Prisoner Alleged Violation of Ex Post Facto Clause by the Board of Probation and Parole
In Cimaszewski v. Pennsylvania Board of Probation and Parole, 582 Pa. 27, 868 A.2d 416 (2005), a case where an inmate alleged that the Board violated the ex post facto clause of the United States Constitution, the Supreme Court recently determined:
It is now clear that retroactive changes in the laws governing parole may violate the ex post facto clause. Morales, 514 U.S. 499 at 509, 131 L. Ed. 2d 588, 115 S. Ct. 1597 (holding that a change in parole law violates the ex post facto clause if the change in the law created a "sufficient risk of increasing the measure of punishment attached to the covered crimes"); Garner, 529 U.S. 244 at 256, 146 L. Ed. 2d 236, 120 S. Ct. 1362 (holding that a change in parole rules violates the ex post facto clause if the amended rule creates a significant risk of prolonging an inmate's incarceration).
The controlling inquiry in determining if an ex post facto violation has occurred is whether retroactive application of the change in the law "creates a significant risk of prolonging Appellant's incarceration." Id. at, 868 A.2d at 426-427.
The Supreme Court went on to explain what an inmate needed to do to prove that a violation had occurred:
Speculative and attenuated possibilities of increasing punishment, however, do not suffice.
Instead, this fact-intensive inquiry must be conducted on an individual basis....
Thus, to state an actionable claim, an inmate must present some facts showing that the result of this change in policy, by its own terms, demonstrates a significant risk of prolonging the inmate's term of incarceration, or that it negatively impacts the chance the inmate has to be released on parole. See Garner; Morales.
Preliminarily, the prisoner must first plead that he can provide the requisite evidence that he faces a significant risk of an increase in punishment by application of the 1996 amendment, specifically, that under the pre-1996 Parole Act, the Board would likely have paroled the inmate.
Without first pleading that such evidence exists, there is no basis for providing a prisoner with the opportunity for an evidentiary proceeding, and, without such a hearing, no basis for affording relief. Id. at, 868 A.2d at 427.