Amicus Curiae Brief — Collins v. Youngblood

| Se ON Oe

FILEDS

+) | JAN 25° 1990

No. 89-742 -~ JOSEPH ©. SPANIOL, JR

CLERK 4

In the Supreme Court of the United States

OCTOBER TERM, 1989

JAMES A. LYNAUGH, DIRECTOR,

TEXAS DEPARTMENT OF CORRECTIONS, PETITIONER

v.

CARROLL F. YOUNGBLOOD

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING PETITIONER

KENNETH W. STARR

Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

- JAMES A. FELDMAN

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

® BEST AVAILABLE COPY fm

QUESTION PRESENTED

Whether the retroactive application of a purely pro-

cedural change in the law that does not render an other-

wise innocent act criminal, increase the punishment for a

crime, or deprive the defendant of any defense otherwise

available violates the constitutional prohibition on ex post

facto laws.

(I)

TABLE OF CONTENTS

Page

Interest of the United States ....................... l

en cc cc ccccccececcceecs 2

EET ne 5

Argument:

The Ex Post Facto Clauses of the Constitution do

not prohibit retrospective application of the pro-

cedural statute at issue in this case ........ idwes 6

A. The constitutional prohibition of ex post facto

laws extends only to statutes that on their face

or in effect retrospectively alter the definition

of crimes or the prescription of punishments . . 6

B. Because the statute at issue here docs not alter

the definition of any crime or the prescription

of any punishment, its retrospective applica-

tion to respondent’s case is constitutional ..... 13

Se 19

TABLE OF AUTHORITIES

Cases:

Ballew v. Georgia, 435 U.S. 223 (1978) .......... 10

Beazell v. Ohio, 269 U.S. 167 (1925) ............ 7, 8, 16

Bogany v. State, 661 S.W.2d 957 (1983) .......... 2, 14

Bradley v. Richmond School Board, 416 U.S. 696

ESR ARR CE 8 sa a 13

Burgess v. Salmon, 97 U.S. 381 (1878) ........... 11

Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) ........ 6, 12

Cummings v. Missouri, 71 U.S. (4 Wall.) 277

a 10, 11

Dobbert v. Florida, 432 U.S. 282 (1977) ......... 8, 9,

16, 17

Duncan v. Louisiana, 391 U.S. 145 (1968) ........ 10

(III)

a

IV Vv

Cases — Continued: Page Statutes — Continued: Page

Duncan v. Missouri, 152 U.S. 377 (1894) ......... 7,9 Amend. VI............ Re Pee aes 9, 10

Garland, ex parte, 71 U.S. (4 Wall.) 333 (1866) .... 10-11 Tex. Code Crim. Proc. Ann.:

Gibson v. Mississippi, 162 U.S. 565 a 9, 16 Art. 11.07 (Vernca 1977 & Supp 1990) 3

Gut v. State, 76 U.S. (9 Wall.) 35 (1869) ......... 7 Art. 37.07 (Vernon 1981 & Supp. 1990)... 3

Hopt v. Utah, 110 U.S. 574 (1884) ............. 7, 8, 12 Art. 37.10(b) (Vernon Supp 1990) Sm; 3 4, 13

Iseton v. State, 472 N.E.2d 643 (Ind. App. 1984) .. 10 : ve 14. 15 : 17 18

Johnson, ex parte, 697 S.W.2d 605 (Tex. Crim. es

Pe i 4A OT es OO 2, 3, 14 Tex. Penal Code Ann. § 12.42(c) (Vernon 1974) .. 2

Kring v. Missouri, 107 U.S. 221 (1882) ........... 11

Mallett v. North Carolina, 181 U.S. 589(1901).... 5, 9,

16, 18

McSears v. State, 247 Ga. 48, 273 S.E.2d 847 :

DE nbiseshikssddlddsaabatinnebbiceseéeve 10

Miller v. Florida, 482 U.S. 423 (1987) ............ 8, 11,

17, 18

Nilson Van & Storage Co v. Marsh, 755 F.2d 362

(4th Cir.), cert. denied, 474 U.S. 818 (1985) .... 16

Rooney v. North Dakota, 196 U.S. 319 (1905) .... 7

State v. Maresca, 173 Conn. 450, 377 A.2d 1330

Dp Keuniauwuetastatenssesndecediosece< 10

, State v. McIntosh, 23 Ariz. App. 246, 532 P.2d

in ee enna sewicces 10

Thompson v. Missouri, 171 U.S. 380 (1898) ...... 6, 8, -

11, 16

Thompson v. Utah, 170 U.S. 343 (1898) ......... 4,9, 10

Thorpe v. Housing Authority, 393 U.S. 268

DT tchdiuds cuduheetbblne dst ncesceaée 13

United States v. Schooner Peggy, 5 U.S. (1 Cranch)

EE SE ae 13 -

Weaver v. Graham, 450 U.S. 24 (1981) .......... 8, 11,

12, 17

Williams v. Florida, 399 U.S. 78 (1970) .......... 10

Constitution and statutes: ‘

U.S. Const.:

Art. I (Ex Post Facto Clauses):

ESS ee ee ees l

PE UGabebeeee desde dieudsansdes l

Jn the Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-742

JAMES A. LYNAUGH, DIRECTOR,

TEXAS DEPARTMENT OF CORRECTIONS, PETITIONER

V.

CARROLL F. YOUNGBLOOD

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case presents the question whether a statute man-

dating a change in criminal procedure may be applied to

the prosecution of crimes committed before the statute

was enacted. The Ex Post Facto Clauses of the Constitu-

tion, Art. I, § 9, Cl. 3, and Art. I, § 10, Cl. 1, apply to

both the federal government and the States. The United

States therefore has a significant interest in the resolution

of this case, which may shed light on the question of when

Statutes that affect the conduct of criminal trials may be

applied retroactively.

(1)

2

STATEMENT

1. Under Texas criminal procedure, the defendant has

a right to have the jury, rather than the court, determine

punishment after a verdict of guilty has been returned.

Tex. Code Crim. Proc. Ann. art. 37.07 (Vernon 1981 &

Supp. 1990). In accordance with this provision, after re-

spondent was convicted of aggravated sexual abuse, a jury

trial was held on the issue of punishment. The judge in-

structed that respondent could be sentenced to prison for

not less than 15 nor more than 99 years, and that respond-

ent could be fined up to $10,000. Pet. App. B1. The jury

assessed punishment of life imprisonment and a $10,000

fine. The jury returned its verdict on March 17, 1982. Pet.

App. D2. _

On November 23, 1983, the Texas Court of Criminal

Appeals decided Bogany v. State, 661 S.W.2d 957 (en

banc), in which it held that the Texas legislature had not

authorized a monetary fine to be assessed under Tex.

Penal Code Ann. § 12.42(c) (Vernon 1974), the sentencing

provision under which the Bogany defendant, as well as

respondent, had been sentenced. The court found that,

because Texas law did not grant authority to appellate

courts to reform a jury verdict, the only remedy for the

unauthorized fine was to remand the case for a new trial,

at which the jury would be instructed that no fine could be

assessed. 661 S.W.2d at 959. See also Ex parte Johnson,

697 S.W.2d 605 (Tex. Crim. App. 1985).

On August 13, 1984, respondent’s conviction was af-

firmed in an-unpublished opinion. Pet. App. Cl. On

September 19, 1984, respondent filed an application for a

writ of habeas corpus, relying on the Bogany case. On

April 2, 1985, the trial court recommended that the writ

issue.' Pet. App. Al-A2. On June 11, 1985, however, a

' Under Texas law, only the Court of Criminal Appeals may grant a

3

Statute went into effect to remedy the provlem created by

Bogany. The statute provided that if a jury assesses a

punishment that is authorized by law and a punishment

that is not authorized by law, the trial or appellate court

shall “reform the verdict to show the punishment author-

ized by law and omit the punishment not authorized by

law.” Tex. Code Crim. Proc. Ann. art. 37.10(b) (Vernon

Supp. 1990). Therefore, on October 16, 1985, the Texas

Court of Criminal Appeals applied the new statute to re-

spondent’s case, denied respondent's petition for a writ of

habeas corpus, and reformed the verdict to omit the

$10,000 fine. Pet. App. B1-B4.

Respondent then sought a writ of habeas corpus from a

federal district court. He alleged that applying Article

37.10(b) to his case violated the constitutional prohibition

on ex post facto laws.? The district court denied the peti-

tion, holding that “the retroactive application fof Article

37.10(b)] * * * does not criminalize and punish a prior ac-

tion, aggravate a crime * * *, inflict a greater punishment,

nor alter the legal rules of evidence,” and therefore “does

not fall within the classic definition of an ex post facto

law.” Pet. App. C5-C6.

The Fifth Circuit reversed. The court rejected the State’s

argument that a statute cannot violate the Ex Post Facto

Clauses unless it punishes as a crime a previously innocent

writ of habeas corpus. Tex. Code Crim. Proc. Ann. art. 11.07 (Ver-

non 1977 & Supp. 1990).

? In both the district court and the court of appeals, the State

argued that respondent had not exhausted his state remedies. Both

courts rejected this argument, on the ground that it was clear after the

decisions of the Court of Criminal Appeals in Ex parte Johnson, 697

S.W.2d 605 (Tex. Crim. App. 1985), and in respondent’s own case

that any further recourse to state remedies would be futile. See Pet.

App. C3-C4, D3-D4. The petition for a writ of certiorari does not

renew the contention that respondent fatied to exhaust state remedies.

4

act, makes more burdensome the punishment of a crime

after its commission, or deprives the defendant of a

defense available at the time the act was committed. Pet.

App. D7. Instead, the court ruled that even “statutes regu-

lating procedure will violate the Ex Post Facto clause if

they deprive the defendant of a ‘substantial right given to

him by the law in force at the time to which his guilt

relates.’ ” Pet. App. D6 (quoting Thompson v. Utah, 170

U.S. 343, 352 (1898)). Thus, because there was no dispute

that Article 37.10(b) was applied retrospectively in this

case, the “salient issue,” as the court of appeals saw it, was

simply whether “the law operated to disadvantage the ac-

cused in the exercise of a substantial right or protection

that he previously enjoyed.” Pet. App. D8. Because, in the

court’s view, the statute “altered [respondent’s] right to re-

trial—a substantial right—to his material disadvantage,”

the court of appeals directed that respondent be afforded a

new trial. Pet. App. D10.

Judge Jones wrote a concurring opinion in which she

suggested that the distinction between “mere modes of

procedure” that may be applied retrospectively and

“substantial or vital protections” that may not is “a wobbly

one.” Pet. App. D10. She noted that, if the Ex Post Facto

Clauses bar even those “ ‘procedural’ changes that do not

affect the traditional ex post facto concerns,” she could

find no “overriding principle” on which to disagree with

the panel’s decision. Pet. App. D12. Judge Gee also wrote

a brief concurring opinion. Agreeing with Judge Jones’

observations concerning the “modes of procedure” cases,

he observed that the cases “constitute[ ] more of a bright

spectrum than a bright line.” Pet. App. DIO.

5

SUMMARY OF ARGUMENT

The constitutional prohibition of ex post facto laws is a

limitation only on statutes that on their face or in effect

retrospectively define crimes or prescribe punishments.

Although statutes labeled “procedural” may fall within the

proscription, they do so only when they operate retro-

spectively to alter the definition of a crime, to restrict the

scope of a defense, or to increase the prescribed punish-

ment. Accordingly, this Court has routinely upheld retro-

spective application of procedural changes, regardless of

whether they disadvantage defendants in particular cases.

The statute at issue in this case was on its face and in ef-

fect a procedural statute. It did not on its face or in effect

modify the definition of any crime or change the pre-

scribed punishment for any crime. The statute simply

granted appellate courts the authority to correct certain

kinds of errors in criminal judgments. By enlarging the

authority of the appellate courts, the statute denied re-

spondent the windfall of a new trial that he would have

obtained under prior procedures. As such, the case is gov-

erned by this Court’s decision in Mallett v. North

Carolina, 181 U.S. 589 (1901), which held that retro-

spective application of a statute that enlarged the scope of

appellate review was constitutional.

To permit retrospective application of the Texas statute

does no violence to the values underlying the Ex Post Fac-

to Clauses. Because the new statute did not alter the

definition of respondent’s crime or the punishment pre-

scribed for it, Texas law gave respondent fair warning; he

could therefore have had no reliance interest in the

unusual Texas procedural rules that were in effect at the

time he committed the crime. Nor did the enactment of a

6

procedural remedy such as the statute at issue here, appli-

cable to a wide range of different cases, threaten arbitrary

or vindictive action by the legislature to punish a par-

ticular unpopular individual or group.

ARGUMENT

THE EX POST FACTO CLAUSES OF THE CONSTITUTION

DO NOT PROHIBIT RETROSPECTIVE APPLICATION OF

THE PROCEDURAL STATUTE AT ISSUE IN THIS CASE.

A. ‘Ine Constitutional Prohibition Of Ex Post Facto Laws Ex-

tends Only To Statutes That On Their Face Or In Effect

Retrospectively Alter The Definition Of Crimes Or The

Prescription Of Punishments.

In an oft-quoted passage in his opinion in Calder v.

Bull, 3 U.S. (3 Dall.) 386 (1798), Justice Chase enumer-

ated the legislative acts that fall within the prohibitions of

the Ex Post Facto Clauses of the Constitution:

“ist. Every 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 /ega/ rules of evidence,

and receives less, or different, testimony, than the law

required at the time of the commission of the offence,

in order to convict the offender.”

3 U.S. at 390 (emphasis in original). Aside from the fourth

category, which is not at issue in this case,’ the prohibition

3 Insofaras the fourth category is seen to prohibit the application of

new evidentiary rules to cases involving conduct that occurred before

the new rules were promulgated, it has been overtaken by succeeding

cases. See, e.g., Thompson v. Missouri, 171 U.S. 380 (1898) (retro-

7

of ex post facto laws focuses on legislative changes in the

definition of crimes, punishments, and defenses. The

court of appeals erred in mistaking the marrow constitu-

tional prohibition of ex post facto legislation for a broad-

ranging proscription of any change in the legal system that

may adversely affect a defendant whose criminal conduct

took place before the change was made. This drastic ex-

pansion of the scope of the ex post facto prohibition,

which is not supported by this Court’s cases and which

would cause substantial confusion and disuniformity in

the administration of the criminai law, should be rejected.

1. Although the Calder v. Bull explanation has been

formulated in slightly different ways in later cases, the

Court has consistently placed central emphasis on the core

prohibition of retrospective changes in either the defini-

tion of crimes (and available defenses) or the severity of

punishments. See, e.g., Beazell v. Ohio, 269 U.S. 167, 169

(1925); Rooney v. North Dakota, 196 U.S. 319, 325

(1905); Duncan v. Missouri, 152 U.S. 377, 382 (1894); Gut

v. State, 76 U.S. (9 Wall.) 35 (1869).

It is true, as the court of appeals noted, that the prohibi-

tion is not limited to statutes that on their face modify

definitions of particular crimes and the punishments speci-

fied for them. See Pet. App. D6-D8. For example, in

Beazell v. Ohio, the Court noted that “there may be pro-

cedural changes which operate to deny to the accused a

defense available under the laws in force at the time of the

commission of his offense, or which otherwise affect him

in such a harsh and arbitrary manner as to fall within the

constitutional prohibition.” 269 U.S. at 170. See also

active application of statute making admissible handwritten

documents as handwriting exemplars held constitutional); Hopt v.

Utah, 110 U.S. 574, 588-590 (1884) (retroactive application of statute

making felons competent to testify at trial held constitutional).

Miller v. Florida, 482 U.S. 423, 433 (1987); Weaver v.

Graham, 450 U.S. 24, 29 (1981). Yet, statements that pro-

cedural changes can be within the reach of the Ex Post

Facto Clauses have generally been coupled with recogni-

tion that the Clauses were not intended to limit “legislative

control of remedies and modes of procedure which do not

affect matters of substance.” Beazell, 269 U.S. at 171; see

also Miller, 482 U.S. at 433; Dobbert v. Florida, 432 U.S.

282, 293 (1977). The Court’s cases certainly do not support

the view that the Ex Post Facto Clauses prohibit all retro-

spective procedural changes that might operate to the

detriment of a criminal defendant.

In short, although there may be procedural changes that

require scrutiny under the Ex Post Facto Clauses, the pur-

pose of such scrutiny ordinarily is to determine whether

such changes, although labeled “procedural,” in fact

operate to modify the definitions of crimes and punish-

ments. Similarly, although there may be cause to inquire

for purposes of the ex post facto prohibition whether pro-

cedural changes “affect matters of substance,” the “mat-

ters of substance” at issue are those that are the special

concern of the Ex Post Facto Clauses — changes in legisla-

tive definitions of crimes and defenses and prescriptions of

punishment.

2. The Court has routinely upheld retrospective ap-

plication of procedural changes when those changes did

not on their face or in effect modify definitions of crimes

or punishments. For example, the Court has sanctioned

the retrospective application of a statute that eliminated a

criminal defendant’s right to insist on a severance from his

co-defendants, Beazell v. Ohio, 269 U.S. 163 (1925), and it

has upheld statutes that reversed evidentiary rules that had

rendered handwriting exemplars inadmissible, Thompson

v. Missouri, 171 U.S. 380 (1898), or made convicted felons

incompetent to testify, Hopt v. Utah, 110 U.S. 574, 588-

)

t)

9

590 (1884). Similarly, the Court has upheld statutes that.

changed the qualifications of jurors, Gibson v. Mississip-

pi, 162 U.S. 565 (1896), modified the composition of ap-

pellate panels, Duncan v. Missouri, 152 U.S. 377 (1894),

and gave the State a right to appeal adverse decisions of an

intermediate appellate court, Mallett v. North Carolina,

181 U.S. 589, 592-597 (1901).

The Court’s most recent precedent dealing with an ex

post facto challenge to procedural changes, Dobbert v.

Florida, 432 U.S. 282 (1977), is consistent with this line of

cases. In Dobbert, the Court upheld a new death-penalty

sentencing statute that substantially altered the division of

responsibility between judge and jury for imposing the

death sentence.

_ Any of the changes at issue in this line of cases could

determine whether a particular defendant is found inno-

cent or guilty, or could, as in Dobbert, dramatically affect

his punishment. Nonetheless, because none of them on

their face or in effect modified the definitions of crime or

the legislative prescriptions of punishment, all of them

were held to be “procedural,” and therefore not in viola-

tion of the Ex Post Facto Clauses.

The court of appeals relied primarily on Thompson v.

Utah, 170 U.S. 343 (1898), to support its conclusion that

the Ex Post Facto Clauses forbid retrospective application

of procedural statutes. See Pet. App. D6. By generalizing

from that unusual case, the court erred. Thompson arose

at the time Utah was undergoing a change in status from

Territory to State. While Utah was a Territory, defendants

were entitled to a jury of 12; when it became a State, a

local statute limited the jury’s size to eight persons. The

Court held that the right to a 12-person jury that obtained

during the territorial period was required by the Sixth

Amendment, and that a person who committed a crime

10

during that period could not be tried by a jury of less than

12.4

The Thompson Court was plainly concerned with the

State statute’s impact on the defendant’s Sixth Amendment

right to trial by jury at a time long before Duncan v. Loui-

siana, 391 U.S. 145 (1968), which applied that right to the

States. The Court’s analysis is premised on its view that the

Utah statute eliminated a “right that was regarded, at the

time of the adoption of the Constitution, as vital for the

protection of life and liberty, and which he enjoyed at the

time of the commission of the offense charged against

him.” 170 U.S. at 352. The issue that the Court found to

be presented in Thompson —a procedural change that de-

prived the defendant of a constitutional right he had pre-

viously enjoyed—arose only because of the unusual cir-

cumstances of that case and is unlikely to recur. For that

reason, Thompson should not be given broad application

to modern ex post facto claims. This case, for example,

has none of the constitutional overtones that animated the

Court’s analysis in Thompson.

The other cases on which the court of appeals relied

similarly provide no support for a broad extension of the

prohibition of ex post facto laws to preclude retrospective

application of procedural statutes. Cummings v. Missouri,

71 U.S. (4 Wall.) 277 (1866), and Ex parte Garland, 71

* The Court’s assumption thai the Sixth Amendment requires a

12-person jury has been undercut by Williams v. Florida, 399 U.S. 78

(1970). Insofar as the Thompson Court relied on that assumption, its

result may not survive Williams in any event. Cf. Ballew v. Georgia,

435 U.S. 223, 230 (1978) (opinion of Blackmun, J.) (Thompson was

“set to one side” in Williams). See also State v. Mcintosh, 23 Ariz.

App. 246, 532 P.2d 188 (Ct. App. 1975); State v. Maresca, 173 Conn.

450, 453, 377 A.2d 1330, 1332-1333 (1977); Iseton v. State, 472

N.E.2d 643, 650-653 (Ind. App. 1984). But see McSears v. State, 247

Ga. 48, 48-52, 273 S.E.2d 847, 848-850 (1981).

U.S. (4 Wall.) 333 (1866), involved post-Civil War legisla-

tion disabling individuals from following certain profes-

sions unless they took oaths that they had not engaged in

or encouraged armed aggression against the United States.

To be sure, neither statute directly related to the definitior

of crimes or the prescription of punishments, as the cour

of appeals recognized. Pet. App. D8. Yet, both statutes

imposed a penalty —the deprivation of the right to pursue

one’s occupation—that was seen as comparable to a

criminal sanction. Cummings, 71 U.S. (4 Wall.) at

327-328; Garland, 71 U.S. at 377-378. See Burgess v.

Salmon, 97 U.S. 381, 385 (1878). Thus, both cases fall well

within the traditional proscription of retrospective appli-

cation of statutes defining criminal conduct and punish-

ment. Because neither case involved a statute that could

reasonably be characterized as “procedural,” neither

statute lends any support to the result the court of appeals

reached in this case.°

Finally, the court of appeals correctly cited two recent

cases for the proposition that two elements —retrospec-

tivity and disadvantage to the defendant—are “critical

* * * for a law to fall within the ex post facto prohibition.”

Pet. App. D4 (citing Miller v. Florida, 482 U.S. 423

(1987), and Weaver v. Graham, 450 U.S. 24, 29 (1981)).

’ Kring v. Missouri; 107 U.S. 221 (1882), is sometimes seen as in-

volving a “procedural” statute barred by the Ex Post Facto Clauses. In

Kring, the Court held that a statute eliminating a rule that a guilty plea

to a second-degree murder was an acquittal of first-degree murder

could not be applied retrospectively. Yet, as the Court later explained,

the question in Kring was “whether the statute of Missouri deprived

the defendant of any right of defence which the law gave him when the

act was committed.” Thompson v. Missouri, 171 U.S. 380, 384 (1898).

Thus, the Kring result is best seen as an instance of the ban on retro-

spective removal of defenses, a traditional concern closely related to

the general proscription of retrospective changes in the definition of

criminal conduct. See generally Thompson, 171 U.S. at 383-384.

12

Yet, although both of these elements are essential for a law

to be held unconstitutional as ex post facto, neither case

stands for the broad proposition that retrospectivity and

disadvantage to the defendant are sufficient, without

more, to render a procedural statute unconstitutional.

In Weaver, the Court held that a statute reducing the

amount of automatic “gain time” to which a prisoner is en-

titled may not be applied retrospectively. The case clearly

involved provisions affecting either the length of time the

prisoner would serve or the conditions of his confinement.

See 450 U.S. at 32. The statute thus fell directly within the

Calder v. Bull proscription of any law that “changes the

punishment, and inflicts a greater punishment, than the

law annexed to the crime, when committed.” 3 U.S. (3

Dall.) at 390 (emphasis in original).

In Miller, the Court héld invalid retrospective appli-

cation of changes in the State’s sentencing guidelines that

attached a stiffer presumptive sentence to the defendant’s

crime. The analysis in Miller further emphasizes the need

to focus on definitions of crimes and prescriptions of

punishment in cases raising ex post facto challenges. The

Court’s conclusion that retrospectivity and disadvantage

to the defendant are the critical elements in determining

whether application of the new sentencing guidelines was

constitutional does not lead to the conclusion that retro-

spectivity and disadvantage alone—in a case in which a

change in prescribed sentences is not at issue—are suffi-

cient to invalidate application of a statute. The Court

made quite plain that “no ex post facto violation occurs if

the change in the law is merely procedural and does ‘not

increase the punishment, nor change the ingredients of the

offense or the ultimate facts necessary to establish guilt.’ ”

482 U.S. at 433 (quoting Hopt v. Utah, 110 U.S. 574, 590

(1884)). Although the Court recognized that a statute that

“takes a seemingly procedural form” may operate to in-

13

crease punishment or change the ingredients of the of-

fense, ibid., the Court did not in any way suggest that pro-

cedural changes that do not have those effects may not be

applied retrospectively.

In short, the test for an ex post facto violation, derived

from this Court’s cases over the past 175 years and only

recently restated in Miller, focuses on changes in the

definitions of crime and prescriptions of punishment. If a

statute explicitly changes the definition of a crime or the

prescription of punishment for criminal conduct, it may

not be applied retrospectively if it substantially dis-

advantages the defendant. If a statute appears to be pro-

cedural, but in effect operates to change the definition of a

crime or the prescription of punishment, it too may be un-

constitutional under similar conditions. But if a statute is

procedural in nature and does not operate to change the

definition of a crime or the prescription of punishment, it

fits squarely within the ordinary rule that a court should

apply the law as it finds it. See Bradley v. Richmond

School Board, 416 U.S. 696, 711 (1974); Thorpe v. Hous-

ing Authority, 393 U.S. 268, 281 (1969); United States v.

Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801).

B. Because The Statute At Issue Here Does Not Alter The

Definition Of Any Crime Or The Prescription Of Any

Punishment, Its Retrospective Application To Respondent's

Case Is Constitutional.

1. Because the statute at issue here— Article 37.10(b)

of the Texas Code of Criminal Procedure — is a legislative

change relating to the allocation of responsibility for cor-

recting a trial error, it is appropriately categorized as a

“procedural” statute for purposes of the ex post facto pro-

hibition. The statute does not on its face or in effect

change in any way the conduct that is deemed criminal

under Texas law, nor does it alter the punishment pre-

14 .

scribed for such conduct. Therefore, it may be applied in

the adjudication of cases involving criminal conduct that

occurred prior to its enactment.

Article 37.10(b) was intended to address the problem

created by the decision of the Texas Court of Criminal Ap-

peals in Bogany v. State, 661 S.W.2d 957 (1983) (en banc).

Like respondent, the defendant in Bogany had been con-

victed of a serious felony and sentenced by the jury to a

term of imprisonment and a $10,000 fine, despite the fact

that Texas law did not authorize a fine for his offense. The

Bogany court held that under Texas law “[t}he authority of

a court on appeal to reform the judgment and sentence

does not extend to the situation” in which the verdict was

“unauthorized by law.” 661 S.W.2d at 958. See also Ex

parte Johnson, 697 S.W.2d 605, 607 (Tex. Crim. App.

1985). Because there was no way to correct the verdict, the

case was remanded for a new trial.

‘As set forth in Bogany, Texas law prior to the enact-

ment of Article 37.10(b) gave the courts extremely limited

authority with respect to punishment imposed by a jury.

The courts apparently had authority only to enter the

sentence precisely as determined by the jury, or to reverse

the sentence and remand for an entirely new trial if any

element of the sentence was illegal. The judgment could

not be modified to eliminate the unauthorized element of

the punishment while keeping the valid portion of the

judgment intact. See Bogany, 661 S.W.2d at 958.

A new trial in the Bogany situation was required simply

because no judicial body had authority to correct er-

roneous sentences. The Bogany rule thus resulted in a pure

windfall to the defendant.* He obtained another oppor-

* Indeed, the legislature’s decision to enact Article 37.10(b) remedied

a dangerous disincentive to correct trial error created by the Bogany

decision. A defendant who knew that the trial court would instruct the

15

tunity to be found innocent, despite the fact that there was

no error claimed with respect to the jury’s determination

of guilt. In addition, he gained another opportunity to ob-

tain a shorter sentence of imprisonment, despite the fact

that there was no infirmity claimed with respect to the

jury’s determination of the appropriate term of imprison-

ment. The new trial could proceed exactly as the old trial,

with the same evidence, the same arguments, and the same

instructions; the sole difference in the trials was that the

jury at the second trial would not be instructed that it

could impose a fine, and presumably would not do so.

Article 37.10(b) eliminated that windfall by granting the

courts authority to conform a jury’s sentence to law, in cir-

cumstances in which one element of the punishment

assessed by the jury is unauthorized. In so doing, the

statute simply enlarged the scope of appellate review and,

in particular, added an additional remedy to correct an

unauthorized verdict. It was never a part of the punish-

ment prescribed for respondent’s crime that, if the jury

assesses a punishment one of whose elements is unauthor-

ized by law, the perpetrator is entitled to another oppor-

tunity to prove his guilt. Both before and after the change,

the punishment authorized for respondent’s crime was 15

to 99 years’ imprisonment. In addition, both before and

after the change, respondent was entitled to have his

sentence within that range determined by a jury, and it was

so determined.

2. Because Article 37.10(b) affects only the law of

remedies — and in particular the allocation of authority for

jury that it could assess a punishment that was in fact unauthorized

would be expected not to object and, indeed, to encourage submission

of the faulty instruction. For if the instruction was submitted and the

defendant convicted, the defendant would automatically gain the right

to a new trial and, thus, a new opportunity to have a jury find him

innocent.

16

correcting trial errors—application of the statute in this

case is strongly supported by the numerous cases recog-

nizing that changes in the remedies available for correcting

trial defects are procedural and thus may be applied retro-

spectively. See, e.g., Dobbert v. Florida, 432 U.S. 282, 293

(1977); Beazell v. Ohio, 269 U.S. 167, 171 (1925) (Ex Post

Facto Clauses not intended “to limit the legislative control

of remedies”); Thompson v. Missouri, 171 U.S. 380, 386

(1898) (“Remedies must always be under the control of the

legislature.”); Gibson v. Mississippi, 162 U.S. 565, 590

(1896). Of particular relevance is Mallett v. North

Carolina, 181 U.S. 589 (1901). In Mallett, the intermediate

State appellate court overturned the defendant’s convic-

tion. Although at the time of the crime the State did not

have authority to take an appeal from the intermediate ap-

pellate court to the state Supreme Court, the State relied

on a newly enacted statute to take such an appeal. This

Court held that, despite the fact that applying the new

Statute would plainly operate to the disadvantage of the

defendant, the statute was not an ex post facto law within

the meaning of the constitutional prohibition. 181 U.S. at

597.7

The reasoning of the court of appeals contradicts this

Court’s holding in Mallett. The court of appeals applied a

test under which any retrospective change that “material-

[ly] disadvantage[d]” the defendant or denied him a “sub-

stantial ‘protection’” was prohibited, regardless of

whether it affected the definition of the crime or the

legislatively prescribed punishment. Pet. App. D9. But the

right to an acquittal that the Mallett defendant would have

received under prior law is certainly more “substantial”

than “the right [at issue in this case] to have one’s guilt

” Mallett was recently applied in Nilson Van & Storage Co. v.

Marsh, 755 F.2d 362 (4th Cir.), cert. denied, 474 U.S. 818 (1985).

17

retried before a different jury —with its attendant possi-

bility that the outcome might be different the second time

around.” /bid. Thus, the decision of the court of appeals

in this case cannot be reconciled with this Court’s decision

in Mallett.

In both Mallett and this case, prior law gave the de-

fendant a windfall when certain types of errors occurred.

In Mallett, the windfall arose when an intermediate ap-

pellate court erroneously overturned a conviction, while in

this case it arose when the jury erroneously assessed an

unauthorized punishment. In both cases, a statute enacted

after the date of the defendant’s crime gave the State a new

remedy for error —appeal to the state Supreme “ourt in

Mallett, reformation of the verdict in this case—that had

not existed under prior law. The Court’s decision in

Mallett should therefore control the result in this case.

3. Applying Article 37.10(b) to respondent’s case is

consistent with the values underlying the Ex Post Facto

Clauses. Most important of those values is the need “to

assure that legislative Acts give fair warning of their effect

and permit individuals to rely on their meaning until ex-

plicitly changed.” Weaver v. Graham, 450 U.S. 24, 28-29

(1981). See also Miller v. Florida, 482 U.S. 423, 430

(1987); Dobbert v. Florida, 432 U.S. 282, 297-298 (1977).

It cannot reasonably be argued that respondent, or any

other individual, relied in any way on the Bogany quirk in

Texas procedural law before undertaking his criminal con-

duct. Both before and after the enactment of Article

37.10(b), Texas law gave precisely the same answer to the

question whether respondert’s conduct was criminal and

what punishment ought to be prescribed for that conduct.

Therefore, application of Article 37.10(b) in this case

in no way deprived respondent of fair warning or intruded

upon any reasonable reliance interest.

The other important value underlying the Ex Post Facto

Clauses is the need for protection against the danger of ar-

bitrary and vindictive legislation. Miller v. Florida, 482

U.S. at 430; Weaver v. Graham, 450 U.S. at 29 (citing

cases). In this case, however, there is no reason to believe

that the State legislature, in enacting Article 37.10(b), in-

tended to do anything other than remedy a legal anomaly

without prejudicing any substantial right of any defend-

ant. As with procedural changes generally, the breadth of

their application militates against any suggestion that

either animus toward particular defendants or the use of

the criminal law as a pretext to deprive disfavored in-

dividuals of their liberty underlay enactment of the

statute.

As the Mallett Court recognized, “it would create end-

less confusion in legal proceedings if every case was to be

conducted only in accordance with the rules of practice

*** in existence when its facts arose.” 181 U.S. at

596-597 (citation omitted). Defendants do not have a

vested right in every important aspect of the procedural

system in effect at the time the crime was committed.

Because the decision of the court of appeals would create

just such a right out of the Constitution’s ex post facto

prohibitions, it should be reversed.

19

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

JAMES A. FELDMAN

Assistant to the Solicitor General

JANUARY 1990

w U.S. GOVERNMENT PRINTING OFFICE: 1990—262-203/00730