United States Court of Appeals
For the Third Circuit

Clifford T. NEWMAN, Jr.,
Appellant

v.

Jeffrey A. BEARD, Director of the Department of Corrections; Michael Green, Chairman of Probation and Parole Board of Pennsylvania; Diane L. Dombach, Director of Sexual Offenders Assessment Board.


No. 08-2652.

Argued April 15, 2010.

Filed Aug. 16, 2010.


On Appeal from the United States District Court for the District of Western Pennsylvania, (D.C. Civil No. 3-06-cv-00214), District Judge: Hon. Kim R. Gibson.
Thomas S. Jones, Jerome J. Kalina, (Argued), Jennifer G. Betts, Jones Day, Pittsburgh, PA, Attorneys for Appellant.

Thomas W. Corbett, Jr., Attorney General, Kemal Alexander Mericli, (Argued), Senior Deputy Attorney General, Calvin R. Koons, Senior Deputy Attorney General, John G. Knorr, III, Chief Deputy Attorney General, Appellate Litigation Section, Office of Attorney General, Pittsburgh, PA, Attorneys for Appellees.

Before SLOVITER and HARDIMAN, Circuit Judges, and POLLAKFN*, District Judge.


OPINION

SLOVITER, Circuit Judge.

*1 Appellant Clifford Newman, a convicted sex offender, argues that the Parole Board violated his First Amendment right, his right to due process, and the Ex Post Facto Clause of the Constitution by using his refusal to admit his guilt to adversely affect his eligibility for parole.


I.

Background

In 1987, Newman was found guilty of committing two rapes and related sexual offenses after a jury trial in a Pennsylvania state court. He was sentenced in 1988 to twenty to forty years imprisonment. Newman ultimately exhausted his direct and post-conviction appeals after more than a decade of litigation. He also sought federal habeas relief, which was denied notwithstanding his persistent and consistent claim that he is not guilty.


In 2000, while Newman was serving his sentence, the Pennsylvania General Assembly enacted 42 Pa. Cons.Stat. Ann. § 9718.1 (2001). That statute provides that certain sex offenders “shall attend and participate in a Department of Corrections program of counseling or therapy....” Id. § 9718.1(a). A sex offender “shall not be eligible for parole unless the offender has ... participated in the program....” Id. § 9718.1(b)(1)(ii). The statute gives the Department of Corrections “the sole discretion with respect to counseling or therapy program contents and administration....” Id. § 9718.1(c). The Department of Corrections administers a sexual offender program (“SOP”) in accordance with § 9718.1. Prior to the enactment of § 9718. 1, there was no Pennsylvania statute or regulation that required convicted sex offenders to attend a counseling or therapy program as a condition of parole eligibility.


According to Newman's complaint, the Department “requires all inmates to admit guilt” in order “to attend the [SOP].” App. at 25. Although an earlier version of the SOP included a “non-admitters program,” the Department no longer offers the program at the State Correctional Institution at Houtzdale, where Newman is presently incarcerated. Newman alleges that he is unable to attend the SOP because he refuses to admit his guilt.


The parole process in Pennsylvania is administered by the Board of Probation and Parole, generally referred to as the “Parole Board .” See generally 61 Pa. Cons.Stat. Ann. § § 6111-6139. Newman became eligible for parole in 2007 and met with a parole hearing examiner for an interview. According to Newman's complaint, the hearing examiner “noted that [Newman] ... ha[d] not attended the [SOP]” and stated that his failure to attend “put [him] in a ‘Catch 22’ since the Parole Board required the completion of the [SOP] before parole would be granted.” App. at 29. On April 18, 2007, the Parole Board denied Newman's parole application. The Parole Board issued a written decision stating that “[y]our best interests do not justify or require you being paroled/reparoled; and, the interests of the Commonwealth will be injured if you were paroled/reparoled. Therefore, you are refused parole/reparole at this time.” App. at 39.


*2 The Parole Board gave the following reasons for denying Newman parole:

Your minimization/denial of the nature and circumstances of the offense(s) committed.

Your refusal to accept responsibility for the offense(s) committed.

Your lack of remorse for the offense(s) committed.

The negative recommendation made by the Department of Corrections.

Your unacceptable compliance with prescribed institutional programs.

Your need to participate in and complete additional institutional programs.

Your interview with the hearing examiner.

App. at 39.


The Parole Board's written decision also stated that at Newman's next interview,


the Board will review your file and consider ... whether you have successfully completed a treatment program for sex offender[s,] whether you have received a favorable recommendation for parole from the Department of Corrections[,] whether you have maintained a clear conduct record and completed the Department of Corrections' prescriptive program(s)[,][and] current mental health evaluation to be available at time of review.


App. at 40.


Newman has remained incarcerated since the decision and has not been granted parole. In 2007, Newman filed a pro se civil action under 42 U.S.C. § 1983 against various officials of the Pennsylvania Department of Corrections (collectively, the “Parole Board”) challenging, inter alia, the adverse parole determination. He thereafter filed an amended complaint asserting three claims relevant to this appeal.


First, Newman alleged that the Parole Board unconstitutionally required him to admit his guilt in violation of the First Amendment. Next, Newman alleged that “[t]he precondition ... of an admission of guilt and the completion of the [SOP] made the parole process a sham where the [Parole Board] only went through the steps but did not give actual consideration to [Newman's] application which violates [his] Fourteenth Amendment due process rights.” App. at 23. Finally, Newman alleged that the Parole Board “retroactively applied 42 Pa. [Cons.Stat. Ann.] § 9718.1 to [his parole application]” in violation of the Ex Post Facto Clause of the Constitution.FN1 Appellant's Br. at 9. Newman sought injunctive and declaratory relief.


The Parole Board filed a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), and the Magistrate Judge issued a Report and Recommendation that recommended dismissal of the amended complaint. The Magistrate Judge determined that Newman's constitutional claims failed because there is no federal or state right to parole. The Magistrate Judge also determined that Newman did not have standing to assert a due process claim based on 42 Pa. Cons.Stat. Ann. § 9718.1 because the statute “does not apply to him.” App. at 9. The District Court summarily adopted the Report and Recommendation of the Magistrate Judge and dismissed the amended complaint. Newman filed this pro se appeal, and we appointed counsel.


II.

Jurisdiction and Standard of Review

*3 The District Court had jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review of the District Court's order granting a motion to dismiss for failure to state a claim. Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir.2009). We accept all factual allegations as true, construe the amended complaint in the light most favorable to Newman, and determine whether, under any reasonable reading of the amended complaint, he may be entitled to relief. See id. (quotation and citation omitted).


III.

Discussion


A. General Principles


The opinion in McKune v. Lile, 536 U.S. 24, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002), is of particular relevance to the issues presented in this appeal because the Supreme Court was presented with arguments somewhat analogous to those made by Newman in this case. Lile, like Newman, was a convicted sex offender who persisted in maintaining his innocence and refused to participate in the state's Sexual Abuse Treatment Program which required him to sign an admission of responsibility form. Id. at 29, 31. The Court, in a plurality opinion, rejected Lile's claim that the consequential withdrawal of certain privileges violated his right against self-incrimination. Id. at 48. His status would be reduced from Level III to Level I, curtailing his visitation rights, earnings, work opportunities, ability to send money to family, canteen expenditures, access to personal television, and others. Id. at 39. Although the discussion was focused on the compulsion aspect of the Fifth Amendment, it is, if not directly precedential, certainly informative for our consideration of Newman's claims.


The McKune opinion recognized that “[s]ex offenders are a serious threat in this Nation.” Id. at 32. The opinion stated that “[t]herapists and correctional officers widely agree that clinical rehabilitative programs can enable sex offenders to manage their impulses and in this way reduce recidivism. An important component of those rehabilitation programs requires participants to confront their past and accept responsibility for their misconduct.” Id. at 33 (citation omitted). It quoted from sources that state that denial is generally regarded as one of the principal impediments to successful therapy. Id.


We proceed to review Newman's claims in light of these considerations.


B. First Amendment Claim

Newman argues that the Parole Board violated his First Amendment rights by requiring him “to state a belief that he does not hold to be true”-i.e., his guilt-in order to obtain parole. Appellant's Br. at 24. The Parole Board contends that “[i]f it is not unconstitutionally compelled speech in violation of the Fifth Amendment, neither can it be such in violation of the First Amendment.” Appellees' Br. at 31; see U.S. Const. amend. V (“No person ... shall be compelled in any criminal case to be a witness against himself.”). As a threshold matter, we decline the Parole Board's invitation to cabin Newman's First Amendment claim under a Fifth Amendment “compelled speech” framework. “[T]he touchstone of the Fifth Amendment is compulsion ...,” Lefkowitz v. Cunningham, 431 U.S. 801, 806, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977), and “a violation of the First Amendment right against compelled speech” similarly “occurs only in the context of actual compulsion,” C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 189 (3d Cir.2005). The two amendments serve different purposes. The Fifth Amendment protects the right not to “be compelled in any criminal case to be a witness against [one]self,” while the First Amendment protects, among other things, “the right to refrain from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977). Newman has not been compelled to speak. If he did not seek parole voluntarily, he would remain in prison for the remainder of his sentence without admitting his guilt. Cf. Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 286, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998) (“It is difficult to see how a voluntary interview [for clemency] could ‘compel’ [the inmate] to speak.”). Thus, we reject the Parole Board's suggestion that the Fifth Amendment is implicated in this case, a claim that Newman disavows.


*4 We turn instead to the First Amendment which protects the “right of freedom of thought” and “individual freedom of mind” and encompasses “both the right to speak freely and the right to refrain from speaking at all.” Wooley, 430 U.S. at 714 (citations omitted). Thus, “a State may not inquire about a man's views or associations solely for the purpose of withholding a right or benefit because of what he believes.” Baird v. State Bar of Ariz., 401 U.S. 1, 7, 91 S.Ct. 702, 27 L.Ed.2d 639 (1971).


Nevertheless, an inmate's constitutional rights are “necessarily limited.” Waterman v. Farmer, 183 F.3d 208, 213 (3d Cir.1999). “The fact of confinement and the needs of the penal institution impose limitations on constitutional rights, including those derived from the First Amendment, which are implicit in incarceration.” Jones v. N.C. Prisoners' Labor Union, Inc., 433 U.S. 119, 125, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977). The Supreme Court “has repeatedly recognized the need for major restrictions on a prisoner's rights,” id. at 129 (citations omitted), and it is settled law that an inmate “retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system,” Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); see also Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (“[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”).


Newman has not alleged that the Parole Board's admission of guilt requirement serves no “legitimate penological objectives” or is not reasonably related to rehabilitation. Pell, 417 U.S. at 822. Nor could Newman have reasonably done so. As we noted above, a plurality of the Supreme Court recognized that “States ... have a vital interest in rehabilitating convicted sex offenders” and “acceptance of responsibility for past offenses” is a “critical first step” in a prison's rehabilitation program for such offenders. McKune, 536 U.S. at 33. The plurality further stated that “[a]cceptance of responsibility is the beginning of rehabilitation.” Id. at 47. The dissenting opinion was not to the contrary. Justice Stevens, joined by three other Justices, acknowledged that a sex offender program requiring an admission of guilt “clearly serves legitimate therapeutic purposes.” Id. at 68 (Stevens, J., dissenting).


In an apparent attempt to distinguish this authority, Newman argues that “[r]equiring false admissions of guilt from innocent prisoners ... does not facilitate rehabilitation.” Appellant's Br. at 27 (emphasis added). However, once the Commonwealth met its burden of proving at trial that Newman was guilty of the offenses, Newman no longer “come[s] before the Court as one who is ‘innocent,’ but, on the contrary, as one who has been convicted by due process....” Herrera v. Collins, 506 U.S. 390, 399-400, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). It follows that the prison may structure its treatment programs and pursue legitimate penological objectives from that standpoint. FN2 Newman's First Amendment claim was therefore properly dismissed. FN3


C. Fourteenth Amendment Due Process Claims

*5 Newman also argues that the District Court erred by dismissing his due process claims. The Due Process Clause of the Fourteenth Amendment prohibits States from depriving “any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. Although Newman's pro se amended complaint does not distinguish procedural due process from substantive due process, we address both claims consistent with the parties' briefing.


i. Substantive Due Process

“[T]he Due Process Clause contains a substantive component that bars certain arbitrary, wrongful government actions ‘regardless of the fairness of the procedures used to implement them.’ “ Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) (quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)). Conduct can violate substantive due process if it “ ‘shocks the conscience,’ which encompasses ‘only the most egregious official conduct.’ “ Chainey v. Street, 523 F.3d 200, 219 (3d Cir.2008) (quoting United Artists Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392, 400 (3d Cir.2003)). The conduct must be “intended to injure in some way unjustifiable by any government interest....” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 849, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).


Newman's substantive due process cl

SUPREME COURT OF THE UNITED STATES
529 U.S. 244; 120 S. Ct. 1362; 146 L. Ed. 2d 236

J. WAYNE GARNER, FORMER CHAIRMAN OF THE STATE BOARD OF PARDONS AND PAROLES OF GEORGIA, ET AL. v. ROBERT L. JONES

No. 99-137

January 11, 2000, Argued

March 28, 2000, Decided

PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT.

DISPOSITION: 164 F.3d 589, reversed and remanded.

SYLLABUS:

Respondent escaped while serving a life sentence for murder, committed another murder, and was sentenced to a second life term. Georgia law requires the State's Board of Pardons and Paroles (Board) to consider inmates serving life sentences for parole after seven years. At the time respondent committed his second offense, the Board's Rule 475-3-.05(2) required that reconsiderations for parole take place every three years. Acting pursuant to statutory authority, the Board subsequently extended the reconsideration period to at least every eight years. The Board has the discretion to shorten that interval, but declined to do so when it applied the amended Rule in respondent's case, citing his multiple offenses and the circumstances and nature of his second offense. Respondent sued petitioner Board members, claiming that retroactive application of the amended Rule violated the Ex Post Facto Clause. The District Court denied respondent's motion for discovery and awarded petitioners summary judgment. The Eleventh Circuit reversed. It found that the amended Rule's retroactive application was necessarily an ex post facto violation and that the Rule differed in material respects from the change in California parole law sustained in California Dept. of Corrections v. Morales, 514 U.S. 499, 131 L. Ed. 2d 588, 115 S. Ct. 1597. It did not consider the Board's internal policies regarding its implementation of the Rule, finding, among other things, that such policies were unenforceable and easily changed.

Held:

1. The Court of Appeals' analysis failed to reveal whether retroactive application of the amendment to Rule 475-3-.05(2) violated the Ex Post Facto Clause. The controlling inquiry is whether such application creates a sufficient risk of increasing the measure of punishment attached to the covered crimes. Morales, supra, at 509. Here, the question is whether amended Rule 475-3-.05(2) creates a significant risk of prolonging respondent's incarceration. That risk is not inherent in the amended Rule's framework, and it has not otherwise been demonstrated on the record. While Morales identified several factors convincing this Court that California's law created an insignificant risk of increased punishment for covered inmates, the Court was careful not to adopt a single formula for identifying which parole adjustments would survive an ex post facto challenge. States must have due flexibility in formulating parole procedure and addressing problems associated with confinement and release. This case turns on the amended Rule's operation within the whole context of Georgia's parole system. Georgia law gives the Board broad discretion in determining whether an inmate should receive early release. Such discretion does not displace the Ex Post Facto Clause's protections, but the idea of discretion is that it has the capacity, and the obligation, to change and adapt based on experience. The statutory structure, its implementing regulations, and the Board's unrefuted representations regarding its operations do not support respondent's conclusion that the Board will not exercise its discretion in the period between parole reviews. The Georgia law is qualified in two important respects. First, it vests the Board with discretion as to how often to set an inmate's date for reconsideration, with an 8-year maximum. Second, the Board's policies permit expedited reviews in the event of a change in circumstance or new information. These qualifications permit the Board to set reconsideration dates according to the likelihood that a review will result in meaningful considerations as to whether an inmate is suitable for release. The Board's policy of providing reconsideration every eight years when it does not expect that parole would be granted during the intervening years enables the Board to ensure that those prisoners who should receive parole come to its attention. Given respondent's criminal history, it is difficult to see how the Board increased his risk of serving a longer time when it set an 8-year, not a 3-year, interval. Yet, even he may seek earlier review upon showing changed circumstances or new information. The Eleventh Circuit's supposition that the Rule seems certain to result in increased incarceration falls short of the rigorous analysis required by the Morales standard. When the rule does not by its own terms show a significant risk, the respondent must demonstrate, by evidence drawn from the rule's practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier rule. On the record in this case, it cannot be concluded that the change in Georgia law lengthened respondent's actual imprisonment time. Pp. 5-11.

2. The Eleventh Circuit erred in not considering the Board's internal policy statement regarding how it intends to enforce its rule. At a minimum, such statements, along with the Board's actual practices, provide important instruction as to how the Board interprets its enabling statute and regulations, and therefore whether the amended Rule created a significant risk of increased punishment. Absent a demonstration to the contrary, it is presumed that the Board follows its statutory commands and internal policies. Pp. 11-12.

3. The Eleventh Circuit's analysis failed to reveal whether the amended Rule, in its operation, created a significant risk of increased punishment for respondent. He claims that he has not been permitted sufficient discovery to make this showing. The matter of adequate discovery is one for the Court of Appeals or, as need be, for the District Court in the first instance. P. 12.

164 F.3d 589, reversed and remanded.

COUNSEL: Christopher S. Brasher argued the cause for petitioners.

Elizabeth S. Kertscher argued the cause for respondent.

JUDGES: KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, THOMAS, and BREYER, JJ., joined. SCALIA, J., filed an opinion concurring in part in the judgment. SOUTER, J., filed a dissenting opinion, in which STEVENS and GINSBURG, JJ., joined.

OPINION: [*246] [**1365] [***242] JUSTICE KENNEDY delivered the opinion of the Court.

[***HR1A] We granted certiorari to decide whether the retroactive application of a Georgia law permitting the extension of intervals between parole considerations violates the Ex Post Facto Clause. The Court of Appeals found that retroactive application of the change in the law was necessarily an ex post facto violation. In disagreement with that determination, we reverse its judgment and remand for further proceedings. [*247]

I

In 1974 respondent Robert L. Jones began serving a life sentence after his conviction for murder in the State of Georgia. He escaped from prison some five years later and, after being a fugitive for over two years, committed another murder. He was apprehended, convicted, and in 1982 sentenced to a second life term.

Under Georgia law, at all times relevant here, the State's Board of Pardons and [**1366] Paroles (Board or Parole Board) has been required to consider inmates serving life sentences for parole after seven years. Ga. Code Ann. § 42-9-45(b) (1982). The issue in this case concerns the interval between proceedings to reconsider those inmates for parole after its initial denial. At the time respondent committed his second offense, the Board's Rules required reconsiderations to take place every three years. Ga. Rules & Regs., Rule 475-3-.05(2) (1979). In 1985, after respondent had begun serving his second life sentence, the Parole Board, acting under its authority to "set forth . . . the times at which periodic reconsideration [for parole] shall take place," Ga. Code Ann. § 42-9-45(a) (1982), amended its Rules to provide that "reconsideration of those inmates serving life sentences who have been denied parole shall take place at least every eight years," Ga. Rules & Regs., Rule 475-3-.05(2) (1985).

The Parole Board considered respondent for parole in 1989, seven years after the 1982 conviction. It denied release and, consistent with the 1985 amendment to Rule 475-3-.05(2), reconsideration was set for 1997, eight years later. In 1991, however, the United States Court of Appeals for the Eleventh Circuit held that retroactive application of the amended Rule violated the Ex Post Facto Clause. Akins v. Snow, 922 F.2d 1558, cert. denied, 501 U.S. 1260, 115 L. Ed. 2d 1079, 111 S. Ct. 2915 (1991). In compliance with that decision, in effect reinstating its earlier 3-year Rule, the Parole Board reconsidered respondent's case in 1992 and in 1995. Both times parole was denied, the Board citing for its action respondent's "multiple offenses" [*248] and the "circumstances and nature of" the second offense. App. 53-54.

In 1995 the Parole Board determined that our decision in California Dept. of Corrections v. Morales, 514 U.S. 499, 131 L. Ed. 2d 588, 115 S. Ct. 1597 (1995), had rejected the rationale underlying the Eleventh Circuit's decision in Akins. The Board [***243] resumed scheduling parole reconsiderations at least every eight years, and so at respondent's 1995 review it set the next consideration for 2003. Had the Board wished to do so, it could have shortened the interval, but the 8-year period was selected based on respondent's "multiple offenses" and the "circumstances and nature of" his second offense. App. 54. Respondent, acting pro se, brought this action under 42 U.S.C. § 1983, Rev. Stat. § 1979, claiming, inter alia, the amendment to Rule 475-3-.05(2) violated the Ex Post Facto Clause. The suit was filed against individual members of the Parole Board, petitioners in this Court. Respondent requested leave to conduct discovery to support his claim, but the District Court denied the motion and entered summary judgment for petitioners. The court determined the amendment to Rule 475-3-.05(2) "changed only the timing between reconsideration hearings" for inmates sentenced to life in prison, thereby "relieving the Board of the necessity of holding parole hearings for prisoners who have no reasonable chance of being released." App. to Pet. for Cert. 27a. Because the Parole Board's policies permit inmates, upon a showing of "a change in their circumstance or where the Board receives new information," App. 56, to receive expedited reconsideration for parole, the court further concluded the amendment created "'only the most speculative and attenuated possibility'" of increasing a prisoner's measure of punishment, App. to Pet. for Cert. 27a (quoting Morales, supra, at 509).

The Court of Appeals reversed, finding the amended Georgia Rule distinguishable in material respects from the California law sustained in Morales. 164 F.3d 589 (CA11 1999). In finding the Georgia law violative of the Ex Post Facto [*249] Clause, the court posited that the set of inmates affected by the retroactive change -- all prisoners serving life sentences -- is "bound to be far more sizeable than the set . . . at issue in Morales" -- inmates convicted of more than one homicide. Id. at 594. The Georgia [**1367] law sweeps within its coverage, the court continued, "many inmates who can expect at some point to be paroled," ibid., and thus "seems certain to ensure that some number of inmates will find the length of their incarceration extended in violation of the Ex Post Facto Clause of the Constitution," 164 F.3d at 595. "Eight years is a long time," the court emphasized, and "much can happen in the course of eight years to affect the determination that an inmate would be suitable for parole." Ibid. The Court of Appeals recognized that the Parole Board would set a new parole review date three years or more into the future (up to eight years) only where it concludes that "'it is not reasonable to expect that parole would be granted'" sooner. Ibid. (quoting policy statement of Parole Board). The court thought this policy insufficient, however, because, unlike the statute in Morales, it does not require the Board "to make any particularized findings" and is not "carefully tailored." 164 F.3d at 594-595. The court also recognized that the Board's policy permitted it to reconsider any parole denials upon a showing of a "change in circumstances" or upon the Board's receipt of "new information." The court deemed the policy insufficient, however, stating that "policy statements, unlike regulations are unenforceable [***244] and easily changed, and adherence to them is a matter of the Board's discretion." 164 F.3d at 595.

We granted certiorari, 527 U.S. ___ (1999), and we now reverse.

II

[***HR1B] [***HR2] The States are prohibited from enacting an ex post facto law. U.S. Const., Art. I, § 10, cl. 1. One function of the Ex Post Facto Clause is to bar enactments which, by retroactive operation, increase the punishment for a crime after its commission. [*250] Collins v. Youngblood, 497 U.S. 37, 42, 111 L. Ed. 2d 30, 110 S. Ct. 2715 (1990) (citing Beazell v. Ohio, 269 U.S. 167, 169-170, 70 L. Ed. 216, 46 S. Ct. 68 (1925)). Retroactive changes in laws governing parole of prisoners, in some instances, may be violative of this precept. See Lynce v. Mathis, 519 U.S. 433, 445-446, 137 L. Ed. 2d 63, 117 S. Ct. 891 (1997) (citing Weaver v. Graham, 450 U.S. 24, 32, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981)); Morales, 514 U.S. at 508-509. Whether retroactive application of a particular change in parole law respects the prohibition on ex post facto legislation is often a question of particular difficulty when the discretion vested in a parole board is taken into account.

Our recent decision in Morales is an appropriate beginning point. There a California statute changed the frequency of reconsideration for parole from every year to up to every three years for prisoners convicted of more than one homicide. Morales, 514 U.S. at 503. We found no ex post facto violation, emphasizing that not every retroactive procedural change creating a risk of affecting an inmate's terms or conditions of confinement is prohibited. 514 U.S. at 508-509. The question is "a matter of 'degree.'" 514 U.S. at 509 (quoting Beazell, 269 U.S. at 171). The controlling inquiry, we determined, was whether retroactive application of the change in California law created "a sufficient risk of increasing the measure of punishment attached to the covered crimes." 514 U.S. at 509.

The amended California law did not violate this standard. It did not modify the statutory punishment imposed for any particular offenses. Nor did the amendment alter the standards for determining either the initial date for parole eligibility or an inmate's suitability for parole. 514 U.S. at 507. The amendment did not change the basic structure of California's parole law. It vested the California parole board with discretion to decrease the frequency with which it reconsidered parole for a limited class, consisting of prisoners convicted of more than one homicide. 514 U.S. [**1368] at 507, 510. If the board determined a low likelihood of release existed for a member within that class, it could set the prisoner's next consideration [*251] date three years hence. The change in California law did not, however, prohibit requests for earlier reconsideration based on a change of circumstances. 514 U.S. at 512-513. Historical practices within the California penal system indicated "about 90% of all prisoners are found unsuitable for parole at the initial hearing, while 85% are found unsuitable at the second and subsequent hearings." [***245] 514 U.S. at 510-511 (citing In re Jackson, 39 Cal. 3d 464, 473, 703 P.2d 100, 105, 216 Cal. Rptr. 760 (1985)). On these facts we determined the Ex Post Facto Clause did not prohibit California from conserving and reallocating the resources

SUPREME COURT OF THE UNITED STATES
519 U.S. 433; 117 S. Ct. 891; 137 L. Ed. 2d 63

KENNETH LYNCE, PETITIONER v. HAMILTON MATHIS, SUPERINTENDENT, TOMOKA CORRECTIONAL INSTITUTION, ET AL.

No. 95-7452.

November 4, 1996, Argued

February 19, 1997, Decided

PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT.

DISPOSITION: Reversed and remanded.

SYLLABUS:

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, 67 L. Ed. 2d 17, 101 S. Ct. 960, by, inter alia, increasing the punishment for the crime, see Collins v. Youngblood, 497 U.S. 37, 50, 111 L. Ed. 2d 30, 110 S. Ct. 2715. 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 lengthened the prisoner's sentence without examining the subjective purposes behind the sentencing scheme, see, e. g., 450 U.S. 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, 131 L. Ed. 2d 588, 115 S. Ct. 1597, 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.Robert Butterworth of Florida, James E. Ryan of Illinois, Tom Miller of Iowa, Carla J. Stovall of Kansas, A. B. Chandler III of Kentucky, Richard P. Ieyoub of Louisiana, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Hubert Humphrey III of Minnesota, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Jeffrey R. Howard of New Hampshire, Tom Udall of New Mexico, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, W. A. Drew Edmondson of Oklahoma, Theodore Kulongoski of Oregon, Thomas Corbett, Jr., of Pennsylvania, Jeffrey B. Pine of Rhode Island, Charles Condon of South Carolina, Mark W. Barnett of South Dakota, Charles W. Burson of Tennessee, Jan Graham of Utah, Jeffrey L. Amestoy of Vermont, Julio A. Brady of the U.S. Virgin Islands, Christine O. Gregoire of Washington, Darrell McGraw, Jr., of West Virginia, and James E. Doyle of Wisconsin; for Americans for Effective Law Enforcement, Inc., et al. by Fred E. Inbau, Wayne W. Schmidt, Robert Wennerholm, James P. Manek, John Kaye, Richard M. Weintraub, and Bernard J. Farber; for the National Association of Police Organizations, Inc., by William J. Johnson; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson.

COUNSEL: Charles A. Miller argued the cause for petitioners. With him on the briefs were Robert A. Long, Jr., John F. Duffy, James E. Holst, and Patrick J. O'Hern.

Lisa Schiavo Blatt argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Acting Solicitor General Dellinger, Assistant Attorney General Hunger, Deputy Solicitor General Bender, and Mark B. Stern.

Richard Gayer, by appointment of the Court, 519 U.S. 804, argued the cause for respondent. With him on the brief was Madeleine Tress. *



* Richard Ruda and James I. Crowley filed a brief for the National Conference of State Legislatures et al. as amici curiae urging reversal.

James K. T. Hunter, pro se, filed a brief as amicus curiae urging affirmance.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 General, pro se, and Jason Vail, Assistant Attorney General. Susan A. Maher filed a brief for respondent Mathis. *



* 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.

Joel T. Remland argued the cause for petitioner.

Parker D. Thomson argued the cause for respondents.

JUDGES:
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.

OPINION: [*435] [**893] [***68] JUSTICE STEVENS delivered the opinion of the Court.

[***HR1A] [1A]
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 [***69] days. n1 Of that total, 1,860 days were [*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.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n1 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] 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.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

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 n2 and Florida n3 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). n4

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n2 Hock v. Singletary, 41 F.3d 1470 (1995).


n3 Dugger v. Rodrick, 584 So. 2d 2 (Fla. 1991), cert. denied sub nom. Rodrick v. Singletary, 502 U.S. 1037, 116 L. Ed. 2d 790, 112 S. Ct. 886 (1992).


n4 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 (Fla. 1991), held that retrospective application of the provisional credits statute's offense-based 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 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.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

[*437] II

Motivated largely by the overcrowded condition of the entire Florida prison system, n5 in [**894] 1983 the state legislature enacted HN1the Correctional Reform Act of 1983, a comprehensive revision of the State's sentencing laws. n6 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 [***70] to 60 days." See 1983 Fla. Laws, ch. 83-131, § 8. n7 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). n8 When [*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).

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n5 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.


n6 1983 Fla. Laws, ch. 83-131.


n7 Section 8 amended § 944.275 of the Florida Statutes.


n8 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 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." 1983 Fla. Laws, ch. 83-131, § 5.


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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. n9 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.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n9 1988 Fla. Laws, ch. 88-122, § 5. The provisional credits statute was repe

SUPREME COURT OF THE UNITED STATES
482 U.S. 423; 107 S. Ct. 2446; 96 L. Ed. 2d 351

JAMES ERNEST MILLER v. FLORIDA

No. 86-5344

April 21, 1987, Argued

June 9, 1987, Decided

PRIOR HISTORY:

CERTIORARI TO THE SUPREME COURT OF FLORIDA.

DISPOSITION: 488 So. 2d 820, reversed and remanded.

SYLLABUS:

Florida's sentencing guidelines law assigns points for particular offenses and other factors and provides a presumptive sentence range for a defendant's composite score, within which the sentencing judge has unreviewable discretion to fix a sentence without written explanation. If the judge wishes to depart from the range, however, he must give clear and convincing written reasons based on facts proved beyond a reasonable doubt, and the sentence he imposes is subject to appellate review. At the time petitioner committed the sexual battery and other crimes for which he was convicted, the sentencing guidelines would have resulted in a presumptive sentence of 3 1/2 to 4 1/2 years' imprisonment. However, the guidelines were subsequently revised to increase the number of points assigned to sexual offenses, and, at the time petitioner was sentenced, called for a presumptive sentence of 5 1/2 to 7 years for his crimes. The sentencing judge, rejecting petitioner's ex post facto argument, applied the revised guidelines to impose a 7-year sentence. The State District Court of Appeal vacated the sentence, but the State Supreme Court reversed.

Held: Application of the revised guidelines law to petitioner, whose crimes occurred before the law's effective date, violates the Ex Post Facto Clause of Article I of the Federal Constitution. The revised law evidences all of the elements necessary to bring it within the ex post facto prohibition. Pp. 429-435.

(a) The revised guidelines law is retrospective in that it changes the legal consequences of acts committed before its effective date. The State's argument that there was no ex post facto violation since the law provides for continuous review of the guidelines and thereby gave petitioner "fair warning" that he would be sentenced under the guidelines in effect on his sentencing date is not persuasive, since the law did not warn petitioner of the specific punishment prescribed for his crimes. The ex post facto prohibition cannot be avoided merely by adding to a law notice of the obvious fact that it might be changed. Pp. 430-431.

(b) The revised guidelines law is more onerous than the law in effect at the time of petitioner's crimes, in that it substantially disadvantages petitioner and similarly situated sexual offenders and has no ameliorative features. The State's contention that the change in laws is not disadvantageous because the trial judge could have imposed a 7-year sentence under the old guidelines by departing from the presumptive sentence range then in existence is without merit, since the revised law foreclosed petitioner's ability to challenge the sentence on review because it is within the new presumptive range. Pp. 431-433.

(c) The revised guidelines law is not merely a procedural change, since it increases the quantum of punishment for sexual offenses. The State's contention that the increase operates only as a "procedural guidepost" for the exercise of judicial discretion within the same statutorily imposed sentencing limits is not persuasive. The Court of Appeals decisions cited as authority, which sustained the United States Parole Commission's guidelines against ex post facto claims, are inapposite. Unlike the federal guidelines, Florida's revised sentencing law was enacted by the state legislature and has the force and effect of law. Nor do the revised guidelines simply provide flexible "guideposts," but instead create strict standards that must be met before the sentencing judge can depart from the presumptive sentence range. Moreover, the revised guidelines directly and adversely affect the sentence petitioner receives. Pp. 433-435.

COUNSEL: Anthony Calvello argued the cause for petitioner. With him on the briefs were Richard L. Jorandby and Craig S. Barnard.

Joy B. Shearer, Assistant Attorney General of Florida, argued the cause for respondent. With her on the brief was Robert A. Butterworth, Attorney General. *


* Gerald D. Stern and Alvin Bronstein filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal.

OPINION: [*424] [**2448] [***356] JUSTICE O'CONNOR delivered the opinion of the Court.

[***HR1A] [1A]
At the time petitioner committed the crime for which he was convicted, Florida's sentencing guidelines would have resulted in a presumptive sentence of 3 1/2 to 4 1/2 years' imprisonment. At the time petitioner was sentenced, the revised guidelines called for a presumptive sentence of 5 1/2 to 7 years in prison. The trial court applied the guidelines in effect at the time of sentencing and imposed a 7-year sentence. The question presented is whether application of these amended [*425] guidelines in petitioner's case is unconstitutional by virtue of the Ex Post Facto Clause.

I

In 1983, the Florida Legislature enacted legislation replacing Florida's system of indeterminate sentencing with a sentencing guidelines scheme intended "to eliminate unwarranted variation in the sentencing process." Fla. Rule Crim. Proc. 3.701(b) (1983). See 1983 Fla. Laws, ch. 83-216. Under the sentencing statute, a guidelines commission was responsible for "the initial development of a statewide system of sentencing guidelines." Fla. Stat. § 921.001(1) (1983). Once the commission had made its recommendation, the Supreme Court of Florida was to develop a final system of guidelines. These guidelines were to become effective for crimes committed on or after October 1, 1983. Fla. Stat. § 921.001(4)(a) (1983).

[***357] The sentencing statute authorized the guidelines commission to "meet annually or at the call of the chairman to review sentencing practices and recommend modifications to the guidelines." Fla. Stat. § 921.001(3) (1983). Before the convening of the legislature each year, the commission was to make its recommendations regarding the need for changes in the guidelines. The Supreme Court of Florida then could revise the sentencing guidelines to conform to all or part of the commission's recommendations. The sentencing law provided, however, that such revisions would become effective "only upon the subsequent adoption by the Legislature of legislation implementing the guidelines as then revised." Fla. Stat. § 921.001(4)(b) (1983).

[**2449] In accordance with this legislation, the Supreme Court of Florida developed sentencing guidelines that went into effect on October 1, 1983. See In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So. 2d 848 (1983). Under the scheme, offenses were grouped into nine "offense categories" (e. g., "robbery" and "sexual offenses"). A single sentencing [*426] "scoresheet" would be prepared based on the defendant's "primary offense," defined as the crime "with the highest statutory degree" at the time of conviction. Fla. Rule Crim. Proc. 3.701(d) (1983). In scoring a defendant's guidelines sentence, points would be assigned based on the primary offense, additional offenses at the time of conviction, prior record, legal status at the time of the offense, and victim injury. The defendant's total point score then would be compared to a chart for that offense category, which provided a presumptive sentence for that composite score.

The presumptive sentence range was "assumed to be appropriate for the composite score of the offender." Fla. Rule Crim. Proc. 3.701(d)(8) (1983). Within the recommended range, the sentencing judge had discretion to fix the sentence "without the requirement of a written explanation." Ibid. If the sentencing judge wished to depart from the guideline range, however, the judge had to give clear and convincing reasons in writing for doing so:



"Departures from the presumptive sentence should be avoided unless there are clear and convincing reasons to warrant aggravating or mitigating the sentence. Any sentence outside of the guidelines must be accompanied by a written statement delineating the reasons for the departure. Reasons for deviating from the guidelines shall not include factors relating to either instant offense or prior arrests for which convictions have not been obtained." Fla. Rule Crim. Proc. 3.701(d)(11) (1983).

The "clear and convincing" standard was construed as requiring reasons "of such weight as to produce in the mind of the judge a firm belief or conviction, without hesitancy, that departure is warranted." State v. Mischler, 488 So. 2d 523, 525 (Fla. 1986). Only those sentences that fall outside the guidelines' range are subject to appellate review. See Fla. Stat. § 921.001(5) (1983).

Petitioner was convicted in August 1984 on counts of sexual battery with slight force, a second-degree felony, Fla. [*427] Stat. § 794.011(5) (Supp. 1984); burglary with an assault, a felony of the "first degree punishable by . . . life," Fla. Stat. § 810.02 [***358] (1983); and petit theft, a misdemeanor, Fla. Stat. § 812.014(2)(c) (1983). On April 25, 1984, when these offenses were committed, the sentencing guidelines adopted October 1, 1983, were still in effect. On May 8, 1984, however, the Supreme Court of Florida proposed several revisions to the sentencing guidelines. See Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988 -- Sentencing Guidelines), 451 So. 2d 824 (1984). In June 1984 the Florida Legislature adopted the recommended changes, see 1984 Fla. Laws, ch. 84-328, and the legislation implementing the revised guidelines became effective July 1, 1984. When petitioner was sentenced on October 2, 1984, therefore, these revised sentencing guidelines were the guidelines then in effect.

Only two changes made in the revised guidelines are relevant here. First, the guidelines changed the definition of "primary offense" from the offense with "the highest statutory degree," to the offense which results in "the most severe sentence range." See 451 So. 2d, at 824, n. This changed petitioner's primary offense from burglary with assault -- the offense with the higher statutory degree -- to sexual battery. Petitioner does not argue here that the new definition itself changed his presumptive sentence. See Tr. of Oral Arg. 6. As a result of the new definition, however, petitioner was affected by another change in the revised guidelines law: a 20% increase in the number of primary offense [**2450] points assigned to sexual offenses. The Supreme Court of Florida, in its comments accompanying the revised guidelines, described the change: "The revision increases the primary offense points by 20% and will result in both increased rates and length of incarceration for sexual offenders." 451 So. 2d, at 824, n. As a result of the point increase, petitioner's total point score jumped to a presumptive sentence of 5 1/2 to 7 years. See App. 12.

[*428] At petitioner's sentencing hearing on October 2, 1984, the State contended that the revised guidelines should apply in determining petitioner's sentence. Alternatively, the State argued that if the sentencing judge applied the earlier guidelines, he should depart from the guidelines' range and impose a 7-year sentence. Id., at 8-9. The sentencing judge, rejecting petitioner's ex post facto argument, ruled that the revised guidelines should apply. Concluding that he would "stay within the new guidelines," the judge imposed a 7-year term of imprisonment for the sexual assault count. Id., at 10. Petitioner received a concurrent 7-year sentence on the burglary count, and time served on the misdemeanor charge. Id., at 6, 11.

On appeal, the Florida District Court of Appeal, relying on this Court's decision in Weaver v. Graham, 450 U.S. 24 (1981), vacated petitioner's sentence and remanded for resentencing in accordance with the sentencing guidelines in effect at the time the offense was committed. 468 So. 2d 1018 (1985). In remanding the case, the court noted that "the same sentence is possible if clear and convincing reasons for departure from the then applicable guidelines are stated in writing." Ibid.

The Supreme Court of Florida reversed. 488 So. 2d 820 (1986). In a summary opinion, the court concluded [***359] that its decision in State v. Jackson, 478 So. 2d 1054 (1985), established that "the trial court may sentence a defendant pursuant to the guidelines in effect at the time of sentencing." 488 So. 2d, at 820. In Jackson, the Supreme Court of Florida had emphasized that "the presumptive sentence established by the guidelines does not change the statutory limits of the sentence imposed for a particular offense." 478 So. 2d, at 1056. On that basis, it had concluded that a modification in sentencing guidelines procedure was "merely a procedural change, not requiring the application of the ex post facto doctrine" under Dobbert v. Florida, 432 U.S. 282 (1977). 478 So. 2d, at 1056.

[*429] We granted certiorari, 479 U.S. 960 (1986), and now reverse.

II

HN1Article I of the United States Constitution provides that neither Congress nor any State shall pass any "ex post facto Law." See Art. I, § 9, cl. 3; Art. I, § 10, cl. 1. Our understanding of what is meant by ex post facto largely derives from the case of Calder v. Bull, 3 Dall. 386 (1798), in which this Court first considered the scope of the ex post facto prohibition. In Calder, Justice Chase, noting that the expression "ex post facto" "had been in use long before the revolution," id., at 391, summarized his understanding of what fell "within the words and the intent of the prohibition":



"1st. HN2Every 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 offense, in order to convict the offender." Id., at 390 (emphasis omitted).Accord, Dobbert v. Florida, supra, at 292, quoting Beazell v. Ohio, 269 U.S. 167, 169-170 [**2451] (1925).

[***HR2] [2]
Justice Chase explained that the reason the Ex Post Facto Clauses were included in the Constitution was to assure that federal and state legislatures were restrained from enacting arbitrary or vindictive legislation. See 3 Dall., at 389. Justices Paterson and Iredell, in their separate opinions in Calder, likewise emphasized that the Clauses were aimed at preventing legislative abuses. See id., at 396 (Paterson, J.); id., at 399-400 (Iredell, J.). See also Malloy v. South Carolina, 237 U.S. 180, 183 (1915); James v. United States, 366 U.S. 213, 247, n. 3 [*430] (1961) (separate opinion of Harlan, J.). In addition, the Justices' opinions in Calder, as well as other early authorities, indicate that the Clauses were aimed at a second concern, namely, that legislative enactments "give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed." Weaver v. Graham, supra, at 28-29. [***360] See Calder v. Bull, 3 Dall., at 388 (Chase, J.); id., at 396 (Paterson, J.); 1 W. Blackstone, Commentaries *46. Thus, almost from the outset, we have recognized that central to the ex post facto prohibition is a concern for "the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated." Weaver, 450 U.S., at 30.

[***HR3A] [3A]
[***HR4A] [4A]
Our test for determining whether a criminal law is ex post facto derives from these principles. As was stated in Weaver, HN3to fall within the ex post facto prohibition, two critical elements must be present: first, the law "must be retrospective, that is, it must apply to events occurring before its enactment"; and second, "it must disadvantage the offender affected by it." Id., at 29. We have also held in Dobbert v. Florida, supra, that HN4no ex