home *** CD-ROM | disk | FTP | other *** search
- SUPREME COURT OF THE UNITED STATES
- CLARK ALBERT BAILEY v. ARTHUR E. NOOT et al.
- on petition for writ of certiorari to the united
- states court of appeals for the eighth circuit
- No. 91-7002. Decided March 23, 1992
-
-
-
- The petition for a writ of certiorari is denied.
- Justice White, with whom Justice Blackmun joins,
- dissenting.
- The issue in this case is whether the ex post facto clause
- of the Constitution, Art. I, 9, cl. 3, is violated when a
- newly-modified state parole regulation is applied to a
- prisoner who began serving his sentence prior to the rule
- change.
- Petitioner pled guilty to the 1976 kidnap, sexual abuse,
- and murder of a young girl; he was sentenced to three
- concurrent jail terms, the longest of which was 40 years. In
- 1981, the Minnesota Corrections Board determined that,
- because of the severity of petitioner's crimes, the target
- date for his release should be the expiration of his sentence.
- In a letter to petitioner, the Board stated that it would ``not
- consider any form of release prior to the expiration of your
- sentence unless psychiatric, psychological, and correctional
- staff can certify that you are no longer a danger to the
- public in general and/or young females specifically.''
- A year later, the Minnesota legislature abolished the
- corrections board and transferred parole responsibility to
- the commissioner of corrections. Minn. Stat. 243.05. The
- commissioner enacted new parole regulations, including a
- rule that ``[a]ll release dates established by the Minnesota
- corrections board will be left in full force and effect by the
- commissioner.'' 3 Minn. R. 2940.1500, subp. 2. Petitioner
- was informed that this new regulation effectively froze his
- release date.
- Petitioner filed this civil rights action under 42 U. S. C.
- 1983, asserting that application of the new parole regula-
- tion to his case violated the ex post facto clause. The
- United States District Court for the District of Minnesota
- entered summary judgment for respondents. A divided
- panel of the Court of Appeals for the Eighth Circuit
- affirmed, holding that ``the Minnesota parole regulations
- are not `laws' for ex post facto purposes . . . .'' Bailey v.
- Gardebring, 940 F. 2d 1150, 1157 (CA8 1991). The Court,
- again divided, denied rehearing en banc.
- The judgment of the Court of Appeals conflicts with
- decisions of other circuit courts, which have held that
- application of changed state parole regulations may pose ex
- post facto problems. See, e.g., Akins v. Snow, 922 F. 2d
- 1558 (CA11), cert. denied, 111 S. Ct. 2915 (1991); Royster v.
- Fauver, 775 F. 2d 527 (CA3 1985). Because the issue is
- likely to arise frequently, I would grant certiorari to resolve
- the disagreement.
-