Puckett v. AbelsPuckett v. Abels
On June 15, 1995, Appellees filed a complaint in the Circuit Court of the First Judicial District of Hinds County, Mississippi for a declaratory judgment. This complaint asked for a declaratory judgment as to the applicability of Senate Bill 2175, Section 4, paragraph 4, amending
On June 30, 1995, a hearing was held before Hinds County Circuit Court Judge James E. Graves, Jr. Judge Graves ruled that Senate Bill 2175 is an ex post facto law as it applies to the Appellees, who were charged with committing crimes prior to July 1, 1995, but who were not to be sentenced until on or after July 1, 1995.
Puckett filed a notice of appeal. Both parties filed a joint motion for expedited treatment on appeal, which this Court granted on September 28, 1995.
I.
WHETHER SENATE BILL 2175 OF THE 1995 LEGISLATIVE SESSION (THE “TRUTH IN SENTENCING” LAW) VIOLATES THE STATE AND FEDERAL CONSTITUTIONAL PROHIBITIONS AGAINST Ex post facto LAWS AS APPLIED TO OFFENDERS CHARGED WITH COMMITTING CRIMES THAT OCCURRED PRIOR TO JULY 1, 1995.
The retroactive application of Senate Bill 2175 requires that eighty-five percent (85%) of a sentence be served and eliminates the opportunity for parole that existed prior to Senate Bill 2175. The Appellees, all charged with felony crimes that occurred prior to the effective date of Senate Bill 2175, argue that this effectively increases the length of incarceration that an inmate must serve after they have been sentenced and therefore violates the Ex Post Facto Clauses of the United States and Mississippi Constitutions.
Prior to July 1, 1995, most offenders convicted of felonies and sentenced to a term of incarceration of one (1) year or more, were allowed to be eligible for parole after serving twenty-five percent (25%) of their sentence pursuant to
(1) Every prisoner who has been or may hereafter be convicted of any offense against the State of Mississippi, and is confined in the execution of a judgment of such conviction of the Mississippi State Penitentiary for a definite term or terms of one (1) year or over, or for the term of his or her natural life, whose record of conduct shows that such prisoner has observed the rules of the Penitentiary, and who has served not less than one-fourth (1/4) of the total of such term or terms for which such prisoner was sentenced, or, if sentenced to serve a term or terms of thirty (30) years or more, or, if sentenced for the term of the natural life of such prisoner, has served not less than ten (10) years of such life sentence, may be released on parole as hereinafter provided... .
Also prior to July 1, 1995, an inmate could obtain his release by serving fifty percent (50%) of his sentence pursuant to the earned time provisions of
(1) The department may promulgate rules and regulations to carry out an earned time allowance program based on the good conduct and performance of an inmate. An inmate is eligible to receive an earned time allowance of one-half (1/2) of the period of confinement imposed by the court except those inmates excluded by law. When an inmate is committed to the custody of the department, the department shall determine a conditional earned time release date by subtracting the earned time allowance from an inmate‘s term of sentence and shall prepare a conditional earned time release date for each inmate.
Senate Bill 2175, Section 4, paragraph 4, amended
For any sentence imposed after June 30, 1995, an inmate may receive an earned time allowance of four and one-half (4-1/2) days for each thirty (30) days served if the department determines that the inmate has complied with the good conduct and performance requirements of the earned time allowance program. The earned time allowance under this subsection shall not exceed fifteen percent (15%) of an inmate‘s term of sentence.
Act of Apr. 17, 1995, ch. 596, 1995 Miss. Laws 941 (codified at
The United States Supreme Court has interpreted
any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time the act was committed... .
Beazell v. Ohio, 269 U.S. 167, 169, 46 S.Ct. 68, 68, 70 L.Ed. 216 (1925).
“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.‘” California Dept. of Corrections v. Morales, ___ U.S. ___, ___, 115 S.Ct. 1597, 1601, 131 L.Ed.2d 588 (1995) (quoting Collins v. Youngblood, 497 U.S. 37, 43, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30 (1990)). The United States Constitution “forbids the application of any new punitive measure to a crime already consummated... .” Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182 (1937).
The Supreme Court has held that the purpose of the Ex post facto Clause is to assure that legislative acts “give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed” and to “restrict[] ... governmental power by restraining arbitrary and potentially vindictive legislation.” Weaver v. Graham, 450 U.S. 24, 28-29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981) (footnote and citations omitted). A statute may violate the Ex post facto Clause “even if it alters punitive conditions outside the sentence ... [or where it] substantially alters the consequences attached to a crime already completed, and therefore changes `the quantum of punishment.‘” Id. at 32-33, 101 S.Ct. at 966 (citation omitted) (quoting Dobbert v. Florida, 432 U.S. 282, 293-94, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977)).
In Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937), the statute in question there, at the time the defendant committed his crime, sentenced grand
The Constitution forbids the application of any new punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrongdoer. It is for this reason that an increase in the possible penalty is ex post facto, regardless of the length of the sentence actually imposed, since the measure of punishment prescribed by the later statute is more severe than that of the earlier.
Id. at 401, 57 S.Ct. at 799 (citations omitted).
In Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), the United States Supreme Court again struck a retrospective statute changing the quantum of punishment to which a person was exposed for a given offense. In Weaver, the defendant pled guilty to second-degree murder, which was committed on January 31, 1976. Id. at 25, 101 S.Ct. at 962. He was convicted and sentenced to fifteen years in prison, less time already served. Id. at 25-26, 101 S.Ct. at 962. The Florida statute at that time provided a formula for deducting gain-time credits from sentences for “every prisoner who has committed no infraction of the rules ... and who has performed in a faithful, diligent, ... and peaceful manner, the work, duties and tasks assigned to him.” Id. at 26, 101 S.Ct. at 962-63 (citations omitted) (quoting
Weaver sought habeas corpus relief claiming that the new statute, enacted subsequent to the crime being committed and which altered the method of gain-time computation, affected him detrimentally by extending his required prison time by more than two years and was therefore an ex post facto law. Id. at 27, 101 S.Ct. at 963. The Florida Supreme Court denied Weaver‘s petition. Id. at 27-28, 101 S.Ct. at 963. The United States Supreme Court reversed, holding that the 1979 Florida statute repealing the earlier 1975 statute and reducing the amount of gain-time violated the Ex post facto Clause when applied to a prisoner whose crime was committed before the statute‘s enactment. Id. at 36, 101 S.Ct. at 968. “By definition, this reduction in gain-time accumulation lengthens the period that someone in petitioner‘s position must spend in prison.” Id. at 33, 101 S.Ct. at 967. The Weaver Court stated that “the ex post facto prohibition ... forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred.” Id. at 30, 101 S.Ct. at 965.
Critical to relief under the Ex post facto Clause is not an individual‘s right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense.
Id. at 30-31, 101 S.Ct. at 965 (citations omitted).
Senate Bill 2175, like the new law in Lindsey, increases the possible penalty, “regardless of the length of the sentence actually imposed, since the measure of punishment prescribed by the later statute is more severe than that of the earlier.” Id. (citations omitted).
Senate Bill 2175, like the statute in Weaver, “constricts the inmate‘s opportunity to earn early release, and thereby makes more onerous the punishment for crimes committed before its enactment. This result runs afoul of the prohibition against ex post facto laws.” Id. at 35-36, 101 S.Ct. at 968 (footnote omitted).
Senate Bill 2175, like the new law in Miller, did not give these Appellees fair notice, and the punishment for the conduct being imposed has increased. Id. at 430, 107 S.Ct. at 2451. Thus, Senate Bill 2175 increases the “quantum of punishment,” as expressly prohibited by Weaver.
In the three cases above, the United States Supreme Court held that the question for an ex post facto inquiry, after first determining that an amendment was indeed retrospective, was whether it “disadvantage[d] the offender affected by it.” Weaver, 450 U.S. at 29, 101 S.Ct. at 964; Miller, 482 U.S. at 430, 107 S.Ct. at 2451; Lindsey, 301 U.S. at 401, 57 S.Ct. at 799. In a recent United States Supreme Court decision, California Dept. of Corrections v. Morales, ___ U.S. ___, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995), the Court concluded that this language was only dicta, holding that the proper focus for an ex post facto inquiry would be not “whether a legislative change produced some ambiguous sort of disadvantage ... but on whether any change ... increased the penalty by which such a crime is punishable.” Morales, ___ U.S. at ___ n. 3, 115 S.Ct. at 1602 n. 3 (citations omitted). In Morales, the Court stated that the inquiry is whether the retroactive statute “produces a sufficient risk of increasing the measure of punishment attached to the covered crimes.” Id. at ___, 115 S.Ct. at 1603 (footnote omitted) (emphasis added).
In the only Mississippi case to discuss Morales, Justice James Smith provided a thorough consideration of this decision in his dissenting opinion. Hill v. State, 659 So.2d 547, 558-60 (Miss. 1995) (Smith, J. dissenting). Justice Smith noted that the Morales Court “maintained a long established precedent” and “reaffirmed its long held position that the question of what legislative adjustments are of sufficient moment to transgress the constitutional prohibition must be a matter
In Morales, the Court stated: “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.” Id. at ___ n. 7, 115 S.Ct. at 1604 n. 7 (emphasis added). Thus, the holding in Morales does not overrule Weaver, Lindsey, and Miller because the focus in those three cases were on the effect the new law had on the defendant. Morales does, however, sharpen the ex post facto inquiry by looking at whether the statute affected the prisoner‘s actual term of confinement, rather than whether the statute had disadvantaged the defendant. In looking towards the statute‘s effect, the Morales Court held that the statute in question was not ex post facto law because “there [wa]s no reason to conclude that the amendment w[ould] have any effect on any prisoner‘s actual term of confinement... .” Id. at ___, 115 S.Ct. at 1604.
Under Morales, “what legislative adjustments `will be held to be of sufficient moment to transgress the constitutional prohibition’ must be a matter of `degree.‘” Id. at ___, 115 S.Ct. at 1603 (quoting Beazell v. Ohio, 269 U.S. 167, 171, 46 S.Ct. 68, 69, 70 L.Ed. 216 (1925)). The Morales decision means that when an amendment does not retrospectively “change the sentencing range” applicable to an offense, but does make a procedural or other change, that may indirectly affect the length of time that a prisoner may serve, no violation of the Ex post facto Clause has occurred because of the possibility of such an indirect effect is “speculative and conjectural.” Id. at ___, ___, 115 S.Ct. at 1602, 1603. In other words the new law must have a direct effect on the sentence length. Thus, in keeping with the new focus promulgated by the United States Supreme Court, we will apply the Morales “effect” review.
In Morales, the respondent was sentenced to fifteen years to life for the murder of his wife in 1980, and was eligible for parole in 1990. Id. at ___, 115 S.Ct. at 1598. In 1989, as required by California law, the Board of Prison Terms held a hearing in which the board found respondent unsuitable for parole. Id. Morales would have been eligible for another suitability hearing in 1990; however, this law was amended in 1981 to allow the Board to defer subsequent hearings for up to three years for a prisoner convicted of “more than one offense which involves the taking of a life” and if the Board found “that it was not reasonable to expect that parole would be granted at a hearing during the following years and states the bases for that finding.” Id. at ___, 115 S.Ct. at 1600 (footnote omitted) (quoting
The Court stated it had previously declined to articulate a single formula for identifying legislative changes that have a sufficient effect on substantive crimes or punishments to fall within the constitutional prohibition. The Court articulated 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.‘” Id. at ___, 115 S.Ct. at 1603 (quoting Beazell, 269 U.S. at 171, 46 S.Ct. at 69.).
In evaluating how the legislative enactment affected Morales, the Court first looked at the amendment and how it only applied to a class of prisoners for whom the likelihood of release on parole was quite remote. Id. at ___, 115 S.Ct. at 1603. The Court looked toward the fact that the amendment would “`relieve the [Board] from costly and time-consuming responsibility of scheduling parole hearings for prisoners who have no chance of being released.‘” Id. at ___, 115 S.Ct. at
Second, the Court determined that California carefully tailored the amendment to achieve some relief in a time-consuming responsibility. Id. “[T]he amendment has no effect on any prisoner unless the Board 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.‘” Id. (quoting
Third, the amended statute had “no effect on the date of any prisoner‘s initial parole suitability hearing; it affects the timing only of subsequent hearings.” Id. In addition the Court noted that “the Board retain[ed] the authority to tailor the frequency of subsequent suitability hearings to the particular circumstances of the individual prisoner.” Id. Lastly, the Court found that the Board‘s decision to defer parole review was subject to administrative appeal. Id. “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... .” Id. at ___, 115 S.Ct. at 1605. In applying these considerations, the Court found no ex post facto violation, because the amendment “create[d] only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment for covered crimes.” Id. at ___, 115 S.Ct. at 1603.
Although the Morales Court stated that it would not set out a bright-line test, the above factors emphasized by the Court in applying this “effect” review, as applied to Senate Bill 2175, establish that the California amendments in consideration in Morales and Senate Bill 2175 are materially different in many ways.
The first consideration in the Morales review, is the amount of prisoners the amendment will affect. Senate Bill 2175 will influence a large class of prisoners. Every prisoner who was convicted of any offense before June 30, 1995, and was sentenced for a term of a year of over after July 1, 1995, with the exception of habitual offenders, sex offenders who did not receive an examination by a psychiatrist or psychologist, or any person who was convicted of robbery or attempted robbery through the display of a firearm after 1977, would have been eligible for parole under
Second, the statute in Morales had “no effect on the date of any prisoner‘s initial parole suitability hearing; it affect[ed] the timing only of subsequent hearings.” Id. at ___, 115 S.Ct. at 1604. However, unlike the California statute in question, Senate Bill 2175 goes much further. It clearly eliminates any possibility for parole stating in definite terms that “[n]o person shall be eligible for parole who is convicted or whose suspended sentence is revoked after June 30, 1995.” This Court cannot conclude, as the Morales Court did, that the likelihood of parole for the Appellees was remote. Id. at ___, 115 S.Ct. at 1603.
Third, the statute in Morales was “no arbitrary decision.” Id. at ___, 115 S.Ct. at 1604. In the case at hand, there was no case specific inquiry or hearing conducted before the Legislature gave these Appellees longer sentences. Id. at ___, 115 S.Ct. at 1604. The increase in the Appellee‘s sentence, the ineligibility to receive parole before serving eight-five (85%) of his sentence, is to be exercised automatically across the board. Thus, this new disadvantage imposed by this legislation applies to everyone who has committed a felony violation and would be committed for over a year.
Puckett argues that the Morales decision requires this Court to reverse the lower court in that the amendment does not increase the penalty by which a crime is punishable. However, even applying the considerations promulgated in Morales leads to the ineluctable decision that the amendment
Senate Bill 2175 eliminates any possibility for parole for all offenders who are sentenced on or after July 1, 1995, yet who committed their crimes before July 1, 1995, or whose suspended sentence are revoked after June 30, 1995. Prior to the enactment of the bill, prisoners had the possibility for parole after serving twenty-five (25%) of their sentence pursuant to
CONCLUSION
Senate Bill 2175, as applied retroactively to the Appellees, has the effect of increasing the punishment beyond what was prescribed when the crimes were committed. Accordingly, Senate Bill 2175, as applied to these Appellees, is ex post facto law in direct contravention of the United States and Mississippi Constitutions.
AFFIRMED.
PRATHER, P.J., and BANKS, McRAE, JAMES L. ROBERTS, Jr., and MILLS, JJ., concur.
SMITH, J., dissents with separate written opinion.
DAN LEE, C.J., and PITTMAN, J., not participating.
SMITH, Justice, dissenting:
I dissented in Hill v. State, 659 So.2d 547 (Miss. 1994), regarding whether
Senate Bill 2175 requires that eighty-five percent of a sentence be served and eliminates the opportunity for parole that existed previously. Prior to passage of the law, most offenders convicted of felonies and sentenced to terms of incarceration of one year or more were eligible for parole after serving twenty-five percent of their sentence.
Senate Bill 2175 is not a violation of either the state or federal constitutions and therefore
When a defendant is sentenced to custody of the Mississippi Department of Corrections (MDOC), there is no guarantee that the inmate will be released on his earned time release date. The projected release date is simply that, projected. It is clearly conditional upon several factors, i.e., good conduct and performance requirements which must be met to even be eligible for earned time. The violation of MDOC rules definitely affects whether an inmate forfeits earned time.
An examination of
In California Dept. of Corrections v. Morales, ___ U.S. ___, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995), Morales was allowed to plead nolo contendere in 1980 to second-degree murder, despite a previous conviction for first-degree murder. He was sentenced to fifteen years to life. The law in effect in 1980 at the time of Morales’ offense then entitled him to a mandatory parole hearing in 1989 and in each successive year thereafter. California amended its parole statute in 1981 to delay parole hearings for multiple murderers for up to three years. The Ninth Circuit Court of Appeals reversed the denial of Morales’ petition for habeas corpus but, the United States Supreme Court, revisiting Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 2718-19, 111 L.Ed.2d 30 (1990), declined to find an ex post facto violation. The Morales Court, in holding that the amendment did not increase the punishment for the crime held that:
It left untouched his indeterminate sentence and the substantive formula for securing any reductions to the sentencing range... . 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.
Morales ___ U.S. at ___-___, 115 S.Ct. at 1602-03. (emphasis added).
Here, the majority accepts the Appellees’ argument that
The Supreme Court considered and distinguished Lindsey, Miller, and Weaver from
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