Held: A Florida statute repealing an earlier statute
and reducing the amount of "gain time" for good conduct and
obedience to prison rules deducted from a convicted prisoner's
sentence is unconstitutional as an
ex post facto law as
applied to petitioner, whose crime was committed before the
statute's enactment. Pp.
450 U. S.
28-36.
(a) For a criminal or penal law to be
ex post facto, it
must be retrospective, that is, it must apply to events occurring
before its enactment, and it must disadvantage the offender
affected by it.
Lindsey v. Washington, 301 U.
S. 397,
301 U. S. 401;
Calder v. Bull,
3 Dall. 386,
3 U. S. 390. It
need not impair a "vested right." Even if a statute merely alters
penal provisions accorded by the grace of the legislature, it
violates the
Ex Post Facto Clause if it is both
retrospective and more onerous than the law in effect on the date
of the offense. Pp.
450 U. S.
28-31.
(b) The effect, not the form, of the law determines whether it
is
ex post facto. Although the Florida statute, on its
face, applies only after its effective date, respondent conceded
that the statute is used to calculate the gain time available to
prisoners, such as petitioner, convicted for acts committed before
the statute's effective date. Regardless of whether or not the
prospect of gain time was in some technical sense part of the
petitioner's sentence, the statute substantially alters the
consequences attached to a crime already completed, changing the
quantum of punishment, and thus is a retrospective law which can be
constitutionally applied to petitioner only if it is not to his
detriment. Pp.
450 U. S.
31-33.
(c) The Florida statute is disadvantageous to petitioner and
other similarly situated prisoners. The reduction in gain time that
had been available under the repealed statute for abiding by prison
rules and adequately performing assigned tasks lengthens the period
that someone in petitioner's position must spend in prison. It is
immaterial that other statutory provisions were also enacted
whereby a prisoner might earn extra gain time by satisfying extra
conditions. The award of such extra gain time is purely
discretionary, contingent on both the correctional authorities'
wishes and the inmate's special behavior, and thus none of the
provisions for extra gain time compensates for the reduction of
gain time available solely for good conduct. The new provision
therefore constricts the inmate's opportunity to earn early
release, and thereby
Page 450 U. S. 25
makes more onerous the punishment for crimes committed before
its enactment. Pp.
450 U. S.
33-36.
376 So. 2d 855, reversed and remanded.
MARSHALL, J., delivered the opinion of the Court, in which
BRENNAN, STEWART, WHITE, POWELL, and STEVENS, JJ., joined.
BLACKMUN, J., filed an opinion concurring in the judgment, in which
BURGER, C.J., joined,
post, p.
450 U. S. 36.
REHNQUIST, J., filed an opinion concurring in the judgment,
post, p.
450 U. S.
37.
JUSTICE MARSHALL delivered the opinion of the Court.
Florida, like many other States, rewards each convicted prisoner
for good conduct and obedience to prison rules by using a statutory
formula that reduces the portion of his sentence that he must
serve. In this case, we consider whether a Florida statute altering
the availability of such "gain time for good conduct" [
Footnote 1] is unconstitutional as an
ex post facto law when applied to petitioner, whose crime
was committed before the statute's enactment.
The relevant facts are undisputed. Petitioner pleaded guilty to
second-degree murder. The crime charged occurred on January 31,
1976. On May 13, 1976, petitioner was convicted and sentenced to a
prison term of 15 years, less time
Page 450 U. S. 26
already served. The state statute in place on both the date of
the offense and the date of sentencing provided a formula for
deducting gain-time credits from the sentences
"of every prisoner who has committed no infraction of the rules
or regulations of the division, or of the laws of the state, and
who has performed in a faithful, diligent, industrious, orderly and
peaceful manner, the work, duties and tasks assigned to him."
Fla.Stat. § 944.27(1) (1975). [
Footnote 2] According to the formula, gain-time credits
were to be calculated by the month, and were to accumulate at an
increasing rate the more time the prisoner had already served.
Thus, the statute directed that the authorities "shall grant the
following deductions" from a prisoner's sentence as gain time for
good conduct:
"(a) Five days per month off the first and second years of his
sentence;"
"(b) Ten days per month off the third and fourth years of his
sentence; and"
"(c) Fifteen days per month off the fifth and all succeeding
years of his sentence."
Fla.Stat. § 944.27(1) (1975).
In 1978, the Florida Legislature repealed § 944.27(1) and
enacted a new formula for monthly gain-time deductions. This new
statute provided:
"(a) Three days per month off the first and second years of the
sentence;"
"(b) Six days per month off the third and fourth years of the
sentence; and"
"(c) Nine days per month off the fifth and all succeeding years
of the sentence."
Fla.Stat. § 944.275(1) (1979). [
Footnote 3]
Page 450 U. S. 27
The new provision was implemented on January 1, 1979, and, since
that time, the State has applied it not only to prisoners sentenced
for crimes committed since its enactment in 1978, but also to all
other prisoners, including petitioner, whose offenses took place
before that date. [
Footnote
4]
Petitioner, acting
pro se, sought a writ of habeas
corpus from the Supreme Court of Florida on the ground that the new
statute, as applied to him, was an
ex post facto law
prohibited by the United States and the Florida Constitutions.
[
Footnote 5] He alleged that
the reduced accumulation of monthly gain-time credits provided
under the new statute would extend his required time in prison by
over 2 years, or approximately 14 percent of his original 15-year
sentence. [
Footnote 6] The
State Supreme
Page 450 U. S. 28
Court summarily denied the petition. 376 So. 2d 855. The court
relied on its decision in a companion case raising the same issue
where it reasoned that "gain time allowance is an act of grace,
rather than a vested right, and may be withdrawn, modified, or
denied."
Harris v. Wainwright, 376 So. 2d 855, 856 (1979).
[
Footnote 7] We granted
certiorari, 445 U.S. 927, and we now reverse.
II
The
ex post facto prohibition [
Footnote 8] forbids the Congress and the States to
enact any law
"which imposes a punishment for an act which was not punishable
at the time it was committed; or imposes additional punishment to
that then prescribed."
Cummings v.
Missouri, 4 Wall. 277,
71 U. S.
325-326 (1867).
See Lindsey v. Washington,
301 U. S. 397,
301 U. S. 401
(1937);
Rooney v. North Dakota, 196 U.
S. 319,
196 U. S.
324-325 (1905);
In re Medley, 134 U.
S. 160,
134 U. S. 171
(1890);
Calder v. Bull,
3 Dall. 386,
3 U. S. 390
(1798). [
Footnote 9] Through
this prohibition, the Framers sought to assure that legislative
Acts give fair warning of their effect and permit individuals to
rely on their meaning until explicitly
Page 450 U. S. 29
changed.
Dobbert v. Florida, 432 U.
S. 282,
432 U. S. 298
(1977);
Kring v. Missouri, 107 U.
S. 221,
107 U. S. 229
(1883);
Calder v. Bull, supra, at
3 U. S. 387. The
ban also restricts governmental power by restraining arbitrary and
potentially vindictive legislation.
Malloy v. South
Carolina, 237 U. S. 180,
237 U. S. 183
(1915);
Kring v. Missouri, supra, at
107 U. S. 229;
Fletcher v.
Peck, 6 Cranch 87,
10 U. S. 138
(1810);
Calder v. Bull, supra, at
3 U. S. 395,
3 U. S. 396
(Paterson, J.); the Federalist No. 44 (J. Madison), No. 84 (A.
Hamilton). [
Footnote 10]
In accord with these purposes, our decisions prescribe that two
critical elements must be present for a criminal or penal law to be
ex post facto: it must be retrospective, that is, it must
apply to events occurring before its enactment, [
Footnote 11] and it must disadvantage the
offender affected by it. [
Footnote 12]
Lindsey v. Washington, supra, at
301 U. S. 401;
Calder v. Bull, supra, at
3 U. S. 390.
Contrary to the reasoning of the Supreme Court of Florida, a law
need not impair a "vested right" to violate the
ex post
facto prohibition. [
Footnote 13] Evaluating whether a right has vested
Page 450 U. S. 30
is important for claims under the Contracts or Due Process
Clauses, which solely protect preexisting entitlements.
See,
e.g., Wood v. Lovett, 313 U. S. 362,
313 U. S. 371
(1941);
Dodge v. Board of Education, 302 U. S.
74,
302 U. S. 78-79
(1937).
See also United States Railroad Retirement Board v.
Fritz, 449 U. S. 166,
449 U. S. 174
(1980). The presence or absence of an affirmative, enforceable
right is not relevant, however, to the
ex post facto
prohibition, which forbids the imposition of punishment more severe
than the punishment assigned by law when the act to be punished
occurred. 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
Page 450 U. S. 31
the offense. [
Footnote
14] We now consider the Florida statute in light of these two
considerations.
A
The respondent maintains that Florida's 1978 law altering the
availability of gain time is not retrospective, because, on its
face, it applies only after its effective date. Brief for
Respondent 12, 116. This argument fails to acknowledge that it is
the effect, not the form, of the law that determines whether it is
ex post facto. [
Footnote 15] The critical question is whether the law
changes the legal consequences of acts completed before its
effective date. In the context of this case, this question can be
recast as asking whether Fla.Stat. § 944.275(1) (1979) applies to
prisoners convicted for acts committed before the provision's
effective date. Clearly, the answer is in the affirmative. The
respondent concedes that the State uses § 944.275(1), which was
implemented on January 1, 1979, to calculate the gain time
available to petitioner, who was convicted of a crime occurring on
January 31, 1976. [
Footnote
16] Thus, the provision attaches legal consequences to a crime
committed before the law took effect.
Nonetheless, respondent contends that the State's revised
gain-time provision is not retrospective, because its predecessor
was "no part of the original sentence, and thus no part of the
punishment annexed to the crime at the time petitioner was
sentenced." Brief for Respondent 12. This contention
Page 450 U. S. 32
is foreclosed by our precedents. First, we need not determine
whether the prospect of the gain time was, in some technical sense,
part of the sentence to conclude that it, in fact, is one
determinant of petitioner's prison term -- and that his effective
sentence is altered once this determinant is changed.
See
Lindsey v. Washington, 301 U.S. at
301 U. S.
401-402;
Greenfield v. Scafati, 277 F.
Supp. 644 (Mass.1967) (three-judge court),
summarily
aff'd, 390 U. S. 713
(1968).
See also Rodriguez v. United States Parole Comm'n,
594 F.2d 170 (CA7 1979) (elimination of parole eligibility held an
ex post facto violation). We have previously recognized
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.
Wolff v. McDonnell, 418 U.
S. 539,
418 U. S. 557
(1974);
Warden v. Marrero, 417 U.
S. 653,
417 U. S. 658
(1974).
See United States v. De Simone, 468 F.2d 1196 (CA2
1972);
Durant v. United States, 410 F.2d 689, 692 (CA1
1969). Second, we have held that a statute may be retrospective
even if it alters punitive conditions outside the sentence. Thus,
we have concluded that a statute requiring solitary confinement
prior to execution is
ex post facto when applied to
someone who committed a capital offense prior to its enactment, but
not when applied only prospectively.
Compare In re Medley,
134 U. S. 16
(1890),
with Holden v. Minnesota, 137 U.
S. 483 (1890).
See also
Cummings v.
Missouri, 4 Wall. 277 (1867). [
Footnote 17]
Page 450 U. S. 33
For prisoners who committed crimes before its enactment, §
944.275(1) substantially alters the consequences attached to a
crime already completed, and therefore changes "the quantum of
punishment."
See Dobbert v. Florida, 432 U.S. at
432 U. S.
293-294. Therefore, it is a retrospective law which can
be constitutionally applied to petitioner only if it is not to his
detriment.
Id. at
432 U. S. 294.
B
Whether a retrospective state criminal statute ameliorates or
worsens conditions imposed by its predecessor is a federal
question.
Lindsey v. Washington, supra at
301 U. S. 400.
See Malloy v. South Carolina, 237 U.S. at
237 U. S. 184;
Rooney v. North Dakota, 196 U.S. at
196 U. S. 325.
The inquiry looks to the challenged provision, and not to any
special circumstances that may mitigate its effect on the
particular individual.
Dobert v. Florida, supra at
432 U. S. 300;
Lindsey v. Washington, supra at
301 U. S. 401;
Rooney v. North Dakota, supra at
196 U. S.
325.
Under this inquiry, we conclude § 944.275(1) is disadvantageous
to petitioner and other similarly situated prisoners. On its face,
the statute reduces the number of monthly gain-time credits
available to an inmate who abides by prison rules and adequately
performs his assigned tasks. By definition, this reduction in
gain-time accumulation lengthens the period that someone in
petitioner's position must spend in prison. In
Lindsey v.
Washington, supra, at
301 U. S. 401-402, we reasoned 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."
Here, petitioner is similarly disadvantaged by the reduced
Page 450 U. S. 34
opportunity to shorten his time in prison simply through good
conduct. In
Greenfield v. Scafati, supra, we affirmed the
judgment of a three-judge District Court which found an
ex post
facto violation in the application of a statute denying any
gain time for the first six months after parole revocation to an
inmate whose crime occurred before the statute's enactment. There,
as here, the inmate was disadvantaged by new restrictions on
eligibility for release. In this vein, the three-judge court in
Greenfield found
"no distinction between depriving a prisoner of the right to
earn good conduct deductions and the right to qualify for, and
hence earn, parole. Each . . . materially 'alters the situation of
the accused to his disadvantage.'"
277 F. Supp. at 646 (quoting
In re Medley, supra at
134 U. S.
171).
See also Murphy v. Commonwealth, 172
Mass. 264, 52 N.E. 505 (1899).
Respondent argues that our inquiry should not end at this point,
because Fla.Stat. § 944.275(1) (1979) must be examined in
conjunction with other provisions enacted with it. Brief for
Respondent 18-26. Respondent claims that the net effect of all
these provisions is increased availability of gain-time deductions.
[
Footnote 18] There can be
no doubt that the legislature
Page 450 U. S. 35
intended through these provisions to promote rehabilitation and
to create incentives for specified productive conduct.
See
Fla.Stat. § 944.012 (1979). But none of these provisions for extra
gain time compensates for the reduction of gain time available
solely for good conduct. The fact remains that an inmate who
performs satisfactory work and avoids disciplinary violations could
obtain more gain time per month under the repealed provision, §
944.27(1) (1975), than he could for the same conduct under the new
provision, § 944.275(1) (1979). To make up the difference, the
inmate has to satisfy the extra conditions specified by the
discretionary gain-time provisions. [
Footnote 19] Even then, 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, such
as saving a life or diligent performance in an academic program.
Fla.Stat. §§ 944.275(3)(a), (b) (1979). In contrast, under both the
new and old statutes, an inmate is automatically entitled to the
monthly gain time simply for avoiding disciplinary infractions and
performing his assigned tasks.
Compare Fla.Stat. §
944.275(1) (1979)
with § 944.27(1) (1975). [
Footnote 20] Thus, the new provision
constricts the inmate's
Page 450 U. S. 36
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. [
Footnote
21]
III
We find Fla.Stat. § 944.275(1) (1979) void as applied to
petitioner, whose crime occurred before its effective date. We
therefore reverse the judgment of the Supreme Court of Florida and
remand this case for further proceedings not inconsistent with this
opinion. [
Footnote 22]
Reversed and remanded.
[
Footnote 1]
Fla.Stat. § 944.275(1) (1979); Fla.Stat. § 944.27(1) (1975). At
the time of petitioner's offense, Florida used the term "good
time," to refer to extra "allowance for meritorious conduct or
exceptional industry." Fla.Stat. § 944.29 (1975). The current
Florida law adopts the phrase "gain time" to apply to various kinds
of time credited to reduce a prisoner's prison term.
See,
e.g., Fla.Stat. § 944.275(3) (1979).
[
Footnote 2]
The statute also provided for extra discretionary good time,
based on other factors.
See n 18,
infra.
[
Footnote 3]
There are some minor language differences in the new provision
directing the correctional authorities at the Department of
Offender Rehabilitation to make the gain-time deductions. The
phrase "who has performed in a satisfactory and acceptable manner
the work, duties, and tasks assigned," Fla.Stat. § 944.275(1)
(1979), replaces the former phrase, "who has performed in a
faithful, diligent, industrious, orderly, and peaceful manner the
work, duties, and tasks assigned," Fla.Stat. § 944.27(1) (1975).
The new version also explicitly adds that the deductions are to be
made "on a monthly basis, as earned," which appears to codify the
previous practice. The State Supreme Court assigned no significance
to these differences in evaluating the
ex post facto
claim, nor does any party here assert that these minor language
changes are relevant to our inquiry.
[
Footnote 4]
No saving clause limiting the Act's application was included.
1978 Fla. Laws, ch. 7304. In applying the new schedule to prisoners
like petitioner, the Secretary of the Department of Offender
Rehabilitation relied on the legal opinion of the Attorney General
of Florida. Fla.Op.Atty.Gen. 078-96 (1978).
[
Footnote 5]
"No State shall . . . pass any . . .
ex post facto
Law." U.S.Const., Art. I, § 10, cl. 1. The Florida Constitution
similarly provides that "[n]o . . .
ex post facto law . .
. shall be passed." Fla. Const., Art. I, § 10.
See also
Fla. Const., Art. X, § 9 (forbidding state legislature to enact a
statute "affect[ing] [the] prosecution or punishment" for any
offense previously committed).
[
Footnote 6]
Petitioner estimated that his "tentative expiration date" under
Fla.Stat. § 944.27 (1975) would be December 31, 1984. App. 15a. The
State calculated that application of the new gain-time provision
starting with its effective date resulted in a projected release
date of February 2, 1987.
Id. at 12a-13a. The State does
not dispute petitioner's contention that a difference of over two
years is at stake.
[
Footnote 7]
The Florida court also distinguished cases from other
jurisdictions striking down retrospective statutes that eliminated
the allowance of gain time in specified situations, revised the
entire scheme of criminal penalties, and extended the incarceration
of juvenile offenders. 376 So. 2d at 857 (distinguishing
Dowd
v. Sims, 229 Ind. 54,
95 N.E.2d 628
(1950);
Goldsworthy v. Hannifin, 86 Nev. 252, 408 P.2d 350
(1970);
In re Dewing, 19 Cal. 3d 54,
560 P.2d 375 (1977); and
In re Valenzuela, 275 Cal. App.
2d 483, 79 Cal. Rptr. 760 (1969)).
[
Footnote 8]
U.S.Const., Art. I, § 9, cl. 3; Art. I, § 10, cl. 1. " So much
importance did the [C]onvention attach to [the
ex post
facto prohibition], that it is found twice in the
Constitution."
Kring v. Missouri, 107 U.
S. 221,
107 U. S. 227
(1883).
[
Footnote 9]
"The enhancement of a crime or penalty seems to come within the
same mischief as the creation of a crime or penalty" after the
fact.
Calder v. Bull, 3 Dall. at
3 U. S. 397
(Paterson, J.).
See also Fletcher v.
Peck, 6 Cranch 87,
10 U. S. 138
(1810) ("An
ex post facto law is one which renders an act
punishable in a manner in which it was not punishable when it was
committed.").
[
Footnote 10]
The
ex post facto prohibition also upholds the
separation of powers by confining the legislature to penal
decisions with prospective effect and the judiciary and executive
to applications of existing penal law.
Cf. 6 U.
S. Blackledge, 2 Cranch 272,
6 U. S. 277
(1804).
[
Footnote 11]
See Jaehne v. New York, 128 U.
S. 189,
128 U. S. 194
(1888) (portion of legislation void which "
should endeavor to
reach by its retroactive operation acts before committed'")
(quoting T. Cooley, Constitutional Limitations 215 (5th ed.
1883)).
[
Footnote 12]
We have also held that no
ex post facto violation
occurs if the change effected is merely procedural, and does "not
increase the punishment nor change the ingredients of the offense
or the ultimate facts necessary to establish guilt."
Hopt v.
Utah, 110 U. S. 574,
110 U. S. 590
(1884).
See Dobbert v. Florida, 432 U.
S. 282,
432 U. S. 293
(1177). Alteration of a substantial right, however, is not merely
procedural, even if the statute takes a seemingly procedural form.
Thompson v. Utah, 170 U. S. 343,
170 U. S.
354-355 (1898);
Kring v. Missouri, supra at
107 U. S.
232.
[
Footnote 13]
In using the concept of vested rights,
Harris v.
Wainwright, 376 So. 2d at 856, the Florida court apparently
drew on the test for evaluating retrospective laws in a civil
context.
See 2 C. Sands, Sutherland on Statutory
Construction § 41.06 (4th ed.1973); Hochman, The Supreme Court and
the Constitutionality of Retroactive Legislation, 73 Harv.L.Rev.
692, 696 (1960); Smead, The Rule Against Retroactive Legislation: A
Basic Principle of Jurisprudence, 20 Minn.L.Rev. 775, 782 (1936).
Discussion of vested rights has seldom appeared in
ex post
facto analysis, as in identifying whether the challenged
change is substantive, rather than procedural.
Hopt v. Utah,
supra at
110 U. S. 590.
When a court engages in
ex post facto analysis, which is
concerned solely with whether a statute assigns more
disadvantageous criminal or penal consequences to an act than did
the law in place when the act occurred, it is irrelevant whether
the statutory change touches any vested rights. Several state
courts have properly distinguished vested rights from
ex post
facto concerns.
E.g., State v. Curtis, 363 So.
2d 1375, 1379, 1382 (La.1978);
State ex rel. Woodward v.
Board of Parole, 155 La. 699, 700, 99 So. 534, 535-536 (1924);
Murphy v. Commonwealth, 172 Mass. 264, 272, 52 N.E. 505,
507 (1899).
Respondent here advances several theories that incorporate the
vested rights approach. For example, respondent defends Fla.Stat. §
944.275(1) (1979) on the ground that it does not take away any gain
time that petitioner has already earned. Brief for Respondent
39-40. Although this point might have pertinence were petitioner
alleging a due process violation,
see Wolff v. McDonnell,
418 U. S. 539
(1974), it has no relevance to his
ex post facto
claim.
[
Footnote 14]
Durant v. United States, 410 F.2d 689, 691 (CA1 1969);
Adkins v. Bordenkircher, 262
S.E.2d 885, 887 (W.Va.1980);
Goldsworthy v. Hannifin,
86 Nev. at 256-257, 468 P.2d at 352.
See Murphy v.
Commonwealth, supra at 272, 52 N.E. at 507.
[
Footnote 15]
"The Constitution deals with substance, not shadows. Its
inhibition was leveled at the thing, not the name. It intended that
the rights of the citizen should be secure against deprivation for
past conduct by legislative enactment, under any form, however
disguised."
Cummins v.
Missouri, 4 Wall. 277,
71 U. S. 325
(1867).
[
Footnote 16]
See App. 12a-13a (Affidavit, Louie Wainwright,
Secretary, Department of Corrections).
[
Footnote 17]
Even when the sentence is at issue, a law may be retrospective
not only if it alters the length of the sentence, but also if it
changes the maximum sentence from discretionary to mandatory.
Lindsey v. Washington, 301 U. S. 397,
301 U. S. 401
(1937). The critical question, as Florida has often acknowledged,
is whether the new provision imposes greater punishment after the
commission of the offense, not merely whether it increases a
criminal sentence.
Greene v. State, 238 So. 2d 296
(Fla.1970);
Higginbotham v. State, 88 Fla. 26, 31, 101 So.
233, 235 (1924);
Herberle v. P.R.O. Liquidating Co., 186
So. 2d 280, 282 (Fla.App. 1966). Thus, in
Dobbert v.
Florida, 432 U. S. 282
(1977), we held there was no
ex post facto violation
because the challenged provisions changed the role of jury and
judge in sentencing, but did not add to the "quantum of
punishment."
Id. at
432 U. S.
293-294. In
Malloy v. South Carolina,
237 U. S. 180
(1915), we concluded that a change in the method of execution was
not
ex post facto because evidence showed the new method
to be more humane, not because the change in the execution method
was not retrospective.
Id. at
237 U. S.
185.
[
Footnote 18]
These other provisions permit discretionary grants of additional
gain time for inmates who not only satisfy the good-conduct
requirement, but who also deserve extra reward under designated
categories. Under § 944275(3)(b) (1979), "special gain-time" of 1
to 6 days "may be granted" to an "inmate who does some outstanding
deed, such as the saving of a life or assisting in the recapturing
of an escaped inmate." Another provision specifies that an inmate
"may be granted" one to six extra gain-time days per month if he
"faithfully performs the assignments given to him in a
conscientious manner over and above that which may normally be
expected of him" and also either shows "his desire to be a better
than average inmate" or "diligently participates in an approved
course of academic or vocation study." § 944.275 (3)(a). An inmate
may be awarded up to one gain-time credit for labor evaluated "on
the basis of diligence of the inmate, the quality and quantity of
work performed, and the skill required for performance of the
work." § 944.275(2)(b). Finally, for inmates unable to qualify
under this previous provision due to "age, illness, infirmity, or
confinement for reasons other than discipline," additional gain
time of up to six days per month may be granted for "constructive
utilization of time." § 944.275(2)(e).
[
Footnote 19]
In addition, few of the "new" sources for extra gain time do
more than reiterate previous opportunities provided by statute or
state regulation.
Compare Fla.Stat. § 944.275(3)(a) (1979)
with § 944.29 (1975) ("an extra good-time allowance for
meritorious conduct or exceptional industry"); Fla.Stat. §
944.275(2)(b) (1979)
with § 944.27 (1975) (authorizing
administrative rules governing additional gain time) and Fla.Admin.
Code, Rule 10B-20.04(1) (1975) (gain time for construction labor
project); Fla.Stat. § 944.275(3)(b) (1979)
with Rule
10B-20.04 (2) (1975) (gain time for outstanding deed). Moreover,
under the statute in existence when petitioner's crime occurred,
the Department of Corrections enjoyed greater discretion as to the
reasons for awarding extra gain time, and as to the amount that
could be awarded.
See § 944.29 (1975).
[
Footnote 20]
As respondent put it, "all any prisoner had to do . . . was to
stay out of trouble." Brief for Respondent 25. The monthly
gain-time provision, both at the time of petitioner's offense and
now, directed that the Department of Corrections "shall" award gain
time to those who obey the rules and perform their work
satisfactorily. Fla Stat. § 944.27(1) (1975); Fla.Stat. §
944.275(1) (1979). The discretionary extra gain time cannot fully
compensate for the reduced accumulation of gain time for good
behavior, for the discretionary credit is more uncertain.
Cf.
In re Medley, 134 U. S. 160,
134 U. S. 172
(1890) (rejecting nondisclosure of execution date as
ex post
facto increase of uncertainty and mental anxiety). Moreover,
replacement of mandatory sentence reduction with discretionary
sentence reduction cannot be permissible in light of
Lindsey v.
Washington, 301 U.S. at
301 U. S. 401.
There, we rejected as an
ex post facto violation a
legislative change from flexible sentencing to mandatory maximum
sentencing because the retrospective legislation restricted
defendants' opportunity to serve less than the maximum time in
prison.
[
Footnote 21]
We need not give lengthy consideration to respondent's claim
that the challenged statute, Fla.Stat. § 944.275(1) (1979), is
merely procedural because it does not alter the punishment
prescribed for petitioner's offense. Brief for Respondent 13,
17-18. This contention is incorrect, given the uncontested fact
that the new provision reduces the quantity of gain time
automatically available, and does not merely alter procedures for
its allocation.
See supra, 450 U. S.
Respondent's reliance on a general statement of legislative intent
unrelated to the gain-time provision,
see Brief for
Respondent 17 (citing Fla.Stat. § 944.012(6) (1979)), is also
unpersuasive.
[
Footnote 22]
The proper relief upon a conclusion that a state prisoner is
being treated under an
ex post facto law is to remand to
permit the state court to apply, if possible, the law in place when
his crime occurred.
See Lindsey v. Washington, supra at
301 U. S. 402,
In re Medley, supra at
134 U. S. 173.
In remanding for this relief, we note that only the
ex post
facto portion of the new law is void as to petitioner, and
therefore any severable provisions which are not
ex post
facto may still be applied to him.
See 2 C. Sands,
Sutherland on Statutory Construction § 44.04 (4th ed.1973).
JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE joins, concurring
in the judgment.
Were the Court writing on a clean slate, I would vote to affirm
the judgment of the Supreme Court of Florida. My
Page 450 U. S. 37
thesis would be: (a) the 1978 Florida statute operates only
prospectively, and does not affect petitioner's credits earned and
accumulated prior to the effective date of the statute; (b) "good
time" or "gain time" is something to be earned, and is not part of,
or inherent in, the sentence imposed; (c) all the new statute did
was to remove some of petitioner's hope and a portion of his
opportunity; and (d) his sentence therefore was not enhanced by the
statute. In addition, as the Court's 18th footnote reveals,
ante at
450 U. S. 34-35,
the statutory change by no means was entirely restrictive; in
certain respects it was more lenient, as the Court's careful
preservation for this prisoner of the new statute's other
provisions clearly implies.
Ante at
450 U. S. 36 and
this page,
n 22.
The Court's precedents, however, particularly
Lindsey v.
Washington, 301 U. S. 397
(1937), and the summary disposition of
Greenfield v.
Scafati, 277 F.
Supp. 644 (Mass.1967),
aff'd, 390 U.
S. 713 (1968), although not warmly persuasive for me,
look the other way, and I thus must accede to the judgment of the
Court.
JUSTICE REHNQUIST, concurring in the judgment.
I find this case a close one. As the Court recently noted: "It
is axiomatic that, for a law to be
ex post facto, it must
be more onerous than the prior law." ,
Dobbert v. Florida,
432 U. S. 282,
432 U. S. 294
(1977). Petitioner was clearly disadvantaged by the loss of the
opportunity to accrue gain time through good conduct pursuant to
the 5-10-15 formula when the legislature changed to a 3-6-9
formula. The new statute, however, also afforded petitioner
opportunities not available
Page 450 U. S. 38
under prior law to earn additional gain time beyond the good
conduct formula.
* The case is not
resolved simply by comparing the 5-10-15 formula with the 3-6-9
formula. "We must compare the two statutory procedures
in
toto to determine if the new may be fairly characterized as
more onerous."
Ibid.
I am persuaded in this case, albeit not without doubt, that the
new statute is more onerous than the old, because the amount of
gain time which is accrued automatically solely through good
conduct is substantially reduced, and this reduction is not offset
by the availability of discretionary awards of gain time for
activities extending beyond simply "staying out of trouble." This
is not to say, however, that no reduction in automatic gain time,
however slight, can ever be offset by increases in the availability
of discretionary gain time, however great, or that reductions in
the amount of credit for good conduct can never be offset by
increases in the availability of credit which can be earned by more
than merely good conduct.
Since the availability of new opportunities for discretionary
gain time and the reduction in the amount of automatic gain time
can be viewed as a total package, it must be emphasized
Page 450 U. S. 39
that nothing in today's decision compels Florida to provide
prisoners in petitioner's position with the benefits of the new
provisions when this Court has held that Florida may not require
such prisoners to pay the price. It is not at all clear that the
Florida Legislature would have intended to make available the new
discretionary gain time to prisoners earning automatic gain time
under the old 5-10-15 formula, when the legislature, in fact,
reduced the 5-10-15 formula when it enacted the new provisions. The
question is, of course, one for Florida to resolve.
* While the Court points out that gain time was available under
the old scheme beyond the 5-10-15 formula,
ante at
450 U. S. 35,
n.19, I am not convinced that the new sources simply "reiterate[d]"
opportunities previously available. There is, for example, no
dispute that several of the new sources of gain time have no
analogues in the previous statutory or administrative scheme.
See, e.g., Fla.Stat. § 944.275(2)(e) (1979) (up to six
days of gain time per month because of age, illness, infirmity, or
confinement for reasons other than discipline); § 944.275(3)(a) (up
to six days per month for inmates who diligently participate in an
approved course of academic or vocational study). Other new
statutory provisions which had only administrative counterparts
improved substantially on the availability of gain time. For
example, under the old administrative system, an inmate could
receive from 1 to 15 days of gain time per month for constructive
labor, Fla.Admin.Code, Rule 10B-20.04(1) (1975), while, under the
new statutory scheme, an inmate can receive up to 1 day of gain
time for every day of constructive labor, Fla.Stat. § 944.275(2)(b)
(1979).