are contending that the district court erred in two way firstly on the issue of standing in the terminating that one of the plaintiffs in the case the pennsylvania prison society had standing to pursue the claims related to the ex post facto cause of the constitution the specific claim of course is that the one thousand nine hundred seven amendments the pennsylvania constitution which changed the way the boy votes in cases of commutation by lifers  from changing a post from a majority to way to a a unanimous vote in order to obtain a recommendation to the governor violates the ex post facto ca the district court ruled in favor has been through the process and has had a negative effect of the new will that they received a majority but not a smith and thompson is sort of does but except that they had a period of time in which to redress an  those two individuals no your honor i don't think it does he made a determination they cannot participate and in that he made that determination by his ruling on their application to intervene for commutation of a whole bunch of different types of individuals interest in the prisons that sort of thing advocacy charitable work any number of different things and it's not clear the membership of the away the opportunity or your sick significantly diminishing the opportunity to receive commutation even though it has a separate step of course is the governor's approval because i think you're right but the fact that it doesn't affect your several important things to recognize first of all mr thompson pretty much immediately after this court of the district court's ruling or yes after the district court's ruling in two thousand and six wrote the said judge what about me and i think under the consideration of one how a court looks at pro se applications i think it's fair for the court to understand that this was mr thompson's first effort to get his issues before judge computer oh and judge computer said no mr thomson you're not a party to my case by that point we were on appeal and it was really very little we could do up here then the court this quote issued its decision in two thousand and seven and that's important for this reason that the time period in looking at whether an intervention is timely this court in the mountain top case said you have to look at the clock starts to run when the intervenor knew or should have known that the existing parties were not protecting his rights and it wasn't until the pence the court questioned the standing of the existing plaintiffs that mr thompson had any reason to believe that the existing case would not be sufficient to adjudicate whether or not these amendments were valid or not so he immediately took action and the judge again said no we brought it up the very first thing we did after re man was have a conference before judge computer oh it's off the record but judge computer goes order which follows immediately after that conference says there will be no interventions at this point so i think it's fair to i can tell you i was there i argued that we should be allowed to follow a motion to intervene ju computer said no we reiterated that request and several times during the case as it proceeded in the district court explicitly made it right before the evidence you are hearing he said no again and then it by the conclusion of the  comps and smith that is correct i was addressing the statute of limitations objection that the other side had made and first and second mr smith has a pending application and there's testimony to that in the record mr thompson the only reason he hasn't filed is that there was some glitch with his social security number mr hollis has an application pending so that everyone in here hollis whose prior was he is one in had one for the one yes vote and it went to the governor then he the next time he applied he had one in favor for or against and the record will reflect that the principal reason before for that is because he didn't have the support of the department of testimony about who mr hollis is and what he's done in prison i think you'll find that he comports perfectly with the with the records of the individuals who had been previously  by the board the point about the very nature of the membership of the pennsylvania prison is a side he is completely irrelevant all over the organization needs for standing is to have one person that ha s a concrete legitimate article three interest in the case i mean you look at these cases that have been involved the sierra club and the cases in front of the supreme court  all they talk about is one individual the parents involved case one person one parent from seattle one student from seattle one student from jefferson county that was enough to make parents involved  to give them standing in the case it isn't part of the problem here also that we're being asked to speculate as to whether how how successful these persons would be prior to two ninety seven of those who achieved a recommendation of commutation what was the percentage in the last five ten years before ninety seven of those who actually got commutations i don't have the answer to that off the top of my head it depends upon what year you look at why when i look at a scene like life changed a lot after ninety four because of the incident that happened in ninety four that's correct all the absolutely correct but let's say prior to that it was so after ninety four or privately for look like there was a decent chance post ninety four ninety seven it looked like that there was a real turning off of the spec if you will well i think there were many fewer there were many fewer positive recommendations forwarded by the pardons board at that at beginning at that point time so i don't it's it's hard there's such a small universe that you can't draw too many inferences based on percentages based on such a small universe i think if you look back farther you'll find that  in many many instances in many years over many peer over some extended period of time governors generally well over fifty percent granted or agreed with the wreck positive recommendation of the board and i believe those statistics are in the record and i could provide them to you if you'd like but that's what the record would reflect well on the merits if you want to turn to that to of the power of the pardon board to make recommendations and the power of the governor to deny a commutation even if it were committed did you find anything any reference to pardon mickens well mr mr thomas was did receive a commutation in a senate but that's not a limiter to that the decision starts off the first census appeal has its genesis in the material modification of parole laws by  finding any case where a decision by a governor in pennsylvania since by pardons were board was denied that any court has the judicial power to consider that certainly will do in parole and that's what becomes talks about you know of any case where a court has held that it has jurisdiction to consider the a governor's denial yes oh absolutely not and we're not challenging that the governor has the right to deny a commutation for whatever reason is can you challenge the failure to grant power under pennsylvania constitution is given to a pardon board and the governor is not true now the right commutation right is given to the governor upon recommendation by the board of pardons and the governor can reject the governor can absolutely reject her yes aren't you asking us to review the commutation power here and do we have the jurisdiction to do so what we're asking is for the court to review the change in the way the commutation board operates and the commutation board is the the by the way and the only pathway to the governor is through the commutation board if there's no if there's no pathway through the commutation board then there's nothing for the governor to do he sits there and he gets nothing so what we're saying is that by making it more difficult to get to the governor that is that cannot be done the way this was done without violating the ex post facto law when applied to the individuals convicted prior to the change the importance of the the the importance of the action of the commutation board cannot be overstated if there wasn't a need for a commutation board it wouldn't be in shrine in the pennsylvania constitution it is in the institution of the pardons board is in shrine in the pennsylvania constitution it is a like i said a pathway to the governor a straining to the governor any any you can describe it in and many different kinds of ways you know of any case where the commutation or the court case in the fatah which we cited below and there's also some litigation in our wisconsin i believe that's ongoing right now where that is being  challenged i suggest to you that a pennsylvania is a unique state for a for a lot of different reasons it's got one of the largest lifer populations in the state in the country it's got one of the it's one of the only states in the country were first and second degree murder conviction results and life without parole it's there are a whole bunch of reasons why pennsylvania is is why this is where this litigation has occurred this is also a state that has the most restrictive now under since the one thousand nine hundred seventy rules the most restrictive commutation system in the country it's got a board of five people who have to be unanimous two of the members of the board are elected public officials and we know from one thousand nine hundred ninety four ninety ninety five example what happens when a public official what can happen when a public official recommends commutation of a life or it's got a crime victim on the on the board this just does not exist anywhere else in the country these kinds of restrictive narrow openings for commutation doesn't exist anywhere and i would suggest it's the application of those new factors that have imposed this is an additional hardship on life convicted prisoners that violate the ex post facto aryans are you familiar with the case from the eighth circuit snodgrass versus robinson i am not that dealt with this issue i'm not i'm not aware that well involved commutation and the court found that because an additional step had to be taken that is that matter had to go to the governor and as we've all recognized governors entirely free to make whatever decision he or she wishes that the by the recommendation so at least there's one court that seems to go the other way you might want to take a look at ok i'll be happy to if i could address that in a letter to the court i shall enjoy that opportunity happy to do that  you i think the point i want to make there also was that the supreme court cases that i've cited in my brief that talk about standing are also applicable here in this context because of we don't really need to prove what's going to happen in the future no one can prove what's going to happen in terms of your means that we go about the analysis in the lint's case it talks about procedural changes versus substantive changes think you look at cases like that and like lintz and other cases like that garner i think is another one those talk about those are procedural changes in terms of for example the interval between applications for parole one of those cases the right that is purely procedural here we're this is very substantive in terms of what standard someone has to pass in order to get to the governor's office before you had to get three votes now you have to get five votes and you have to get five votes on a very much a panel that's made very much more anti commutation by its change than composition and these changes were made specifically in the context of the mud man simon and the reginald mcfadden incidents for the specific purpose of getting tougher on crime for making it harder for people to get out of jail let's assume that it is three for the moment it we're all speculating as to what the governor would do in those and then that that pretty squarely within the eight circuits russia now that we're guessing thomas it was pretty clear that it would affect parole here we're guessing that it might affect commutation well it does affect commutation because if you don't get the approval of the commutation bo you have zero possibility as affect the ability to go to the the final step but the final step is the one the governor has the discretion to make that decision correct we don't know if the governor would do it already and if the governor were to say look in a case like this with this person's record if it came to me yes i would grant commutation or i would be inclined to grant commutation that might take it out of the range of speculation of course no governor likely to do that i don't i don't think we need if you if i may i don't think we need to prove what a third person is going to do in this case and governor i don't think we need to prove what a third person i e the commutation court is going to do this is about an opportunity this is about an opportunity to have the governor commute your sentence which as mickens thomas shows doesn't necessarily doesn't equate to get out of jail equates to having the right or parole whether because thomas applies to this or not you've got supreme court cases like morale us which say among other things quote any of a number of minor or perhaps inevitable mechanical changes that might produce some remote risk of impact on a prisoners expected term of confinement doesn't get you to the point where there is a problem there is no violation of the ex post facto clause and it was a scene but this is a mechanical change you could argue it's not minor but it all what it does is it produces ring creases the real risk of a expected term of confinement possibly and when we see have seen that there are very few confinements actually commuted even when they have been recommended post ninety four it's almost asking us to i keep going back to speculate but to guess what the governor might do now but i don't think this has anything to do with guessing as to what the governor gone through the system of the one hundred people that are a member of the prison says there's nothing in the record on that i have some thoughts as to why not but i the record is the record is that since between th passage of the amendment in ninety seven and the date of the when discovery ended in two thousand and nine i guess it was there were three people three or four people that had received majority but not unanimous votes one of the one of those individuals had passed away smith and thompson were two others there was another there was a fourth person a mr wertz who had received a four to one vote in in about the same time and the pardons and the pardons board sat on it and hasn't made the had at the time of the hearing made a final vote and i can tell you well  my guess as to why not is because they didn't know what the heck the rule was going to apply whether was the majority rule or the unanimous rule so i think it's tough to look it's it's tough to look at what's gone on since this litigation began and say this is an objective analysis this is an objective average period of time i would say go back farther you look back at the milton shop administration for example and i believe th case refers only to those people sentenced prior to nine hundred ninety seven i believe that the proper for would be people whose whose crimes were committed prior to nine hundred ninety seven and sentence part of the i don't think it the sentence ninety seven yes it's a different case that's true that's true the system the criminal justice system something fall through the cracks and that this whole separate concept of clemency that can sure problems but off the top of my head that's silly when i can think of that may have addressed at some degree and we could quote  at two different levels it was at the connell court level and then at the supreme court level but they rejected a challenge by some five hundred inmates that were filed making similar types of claims i just don't want you to think that nothing had been counsel for very helpful argument we will take the case on or a