Plaintiff appeals by leave granted from an order of the circuit court granting summary disposition to defendant and denying summary disposition to plaintiff. We affirm.
*640
On January 7, 1983, plaintiff was sentenced to twenty-five to fifty years’ imprisonment for his conviction of armed robbery, MCL 750.529; MSA 28.797, and to two years’ imprisonment for his conviction of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). At the time of the offense and conviction, the Prison Overcrowding Emergency Powers Act (hereinafter the poepa), MCL 800.71
et seq.;
MSA 28.1437(1)
et seq.,
was in effect. Pursuant to the poepa, between the time plaintiff was sentenced and December 1984, he accumulated 540 days’ credit toward his minimum sentence. The poepa was repealed in 1987.
In 1997, plaintiff filed a complaint for a writ of mandamus in the circuit court, arguing that the repeal of the poepa violated the Ex Post Facto Clause of the United States Constitution. 1 Additionally, plaintiff argued that amendments made to the parole statute in 1992, 2 which reduced the frequency of parole interviews from two years to five years, also violated the Ex Post Facto Clause. On appeal, plaintiff reasserts these claims, and further argues that both legislative actions violated the Due Process Clause of the United States Constitution. 3
The poepa was enacted by the Legislature in response to a consistent overcrowding problem that existed in the state prison system.
Oakland Co Prosecuting Attorney v Dep’t of Corrections,
411 Mich
*641
183, 186-187;
Plaintiff first claims that the repeal of the poepa violates the Ex Post Facto Clause because it lengthened his term of imprisonment, thereby inflicting a harsher punishment than existed before the repeal. See
Calder v Bull,
1 Dall 386, 390;
A prohibited ex post facto law is one that is “retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.”
Weaver v Graham,
*642
Plaintiffs argument relies in large part on
Lynce v Mathis,
In Weaver, the Supreme Court held that a statute, which reduced the number of automatic good-time credits a prisoner , could receive, also violated the ex post facto prohibition. Weaver, supra at 35-36. In the case at hand, the award of emergency credits was not similarly automatic. A significant feature of the poepa was the discretionary authority given the Governor. Under § 3 of the poepa, the Commission of Corrections was told to request that the Governor declare a state of emergency when the established population level was reached. MCL 800.73; MSA 28.1437(3). The commission was also instructed to certify “that all administrative actions consistent with the applicable state laws and the rules promulgated under those laws have been exhausted in an attempt to reduce the prison population” to an identified level. Id. Section 4 invested the Governor with the authority to find that the commission had acted in error in making such a request. MCL 800.74; MSA 28.1437(4). This discretionary authority means that what plaintiff lost was the opportunity to be awarded early release credits if the Governor determined that certain conditions, not under plaintiffs control, came into being.
*643
We hold that the loss of this opportunity by the repeal of the poepa does not violate the Ex Post Facto Clause. The
Morales
Court noted that “the focus of the ex post facto inquiry is not whether a legislative change produces some, ambiguous sort of ‘disadvantage,’ . . . but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable.”
Morales, supra
at 506-507 & n 3. Plaintiff’s lost opportunity to have his prison term reduced if (1) the identified prison population criteria had been met, (2) the Commission of Corrections had exhausted all other measures in an attempt to reduce the population, and (3) the Governor decided that the commission had not acted in error, is the type of ambiguous and speculative disadvantage that is not prohibited by the Ex Post Facto Clause.
Id.
at 514. See also
Garner, supra,
Plaintiff also argues that he should be awarded early release credit for the years since the award of overcrowding credits was discontinued. Because we have held that the repeal of the POEPA did not violate the ex post facto prohibition, the range of this argument is limited to the period between December 14, 1984, when Governor Blanchard refused to declare an overcrowding emergency, 4 through January 1, 1988, *644 the effective date for the repeal of the poepa. As for this period, we conclude that given the discretion granted to the Governor under the poepa, plaintiffs argument is without merit.
We also reject plaintiffs argument regarding the 1992 amendments of the parole statute. Plaintiffs argument is that the increase in the time between mandatory parole eligibility interviews from two to five years is unconstitutional. As the
Gamer
Court observed, “The States must have due flexibility in formulating parole procedures and addressing problems associated with confinement and release.”
Garner, supra,
Affirmed.
Notes
US Const, art 1, § 10, cl 1. Plaintiffs argument is limited to the Ex Post Facto Clause of the United States Constitution.
US Const, Am XIV. Plaintiff’s argument is limited to the Due Process Clause of the United States Constitution.
In response to a request by the Department of Corrections that Governor Blanchard declare an emergency in the female prison system, the Governor informed the department that he did “not intend to declare a prison overcrowding emergency now or in the near future.” Letter from James J. Blanchard, Governor of the State of Michigan, to Gwen Andrew, Ph.D., Michigan Department of Corrections. (December 14, 1984).