# Weaver v. Graham > Supreme Court of the United States · February 24, 1981 · 450 U.S. 24 URL: https://www.frixlaw.com/law-library/cases/9428199 ## Case - **Full name:** Weaver v. Graham, Governor of Florida - **Court:** Supreme Court of the United States - **Decided:** February 24, 1981 - **Citations:** 450 U.S. 24; 49 U.S.L.W. 4155; 101 S. Ct. 960; 67 L. Ed. 2d 17; 1981 U.S. LEXIS 67 - **Precedential status:** Published - **Opinion:** Concurrence by Rehnquist - **Judges:** Marshall, Brennan, Stewart, White, Powell, Stevens, Blackmun, Burger, Rehnquist - **Cited by:** 2,183 later opinions in the Frix Law Library ## Citator (automated) - **Yellow flag:** Reported overruled on other grounds by California Department of Corrections v. Morales, 514 U.S. 499 (1995) — not on the Supreme Court's list. - Negative treatments: 4 - Distinguished by: 4 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9428199 ## How later opinions describe it (automated extraction) - stating that the Ex Post Facto Clause, which operates on statutes regardless of their effect on "vested rights,” supports the separation-of-powers principle by confining the Legislature to the enactment of prospective criminal sanctions, and the Judiciary to the application of… - stating that Ex Post Facto Clause forbids enactment of a law “which imposes a punishment for an act which was not punishable at 8 the time it was committed; or imposes additional punishment to that then prescribed” (emphases added) (quoting Cummings v. Missouri, 71 U.S. 277 , … - stating that ex post facto prohibition in United States constitution "forbids the Congress and the States to enact any law which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed” - stating that “[t]he ex post facto prohibition forbids the Congress and the States to enact any law ‘which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.’” - explaining that “two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” ## Opinion text Justice Rehnquist, concurring in the judgment. I find this case a close one. As the Court recently noted: “It is axiomatic that for a law to be ex post facto it must be more onerous than the prior law.” Dobbert v. Florida, 432 U. S. 282, 294 (1977). Petitioner was clearly disadvantaged by the loss of the opportunity to accrue gain time through good conduct pursuant to the 5-10-15 formula when the legislature changed to a 3-6-9 formula. The new statute, however, also afforded petitioner opportunities not available *38 under prior law to earn additional gain time beyond the good-conduct formula. * The case is not resolved simply by comparing the 5-10-15 formula with the 3-6-9 formula. “We must compare the two statutory procedures in toto to determine if the new may be fairly characterized as more onerous.” Ibid. I am persuaded in this case, albeit not without doubt, that the new statute is more onerous than the old, because the amount of gain time which is accrued automatically solely through good conduct is substantially reduced, and this reduction is not offset by the availability of discretionary awards of gain time for activities extending beyond simply “staying out of trouble.” This is not to say, however, that no reduction in automatic gain time, however slight, can ever be offset by increases in the availability of discretionary gain time, however great, or that reductions in the amount of credit for good conduct can never be offset by increases in the availability of credit which can be earned by more than merely good conduct. Since the availability of new opportunities for discretionary gain time and the reduction in the amount of automatic gain time can be viewed as a total package, it must be empha *39 sized that nothing in today’s decision compels Florida to provide prisoners in petitioner’s position with the benefits of the new provisions when this Court has held that Florida may not require such prisoners to pay the price. It is not at all clear that the Florida Legislature would have intended to make available the new discretionary gain time to. prisoners earning automatic gain time under the old 5-10-15 formula, when the legislature in fact reduced the 5-10-15 formula when it enacted the new provisions. The question is, of course, one for Florida to resolve. While the Court points out that gain time was available under the old scheme beyond the 5-10-15 formula, ante, at 35, n. 19,1 am not convinced that the new sources simply “reiterate [d]” opportunities previously available. There is, for example, no dispute that several of the new sources of gain time have no analogues in the previous statutory or administrative scheme. See, e. g., Fla. Stat. §944.275 (2) (e) (1979) (up to six days of gain time per month because of age, illness, infirmity, or confinement for reasons other than discipline); § 944.275 (3) (a) (up to six days per month for inmates who diligently participate in an approved course of academic or vocational study). Other new statutory provisions which had only administrative counterparts improved substantially on the availability of gain time. For example, under the old administrative system, an inmate could receive from 1 to 15 days of gain time per month for constructive labor, Fla. Admin. Code, Rule 10B-20.04 (1) (1975), while under the new statutory scheme, an inmate can receive up to 1 day of gain time for every day of constructive labor, Fla. Stat. § 944.275 (2) (b) (1979). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9428199. Public record. Not legal advice.