OCTOBER TERM, 1996
Syllabus
LYNCE
v. MATHIS, SUPERINTENDENT, TOMOKA CORRECTIONAL
INSTITUTION, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
No. 95-7452. Argued November 4, 1996-Decided February 19,
1997
Beginning in 1983 the Florida Legislature enacted a series of
statutes authorizing the award of early release credits to prison
inmates when the state prison population exceeded predetermined
levels. In 1986 petitioner received a 22-year prison sentence on a
charge of attempted murder. In 1992 he was released based on the
determination that he had accumulated five different types of early
release credits totaling 5,668 days, including 1,860 days of
"provisional credits" awarded as a result of prison overcrowding.
Shortly thereafter, the state attorney general issued an opinion
interpreting a 1992 statute as having retroactively canceled all
provisional credits awarded to inmates convicted of murder and
attempted murder. Petitioner was therefore rearrested and returned
to custody. He filed a habeas corpus petition alleging that the
retroactive cancellation of provisional credits violated the
Ex
Post Facto Clause. Relying on precedent rejecting this argument
on the ground that the sole purpose of these credits was to
alleviate prison overcrowding, the District Court dismissed the
petition. The Court of Appeals denied a certificate of probable
cause.
Held: The 1992 statute canceling provisional release
credits violates the
Ex Post Facto Clause. Pp.439-449.
(a) This Court rejects respondents' contention that the
cancellation of petitioner's provisional credits did not violate
the Clause because the credits had been issued as part of
administrative procedures designed to alleviate prison overcrowding
and were therefore not an integral part of petitioner's punishment.
To fall within the
ex post facto prohibition, a law must be
retrospective and "disadvantage the offender affected by it,"
Weaver v.
Graham, 450 U. S. 24, 29, by,
inter alia, increasing the punishment for the crime, see
Collins v.
Youngblood, 497 U. S. 37, 50. The
operation of the 1992 statute was clearly retrospective, and a
determination that it disadvantaged petitioner by increasing his
punishment is supported by
Weaver v.
Graham, 450 U.
S., at 36, in which the Court held that retroactively decreasing
the amount of gain-time awarded for an inmate's good behavior
violated the
Ex Post Facto Clause. Because
Weaver and
subsequent cases focused on whether the legislature's action
434
Syllabus
lengthened the prisoner's sentence without examining the
subjective purposes behind the sentencing scheme, see,
e.
g., id., at 33, the fact that the generous gain-time provisions in
Florida's 1983 statute were motivated more by the interest in
avoiding overcrowding than by a desire to reward good behavior is
not relevant to the essential
ex post facto inquiry.
California Dept. of Corrections v.
Morales, 514 U. S. 499, 507,
distinguished. Respondents are foreclosed by
Weaver, 450 U.
S., at 32, to the extent they argue that overcrowding gain-time is
not in some technical sense part of the sentence. Their further
argument that petitioner could not reasonably have expected to
receive any overcrowding credits when he entered his plea of
nolo contendere is singularly unpersuasive, given the facts
that he was actually awarded 1,860 days and that those credits were
retroactively canceled as a result of the 1992 statute.
Pp.439-447.
(b) The Court disagrees with respondents' argument that
petitioner is not entitled to relief because his provisional
overcrowding credits were awarded pursuant to statutes enacted
after the date of his offense rather than pursuant to the 1983
statute. Although the overcrowding statute in effect at the time of
his crime was slightly modified in subsequent years, its basic
elements remained the same, and the changes do not affect his core
ex post facto claim. However, the differences in the
statutes may have affected the precise amount of release time he
received. Because this point was not adequately developed earlier
in the proceeding, and because it may not in any event affect
petitioner's entitlement to release, the Court leaves it open for
further consideration on remand. Pp. 447-449.
Reversed and remanded.
STEVENS, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, KENNEDY, SOUTER, GINSBURG, and
BREYER, JJ., joined. THOMAS, J., filed an opinion concurring in
part and concurring in the judgment, in which SCALIA, J., joined,
post, p. 449.
Joel T. Remland argued the cause for petitioner. With him
on the briefs was
Carter G.
Phillips.
Parker D. Thomson, Assistant Attorney General of Florida,
argued the cause for respondents. On the brief for respondent
Butterworth were
Mr. Butterworth, Attorney
435
General,
pro se, and
Jason Vail, Assistant
Attorney General.
Susan A. Maher filed a brief for
respondent Mathis. *
JUSTICE STEVENS delivered the opinion of the Court.
In 1983 and thereafter the Florida Legislature enacted a series
of statutes authorizing the department of corrections to award
early release credits to prison inmates when the population of the
state prison system exceeded predetermined levels. The question
presented by this case is whether a 1992 statute canceling such
credits for certain classes of offenders after they had been
awarded-indeed, after they had resulted in the prisoners' release
from custody-violates the
Ex Post Facto Clause of the
Federal Constitution.
I
In 1986 petitioner pleaded
nolo contendere to a charge of
attempted murder and received a sentence of 22 years (8,030 days)
in prison. In 1992 the Florida Department of Corrections released
him from prison based on its determination that he had accumulated
five different types of early release credits totaling 5,668 days.l
Of that total, 1,860 days were
*Chet Kaufman filed a brief for the Florida Public
Defender Association, Inc., as
amicus curiae urging
reversal.
A brief of
amici curiae urging affirmance was filed for
the State of Nevada et al. by
Frankie Sue Del Papa, Attorney
General of Nevada, and
Anne B. Cathcart, Senior Deputy
Attorney General, and by the Attorneys General for their respective
States as follows:
Daniel E. Lungren of California,
Michael J.
Bowers of Georgia,
Alan G.
Lance of Idaho,
Carla J.
Stovall of Kansas,
Joseph P. Mazurek of Montana,
Don Stenberg of
Nebraska,
Betty D. Montgomery of Ohio,
W A. Drew
Edmondson of Oklahoma,
Jeffrey B. Pine of Rhode Island,
Charles Molony Condon of South Carolina,
Jeffrey L.
Amestoy of Vermont, and
James S.
Gilmore III of
Virginia.
Lisa B. Kemler and
Baya Harrison III filed a brief
for the National Association of Criminal Defense Lawyers as
amicus curiae.
1 The total included: (1) a 170-day credit for time spent in
jail prior to his conviction; (2) "basic gain-time" of 2,640 days;
(3) "additional [incentive]
436
"provisional credits" awarded as a result of prison
overcrowding. Shortly after petitioner's release, the state
attorney general issued an opinion interpreting a 1992 statute as
having retroactively canceled all provisional credits awarded to
inmates convicted of murder or attempted murder. Petitioner was
therefore rearrested and returned to custody. His new release date
was set for May 19, 1998.
In 1994 petitioner filed a petition for a writ of habeas corpus
alleging that the retroactive cancellation of provisional credits
violated the
Ex Post Facto Clause. Relying on Eleventh
Circuit 2 and Florida 3 precedent holding that the revocation of
provisional credits did not violate the
Ex Post Facto Clause
because their sole purpose was to alleviate prison overcrowding,
the Magistrate Judge recommended dismissal of the petition. The
District Court adopted that recommendation, dismissed the petition,
and denied a certificate of probable cause. The Court of Appeals
for the Eleventh Circuit also denied a certificate of probable
cause in an unpublished order. Because the Court of Appeals for the
Tenth Circuit reached a different conclusion on similar facts,
Arnold v.
Cody, 951 F.2d
280 (1991), we granted certiorari to resolve the conflict. 517
U. S. 1186 (1996).4
gain-time" of 958 days; (4) "administrative gain-time" of 335
days; and (5) "provisional credits" of 1,860 days. Disciplinary
action resulted in a forfeiture of 295 days.
2 Hock v.
Singletary, 41 F.3d
1470 (1995).
3
Dugger v.
Rodrick, 584 So. 2d 2 (Fla. 1991),
cert. denied
sub nom.
Rodrick v.
Singletary, 502 U. S. 1037 (1992).
4 Petitioner did not advance his
ex post facto claim in
state court. In the District Court respondents challenged his
failure to exhaust his state remedies, but do not appear to have
raised the exhaustion issue in the Court of Appeals; nor have they
raised it in this Court. Presumably they are satisfied, as we are,
that exhaustion would have been futile. The Florida Supreme Court,
in
Dugger v.
Rodrick, 584 So. 2d 2 (1991), held that
retrospective application of the provisional credits statute's
offensebased exclusion did not violate the
Ex Post Facto
Clause. The court reasoned that overcrowding credits, unlike basic
gain-time or incentive gain-time, were merely "procedural" and did
not create any substantive
437
II
Motivated largely by the overcrowded condition of the entire
Florida prison system,5 in 1983 the state legislature enacted the
Correctional Reform Act of 1983, a comprehensive revision of the
State's sentencing laws.6 The Act authorized generous awards of
early release credits including "basic gain-time" at the rate of 10
days for each month, "up to 20 days of incentive gain time, which
shall be credited and applied monthly," and additional deductions
of "meritorious gain-time of from 1 to 60 days." See 1983 Fla.
Laws, ch. 83-131, § 8.7 The Act also created an emergency procedure
to be followed "whenever the population of the state correctional
system exceeds 98 percent of the lawful capacity of the system for
males or females, or both." § 5(1).8 When
rights. Relying on
Dugger, the Florida Supreme Court held
in
Griffin v.
Singletary, 638 So. 2d 500 (1994), that
cancellation of provisional credits actually awarded to a prisoner
did not violate the
Ex Post Facto Clause. Respondents have
not suggested any reason why the Florida courts would have decided
petitioner's case differently.
5 In 1980 the Florida Department of Corrections consented to the
entry of a decree establishing a limit on the prison population
that could not be exceeded without court approval. See
Costello v.
Wainwright, 489 F. Supp. 1100 (MD Fla.
1980). In 1982 a special session of the legislature created a
Corrections Overcrowding Task Force, which drafted the 1983
legislation.
61983 Fla. Laws, ch. 83-131.
7 Section 8 amended § 944.275 of the Florida Statutes. 8 Section
5, in pertinent part, provides:
"(1) The Department of Corrections shall advise the Governor of
the existence of a state of emergency in the state correctional
system whenever the population of the state correctional system
exceeds 98 percent of the lawful capacity of the system for males
or females, or both. In conveying this information, the secretary
of the department shall certify the rated design capacity, maximum
capacity, lawful capacity, system maximum capacity, and current
population of the state correctional system. When the Governor
verifies such certification by letter, the secretary shall declare
a state of emergency.
"(2) Following the declaration of a state of emergency, the
sentences of all inmates in the system who are eligible to earn
gain-time shall be re-
438
such an emergency was declared, "the sentences of all inmates in
the system who are eligible to earn gain-time shall be reduced by
the credit of up to 30 days gain-time in 5-day increments as may be
necessary to reduce the inmate population to 97 percent of lawful
capacity." § 5(2).
In the ensuing years, the Florida Legislature modified the
overcrowding gain-time system. In 1987 the legislature raised the
threshold for awarding emergency release credits from 98% to 99% of
capacity. At the same time, the legislature authorized a new form
of overcrowding credit, administrative gain-time, with a 98%
threshold, which authorized up to a maximum of 60 days additional
gain-time to inmates already earning incentive gain-time. Inmates
serving sentences for certain offenses were ineligible for the
awards. In 1988 the legislature repealed the administrative
gain-time provision, and replaced it with a provisional credits
system.9 The language of the provisional credits statute was
virtually identical to that of the administrative gain-time
statute-it also authorized up to 60 days of gain-time but was
triggered when the inmate population reached 97.5% of capacity. In
addition, the legislature expanded the list of offenders who were
ineligible for the awards.
Having received overcrowding gain-time under the administrative
gain-time and provisional credits statutes, as well as basic and
incentive gain-time, petitioner was released from prison in 1992.
That same year, the legislature canceled provisional overcrowding
credits for certain classes of
duced by the credit of up to 30 days gain-time in 5-day
increments as may be necessary to reduce the inmate population to
97 percent of lawful capacity." 1983 Fla. Laws, ch. 83-131, §
5.
91988 Fla. Laws, ch. 88-122, § 5. The provisional credits
statute was repealed in 1993. 1993 Fla. Laws, ch. 93-406, §§ 32,
35. The only overcrowding credit system in place today in Florida
is the "control release" provision, first enacted in 1989, which
authorizes release from incarceration rather than gain-time to
control prison population. See Fla. Stat. § 947.146 (Supp.
1992).
439
inmates, including those convicted of attempted murder.10 As a
result of that action, credits for 2,789 inmates who were still in
custody were canceled, and rearrest warrants were issued for 164
offenders who had been releasedY Petitioner was in the latter
class.
Respondents contend that the cancellation of petitioner's
provisional credits did not violate the
Ex Post Facto Clause
for two reasons: (1) Because the credits had been issued as part of
administrative procedures designed to alleviate overcrowding, they
were not an integral part of petitioner's punishment; and (2) in
petitioner's case, the specific overcrowding credits had been
awarded pursuant to statutes enacted after the date of his offense
rather than pursuant to the 1983 statute. We consider the arguments
separately.
III
The presumption against the retroactive application of new laws
is an essential thread in the mantle of protection that the law
affords the individual citizen. That presumption "is deeply rooted
in our jurisprudence, and embodies a legal doctrine centuries older
than our Republic."
Landgraf v.
USI Film Products,
511 U. S. 244,
265 (1994). This doctrine finds expression in several provisions of
our Consti-
10 See Fla. Op. Atty. Gen. 92-96 (1992), reprinted in Lodging,
p. 53;
Griffin v.
Singletary, 638 So. 2d, at 501. In
1989 the Florida Legislature amended the provisional credits
statute to render those convicted of certain murder offenses,
including attempted murder, ineligible for provisional credits.
Fla. Stat. § 944.277 (1989). The Florida Department of Corrections
interpreted the 1989 amendments, and subsequent amendments enacted
in 1990 and 1991 which contained the same exclusion, to apply
prospectively. The 1992 amendment at issue in this case was
originally interpreted by the department of corrections to apply
only prospectively, but the subsequent 1992 opinion by the attorney
general concluded that the statute applied retroactively.
11 Department of Corrections Letter of July 9, 1996, App. to
Brief for Florida Public Defender Association, Inc., as
Amicus
Curiae. The petitioner's administrative gain-time credits were
also canceled, but he does not challenge that action.
440
tution.12 The specific prohibition on
ex post facto laws
is only one aspect of the broader constitutional protection against
arbitrary changes in the law. In both the civil and the criminal
context, the Constitution places limits on the sovereign's ability
to use its lawmaking power to modify bargains it has made with its
subjects. The basic principle is one that protects not only the
rich and the powerful,
United States v.
Winstar
Corp., 518 U. S.
839 (1996), but also the indigent defendant engaged in
negotiations that may lead to an acknowledgment of guilt and a
suitable punishment.
Article I, § 10, of the Federal Constitution provides that "[n]o
State shall ... pass any ... ex post facto Law." In his opinion for
the Court in
Beazell v.
Ohio, 269 U. S. 167 (1925),
Justice Stone explained:
"The constitutional prohibition and the judicial interpretation
of it rest upon the notion that laws, whatever their form, which
purport to make innocent acts criminal after the event, or to
aggravate an offense, are harsh and oppressive, and that the
criminal quality attributable to an act, either by the legal
definition of the offense or by the nature or amount of the
punishment imposed for its commission, should not be altered by
legislative enactment, after the fact, to the disadvantage of the
accused." Id., at 170.
12 "The
Ex Post Facto Clause flatly prohibits retroactive
application of penal legislation. Article I, § 10, cl. 1, prohibits
States from passing another type of retroactive legislation, laws
'impairing the Obligation of Contracts.' The Fifth Amendment's
Takings Clause prevents the Legislature (and other government
actors) from depriving private persons of vested property rights
except for a 'public use' and upon payment of 'just compensation.'
The prohibitions on 'Bills of Attainder' in Art. I, §§ 9-10,
prohibit legislatures from singling out disfavored persons and
meting out summary punishment for past conduct. See,
e. g.,
United States v.
Brown, 381 U. S. 437, 456-462
(1965). The Due Process Clause also protects the interests in fair
notice and repose that may be compromised by retroactive
legislation ... ."
Landgrafv. USI Film Products, 511 U. S.,
at 266 (footnote omitted).
441
The bulk of our
ex post facto jurisprudence has involved
claims that a law has inflicted "a greater punishment, than the law
annexed to the crime, when committed."
Calder v.
Bull, 3 Dall. 386, 390 (1798) (emphasis deleted)P We have
explained that such laws implicate the central concerns of the
Ex Post Facto Clause: "the lack of fair notice and
governmental restraint when the legislature increases punishment
beyond what was prescribed when the crime was consummated."
Weaver v.
Graham, 450 U. S. 24, 30
(1981).
To fall within the
ex post facto prohibition, a law 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, by altering the definition of criminal conduct or
increasing the punishment for the crime, see
Collins v.
Youngblood, 497
U. S. 37, 50 (1990). In this case the operation of the 1992
statute to effect the cancellation of overcrowding credits and the
consequent reincarceration of petitioner was clearly retrospective.
The narrow issue that we must decide is thus whether those
consequences disadvantaged petitioner by increasing his
punishment.
In arguing that the cancellation of overcrowding credits
inflicts greater punishment, petitioner relies primarily on our
decision in
Weaver v.
Graham, in which we considered
whether retroactively decreasing the amount of gain-time awarded
for an inmate's good behavior violated the
Ex Post Facto
Clause. In that case the petitioner had pleaded guilty
13 This case falls in the third of the four categories of
ex
post facto laws described by Justice Chase: "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., at
390 (emphasis deleted).
442
to second-degree murder and had been sentenced to prison for 15
years. At the time of Weaver's plea, Florida law provided credits
contingent on the good conduct of the prisoner of 5 days per month
for the first two years of his sentence, 10 days per month for the
third and fourth years, and 15 days per month thereafter. The law
therefore provided him with an opportunity to be released after
serving less than nine years of his sentence. In 1978 the Florida
Legislature enacted a new formula for computing gain-time; instead
of 5, 10, and 15 days per month, it authorized only 3, 6, and 9
days. The new statute did not withdraw any credits already awarded
to Weaver, but by curtailing the availability of future credits it
effectively postponed the date when he would become eligible for
early release. Because the statute made the punishment for crimes
committed before its enactment "more onerous," we unanimously
concluded that it ran "afoul of the prohibition against
ex
postfacto laws." 450 U. S., at 36.
According to petitioner, although this case involves
overcrowding credits, it is essentially like
Weaver because
the issuance of these credits was dependent on an inmate's good
conduct. Respondents, on the other hand, submit that
Weaver
is not controlling because it was the overcrowded condition of the
prison system, rather than the character of the prisoner's conduct,
that gave rise to the award. In our view, both of these submissions
place undue emphasis on the legislature's subjective intent in
granting the credits rather than on the consequences of their
revocation.
In arriving at our holding in
Weaver, we relied not on
the subjective motivation of the legislature in enacting the
gaintime credits, but rather on whether objectively the new statute
"lengthen[ed] the period that someone in petitioner's position must
spend in prison."
Id., at 33. Similarly, in this case, the
fact that the generous gain-time provisions in Florida's 1983
statute were motivated more by the interest in avoiding
overcrowding than by a desire to reward good behavior is not
relevant to the essential inquiry demanded by
443
the
Ex Post Facto Clause: whether the cancellation of
1,860 days of accumulated provisional credits had the effect of
lengthening petitioner's period of incarceration.
In our
post-Weaver cases, we have also considered whether
the legislature's action lengthened the sentence without examining
the purposes behind the original sentencing scheme. In
Miller v.
Florida, 482 U. S. 423 (1987), we
unanimously concluded that a revision in Florida's sentencing
guidelines that went into effect between the date of petitioner's
offense and the date of his conviction violated the
Ex Post
Facto Clause. Our determination that the new guideline was
"'more onerous than the prior law,'" id., at 431 (quoting
Dobbert v.
Florida, 432 U. S. 282, 294
(1977)), rested entirely on an objective appraisal of the impact of
the change on the length of the offender's presumptive sentence.
482 U. S., at 431 ("Looking only at the change in primary offense
points, the revised guidelines law clearly disadvantages petitioner
and similarly situated defendants").
In
California Dept. of Corrections v.
Morales,
514 U. S. 499
(1995), we also relied entirely on objective considerations to
support our conclusion that an amendment to California's parole
procedures that decreased the frequency of parole hearings for
certain offenders had not made any "change in the 'quantum of
punishment,'" id., at 508. The amendment at issue in
Morales
allowed the parole board, after holding an initial parole hearing,
to defer for up to three years subsequent parole suitability
hearings for prisoners convicted of multiple murders if the board
found that it was unreasonable to expect that parole would be
granted at a hearing during the subsequent years. We stated that
the relevant inquiry is whether the "change alters the definition
of criminal conduct or increases the penalty by which a crime is
punishable."
Id., at 507, n. 3.14 After making that inquiry,
we
14 Later in the opinion we restated the test in similar
language: "In evaluating the constitutionality of the 1981
amendment, we must determine whether it produces a sufficient risk
of increasing the measure of punish-
444
found that "there is no reason to conclude that the amendment
will have any effect on any prisoner's actual term of confinement."
Id., at 512. Our holding rested squarely on the conclusion
that "a prisoner's ultimate date of release would be entirely
unaffected by the change in the timing of suitability hearings."
Id., at 513. Although we held that "speculative and
attenuated possibilit[ies]" of increasing the measure of punishment
do not implicate the
Ex Post Facto Clause, id., at 509, the
bulk of our analysis focused on the effect of the law on the
inmate's sentence.
We did not imply in
Morales, as respondents contend, that
the constitutionality of retroactive changes in the quantum of
punishment depended on the purpose behind the parole sentencing
system. The only mention of legislative purpose in
Morales
was in the following passage:
"In contrast to the laws at issue in Lindsey [v.
Washington, 301 U. S. 397 (1937)],
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
timeconsuming responsibility of scheduling parole hearings'''' for
prisoners who have no reasonable chance of being released. In re
Jackson, 39 Cal. 3d 464, 473, 703 P. 2d 100, 106 (1985)
(quoting legislative history)." Id., at 507.
Thus, we concluded, the change at issue had neither the purpose
nor the effect of increasing the quantum of punishment. Whether
such a purpose alone would be a sufficient basis for concluding
that a law violated the
Ex Post Facto Clause when it
actually had no such effect is a question the Court has never
addressed. Moreover, in
Morales our statements regarding
purpose did not refer to the purpose behind the
ment attached to the covered crimes." California Dept. of
Corrections v. Morales, 514 U. S., at 509.
445
creation of the original sentencing scheme; they referred
instead to the question whether, in changing that sentencing
scheme, the legislature intended to lengthen the inmate's sentence.
To the extent that any purpose might be relevant in this case, it
would only be the purpose behind the legislature's 1992 enactment
of the offense-based exclusion. Here, unlike in
Morales,
there is no evidence that the legislature's change in the
sentencing scheme was merely to save time or money. Rather, it is
quite obvious that the retrospective change was intended to prevent
the early release of prisoners convicted of murder-related offenses
who had accumulated overcrowding credits.15
Respondents also argue that the retroactive cancellation of
overcrowding credits is permissible because overcrowding
gain-time-unlike the incentive gain-time at issue in
Weaver
which is used to encourage good prison behavior and prisoner
rehabilitation-"b[ears] no relationship to the original penalty
assigned the crime or the actual penalty calculated under the
sentencing guidelines." Brief for Respondent Mathis 20. To the
extent that respondents' argument rests on the notion that
overcrowding gain-time is not "in some technical sense part of the
sentence,"
Weaver, 450 U. S., at 32, this argument is
foreclosed by our precedents. As we recognized in
Weaver,
retroactive alteration of parole or early release provisions, like
the retroactive application of provisions that govern initial
sentencing, implicates the
Ex Post Facto Clause because such
credits are "one determinant of petitioner's prison term ... and
... [the petitioner's] effective sentence is altered once this
determinant is changed."
Ibid. We explained in
Weaver
that the removal of such provisions can constitute an increase in
punishment, because a "prisoner's eligibility for reduced
imprisonment is a signifi-
15 Indeed, the attorney general issued the 1992 opinion
interpreting the statute to apply retroactively in response to
concerns about the release of a notorious sex offender and
murderer. See Fla. Op. Atty. Gen. 92-96, at 283, reprinted in
Lodging, at 53.
446
cant factor entering into both the defendant's decision to plea
bargain and the judge's calculation of the sentence to be imposed."
Ibid.
Respondents argue that this reasoning does not apply to
overcrowding credits because, when petitioner pleaded
nolo
contendere, he could not reasonably have expected to receive
any such credits. The State, after all, could have alleviated the
overcrowding problem in various ways: It could have built more
prisons; it could have paroled a large category of nonviolent
offenders; or it might have discontinued prosecution of some
classes of victimless crimes. Respondents thus argue that the 1992
statute does not violate the
Ex Post Facto Clause because,
like the California amendment at issue in
Morales, it
"create[d] only the most speculative and attenuated possibility of
producing the prohibited effect of increasing the measure of
punishment for covered crimes." 514 U. S., at 509.16 Given the fact
that this petitioner was actually awarded 1,860 days of provisional
credits and the fact that those credits were retroactively canceled
as a result of the 1992 amendment, we find this argument singularly
unpersuasive. In this case, unlike in
Morales, the actual
course of events makes it unnecessary to speculate about what might
have happened. The 1992 statute has unques-
16 The support for our conclusion in
Morales that the Act
was merely speculative has no counterpart in this case. In
Morales, we first relied on the fact that the amendment
affected a class of prisoners-multiple murderers-who had little
chance of being released on parole. Second, we found that the
amendment did not alter the date of the prisoner's initial parole
suitability hearing, and therefore only affected those initially
deemed unsuitable for parole. Lastly, we recognized that the parole
board "retain[ed] the authority to tailor the frequency of
subsequent suitability hearings to the particular circumstances of
the individual prisoner." 514 U. S., at 511. Simply put, we
rejected the inmate's claim in
Morales, because it could not
be said with any certainty that the amended statutory scheme was
more "onerous" than at the time of the crime. See id., at 509-510
(quoting
Dobbert v.
Florida, 432 U. S. 282, 294
(1977), for "refusing to accept 'speculation' that the effective
punishment under a new statutory scheme would be 'more onerous'
than under the old one").
447
tionably disadvantaged petitioner because it resulted in his
rearrest and prolonged his imprisonment. Unlike the California
amendment at issue in
Morales, the 1992 Florida statute did
more than simply remove a mechanism that created an
opportunity for early release for a class of prisoners whose
release was unlikely; rather, it made ineligible for early release
a class of prisoners who were previously eligible-including some,
like petitioner, who had actually been releasedP
IV
Although it does not appear that respondents advanced this
argument in the papers filed in the District Court, the Court of
Appeals, or in their brief in opposition to the petition for
certiorari in this Court, they now argue that petitioner is not
entitled to relief because his overcrowding credits were awarded
pursuant to statutes enacted after the date of his offense rather
than pursuant to the 1983 statute. We disagree.
The overcrowding statute in effect at the time of petitioner's
crime was modified in subsequent years, but its basic elements
remained the same: The statute provided for reductions in a
prisoner's sentence when the population of the prison system
exceeded a certain percentage of lawful capacity. At the time of
petitioner's sentence in 1986, the emergency gain-time statute was
in effect. Under that statute, when the prison population reached
98% of lawful capacity,
17 We note that respondents do not argue, as the Magistrate
Judge found, that the revocation of overcrowding credits is
constitutional because such an act is merely "procedural." There is
no merit to this argument in any case. We explained in
Dobbert v.
Florida, 432 U. S. 282 (1977),
that a procedural statute is one that "simply alter[s] the methods
employed in determining" whether the punishment is "to be imposed"
rather than "chang[ing] ... the quantum of punishment attached to
the crime."
Id., at 293-294. Because the 1992 law did not
change the method of determining the sentence, but rather
lengthened the sentences of certain prisoners by making them
ineligible for early release, it was not merely procedural.
448
the secretary of the department of corrections was required to
advise the Governor and, after receiving the Governor's
verification of the capacity certification, to declare a state of
emergency whereupon the sentences of all eligible inmates "shall be
reduced by the credit of up to 30 days gain-time, in 5-day
increments, as may be necessary to reduce the inmate population to
97 percent of lawful capacity." Fla. Stat. § 944.598(2)
(1983).18
The later statutes slightly modified the procedures outlined in
the 1983 statute. The administrative gain-time statute enacted in
1987 (after petitioner's plea of
nolo contendere) provided
that the secretary, after certification to the Governor, "may grant
up to a maximum of 60 days administrative gain-time." Fla. Stat §
944.276(1). Unlike the emergency gain-time statute, the
administrative gain-time statute made the issuance of gain-time
discretionary, and it contained certain offense-based exclusions.
The provisional credits provision was enacted to replace
administrative gain-time and is essentially the same, except that
it provides for the issuance of gain-time when the prison
reaches
18 Respondent Attorney General Butterworth suggests that under
the emergency gain-time statute, the maximum award petitioner could
have realized was 30 days of emergency gain-time. Therefore,
according to the attorney general, it is unlikely that the
gain-time statute would have had any effect on petitioner's
sentence. We do not agree that the statute lends itself to such a
reading. The statute required the department of corrections to
advise the Governor
"whenever the population of the state
correctional system exceeds 98 percent of lawful capacity." Fla.
Stat. § 944.598(1) (1983) (emphasis added). The duty to grant up to
30 days gain-time in 5-day increments was continuing until the
inmate population reached 97% of lawful capacity. If the inmate
population were to rise again to 98%, the Secretary was required to
issue additional gain-time.
Moreover, the attorney general's reading of the emergency
gain-time statute would also limit the award of gain-time under the
administrative gain-time and provisional credits statute. These
statutes contain wording similar to the emergency gain-time
statute, see Fla. Stat. § 944.276(1) (1987); Fla. Stat. §
944.277(1) (1989), yet the State has not interpreted the statutes
to limit the award of gain-time to a total of 60 days.
449
97.5% of lawful capacity, rather than 98%. Fla. Stat. § 944.277
(1988). See
Griffin v.
Singletary, 638 So. 2d 500
(Fla. 1994).
The changes in the series of statutes authorizing the award of
overcrowding gain-time do not affect petitioner's core
ex post
facto claim. Petitioner could have accumulated gain-time under
the emergency gain-time provision in much the same manner as he did
under the provisional credits statute. We recognize, however, that
although the differences in the statutes did not affect
petitioner's central entitlement to gain-time, they may have
affected the precise amount of gain-time he received. Between 1988
and 1992, the provisional credits were authorized when the prison
reached 97.5% capacity rather than 98% capacity as under the
emergency gain-time statute. If the prison population did not
exceed 98% of capacity between 1988 and 1992, and if petitioner
received provisional credits during those years, there is force to
the argument that the cancellation of that portion of the 1,860-day
total did not violate the
Ex Post Facto Clause. Because this
point was not adequately developed earlier in the proceeding, and
because it may not in any event affect petitioner's entitlement to
release, we leave it open for further consideration on remand.
The judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
It is so ordered.
JUSTICE THOMAS, with whom JUSTICE SCALIA joins, concurring in
part and concurring in the judgment.
I understand the Court's opinion to hold that retroactively
canceling petitioner's so-called "provisional credits" after he has
used them to gain his freedom violates the
Ex Post Facto
Clause. This result naturally follows from our consistent view that
the Clause is intended to prohibit laws that "retroactively alter
the definition of crimes or increase the punish-
450
Opinion of THOMAS, J.
ment for criminal acts."
Collins v.
Youngblood,
497 U. S. 37, 43
(1990).
Whether a particular law retroactively increases a criminal
punishment is often a close question. In
California Dept. of
Corrections v.
Morales, 514 U. S. 499 (1995), for
example, respondent challenged a retroactive change to the
frequency of parole hearings. Given that the retroactive change
"create[d] only the most speculative and attenuated risk of
increasing the measure of punishment attached to the covered
crimes," we found no
ex post facto violation.
Id., at
514.
Unlike in
Morales, the increase in petitioner's
punishment here was neither "speculative" nor "attenuated."
Petitioner pleaded
nolo contendere to a charge of attempted
murder and was duly sentenced. During the period of his
confinement, petitioner accumulated release credits under a state
statute adopted in response to prison overcrowding. Those credits
enabled petitioner to be freed from prison before his sentence (as
originally imposed) had run. Shortly before petitioner secured his
release, however, the Florida Legislature enacted a statute
preventing certain categories of offenders from taking advantage of
the provisional credits. Although petitioner's offense placed him
among the offenders denied the opportunity to acquire those
particular credits, the statute was not applied retroactively.
Petitioner was thus released. The state attorney general
subsequently issued an opinion giving the statute retroactive
effect. The State thereafter rearrested petitioner and returned him
to custody.
Under these narrow circumstances, I agree with the Court that
the State's retroactive nullification of petitioner's previously
accrued, and then used, release credits violates the Constitution's
ban on
ex post facto lawmaking. I do not, however, join the
majority's discussion of
Weaver v.
Graham, 450 U. S. 24 (1981), which
I find unnecessary to the resolution of this case. In
Weaver, we considered whether a statute
451
that merely altered the availability of "good conduct" credits
ran afoul of the
Ex Post Facto Clause.
Id., at 25.
The present case involves not merely an effect on the availability
of
future release credits, but the retroactive elimination
of credits already earned and used. Accordingly, I concur in part
and concur in the judgment.
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