Lynce v. Mathis

PETITIONER:Lynce
RESPONDENT:Mathis
LOCATION:Camp Newfound Owatonna

DOCKET NO.: 95-7452
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Eleventh Circuit

CITATION: 519 US 433 (1997)
ARGUED: Nov 04, 1996
DECIDED: Feb 19, 1997

ADVOCATES:
Joel T. Remland – Argued the cause for the petitioner
Parker D. Thomson – Argued the cause for the respondent

Facts of the case

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, Kenneth Lynce 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. Lynce was re-arrested and returned to custody shortly thereafter when the 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. Lynce filed a habeas corpus petition alleging that the retroactive cancellation of provisional credits violated the Ex Post Facto Clause of the Federal Constitution. The District Court rejected Lynce’s argument dismissing the petition on the ground that the sole purpose of these credits was to alleviate prison overcrowding. The Court of Appeals denied a certificate of probable cause.

Question

Does Florida’s 1992 statute canceling early release credits to prison inmates after they have been awarded violate the Ex Post Facto Clause of the Federal Constitution?

William H. Rehnquist:

The Court will hear argument now in Number 95-7452, Kenneth Lynce v. Hamilton Mathis.

Mr. Remland.

Joel T. Remland:

Mr. Chief Justice and may it please the Court:

Petitioner challenges a 1992 Florida State law which retroactively redefined punishment prescribed for a 1985 offense, in violation of the Ex Post Facto Clause.

Petitioner committed his offense in 1985.

He pled nolo contendere and was sentenced in 1986 in accordance with the sentencing formula prescribed by Florida law.

The punishment formula in effect at the time of petitioner’s offense and at the time of his sentencing provided that a prisoner’s actual term of incarceration was equal to the guidelines sentence imposed by the judge less all gain time awarded.

The State granted petitioner overcrowding gain time credits from 1987 in the form of administrative gain time through 1991 in the form of provisional release credits.

Due to the award of those credits, and pursuant to statutory law, the State established a release date for October 1 of 1992.

As petitioner’s mandatory non–

David H. Souter:

Mr. Remland, may I interrupt you for a moment?

Can you tell me whether the figure that the State arrived at in determining what the release date was was calculated under the statute that was in existence at the time of the offense, the ’83 statute which is set out on page 27 of the lodging, or whether that figure was calculated under one of the later statutes?

I… in candor, I had assumed that it was calculated under one of the successor statutes, but I want to make sure on that.

Joel T. Remland:

–Yes, sir, Justice Souter.

It was calculated under one of the successor statutes in 1988, the–

David H. Souter:

Okay.

Now, if we to… I’m sorry.

If we were to conclude that under the Ex Post Facto Clause the only statute that should be considered was the one in effect at the time of the offense, I take it the figure that they calculated and the date which they arrived at would have been different.

Joel T. Remland:

–It’s hard to say, because the actual statute in effect in 1985, which was 944-598, had not been triggered at that point, and the credits did not start to issue until a successor statute administrative gain time supplanting provisional… supplanting the emergency gain time statute kicked in–

David H. Souter:

So you–

Joel T. Remland:

–and the actual credits could be used, I believe, according to the statutes in effect when the credits were granted, and I would submit to the Court–

David H. Souter:

–Yes, but that may not support an Ex Post Facto argument.

That might support… just assume for the sake of argument here that that might just support a due process claim, which is not what we have before us, and I take it the only thing we can say for sure is that if the calculation were made under the statute as in existence at the time of the offense, we don’t know that the number arrived at would have been the same number that was awarded under the later statute.

Joel T. Remland:

–I believe the number would have been the same, for two reasons.

First of all, in 1985 the… Mr. Lynce was offense-eligible.

The petitioner was offense-eligible, and the percentage for the threshold was 98 percent.

The two key criteria was the same.

The formula in 1983 all the way through, until 1992, when the second, harsher, more oppressive formula was enacted, that changed the situation.

But the basic formula was the same from 1983 through 1985.

Antonin Scalia:

Mr. Remland–

Antonin Scalia:

–Well, I thought your principal response to this was that it simply was not raised in the opposition to the petition for certiorari.

Joel T. Remland:

That is correct.

It was not… it was never raised to the petition for certiorari.

The first time they–

Antonin Scalia:

When we took this case we thought we were dealing with a situation which involved a change of the punishment that existed at the time the crime was committed.

Joel T. Remland:

–Justice Scalia, you did, as a matter of fact, because in 1985, when the offense was committed, the offense formula was basically the same as it was in ’83 earlier under the statute.

William H. Rehnquist:

Well, does that mean we should decide this case on a factually erroneous premise, the fact that it wasn’t raised in the brief in opposition?

Joel T. Remland:

I think that the actual issue was presented squarely under the statute in effect at the time of the offense under the emergency gain time statute which Mr. Lynce was eligible for under 98 percent of population cap, and he was offense-eligible according to law.

Ruth Bader Ginsburg:

That statute was applied to no one, ever, right?

It was never applied, that statute.

Joel T. Remland:

That statute, although it wasn’t triggered in 1986, the cap was reached and the Governor declared a special emergency.

We went into special session, and the percentage was raised to 98 percent.

It would have been triggered.

These–

Ruth Bader Ginsburg:

That was all later, but the statute that was on the books at the time the offense was committed is a statute that was never applied to anyone.

It’s a little hard to talk about anything ex post facto with respect to a law that was never applied to anyone.

Joel T. Remland:

–It’s our position that the statute that was in effect in 1985 was essentially the same statute that was in effect in 1988 when the credits were being granted, and moreover there’s no question that the effect of the change substantially increased the petitioner’s punishment, and that would constitute a violation of the ex post facto law, the Ex Post Facto Clause.

It’s clear that we’ve got a substantial increase in punishment over that that occurred at the time of the offense, and the statutory formula in 1985 was established.

The petitioner was clearly eligible for credits.

Ruth Bader Ginsburg:

But Mr. Remland, what about… the statute that was in place was an emergency statute.

Could one really say that it was going to operate, or it wasn’t at all highly speculative what would become of that emergency measure, then? It’s not like your punishment is X, and your good time credit is Y.

It was a brand new thing on an emergency basis, and could one say not this… this is… I know what this is?

Joel T. Remland:

Justice Ginsburg, the formula was adopted in 1983 under the Sentencing Reform Act, and that formula was the sentence of the Court minus the gain time equals the actual sentence.

In this particular matter, Florida statute 921 authorized any and all gain time to be deducted from the actual sentence imposed, and in 1985 and 1986 there was an overcrowding problem, there’s no question about that, and that overcrowding problem continued.

The contention or speculative nature of these credits doesn’t really impact the fact that the effect of the ’92 act totally and retroactively increased the measure of punishment.

It stiffened the measure of punishment.

It increased the measure of punishment over the statutory formula under 921, the sentencing guidelines law that was in effect at the time of the offense that provided a provisional and mandatory release date.

David H. Souter:

But may… on that point, may I ask you a variant of Justice Ginsburg’s question?

I’ve gone over the statute as you’ve provided it to us in the lodging, the statute that was in effect at the time of the offense, and it’s not clear to me from reading that statute whether any reduction that did not result in the release of a particular prisoner would have survived the termination of the emergency.

It is not clear to me from the statute, for example, that if your client got a 30-day reduction at some point because there was an emergency during his incarceration, but he was not released as a result of it because the reduction didn’t get him down to that point, it’s not clear to me from the statute that the reduction would have sort of remained on the books, if you will, as a permanent reduction in his sentence once the population had dropped down and that emergency was passed.

David H. Souter:

And I guess my question is, isn’t that another reason for saying that under the statute as it existed when he committed his offense it is at best speculative whether he would have obtained the kind of long-term permanent reduction benefit that you are claiming he has been denied improperly here?

Joel T. Remland:

Justice Souter, the focus of the inquiry for ex post facto purposes should be the effect of the ’92 law.

Not so much emphasis should be placed on the speculative nature of whether or not the trigger is going to be reached.

David H. Souter:

But I think what I’m trying to get at is that the effect of the ’92 law depends on what he might have been entitled to under the law that was changed and if, in fact, under the law that was changed, under the ’83 act if that’s what we’re going to consider, it is not even clear that he would have been entitled to retain his credit beyond the termination of the emergency during which it was granted, then I can’t say that the later statute took away anything.

At best I would say, well, it’s speculative as to whether it took away anything.

There’s no case law telling me how to read this in your client’s favor, and that’s the difficulty I have.

Joel T. Remland:

Justice Souter, the statutes in this case that provided the overcrowding gain time had no provisions which allowed revocation or forfeiture.

These credits, once granted, were–

David H. Souter:

But my difficulty is, they don’t have any provision that clearly says that the gain time under the emergency statutes survives the emergency.

I just don’t know.

Is there something in the text–

Joel T. Remland:

–Yes.

David H. Souter:

–that you could point to–

Joel T. Remland:

Yes.

David H. Souter:

–that says, this becomes permanently vested?

Joel T. Remland:

Yes.

I think that the statute 921, and its subsequent statutes, provide what’s been referred to repeatedly as the nondiscretionary, irrevocable release date.

David H. Souter:

Where’s the irrevocable language in the statute?

Joel T. Remland:

The irrevocable language–

David H. Souter:

Have you got it in front of you?

Do you have the statute in front of you?

Joel T. Remland:

–Not immediately in front of me, but we’ve–

Okay.

Joel T. Remland:

–lodged the documents with the Court in the lodged documents, but it’s under 921.001 and it specifically near the end of that statute, paragraph 10, and in paragraph 8, the language is specifically that your sentence is specifically determined by the amount of time the court imposes minus any and all gain time, and that is your release date.

In that release date the word shall is used, and in 1988 when they adopted the provision of release date statutes, they clarified that.

Antonin Scalia:

Even if there’s no overcrowding?

Joel T. Remland:

Yes, sir.

Antonin Scalia:

If there’s no overcrowding at the time–

Joel T. Remland:

Yes, sir.

Antonin Scalia:

–you nonetheless get released early?

Joel T. Remland:

Yes, sir, because the release date uses the word shall.

Once you’ve got the release credits granted to you, there is nothing under Florida law that allows the State to revoke those credits.

That’s why there’s a provisional release dates, and that’s why–

Ruth Bader Ginsburg:

Have the Florida courts so construed–

Joel T. Remland:

–Yes–

Ruth Bader Ginsburg:

–that measure?

Joel T. Remland:

–The provisional release date is a mandatory, statutory–

Antonin Scalia:

Why is called provisional, then?

Joel T. Remland:

–Because–

Antonin Scalia:

I understood it was called provisional because you only get your overcrowding time if there’s overcrowding.

Joel T. Remland:

–The word provisional is used… before they used the word provisional, Justice Scalia, they used… they used release date, they used… there’s several different words that they’ve used, but in each case the language of the statute is crystal clear, and it says that a person shall be released on that date.

The reason they use the name provisional is because they adopted a successor statute to emergency gain time in 1988 called provisional release credits.

Sandra Day O’Connor:

Well, didn’t that depend on whether the prison was overcrowded to a certain percentage or not?

Joel T. Remland:

Yes, Justice O’Connor.

Sandra Day O’Connor:

Isn’t that how it’s calculated?

Joel T. Remland:

Justice O’Connor–

Sandra Day O’Connor:

Now, what if he were sentenced under an earlier statute that didn’t provide the provisional release credits based on prison overcrowding.

He was sentenced under another regime that provided some gain time but not this overcrowding concept, and the legislature after sentencing then enacts a provisional release law based on overcrowding.

After the sentencing, after the commission of the crime, after sentencing they enact this thing, and then later they amend it or repeal it.

Is there some ex post facto problem at that time?

Joel T. Remland:

–I would believe that there would be an ex post facto problem if you, by the grace of the legislature as stated in Weaver, confer benefits, for example, then take them away, and resulting in a huge increase–

Ruth Bader Ginsburg:

But in Weaver… in Weaver, it depended upon what existed at the time the offense was committed.

Joel T. Remland:

–As in this case as well.

We’re not contending here or submitting that the hypothetical, Justice O’Connor, that you posed is necessary for relief in this case.

Sandra Day O’Connor:

No, but suppose that were what happened, how does ex post facto doctrine help in that situation?

Joel T. Remland:

It would appear that the cases dealing with ex post facto doctrine have dealt primarily with two points, whether or not the law is retrospective and, number 2, whether it results in a significant or substantial increase in the measure of punishment and if, in fact, after the sentencing, a new version of the statute–

Sandra Day O’Connor:

A new benefit is enacted.

Joel T. Remland:

–A new benefit, Justice O’Connor, as you indicate, was conferred, and that benefit–

Sandra Day O’Connor:

Provisionally, based on the extent of population of the prison.

Joel T. Remland:

–Yes, Justice O’Connor, but like in this case there’s also a good conduct provision as well.

Sandra Day O’Connor:

Well, what if in the meantime, before it had ever been applied, the State just built another prison, so it never came into operation.

Joel T. Remland:

It–

Sandra Day O’Connor:

Problem?

Joel T. Remland:

–It’s not–

Sandra Day O’Connor:

Did the defendant lose something?

Joel T. Remland:

–In this particular case the defendant lost 5 years, and had 5 years added to his sentence.

Sandra Day O’Connor:

No, under the hypothetical, please.

Joel T. Remland:

Yes, Justice O’Connor.

Sandra Day O’Connor:

What would the defendant have lost?

Joel T. Remland:

I think he would lose the possibility of a sentence reduction based upon the new provision.

Sandra Day O’Connor:

The new law, but how is that ex post facto if we look at the time of the crime and the sentence?

Joel T. Remland:

It’s not clear from looking at Supreme Court cases in the past whether or not that–

Sandra Day O’Connor:

Well, if your argument is that broad, you lose me.

Do you have a fallback position that it only applies to those credits that he would have received under the law in effect in 1985?

Joel T. Remland:

–Our position, Justice O’Connor, is that the formula in 1985 was in place, and that provided him with a statutory formula for ex post facto analysis against the harsher, more onerous formula that was enacted in 1992 by retroactive application through the Attorney General’s rein–

Sandra Day O’Connor:

Mr. Remland–

–Well, does your argument depend at all on the fact that the State retroactively revoked already awarded gain time credits?

Is that your focus?

Joel T. Remland:

–Yes, ma’am.

Sandra Day O’Connor:

Would you be here under any other scenario?

Joel T. Remland:

I think the eligibility for future credits as emphasized in the Weaver case and also the nature of the increase in… in Miller, for example, in Miller v. Florida, where a new guideline amendment, a new formula, if you will, was used to make a harsher punishment–

John Paul Stevens:

Mr. Remland, I don’t think you’ve made a point clear that I think is really of vital importance.

Don’t you claim that under the 1983 statute your client had right, a statutory right to overcrowding credits not in a then emergency, but if a later emergency occurred when there was a 98-percent population in the statute?

Joel T. Remland:

–Yes, Justice Stevens.

John Paul Stevens:

And that was the formula your client had a right to at the time the offense was committed.

Joel T. Remland:

Absolutely.

John Paul Stevens:

And the formula that was actually applied also was a 98-percent formula, wasn’t it?

Joel T. Remland:

Absolutely.

They were both 98 percents, and they were both… he was offense-eligible in 1985, and it was at 98 percent.

He was offense-eligible in 1992, until they retroactively excluded him for eligibility and canceled all the credits and also future eligibility.

Sandra Day O’Connor:

Well, do you think at the time the prisoner was committing the attempted murder that he took into calculation the fact that there might be prison overcrowding, and so–

Joel T. Remland:

I–

Sandra Day O’Connor:

–it has some ex post facto effect?

Joel T. Remland:

–I do not believe, Justice O’Connor, that an individual who’s committing a crime on the outside is thinking in terms of what specific gain time statutes might exist, and I don’t think that kind of a reliance interest is required for a claim under the ex post facto clause.

However, I do think that reliance is one of the interest as well as expectations that the ex post facto clause addresses.

However, I think in this case in 1985, when the offense was committed, through 1986, there was real overcrowding, there was an overcrowding formula, Justice Stevens, as you pointed out, in 1985 that made him 98 percent… the population cap was there at 98 percent, and the overcrowding was there, and there were newspaper articles coming out.

And the Governor in 1986, one month prior to the time of the plea in this case, went into special session and raised the trigger from 98 percent to 99 percent, so there’s maybe an objective reliance here on the part of any petitioner in this particular situation, especially when we have in place since 1985 and earlier a statutory formula under–

Ruth Bader Ginsburg:

Mr. Remland, suppose Florida had said, we are enacting a statute that doesn’t give anybody any right to anything until the moment that there is overcrowding, and when they’re… when and if the overcrowding occurs, they will get credits, but those credits will exist only as long as the overcrowding.

Once there’s no more overcrowding, no more accumulation, and we wipe away any that exist if you haven’t gotten out.

That kind of statute, then, would have no constitutional problem, would it?

Joel T. Remland:

–As long as the statute didn’t cancel credits already awarded in the past, I think–

Ruth Bader Ginsburg:

This statute says these credits you accumulate, and if you get out while we’re still overcrowded, that’s all right, but when we build the new prison, they’re wiped out.

Is there any constitutional problem with Florida doing that?

Joel T. Remland:

–I don’t… Florida’s done that, Judge… Judge Ginsburg in the controlled release statute which was passed in 1989 and got up and running in 1991.

That statute has within its parameters a method of reducing and changing the release date based upon changes in population.

The statute is being… if the statute is applied in a prospective manner, not retroactively, creating a harsher punishment, I don’t see a constitutional problem with addressing overcrowding through the prospective application of law.

David H. Souter:

Mr. Remland, may I interrupt you, because I–

Joel T. Remland:

Yes, Justice Souter.

David H. Souter:

–you’re getting back to a point that I think we’re all concerned with here.

I thought I had gotten into the question whether Florida under the ’83 act was awarding credits that would survive the overcrowding or were not surviving the overcrowding, so that… and your answer to me was their credits survived the emergency.

Joel T. Remland:

Yes.

David H. Souter:

The emergency was over, you still retain the credits.

Joel T. Remland:

Yes.

David H. Souter:

So you were saying to me the statute we’ve got is not the kind of statute that Justice Ginsburg was asking you the hypothetical about.

And you said the reason for the permanence of the credits was 921.001, subsections 8 or 10.

Joel T. Remland:

Yes, sir.

David H. Souter:

Well, I’ve got that out, and it’s on page 10 of the lodging.

Do you have a copy of the lodging with you?

Joel T. Remland:

Yes, sir.

0….

Joel T. Remland:

You say page 10?

David H. Souter:

Yes.

0….

Joel T. Remland:

Yes, sir.

David H. Souter:

Okay.

Now, down in the… I don’t get a subsection 10 there, but I get a subsection 8, and subsection 8 provides that a person convicted of a crime after a certain date, and so on, will be released from incarceration only (a) upon expiration of the sentence, (b) upon expiration of the sentence as reduced by accumulated gain time, or, and there’s a third alternative.

Now, I take it that your answer to me depends on the fact that the statute uses the word accumulated.

I take it your argument is that it wouldn’t make any sense to refer to accumulated gain time unless the gain time survived the emergency.

Is that sort of the nub of your position?

Joel T. Remland:

Absolutely, Justice Souter.

David H. Souter:

All right.

Does the word… my question is, and I probably should know this from reading the briefs but I’m not sure, does the word gain time include not only this provisional gain time that is awarded in the case of emergencies, but the other kinds of gain time which reduce a sentence for good behavior and so on?

Does the word gain time include all of that?

Joel T. Remland:

Yes, sir.

David H. Souter:

Well then, isn’t it the case that we really cannot say that the fact that gain time is referred to as accumulated gain time, we can’t infer from that that the emergency kind of gain time is accumulated as opposed to, let’s say, the good behavior kind of gain time.

Is that fair to say?

Joel T. Remland:

I think it’s fair to say, Justice Souter, that the meaning and the use of the statutes in this case refer to gain time and… in all its different forms, such as–

David H. Souter:

Some of which may accumulate under the statute governing it, and some of which may not.

Joel T. Remland:

–The use of these statutes in Florida since 1983 and the analysis of the way they’ve been operating is that the gain time accumulates unless there’s a discipline problem, and–

David H. Souter:

Even under the emergency statute?

Joel T. Remland:

–Yes, sir.

The–

David H. Souter:

And so you’re saying administrative practice, even though there’s no court decision on it and even though the statute doesn’t expressly address it, the administrative practice is to make it a permanent gain.

Joel T. Remland:

–Absolutely.

David H. Souter:

Even under the emergency statute.

Joel T. Remland:

There’s no provision for–

John Paul Stevens:

There’s no way there would have gotten 1,800 days of gain time otherwise, is there?

Joel T. Remland:

–That is absolutely correct, and he was released by the Department of Corrections on October 1 of 1992 and told to go home, you’re released on your provisional release date, which is mandatory under the law.

The 1988 version of this statute, which I believe is subparagraph 10, Justice Souter, says that you shall be released on your provisional release date, and that’s on page 12.

Okay.

Joel T. Remland:

And I think–

David H. Souter:

But basically your argument is, is an argument that construes the statute in accordance with the actual administrative practice until they got this statute that hauled this poor man back, is that it?

Joel T. Remland:

–Absolutely, and–

Okay.

Joel T. Remland:

–And even the Florida supreme court cases have looked at all these different gain times and said they’re basically the same.

In Griffin v. Singletary for example, the Florida supreme court stated that the provisional release credit statute is the same as the administrative gain time statute, and in Dugger v. Rodrick the Florida supreme court lumped all of these population control statutes together and said they’re called population control statutes.

William H. Rehnquist:

Well, did it lump those together with good behavior gain time?

Joel T. Remland:

The Florida supreme court has carved out sort of an exception and tried to distinguish between good behavior incentive gain time on the one hand and overcrowding gain time on the other.

I believe–

John Paul Stevens:

Yes, but you don’t get the overcrowding gain time unless you also qualify for good behavior, do you?

Joel T. Remland:

–Absolutely, Justice Stevens.

As a matter of fact, these credits, Justice Stevens, are nothing more than good time credits during periods of overcrowding, and as Arnold v. Cody out of the Tenth Circuit noted, the contingent nature of the credits emanating after the effective date of the act really just shows you the credits are being awarded.

It’s an issue of retroactivity.

In this particular matter, the real key issue is whether the effect of the law, the focus of the inquiry as in Moralis v. Department of California Department of Corrections was that did this changed formula in 1992 substantially stiffen the measure of punishment?

Did it increase?

Did it make it more onerous than the formula that Mr. Lynce, the petitioner herein, was eligible for, 98 percent in 1985, and not excluded because of his offense?

Anthony M. Kennedy:

Suppose that you had this system and the State then passed a new statute which had a 90-percent trigger point, but it… and it provided for immediate release to keep it at 90 percent, and it excluded people that were convicted of murder or attempted murder, would that… and the effect of that was to keep your client in jail.

Would that be a violation of the ex post facto rule?

Joel T. Remland:

Justice Kennedy, I think that Florida, because of the overcrowding crisis, should be able to address this crisis in any manner it feels reasonable with prospective laws.

If they deny Mr. Lynce or anybody else eligibility because of a prior crime that he committed, then it delves into the area of violating–

Anthony M. Kennedy:

No, no.

No, they have a new cap at 90 percent.

They just exclude certain offenders, including your client.

Hence, because of the 90-percent cap, they release people, and he’ll never reach the 98, so in effect they’ve taken away from him his credit.

Would that be lawful?

Joel T. Remland:

–If they enact any formula that makes it more harsh or more onerous to someone who’s already had another formula under an earlier–

Anthony M. Kennedy:

They don’t make it more harsh.

They just provide something for somebody else.

What’s the difference in that and building a new prison?

I take it that there’d be no violation if they build a huge new prison and they never reach the 98 percent cap.

Joel T. Remland:

–That’s correct.

That’s correct.

Anthony M. Kennedy:

Well, what’s the difference in that and my hypothetical?

Joel T. Remland:

I guess it wouldn’t be any difference unless it impacted him adversely from the prior formula.

I think you have to just look at both formulas.

If it doesn’t adversely affect the overall sentence in terms of the duration of his actual term of incarceration, then it wouldn’t be a violation of ex post facto.

The only test is whether or not the new formula is harsher or more oppressive than the earlier formula, sort of like–

Anthony M. Kennedy:

Well, the new formula that I stipulated is more lenient to everybody but its… doesn’t apply to him, so that it makes inoperable his.

Well, I guess you’ve answered the question.

Does this formula have to be in the statute?

Suppose the prison system just has a policy that when there’s… or they’re under injunction from a Federal court that they can’t have so many… more than so many people in their institutions, and they institute a policy that when we have so many we will let out first of all the pickpockets, and let’s assume your client’s a pickpocket.

Now, would that policy which was in effect at the time he was arrested for pickpocketing, would that have to be continued, or else the ex post facto prohibition of the Constitution violated?

Joel T. Remland:

–Justice Scalia, I think that the policy you’re discussing would seem to be rather discretionary, and perhaps it wouldn’t necessarily be having the effect of law, or the–

Antonin Scalia:

Well, it wasn’t effect of law.

It was a regulation that was adopted by the prison administrator.

Pursuant to his authority the legislature told him, you have to comply with the Federal court decree.

You decide… you know, you decide the people that can best be released upon the public, and he said pickpockets, and he issued that in a regulation.

Now, is it your position that that administrative measure becomes part of the sentence that the person is–

Joel T. Remland:

–Justice Scalia, I don’t believe an administrative regulation that doesn’t have a tightened control or mandatory nature to it would be the same as the statute that we have in this case that guarantees a certain formula for sentencing.

Antonin Scalia:

–If it’s for administrative purposes, I don’t see how the fact that it’s adopted by regulation versus statute should make any difference.

Is that the distinction?

Joel T. Remland:

I think it’s the effect.

Of course, if the effect has a substantial impact and that effect–

Antonin Scalia:

The effect’s the same.

He’s a pickpocket and he would have gotten out if that measure had been continued.

Joel T. Remland:

–It appears to pose an ex post facto issue and a problem if there is in effect increasing punishment.

William H. Rehnquist:

Thank you, Mr. Remland.

Mr. Thomson, we’ll hear from you.

Parker D. Thomson:

Mr. Chief Justice and may it please the Court:

The ex post facto clause is implicated here only if the 1992 statute that terminated the application of the provisional release credits for Mr. Lynce increased the quantum of punishment attached to his crime from the date it was committed.

Parker D. Thomson:

That is the definition of an ex post facto law.

A statute must increase the quantum of punishment at that… over that which existed at that point of time, or it is simply not subject to ex post facto attack, whatever other bases there may for attacking it.

In looking at the provisional release credits, or the other forms of overcrowding credits adopted by Florida in response to a serious overcrowding problem, a Federal court decree, a settlement of that Federal court case, and then the adoption of certain policies later encapsulated into statute, all of those procedures we submit were not penal.

In fact, their purpose was the opposite of penal.

It was remedial and procedural.

The 1992 act and all the other acts adopted over this period of time were attempted solutions to that same large problem that Florida was confronting.

Sandra Day O’Connor:

Well, Mr. Thomson, assume that under the law in effect in 1985 the defendant would have been entitled to certain gain time credits based on good behavior and other things, and he went along earning those credits until all of a sudden the State passes a retroactive law that takes away gain time credits already accumulated for him.

Can it do that?

Is there an ex post facto problem there?

Parker D. Thomson:

The Weaver case tells us that there is.

The Weaver case involved basic gain time.

Florida remodeled its basic gain time statute to leave the credits where they were, but to modify them prospectively, and this Court held that the State of Florida could not do that.

It couldn’t modify them at all.

Now, I interpret that aspect of gain time as written in Weaver in part by the reference in the Moralis case in 1995 to Weaver being part of a trilogy, the trilogy being the Lindsey case in 1937, Weaver, and the Miller case in 1987.

Those were… Lindsey and Miller were clearly sentencing cases, and I interpret Weaver–

Sandra Day O’Connor:

All right, but you’re losing me a little bit.

In this particular case, up until 1992, had the defendant accumulated some gain time credits?

Parker D. Thomson:

–I’m sorry, I didn’t understand your–

Sandra Day O’Connor:

Until 1992–

Parker D. Thomson:

–Yes, Your Honor.

Sandra Day O’Connor:

–had this defendant accumulated some gain time credits?

Parker D. Thomson:

Yes, Your Honor.

Sandra Day O’Connor:

And the law passed in 1992 made him ineligible for that retroactively.

Parker D. Thomson:

It made him… the law passed in 1992 made him ineligible for provisional credits.

He had basic gain time accumulated.

He had some incentive gain time accumulated.

The law did not touch those.

Sandra Day O’Connor:

And he also had some gain time based on overcrowding.

Parker D. Thomson:

He had gain time based on overcrowding broken into two components, one under–

Sandra Day O’Connor:

But he had some.

Parker D. Thomson:

–Yes, Your Honor.

Sandra Day O’Connor:

And then the State passes a new law and makes it retroactive.

Parker D. Thomson:

Right.

Sandra Day O’Connor:

And you say that the ex post facto doctrine does not apply to that.

Parker D. Thomson:

Correct, Your Honor.

I… we say that it does not apply not only because the statutes from… which were the… which were take… in which something was taken away from him did not exist at the time that he committed his crime.

Not only that, but because those kinds of statutes involved here were not penal.

An ex post facto law turns on penal statutes.

These laws were not directed in any way at punishing the individual inmate.

Sandra Day O’Connor:

Well, but they certainly affected the time the inmate would serve.

Parker D. Thomson:

There are lots of things that affect the time that an inmate will serve that have nothing to do with the fact of whether punishment is being imposed on him.

In this case, the State was dealing with problems that had nothing to do with individual inmates.

They were not for the purpose of controlling an inmate.

They were not for the purpose of rewarding an inmate.

They were to deal with a serious problem of overcrowding which required early release of certain… a certain number of people which the State moved back and forth in light of its other obligation, which was to, as best it could, protect the safety of the streets, and therefore decided who it–

Anthony M. Kennedy:

I might understand your argument better if it applied across the board, but it as I understand it the statute took away the provisional gain time from a class of offenders, dangerous people, including an attempted murderer, and I’m not sure how to square that with your assertion that this was not to punish.

Parker D. Thomson:

–Justice Kennedy, it was no more to punish than the Moralis case, which applied a different rule to a certain class of prisoners, in that case double murderers.

The overcrowding–

Anthony M. Kennedy:

Well, but the rationale in that case was that it was unlikely that there would be really any difference.

Here, it is clear there was a difference.

Parker D. Thomson:

–The overcrowding was not by itself.

Overcrowding resulted in the release of people, and you can look at the Florida statutes, and they looked at who it was that was going to be released, what classifications of people, and they said, certain classes of people should not be released to the streets to take care of an overcrowding problem.

This changed from time to time as overcrowding became a greater or a less problem.

Anthony M. Kennedy:

But why isn’t that a judgment that one crime is more culpable or more dangerous than another, and therefore more deserving of incarceration?

That sounds like punishment to me.

Parker D. Thomson:

Indirectly it has… it makes a judgment of who are more likely to cause a problem by early release.

There is no change of the sentence of anybody, those that are released or those that are not released.

The sentence remains what it was.

Anthony M. Kennedy:

I take it that deterrence is one of the central rationales for punishment, and you’re saying that–

Parker D. Thomson:

Retribution and deterrence are the two classes.

Anthony M. Kennedy:

–And that you’re saying that deterrence or prevention, I suppose, is the rationale here.

Parker D. Thomson:

You’re not trying to prevent a crime.

You are simply deciding if you are going to take care of a problem called overcrowding… I’ve got too many people in the prisons and I don’t have enough space, and I’ve got to let a certain number of them on the streets.

Then I make judgments within that determination of who should and should not be released consistent with my obligation as a legislator to best protect public safety.

Sandra Day O’Connor:

Well, may be that’s a good argument for a prospective law to that effect, but how does that justify a retrospective law that affects people who’ve already been awarded credits and are out?

Parker D. Thomson:

Insofar as the ex post facto clause goes, it seems to me that it is not… the ex post facto clause is not involved because we are going to go and take a look back at 1985.

There may be other constitutional issues.

Due process, Eighth Amendment problems, and certain other problems that may exist, but it is not an ex post facto problem, which is the one that is before the Court–

John Paul Stevens:

Well, why isn’t it an ex post facto problem if there was a 1983 statute on the books that authorized the gain time when the prison population exceeded 98 percent, the same formula that you used under the labor statutes?

Why isn’t that an ex post facto problem?

Parker D. Thomson:

–The 1983 statute is interesting, because in the first place it was entitled Early Release of Prisoners.

John Paul Stevens:

Titled Emergency–

Parker D. Thomson:

It was not classified… excuse me?

John Paul Stevens:

–Entitled Emergency Release of Prisoners.

Parker D. Thomson:

Emergency Release of Prisoners.

Right.

Parker D. Thomson:

It was not… when you look at the history of that 1983 law, which is in the lodged documents, you know, gain time provisions, and then the special emergency release of prisoners, it says we’re going to take care of the serious problems created under the Federal court–

John Paul Stevens:

No, it says it will take care of it if the population reaches 98 percent.

It looked to the future.

Parker D. Thomson:

–That is correct.

John Paul Stevens:

So that the emergency had not necessarily occurred at the time that statute was passed.

Parker D. Thomson:

No.

There was an overcrowding problem consistently all along, but clearly it never was released under that… I mean, it never was reached under that statute because that statute was never applied.

John Paul Stevens:

It was… they were released under the formula that was set forth in that statute, which was incorporated into a later statute.

In the 98 percent formula was incorporated in the later statute which actually gave rise to his credits.

Parker D. Thomson:

That aspect of it was.

The later statutes had exceptions.

They were different statutes.

The 1992–

John Paul Stevens:

And was more discretionary than the earlier statute.

John Paul Stevens:

The earlier statute has mandatory language in it–

Parker D. Thomson:

–Correct.

John Paul Stevens:

–that the later ones don’t.

Parker D. Thomson:

They were discretionary.

All the subsequents were first discretionary, and then they had specific exceptions of people that they would not reach, which changed from time to time.

John Paul Stevens:

But whatever… whatever happened later, he was entitled under the earlier statute because he qualified under the later one, which was even less generous.

Parker D. Thomson:

Well, we do not know whether he ever would have qualified under the earlier statute because it was never applied.

John Paul Stevens:

Well, sure we do, because it was a 98-percent formula, and you calculated the 98-percent formula later and gave him 1,800 days of credits.

Parker D. Thomson:

If in fact what was done in 1983 was cast in stone as part of this person’s sentence, which I submit that it was not, then it never could have been changed at any time.

John Paul Stevens:

Well, of course, gain time is never cast in stone as part of a person’s sentence.

Parker D. Thomson:

If–

John Paul Stevens:

We discovered that with the Weaver case.

Parker D. Thomson:

–If, in fact, any time after 1985, any time there was available a 98-percent–I mean, you reach 98 percent, it was mandatory to release him and there were no exceptions that would apply to him, then you are casting in stone the first effort that Florida made to deal with an overcrowding problem, and you have said that that was part of his punishment.

I submit, Your Honor, that the early release of prisoners by reason of overcrowding was never part of his punishment.

It was never part of his sentence.

It had no relationship to what he did in prison.

There was no aspect of reward.

It was neither retributative nor was it deterrent.

It simply said if, in fact, Florida has a problem unrelated to you that is not taken care of in a whole variety of ways, then this statute could–

John Paul Stevens:

Yes, but I just want to be clear, your argument really depends on… assumes that the releases could have been under the 1983 statute, but they’re still not covered because it’s a collateral effect that caused him to become eligible.

Parker D. Thomson:

–Exactly.

John Paul Stevens:

Yes.

That’s right.

Parker D. Thomson:

He would have been at most–

John Paul Stevens:

Right.

Parker D. Thomson:

–an incidental beneficiary of those statutes.

John Paul Stevens:

And that would have been true under the ’83 statute or the later statutes… yes.

Parker D. Thomson:

That would have been true of any overcrowding statute, Your Honor.

David H. Souter:

Mr. Thomson, assume for the sake of argument that the terms of the ’83 statute would be enforceable under the ex post facto clause.

Assume, secondly, though you correct me if you think this is wrong, but at least for the moment assume that under the statutory scheme as it existed at the time of the offense in ’83 one simply couldn’t tell one way or the other whether one of these emergency credits would, in fact, survive the emergency if the individual was not released.

David H. Souter:

And assume, number 3, if you will, and again correct me later if you think this is wrong, but assume for now, as opposing counsel said, that the credits have in fact, even under the emergency provisions, the emergency credits have been accumulated and have survived the emergencies as a matter of administrative practice.

That’s what they’ve been doing.

My question is this.

Is there anything in… was there anything in Florida law at the time of the offense in ’83 that made it… that would have provided, or did provide that the administrative practice had to be what in fact it was?

Was there anything in Florida law at that time that says you’re supposed to accumulate rather than not accumulate?

Or, conversely, would it be fair to say that in ’83 what the administrators did was a matter of their grace.

They could either accumulate or not accumulate.

It was purely up to them, and nobody could say what they ought to do.

Which was it?

Parker D. Thomson:

Mr. Justice Souter, are you referring to any aspect of gain time, or are you referring only–

David H. Souter:

Just the emergency gain time.

Parker D. Thomson:

–to overcrowding?

David H. Souter:

Just the emergency gain time.

Was there any… any law, outside of the confines… confines of what we have in the lodging, that would have indicated that the administrators were supposed to accumulate this, or, conversely, were the administrators free to do anything they wanted simply as a matter of grace?

They could either accumulate it and retain it beyond the emergency or not, as they saw fit.

Parker D. Thomson:

In 1983 there was nothing.

David H. Souter:

Okay.

How does this… I don’t know if you can explain it.

Maybe you can just refer me to a source, but it does seem if you could refer me to a source as to how these statutes work, it would be helpful.

As I read 598 and then 277 and 276, it seems to me they’re identical but for the fact that the latter uses the word 60 days and may, and the former uses the word shall and 30 days as far as we’re interested here.

What it says you’re supposed to do is that, when it hits 98 percent, then you start reducing the prison population, and you do it by giving each person in 5-day increments up to 30 days’ gain time.

Where did we get the number 1,800 from?

It said up to 30 days, and what I… as I read it literally it sounded as if you have 1,000 people in the prison, they’re all there under 25 years, which means they’re really only 10 years, and then… after you eliminate all the regular gain time they’re there for 10 years.

And then what you do is, you look through the whole 1,000, you give each of these 1,000 people 30 days off their sentence, which will do nothing for prisor, overcrowding because they’re not supposed to be released for a long time anyway, but they all get lighter sentences, and then you come down finally to it might be one person who’s about to get out tomorrow, so he gets out.

I mean, how does this work?

Parker D. Thomson:

With Your Honor’s permission, it will take a minute.

Stephen G. Breyer:

Well, if it takes too long you might just refer me to a source.

Parker D. Thomson:

Well, I’ll try and give it to you quickly.

There were four statutes.

The first, the emergency release of prisoners, has been referred to in my response to Justice Souter, and that is the one that had 30 days in 5-day—-

Stephen G. Breyer:

That’s what I’m talking about.

Parker D. Thomson:

–And no exceptions.

The next one was called administrative gain time.

That’s 276.

It was adopted in 1987.

Stephen G. Breyer:

My only question is how you get from the words 30 days, or 60 days, to the 1,800 that he accumulated.

Parker D. Thomson:

Well, the second one, the one I’ve just mentioned, administrative gain time, said up to 60 days, and so once an emergency was declared by the administrator, referred to the Governor, the Governor assented, it came back, and the Secretary allocated days from zero to 60 to that particular instant and assigned them to the block of people that were in the eligible pool.

Stephen G. Breyer:

And how do we get to 1,800?

Parker D. Thomson:

Well, you get… actually, if you–

Stephen G. Breyer:

Did it happen 31 times?

Parker D. Thomson:

–No.

It happened a slew of times, and it happened sometimes with a lot less than that.

It happens incidentally to have been over 31 months, and there were 60 days, so you–

It happens each month.

Parker D. Thomson:

–might mistakenly think that there was a direct multiplication, and there isn’t.

In fact, there were a whole set of certifications and determinations by the Secretary over the period of time that the provisional credits were given, which was from 1988 until the beginning of 1991.

Stephen G. Breyer:

Okay.

Then my question would be this.

The statute says, really, what you’re saying is that that’s what shall happen.

The statutes say it shall happen.

They say it shall happen as of 1983.

Now, since they say it shall happen and you have a later statute that comes along that says in his case it shall not happen, how can we look at it as other than you had a later statute that made his sentence more harsh.

Now, what you were starting to say was–

Parker D. Thomson:

Well, I said–

Stephen G. Breyer:

–because the purpose is different.

Parker D. Thomson:

–I said–

Stephen G. Breyer:

But if the purpose is different, I guess if you had a good purpose you could double everybody’s sentence on that theory.

Parker D. Thomson:

–Oh, no.

His sentence never changed.

His sentence was given to him.

Parker D. Thomson:

It was 22 years.

If you accept Weaver, it was shortened by basic gain time at the date of the sentence, because that’s the way basic gain time is handled.

You lopped about 6 or 7 years off of it.

You then have incentive gain time, which in fact the Florida court has construed Weaver applies to and therefore could not be taken away.

Those are things that are within his control at least.

He can handle those.

There’s something he can do about those.

He can work.

He can earn gain time.

It cannot be taken away from him.

The overcrowding credit in fact relates to the releasing of prisoners.

In fact, it shouldn’t be looked at until you have to release a prisoner, and during that period of time you ought to be able to adjust to your needs.

In fact, for administrative purposes, because the Florida system is so large, credits were booked with respect to these individuals so that they did have an accumulation.

It was related to these two statutes, administrative–

John Paul Stevens:

General Thomson, does the record tell us how much of the 1,860 days were overcrowding credits and how much was the other kind of gain time you refer to?

Parker D. Thomson:

–Yes, Your Honor.

On page 52 of the Joint Appendix there is zero… of course, it’s not named.

There’s zero under the 1983 statute, because it was never, ever brought into effect either before the day he committed his crime or thereafter.

William H. Rehnquist:

Whereabouts on page 52 are you reading from, Mr.–

Parker D. Thomson:

I was saying… I was saying, Your Honor, there is a figure called 335, which is next to administrative gain time awarded.

That is administrative gain time that was under the 1-year statute.

It was not taken away from him by the 1992 law, and it is not challenged here, but you should know that in fact once the overcrowding issue was ameliorated and the Costello decree was terminated, the legislature revoked all administrative gain time and provisional release credits.

That’s beyond the time of this statute.

So at the time this was written, he still had 335 days on the book for administrative gain time.

It says 1360.

That is a typographical error below that.

It means 1,860 as is shown by the previous page of the affidavit.

That is the amount of time that had been booked for him with respect to provisional credit.

John Paul Stevens:

–Just so I’m perfectly clear, the 1,860 is all overcrowding gain time.

Parker D. Thomson:

It is, Your Honor, as is the 335.

John Paul Stevens:

So at least as a matter of administrative practice these additional increments of gain time were accumulated.

Parker D. Thomson:

That is correct, because the alternative was that each day you had an overcrowding problem you would recalculate, and that seemed to be, one would say, a little bit a waste of time, so you… as long as you had a consistent overcrowding problem, once you assigned credits to a person they were just left there.

William H. Rehnquist:

What do you mean when you use the expression, booked, Mr. Thomson?

Parker D. Thomson:

I mean that they were entered in his record, and that continued until 1989, the fourth effort, which is called controlled release in Florida, in which, starting as of January of ’91, these matters of overcrowding were assigned to the… a controlled release authority, which is really the Parole Commission under another name, and there is no booking with respect to those credits at any time for Mr. Lynce because they were handled differently, and that’s the method of dealing with overcrowding that started in 1991 and terminated finally in 1994, when the last overcrowding release occurred in the State of Florida.

Antonin Scalia:

Mr. Thomson, your argument, or at least a large part of your argument is that you shouldn’t count this because it’s not punishment.

It had nothing to do with punishment.

It had to do with administrative needs, administrative efficiency.

But isn’t the same thing true of good behavior release time as well?

That has nothing… you know, earned credits for good time credits.

That has nothing to do with the heinousness of the crime.

It has nothing to do with what is deserved punishment.

It has to do with giving people an incentive to behave themselves so that it will be easier to manage the prison.

Parker D. Thomson:

You are correct, Your Honor.

All gain time… other than the overcrowding issue, all the gain time is hooked in some fashion to prison management.

There is no doubt of that.

Antonin Scalia:

Which suggests that our prior case law is an impediment to the argument you’re making to us.

Parker D. Thomson:

Your Honor.

Antonin Scalia:

Because we have certainly held that you can’t take away good time credits, change the system under which you earn them retroactively.

Parker D. Thomson:

What is… what this Court has held in the Weaver case is that basic gain time, which is the one aspect of gain time that is assigned to an individual at the day he enters the prison and therefore may be deemed part of the sentence for purposes of how judges approach it, how defense attorneys and prosecutors approach it, that this Court… I can read Weaver a bunch of ways, but if I read Weaver as a sentencing case, and when this Court refers it to as a trilogy with Lindsey and Miller it seems to me clearly it is, then basic gain time as part of that initial factor makes some sense as being treated as part of the sentence, and I take that as a given.

William H. Rehnquist:

Basic gain time, how is it… does it make any difference, other… is basic gain time assigned on the basis of the length of the sentence?

Parker D. Thomson:

Yes, Your Honor.

It is a certain number of days in the statute for years, and it goes up.

William H. Rehnquist:

Does it depend on anything else, other than the length of the sentence?

Parker D. Thomson:

In fact, the way it operates it does not.

That is, it’s there, and you’ve got it, unless you do something that causes it to be revoked.

Incentive gain time is handled differently, and of course the overcrowding credits themselves are, it seems to me, Justice Scalia, for an entirely different purpose.

They aren’t related to the individual prisoner and what he does.

To be sure, prison management is a goal for him to get a result, but if he does it, he gets it.

Overcrowding is in effect an externality.

Not only is it iffy, in response to–

Antonin Scalia:

Well, you–

Parker D. Thomson:

–Justice Souter’s question, but it’s an externality.

They… you… there’s nothing he can do.

Antonin Scalia:

–It’s conditioned on good behavior, though, as you told us earlier, so to that extent it is still somewhat conditioned upon his own behavior.

Parker D. Thomson:

No, I did not say that, Your Honor.

The incentive… the provisional credits, there is in the statute a… the words that provisional credits are available only to a person who is earning incentive time.

The Florida supreme court has interpreted that to mean that that’s just the pool of people.

The pool of people that are eligible for those during the period of time that they were given, those overcrowding credits, are those that were earning incentive time and are not subject to one of the exceptions that were contained in the statute.

That’s just a pool of persons, a definition of who will be available, or who will be treated for overcrowding credit.

Antonin Scalia:

I’m not sure what… I’m not sure what you mean by… I’m not sure how that responds to my point.

He has to place himself within that pool by his good behavior, no?

Parker D. Thomson:

He has to earn incentive gain time, yes.

Anthony M. Kennedy:

Okay.

What was the universe for measuring overcrowding?

Was it the entire Florida correction systems, or was it prison by prison?

Parker D. Thomson:

I believe, Your Honor, it was the system.

John Paul Stevens:

That’s what the statute says.

Ninety-seven percent of lawful capacity of the system.

Parker D. Thomson:

Correct.

John Paul Stevens:

Yes.

Parker D. Thomson:

If there are no further questions–

William H. Rehnquist:

Thank you, Mr. Thomson.

The case is submitted.