in this case the new jersey state prisoner named wilfred lee holmes i'd like to reserve four minutes for rebuttal then to this or the constitutional challenge to new jersey's retroactive application of certain changes to its parole law in the garner case the supreme court said it's unconstitutional for a state to retroactively apply a change to its pro law if the change creates a sufficient risk of increasing the measure of punishments by keeping the inmate in prison longer consider old information and with that well that's that so so i mean that that's a theoretical argument the notion that yes they can consider more information thus there's a significant risk i believe that garner uses the phrase applied analysis and so are you bringing on behalf of your client in as applied challenge to look at his facts and circumstances and the likelihood for risk assessment purposes client's individual case looking to all the facts including the facts about how the pro laws have been applied to other people and in similar situations there is significant risk that this changed the outcome and i think it clearly did  well wait wait wait i read that parole board decision entirely different in my view what they did is they said you've committed these crimes in seventy two and seventy three we want to know what your current attitudes  these are be your prior crunk and so they're looking at his current state they say he you haven't gained any insight you don't demonstrate remorse you haven't accepted responsibility we're looking at your current his current status based on past problems you don't think the new nine hundred and ninety seven statute prohibits them from looking back at his current attitudes on past crimes do you i think that they are permitted to ask him about his his current attitude ask him you know if he if he's basically turned over a new leaf and that is part of what they did but if you look at the reasons that they gave for denying for all it was not merely you lack insight into your own times the st several reasons are things like you committed a crime you committed several crimes you committed crimes previously when you were out on parole for even earlier crimes and those are things that i think both sides agree could not have been considered under the three hundred and ninety seven law and so this isn't the real question that whether each of the reasons given by the parole board is sufficient on its own whether this is kind of an accumulation of reasons that only has persuasive value in the aggregate i think if he gets they do give reasons that are based attitudes those are adequate on their own and a change in law has no bearing but if those are just one of the many factors that go into the terminations maybe you could say well you know maybe maybe the other factors if you subtract those we know i think that's basically right you have to compare the the old information and the new information but the question remember is only if there is a sufficient or as you say significant risk that considering the old information that affected the outcome of this for all hearing so if the parole board said we have pages six through ten of our analysis insufficient problem resolution which is basically an analysis of new information and they said we find that insufficient problem resolution is an adequate insufficient basis for denying parole to mr holmes then then then as applied to your client this change in law would have no right well i think that would be to say that but if they break they have to correct they don't say that and that's the st thing i should have said i think that would be a tricky question because the question for the federal court would be met and there's a significant risk that the other things affected the outcome but i suppose if they said we want to be absolutely clear this old information is not affecting our outcome we promise you wanted more to go it's an independent reason it's an independent reason for we have three independent reasons and if we can't do those we've still got this look at one of the considerations well i guess i just don't know how we would ask what it would be a sufficient reason and certainly in theory you could imagine a pro board denying parole based on that reason alone but that's not what happened here and you know we can't read their minds i think if you look at their opinion of the reasons they gave is it clear that they would have reached a different result if they hadn't consider the old information i think well that would be that would be an interesting remedy i mean the remedy that we're seeking is for you to send him back for the parole board to consider him under the old standard meaning without looking at this old information i guess that that comes to largely the same thing as telling them tell us basically tell us whether you tell us what you would do if you just applied the pre ninety seven law i mean i  framed that way and that there would not be you know it's likely i agree that that would be a much harder case because as i say ultimately the only remedy we're asking for is an order telling them to consider his parole application  under the the old version of the law and and i think you know it comes to becomes to much the same thing as saying looking only at new information what is your decision in this case under the old version pro se by my client is a punitive class action there hasn't been any decision by the district court about whether to certify a class and was just dismissed it under twelve p sec so for the purposes of this appeal i think it  think yes i mean i think that public safety is ultimately what the new jersey law is is getting at when it says that if you find that this person there's a substantial likelihood that they would commit incomplete information here and part of what mr holmes is trying to do through discovery before the case was dismissed was to get more complete information so the state says some people have been paroled under this new law it's not impossible to be paroled we don't know how many people have been denied parole there are very strong reasons even without discovery to believe that it's much harder to get parole now than it used to be because we have the tranche you know taste which explains that more than ninety percent of  people who are on death row for murder when the state abolished the death penalty got out on parole in twenty years or less and all of those people got out after less time than mr holmes has been in prison so far so so it does look dollars i mean to me i mean at one level these are aggregate statistics and garner says we're looking at the individual circumstances of an as applied test in so in aggregate those maybe trend lines but but it is not a level we're supposed to look at an individual in the supreme court said this in greenhills in a quoted it quoted a law review article but it said basically want to speaking of the parole decision it says it turns primary emphasis of a parole determination as explained by the supreme court is what would an inmate it is and what that you make will become in this parole board did that exact analysis and that's a primary analysis under the supreme court how is there a significant risk that your client would get a different outcome or have an increase in congress well i think that the the main argument that there's a significant risk it is probably aren't focused on tis old information then it cannot have considered before and it reached an outcome in this case which is that mr holmes has been in prison for for decades that is very hard to square with the outcomes that were reached for more or less similarly situated people people who were sentenced to death for their murders prior to one thousand nine hundred and seven changed and so it of  course ultimately the question is about my client but i i certainly think that the experience of other similarly situated people is relevant especially when it's there's such a strong trend that it seems to have been so easy to get out in twenty years or less before the ninety seven changed and now it's it's hard to get out at all and even the people that the state points to who have been let out that was after thirty or forty years just having a  into consideration and determining whether someone had there was a substantial likelihood that they would refund why is there any increase in risk of prolonged detention  twelve well whether they could have chosen to do so and not to talk about the old information that would have been off limits before ninety seven and i guess that's just a question of state law i don't know whether a well i don't know whether it's the same type of assessment i we haven't had discovery i haven't seen the instruments that's being referred to nor have i seen the the psychological assessments from two thousand and eight and so forth  so that the st question would be whether in general something about this objective risk assessment basically puts a thumb on the scale against for all relative to what existed before the nd would be if it poses the same issue that we've been talking about all morning which is that it incorporates all the information that it basically says what is this guy committed crimes before as he committed murder as you committed multiple crimes and so on and we're going to put a lot of points on that and of course if the board of adopts a point system that puts a lot of points on you know old information and denies girl if you have a lot of points in that that would be a way of considering that old information rich was not permissible before nine hundred and ninety seven and without regard to nature i don't know what i don't know what the i don't know whether they were or not but looking to the law that required any denial to be based on new protected liberty interest if that has a mandatory parole on it as a law that doesn't under certain circumstances basically entitles a prisoner to parole rather than giving the board free rein to you to deny pro mean in i get i get it one level what with the grievances i want to know what government governmental action is the problem is it the nine hundred and ninety seven statute were is it the way that the board conducts its here because i could imagine that the board regardless of what the ninety seven statute were kind of conduct a hearing in a way that would have met all of your client's procedural needs or or is it do you think that's that they didn't even attempt to apply the law that mr holmes was entitle to have them apply but that's it that's really a subsidy and due process challenge right well i think that the  challenge is to their decision about what not to apply and it's not i'm not arguing that he has a substantive right to be released from prison but only that he has a procedural right to have the the hearing done over applying kind of repricing your ex post facto due process i agree that the two constitutional provisions in this case we are targeting the same violation the same facts i mean we typically don't allow  process play and when there is no there are more explicit constitutional guarantee on point me we typically don't let someone sue for something to process in takings we say you got to takings clause so forget sub process we typically don't let people use you know again that there's a bunch of examples like writes me though that less you're bringing a math field to claim you're basically just double dipping into the ex post facto cla reprise it as a sub is a due process claim whether it's substantive or perceived and that's typically not what's done i agree that there's not any need to look at the due process claim and then the case can be  decided based on the ex post facto claim that they are targeting certain interests i don't think that sort of overlap is you know not allowed i think that i can think of supreme court cases where the court said  law restricted or inside you in making that determination you're only looking at new evidence basically you're looking at has this guy shown himself to be dangerous well he's been in prison since his previous parole hearing he continues to minimize or downplay your violent offense continues to put forth a presentation that you're either unable or unwilling to attempt it but insight into your criminal personality characters in they make all those findings it would be new information but they also started to just relied on old information right why don't all do right in the news pretty strong well the onus is much stronger i mean it's there and there are these lengthy graphic descriptions of the  what most of the opinion of the parole board began were just asking whether there's a significant risk to considering that having those things to the next change is the result i think it's very hard to say that they didn't and certainly that we're asking this court to affirm the order of the district court properly dismissing appellants complaint in its entirety for several reasons the removal of the word new from the early statute was a procedural modification that did not violate the  trying to although it has become clear today that this is not a procedural due process claim we did argue that in our brief this is hey you focus a lot of your brief on it substantive i distinction but we have corella in the picture where the supreme court and refused to draw that line and make a distinction between procedural protections and and and subject protections what why why isn't that the end of the procedural argument i believe the appellant's argument here is as i understand it now is that the you process issue in ex post facto claim where i focus a lot of your argument on the idea that this is a procedural change but the supreme court has told us that what we should be looking into is whether there has been that the border lock in on this new law or procedure even must show that he was personally disadvantaged by it so turning to that here the board's decision primarily focused on new information or information that had been developed since cracker hearing information that could have been considered prior to the one thousand nine hundred and ninety seven amendments so this included the mental health evaluations that came to the conclusion that mr holmes had a tendency to indicated a high risk of reset of the zone within two years of release and the panel interview which indicated insufficient problem resolution lacking insight into his criminal behavior of his own conduct including blaming his victims multiple victims for his murders if you're so regardless of the one thousand nine hundred and ninety seven amendments there was a plethora of indicators that mr holmes was not an appropriate candidate for and if we have we're working on a precedent like nick and thomas and richardson and the the tell us when when there's even a change in weight and one of the factors that the board is considering  which is why we have on this record the the stated purpose of the commission today and large discretion of the board with the ninety seven amendment and that the new information was a significant and inappropriate richardson which truly is the best example in macon's thomas the court did this court did find that there was an ex post facto violation in that particular case public safety  most amendment required to be considered st and foremost which we don't have here in that case and friends would be drawn and was by the court appliques safety had been given unto weight so in that case on the opposite side there was the department of correction directions official recommendation that is released that comply with institutional programs like a logical about you ations that recommended his really department of corrections voting he indicated no concert occasions or anything indicating that he should not be paroled so in that he's an inference could be drawn under that particular set of facts  he would have been granted parole under the prior guidelines in fact he had been denied parole before before and after the amendment for essentially the same reasons and not just very similar to what we have with mr holmes here indicators in macon psalmist that demonstrated that that individual had been personally disadvantaged by the change in the law so i won't repeat them all again but the department of corrections recommended his release the nd that psychological evaluations recommended his release here i mean we have quite the opposite we have psychological recommendations that are absolutely not recommending release on l s i are to indicate a high risk of recidivism you know we have eat the panel s then how do we know that applying the printer eighty seven dollars law that the board would still have denied ok the study commission is an overstatement but it but an investor hopes for to killer case again there's there's so many country indicators or stand it that there there are these country be but isn't there a requirement of some at least discovery on that point to see if in fact the absence of an infraction i would be sufficient to grant parole even at the pleading states mr holmes was unable to hurdle that wrong as runners have said this is considered on a case by case basis and this is not a case for example like brown versus williamson where the prisoner clearly demonstrate that at the change in the scoring system at change the base guide average for him so he was clearly able to demonstrate i think it was by a range of nine to twelve years that he had personally been disadvantaged by the change in that case again this is more like richardson so richardson could not show could not make that showing beyond speculation to hurdle the nd prong and that's what we with mr holmes here he has a discovery here make make all the difference i mean if you for example that administrative could provision was followed in successive parole hearings then when you have a much stronger argument i had the really have been no change and abuse types of things could have been considered and were considered previously on the other hand of discovery revealed that the commission's  report was accurate and that the board approached cases pre ninety seven dollars looking to intervening infractions as dispositive in the a in their absence change in the law i'm so whether the study commission overseen this or not we submit that it did again it is not binding on what the legislature did here so let me ask this question is it relevant at all how the neutral procedural change but let me press you on that it seems that it goes to the substance of the evidence that can come in so it's really really weird to say it's a procedural change whole new in it seems that that distinction that you're drawing putting aside judge crosses earlier question of whether it's even in place after carmel howard i'm missing procedural changes and perhaps using that analysis i can be more informative in answering your question but for example in that case the court didn't distinguish between ad change in the law that changed the suitability so they are they said you know changing the suitability standard that does change the some santa criteria and they distinguish that from this particular amendment where we're new was very moved and the board was able to expand the no legal principle that animates in this space they were just using that as a way of saying hey risk is lower in in in that case becomes of that change inaccurate i wouldn't say conceding the board did rely on the new amended statute so there is obviously in the court's decision reference to factors other than things that could have been said it could have been and twenty two of evaluation again concluded that he had a high risk of future violence l s a are indicated he had a high risk of recidivism and the panel interview which is really striking indicated that after thirty eight years of being incarcerated he still lames his multiple victims for his murderous behavior but he has not exhibited any signs of violence row in custody in terms of to the change in the law the type of new information that the board could consider it was no limit on the type of new information so for example the court routinely relied on psychological evaluations and assessments to inform its decision and the l s i art was administered by the treating psychologists in this case so it's simply another tool at their disposal there's no particular weight to be given to that risk assessment in some instances it could even be helpful to a parolee in this case it was not it was completely consistent with all of the other psychological tests that were done and again mr holmes failed to demonstrate that offenses could not be considered under the ninety seven dollars law would it still be permissible in your view going forward for the board to rely on  this risk assessment if the risk assessment itself takes into account that the distinction between the type of information not old versus new it is is sort of strange in the sense that nd logical evaluations have always been out now is that been considered by the board pre and post you and those psychological and i can do in necessarily included information about the inmate that is in terms of time you know or not old so we did did persons between psychological evaluations to show things like the inmate in that case now denied pedophile like fantasies that he had not tonight in the past and he was lying to a value waiters are trying to affirming that the hosts a nine hundred and ninety seven amendment had the effect of just of disadvantaging all murderers are similarly situated people so we did provide some anecdotal evidence to the court to show that that is not the case that it is not not as if the nine thousand and ninety seven amendment somehow created a bar to parole for individuals who have been convicted of murder but again i mean even it anecdotal evidence is not have in in the context of parole the supreme court has said what that means if it is disadvantage to be the prisoner if it's created a significant risk of keeping him in prison longer so i think that that's the only legal question in this case the only legal standard that needs to be applied the state also noted that nothing in the law it's expressly requires the parole board to consider this old information that might be true but and they express requirement it's not necessary to create a significant risk before ninety seven they were allowed to consider the old information now they are allowed to consider it they in fact  consider it in this case the state acknowledges that the parole board gave what the state refers to is not new reasons wanted to night parole i think i think that that's more than enough to show the significant for the assertion that he you know doesn't show remorse and so on but the objective fact is that he has been infraction free since one thousand nine hundred and five so twenty five years that's longer than and even overwhelming majority of the death row prisoners had to spend in prison before they were they were paroles and he's been completely infraction free living and present and he's he's close to seventy years old you i don't doubt that that is a factor that the opprobrium take into account that i'm just saying i i don't know but that's a subjective statement by the board i don't know what the basis for it is and to the extent that the state is trying to paint my client as this person who is currently an awful evil individual who sure to commit more crimes if you've released at the age of sixty nine and i think that the fact that he's been infraction free for a quarter of a can come in that don't change and the the standard that was ultimately being applied and so why shouldn't why should that be our focus intern in terms of what is ten of our brief the parole board saw that it was applying the old substantial likelihood language and so there's there's no challenge there there's no retroactivity there but i think so we have to ignore that because that's not part of what's being challenged but it's being challenged what is applied retroactively is the deletion of the word no and again the only the only legal question is whether that change  created a significant risk of keeping mr holmes in prison longer and i think based on the experience of the people in the in the trentino case and based on the opinion that the board wrote in this case really focusing factual history we give this no weight and then it is they detail the factual procedural history they just basically cut in paste his prior crimes or what just said this is just for background just as a biographical so you know sometimes decisions come with an actual proof this is just the factual history now we do our analysis and if they just change the headings on their report to change the st six pages to factual history or rennes no weight given and then they change the last four pages to analysis programs all the way and if they were to do that that's not next post facto problem it would just say look at that on that record we can see that there's not a significant risk that the change in standard altered the outcome that would be a much harder question i mean in that case the plaintiff would have to ask  to look behind the language that a state agency used and say come on obviously this is influenced and so one can see that there would be no claim there of it that would be a real uphill battle for the plaintiff in a case like well certainly that would be a disposition in our favor but i would go further than that i think in this case the arguments that we've submitted already show as a matter of law that there was a significant arrest and  questions that you agreed we should look at this as an as applied challenge are you saying i in fact you are continuing to argue that as a matter of law the amend of the opinion rendered by the problem or it that this all information played enough of a roll to create a significant risk change the result so let me just tease that out because because normally this is how alleged a significant risk of increased punishment so normally you get you get to two watered down of the ultimate goal plausible then significant risk but here w you seem to be saying is the face of the parole board decision is dispositive one way or not and so if you read it and is creating a significant risk then then we clearly possibly legit and if you read it is not creating a significant risk that we don't watch it seems that by putting the focus on that one decision we've kind of graduated up almost into a pure significant risk analysis instead of letting possibility do one well i think that we should prevail on a pure significant risk analysis looking not just at the problems of opinion but also and things like trentino which i think makes clear that there's been a sea change in the veil ability of parole for our prisoners who are similarly situated to to my client before the district court then would you be seeking a judgment on the pleadings well i don't so i was only appointed to to argue the appeal whether it would be a judgment on the pleadings or a summary judgment motion a my point i suppose the point i'm making is there are no facts in dispute that matter to the resolution of this case as a matter of law in other words this is not a case that comes down to  if the court looks at the information that is before the court now it should say yes there's a significant risk that the application of this new law to mr holmes had changed the result in this case and  that would be that would be answering the one open question that exists in the garrets because there's not a dispute about whether this is actually the parole board's opinion for example but this is really an area dispute as to how the i was applied in successive hearings if i don't think that there's a dispute about that among the party and the state says it page twenty eight of its brief that the board noted certain new not a new factor such as holmes is a criminal record in that it became  increasingly more serious elsewhere in their brief page three of their brief they say before ninety seven dollars the board only looked at new information since a prior hearing under the amended version with the word new deleted the board was authorized to consider an inmate's entire record when determining parole eligibility rather than being restricted to new information and the need to study commission statements are to the same effect so i think that the parties  seems to me that what you're saying is basically we've got a motion to dismiss  is a summary judgment motion and if you prevail on appeal now and this goes back to the district court then kind of by theone almost then judgment would have to be entered in favor of your client in some way you might understand it kind of the arc of your case because if you win because it was improperly dismissed because there is a significant risk of increased punishment then it seems that you've  won everything in terms of the district court we just have to interject with your favor if we make that determination right well i think that that's right because the case comes down to a single question which is a question of law and there is more than enough before the court for the court to answer it under that significant risk standard and that may be atypical but i think that there are certainly plenty of cases where  lawsuit is filed against government actors and the government moves to dismiss and basically says yeah we did this but it's legal and if the court says no it wasn't it's not like you know it's not legal to arrest someone for burning the american flag and that's the end of the case because that case is in a dispute about did he really bring the americans back did we really arrest him the dispute comes down to the legal question and so that that appeal and the motion those in fact would need to be reheard by the parole board well i don't know if that is i don't know what the number of people think that was the number that they said in one thousand nine hundred and seven would be affected i don't know how many of those people are still in prison and trying to get may also be the case that if you have a situation where you know someone and someone just killed another prisoner and the parole board says well we're not letting you out because you just killed another prisoner that's new information and that would be that would be kosher under the previous law as well so certainly you can imagine cases where it's it's very obvious that there is no significant risk that the result has changed because the individual wouldn't be getting out under any version of the law