are a factor.

[00:25:48] Speaker 01:
Right, but in Daniel we said that notwithstanding the fact that the board could depart in unusual circumstances, which is the same in the 87 rules in that respect, the fact that the grid changed, that the grid was different than it otherwise would be, was enough for ex post facto.

[00:26:07] Speaker 01:
Why isn't that the case here?

[00:26:11] Speaker 00:
Because the actual

[00:26:14] Speaker 00:
factors that the Commission was assessing at every time for Mr. Ford on the facts of Mr. Ford.

[00:26:24] Speaker 00:
It has to be under Phillips an assessment as to this offender.

[00:26:28] Speaker 00:
He's always said.

[00:26:29] Speaker 01:
So you're not relying on the general fact.

[00:26:32] Speaker 01:
that the 87 guidelines give discretion.

[00:26:35] Speaker 01:
You're relying on specifically how they did it in this case.

[00:26:40] Speaker 00:
Right.

[00:26:40] Speaker 00:
And under Bailey, that's exactly the individualized inquiry that the commission is required to undertake.

[00:26:46] Speaker 01:
Can I ask about the statutory claim?

[00:26:49] Speaker 01:
Yes.

[00:26:51] Speaker 01:
So how many in Thomas, there were 200 people left in the circumstance.

[00:26:59] Speaker 01:
That was in 1992.

[00:27:00] Speaker 01:
Right.

[00:27:00] Speaker 01:
How many now?

[00:27:02] Speaker 00:
I don't have an exact number for the court, but my understanding is it's about a dozen.

[00:27:06] Speaker 01:
A dozen.

[00:27:07] Speaker 01:
So the arguments in the brief about how difficult this would be if there were the different rule in the Seventh Circuit than there is in this circuit, we're only talking about a dozen people.

[00:27:18] Speaker 01:
So this is not one of these cases where significant differences across the country really make much difference.

[00:27:25] Speaker 00:
Is that fair?

[00:27:28] Speaker 00:
I think any time a circuit split arises is of concern to the federal judiciary broadly, but in terms of the actual effect on the number of persons similarly situated to Mr. Ford, it is a relatively small number.

[00:27:41] Speaker 01:
And we don't know how many areas are being held in the Seventh Circuit, do you?

[00:27:45] Speaker 00:
No, we don't.

[00:27:45] Speaker 00:
There are some very large prisons in the Seventh Circuit, but I don't have that information for the court today.

[00:27:53] Speaker 01:
Is he held in Florence or something?

[00:27:56] Speaker 01:
I think he's not in Florida.

[00:27:58] Speaker 00:
I think he's at FCI Coleman.

[00:27:59] Speaker 00:
It's in the Certificate of Service at the back of the briefcase.

[00:28:03] Speaker 00:
Not in the Certificate of Service.

[00:28:04] Speaker 00:
Not to my knowledge.

[00:28:05] Speaker 00:
I haven't actually gone on to the website where you can type in his number and see where he is today.

[00:28:10] Speaker 01:
So what is your answer to their statutory claim?

[00:28:13] Speaker 01:
Do you agree that – it seemed like, at least in place, does the government agree that the D.C.

[00:28:22] Speaker 01:
parole requirements are supposed to apply to D.C.

[00:28:27] Speaker 00:
defendants?

[00:28:35] Speaker 00:
That is how we've looked at the issue, although Your Honor raised some very valid points.

[00:28:42] Speaker 01:
So if that is the case, then what's the explanation for having a different rule about the date of the hearing than the date of eligibility?

[00:28:54] Speaker 00:
I'm sorry, the date of eligibility.

[00:28:56] Speaker 00:
As the Seventh Circuit, I think, cogently explained in Thomas, I mean, there's work to be done to harmonize the federal and D.C.

[00:29:06] Speaker 00:
systems, and that's also a principle that arose in Chapman Bay.

[00:29:09] Speaker 01:
What's the work to be – once we have Chapman Bay, I'm wondering what the work to be done is.

[00:29:14] Speaker 01:
What is the work to be done?

[00:29:17] Speaker 01:
Is this just a policy question about which is better?

[00:29:20] Speaker 01:
I mean, the principal arguments that I understand from your brief is that we want to have the person not have the parole hearing until they're closer to the time.

[00:29:29] Speaker 01:
This is, I don't know, something more that we hold over their head.

[00:29:33] Speaker 01:
Otherwise, they'll think they're free, but of course they're not because they're still held on a federal charge.

[00:29:42] Speaker 01:
So that's a policy argument.

[00:29:43] Speaker 01:
That's not a textual argument at all.

[00:29:45] Speaker 00:
No, the truth is one could... Chapman Bay says what it says, but I think to some extent there are policy underpinnings for both Chapman Bay and Thomas.

[00:29:59] Speaker 00:
Do you read Chapman Bay to say what the law always was?

[00:30:03] Speaker 00:
I think it was an evolution, and for ex post facto purposes, it is a new articulation of what the law would be prospectively from that time.

[00:30:15] Speaker 00:
But when you're doing an ex post facto analysis, you're looking at what, frankly, the law was at the time of the offense.

[00:30:23] Speaker 03:
And did you, have you ever raised this argument that the pre-Chapman, that it would be a windfall to give for the benefit of

[00:30:32] Speaker 03:
the post-Chattanooga view of the world?

[00:30:35] Speaker 00:
We have not, although we are happy to adopt the court's suggestion.

[00:30:39] Speaker 01:
In this case, yeah.

[00:30:41] Speaker 01:
I have some suggestions for Mr. Schauff.

[00:30:43] Speaker 01:
He may want to... If the court has nothing further.

[00:30:50] Speaker 00:
Thank you.

[00:31:02] Speaker 04:
So there's four points I'd like to make.

[00:31:04] Speaker 04:
The first one is a very minor one.

[00:31:06] Speaker 04:
Chief Judge Golland, on your question of whether the government agrees with us that the commission has to follow DC law, another place to look for that is JA56, their answer where they can see that they have to do this.

[00:31:18] Speaker 04:
Getting into the broader ex post facto issues.

[00:31:22] Speaker 04:
Again, Chief Judge Garland, I think you're exactly right that the key point here is Ford has never received the hearing that he is entitled to under the applicable D.C.

[00:31:32] Speaker 04:
law.

[00:31:32] Speaker 04:
He's never had a hearing where his grid score has reflected all of the rehabilitation he's put in since he's been incarcerated.

[00:31:41] Speaker 01:
Judge Srinivasan, you asked... Is that true as to... I understand he doesn't get the full zero yet, but at each second stage, that is,

[00:31:52] Speaker 01:
after each set off.

[00:31:53] Speaker 01:
Hasn't he then at that point had that benefit?

[00:31:56] Speaker 01:
In the example I'm trying to think of as three when it should have been a two, two when it should have been a one, one when it should have been a zero.

[00:32:06] Speaker 01:
By the time he gets the one

[00:32:07] Speaker 04:
doesn't he get all the benefit well so the grid score goes down to zero uh so before he's here i appreciate the last point the zero point but at one hasn't he had all the benefit till then he hasn't had it at the at the time yeah that's correct yeah and you know i i don't think the hearing he had in

[00:32:27] Speaker 04:
2016 is a light for light substitute with the hearing he should have had in 2012, and he should have come to the commission with both this favorable hearing officer recommendation he received and also a lower grid score, which I think should have either been zero or one, kind of depending on how you do the math about what would have happened had the hearing started at the right time.

[00:32:49] Speaker 01:
Instead, in 20... Yeah, but if by the time he gets to one, he's been in there longer, he's been able to show even more rehabilitation, et cetera,

[00:32:56] Speaker 01:
Isn't it speculative, really speculative to think that when he was in there for a shorter time, if he had gotten the one, it would have made a difference?

[00:33:06] Speaker 04:
You know, so I think when we're looking at these discretionary decisions, you should give some leeway for a broad range of facts potentially mattering.

[00:33:17] Speaker 04:
I think that's sort of in the nature of this discretionary world we are in.

[00:33:22] Speaker 04:
I mean, it's certainly true that nothing happened between 2012 and 2016 that made him

[00:33:26] Speaker 04:
a worse risk.

[00:33:29] Speaker 04:
Judge Srinivasan, you asked the hypothetical, what if it were clear that the commission was looking at the grid score and taking that into account?

[00:33:38] Speaker 04:
I think what I would say about that is, number one, the commission has never said that isn't what it's doing, and the grid score just has to matter.

[00:33:46] Speaker 04:
I mean, it has to be true in the general case that someone with a grid score

[00:33:50] Speaker 04:
of three, it's going to be easier to depart than someone with a grid score of two or one.

[00:33:55] Speaker 04:
And then we can talk about Ford himself, the question of whether he can show a sufficient or significant risk as applied to his case.

[00:34:03] Speaker 04:
And again, the commission has never said it's simply ignoring the grid score for Ford.

[00:34:09] Speaker 04:
And indeed, there's lots of facts to make you think that if what you're looking for is an incremental difference that the grid score can make, he's the kind of person for whom

[00:34:18] Speaker 04:
this matters.

[00:34:20] Speaker 04:
I mean, my friend on the other side talked about, well, at some point he might be too old to pose a risk.

[00:34:24] Speaker 04:
He's 70 years old nearly, has been in prison for 38 years, never had any violent conduct in prison, and has done a really exemplary job at rehabilitation for all the reasons we say in our brief.

[00:34:36] Speaker 04:
And yet his grid score

[00:34:39] Speaker 04:
has dropped every time he's come before the Commission, but still does not reflect the true degree of risk that he represents under District of Columbia law.

[00:34:51] Speaker 01:
So if we give the remedy you proposed, which is to recalculate everything, and they come to the same result, then what would your argument be?

[00:35:01] Speaker 04:
I mean, if they come to the same results after calculating the grid score properly, then at least this first argument about the DC code here in time, he's had his remedy.

[00:35:12] Speaker 01:
And there wouldn't, there also I think it wouldn't be an ex post facto argument.

[00:35:16] Speaker 01:
That's right, because he would- There would just be an argument that they misapplied and he would, I don't know, appeal administratively his

[00:35:23] Speaker 04:
That's right.

[00:35:25] Speaker 04:
There's, I think, administrative appeals of these D.C.

[00:35:27] Speaker 04:
Code decisions.

[00:35:28] Speaker 04:
There's not a judicial appeal.

[00:35:29] Speaker 04:
But there's no way, I think, if they did that, that he could show an ex post facto violation, because he would receive the equivalent of what he should have gotten.

[00:35:36] Speaker 04:
And that's what he's asking for here.

[00:35:40] Speaker 01:
There's nothing further questions.

[00:35:42] Speaker 01:
Thank you very much.

[00:35:43] Speaker 01:
We'll take the matter under submission.

[00:35:44] Speaker 01:
Mr. Schauff, you undertook this at the request of the court, and we're grateful for your assistance.

[00:35:49] Speaker 01:
Thank you, Your Honor.