PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

Nos. 09-3017

 

PA PRISON SOCIETY;

 JULIA D. HALL; GREGORY H. KNIGHT;

FIGHT FOR LIFERS INC; WILLIAM GOLDSBY;

JOAN PORTER; GRATERFRIENDS INC.;

JOAN F. GAUKER; VINCENT JOHNSON;

FRIENDS COMMITTEE TO ABOLISH THE

DEATH PENALTY INC.; KURT ROSENBERG;

PENNSYLVANIA ABOLITIONISTS UNITED 

AGAINST THE DEATH PENALTY; TERRY RUMSEY;

ROGER BUEHL; DOUGLAS HOLLIS; DIANNA HOLLIS

v.

PEDRO A. CORTES,

Secretary, Commonwealth of Pennsylvania;

HONORABLE EDWARD G. RENDELL;

JOSEPH B. SCARNATI, LT GOVERNOR;

THOMAS W. CORBETT, JR.; LOUISE B. WILLIAMS;

RUSSELL A. WALSH, Ph.D.; JOHN E. WETZEL

(Pursuant to Fed. R. App. P. 43)
2

Joseph B. Scarnati, Thomas W. Corbett,

Louise B. Williams, Russell A. Walsh,

John E. Wetzel,

Appellants

 

No. 09-3018

 

PENNSYLVANIA PRISON SOCIETY;

DOUGLAS HOLLIS; PAROLE PLAINTIFFS,

KEITH SMITH, JACKIE LEE THOMPSON

(Pursuant to F.R.A.P. 12(A))

v.

PEDRO A. CORTES;

HONORABLE EDWARD G. RENDELL;

JOSEPH B. SCARNATI, LT. GOVERNOR;

THOMAS W. CORBETT, JR.; LOUISE B. WILLIAMS;

RUSSELL A. WALSH, Ph.D.; JOHN A. WETZEL

Pennsylvania Prison Society,

Douglas Hollis, Keith Smith,

Jackie Lee Thompson,

Appellants
 Honorable Arthur L. Alarcón, Senior United States Circuit *

Judge for the Ninth Circuit Court of Appeals, sitting by

designation.

3

 

Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Criminal Action No. 1-97-cv-01731)

District Judge: Honorable A. Richard Caputo

 

Argued April 19, 2010

Before: SCIRICA, AMBRO and ALARCÓN , Circuit Judges *

(Filed: October 1, 2010)

Thomas W. Corbbett, Jr.

 Attorney General

Richard A. Sheetz, Jr.

 Executive Deputy Attorney General

Amy Zapp (Argued)

 Chief Deputy Attorney General

 Special Litigation Section 

Office of the Attorney General

16th Floor, Strawberry Square

Harrisburg, PA 17120

Counsel for Appellants/Cross-Appellees
4

Stephen A. Whintson (Argued)

245 North Broad Street

Suite 300

Philadelphia, PA 19107

Counsel for Appellees/Cross-Appellants

 

OPINION OF THE COURT

 

ALARCÓN, Circuit Judge 

We are asked to decide whether an amendment to Article

IV, § 9(a) of the Constitution of the Commonwealth of

Pennsylvania, that alters the voting procedures employed by the

Pennsylvania Board of Pardons to require unanimity in

recommending pardons and commutations for life-sentenced

prisoners to the Governor, violates the Ex Post Facto Clause of

the United States Constitution. 

The District Court ruled that the constitutional

amendment, passed by Pennsylvania voters in 1997 (“1997

Amendment”), violates the Ex Post Facto Clause for prisoners

sentenced to a term of life imprisonment prior to its effective

date. Because none of the prisoners who are seeking relief in

this action has shown that there is a significant risk the 1997

Amendment will increase the length of their punishment, an

element essential to establishing an ex post facto violation,

Plaintiffs have failed to state a viable claim. We will therefore
 Prior to its amendment, Pa. Const. art. IV, § 9(b) provided: 1

The Board of Pardons shall consist of the

Lieutenant Governor who shall be chairman, the

Attorney General and three members appointed by

the Governor with the consent of two-thirds or a

majority of the members elected to the Senate as

is specified by law for terms of six years. The

three members appointed by the Governor shall be

residents of Pennsylvania and shall be recognized

leaders in their fields; one shall be a member of

5

reverse and remand with instructions to dismiss the ex post facto

action.

I

Under the Constitution of the Commonwealth of

Pennsylvania, the Governor is empowered “in all criminal cases

except impeachment . . . to grant reprieves, commutation of

sentences and pardons. . . .” Pa. Const. art. IV, § 9(a). “Like

Article II of the U. S. Constitution, Article IV of the

Pennsylvania Constitution delineates powers of the executive

branch.” Pa. Prison Soc’y v. Cortés, 508 F.3d 156, 159 n.4 (3d

Cir. 2007) (“Prison Society I”). The Governor’s decision

whether to commute a sentence is based upon recommendations

made by the Pennsylvania Board of Pardons (“the Board of

Pardons”), also part of the executive branch. Pa. Const. art. IV,

§ 9(b) ; see also Commonwealth ex rel. Cater v. Myers, 412 Pa. 1
the bar, one a penologist, and the third a doctor of

medicine, psychiatrist or psychologist. The board

shall keep records of its actions, which shall at all

times be open for public inspection. 

Pa. Const. art. IV, § 9(b) (amended 1997).

 While commutations of sentences and pardons for persons 2

convicted of crimes are both acts carried out by the Governor of

Pennsylvania under his or her clemency power, the issue

relevant in this appeal involves only actions taken by the Board

of Pardons on applications for commutation by inmates

sentenced to life imprisonment without parole.

6

67, 71 (1963) (“The Board of Pardons is a board of clemency

which is constitutionally ordained to recommend to the

Governor of Pennsylvania the grant or denial of clemency, i.e.,

commutation of sentence or pardon of persons who have been

convicted of and sentenced for crime.”).2

Prior to November 4, 1997, Article IV, § 9(a) of the

Constitution of the Commonwealth of Pennsylvania provided,

in relevant part, that:

In all criminal cases except impeachment the

Governor shall have the power to remit fines and

forfeitures, to grant reprieves, commutation of

sentences and pardons; but no pardon shall be

granted, nor sentence commuted, except on the

recommendation in writing of a majority of the
7

Board of Pardons, after full hearing in open

session, upon public notice . . . .

Pa. Const. art. IV, § 9(a) (amended 1997) (emphasis added). 

In 1997, a ballot question proposing an amendment to the

constitution that would alter the composition of and voting

procedures employed by the Board of Pardons was scheduled to

be submitted to Pennsylvania voters. The proposed ballot

question read:

Shall the Pennsylvania Constitution be amended

to require a unanimous recommendation of the

Board of Pardons before the Governor can pardon

or commute the sentence of an individual

sentenced in a criminal case to death or life

imprisonment, to require only a majority vote of

the Senate to approve the Governor’s

appointments to the Board, and to substitute a

crime victim for an attorney and a corrections

expert for a penologist as Board members?

Pa. Prison Soc’y v. Commonwealth, 565 Pa. 526, 532 (2001).

The 1997 Amendment of the Board of Pardons’ procedures was

motivated by a 1994 incident in which Reginald McFadden, a

prisoner sentenced to life imprisonment who had been granted

commutation by the Governor, after a majority of the Board of

Pardons voted to recommend it, committed a new murder in the

State of New York. (2d Amend Compl. ¶ 26); see also

Hearings on Pennsylvania Board of Probation and Parole
 See also Changing Pennsylvania’s Sentencing Philosophy 3

Through the Elimination of Parole for Violent Offenders, 5

Widener J. Pub. L. 269 (1996), discussing the McFadden case:

One of the most sensational cases of early release

was that of Reginald McFadden. McFadden was

pardoned after serving less than twenty-five years

of a life sentence for murdering a sixty-year-old

Philadelphia woman. Ninety-two days after his

July 7, 1994, release to New York State, under the

interstate parole system, McFadden was charged

with, and later convicted of, beating and raping a

fifty-five-year-old South Nyack woman. He was

also charged with raping and murdering a

seventy-eight[-]year[-]old Long Island woman.

Marlene Aig, 24 Years, A Convict, He Played the

System, PITTSBURGH POST GAZETTE, May 30,

1995, at C1. More recently, McFadden was

convicted of the murder of a forty-two-year-old

Long Island man. Convicted Murderer Found

Guilty Again, HARRISBURG PATRIOT EVENING

NEWS, Mar. 14, 1996, at B4. Because parole is

8

Reforms Before the House Judiciary Comm., 1995 Gen.

Assembly 179th Sess. (Pa. June 9, 1995); S. of Pa. Judiciary

Comm., Chairman’s Rep. Investigation into the Parole of Robert

Simon, 1995 Gen. Assembly, 179th Sess. 1-6 (Pa. 1996);

(Appellants’ Br. 19 (citing A000522-A000525, testimony of

Mark Singel)); Appellees’ Br. 43.) . 

3
not available to persons sentenced to life

imprisonment, McFadden was released through

the pardon process.

Id. at 296 n.95.

9

On November 4, 1997, Pennsylvania voters approved the

ballot measure. Article IV, § 9 (a) of the Constitution of the

Commonwealth of Pennsylvania was amended to read as

follows:

In all criminal cases except impeachment, the

Governor shall have power to remit fines and

forfeitures, to grant reprieves, commutation of

sentences and pardons; but no pardon shall be

granted, nor sentence commuted, except on the

recommendation in writing of a majority of the

Board of Pardons, and, in the case of a sentence

of death or life imprisonment, on the unanimous

recommendation in writing of the Board of

Pardons, after full hearing in open session, upon

due public notice.

Pa. Const., art. IV, § 9(a). Accordingly, the 1997 Amendment

changed the number of votes needed to support the Pardon

Board’s recommendation to the Governor that a life sentence be

commuted to a term of years with the possibility of parole from

majority to unanimous and substituted a crime victim instead of

an attorney and a corrections expert instead of a penologist as
10

Board members.

A

Pennsylvania law distinguishes between the exercise of

the Governor’s clemency power to grant pardons and

commutations pursuant to the Constitution of the

Commonwealth, and the authority to release a prisoner on

parole, which is an independent function of the Board of

Probation and Parole. Unlike the Board of Pardons, which is

constitutionally mandated and operates as a function of the

Pennsylvania Department of Justice, 71 Pa. Cons. Stat. § 12, the

Pennsylvania Board of Probation and Parole is an independent

board, originally created by the Parole Act of 1941. See Parole

Act of 1941, 1941 Pa. Laws 861 (codified as amended at 61 Pa.

Stat. Ann. §§ 331.1-.21 repealed by Act of Aug. 11, 2009, ch.

61, 2009 Pa. Laws 33). The Parole Act states that “[t]he parole

system provides several benefits to the criminal justice system,

including the provision of adequate supervision of the offender

while protecting the public, the opportunity for the offender to

become a useful member of society and the diversion of

appropriate offenders from prison.” Id.; see also 61 Pa. Cons.

Stat. § 6111(a)-(b) (2010) (providing that the Board of Probation

and Parole is “an independent administrative board for the

administration of the probation and parole laws of this

Commonwealth” consisting of nine members who are appointed

by the Governor).

By contrast, “[t]he constitutional power of the Governor
 All fifty states have incorporated clemency provisions in 4

their respective constitutions. See Ala. Const. amend. 38;

Alaska Const. art. III, § 21; Ariz. Const. art. V, § 5; Ark. Const.

art. VI, § 18; Cal. Const. art. V, § 8; Colo. Const. art. IV, § 7;

Conn. Const. art. IV, § 13; Del. Const. art. VII, § 1; Fla. Const.

11

to grant pardons and commutations of sentence is exclusive. . . ”

Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 585 (1942).

As the Pennsylvania Supreme Court explained in

Commonwealth v. Zook, 532 Pa. 79, 114 (1992):

The Governor’s power to commute sentences is

found within Article IV, § 9 of the Pennsylvania

Constitution. Under our Constitution of 1776, §

20, the Supreme Executive Council had the power

to grant pardons and remit fines in all cases

except in cases of impeachment. This doctrine

has evolved over the years into the present day

enactment, which provides in pertinent part: (a) In

all criminal cases except impeachment, the

Governor shall have power to remit fines and

forfeitures, to grant reprieves, commutation of

sentences and pardons; but no pardon shall be

granted, nor sentence commuted, except on the

recommendation in writing of a majority of the

Board of Pardons, after full hearing in open

session, upon due public notice . . . .

Id. (citing Pa. Const. art. IV, § 9) (citations omitted). In Banks,

4
art. IV, § 8; Ga. Const. art. IV, § 2; Haw. Const. art. V, § 5;

Idaho Const. art. IV, § 7; Ill. Const. art. V, § 12; Ind. Const. art.

V, § 17; Iowa Const. art. 4, § 16; Kan. Const. art. I, § 7; Ky.

Const. § 77; La. Const. art. IV, § 5(E); Me. Const. art. V, pt. 1,

§ 11; Md. Const. art. II, § 20; Mass. Const. pt. II, ch. 2, § 1, art.

8; Mich. Const. art. V, § 14; Minn. Const. art. V, § 7; Miss.

Const. art. V, § 124; Mo. Const. art. IV, § 7; Mont. Const. art.

VI, § 12; Neb. Const. art. IV, § 13; Nev. Const. art. V, § 13;

N.H. Const. pt. 2, art. 52; N.J. Const. art. V, § 2; N.M. Const.

art. V, § 6; N.Y. Const. art. IV, § 4; N.C. Const. art. III, § 5(6);

N.D. Const. art. V, § 7; Ohio Const. art. III, § 11; Okla. Const.

art. VI, § 10; Or. Const. art. V, § 14; Pa. Const. art. IV, § 9; R.I.

Const. art. IX, § 13; S.C. Const. art. IV, § 14; S.D. Const. art.

IV, § 3; Tenn. Const. art. III, § 6; Tex. Const. art. IV, § 11; Utah

Const. art. VII, § 12; Vt. Const. ch. II, § 20; Va. Const. art. V,

§ 12; Wash. Const. art. III, § 9; W. Va. Const. art. VII, § 11;

Wis. Const. art. V, § 6; Wyo. Const. art. IV, § 5.

12

the court discussed the differences between the concepts of

parole and pardons and explained that:

[t]here is a radical difference between a pardon

and a parole. A pardon is the exercise of the

sovereign’s prerogative of mercy. It completely

frees the offender from the control of the state. It

not only exempts him from further punishment

but relieves him from all the legal disabilities

resulting from his conviction. It blots out the very

existence of his guilt, so that, in the eye of the
13

law, he is thereafter as innocent as if he had never

committed the offense. A parole, on the other

hand, does not obliterate the crime or forgive the

offender. It is not an act of clemency, but a

penological measure for the disciplinary treatment

of prisoners who seem capable of rehabilitation

outside of prison walls. It does not set aside or

affect the sentence; the convict remains in the

legal custody of the state and under the control of

its agents, subject at any time, for breach of

condition, to be returned to the penal institution.

Neither is a parole a commutation of sentence

within the meaning of that term in the

constitutional provision. When our present

constitution was adopted, parole, as a penological

expedient, was unknown to American jurists and

legislators, and commutation was then generally

understood as meaning a reduction in the length

of the sentence, effecting a discharge of the

prisoner without any further supervision over him

by the state authorities.

Banks, 345 Pa. at 584-85 (citations omitted). See also

Commonwealth v. Sutley, 474 Pa. 256, 273-74, 274 n.12 (1977)

(“The power of commutation is an adjunct of the pardoning

power, and can be granted only by the authority in which the

pardoning power resides. . . . As defined by this Court, the

pardon is: the exercise of the sovereign’s prerogative of mercy.
 Various representational organizations, including the 5

Pennsylvania Prison Society, certain private individuals, and

three individual prisoners filed this original action challenging

the 1997 Amendment (collectively referred to as “Plaintiffs”).

Sued in their official capacities were Pedro A. Cortés, Secretary

of the Commonwealth of Pennsylvania; Edward Rendell,

Governor of Pennsylvania; and Board of Pardons members

Lieutenant Governor Joseph B. Scarnati, Attorney General

Thomas W. Corbett, Jr., Louise Williams, Dr. Russell Walsh,

and John Wetzel (collectively “the Commonwealth”). 

Following the District Court’s judgment upon remand

from this Court’s decision in Prison Soc’y I, current Board of

Pardons members Lieutenant Governor Joseph B. Scarnati,

Attorney General Thomas W. Corbett, Jr., Louise Williams, Dr.

Russell Walsh, and John Wetzel (“the Board of Pardons”)

appealed. Neither the Governor nor the Secretary of State is

participating in these cross appeals. The only Plaintiffs who

14

. . .”) (citations and internal quotations omitted). 

B

This action was originally brought as a petition for

review in the Commonwealth Court of Pennsylvania on October

16, 1997, before the ballot question proposing the 1997

Amendment had been approved by voters. In the original

action, the Pennsylvania Prison Society and others challenged

the ballot question as violative of various provisions of the

United States and Pennsylvania Constitutions. See Pa. Prison 5
filed a cross-appeal were the Pennsylvania Prison Society,

Douglas Hollis, Keith Smith, and Jackie Lee Thompson.

15

Soc’y v. Commonwealth, 727 A.2d 632, 635 (Pa. Commw. Ct.

1999), rev’d, 565 Pa. 526 (2001). 

On November 12, 1997, after voters approved the 1997

Amendment, the Commonwealth removed the action to the

United States District Court for the Middle District of

Pennsylvania pursuant to 28 U.S.C. § 1441(a). On January 5,

1998, Plaintiffs filed an amended complaint alleging that the

1997 Amendment violates various provisions of the United

States Constitution. On January 15, 1998, the District Court

granted the parties’ joint motion to remand the state law claims

and to stay the federal claims pending resolution of the state law

claims.

The Commonwealth Court determined that “the

November 4, 1997 vote on the ballot question [was] null and

void, as the single ballot question contained five amendments to

the Pennsylvania Constitution.” Pa. Prison Soc’y v.

Commonwealth, 727 A.2d at 636. On July 25, 2001, the

Supreme Court of Pennsylvania reversed the Commonwealth

Court and upheld the 1997 Amendment as properly submitted.

Pa. Prison Soc’y v. Commonwealth, 565 Pa. 526, 530, 537

(2001) (holding that “the voters should be given free opportunity

to modify the fundamental law as may seem to them fit . . . .”)

(quoting Taylor v. King, 284 Pa. 235 (1925) (overruled in part

by Stander v. Kelley, 433 Pa. 406 (1969)). 
16

On July 29, 2002, after resolution of the state law claims,

Plaintiffs filed a second amended complaint in the District Court

presenting federal and state constitutional challenges to the 1997

Amendment, including a claim that for prisoners sentenced to

life imprisonment prior to the effective date of the 1997

Amendment, the change in the voting requirements for the

Board of Pardons violates the Ex Post Facto Clause as alleged

in Count II. Plaintiffs’ second amended complaint also alleges

that the 1997 Amendment violates: the rights of life prisoners

and prisoners under death sentence under the Due Process

Clause (Count I); the Equal Protection Clause (Count III);

Pennsylvania voters’ rights under the Due Process Clause

(Count IV); the Eighth Amendment (Counts V and VI); and the

Guarantee Clause (Count VII). Plaintiffs also brought claims

under the Pennsylvania Constitution (Counts VII and VIII). In

their second amended complaint, Plaintiffs requested declaratory

and injunctive relief. 

On August 12, 2002, the Commonwealth moved to

dismiss Plaintiffs’ second amended complaint pursuant to Fed.

R. Civ. P. 12(b)(1) and 12(b)(6). On March 6, 2003, the District

Court issued a memorandum in which it granted the

Commonwealth’s motion to dismiss Counts III through VIII

pursuant to Rule 12(b)(6), and ordered the dismissal of the claim

in Count I that due process rights of inmates with life sentences

were violated. The District Court denied the Commonwealth’s

motion to dismiss the due process claims of inmates under death

sentences as alleged in Count I, as well as the Commonwealth’s
17

motion to dismiss the prison inmates’ claim under the Ex Post

Facto Clause as alleged in Count II. (Mem. Op., March 6,

2003.) 

In denying the motion to dismiss the ex post facto claim,

the District Court relied upon Supreme Court cases analyzing

the impact of changes in the eligibility requirements for parole

release enacted by various states. It concluded that resolution of

the ex post facto claim required a factual analysis, because

“when an amendment ‘does not by its own terms show a

significant risk, the [prisoner] must demonstrate, by evidence

drawn from the rule’s practical implementation by the agency

charged with exercising discretion, that its retroactive

application will result in a longer period of incarceration than

under the earlier rule.’” (Id. at 11-12 (quoting Garner v. Jones,

529 U.S. 244, 255 (2000) (considering whether an amendment

to a Georgia rule that changed parole reconsideration review

procedures violated the Ex Post Facto Clause)).) 

Both sides moved for reconsideration of the District

Court’s March 6, 2003, order. The Plaintiffs argued that the

District Court should reconsider its ruling on the ex post facto

claim in light of Smith v. Doe, 538 U.S. 84 (2003), wherein the

Supreme Court held that in determining whether legislation

violates the Ex Post Facto Clause, a court must “ascertain

whether the legislature meant the statute to establish ‘civil’

proceedings.” Id. at 92 (quoting Kansas v. Hendricks, 521 U.S.

346, 361 (1997)). The District Court denied the Plaintiffs’

motion for reconsideration. It held that
18

[t]he present case is distinguishable from both

Doe and Hendricks in that it involves a challenge

to retroactive changes in state law governing

prisoners’ parole, instead of challenges to

legislation regarding “sexual predators” or sexual

offenders. The Supreme Court has consistently

held that, in cases regarding retroactive changes

in state law governing prisoners’ parole, the

relevant inquiry is whether the amendments create

a significant risk of prolonging prisoners’

sentences.

(Mem. Op., May 6, 2003, at 5-6 (emphasis added) (citing

Garner, 529 U.S. at 251; Lynce v. Mathis, 519 U.S. 433, 441

(1997) (considering whether revisions in Florida law impacting

the award of early parole release credits to prison inmates

violates the Ex Post Facto Clause); Cal. Dep’t of Corr. v.

Morales, 514 U.S. 499 (1995) (considering whether a law

changing the procedures concerning the accessibility of parole

suitability hearings violated the Ex Post Facto Clause);

Mickens-Thomas v. Vaughn, 321 F.3d 374 (3d Cir. 2003)

(considering whether material modifications of Pennsylvania

parole laws violated the Ex Post Facto Clause).)

The Commonwealth moved the District Court to

reconsider its partial denial of Plaintiffs’ due process claim in

Count I regarding prisoners sentenced to death, and urged it

instead to dismiss the claim in its entirety. The Commonwealth

argued that “[w]hether or not certain Board [of Pardons]
 Neither party addressed Rule 12(b)(1) in any of the papers 6

filed in connection with the Commonwealth’s motion to dismiss

or in the parties’ cross-motions for reconsideration. The District

Court also did not discuss Rule 12(b)(1) in denying the

Commonwealth’s motion or in ruling on the parties’ crossmotions for reconsideration.

19

members are biased against granting clemency does not render

the amendment unconstitutional, although it may be grounds for

disqualification in a particular case.” (Defs.’ Br. in Supp. of

Mot. for Consideration, April 4, 2003, at 4-5.) The District

Court agreed with the Commonwealth’s argument in part. It

held that

[t]he prejudice of individual Parole Board

members is irrelevant, as Plaintiffs must establish

that the amendments would not be valid under any

set of circumstances. . . . Plaintiffs may still

pursue the argument that the inclusion of a crime

victim on the Board impermissibly introduces

decision-maker bias into the parole process. 

(Mem. Op., May 6, 2003 at 7) (emphases added). 

6

On August 19, 2005, Plaintiffs filed a Motion for

Summary Judgment. It was refiled on August 23, 2005 as an

Amended Motion for Summary Judgment, pursuant to the

District Court’s instruction. Plaintiffs moved for summary

judgment as to Count II on the ground that the 1997 Amendment
20

“constitutes an improper ex post facto imposition of additional

punishment in violation of the United States Constitution on

persons who were sentenced to death or to life in prison prior to

the effective date of such Amendment.” (Pls.’ Am. Mem. in

Supp. of Their Mot. for Summ. J., Aug. 23, 2005.) 

On September 13, 2005, the Commonwealth filed a

Motion for Summary Judgment as to Plaintiffs’ challenge to the

inclusion of a crime victim on the Board of Pardons on the

ground that it impermissibly introduced decision-maker bias into

the clemency process in violation of the Due Process Clause.

The Commonwealth also moved for summary judgment as to

Plaintiffs’ ex post facto claim, on the ground that Plaintiffs had

“failed to show that the application of the Amendment will

result in a longer period of incarceration for life-sentenced

inmates [and they have not shown] that they themselves were

individually disadvantaged by the Amendment.” (Defs.’ Br. in

Supp. of Their Mot. Summ. J., at 23.) 

On March 13, 2006, the District Court granted the

Plaintiffs’ Motion for Summary Judgment, holding that the new

requirement of Board unanimity in recommending pardons for

prisoners sentenced to life imprisonment who had committed

their crimes before the 1997 Amendment’s effective date

violated the Ex Post Facto Clause. The District Court denied

relief in all other respects. Pa. Prison Soc’y v. Rendell, 419 F.

Supp. 2d 651, 662 (M.D. Pa. 2006). 

The parties filed a timely appeal and cross-appeal to this
21

Court. The Commonwealth argued that the District Court erred

in failing to dismiss or, alternatively, to grant their motion for

summary judgment on the ex post facto claim. Prison Society I,

508 F.3d at 160 n.6. The Commonwealth also argued, for the

first time on appeal, that both the District Court and this Court

lacked jurisdiction over Plaintiffs’ claims because none of the

Plaintiffs had standing under Article III of the U.S. Constitution.

Id. at 169. This Court agreed that Plaintiffs’ pleadings failed to

allege facts demonstrating that they met the requirements for

standing. Id. at 162-164 (organizational plaintiffs); 164

(voter/taxpayer plaintiffs); 164-169 (prisoner plaintiffs). This

Court concluded that: 

Because the issue of standing was raised for the

first time on appeal, none of the plaintiffs have

had the opportunity to present evidence or to

litigate this issue. We will therefore dismiss this

appeal without prejudice for lack of jurisdiction

and remand to the District Court for further

proceedings consistent with this Opinion to

develop the record in order to determine

plaintiffs’ standing to bring this action.

Id. at 169. Based upon the conclusion that the Plaintiffs lacked

standing, this Court did not reach the Commonwealth’s

argument that the District Court erred in failing to dismiss this

action or, alternatively, grant summary judgment to the

Commonwealth on the ex post facto claim. The

Commonwealth’s appeal was dismissed and the case was
 Plaintiffs Roger Buehl, Douglas Hollis, and Vincent 7

Johnson were the only individual prisoner plaintiffs remaining

in the suit at the time of the District Court’s ruling. 

22

remanded to the District Court so that the Plaintiffs could

present evidence or otherwise litigate the standing issue.

On remand, the District Court held an evidentiary hearing

regarding the standing issue as to each plaintiff on June 2, 2008,

August 6, 2008, and August 7, 2008. The District Court

determined that the Pennsylvania Prison Society was the only

plaintiff that “satisfie[d] all of the requirements needed to

qualify for the organizational exception to the prohibition on

third party standing.” Pa. Prison Soc’y v. Cortés, 2009 U.S.

Dist. LEXIS 48995 *4 (M.D. Pa. June 11, 2009). The District

Court also concluded that none of the remaining individual

prisoner plaintiffs had standing “because they have not suffered

or shown that they will imminently suffer an injury resulting

from the 1997 Amendments to the Pennsylvania Constitution.”7

Id. at *3. The District Court also denied a motion to intervene

filed by prisoners Keith Smith and Jackie Lee Thompson,

concluding that their “interests are adequately represented by .

. . the Pennsylvania Prison Society.” Id. 

In its June 11, 2009 Memorandum Opinion, the District

Court “reinstate[d]” its prior rulings on the Cross-motions for

Summary Judgment filed by the parties in 2005 (Plaintiffs’

motion filed August 23, 2005 and the Commonwealth’s motion

filed September 13, 2005). Id. at *49 (citing Mem. and Order,
23

March 13, 2006, reported at Pa. Prison Soc’y v. Rendell, 419 F.

Supp. 2d at 659, 661). In its March 13, 2006 Memorandum

Opinion, the District Court concluded that the 1997 Amendment

violates the Ex Post Facto Clause because retrospective

application of the 1997 Amendment “clearly disadvantage[s] the

applicants . . . [because its] change in voting requirements, from

majority to unanimity, creates more than a speculative and

attenuated risk of increasing the measure of punishment applied

to life sentenced inmates.” Pa. Prison Soc’y, 419 F. Supp. 2d at

661-62. The District Court considered evidence drawn from the

new law’s practical implementation, i.e., an analysis of the

parties’ stipulated rate and frequency of commutations granted

to life-sentenced inmates in Pennsylvania between 1970 and

2005. It concluded that, as applied to those inmates sentenced

after its effective date, the 1997 Amendment posed a

“significant risk” of increased punishment. Id. at 658, 660-61

n.1 & n.2. Based upon its finding that “the total number of

recommendations by the Board for commutation for life

sentenced prisoners [was] significantly lower than the number

of recommendations in the eight years prior to the [1997

A]mendments’ passage,” the District Court held that

even though a less than unanimous vote did not

guarantee a life sentenced prisoner commutation

prior to the passage of the 1997 amendments and

although commutation is not completely

foreclosed following the passage of the

amendments, the 1997 amendments significantly
24

reduced the likelihood of a life sentenced prisoner

receiving a recommendation by the Board for

commutation and, as such, the 1997 amendments

make commutations and parole even more remote

for those inmates.

Id. at 660-61. 

The Board of Pardons and the Pennsylvania Prison

Society, as well as Hollis, Smith, and Thompson filed timely

cross-appeals from the District Court’s final order of June 11,

2009. 

The District Court asserted jurisdiction over this matter

pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1441(a). This

Court has jurisdiction over the appeal from the District Court’s

final order pursuant to 28 U.S.C. § 1291. 

Two dispositive issues remain in this protracted

litigation. We must decide whether the District Court was

required to conduct an evidentiary hearing to determine its

subject matter jurisdiction over the ex post facto claim of each

Plaintiff, pursuant to this Court’s mandate in Prison Soc’y I. We

must also address the question whether the 1997 Amendment,

which concerns the exercise of a Governor’s sovereign power of

clemency as authorized by a state’s voters, violates the Ex Post

Facto Clause. 

II 

 In Prison Soc’y I, this Court declined to reach the merits
25

of the parties’ cross-appeals from the District Court’s order on

the parties’ Cross-Motions for Summary Judgment because the

Second Amended Complaint did not demonstrate that any of the

Plaintiffs had standing to assert their constitutional claims. For

that reason, this Court dismissed the Commonwealth’s appeal

without prejudice, without reaching the merits of the crossappeals and instructed the District Court to “develop the record

in order to determine plaintiffs’ standing to bring this action.”

Prison Soc’y I, 508 F.3d at 169. 

A 

The Board of Pardons argues that the District Court erred

in permitting the Pennsylvania Prison Society to present

evidence on the issue of its organizational standing because

“[t]his Court’s prior ruling in this case[, which] determined . . .

that PPS, and all of the other organizational plaintiffs had failed

to show standing,” foreclosed further review of the issue by the

District Court. (Appellants’ Opening Br. 5.) Based upon the

District Court’s reading of this Court’s opinion in Prison Soc’y

I, it determined that the instruction upon remand was for it “to

develop the record and determine standing for all plaintiffs in

the current case, including the Pennsylvania Prison Society.” 

Pa. Prison Soc’y v. Cortés, 2009 U.S. Dist. LEXIS 48995 at

*38-39 (emphasis added). The District Court based its

conclusion upon the fact that this Court “did not specify certain

individuals or classes of Plaintiffs” in its remand order who

should be allowed to present evidence of their standing to

present their claims to the District Court. Id. at *38. We are
26

persuaded that the District Court did not err in complying with

this Court’s mandate that it determine the standing of each

plaintiff before it could consider the merits of their

constitutional claims.

B

The Board of Pardons also argues that the District Court

erred in concluding that the Pennsylvania Prison Society had

organizational standing to bring this suit because its ruling was

based upon the erroneous conclusion that individual members

Keith Smith and Jackie Lee Thompson had standing to sue in

their own right. The Board of Pardons argues that Smith and

Thompson lacked standing because they “do not have live

claims as their ability to challenge the 1997 amendments is timebarred.” (Appellants’ Reply Br. 8-9.) “We exercise plenary

review of standing . . . issues, but review for clear error the

factual elements underlying the District Court’s determination

of standing.” General Instrument Corp. v. Nu-Tek Elecs. &

Mfg., 197 F.3d 83, 86 (3d Cir. 1999).

[T]o satisfy Article III’s standing requirements, a

plaintiff must show (1) it has suffered an “injury

in fact” that is (a) concrete and particularized and

(b) actual or imminent, not conjectural or

hypothetical; (2) the injury is fairly traceable to

the challenged action of the defendant; and (3) it

is likely, as opposed to merely speculative, that

the injury will be redressed by a favorable
27

decision. 

Friends of the Earth, Inc. v. Laidlaw, 528 U.S. 167, 180-81

(2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555,

560-61 (1992)). When plaintiffs allege a future injury, that

injury must be “certainly impending,” not an injury that will

only occur at “some indefinite future time.” Lujan, 504 U.S. at

564 n.2. “‘[S]ome day’ intentions — without any description of

concrete plans, or indeed even any specification of when the

some day will be — do not support a finding of the ‘actual or

imminent’ injury that our cases require.” Id. at 564. This

requirement assures that “there is a real need to exercise the

power of judicial review in order to protect the interests of the

complaining party.” Schlesinger v. Reservists Comm. to Stop

the War, 418 U.S. 208, 221 (1974). 

[A]n association has standing to bring suit on

behalf of its members when; (a) its members

would otherwise have standing to sue in their own

right; (b) the interests at stake are germane to the

organization’s purpose, and (c) neither the claim

asserted nor the relief requested requires the

participation of individual members in the

lawsuit.

Hunt v. Washington State Apple Advertising Comm’n, 432 U.S.

333, 343 (1977). Importantly, the organization must “make

specific allegations establishing that at least one identified

member ha[s] suffered or would suffer harm.” Summers v.
28

Earth Island Inst., 129 S. Ct. 1142, 1151 (2009). 

In Prison Soc’y I, this Court concluded that “the record

[wa]s silent about the organizational plaintiffs’ members and

whether those members themselves meet the standing

requirements to bring this case.” Prison Soc’y I, 508 F.3d at

163. Upon remand, following months of discovery and three

days of evidentiary hearings, the District Court found that “the

evidence clearly shows that the Pennsylvania Prison Society

satisfies all of the requirements needed to qualify for the

organizational exception to the prohibition on third party

standing and may pursue relief on behalf of its members.” Pa.

Prison Soc’y v. Cortés, 2009 U.S. Dist. LEXIS 48995 at *43. 

Applying the test for organizational standing set forth in

Hunt, the District Court found that the Pennsylvania Prison

Society had presented evidence that Smith and Thompson were

both members and had both received four-to-one (4-1) Board of

Pardons votes in favor of their application for a commutation

after the 1997 Amendment took effect. Id. at *40. Accordingly,

it concluded that Thompson and Smith had standing to bring a

constitutional challenge to the 1997 Amendment in his own

right. Id. 

The Board of Pardons’ argument that Smith and

Thompson lacked standing to bring this action because they

failed to challenge the Board of Pardons’ denial of their prior

applications within the prescribed time frame for bringing such

challenges is not persuasive. (Appellants’ Opening Br. 27-28.)
29

The Board of Pardons has cited no authority, and we have found

none, holding that an ex post facto challenge to a constitutional

amendment must be brought within a given time period or else

it is forfeited. Moreover, the Pennsylvania Prison Society is not

seeking damages for past injuries. It is seeking declaratory

relief and an injunction. The Pennsylvania Prison Society has

alleged that Smith and Thompson have suffered an “injury-infact” due to “imminent” future harm in connection with their

current and future applications for commutations, which is

sufficient for purposes of demonstrating standing to bring this

action. Smith testified before the District Court that he filed an

application in 2007 that is currently “at a standstill because of

the issue here. They said . . . that they [were] not moving any

applications until . . . this situation is resolved.” (J.A. 642.)

Thompson testified that he is “working on” a new application

for commutation that he intends to submit as soon as he clears

up an administrative obstacle pertaining to his Social Security

number. (Cross-Appellants’ Br. 33.) The Board of Pardons has

not demonstrated that Thompson and Smith are likely to receive

less favorable votes from the Board of Pardons than the four-toone votes they received the last time their applications were

reviewed by the Board of Pardons. For purposes of establishing

the District Court’s subject matter jurisdiction to consider their

complaint that their constitutional rights had been violated,

Smith and Thompson’s allegations were sufficient to withstand

a dismissal of their claims pursuant to Rule 12(b)(1). 

We agree with the District Court’s conclusion that the
30

Pennsylvania Prison Society satisfied the second prong of the

Hunt test for organizational standing because it presented

evidence that “the interests that the Pennsylvania Prison Society

now seeks to assert are certainly germane to the Prison Society’s

purpose, as stated in the Second Amended Complaint, [which is]

‘to advocate for a humane, just, and restorative correctional

system, and to promote a rational approach to criminal justice

issues.’” Pa. Prison Soc’y v. Cortés, 2009 U.S. Dist. LEXIS

48995 at *43 (citing 2d Amend Compl. ¶ 5) (emphasis added).

The constitutionality of the commutations process is an interest

that is “germane to the organization’s purpose.” Hunt, 432 U.S.

at 343. The Prison Society has advocated for Pennsylvania’s

prisoner population since 1787. (2d Amend Compl. ¶ 5-9.) As

the Second Amended Complaint explained, the Prison Society

is concerned with promoting “a humane, just, and restorative

correctional system” and “a rational approach to criminal justice

issues.” (Id.) 

Finally, the District Court concluded that the Prison

Society satisfied the third prong of the Hunt organizational

standing test because “[n]either the claim asserted [n]or the

relief requested [in the Second Amended Complaint] requires

the participation of individual Prison Society members in the

lawsuit since this suit alleges that the 1997 Amendments to the

Pennsylvania Constitution impact several life-sentenced

prisoners in Pennsylvania and violate the Ex Post Facto Clause

of the United States Constitution.” Pa. Prison Soc’y v. Cortés,

2009 U.S. Dist. LEXIS 48995 at *93. The District Court
31

correctly determined that the Pennsylvania Prison Society

“satisfie[d] the so-called ‘organizational exception’ to the

prohibition on third party standing and that the Prison Society’s

standing to bring this action on behalf of its members is

appropriate regardless of Mr. Smith and Mr. Thompson’s

attempted intervention in this case.” Id. at *42. As an

organization, the Pennsylvania Prison Society is entitled to

challenge the constitutionality of the 1997 Amendment and

pursue related prospective relief on behalf of its members. 

The District Court did not err in concluding that the

Pennsylvania Prison Society had organizational standing to

represent its members who are prisoners sentenced to life

imprisonment. See Hunt, 432 U.S. at 343 (setting forth factors

an association must show to demonstrate that it has standing to

bring suit on behalf of its members). 

C

Douglas Hollis argues in his cross-appeal that the District

Court erred in concluding that he “lacked standing because he

did not show a likelihood of receiving a majority vote in his

pending petition for commutation, although he possesses the

characteristics of lifers previously recommended for

commutation, he previously received a majority vote, and he has

a petition pending with the Board.” (Appellees/CrossAppellants’ Br. at 8.) Hollis asserts that the District Court’s

conclusion that he lacked standing to participate in this action is

irreconcilable with its holding that Smith and Thompson had
32

demonstrated standing to sue in their own right. Id. Hollis

argues that because he, like Smith and Thompson, received a

favorable four-to-one majority vote by the Board of Pardons in

a past application for commutation, and he has a pending

application for commutation, he has shown an injury-in-fact due

to imminent future harm sufficient to sue in his own right. The

Board of Pardons maintains that the District Court based its

ruling on findings of fact that were supported by the evidence,

and thus should not be disturbed by this Court unless they are

clearly erroneous. (Appellants’ Reply Br. 18.) 

The District Court concluded that Hollis had not

demonstrated that he was “likely to receive a majority vote in

favor of review on the application currently pending before the

Board of Pardons.” Pa. Prison Soc’y v. Cortés, 2009 U.S. Dist.

LEXIS 48995 at *30. This conclusion was based upon the

District Court’s finding that in Hollis’s most recent application,

filed in 1994, he received an unfavorable one-to-four vote

against recommendation to the Governor. Id. at *24, 30. The

District Court appears to have rejected Hollis’s explanation that

the reason he received a one-to-four vote was because his 

hearing was held immediately in the aftermath of

the emotionally charged atmosphere of the

November 1994 Gubernatorial election, wherein

Lieutenant Governor Singel had lost to Governor

Ridge, in part based upon Singel’s

recommendation to commute the life sentence of

Reginald McFadden, who turned around and
33

committed a murder and rape in New York less

than a year after he got out.

Id. at *25. The Board of Pardons argues that, based upon the

trend developed in the statistical evidence presented concerning

the history of recommended commutations, Hollis would not

have received a recommendation for commutation because the

trend did not favor the exercise of clemency in Hollis’ case. Id.

at 27-31. The District Court concluded that “both Mr. Hollis’

personal commutation application history, along with the

general commutations review ‘trends’ identified by the

Defendants, show that the injury claimed by Mr. Hollis is, at this

time, speculative.” Id. at *30-31.

Hollis argues in his cross-appeal that the District Court’s

ruling, and this Court’s earlier instruction that a plaintiff must

show that he is “likely to receive a majority of votes favoring a

commutation recommendation from the Board,” Pa. Prison

Society I, 508 F.3d at 165, is inconsistent with the Supreme

Court’s holdings in Summers v. Earth Island Inst., 129 S. Ct.

1142 (2009), and Adarand Constructors v. Pena, 515 U.S. 200

(1995). (Cross-Appellants’ Br. 75-78.) Hollis argues that these

cases stand for the proposition that it is unnecessary to show the

actual outcome of future conduct to establish standing, i.e., that

the lifers here are not required to show that they would again

receive a favorable four-to-one Board vote recommending

commutation to have standing. (Id.) Rather, Hollis contends

that “the lifers here must [only] demonstrate that they have

definite plans to apply for commutation in the near future or
34

have an application currently pending.” (Id. at 78.) 

The District Court held that Hollis had alleged only “a

potential injury, happening on some indeterminate future date

[that] is neither concrete nor particularized nor imminent, and

[thus] does not satisfy the ‘irreducible constitutional minimum’

of standing established by Article III.” Pa. Prison Soc’y v.

Cortés, 2009 U.S. Dist. LEXIS 48995 at *30 (quoting Bennett

v. Spear, 520 U.S. 154, 167 (1997)). “[A] finding is ‘clearly

erroneous’ when although there is evidence to support it, the

reviewing court on the entire evidence is left with the definite

and firm conviction that a mistake has been committed.”

Anderson v. Bessemer City, 470 U.S. 564, 573 (1985) (quoting

United States v. United States Gypsum Co., 333 U.S. 364, 395

(1948)) (internal quotations omitted). “This standard plainly

does not entitle a reviewing court to reverse the finding of the

trier of fact simply because it is convinced that it would have

decided the case differently.” Anderson, 470 U.S. at 573. “In

applying the clearly erroneous standard to the findings of a

district court sitting without a jury, appellate courts must

constantly have in mind that their function is not to decide

factual issues de novo.” Zenith Radio Corp. v. Hazeltine

Research, Inc., 395 U.S. 100, 123 (1969). The Court explained

in Anderson: 

If the district court’s account of the evidence is

plausible in light of the record viewed in its

entirety, the court of appeals may not reverse it

even though convinced that had it been sitting as
35

the trier of fact, it would have weighed the

evidence differently. Where there are two

permissible views of the evidence, the factfinder’s

choice between them cannot be clearly erroneous.

Id. (citing United States v. Yellow Cab Co., 338 U.S. 338, 342

(1949)). We are persuaded that the District Court did not clearly

err in finding that Hollis lacked individual standing to

participate in this action. We also note that Hollis is a member

of the Pennsylvania Prison Society and that his interests are duly

represented by the Prison Society, notwithstanding the District

Court’s ruling that he lacked individual standing. 

D

Keith Smith and Jackie Lee Thompson cross-appeal from

the District Court denial of their motion to intervene in this

action. The District Court construed Smith and Thompson’s

motion to intervene as a motion for permissive intervention and

denied it based upon the discretion provided to district courts

pursuant to Fed. R. Civ. P. 24(b). Pa. Prison Soc’y v. Cortés,

2009 U.S. Dist. LEXIS 48995 at *45-48. Smith and Thompson

argue that the District Court should have construed the motion

as a request to intervene as of right based upon Fed. R. Civ. P.

24(a). We review a district court’s ruling on a motion to

intervene for abuse of discretion. Kleissler v. United States

Forest Serv., 157 F.3d 964, 969 (3d Cir. 1998). This Court will

reverse such a matter only if we conclude that the trial “court

has abused its discretion by applying an improper legal standard
36

or reaching a conclusion we are confident is incorrect.” Id.

Rule 24 (a) of the Federal Rules of Civil Procedure

provides that, “[o]n timely motion, the court must permit anyone

to intervene who: (1) is given an unconditional right to

intervene by a federal statute; or (2) claims an interest relating

to the property or transaction that is the subject of the action,

and is so situated that disposing of the action may as a practical

matter impair or impede the movant’s ability to protect its

interest, unless existing parties adequately represent that

interest.” Fed. R. Civ. P. 24(a). Rule 24 (b) provides in

relevant part that “[o]n timely motion, the court may permit

anyone to intervene who: (A) is given a conditional right to

intervene by a federal statute; or (B) has a claim or defense that

shares with the main action a common question of law or fact.”

Fed. R. Civ. P. 24(b). Furthermore, “[i]n exercising its

discretion, the court must consider whether the intervention will

unduly delay or prejudice the adjudication of the original

parties’ rights.” Id. 

The District Court concluded 

(1) that the interests of Mr. Smith and Mr.

Thompson are adequately represented by the

Pennsylvania Prison Society and (2) that their

intervention into this case, after this Court’s grant

of summary judgment and the Court of Appeals’

remand, would be purely superfluous and add

unnecessary complexities that could potentially
37

cause undue delay in the resolution of this case.

Pa. Prison Soc’y v. Cortés, 2009 U.S. Dist. LEXIS 48995 at

*48. The District Court further found that there was no

evidence that the Pennsylvania Prison Society had not been

diligent in prosecuting this action on behalf of its members. Id.

at *47. None of the arguments proferred by Smith and

Thompson in their cross-appeal demonstrates that their interests

have not been adequately represented by the Pennsylvania

Prison Society. The District Court did not abuse its discretion

in denying Smith and Thompson’s motion to intervene. 

Accordingly, based upon its conclusion that the

Pennsylvania Prison Society had standing to bring this action,

the District Court properly “assume[d] jurisdiction to decide

whether the allegations [in the second amended complaint] state

a cause of action on which the court can grant relief as well as

to determine issues of fact arising in the controversy” with

respect to Plaintiffs’ ex post facto claim. Bell v. Hood, 327 U.S.

678, 682 (1946). 

III

The Board of Pardons argues in this appeal, as did the

Commonwealth in Prison Soc’y I, that the District Court erred

in granting summary judgment in favor of the Pennsylvania

Prison Society because “the changes to Pennsylvania pardons

procedures made by the 1997 constitutional amendments did not

truly implicate the Ex Post Facto Clause.” (Appellants’ Br. 29.)

It maintains that this Courtshould “reverse [the District Court’s]
38

rulings and . . . remand this case to the district court with

directions either to dismiss this matter or to enter judgment in

their favor, as may be appropriate given the resolution of the

legal issues.” (Id. at 4.) In urging this Court to remand this

matter with directions that it be dismissed, the Board of Pardons

argues that “[t]he district court misapprehended critical

characteristics of commutations/pardons in Pennsylvania, which

compel the conclusion that the 1997 changes to voting

procedures do not fit the definition of “ex post facto.” (Id. at 5.)

We are persuaded that the District Court erred as a matter

of law in denying the Commonwealth’s motion to dismiss

Plaintiffs’ ex post facto claim pursuant to Fed. R. Civ. P.

12(b)(6) because the Prison Society has not stated a viable ex

post facto claim. 

“To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). In deciding a motion to

dismiss, a court must determine whether the complaint “pleads

factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged.” Id. “While legal conclusions can provide the

framework of a complaint, they must be supported by factual

allegations.” Id. at 1950. 

Plaintiffs allege in the Second Amended Complaint that
39

“[t]he changes in the pardons process effectuated by the

Amendment impose additional punishment on the Prisoner

Plaintiffs since there is distinctly less of an opportunity to obtain

a pardon or commutation.” (2d Amend Compl. ¶ 44.) Plaintiffs

also allege that “[p]rior to the Amendment, it was distinctly

more likely that the Prisoner Plaintiffs could obtain a pardon or

commutation. However, since the Amendment became law, the

Prisoner Plaintiffs are virtually shut out from that opportunity.”

(2d Amend Compl. ¶ 65.) These allegations fail to state a viable

claim as a matter of law because the legal conclusion that the

“Amendment impose[s] additional punishment” is not supported

by any of the factual allegations in the Second Amended

Complaint. The 1997 Amendment does not lengthen the

sentences imposed upon the prisoners represented by the

Pennsylvania Prison Society, who have been sentenced to serve

a term of life imprisonment without parole. 

“There is no ex post facto violation where the

retroactively applied law does not make one’s punishment more

burdensome, but merely creates a disadvantage.” Spuck v.

Ridge, 347 F. App’x 727, 729 (3d Cir. 2009) (affirming the

district court’s dismissal of ex post fact claim where plaintiff’s

sentence was not lengthened or made more severe by the new

guidelines which made furlough opportunities unavailable

because that did not make the punishment more onerous) (citing

Hameen v. Delaware, 212 F.3d 226, 236 (3d Cir. 2000)). 

While the District Court correctly determined that the

Pennsylvania Prison Society had standing to bring this action, in
 In Prison Soc’y I, this Court did not reach the merits of the 8

Commonwealth’s contention that the District Court erred in

denying its Rule 12(b)(6) motion, and in granting the Plaintiffs’

motion for summary judgment for violation of the Ex Post Facto

Clause, because the Plaintiffs failed to present any evidence of

a significant injury to satisfy the jurisdictional requirement of

demonstrating the existence of a case or controversy.

40

ruling on the Commonwealth’s Rule 12(b)(6) motion to dismiss,

it erroneously concluded that Plaintiffs had alleged facts

sufficient to demonstrate that the 1997 Amendment could result

in a longer period of incarceration for inmates sentenced prior

to its adoption. (Mem. Order Den. Defs.’ Mot. to Dismiss,

March 6, 2003, at 11-12.) For this same reason, we must also

reverse the District Court’s order granting summary judgment in

favor of the Pennsylvania Prison Society.

As the Commonwealth has argued throughout this

litigation, there are three distinct reasons why Plaintiffs’ ex post

facto claim is not viable. First, the 1997 Amendment is not an 8

ex post facto law “[g]iven the ad hoc nature of [executive]

clemency, the retroactive application of the amendment cannot,

as a matter of law, have any widespread effect on the period of

incarceration for prisoners serving life sentences. . . .” (Defs.’

Reply in Supp. of Their Mot. to Dismiss 9 (quoting Solem v.

Helm, 463 U.S. 277, 300-301 (1983) (citing Connecticut Bd. of

Pardons v. Dumschat, 452 U.S. 458 (1981).) 

Second, “[P]laintiffs cannot show that the passage of the
41

Amendment has resulted or will result in a longer period of

incarceration for life sentenced prisoners” because a life

sentence, absent the executive grant of a commutation, is still a

life sentence and nothing more. (Defs.’ Mem. in Supp. of Their

Mot. for Summ. J. 20 (emphasis added); see also Appellants’

Op. Br. 31 (citing Commonwealth v. Szczesniewski, 591 A.2d

1055, 1056 (Pa. Super. 1991) (holding that in Pennsylvania a

term of life imprisonment is no less than and no more than

natural life)); 61 P.S § 331.21(a) (Parole is not a possibility for

life- or death- sentenced prisoners).) The adoption of the 1997

Amendment did not increase the punishment. A term of life

imprisonment is no less than and no more than natural life. 

Third, the 1997 Amendment does not trigger an ex post

facto inquiry because changes in the law that alter procedures

for obtaining commutation, but do not eliminate the possibility

of commutation, are procedural and thus not ex post facto laws.

(Appellants’ Br. 11, 29 (citing Artway v. Attorney Gen. of N.J.,

81 F.3d 1235, 1253 (3d Cir. 1996)).) 

We will first address the requirements for triggering an

ex post facto inquiry when challenging a law that is violative of

the Ex Post Facto Clause. We will then address the arguments

concerning the deficiencies in Plaintiffs’ ex post facto claim

raised by the Commonwealth in its motion to dismiss, and

before this Court in Prison Soc’y I, and by the Board of Pardons

in the instant appeal.

A
42

The Ex Post Facto Clause of the Constitution, U.S.

Const. art. I §§ 9 and 10, forbids the government from passing

any law “which imposes a punishment for an act which was not

punishable at the time it was committed; or imposes additional

punishment to that then prescribed.” Weaver, 450 U.S. 24, 28

(1981) (internal quotation omitted). The Ex Post Facto Clause

is intended to provide fair warning about new punishments and

to discourage arbitrary and oppressive legislation. Weaver, 450

U.S. at 28. To fall within the ex post facto prohibition, “two

critical elements must be present . . . : it must be retrospective,

that is, it must apply to events occurring before its enactment,

and it must disadvantage the offender affected by it.” Id. at 29

(footnotes omitted). 

In Lindsey v. Washington, the Supreme Court explained

that, in reviewing a claim of an ex post facto violation, the focus

is on the “effect” of the new law. Lindsey, 301 U.S. at 400. In

Lindsey, at the time petitioners were convicted of grand larceny,

that crime was punishable by a maximum sentence of “not more

than fifteen years,” and a minimum sentence to be fixed by the

court in its discretion at some point between six months and five

years, after which time petitioners were eligible for parole. Id.

After petitioners committed their offense, but before they were

sentenced, Washington enacted a new state law that made the

maximum sentence provided by law mandatory, for those

felonies carrying maximum sentences. Id. Petitioners

challenged the new law in state court. The Supreme Court of

Washington sustained the sentence. Id. at 399. The Supreme
43

Court reversed. It held as follows: 

[T]he Supreme Court of Washington, without

analysis or comparison of the practical operation

of the [new and old] statutes, [upheld the law,

declaring that] “[t]he amending act [did] not

change or inflict a greater punishment than the

law in force when the alleged crime was

committed[,] for the court could under the law in

force at that time pronounce a maximum sentence

of not more than fifteen years. The minimum and

maximum punishments remain the same as before

the enactment of the act of 1935.”

Id. at 399-400. The Court explained that “[t]he effect of the

new statute is to make mandatory what was before only the

maximum sentence.” Id. at 400. The Court reasoned as

follows:

Removal of the possibility of a sentence of less

than fifteen years . . . operates to [the] detriment

[of petitioners] in the sense that the standard of

punishment adopted by the new statute is more

onerous than that of the old. It could hardly be

thought that, if a punishment for murder of life

imprisonment or death were changed to death

alone, the latter penalty could be applied to

homicide committed before the change. Yet this

is only a more striking instance of the detriment
44

which ensues from the revision of a statute

providing for a maximum and minimum

punishment by making the maximum compulsory.

. . . It is plainly to the substantial disadvantage of

petitioners to be deprived of all opportunity to

receive a sentence which would give them

freedom from custody and control prior to the

expiration of the fifteen-year term. 

Id. at 401-02 (citation omitted).

In Weaver, the Supreme Court similarly held that a

Florida law which, “[o]n its face, reduce[d] the number of

monthly gain-time credits available to an inmate who abides by

prison rules and adequately performs his assigned tasks,”

violated the Ex Post Facto Clause because “[b]y definition, this

reduction in gain-time accumulation lengthens the period that

someone in petitioner’s position mustspend in prison.” Weaver,

450 U.S. at 31. The Court noted that “a prisoner’s eligibility for

reduced imprisonment is a significant factor entering into both

the defendant’s decision to plea bargain and the judge’s

calculation of the sentence to be imposed.” Id. at 32 (citing

Wolff v. McDonnell, 418 U.S. 539, 557 (1974)). The Court

explained its conclusion as follows:

Critical to relief under the Ex Post Facto Clause

is not an individual’s right to less punishment, but

the lack of fair notice and governmental restraint

when the legislature increases punishment beyond
45

what was prescribed when the crime was

consummated. Thus, even if a statute merely

alters penal provisions accorded by the grace of

the legislature, it violates the Clause if it is both

retrospective and more onerous than the law in

effect on the date of the offense.

Id. at 30-31. Citing Lindsey, the Court concluded that the

petitioner in Weaver “[was] similarly disadvantaged by the

reduced opportunity to shorten his time in prison simply through

good conduct.” Id. at 33-34. 

Conversely, in Dobbert v. Florida, the Supreme Court

reviewed a “new statute . . . [that] altered the methods employed

in determining whether the death penalty was to be imposed,”

and concluded that there was no ex post facto violation because

though the challenged provisions changed the role of jury and

judge in sentencing, they did not add to the “quantum of

punishment.” Dobbert v. Florida, 432 U.S. 282, 293-94 (1977).

“[E]ven if a law operates to the defendant’s detriment, the ex

post facto prohibition does not restrict ‘legislative control of

remedies and modes of procedure which do not affect matters of

substance.’” Miller v. Florida, 482 U.S. 423, 433 (1987)

(quoting Dobbert, 432 U.S. at 293). “Hence, no ex post facto

violation occurs if the change in the law is merely procedural

and does ‘not increase the punishment, nor change the

ingredients of the offen[s]e or the ultimate facts necessary to

establish guilt.’” Id. (quoting Hopt v. Utah, 110 U.S. 574, 590

(1884)). “On the other hand, a change in the law that alters a
 Morales was convicted of murdering his wife while he was 9

out on parole for having committed a prior murder. Under the

law in place at the time he committed his second murder,

Morales would have been entitled to parole suitability hearings

on an annual basis. Morales, 514 U.S. at 503 (citation omitted).

After his second murder conviction, the California Legislature

authorized the California Board of Prison Terms to defer

subsequent suitability hearings for up to three years if the

prisoner has been convicted of “‘more than one offense which

involves the taking of a life’ and if the Board ‘finds that it is not

reasonable to expect that parole would be granted at a hearing

during the following years and states the bases for the finding.’”

Id. (quoting Cal. Penal Code Ann. § 3041.5(b)(2) (West 1982)).

46

substantial right can be ex post facto ‘even if the statute takes a

seemingly procedural form.’” Id. (quoting Weaver, 450 U.S., at

29, n. 12).

In Cal. Dep’t of Corr. v. Morales, the Supreme Court

considered whether a law changing the procedures concerning

the accessibility of parole suitability hearings violated the Ex

Post Factor Clause. Cal. Dep’t of Corr. v. Morales, 514 U.S.

499 (1995). Morales filed a federal habeas corpus petition

asserting that an amendment to California’s parole procedures

that allowed the California Board of Prison Terms to decrease

the frequency of parole suitability hearings under certain

circumstances constituted an ex post facto law barred by the

United States Constitution. The district court denied the 9

petition. The Ninth Circuit Court of Appeals reversed, however,
47

holding that the retrospective law made a parole hearing less

accessible to respondent and thus effectively increased his

sentence in violation of the Ex Post Facto Clause. The

California Department of Corrections filed a petition for

certiorari before the Supreme Court, and it was granted.

Morales argued before the Court that the new law

increased the punishment attached to his crime because, under

Lindsey, Miller, and Weaver, “a legislature may not stiffen the

‘standard of punishment’ applicable to crimes that have already

been committed.” Morales, 514 U.S. at 505 (citations omitted).

The Supreme Court disagreed. It held that the new law did not

violate the Ex Post Facto Clause because 

the focus of the ex post facto inquiry is not on

whether a legislative change produces some

ambiguous sort of ‘disadvantage,’ nor . . . on

whether an amendment affects a prisoner’s

‘opportunity to take advantage of provisions for

early release,’ but on whether any such change

alters the definition of criminal conduct or

increases the penalty by which a crime is

punishable.

Id. at 499, 506 n.3 (citation omitted) (emphasis added). The

Court distinguished Lindsey, Miller, and Weaver, explaining

that: 

Both before and after the [new law], California

punished the offense of second-degree murder
48

with an indeterminate sentence of “confinement

in the state prison for a term of 15 years to life.”

The amendment also left unchanged the

substantive formula for securing any reductions to

this sentencing range. Thus, although 15 years

was the formal “minimum” term of confinement,

respondent was able to secure a one-third “credit”

or reduction in this minimum by complying with

prison rules and regulations. The amendment had

no effect on the standards for fixing a prisoner’s

initial date of “eligibility” for parole, or for

determining his “suitability” for parole and setting

his release date.

Id. at 507 (citations omitted). The Court also rejected Morales’s

argument that “the Ex Post Facto Clause forbids any legislative

change that has any conceivable risk of affecting a prisoner’s

punishment . . . [where] there is ‘no principled way to determine

how significant a risk of enhanced confinement is to be

tolerated.’” Id. at 508 (quoting Brief for Respondent 39). In

rejecting Morales’s expansive view of the Ex Post Facto Clause,

the Court explained that adopting this contention

would require that we invalidate any of a number

of minor (and perhaps inevitable) mechanical

changes that might produce some remote risk of

impact on a prisoner’s expected term of

confinement [ . . . and charge the judiciary . . . ]

with the micromanagement of an endless array of
49

legislative adjustments to parole and sentencing

procedures, including such innocuous adjustments

as changes to the membership of the Board of

Prison Terms, restrictions on the hours that

prisoners may use the prison law library,

reductions in the duration of the parole hearing,

restrictions on the time allotted for a convicted

defendant’s right of allocution before a sentencing

judge, and page limitations on a defendant’s

objections to presentence reports or on documents

seeking a pardon from the governor. 

Id. at 508-09. The Courtstated that while “[t]hese and countless

other changes might create some speculative, attenuated risk of

affecting a prisoner’s actual term of confinement by making it

more difficult for him to make a persuasive case for early

release, . . . that fact alone cannot end the matter for ex post

facto purposes.” Id. at 508-09.

In Garner v. Jones, 529 U.S. 244 (2000), the Supreme

Court considered whether an amendment to a Georgia rule that

changed parole reconsideration review procedures violated the

Ex Post Facto Clause. Id. at 246. Jones was convicted of

murder and sentenced in 1974 to a term of life in prison. Id. at

247. Having escaped and committed a second murder, Jones

was again convicted and sentenced to life in prison in 1982. Id.

Under Georgia law in effect at the time of Jones’s second

offense, the state’s Board of Pardons and Paroles was required

to consider inmates serving life sentences for parole after seven
50

years, and if not granted, every three years thereafter. Id. (citing

Ga. Code Ann. § 42-9-45(b) (1982)). “After Jones was

incarcerated but before he was initially considered for parole,

the Board [of Pardons] amended its rules to require that parole

reconsideration take place only once every eight years.” Jones

v. Garner, 164 F.3d 589, 590 (11th Cir. 1999) (citing Ga. Comp.

R. & Regs. r. 475-3-.05.(2) n.1). 

Jones brought an action under 42 U.S.C. § 1983,

claiming, inter alia, that the amendment to Rule 475-3-.05(2)

violated the Ex Post Facto Clause. Id. The suit was filed

against individual members of the Parole Board. The district

court granted summary judgment in favor of the Parole Board on

the ground that the amendment to Rule 475-3-.05(2) “change[d]

only the timing between reconsideration hearings for inmates

sentenced to life in prison, thereby relieving the Board of the

necessity of holding parole hearings for prisoners who have no

reasonable chance of being released.” Garner, 529 U.S. at 248

(quotation omitted). The Eleventh Circuit reversed, holding that

retroactive application of the amended Georgia Rule differed in

material respects from the California law sustained in Morales

because it “seems certain” to result in some prisoners serving

extended periods of incarceration. Jones, 164 F.3d at 589;

Garner, 529 U.S. at 248-49. As such, the Eleventh Circuit held

that the amended Georgia Rule violated the Ex Post Facto

Clause. Jones, 164 F.3d at 595. 

The Supreme Court reversed, explaining that “the

standard announced in Morales requires a more rigorous
51

analysis of the level of risk created by the change in law.” 

Garner, 529 U.S. at 255. 

When the rule does not by its own terms show a

significant risk, the respondent must demonstrate,

by evidence drawn from the rule’s practical

implementation by the agency charged with

exercising discretion, that its retroactive

application will result in a longer period of

incarceration than under the earlier rule.

Id. Because Jones had not shown “that as applied to his own

sentence the law created a significant risk of increasing his

punishment,” the Supreme Court remanded the case to the

district court to determine “whether retroactive application of

the amendment to Rule 475-3-.05(2) increases, to a significant

degree, the likelihood or probability of prolonging [Jones’s]

incarceration.” Id. at 255-56.

It is thus clear from the Supreme Court cases that have

reviewed legislative changes affecting parole decisions that, to

demonstrate an ex post facto claim, a plaintiff must show that

the effect of a retroactive change in the law or policy created a

“significant risk” that the sentence ultimately served will be

increased above and beyond what was prescribed when the

crime was consummated, as a result of the new law. Allegations

that changes in the law have produced “some ambiguous sort of

‘disadvantage,’ [or] . . . affect[ed] a prisoner’s ‘opportunity to

take advantage of provisions for early release,’” are not
52

sufficient grounds for bringing an ex post facto claim. Morales,

514 U.S. at 506 n.3 (citations omitted). With these parameters

in mind, we will address the Board of Pardons’ arguments

concerning the viability of Pennsylvania Prison Society’s ex post

facto claim.

1

In granting the Plaintiffs’ Motion for Summary Judgment

on the ex post facto claim, in its March 13, 2006 memorandum

opinion, the District Court reasoned as follows: 

[T]he 1997 amendment[’]s change in voting

requirements, from majority to unanimity, creates

more than a speculative and attenuated risk of

increasing the measure of punishment applied to

life sentenced inmates. Further, the requirement

of convincing all, rather than a majority, of the

Board members that commutation is warranted is

a more difficult task for any applicant, and will

equally disadvantage every applicant to which the

amendment is applied. As such, Plaintiffs have

offered evidence sufficient to demonstrate

individual disadvantage as required by the Third

Circuit in Richardson.

Pa. Prison Soc’y v. Rendell, 419 F. Supp. 2d at 662 (citation

omitted).

The Board of Pardons argued in its motion to dismiss,
53

and throughout this litigation, that Plaintiffs have failed to state

an ex post facto claim because, “in Pennsylvania, clemency is a

process separate and apart from criminal case due process and

involves a matter of executive — not judicial — grace.”

(Appellant’s Op. Br. 17.) The Board of Pardons asserts that

“[c]ommutation . . . is an ad hoc exercise of executive clemency.

A Governor may commute a sentence at any time for any reason

without reference to any standards.” (Defs.’ Reply in Supp. of

Their Mot. to Dismiss 9 (quoting Solem, 463 U.S. at 300-01

(citing Connecticut Board of Pardons v. Dumschat, 452 U.S.

458 (1981))).) 

The 1997 Amendment concerns a change in procedures

required for seeking commutation from the Governor. “Unlike

probation, pardon and commutation decisions have not

traditionally been the business of courts; as such, they are rarely,

if ever, appropriate subjects for judicial review.” Dumschat,

452 U.S. at 464.

In Snodgrass v. Robinson, 512 F.3d 999 (8th Cir. 2008),

the Eighth Circuit affirmed a district court’s dismissal of an ex

post facto claim pursuant to Rule 12(b)(6). Id. at 1000-01.

Snodgrass challenged an Iowa law that altered commutation

procedures by changing the frequency with which a life

sentenced prisoner could apply to the Governor for

commutation. In addressing the plaintiff’s challenge, the Eighth

Circuit explained that

the focus of the ex post facto inquiry is not on
54

whether a legislative change produces some

ambiguous sort of “disadvantage,” nor . . . on

whether an amendment affects a prisoner’s

“opportunity to take advantage of provisions for

early release,” but on whether any such change

alters the definition of criminal conduct or

increases the penalty by which a crime is

punishable. Simply put, not every change in the

law raises ex post facto concerns. The changed

law must create a “significant risk” of increasing

the offender’s punishment.

Here, Snodgrass’s claim does not hinge on the

availability of parole, but on the availability of a

commutation--the only means by which she might

become eligible for parole. Whereas changes to

parole procedures may, in some circumstances

raise ex post facto concerns, changes to Iowa’s

procedures for commutation applications do not.

This is because most parole procedures are

distinct from the highly personal, policy oriented,

and legislatively unchecked authority of the Iowa

governor to grant sentence commutations.

The unpredictability of a wholly discretionary

grant of commutation in Iowa precludes

Snodgrass from demonstrating that the changes in

Iowa’s law raise a “significant risk” that she will

be denied a commutation she otherwise would
55

have received. As such, she cannot demonstrate

there is a significant risk her punishment will be

longer than it would have been under former Iowa

Code Section 902.2. Accordingly, she cannot

make out an ex post facto claim.

Id. at 1002-03 (citations and footnote omitted); see also Smith

v. Sampson, 2009 U.S. Dist. LEXIS 84657 (E.D. Mich. Sept. 17,

2009) (granting defendants’ motion to dismiss plaintiff’s ex post

facto claim challenging a change in commutation procedures in

Michigan that are similar to those in Pennsylvania).

In Smith, the plaintiff’s “claim [was] that the

commutative effect of changes in [Michigan] state law have

impaired his opportunity for commutation in violation of the Ex

Post Facto Clause of the United States Constitution.” Smith,

2009 U.S. Dist. LEXIS 84657 at *3. In opposing the

defendants’ motion to dismiss, Smith argued that, under Garner,

he was entitled to show, “by evidence drawn from the rule’s

practical implementation by the agency charged with exercising

discretion, . . . its retroactive application will result in a longer

period of incarceration than under the earlier rule” because “the

requisite risk was not inherent in the framework of an amended

rule.” Id. at *4 (citing Garner, 529 U.S. at 255). The district

court held that “Garner [is] distinguishable given the

differences in the discretionary authority of the parole board and

the governor.” Id. Citing Snodgrass, the district court granted

the defendants’ motion to dismiss based upon its determination

that Smith “cannot show that the change [in the law] creates a
56

‘significant risk’ that he will be denied a commutation” because

“the impact of any change in the law . . . will never be more than

speculative relative to the governor’s exercise of her right to

commute sentences. Id. at *8 (citing Snodgrass, 512 F.3d at

1002 n.2).

It is well settled that, “[a]s a matter of law, parole and

commutation are different concepts, despite some surface

similarities.” Solem, 463 U.S. at 300. In Solem, the Supreme

Court explained: 

Parole is a regular part of the rehabilitative

process. Assuming good behavior, it is the normal

expectation in the vast majority of cases. The law

generally specifies when a prisoner will be

eligible to be considered for parole, and details

the standards and procedures applicable at that

time. See, e. g., Greenholtz v. Nebraska Penal

Inmates, 442 U.S. 1 (1979) (detailing Nebraska

parole procedures); Morrissey v. Brewer, 408

U.S. 471, 477 (1972) (“the practice of releasing

prisoners on parole before the end of their

sentences has become an integral part of the

penological system”). Thus it is possible to

predict, at least to some extent, when parole might

be granted. 

Id. at 300-01.

The Constitutions of the United States and of the
57

Commonwealth of Pennsylvania entrust clemency decisions to

the sole discretion of the executive branch. See U.S. Const. art.

II, § 2, cl. 1 (the President “shall have Power to grant Reprieves

and Pardons for Offenses against the United States . . .”); Pa.

Const. art. IV, § 9 (a) (“In all criminal cases except

impeachment the Governor shall have power to remit fines and

forfeitures, to grant reprieves, commutation of sentences and

pardons . . .”). 

The genesis of the doctrine of the sovereign power to

grant clemency in the United States is found in the English

common law. “In England, the clemency power was vested in

the Crown and can be traced back to the 700’s.” Herrera v.

Collins, 506 U.S. 390, 412 (1993). As the Supreme Court

explained in Schick v. Reed, 419 U.S. 256 (1974):

At the time of the drafting and adoption of our

Constitution it was considered elementary that . .

. the king may extend his mercy on what terms he

pleases, and consequently may annex to his

pardon any condition that he thinks fit.

Id. at 261 (quotation marks and citation omitted). Historically,

the exercise of clemency authority has been considered “a matter

of grace.” See, e.g., Ohio Adult Parole Auth. v. Woodard, 523

U.S. 272, 282 (1998) (a petition for commutation is a “unilateral

hope”; clemency is “a matter of grace”); United States v. Wilson,

32 U.S. 150, 160 (1833) (“A pardon is an act of grace”).

In Wilson, drawing on England’s historical and judicial
58

experience, Chief Justice John Marshall explained the origin of

the executive pardon: 

The constitution gives to the president, in general

terms, “the power to grant reprieves and pardons

for offences against the United States.”

As this power had been exercised, from time

immemorial, by the executive of that nation

whose language is our language, and to whose

judicial institutions ours bear a close

resemblance[,] we adopt their principles

respecting the operation and effect of a pardon,

and look into their books for the rules prescribing

the manner in which it is to be used by the person

who would avail himself of it.

A pardon is an act of grace, proceeding from the

power entrusted with the execution of the laws,

which exempts the individual, on whom it is

bestowed, from the punishment the law inflicts

for a crime he has committed. It is the private,

though official act of the executive magistrate,

delivered to the individual for whose benefit it is

intended, and not communicated officially to the

court. It is a constituent part of the judicial

system, that the judge sees only with judicial eyes,

and knows nothing respecting any particular case,

of which he is not informed judicially. A private
59

deed, not communicated to him, whatever may be

its character, whether a pardon or release, is

totally unknown and cannot be acted on. The

looseness which would be introduced into judicial

proceedings, would prove fatal to the great

principles of justice, if the judge might notice and

act upon facts not brought regularly into the

cause. Such a proceeding, in ordinary cases,

would subvert the best established principles, and

overturn those rules which have been settled by

the wisdom of ages.

Wilson, 32 U.S. at 160-61.

In Ex parte Wells, 59 U.S. 307 (1856), the Court again

addressed the origin and exercise of executive clemency:

At the time of our separation from Great Britain,

[the pardon] power had been exercised by the

king, as the chief executive. Prior to the

revolution, the colonies, being in effect under the

laws of England, were accustomed to the exercise

of it in the various forms, as they may be found in

the English law books. They were, of course, to

be applied as occasions occurred, and they

constituted a part of the jurisprudence of

Anglo-America. At the time of the adoption of

the constitution, American statesmen were

conversant with the laws of England, and familiar
60

with the prerogatives exercised by the crown.

Hence, when the words to grant pardons were

used in the constitution, they conveyed to the

mind the authority as exercised by the English

crown, or by its representatives in the colonies.

At that time both Englishmen and Americans

attached the same meaning to the word pardon. In

the convention which framed the constitution, no

effort was made to define or change its meaning,

although it was limited in cases of impeachment.

Id. at 311.

In Herrera, the Court reaffirmed the traditional

conception of clemency as a function of the executive branch,

separate from adjudicatory proceedings within the Judicial

Branch. Herrera, 506 U.S. at 411-13. The Court noted that one

of the great advantages of monarchy is “that there is a

magistrate, who has it in his power to extend mercy, wherever

he thinks it is deserved: holding a court of equity in his own

breast, to soften the rigour of the general law, in such criminal

cases as merit an exemption from punishment.” Id. at 412

(quoting 4 William Blackstone, Commentaries on the Laws of

England *397). In Dumschat, the Court instructed that “pardon

and commutation decisions have not traditionally been the

business of courts; as such, they are rarely, if ever, appropriate

subjects for judicial review.” Dumschat, 452 U.S. at 464; see

also Ohio Adult Parole Auth., 523 U.S. at 289 (“[I]t is true that

‘pardon and commutation decisions have not traditionally been
61

the business of courts . . .’”) (quoting Dumschat, 452 U.S. at

464)).

The Pennsylvania courts have held that the judiciary 

can[not] impinge upon the exclusive jurisdiction

of the executive branch of the government in

[determining whether to commute a sentence].

Action by the Board of Pardons is in accordance

with constitutional provisions and in no way

comes under the aegis of the courts. Indeed, were

a court to review the conduct of a hearing before

the Board of Pardons it would be a clear invasion

by judicial direction of the immunity granted the

executive branch of our government. Such is not

consonant with our constitutional doctrine of

separation of powers. 

Commonwealth ex rel. Cater v. Myers, 412 Pa. 67, 71 (1963)

(quoting Mississippi v. Johnson, 4 Wall. 475 (1866), which held

that “[t]he Congress is the legislative department of the

government; the President is the executive department. Neither

can be restrained in its action by the judicial department”), cert.

denied, 376 U.S. 933 (1964); see also Commonwealth v. Gaito,

419 A.2d 1208, 1212 (Pa. Super. Ct. 1980) (“The Governor’s

power to commute sentences, on recommendation of the Board

of Pardons, is exclusive, and courts may not in any way impinge

on the exercise of this power.”).

The Supreme Court has instructed that there are four
62

exceptions to the sovereign’s executive clemency powers. First,

a pardon cannot interfere with the vested property rights of third

parties in violation of the Takings Clause. See U.S. Const.

amend. V (“Nor shall private property be taken for public use,

without just compensation.”); see also Knote v. United States,

95 U.S. 149, 154 (1877) (“Neither does the pardon affect any

rights which have vested in others directly by the execution of

the judgment for the offence, or which have been acquired by

others whilst that judgment was in force.”); Ex parte Garland,

71 U.S. 333, 381 (1866) (“There is only this limitation to [the

pardon power’s] operation: it does not restore offices forfeited,

or property or interests vested in others in consequence of the

conviction and judgment.”). Second, in Hart v. United States,

118 U.S. 62 (1886), the Court instructed that a pardon cannot

require the payment of funds from the Treasury in violation of

the Spending Clause. Id. at 67; see also Knote, 95 U.S. at 154

(“The power of the pardon . . . cannot touch moneys in the

treasury of the United States, except expressly authorized by act

of Congress. The Constitution places this restriction upon the

pardoning power.”). Third, a pardon cannot require a prisoner

to forfeit his constitutional rights unreasonably. See Schick, 419

U.S. at 266 (noting that the pardon power “permits the

attachment of any conditions which does not otherwise offend

the Constitution”). 

The Supreme Court has also instructed that the

procedures by which a pardon is granted must comply with the

Due Process Clause of the Fifth Amendment. Ohio Adult
 The Pennsylvania Prison Society has not appealed from the 10

District Court’s denial of the Plaintiffs’ due process claim in this

cross-appeal.

63

Parole Auth., 523 U.S. at 276. “The Due Process Clause is not

violated, [however], where . . . the procedures in question do no

more than confirm that the clemency and pardon power is

committed, as is our tradition, to the authority of the executive.”

Id. Justice O’Connor explained in her concurrence in Ohio

Adult Parole Auth.: 

[A]lthough it is true that “pardon and

commutation decisions have not traditionally been

the business of courts,” Dumschat, supra, at 464,

and that the decision whether to grant clemency is

entrusted to the Governor under [state] law, I

believe that the Court of Appeals correctly

concluded that some minimal procedural

safeguards apply to clemency proceedings.

Judicial intervention might, for example, be

warranted in the face of a scheme whereby a state

official flipped a coin to determine whether to

grant clemency, or in a case where the State

arbitrarily denied a prisoner any access to its

clemency process. 

Id. at 289 (O’Connor, J. concurring).10

Beyond these judicially imposed limitations on the
 For example, Congress can check misuse of the pardon 11

power by impeaching the President. See e.g., U.S. Const. art. I,

§ 2, cl. 5 (“The House of Representatives ... shall have the sole

Power of Impeachment.”); id. art. I, § 3, cl. 6 (“The Senate shall

have the sole Power to try all Impeachments.”); id. art. II, § 4

(“The President ... shall be removed from Office on

Impeachment for, and Conviction of, Treason, Bribery, or other

High Crimes and Misdemeanors.”); Ex parte Grossman, 267

U.S. 87, 121 (1925) (noting that the President could be

impeached if he pardoned too many criminal contempts). The

voters also have the ability to check the executive clemency

power by choosing not to re-elect a President or Governor whom

they believe may be inappropriately using the pardon power.

Morrison v. Olson, 487 U.S. 654, 711 (1988) (Scalia, J.,

dissenting) (“Ultimately, there is the political check that the

people will replace those in the political branches . . . who are

guilty of abuse.”). 

64

executive clemency power, the remaining checks on the

sovereign power of the President or of a Governor are left to the

legislative branch and to the powers vested in the people. 

11

Here, the voters of the Commonwealth of Pennsylvania

expressly voted to limit the Governor’s clemency power, as they

are empowered to do under Article XI of the Pennsylvania

Constitution. Pa. Const. art. XI. By mandating that all

recommendations for a commutation considered by the

Governor must first be approved by a unanimous vote of the

Board of Pardons, the 1997 Amendment restricted, but did not
65

absolutely foreclose, the exercise of the Governor’s sovereign

power to grant a commutation to inmates sentenced to life

imprisonment. The power to grant or deny commutations, as

prescribed by the Commonwealth’s voters, rests solely with the

executive branch which may “deny the requested relief for any

constitutionally permissible reason or for no reason at all.” See

Dumschat, 452 U.S. at 467 (Brennan, J. concurring) (stating that

an inmate sentenced to life imprisonment for murder has “no

protectible liberty interest in a pardon” (citing Meachum, 427

U.S. at 228)). Accordingly, the Pennsylvania Prison Society has

not demonstrated that it has a viable claim that the 1997

Amendment raises a “significant risk” that commutations will be

denied that otherwise would have been received. Snodgrass,

512 F.3d at 1002. 

2

The Board of Pardons also argues that the 1997

Amendment does not violate the Ex Post Facto Clause because

it does not “increase[] the penalty” by which a crime is

punishable of inmates who are sentenced to life without the

possibility of parole. (Appellants’ Reply Br. 10.) See Morales,

514 U.S. at 505. The District Court held that the retrospective

application of the 1997 Amendment violates the Ex Post Facto

Clause because the “change in voting requirements, from

majority to unanimity, creates more than a speculative and

attenuated risk of increasing the measure of punishment applied

to life sentenced inmates” and “disadvantage the applicants.”

Pa. Prison Soc’y v. Rendell, 419 F. Supp. 2d at 661. 
66

Citing the standard set forth in Garner, the District Court

considered “evidence drawn from the [new law’s] practical

implementation,” i.e., an analysis of the parties’ stipulated rate

and frequency of commutations granted to life-sentenced

inmatesin Pennsylvania between 1970 and 2005, and concluded

that as applied to those inmates sentenced after its effective date,

the 1997 Amendment posed a “significant risk” of increased

punishment. Pa. Prison Soc’y v. Rendell, 419 F. Supp. 2d at

660-61 n.1 & n.2. Based upon its finding that “the total number

of recommendations by the [Pardons] Board for commutation

for life sentenced prisoners [was] significantly lower than the

number of recommendations in the eight years prior to the [1997

A]mendments’ passage,” the District Court concluded:

[E]ven though a less than unanimous vote did not

guarantee a life sentenced prisoner commutation

prior to the passage of the 1997 amendments and

although commutation is not completely

foreclosed following the passage of the

amendments, the 1997 amendments significantly

reduced the likelihood of a life sentenced prisoner

receiving a recommendation by the Board for

commutation and, as such, the 1997 amendments

make commutations and parole even more remote

for those inmates.

Id. at 660-61. 

In granting the Prison Society’s Motion for Summary
67

Judgment, the District Court based its decision on the following

passage from Mickens-Thomas v. Vaughn:

[A]n offender, prior to his conviction and

sentencing, is entitled to know not only his

maximum possible punishment, but also his or her

chances of receiving early release, since this too

is a relevant factor in the plea bargaining calculus.

An adverse change in one’s prospects for release

disadvantages a prisoner just as surely as an

upward change in the minimum duration of

sentence.

Pa. Prison Soc’y v. Rendell, 419 F. Supp. 2d at 659 (quoting

Mickens-Thomas, 321 F.3d at 392). 

Mickens-Thomas involved an ex post facto challenge to

a “material modification of [Pennsylvania] parole laws.” 

Mickens-Thomas, 321 F.3d at 376 (emphasis added). MickensThomas was convicted of rape and murder in 1964. Id. He was

sentenced to life in prison. The Governor of Pennsylvania

commuted Mickens-Thomas’s life sentence. Id. at 377. In

December 1996, the Pennsylvania legislature changed the law

concerning the decision-making policies of the Pennsylvania

Board of Probation and Parole to require that the “primary

consideration” in determining whether a prisoner was eligible

for release on parole was “the risk to public safety by the parole

petitioner as the dominant factor in evaluating parole

applications.” Id. “The 1941-1996 statute, in effect at the time
68

of Thomas’s conviction, made no specific mention of public

safety.” Id. Mickens-Thomas was denied parole over the course

of the following three years for various reasons, including that

his past crime was a sex offense and that he was “in a ‘deniers’

group – those who deny responsibility for the underlying

offense.” Id. at 381 (emphasis added).

In December 1999, Mickens-Thomas filed a petition for

a writ of habeas corpus in the United States District Court

“alleg[ing] that the Board denied his parole in violation of the

Ex Post Facto clause, by applying retroactively the revised

December 1996 parole statute.” Id. at 383. 

The district court in Mickens-Thomas held that the

Pennsylvania Board of Probation and Parole “retroactively

applied this [statutory] policy change adversely to the parole

applications of Louis Mickens-Thomas . . . in violation of the Ex

Post Facto clause.” Id. at 376 (emphasis added). This Court

affirmed, holding that “to retroactively apply changes in the

parole laws[,] made after conviction for a life sentence in

Pennsylvania that adversely affect the release of prisoners whose

sentences have been commuted, violates the Ex Post Facto

clause.” Id. at 393 (emphasis added). This Court also

concluded that: 

Pre-1996, a prisoner could be denied parole

because of public safety concerns only if those

concerns together with other relevant factors

outweighed, by a preponderance, the liberty
69

interests of the inmate. The 1996 policy change

placed first and foremost the public safety to the

disadvantage of the remaining liberty interest of

the prisoner.

Id. at 385.

The issue presented in Mickens-Thomas is similar to the

arguments raised by the petitioners in Weaver, Morales, and

Garner in challenging the denial of release on parole. In each

of these cases, prisoners seeking release on parole challenged a

statutory change in parole release laws. Mickens-Thomas was

sentenced to life without the possibility of parole. He

challenged the retrospective application of Pennsylvania’s

parole laws, not the procedures employed by the Board of

Pardons for prisoners seeking a commutation. 

In support of its decision on this matter, the District Court

relied on this Court’s statement in Mickens-Thomas that

“‘eligibility for a commutation of a life sentence entails the

possibility of parole[,]’ and although commutations ‘are quite

rare,’ application of the new parole policies rendered Thomas’

prospects for parole ‘even more remote’ in violation of the Ex

Post Facto Clause.” Pa. Prison Soc’y v. Rendell, 419 F. Supp.

2d at 659 (quoting Mickens-Thomas, 321 F.3d at 392). Based

upon this comment, the District Court concluded that the

retroactive application of the 1997 Amendment to the

Governor’s sovereign clemency powers created a “significant

risk” of increased punishment for life-sentenced prisoners. Id.
70

We disagree. Mickens-Thomas is not dispositive on the question

whether the 1997 Amendment, which concerned the executive

clemency power, impaired a prisoner’s rights under the Ex Post

Facto Clause. Mickens-Thomas solely concerns a prisoner’s

right to parole. It does not address the viability of a claim

challenging the scope of a Governor’s clemency power to grant

commutation. 

Furthermore, “[t]here is no constitutional or inherent

right of a convicted person to be conditionally released before

the expiration of a valid sentence.” Greenholtz v. Inmates of

Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979). “The

unpredictability of a wholly discretionary grant of commutation

. . . precludes [plaintiffs] from demonstrating that the changes in

. . . [the] law raise a ‘significant risk’ that [plaintiffs] will be

denied a commutation [they] otherwise would have received.”

Snodgrass, 512 F.3d at 1002. “As such, [Plaintiffs] cannot

demonstrate there is a significant risk [their] punishment will be

longer than it would have been under former [law].” Id. 

There is no ex post facto violation where a retroactively

applied law does not make one’s punishment more burdensome,

but merely creates a disadvantage. See Hameen v. Delaware,

212 F.3d 226, 238 n.2 (3d Cir. 2000) (explaining that a law is

not ex post facto merely because it worked to the detriment or

substantial disadvantage of the defendants) (quotations and

citations omitted). The Pennsylvania Prison Society is

representing the interests of prisoners who are serving a

maximum sentence of life without the possibility of parole. See
71

Mickens-Thomas, 321 F.3d at 377 (“Life sentences in

Pennsylvania presumptively exclude any possibility of parole.”).

“[I]n Pennsylvania, . . . the legal sentence is the maximum

sentence.” Commonwealth v. Sutley, 474 Pa. 256, 268 (1977)

(citations omitted); see also Commonwealth v. Daniel, 430 Pa.

642 (1968) (“Under Pennsylvania law . . . the maximum

sentence is the only portion of the sentence which has legal

validity . . . .”). The 1997 Amendment, therefore, does not

“increase[] the penalty by which [any of Plaintiffs’] crime[s]

[were] punishable,” because all of the crimes for which the

prisoners represented by the Pennsylvania Prison Society were

convicted were punishable by life in prison without the

possibility of parole at the time they were convicted and validly

sentenced. Morales, 514 U.S. at 506.

We disagree with the District Court’s conclusion that the

retrospective application of the 1997 Amendment to the

Governor’s clemency power “creates more than a speculative

and attenuated risk of increasing the measure of punishment

applied to life sentenced inamtes.” Pa. Prison Soc’y v. Rendell,

419 F. Supp. 2d at 661 (emphasis added).

3

Finally, the Board of Pardons argues that “the [District

C]ourt should have determined that, on its face, that [the Second

Amended Complaint] presented no viable ex post facto claim

arising from the 1997 constitutional amendment changing the

voting procedures of the Board of Pardons.” (Appellants’ Op.
72

Br. 28-29.) “Changes in procedures that might make it more

difficult to obtain . . . clemency do not carry with them ex post

facto consequences.” (Appellants’ Reply Br. 16.) 

“Although the prohibitions against ex post facto laws

cannot be evaded just by calling a change in law procedural,

only the ‘alteration of a substantial right’ is forbidden.” United

States v. Molt, 758 F.2d 1198, 1200 (7th Cir. 1985) (quoting

Weaver, 450 U.S. at 29 n.12, and holding that a “change in the

standard for bail pending appeal is not an ex post facto law”);

see also McKenzie v. Day, 57 F.3d 1461, 1469 (9th Cir. 1995)

(McKenzie’s claim that the state violated his rights under the ex

post facto clause by changing the place and procedures

applicable to his execution is precluded by Holden v. Minnesota,

137 U.S. 483 (1890), which stands for the proposition that such

matters are “regulations that do not affect [the prisoner’s]

substantial rights.”). 

In Molt, the Seventh Circuit explained that

the presumption is against construing a procedural

change as an ex post facto law, and [that] must

carry the day in the absence of a stronger showing

than made in this case that the change works an

increase in punishment. For though we have been

speaking of the Bail Reform Act as if it had

abolished the right to bail pending appeal, it did

no such thing; it merely made it harder to get bail

pending appeal . . . The change in the balance of
73

advantages against the defendant is too slight to

bring the change within the scope of the ex post

facto clause. 

Molt, 758 F.2d at 1200.

We agree with the Board of Pardons that the 1997

Amendment presents no viable ex post facto claim because it

only concerns a change in the voting procedures employed by

the Board of Pardons, a change that does not affect the

prisoners’ substantial rights and thus one that is “too slight” to

bring it within the scope of the Ex Post Facto Clause. Molt, 758

F.2d at 1200.

B

We are persuaded that the District Court erred as a matter

of law when it failed to grant the Commonwealth’s Motion to

Dismiss Plaintiffs’ ex post facto claim pursuant to Rule 12(b)(6).

For the same reasons, the District Court also erred in granting

summary judgment in favor of the Pennsylvania Prison Society.

“Generally, a denial of a motion to dismiss does not

conclusively determine anything because it merely decides that

questions of fact remain to be decided.” Pan Eastern

Exploration Co. v. Hufo Oils, 798 F.2d 837, 839 (5th Cir. 1986)

(citing Coleman by Lee v. Stanziani, 735 F.2d 118, 120 (3d Cir.

1984)). “If, [however,] on appeal from a final judgment, an

appellate court finds that the motion to dismiss should have been

granted, it can direct the lower court to dismiss.” Id. at 840; see
74

also Stinson v. Kaiser Gypsum Co., 972 F.2d 59, 63 (3d Cir.

1992) (reversing where “the district court should have granted

Kaiser’s motion to dismiss based on Pennsylvania’s two-year

statute of limitations” and remanding “so that it may do so”);

Liotta v. Nat’l Forge Co., 629 F.2d 903, 908 (3d Cir. 1980)

(reversing district court’s grant of summary judgment where a

motion to dismiss should have been granted and the case

remanded for further proceedings); Gardner v. The Calvert, 253

F.2d 395, 398 (3d Cir. 1958) (same).

IV

The Pennsylvania Prison Society argues in their crossappeal that the District Court erred because “[i]t did not enter a

declaratory judgment; it did not enter an injunction; it did not

even specify to whom, if anyone, its judgment applies.

(Appellees’/Cross-Appellants’ Br. 48-49.) Based upon our

conclusion that the Commonwealth’s Motion to Dismiss

Plaintiffs’ ex post facto claim pursuant to Rule 12(b)(6) should

have been granted because Plaintiffs have failed to state a viable

ex post facto claim, we will affirm the District Court’s denial of

the Pennsylvania Prison Society’s request for a declaratory

judgment and injunctive relief. See Bircoll v. Miami-Dade

County, 480 F.3d 1072, 1088 n.21 (11th Cir. 2007) (this Court

may affirm on any ground supported by the record). 

CONCLUSION 

For the foregoing reasons, we reverse the District Court’s

grant of summary judgment in favor of the Pennsylvania Prison
75

Society and remand this matter with instructions that the District

Court shall enter an order dismissing this action.