3rd Circuit Orders Release of Inmate Shannon P. Duffy The Legal Intelligencer 01-16-2004 In a decision that sharply criticizes the actions of Pennsylvania parole officials, a federal appeals court has ordered the release of Louis Mickens-Thomas -- a 75-year-old Philadelphia man imprisoned since 1964 -- after finding that the board's latest explanations for denying his parole was a "thinly veiled excuse" that "leaves us with no doubt of its bad faith." In Mickens-Thomas v. Vaughn, a unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals found that the Pennsylvania Board of Probation and Parole had shown a pattern of "vindictiveness" and "retaliation" toward Mickens-Thomas by raising new issues at each parole hearing after he went to court and successfully challenged the board's prior decisions. "The board's use of known but hitherto uncounted historical factors after [Mickens-Thomas] brought state and federal actions has created a sufficient appearance of vindictiveness to justify voiding any consideration of those newly added factors," Senior Circuit Judge Max Rosenn wrote. "Those factors are not only unworthy of consideration, but also raise a presumption of vindictiveness on the part of the board," Rosenn wrote in an opinion joined by Judges Dolores K. Sloviter and Theodore A. McKee. The ruling is a victory for attorneys David Rudovsky of Kairys Rudovsky Epstein & Messing and Professor Leonard N. Sosnov of the Widener University School of Law, who have been fighting for Mickens-Thomas' release for eight years. Mickens-Thomas is serving a life sentence for a murder he has always insisted he did not commit. In 1995, Gov. Robert P. Casey commuted his sentence in the final days of his administration. Of the 30 petitions on Casey's desk at the time, Mickens-Thomas' was the only one granted. But soon after, Gov. Tom Ridge took office and refused to carry out Casey's wishes. State parole officials have been rejecting Mickens-Thomas' requests for parole ever since. In March 2002, a federal judge ordered a new parole hearing for Mickens-Thomas after concluding that his prior hearings were unfair. U.S. District Judge Ronald L. Buckwalter found that parole officials had acted illegally when they retroactively applied recent parole law changes to Mickens-Thomas' case in violation of the Ex Post Facto Clause. Buckwalter found that there had been a sharp drop in the number of parole petitions granted to violent offenders ever since the state Probation and Parole Act was amended in 1996. As a result, Buckwalter concluded that the new law is being applied retroactively and that "violent offenders now may face a significant likelihood of serving more time in prison and thus have been disadvantaged by the change in the law." For Mickens-Thomas, the change in the law came at just the wrong time -- soon after his life sentence was commuted by Casey but before his case was heard by the board. Parole officials appealed Buckwalter's ruling, but the 3rd Circuit ruled that Buckwalter was correct and that Mickens-Thomas was entitled to a new parole hearing under the old rules. In a February 2003 decision, the 3rd Circuit gave the board 45 days to decide Mickens-Thomas' case, saying, "We expect that, on remand, the board will not be defensive, but instead will fairly consider [Mickens-Thomas'] application in the light of our observations." At the time, Rosenn said that if the board denied parole, it must issue a written decision "buttressed by unique factors which … affirmatively outweigh reasons supporting release." Now Rosenn has concluded that the board ignored key aspects of the 3rd Circuit's decision when it handed down its most recent denial of parole for Mickens-Thomas. "Following the issuance of our mandate … the board did not conduct any hearing or call any witness. It did not consider any 'unique factors' that were not already incorporated in its prior-1996 guideline," Rosenn wrote. "Instead of balancing factors favoring parole with unique factors that may weigh against parole, the board considered the same old factors in the same manner found by us to be violative of the ex post facto prohibition in our earlier opinion," Rosenn wrote. Rosenn, referring to Mickens-Thomas as just Thomas, found that the board "defied our instruction to discontinue its pretextual use of Thomas's alcohol abuse 40 years ago and once again relied on that factor as a post hoc defense of its unconstitutional method of reviewing Thomas's parole applications." On the same issue, Rosenn said, the board "failed to consider, as we expressly required it to do, whether Thomas should be deemed to have been rehabilitated with his present history of sobriety for 40 years in prison, his consistent participation in Alcoholics Anonymous, and his compliance with the prison's alcohol abuse prevention programs." The board, Rosenn said, had effectively concluded that Mickens-Thomas had no chance of recovery from alcoholism by concluding that his interactions with male prisoners while sober was "not a reliable predictor of your behavior toward defenseless women and children, your likely victims if you are released and able to consume alcohol." Rosenn concluded that "the board obviously has presumed that having abused alcohol prior to his murder conviction, Thomas will always abuse alcohol regardless of his successful participation in the prison's alcohol abuse prevention programs. That presumption would preclude any possibility of rehabilitation and doom any prospect of parole." But Rosenn also found that the board's reliance on alcoholism wasn't genuine. "We believe that the board's sudden reliance on Thomas's alcohol abuse 40 years ago … was designed to negate Thomas's parole. The board's reliance on that factor was not only unjustifiable under the board's guidelines and policies, but also unconstitutional because the board retroactively applied a factor that it had suddenly found to be significant based on the amended parole statute and new policies," Rosenn wrote. Similarly, Rosenn found that the board had defied the 3rd Circuit's instruction to "discontinue its manipulation of the hitherto insignificant factors of Thomas's non-admission of guilt and his participation only in the 'denier' part of sex-offender therapy program." In the February 2003 decision, the 3rd Circuit noted that the board "had viewed these factors neutrally, even in the year 2000, and that it asserted those factors as a post hoc defense of its practice for the first time in its previous brief to us." In its most recent denial, Rosenn said, "the board now has not only defied our instruction to disregard those factors, it has also gone two steps further in a continued course of constitutional violations. "First, to manipulate a result of denial, the board for the first time expressly equates a claim of innocence with remorselessness and refusal to accept responsibility, which the board equates in turn with failure of rehabilitation and likelihood to commit new crimes if paroled. This position is flatly contrary to the board's position in the original habeas corpus hearing when its counsel stated that Thomas had completed all sexual programs available to him," Rosenn said. "Second … the board has committed a new and glaring instance of ex post facto violation by applying a newly enacted statute retroactively to Thomas. The board's recent requirement that Thomas participate in the 'admitter' part of [the] sex offender therapy program to qualify for parole is in essence a retroactive application of 42 Pa. Stat. Ann. Section 9718.1, enacted in December 2000." In his final paragraphs, Rosenn said the 3rd Circuit was at first reluctant to intrude on the board's "discretionary powers" and had hoped that remanding Mickens-Thomas' case for a new parole hearing would give the board the chance to consider the case fairly. "Our hopes, however, were illusory," Rosenn wrote. "The combination of willful noncompliance, bad faith, and a sufficient inference of retaliation or vindictiveness on the part of the board convinces us that it would be futile to further remand Thomas's parole application to the board for a fair disposition under the pre-1996 regime of parole laws and guidelines. We, therefore, conclude that the appropriate remedy under these circumstances is to grant Thomas unconditional habeas corpus relief." The final sentence of the court's opinion states that the 3rd Circuit's "mandate" will issue "forthwith," meaning that Mickens-Thomas' case will be sent immediately to Buckwalter with an instruction that he order his immediate release on parole.

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