Background
Jason Davies is serving a 6-to-12-year sentence at SCI-Rockview for rape under 18 Pa.C.S. § 3121(a)(1), a conviction that pre-dates a significant 2020 change to Pennsylvania parole law. At the time of his conviction, the Prisons and Parole Code required the Pennsylvania Parole Board to consider parole applications on an annual basis. In November 2020, the General Assembly enacted Section 6139(a)(3.3) of the Parole Code, which reduced that frequency dramatically for certain sex offenders: inmates convicted of rape must now wait three years between mandatory parole reviews rather than one.
The Board denied Davies’ April 2021 parole application and informed him that his next review would not occur until March 2024—applying the new triennial schedule retroactively to his pre-2020 conviction. Davies filed a second parole application in April 2022, roughly one year after the denial, but the Board refused to consider it under Section 6139(a)(3.3). He then filed a complaint for a writ of mandamus in the Commonwealth Court’s original jurisdiction, arguing that applying the triennial review provision to him violated the ex post facto clauses of both the United States Constitution (Art. I, § 9) and the Pennsylvania Constitution (Art. I, § 17). The Board filed preliminary objections in the nature of a demurrer, contending that Davies had failed to state a viable mandamus claim.
The Court’s Holding
The Commonwealth Court sustained the Board’s demurrer and dismissed Davies’ petition with prejudice. Under the established two-part ex post facto test, a challenger must show that a law (1) applies retroactively to pre-enactment conduct, and (2) disadvantages the offender. The court conceded the first element: Section 6139(a)(3.3) plainly applies to Davies’ conviction, which predated the 2020 amendment. The petition failed, however, on the second element.
Citing its unreported decisions in Leonardo (2023) and Moore (2024)—the latter subsequently affirmed by the Pennsylvania Supreme Court in 2025—the court held that reducing mandatory parole-review frequency from annual to triennial neither extends an inmate’s sentence nor alters the Board’s substantive standards for granting parole. An inmate’s maximum sentence remains his actual sentence; a parole eligibility date carries no vested right to release. Section 6139(a)(3.3) also explicitly states that the triennial schedule “shall not be interpreted as granting a right to be paroled to any person.” Crucially, Section 6139(a)(1) of the Parole Code preserves the Board’s authority to grant parole on its own motion at any time when the interests of justice require it—meaning the mandatory-review interval caps only required Board action, not the Board’s discretion to act sooner.
The court also drew direct analogies to U.S. Supreme Court precedent. In California Department of Correction v. Morales, 514 U.S. 499 (1995), the Court upheld a California law reducing annual parole hearings for multiple murderers to hearings as infrequent as once every three years, because the amendment did not affect release standards or the inmate’s substantive eligibility. In Garner v. Jones, 529 U.S. 244 (2000), the Court similarly sustained a Georgia amendment extending the default time between parole hearings for certain offenders. Section 6139(a)(3.3) is structurally similar to both: it applies only to a defined class of offenders (rape convicts), leaves substantive parole criteria unchanged, and does not foreclose earlier Board action. Davies failed to plead specific facts demonstrating a significant risk of increased punishment attributable to the amendment itself, as opposed to the Board’s ongoing substantive evaluation of his fitness for release.
Key Takeaways
- The 2020 amendment reducing mandatory parole review frequency for rape convicts from annual to triennial (61 Pa.C.S. § 6139(a)(3.3)) does not violate the ex post facto clause as applied to inmates convicted before enactment, because it changes only the schedule for mandatory review, not the standards governing whether to grant parole or the Board’s discretion to act sooner under Section 6139(a)(1).
- To state an ex post facto claim against a parole-review frequency amendment, an inmate must plead specific, non-speculative facts showing that the amendment “creates a significant risk” of prolonged incarceration beyond what the Board’s ordinary discretion would produce—a demanding standard that generic delay arguments do not satisfy.
- A mandamus claim against the Board for failure to conduct annual review fails without a clear legal right to that review; where the Board retains authority to grant parole on its own motion at any time, no such clear right exists.
- With the Pennsylvania Supreme Court’s 2025 affirmance in Moore, the ex post facto challenge to Section 6139(a)(3.3) is effectively settled at every level of the Pennsylvania court system.
Why It Matters
For Pennsylvania practitioners representing sex offenders convicted before November 2020, Davies confirms that the constitutional door to forcing annual Board review under the old statute has closed. The most viable path forward for a Section 6139(a)(3.3) challenge now requires careful documentation: if a client has demonstrably addressed every factor cited in prior Board denials and the Board still refuses to reconsider before the three-year mark, that documented gap between the client’s progress and the Board’s inaction can form the factual record for a stronger ex post facto showing. Generic assertions of possible delay will not survive demurrer.
More broadly, the opinion is a reminder that Pennsylvania appellate courts treat parole review frequency as a procedural mechanism, not a vested substantive right. Defense counsel should plan accordingly: rather than relying on mandamus to compel annual hearings, focus on the Board’s own-motion authority under Section 6139(a)(1) and build a record at each interaction that keeps parole within reach even under a triennial schedule.