CALIFORNIA DEPARTMENT OF CORRECTIONS ET AL. v. MORALES
No. 93-1462
SUPREME COURT OF THE UNITED STATES
Argued January 9, 1995—Decided April 25, 1995
514 U.S. 499
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.
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.
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
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.”
We granted certiorari, 512 U. S. 1287 (1994), and we now reverse.
II
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
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
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.
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,
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
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.”
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.”
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.
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
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.”
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 first-degree 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.”
In answering that question, I begin with certain propositions of law that I do not understand the Court to dispute.
I
The Constitution provides that “[n]o State shall . . . pass any . . . ex post facto Law.”
Although the text of the Ex Post Facto Clause is not self-explanatory, its basic coverage has been well understood at least since 1798, when the Court in Calder v. Bull, 3 Dall.
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
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
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
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 (CA11), 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.
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.”
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
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.”
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
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-
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
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
I respectfully dissent.