OCTOBER TERM, 1994
Syllabus
CALIFORNIA DEPARTMENT OF CORRECTIONS ET AL.
v.
MORALES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 93-1462. Argued January 9, 1995-Decided April 25, 1995
Respondent was sentenced to 15 years to life for the 1980 murder
of his wife and became eligible for parole in 1990. As required by
California law, the Board of Prison Terms (Board) held a hearing in
1989, at which time it found respondent unsuitable for parole for
numerous reasons, including the fact that he had committed his
crime while on parole for an earlier murder. Respondent would have
been entitled to subsequent suitability hearings annually under the
law in place when he murdered his wife. The law was amended in
1981, however, to allow the Board to defer subsequent hearings for
up to three years for a prisoner convicted of more than one offense
involving the taking of a life, if the Board finds that it is not
reasonable to expect that parole would be granted at a hearing
during the intervening years and states the bases for the finding.
Pursuant to this amendment, the Board scheduled respondent's next
hearing for 1992. He then filed a federal habeas corpus petition,
asserting that as applied to him, the 1981 amendment constituted an
ex post facto law barred by the United States Constitution.
The District Court denied the petition, but the Court of Appeals
reversed, 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.
Held: The amendment's application to prisoners who
committed their crimes before it was enacted does not violate the
Ex Post Facto Clause. Pp.504-514.
(a) The amendment did not increase the "punishment" attached to
respondent's crime. It left untouched his indeterminate sentence
and the substantive formula for securing any reductions to the
sentencing range. By introducing the possibility that the Board
would not have to hold another parole hearing in the year or two
after the initial hearing, the amendment simply altered the method
to be followed in fixing a parole release date under identical
substantive standards.
Lindsey v.
Washington,
301 U. S. 397;
Miller v.
Florida, 482 U. S. 423; and
Weaver
(b) Under respondent's expansive view, the Clause would forbid
any legislative change that has any conceivable risk of affecting a
prisoner's
500
punishment. In contrast, this Court has long held that the
question of what legislative adjustments are of sufficient moment
to transgress the constitutional prohibition must be a matter of
degree, and has declined to articulate a single "formula" for
making this determination. There is no need to do so here, either,
since the amendment creates only the most speculative and
attenuated possibility of increasing the measure of punishment for
covered crimes, and such conjectural effects are insufficient under
any threshold that might be established under the Clause. The
amendment applies only to those who have taken more than one life,
a class of prisoners for whom the likelihood of release on parole
is quite remote. In addition, it affects the timing only of
subsequent hearings, and does so only when the Board makes specific
findings in the first hearing. Moreover, the Board has the
authority to tailor the frequency of subsequent hearings.
Respondent offers no support for his speculation that prisoners
might experience an unanticipated change that is sufficiently
monumental to alter their suitability for parole, or that such
prisoners might be precluded from receiving a subsequent expedited
hearing. Nor is there a reason to think that postponing an
expedited hearing would extend any prisoner's actual confinement
period. Since a parole release date often comes at least several
years after a suitability finding, the Board could consider when a
prisoner became "suitable" for parole in setting the actual release
date. pp. 508-513.
16 F.3d
1001, reversed.
THOMAS, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, KENNEDY, GINSBURG, and
BREYER, JJ., joined. STEVENS, J., filed a dissenting opinion, in
which SOUTER, J., joined,
post, p. 514.
James Ching, Supervising Deputy Attorney General of
California, argued the cause for petitioner. With him on the briefs
were
Daniel E. Lungren, Attorney General,
George
Williamson, Chief Assistant Attorney General,
Kenneth C.
Young, Senior Assistant Attorney General,
Joan W
Cavanagh, Supervising Deputy Attorney General, and G.
Lewis
Chartrand, Jr.
501
James R. Asperger argued the cause for respondent.
With him on the brief were Daniel H. Bookin, Brian D. Boy le,
and Thomas
J. Karr.
*
JUSTICE THOMAS delivered the opinion of the Court.
In 1981, the State of California amended its parole procedures
to allow the Board of Prison Terms to decrease the frequency of
parole suitability hearings under certain circumstances. This case
presents the question whether the application of this amendment to
prisoners who committed
*Briefs of
amici curiae urging reversal were filed for
the State of Georgia by
Michael J. Bowers,
Attorney General,
Terry L. Long, Assistant Attorney General,
and
Daryl A. Robinson, Senior Assistant Attorney General;
for the State of Pennsylvania et al. by
Ernest D. Preate,
Jr., Attorney General of Pennsylvania, and
Andrea F.
McKenna, Senior Deputy Attorney General,
Grant Woods,
Attorney General of Arizona,
Gale A. Norton, Attorney
General of Colorado,
John M. Bailey, Chief State's Attorney
of Connecticut,
Elizabeth Barrett-Anderson, Attorney General
of Guam,
Robert A. Marks, Attorney General of Hawaii,
Larry EchoHawk, Attorney General of Idaho,
Roland W
Burris, Attorney General of Illinois,
Pamela Fanning
Carter, Attorney General of Indiana,
Robert T. Stephan,
Attorney General of Kansas,
Jeremiah W (Jay) Nixon, Attorney
General of Missouri,
J. Joseph Curran, Jr., Attorney
General of Maryland,
Scott Harshbarger, Attorney General of
Massachusetts,
Hubert H. Humphrey III, Attorney General of
Minnesota,
Joseph P. Mazurek, Attorney General of Montana,
Don Stenberg, Attorney General of Nebraska,
Frankie Sue
Del Papa, Attorney General of Nevada,
Deborah T. Poritz,
Attorney General of New Jersey,
Heidi Heitkamp, Attorney
General of North Dakota,
Lee Fisher, Attorney General of
Ohio,
Susan B. Loving, Attorney General of Oklahoma,
T.
Travis Medlock, Attorney General of South Carolina,
Jan
Graham, Attorney General of Utah,
Rosalie Simmonds
Ballentine, Attorney General of the Virgin Islands,
Joseph
B. Meyer, Attorney General of Wyoming, and
Eleni M.
Constantine; for the Criminal Justice Legal Foundation et al.
by
Kent S.
Scheidegger, Charles L. Hobson, and
Kevin Washburn; and for the Pacific Legal Foundation et al.
by
Ronald A. Zumbrun and
Anthony T. Caso.
Ronald D. Maines, Robert Burke, and
Jonathan Smith
filed a brief for the National Legal Aid and Defender Association
et al. as
amici curiae urging affirmance.
502
their crimes before it was enacted violates the
Ex Post
Facto Clause. We conclude that it does not.
I
California twice has convicted respondent Jose Ramon Morales of
murder. In 1971, the body of respondent's girlfriend, Gina Wallace,
was found in an abandoned medical building. She had been shot in
the head, neck, and abdomen; her right thumb had been amputated and
her face slashed repeatedly. A bloody fingerprint near the body
matched respondent's. A jury found respondent guilty of
first-degree murder, and he was sentenced to life in prison.
While serving his sentence at the State Training Facility in
Soledad, California, respondent met Lois Washabaugh, a 75-year-old
woman who had begun visiting inmates after gaining an interest in
prison reform. Ms. Washabaugh visited respondent on numerous
occasions, and respondent kept in contact with her through
correspondence. Respondent's letters eventually expressed a
romantic interest in Ms. Washabaugh, and the two were married some
time after respondent's release to a halfway house in April
1980.
On July 4, 1980, Ms. Washabaugh left her home and told friends
that she was moving to Los Angeles to live with her new husband.
Three days later, police officers found a human hand on the
Hollywood Freeway in Los Angeles. Ms. Washabaugh was reported
missing at the end of July, and fingerprint identification revealed
that the hand was hers. Her body was never recovered. Respondent
was subsequently arrested and found in possession of Ms.
Washabaugh's car, purse, credit cards, and diamond rings.
Respondent pleaded
nolo contendere to the second-degree
murder of Ms. Washabaugh. He was sentenced to a term of 15 years to
life, but became eligible for parole beginning in 1990. As required
by California law, see Cal. Penal Code Ann. § 3041 (West 1982), the
Board of Prison Terms (Board) held a hearing on July 25, 1989, to
determine respondent's
503
suitability for parole. California law required the Board to set
a release date for respondent unless it found that "the public
safety requires a more lengthy period of incarceration for this
individual." § 3041(b). The Board found respondent unsuitable for
parole for numerous reasons, including the heinous, atrocious, and
cruel nature of his offense; the mutilation of Ms. Washabaugh
during or after the murder; respondent's record of violence and
assaultive behavior; and respondent's commission of his second
murder while on parole for his first. Supplemental App. to Pet. for
Cert. 45.
Under the law in place at the time respondent murdered Ms.
Washabaugh, respondent would have been entitled to subsequent
suitability hearings on an annual basis. 1977 Cal. Stats., ch. 165,
§ 46. In 1981, however, the California Legislature had authorized
the Board 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." Cal. Penal Code Ann. § 3041.5(b)(2) (West 1982).1 In
light of the considerations that led it to find respondent
unsuitable for parole, and based on its conclusion that a longer
period of observation was required before a parole release date
could be projected, the Board determined that it was not reasonable
to expect that respondent would be found suitable for parole in
1990 or 1991. Pursuant to the 1981 amendment, the Board scheduled
the next hearing for 1992.
1 The statute was again amended in 1990 to allow the Board the
alternative of deferring hearings for five years if the prisoner
has been convicted of more than two murders, Cal. Penal Code Ann. §
3041.5(b)(2)(C) (West Supp. 1994), 1990 Cal. Stats., ch. 1053, and
in 1994 to extend that alternative to prisoners convicted of even a
single murder, 1994 Cal. Stats., ch. 560. The 5-year deferral
applies, however, "only to offenses committed before July 1, 1977,
or on or after January 1, 1991," 1990 Cal. Stats., ch. 1053, and
thus appears to have no application to respondent, whose most
recent crime was committed in 1980.
504
Respondent then filed a federal habeas corpus petition in the
United States District Court for the Central District of
California, asserting that he was being held in custody in
violation of the Federal Constitution. See 28 U. S. C. § 2254.
Respondent argued that as applied to him, the 1981 amendment
constituted an
ex post facto law barred by Article I, § 10,
of the United States Constitution. The District Court denied
respondent's habeas petition, but the United States Court of
Appeals for the Ninth Circuit reversed.
16 F.3d
1001 (1994).2 Because "a prisoner cannot be paroled without
first having a parole hearing," the Court of Appeals concluded that
"any retrospective law making parole hearings less accessible would
effectively increase the [prisoner's] sentence and violate the ex
post facto clause."
Id., at 1004. The Court of Appeals
accordingly held that the Board was constitutionally constrained to
provide respondent with annual parole suitability hearings, as
required by the law in effect when he committed his crime.
Id., at 1006.
We granted certiorari, 512 U. S. 1287 (1994), and we now
reverse.
II
Article I, § 10, of the Constitution prohibits the States from
passing any "ex post facto Law." In
Collins v.
Youngblood, 497
U. S. 37, 41 (1990), we reaffirmed that the
Ex Post
Facto Clause incorporated "a term of art with an established
meaning at the time of the framing of the Constitution." In
accordance with this original understanding, we have held that the
Clause is aimed at laws that "retroactively alter the definition of
crimes or increase the punishment for criminal acts."
Id.,
at 43 (citing
Calder v.
Bull, 3 Dall. 386,
391-392
2 During the pendency of this action, respondent appeared before
the Board for his 1992 suitability hearing. The Board again found
respondent unsuitable and again determined that it was not
reasonable to expect that he would be found suitable for parole at
the following two annual hearings. Respondent's next suitability
hearing was then set for 1995.
505
(1798) (opinion of Chase, J.);
Beazell v.
Ohio,
269 U. S. 167,
169-170 (1925)).
The legislation at issue here effects no change in the
definition of respondent's crime. Instead, the question before us
is whether the 1981 amendment to § 3041.5 increases the
"punishment" attached to respondent's crime. In arguing that it
does, respondent relies chiefly on a trilogy of cases holding that
a legislature may not stiffen the "standard of punishment"
applicable to crimes that have already been committed. See
Lindsey v.
Washington, 301 U. S. 397, 401
(1937); Miller v.
Florida, 482 U. S. 423 (1987);
Weaver v.
Graham, 450 U. S. 24 (1981).
In
Lindsey, we established the proposition that the
Constitution "forbids the application of any new punitive measure
to a crime already consummated." 301 U. S., at 401. The petitioners
in
Lindsey had been convicted of grand larceny, and the
sentencing provision in effect at the time they committed their
crimes provided for a maximum sentence of "not more than fifteen
years."
Id., at 398. The applicable law called for
sentencing judges to impose an indeterminate sentence up to
whatever maximum they selected, so long as it did not exceed 15
years.
Id., at 398, 400. Before the petitioners were
sentenced, however, a new statute was passed that
required
the judge to sentence the petitioners to the 15-year maximum; under
the new statute, the petitioners could secure an earlier release
only through the grace of the parole board.
Id., at 398-399.
We held that the application of this statute to petitioners
violated the
Ex Post Facto Clause because "the measure of
punishment prescribed by the later statute is more severe than that
of the earlier."
Id., at 401.
Weaver and
Miller held that the
Ex Post
Facto Clause forbids the States to enhance the measure of
punishment by altering the substantive "formula" used to calculate
the applicable sentencing range. In
Weaver, the petitioner
had been sentenced to 15 years in prison for his crime of
506
second-degree murder. Both at the time of his crime and at the
time his sentence was imposed, state statutes provided a formula
for mandatory reductions to the terms of all prisoners who complied
with certain prison regulations and state laws. The statute that
the petitioner challenged and that we invalidated retroactively
reduced the amount of "gain time" credits available to prisoners
under this formula. Though the statute preserved the possibility
that some prisoners might win back these credits if they convinced
prison officials to exercise their discretion to find that they
were especially deserving, see 450 U. S., at 34, n. 18, we found
that it effectively eliminated the lower end of the possible range
of prison terms.
Id., at 26-27, 31-33. The statute at issue
in
Miller contained a similar defect. The Florida sentencing
scheme had established "presumptive sentencing ranges" for various
offenses, which sentencing judges were required to follow in the
absence of "clear and convincing reasons" for a departure. At the
time that the petitioner in
Miller committed his crime, his
presumptive sentencing range would have been 31/2 to 41/2 years.
Before his sentencing, however, the state legislature altered the
formula for establishing the presumptive sentencing range for
certain sexual offenses by increasing the "primary offense points"
assigned to those crimes. As a result, petitioner's presumptive
range jumped to 51/2 to 7 years. We held that the resulting
increase in the "quantum of punishment" violated the
Ex Post
Facto Clause. 482 U. S., at 433-434.3
3 Our opinions in
Lindsey, Weaver, and
Miller
suggested that enhancements to the measure of criminal punishment
fall within the
ex post facto prohibition because they
operate to the "disadvantage" of covered offenders. See
Lindsey, 301 U. S., at 401;
Weaver, 450 U. S., at 29;
Miller, 482 U. S., at 433. But that language was unnecessary
to the results in those cases and is inconsistent with the
framework developed in
Collins v.
Youngblood,
497 U. S. 37, 41
(1990). After
Collins, the focus of the
ex post facto
inquiry is not on whether a legislative change produces some
ambiguous sort of "disadvantage," nor, as the dissent seems to
suggest, on whether an amendment affects a prisoner's
"opportunity to take advan-
507
Respondent insists that the California amendment before us is
indistinguishable from the legislation at issue in
Lindsey,
Weaver, and
Miller, and he contends that those cases
control this one. We disagree. Both before and after the 1981
amendment, California punished the offense of seconddegree murder
with an indeterminate sentence of "confinement in the state prison
for a term of 15 years to life." Cal. Penal Code Ann. § 190 (West
1982). 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, see
ibid., respondent was able to secure a one-third "credit" or
reduction in this minimum by complying with prison rules and
regulations, see § 2931. The amendment had no effect on the
standards for fixing a prisoner's initial date of "eligibility" for
parole, see
In re Jackson, 39 Cal. 3d 464, 476, 703 P. 2d
100, 108 (1985), or for determining his "suitability" for parole
and setting his release date, see Cal. Penal Code Ann. §§ 3041,
3041.5 (West 1982).
The 1981 amendment made only one change: It introduced the
possibility that after the initial parole hearing, the Board would
not have to hold another hearing the very next year, or the year
after that, if it found no reasonable probability that respondent
would be deemed suitable for parole in the interim period. §
3041.5(b)(2). In contrast to the laws at issue in
Lindsey,
Weaver, and
Miller (which had the purpose and effect of
enhancing the range of available prison terms, see
Miller,
supra, at 433-434), the evident focus of the California
amendment was merely" 'to relieve the [Board] from the costly and
time-consuming responsibility of scheduling parole hearings'" for
prisoners who have no reasonable chance of being released.
In re
Jackson, supra, at 473, 703 P. 2d, at 106 (quoting legislative
history). Rather than
tage of provisions for early release," see
post, at 518,
but on whether any such change alters the definition of criminal
conduct or increases the penalty by which a crime is
punishable.
508
changing the sentencing range applicable to covered crimes, the
1981 amendment simply "alters the method to be followed" in fixing
a parole release date under identical substantive standards. See
Miller, supra, at 433 (contrasting adjustment to presumptive
sentencing range with change in "the method to be followed in
determining the appropriate sentence"); see also
Dobbert v.
Florida, 432
U. S. 282, 293294 (1977) (contrasting change in the "quantum of
punishment" with statute that merely "altered the methods employed
in determining whether the death penalty was to be imposed").
III
Respondent nonetheless urges us to hold that the
Ex Post
Facto Clause forbids any legislative change that has any
conceivable risk of affecting a prisoner's punishment. In his view,
there is "no principled way to determine how significant a risk of
enhanced confinement is to be tolerated." Brief for Respondent 39.
Our cases have never accepted this expansive view of the
Ex Post
Facto Clause, and we will not endorse it here.
Respondent's approach 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. Under respondent's approach, the judiciary
would be charged under the
Ex Post Facto Clause with the
micromanagement of an endless array of 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. These and countless other
changes might create some speculative,
509
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, but that fact alone cannot end
the matter for
ex post facto purposes.4
Indeed, contrary to the approach advocated by respondent, we
have long held that the question of what legislative adjustments
"will be held to be of sufficient moment to transgress the
constitutional prohibition"
must be a matter of "degree."
Beazell, 269 U. S., at 171. In evaluating the
constitutionality of the 1981 amendment, we must determine whether
it produces a sufficient risk of increasing the measure of
punishment attached to the covered crimes.5 We have previously
declined to articulate a single "formula" for identifying those
legislative changes that have a sufficient effect on substantive
crimes or punishments to fall within the constitutional
prohibition, see
ibid., and we have no occasion to do so
here. The amendment creates only the most speculative and
attenuated possibility of producing the prohibited effect of
increasing the measure of punishment for covered crimes, and such
conjectural effects are insufficient under any threshold we might
establish under the
Ex Post Facto Clause. See
Dobbert,
supra, at 294 (refusing to accept "speculation" that the
effective punishment under a new
4 The dissent proposes a line between those measures that
deprive prisoners of a parole hearing and those that "make it more
difficult for prisoners to obtain release."
Post, at 524.
But this arbitrary line has absolutely no basis in the
Constitution. If a delay in parole hearings raises
ex post
facto concerns, it is because that delay effectively increases
a prisoner's term of confinement, and not because the hearing
itself has independent constitutional significance. Other
adjustments to mechanisms surrounding the sentencing process should
be evaluated under the same standard.
5 Contrary to the dissent's suggestion, see
post, at 519,
we express no view as to the constitutionality of any of a number
of other statutes that might alter the timing of parole hearings
under circumstances different from those present here.
510
statutory scheme would be "more onerous" than under the old
one).6
First, the amendment applies only to a class of prisoners for
whom the likelihood of release on parole is quite remote. The
amendment enabled the Board to extend the time between suitability
hearings only for those prisoners who have been convicted of "more
than one offense which involves the taking of a life." Cal. Penal
Code Ann. § 3041.5(b)(2) (West 1982).7 The California Supreme Court
has noted that about
6 The dissent suggests that any "speculation" as to the effect
of the amendment on prison terms should "ru[n] in the other
direction,"
post, at 525, but this approach effectively
shifts to the State the burden of persuasion as to respondent's
ex post facto claim. Not surprisingly, the dissent
identifies no support for its attempt to undo the settled rule that
a claimant must bear the risk of nonpersuasion as to the existence
of an alleged constitutional violation. Although we have held that
a party asserting an
ex post facto claim need not carry the
burden of showing that he would have been sentenced to a lesser
term under the measure or range of punishments in place under the
previous statutory scheme, see
Lindsey v.
Washington,
301 U. S., at 401, we have never suggested that the challenging
party may escape the ultimate burden of establishing that the
measure of punishment itself has changed. Indeed, elimination of
that burden would eviscerate the view of the
Ex Post Facto
Clause that we reaffirmed in
Collins. Just as "[t]he
inhibition upon the passage of
ex post facto laws does not
give a criminal a right to be tried, in all respects, by the law in
force when the crime charged was committed,"
Gibson v.
Mississippi, 162 U. S. 565, 590
(1896), neither does it require that the sentence be carried out
under the identical legal regime that previously prevailed.
7 The dissent mischaracterizes our analysis in suggesting that
we somehow have concocted a "reduced" standard of judicial scrutiny
for application to "a narrow group as unpopular ... as multiple
murderers."
Post, at 522. The
ex post facto standard
we apply today is constant: It looks to whether a given legislative
change has the prohibited effect of altering the definition of
crimes or increasing punishments. Our application of that standard
necessarily considers a number of factors-including, in this case,
that the 1981 amendment targets a group of prisoners whom the
California Legislature deemed less likely than others to secure
early release on parole-but the constitutional standard is neither
"enhanced" nor
511
90% of
all prisoners are found unsuitable for parole at
the initial hearing, while 85% are found unsuitable at the second
and subsequent hearings.
In re Jackson, 39 Cal. 3d, at 473,
703 P. 2d, at 105. In light of these numbers, the amendment "was
seen as a means 'to relieve the [Board] from the costly and
time-consuming responsibility of scheduling parole hearings for
prisoners who have no chance of being released.'"
Ibid.
(quoting legislative history).
Second, the Board's authority under the amendment is carefully
tailored to that end. The amendment has no effect on the date of
any prisoner's initial parole suitability hearing; it affects the
timing only of
subsequent hearings. Accordingly, the
amendment has no effect on any prisoner unless the Board has first
concluded, after a hearing, not only that the prisoner is
unsuitable for parole, but also that "it is not reasonable to
expect that parole would be granted at a hearing during the
following years." Cal. Penal Code Ann. § 3041.5(b)(2) (West 1982).
"This is no arbitrary decision,"
Morris v.
Castro,
166 Cal. App. 3d 33, 38, 212 Cal. Rptr. 299, 302 (1985); the Board
must conduct "a full hearing and review" of all relevant facts,
ibid., and state the bases for its finding. Cal. Penal Code
Ann. § 3041.5(b)(2) (West 1982). Though California law is not
entirely clear on this point, the reliability of the Board's
determination may also be enhanced by the possibility of an
administrative appeal. See 15 Cal. Admin. Code § 2050 (1994).
Moreover, the Board retains the authority to tailor the
frequency of subsequent suitability hearings to the particular
circumstances of the individual prisoner. The default requirement
is an annual hearing, but the Board may defer the next hearing up
to two years more depending on the circumstances. Cal. Penal Code
Ann. § 3041.5(b)(2) (West 1982). Thus, a mass murderer who has
participated in re-
"reduced" on the basis of societal animosity toward multiple
murderers. Cf.
ibid.
512
peated violent crimes both in prison and while on parole could
perhaps expect a 3-year delay between suitability hearings, while a
prisoner who poses a lesser threat to the "public safety," see §
3041(b), might receive only a 2-year delay. In light of the
particularized findings required under the amendment and the broad
discretion given to the Board, the narrow class of prisoners
covered by the amendment cannot reasonably expect that their
prospects for early release on parole would be enhanced by the
opportunity of annual hearings. For these prisoners, the amendment
simply allows the Board to avoid the futility of going through the
motions of reannouncing its denial of parole suitability on a
yearly basis.
Respondent suggests that there is some chance that the amendment
might nevertheless produce an increased term of confinement for
some prisoners who might experience a change of circumstances that
could render them suitable for parole during the period between
their hearings. Brief for Respondent 39. Respondent fails, however,
to provide any support for his speculation that the multiple
murderers and other prisoners subject to the amendment might
experience an unanticipated change that is sufficiently monumental
to alter their suitability for release on parole. Even if we assume
the possibility of such a change, moreover, there is no reason to
conclude that the amendment will have any effect on any prisoner's
actual term of confinement, for the current record provides no
basis for concluding that a prisoner who experiences a drastic
change of circumstances would be precluded from seeking an
expedited hearing from the Board. Indeed, the California Supreme
Court has suggested that under the circumstances hypothesized by
respondent "the Board could advance the suitability hearing,"
In
re Jackson, supra, at 475, 703 P. 2d, at 107, and the
California Department of Corrections indicates in its brief that
the Board's "practice" is to "review for merit any communication
from an inmate asking for an earlier suitability hearing,"
Reply
513
Brief for Petitioner 3, n. 1. If the Board's decision to
postpone the hearing is subject to administrative appeal, the
controlling regulations also seem to preserve the possibility of a
belated appeal. See 15 Cal. Admin. Code § 2050 (1994) (time limits
for administrative appeals "are directory only and may be
extended"). An expedited hearing by the Board-either on its own
volition or pursuant to an order entered on an administrative
appeal-would remove any possibility of harm even under the
hypothetical circumstances suggested by respondent.
Even if a prisoner were denied an expedited hearing, there is no
reason to think that such postponement would extend any prisoner's
actual period of confinement. According to the California Supreme
Court, the possibility of immediate release after a finding of
suitability for parole is largely "theoretica[l],"
In re
Jackson, 39 Cal. 3d, at 474, 703 P. 2d, at 106; in many cases,
the prisoner's parole release date comes at least several years
after a finding of suitability. To the extent that these cases are
representative, it follows that "the 'practical effect' of a
hearing postponement is not significant."
Id., at 474, 703
P. 2d, at 106-107. This is because the Board is bound by statute to
consider "any sentencing information relevant to the setting of
parole release dates" with an eye toward establishing "uniform
terms for offenses of similar gravity and magnitude in respect to
their threat to the public." Cal. Penal Code Ann. § 3041(a) (West
1982). Under these standards, the fact that a prisoner had been
"suitable" for parole prior to the date of the hearing certainly
would be "relevant" to the Board's decision in setting an actual
release date, and the Board retains the discretion to expedite the
release date of such a prisoner. Thus, a prisoner who could show
that he was "suitable" for parole two years prior to such a finding
by the Board might well be entitled to secure a release date that
reflects that fact. Such a prisoner's ultimate date of release
would be entirely unaffected by the change in the timing of
suitability hearings.
514
IV
Given these circumstances, we conclude that the California
legislation at issue creates only the most speculative and
attenuated risk of increasing the measure of punishment attached to
the covered crimes. The Ninth Circuit's judgment that the amendment
violates the
Ex Post Facto Clause is accordingly
reversed.
It is so ordered.
JUSTICE STEVENS, with whom JUSTICE SOUTER joins, dissenting.
In 1980, respondent was charged with the murder of his wife.
Despite respondent's previous conviction for firstdegree murder,
and despite the serious character of the 1980 offense, California
accepted his plea of
nolo contendere to the offense of
second-degree murder. The trial judge imposed a sentence of
imprisonment for 15 years to life, under which respondent became
eligible for parole in 1990.
The law in effect at the time of respondent's offense entitled
him to a hearing before the Board of Prison Terms (Board) in 1989
and in each year thereafter. In 1981, however, California amended
its parole statute. The amended statute permitted the Board to
delay parole hearings for multiple murderers for up to three years,
provided the Board found that "it is not reasonable to expect that
parole would be granted at a hearing during the following years."
Cal. Penal Code Ann. § 3041.5(b)(2) (West 1982). In 1989, the Board
determined that respondent was not yet "suitable" for parole, and,
after making the requisite findings, the Board deferred
respondent's next hearing for three years. The question before the
Court is whether the California Legislature's 1981 elimination of
the statutory right to an annual parole hearing increased the
punishment for respondent's 1980 offense and thereby violated the
Ex Post Facto Clause.
In answering that question, I begin with certain propositions of
law that I do not understand the Court to dispute.
515
Those propositions compel the conclusion that, as applied to the
general prison population, replacing a statutory right to an annual
parole hearing with a right to such a hearing every three years
would violate the
Ex Post Facto Clause of the Federal
Constitution. Though nowhere disputing this conclusion, the
majority holds that the 1981 amendment to the California parole
statute is not
ex post facto legislation because it applies
only to a small subset of the prison population, namely multiple
murderers, see
ante, at 510, and because the Board must make
a special finding before depriving a prisoner of an annual hearing,
see
ante, at 511. In my view, neither of these features is
sufficient to save what is otherwise a plainly invalid statute.
I
The Constitution provides that "[n]o State shall ... pass any
... ex post facto Law." Art. I, § 10. The Framers viewed the
prohibition on
ex post facto legislation as one of the
fundamental protections against arbitrary and oppressive
government.1 Thus, for example, Madison noted that
"ex post
facto laws ... are contrary to the first principles of the
social compact and to every principle of sound legislation." The
Federalist No. 44, p. 282 (C. Rossiter ed. 1961). Similarly,
Hamilton counted the prohibition on
ex post facto laws among
the three protections that he described as "greater securities to
liberty and republicanism than any [the Constitution] contains."
Id., No. 84, at 511.
Although the text of the
Ex Post Facto Clause is not
selfexplanatory, its basic coverage has been well understood at
least since 1798, when the Court in
Calder v.
Bull, 3
Dall.
1 That the Framers included two separate clauses in the
Constitution prohibiting
ex post facto legislation, see Art.
I, § 9, cl. 3 ("No Bill of Attainder or ex post facto Law shall be
passed"); Art. I, § 10 ("No State shall ... pass any Bill of
Attainder, ex post facto Law, or Law impairing the Obligation of
Contracts"), highlights the Framers' appraisal of the importance of
that prohibition.
516
386, 390, identified four categories of
ex post facto
laws.2 The case before us today implicates the third
Calder
category, which consists of "[e]very law that
changes the
punishment, and inflicts a
greater punishment, than the
law annexed to the crime, when committed."
Ibid. (emphasis
in original). This Court has consistently condemned laws falling in
that category. Thus, in
Beazell v.
Ohio, 269 U. S. 167 (1925),
Justice Stone noted that it "is settled, by decisions of this Court
so well known that their citation may be dispensed with, that any
statute ... which makes more burdensome the punishment for a crime,
after its commission, ... is prohibited as
ex post facto."
Id., at 169-170. We reaffirmed Justice Stone's observation only
a few years ago: "The
Beazell formulation is faithful to our
best knowledge of the original understanding of the
Ex Post
Facto Clause: Legislatures may not retroactively ... increase
the punishment for criminal acts."
Collins v.
Youngblood, 497
U. S. 37, 43 (1990).
In light of the importance that the Framers placed on the
Ex
Post Facto Clause, we have always enforced the prohibition
against the retroactive enhancement scrupulously. Any statute that
authorizes an increased term of imprisonment for a past offense is
invalid. Thus, although the Court has carefully examined laws
changing the conditions of confinement to determine whether they
are favorable or unfavorable to the prisoner, see,
e. g.,
Rooney v.
North Dakota, 196 U. S. 319, 325 (1905);
In
re Medley, 134 U.
S. 160, 171 (1890), no Member of the Court has ever voted to
uphold a statute
2 "1st. Every law that makes an action done before the passing
of the law, and which was
innocent when done, criminal; and
punishes such action. 2d. Every law that
aggravates a
crime, or makes it
greater than it was, when
committed. 3d. Every law that
changes the punishment, and
inflicts a
greater punishment, than the law annexed to the
crime, when committed. 4th. Every law that alters the
legal
rules of
evidence, and receives less, or different,
testimony, than the law required at the time of the commission of
the offence,
in order to convict the offender." Calder v.
Bull, 3 Dall. 386, 390 (1798) (emphasis in original).
517
that retroactively increased the length of time that a prisoner
must remain imprisoned for past offenses, see,
e. g.,
Miller v.
Florida, 482 U. S. 423 (1987)
(unanimous opinion);
Weaver v.
Graham, 450 U. S. 24 (1981)
(without dissent).
Our
ex post facto jurisprudence concerning increased
punishment has established three important propositions. First, the
Court has squarely held that an individual prisoner need not prove
that the retroactive application of a law authorizing an increased
punishment for a past offense has actually affected the sentence
that that prisoner must serve. In
Lindsey v.
Washington, 301 U. S. 397 (1937), for
example, petitioners were sentenced under a law that required a
sentence of 15 years; the law in effect at the time of the offense
gave the judge discretion to impose a lesser sentence. The State
contended that petitioners had failed to show that there was an
ex post facto violation because petitioners might have
received a 15-year sentence even under the old law. We unanimously
rejected the State's contention:
"[T]he ex post facto clause looks to the standard of
punishment prescribed by a statute, rather than to the sentence
actually imposed ....
"Removal of the possibility of a sentence of less than fifteen
years, at the end of which petitioners would be freed from further
confinement and the tutelage of a parole revocable at will,
operates to their detriment in the sense that the standard of
punishment adopted by the new statute is more onerous than that of
the old." Id., at 401.
Only a few years ago, in
Miller v.
Florida,
482 U. S. 423
(1987), we unanimously reaffirmed the holding in
Lindsey,
noting that
"Lindsey establishes 'that one is not barred
from challenging a change in the penal code on
ex post facto
grounds simply because the sentence he received under the new law
was not more onerous than that which he might have received under
the old.'" 482 U. S., at 432 (citation
518
omitted). As we stated succinctly in
Weaver v.
Graham,
450 U. S., at 33, "[t]he inquiry looks to the challenged
provision, and not to any special circumstances that may mitigate
its effect on the particular individual."
Second, we have noted that an impermissible increase in the
punishment for a crime may result not only from statutes that
govern initial sentencing but also from statutes that govern parole
or early release. Thus, in
Weaver v.
Graham, we
addressed a Florida statute that altered the availability of
good-time credits. We rejected any notion that the removal of
good-time credits did not constitute an increase in punishment,
explaining 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);
Warden v.
Marrero,
417 U. S. 653,
658 (1974). See also
Greenfield v.
Scafati, 277 F.
Supp. 644, 645 (Mass. 1967) (three-judge court) ("The availability
of good conduct deductions is considered an essential element of
the sentence"), summarily aff'd,
390 U. S. 713 (1968).
Finally, we have held that an increase in punishment occurs when
the State deprives a person of the
opportunity to take
advantage of provisions for early release. Thus, in
Weaver
we emphasized that "petitioner is ... disadvantaged by the reduced
opportunity to shorten his time in prison simply through good
conduct." 450 U. S., at 33-34. Our statement in
Weaver was
consistent with our holding in
Lindsey that "[i]t 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 15-year
term." 301 U. S., at 401-402. See also
Greenfield v.
Scafati, 277 F. Supp. 644 (Mass. 1967) (three-judge court),
summarily aff'd,
390
U. S. 713 (1968) (affirming judgment of a three-judge court
that
519
found an
ex post facto violation in a statute that
eliminated the opportunity to accumulate gain time for the first
six months following parole revocation as applied to an inmate
whose crime occurred before the statute's enactment).
These settled propositions make perfectly clear that the
retroactive application of a simple statute that changed the
frequency of a statutorily mandated annual parole suitability
hearing would constrict an inmate's opportunity to earn early
release and would thus constitute increased punishment in violation
of the
Ex Post Facto Clause. It is thus no surprise that
nearly every Federal Court of Appeals and State Supreme Court to
consider the issue has so held. See,
e. g., 16 F.3d
1001 (CA9 1994) (case below);
Roller v.
Cavanaugh, 984 F.2d
120 (CA4), cert. dism'd,
510 U. S. 42 (1993);
Akins v.
Snow, 922 F.2d
1558 (CAll), cert. denied, 501 U. S. 1260 (1991);
Rodriguez v.
United States Parole Commission,
594 F.2d
170 (CA7 1979);
State v.
Reynolds, 642 A. 2d 1368
(N. H. 1994);
Griffin v.
State, 315 S. C. 285, 433 S.
E. 2d 862 (1993), cert. denied, 510 U. S. 1093 (1994);
Tiller v.
Klincar, 138 Ill. 2d 1, 561 N. E. 2d 576
(1990), cert. denied, 498 U. S. 1031 (1991).3
The 1981 amendment at issue in this case, of course, is not such
a simple statute. It is therefore necessary to consider whether the
particular features of that amendment eliminate the
ex post
facto problems.
3 The two contrary decisions cited by the parties, see
Bailey v.
Gardebring, 940 F.2d
1150 (CA8 1991);
In re Jackson, 39 Cal. 3d 464,
703 P. 2d 100 (1985), do not undermine my thesis. In
Bailey
v.
Gardebring, a 2-to-1 decision, the Court of Appeals found
no
ex post facto violation when Minnesota failed to provide
a prisoner with an annual parole hearing. However, one member of
the majority premised his conclusion on the view that the Minnesota
parole regulations were not "laws"; the other member of the
majority concurred only in the result, but authored no opinion. In
In re Jackson, the California Supreme Court upheld the very
amendment at issue in this case and thus did not speak to the more
general situation I have described in the text.
520
II
The first special feature that the majority identifies in the
1981 amendment, see
ante, at 510, is that it applies only to
the narrow class of prisoners who have "been convicted, in the same
or different proceedings, of more than one offense which involves
the taking of a life." Cal. Penal Code Ann. § 3041.5(b)(2) (West
1982). In my view, the 1981 amendment's narrow focus on that
discrete class of prisoners implicates one of the principal
concerns that underlies the constitutional prohibition against
retrospective legislation-the danger that the legislature will
usurp the judicial power and will legislate so as to administer
justice unfairly against particular individuals. This concern has
been at the forefront of our
ex postfacto jurisprudence. As
Justice Harlan noted: "[T]he policy of the prohibition against
ex post facto legislation would seem to rest on the
apprehension that the legislature, in imposing penalties on past
conduct, ... may be acting with a purpose not to prevent dangerous
conduct generally but to impose by legislation a penalty against
specific persons or classes of persons."
James v.
United
States, 366 U. S. 213, 247, n. 3 (1961) (Harlan, J., concurring
in part and dissenting in part). Our cases have thus consistently
noted that the
Ex Post Facto Clauses protect against the
danger of such "vindictive legislation."
Miller v.
Florida, 482 U. S., at 429;
Weaver v.
Graham,
450 U. S., at 29; see also
Malloy v.
South Carolina,
237 U. S. 180,
183 (1915). The narrower the class burdened by retroactive
legislation, the greater the danger that the legislation has the
characteristics of a bill of attainder.4 Cf.
Plaut v.
Spendthrift Farm, Inc., ante, at 241
4 "A bill of attainder is a legislative act which inflicts
punishment without a judicial trial. ... [L]egislative acts, no
matter what their form, that apply either to named individuals or
to easily ascertainable members of a group in such a way as to
inflict punishment on them without a judicial trial are bills of
attainder prohibited by the Constitution."
United States v.
Lovett, 328 U.
S. 303, 315-316 (1946) (internal quotation marks omitted). The
prohibitions on
ex post facto laws and on bills of
attainder
521
(BREYER, J., concurring in judgment) (finding a
separationof-powers violation in part because of the statute's
"application to a limited number of individuals"); see generally
ante, at 241-242 (discussing the dangers of statutes focused
at particular groups of individuals).
I believe that the 1981 amendment implicates this core
ex
post facto concern. The narrow class of affected individuals belies
the majority's acceptance of the proposition that "the evident
focus,"
ante, at 507, of the 1981 amendment was to save
costs. Surely, even today, multiple murderers make up but a small
fraction of total parole hearings; eliminating those hearings would
seem unlikely to create substantial savings. Indeed, though the
majority gives credence to the budget-cutting rationale,
petitioners are much more frank about their motivations, as they
urge the Court to "reexamine" its
ex post facto
jurisprudence "[i]n view of the national trend towards the
implementation of harsher penalties and conditions of confinement
for offenders and inmates." Brief for Petitioners 11 (footnote
omitted).
I agree with petitioners' implication that the 1981 amendment is
better viewed as part of that national trend toward
"get-tough-on-crime" legislation. The California statute challenged
in this case is one of many currently popular statutes designed to
cut back on the availability of parole. The California Legislature
has adopted several similar provisions in recent years,5 and a
number of other States have passed comparable legislation.6 Such
measures are, of course, entirely legitimate when they operate
prospectively, but their
are obviously closely related. See,
e. g.,
Fletcher v.
Peck, 6 Cranch 87, 138-139 (1810).
5 The California Legislature appears to have altered the
frequency of parole hearings for some prisoners on at least three
occasions since the 1981 amendment. See 1986 Cal. Stats., ch. 248,
§ 166; 1990 Cal. Stats., ch. 1053, § 1; 1994 Cal. Stats., ch. 560,
§ 1.
6 See,
e. g., 1992 N. H. Laws, ch. 254:13; Mich.
Compo Laws Ann. § 791.234 (West 1992); Ill. Rev. Stat., ch. 38, ,
1003-3-5(f) (1987); S. C. Code Ann. §24-21-645 (Supp. 1987).
522
importance and prevalence surely justify careful review when
those measures change the consequences of past conduct.
The danger of legislative overreaching against which the
Ex
Post Facto Clause protects is particularly acute when the
target of the legislation is a narrow group as unpopular (to put it
mildly) as multiple murderers. There is obviously little
legislative hay to be made in cultivating the multiple murderer
vote. For a statute such as the 1981 amendment, therefore, the
concerns that animate the
Ex Post Facto Clause demand
enhanced, and not (as the majority seems to believe) reduced,
judicial scrutiny.7
III
The second feature of the 1981 amendment on which the majority
relies is the provision requiring that the Board make certain
findings before it may defer the annual hearings. At the time of
respondent's crime, the Board was instructed either to set a parole
date at an inmate's initial parole hearing or, if it set no date,
to provide the inmate with a written statement explaining the
reasons for the denial and suggesting "activities in which he might
participate that will benefit him while he is incarcerated." The
statute provided that the Board "shall hear each case annually
thereafter." Cal. Penal Code Ann. § 3041.5(b)(2) (West 1982).
The 1981 amendment allows the Board to defer the annual hearings
for multiple murderers for up to three years if "the [B]oard finds
that it is not reasonable to expect that parole
7Though the Court suggests that "multiple murderers" have a
particularly low likelihood of parole,
ante, at 510-511, n.
7, the statute in effect at the time of respondent's offense
determined that even multiple murderers were sufficiently likely
candidates for early release to be entitled to an annual parole
hearing. The grant of that statutory right reflected the California
Legislature's judgment that such a hearing provided an important
avenue to reduced punishment. The
Ex Post Facto Clause,
properly construed, should prevent the legislature from revising
that judgment retroactively.
523
would be granted at a hearing during the following years and
states the bases for the finding."
Ibid. The statute does
not contain any provision authorizing any sort of review of a Board
order dispensing with annual hearings. Nor does it provide any
procedure for dealing with exceptional changed circumstances
warranting the setting of a release date that might arise before
the next scheduled hearing. In short, the amended statute vests
unreviewable discretion in the Board to dispense with annual
hearings for up to three years by making the required finding.
In my view, the requirement that the Board make this finding is
insufficient to render the 1981 amendment constitutional. We have
previously expressed doubts that an early release regime that
substitutes administrative discretion for statutory requirements
complies with the
Ex Post Facto Clause. In
Weaver v.
Graham, we noted that the state statute at issue reduced the
amount of gain time to which an inmate was "automatically entitled
... simply for avoiding disciplinary infractions and performing his
assigned tasks." 450 U. S., at 35. The State argued, however, that
the statute as a whole caused inmates no increase in punishment
because the statute provided inmates with new ways to earn gain
time. We rejected the State's argument, noting that "the award of
the extra gain time is purely discretionary, contingent on both the
wishes of the correctional authorities and special behavior by the
inmate."
Ibid.
The reasoning behind our skepticism in
Weaver is
applicable to this case. As is true under almost any factfinding
regime, the Board will occasionally make mistakes and will defer
parole hearings for inmates who would have been found suitable at
those hearings.8 Because the parole hear-
8 There may be reasons to be particularly skeptical of the
reliability of the Board's findings with respect to deferrals under
the 1981 amendment. The Board's determination that the inmate is
not currently suitable for parole and the determination that the
inmate will not be suitable for parole in the next three years are
expected to be separate determina-
524
ing is a prerequisite for early release, the inmates affected by
the Board's errors will have had their punishment increased. In my
view, the Court's speculation about possible methods of correcting
the Board's erroneous findings or of persuading the Board to
reinstate a canceled hearing on the basis of new evidence is
plainly insufficient to bridge the significant gap between the
protection afforded by an unqualified right to annual hearings and
the unreviewable discretion of an administrative agency to dispense
with such hearings.9
IV
Two final elements of the majority's opinion require comment.
First, the majority suggests that a holding in respondent's favor
would require that we "invalidate" an "endless array of legislative
adjustments," thus plunging the judiciary into micromanagement of
state parole procedures.
Ante, at 508. The majority's fear
is completely unfounded. The provision of a parole hearing in
California differs from all of the matters set forth by the
majority in one critical way: It is an absolute prerequisite to
release. For the three years in which respondent is denied his
hearing, he is absolutely deprived of any parole opportunity.
Though the changes to which the majority refers might well make it
more difficult for prisoners to obtain release, none of them
deprives prisoners of the opportunity for release. Our cases
tions. In the state-court litigation over the constitutionality
of this statute, the State argued that compliance with the
requirement of separate determinations was" 'virtually impossible'"
because" '[b]oth the decision to deny parole and to delay a
subsequent hearing for two years must be the same.'''
In re
Jackson, 39 Cal. 3d, at 478, 703 P. 2d, at 109. Indeed, in
respondent's case, the findings on parole suitability and on the
possibility of future parole are remarkably similar. The Board's
findings on which the majority relies so heavily thus seem of
particularly questionable utility.
9 I find it somewhat ironic that the majority posits the
existence of nonstatutory, extraordinary remedies as a cure for
legislation ostensibly motivated entirely by an interest in
administrative efficiency.
525
are absolutely clear that the retroactive deprivation of the
opportunity for early release constitutes
ex post facto
legislation. The majority's parade of hypothetical horribles is
easily distinguishable from the case before us, and it thus
provides no justification for diverging from our settled
approach.
Second, the majority attempts to circumvent our
ex post
facto cases by characterizing the risk that the statute will
actually increase any inmate's punishment as "speculative." In my
view, the speculation runs in the other direction. Under the
present California parole procedures, there is no possibility that
an inmate will benefit from the 1981 amendment: Instead of an
unqualified statutory right to an annual hearing, the amendment
leaves the inmate with no protection against either the risk of a
mistaken prediction or the risk that the Board may be influenced by
its interest in curtailing its own workload. Moreover, the statute
gives an inmate no right to advance favorable changed circumstances
as a basis for a different result. Unlike the
ex post facto
law condemned in
Weaver, and also unlike the statutes
approved in
Dobbert v.
Florida, 432 U. S. 282 (1977), and
Rooney v.
North Dakota, 196 U. S. 319 (1905), the
1981 amendment contains no off-setting benefits for the inmate. By
postponing and reducing the number of parole hearings, ostensibly
for the sole purpose of cutting administrative costs, the amendment
will at best leave an inmate in the same position he was in, and
will almost inevitably delay the grant of parole in some cases.
The Court concludes, nevertheless, that it is "speculative" to
say that the statute will increase inmates' punishment. To draw
such a conclusion, the Court "speculates" about the accuracy of the
Board's predictions, it "speculates" about the parole suitability
of a class of prisoners, it "speculates" about the length of time
that elapses between an eventual parole hearing and the ultimate
release date, and it "speculates" as to the availability of
procedures to deal with unexpected
526
changes in circumstances. To engage in such pure speculation
while condemning respondent's assertion of increased punishment as
"speculative" seems to me not only unpersuasive, but actually
perverse.
I respectfully dissent.
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