# Respondents Brief — California Dept. of Corrections v. Morales

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1995
- **Citation:** 514 U.S. 499

## Text

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QUESTION PRESENTED

Does a State violate the Ex Post Facto Clause by
retroactively eliminating statutorily-mandated opportunities
for consideration of a prisoner’s release on parole?

QUESTION PRESENTED
TABLE OF CONTENTS
TABLE OF AUTHORITIES
STATEMENT OF THE CASE
SUMMARY OF ARGUMENT
ARGUMENT

I.

TABLE QF CONTENTS

ELIGIBILITY FOR PAROLE IS AN
INTEGRAL PART OF PUNISHMENT

FOR EX POST FACTO PURPOSES .....

RETROACTIVE POSTPONEMENT OF
A PRISONER’S STATUTORY
OPPORTUNITY FOR PAROLE
CONSIDERATION INCREASES
PUNISHMENT IN VIOLATION OF
THE EX POST FACTO CLAUSE ......

A. Penal Code § 3041.5(b)(2) Effectively
Postpones Morales’ Parole Eligibility
By Delaying Morales’ Parole
Consideration Hearings...........

B. Retroactive Constraints On Parole
Consideration, And Thus On Parole
Eligibility, Violate The Ex Post Facto
SEE s'6 case noes seu eeaeuees

58 808 88.62 8 a2 SS 86a. e 2 ae

C. Section 3041.5(b)(2)’s So-Called
"Procedural Safeguards" Do Not
Exempt It From Ex Post Facto
Se o0n6s64 chbebebeacacs

D. Petitioners Cannot Insulate The 1981
Amendment To § 3041.5(b)(2) From
Ex Post Facto Scrutiny Merely By
Labelling The Change “Procedural.” . .

Ill. THERE IS NO DE _ MINIMIS
EXCEPTION TO THE EX POST
PUP GED. c's cdcbeenséee sues

CELE ce bveusecdauceswedesdvern

34

TABLE OF AUTHORITIES

CASES
Page
Akins v. Snow, 922 F.2d 1558 (11th Cir.) cert.
denied, 501 U.S. 1260 (1991) ......... 3, 14,
32, 43

Bailey v. Gardebring, 940 F.2d 1150 (8th Cir.
1991), cert. denied, 112 S. Ct. 1516 (1992) 34

Beazell v. Ohio, 269 U.S. 167 (1925) ...... 36
Beebe v. Phelps, 650 F.2d 774 (Sth Cir. Unit A
EE Stow dsodévendténcebevebices 14, 32
Board of Pardons .v. Allen, 482 U.S. 369
CD -eddc nnsesndceudee¥eue vate 41
Burnside v. White, 760 F.2d 217 (8th Cir.),
cert. denied, 474 U.S. 1022 (1985) ...... 14
Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) .. 6,8
Chatman v. Marquez, 754 F.2d 1531 (9th Cir.),
cert. denied, 474 U.S. 841 (1985) ...... 25
Collins v. Youngblood, 497 U.S. 37 (1990) .. 8, 28,
34, 35,
38
Cummings v. Missouri, 71 U.S. (4 Wall.) 277
Pn NV bu enees choc oushwees oes aoa
Davis v. Mabry, 266 Ark., 487, 585 S.W.2d
Di. See, eg. N.H. Rev. Stat. Ann. § 651:20(I)(a) (Supp. 1993)
(reducing frequency with which violent offenders can petition for
suspended sentences from two to four years); Mich. Comp. Laws Ann.
§ 791.234 (West 1992) (reducing frequency of parole interviews, and
delaying initial interview, for prisoners serving parolable life sentences);
Ill. Rev. Stat. ch. 38, | 1003-3-5(f) (Supp. 1988) (reducing hearing
frequency from every year to every three years where it is deemed not
reasonable to expect that parole would be granted in intervening years);
S.C. Code Ann. § 24-21-645 (Supp. 1987) (reducing hearing frequency
from annually to biannually); Ariz. Rev. Stat. Ann. § 31-411(B) (1978);
Ariz. Comp. Admin. R. & Regs., Rule R5-4-602 (1980) (increasing
permissible interval between commutation hearings from one to two
years); see also Akins v. Snow, 922 F.2d 1558, 1560 & n.5 (11th Cir.)
(discussing 1986 amendment to Georgia parole board regulations changing
parole hearing frequency from one to eight years), cert. denied, 501 U.S.
1260 (1991).

* Petitioners make no attempt to conceal the punitive motivations
behind this trend. Indeed, in their "Summary Of The Argument,” they
expressly urge the Court to "reexamine" the Court’s ex post facto cases
"[iJn view of the national trend towards the implementation of harsher
penalties and conditions of confinement for offenders and inmates.”
(Petitioners’ Brief on the Merits ("Pet’rs Br.") at 11; see also Br. of Amici
The States of Pennsylvania ef a/. at 12-13 & nn. 4-6 (listing statutes
limiting the availability of parole and otherwise imposing harsher, more
rigid sentences).)

expanded the class of prisoners subject to such delays, or
both.*

In accordance with the Penal Code, the Board of
Prison Terms held a hearing to determine Morales’ initial
suitability for parole on July 15, 1989. It found him
unsuitable for release at that time. Applying the 1981
amendment to § 3041.5(b)(2), the Board also found that it
was "not reasonable" to expect parole to be granted to
Morales in the ensuing three years. (Ex. B, Supp. App. to
Pet. for Cert. at 47.) In so doing, the Board eliminated
Morales’ eligibility for a parole reconsideration hearing for
the maximum three-year period permitted.

Following the Board’s three-year deferral, Morales
sought a writ of habeas corpus in the United States District
Court for the Central District of California. Morales argued,
among other things, that the Board’s refusal to consider him
for parole release on ar annual basis violated the Ex Post

* In 1982, the California Legislature amended Penal Code
§ 3041.5(b)(2) to permit the Board of Prison Terms to defer consideration
of any prisoner for two years, rather than one year, if the Board finds it
“not reasonable” to expect a release date to be set in the intervening
period. 1982 Cal. Stat. ch. 1435, § 1. In 1990, the Legislature extended
the Board’s authority to deny parole hearings for up to five years to
offenders convicted of more than two offenses involving the taking of a
life. 1990 Cal. Stat. ch. 1053, § 1. In 1994, the Legislature replaced the
provisions added in 1981 and 1990 with a much broader provision
allowing the Board to defer parole consideration for as many as five years
for all offenders imprisoned for murder. 1994 Cal. Stat. ch. 560, § 1.
Notably, while the California Legislature provided that the 1990
amendment would have prospective effect only, the five-year deferral
authority added in 1994 was made applicable to previously committed
offenses. See 1990 Cal. Stat. ch. 1053, § 2; 1994 Cal. Stat. ch. 560.

Facto Clause of Article I, Section 10, Clause One of the
United States Constitution. A magistrate judge recommended
that the writ be granted as to Morales’ ex post facto claim.
The District Court, however, declined to adopt the magistrate
judge’s recommendation and denied Morales’ ex post facto
claim, as well as the other claims in the petition.

The Ninth Circuit unanimously reversed. Recognizing
that parole in California can occur only after a hearing before
the Board of Prison Terms, the Court of Appeals reasoned
that a law that suspends or eliminates parole hearings
necessarily precludes "the possibility of parole altogether in
the period between hearings." Morales v. California Dep't
of Corrections, 16 F.3d 1001, 1004 (9th Cir. 1994). The
Ninth Circuit rejected the State’s assertion that the burden fell
on Morales to show a substantive entitlement to -- or a
likelihood of -- parole in the intervening years in which he
was denied annual hearings. /d. at 1005. The court reasoned
that imposition of such a burden on the offender would be
inconsistent with both the historical premises of the Ex Post
Facto Clause and longstanding decisions of the Supreme
Court. Quoting this Court’s decision in Weaver v. Graham,
450 U.S. 24, 30 (1981), the Ninth Circuit observed: "*Critical
to relief under the ex post facto clause is not an individual’s
right to less punishment, but the lack of fair notice and.
governmental restraint when the legislature increases
punishment beyond what was prescribed when the crime was
consummated.’" 16 F.3d at 1005. The Court of Appeals
therefore held that a State may not retroactively eliminate or
postpone opportunities for parole cons.Jeration without
violating the Ex Post Facto Clause. In so holding, the Ninth

Circuit joined every other federal appellate court that has
considered the issue.

SUMMARY OF ARGUMENT

The Ex Post Facto Clause enjoins a State from
applying any “law that changes the cunishment, and inflicts
a greater punishment, than the law annexed to [a] crime,
when committed." Calder v. Bull, 3 U.S. (3 Dall.) 386, 390
(1798). Where the State prescribes a fixed quantum of
punishment for an offense, that punishment may ot
retroactively be enhanced. Where the State prescribes ¢
range of possible punishments for a criminal act, and leaves
the selection of the actual punishment imposed in a given
case to a sentencing judge or to corrections officials, the Ex
Post Facto Clause prevents a State from retroactively
imposing a more onerous "standard of punishment" for
previously committed offenses. Lindsey v. Washington, 301
U.S. 397, 401 (1937). In reviewing ex post facto challenges,
this Court has repeatedly rejected assertions by the State that
a more onerous retroactive statute may be upheld because the
offender might have received equivalent punishment under
the predecessor standard. If a State changes the "standard of
punishment” for a previously committed crime and thereby
forecloses opportunities for reduced confinement available to
the offender under prior law, it acts in violation of the Ex
Post Facto Clause. /d. at 401-02.

Under California law, the State’s Board of Prison
Terms decides when a parole-eligible offender will be
released and, by statute, can grant parole to an offender only
following a parole consideration hearing. At the time of
Morales’ offense, if the Board denied release at a prisoner’s

initial parole hearing, state law mandated that the Board
reconsider the prisoner for release each year thereafter.
Following the commission of Morales’ crime, the California
Legislature significantly lengthened the period between parole
reconsideration hearings for offenders in Morales’ position.
Under this amendment, such offenders must serve as many as
three years of confinement before obtaining a parole
reconsideration hearing, rather than the one year period
mandated by the prior statute. This change retroactively
makes Morales’ punishment more onerous in violation of the
Ex Post Facto Clause by eliminating opportunities for parole
release -- and thus for reduced confinement -- available under

the superseded law.

Petitioners incorrectly claim that California’s
retroactive legislation survives ex post facto scrutiny because
it contains "procedural safeguards” that purportedly ensure
that parole consideration is not delayed for those with
"reasonable" chances of gaining parole. Petitioners’ assertion
ignores this Court’s cases holding that an offender need not
have a “vested right" to reduced confinement under the
superseded regime in order to challenge retroactive
application of a more onerous standard of punishment. See,
e.g., Weaver, 450 U.S. at 29. Moreover, petitioners’ proposal
that ex post facto protection against retroactive postponement
of parole eligibility be afforded only to those offenders who
can demonstrate a "reasonable" chance of early release would
involve the federal courts in speculative inquiries into the
probable determinations of administrative bodies in thousands
of individual cases. At bottom, petitioners urge recognition
of a de minimis exception to the Ex Post Facto Clause’s
proscription, but they proffer no support for such an

exception in the text of the Clause itself or in the Court's
decisions interpreting it. The suggestion should be rejected.

ARGUMENT

Nearly two centuries ago, Justice Chase wrote in
Calder v. Bull, 3 U.S. (3 Dall.) at 390, that the Ex Post Facto
Clause prohibits "[e]very law that changes the punishment,
and inflicts a greater punishment, than the law annexed to the
crime, when committed.” The Supreme Court has reaffirmed
this pronouncement time and again. See, e.g, Collins v.
Youngblood, 497 U.S. 37, 43 (1990) ("Legislatures may not
retroactively alter the definition of crimes or increase the
punishment for criminal acts" (emphasis added)). Under
settled principles, a law changing the punishment for existing
crimes is within this prohibition if it makes more onerous the
"standard of punishment" applicable to a previously
committed crime. E.g., Lindsey, 301 U.S. at 401.

The California Legislature retroactively heightened the
standard of punishment applicable to the crime for which
Morales was convicted in 1982 by permitting the Board of
Prison Terms to eliminate, for as many as three years, the
parole reconsideration hearings that were formerly guaranteed
to Morales on an annual basis. This conclusion follows
inescapably from the function of parole release, and from an
unbroken line of cases holding that the Ex Post Facto Clause
enjoins retroactive application of enhanced punishment
standards even to offenders who cannot demonstrate an
entitlement to lesser punishment under prior law.

I. ELIGIBILITY FOR PAROLE IS AN INTEGRAL
PART OF PUNISHMENT FOR EX POST FACTO
PURPOSES.

The possibility of parole is integral to, and materially
mitigates, a criminal defendant’s sentence. This Court's
decisions have recognized that a sentence of imprisonment
that carries the possibility of parole release is less onerous
than a sentence of equivalent length that does not. In light
of the character of parole release and its function in
determining the length of a prisoner’s confinement, a State
may not deprive a prisoner of preexisting eligibility for
parole without enhancing punishment, and thus offending the
Ex Post Facto Clause.

In California, as in many other states, parole
consideration is an essential part of the statutory scheme by
which periods of confinement are fixed. Rather than specify
immutable prison terms, courts mete out sentences qualified
by a statutory parole system defining the requirements for
early release. Through good behavior in prison and through
demonstration of the capacity for responsible behavior in the
community, prisoners may exchange the harshness of physical
confinement for the comparative leniency of parole. And
where judges once attempted to determine the appropriate
period of retribution, or predict the timing of an offender's
rehabilitation, administrative bodies such as California’s
Board of Prison Terms now make these determinations long
after an offender’s sentencing. Parole is, as this Court has
described it, "an established variation on imprisonment of
convicted criminals." Morrissey v. Brewer, 408 U.S. 471,
477 (1972).

The mere possibility of parole release significantly
mitigates criminal punishment. For instance, in Rummel v.
Estelle, 445 U.S. 263 (1980), the Court relied on the bare
possibility of parole to hold that a sentence of life
imprisonment for three theft convictions, each involving less
than $125.00 in property, did not violate the Cruel and
Unusual Punishments Clause of the Eighth Amendment. See
id. at 280-81. Although this Court in Rummel specifically
recognized that the offender’s likelihood of being released on
parole was "slim," the mere fact that the offender’s sentence
technically included the possibility of parole rendered the life
sentence sufficiently less onerous to pass muster under the
Eighth Amendment. /d. at 281.

The Court emphatically reaffirmed this point three
years later in Solem v. Helm, 463 U.S. 277 (1983), when it
found a life sentence that did not carry the possibility of
parole to be "significantly disproportionate” to the nonviolent
felonies for which it was imposed, and therefore violative of
the Eighth Amendment. /d at 303. The Court rejected
South Dakota’s assertion that the possibility of executive
commutation was sufficient to render the sentence
comparable to the parole-eligible sentence sustained in
Rummel, noting that the possibility of parole, unlike the
possibility of commutation, is "the normal expectation in the
vast majority of cases." /d. at 300-01. In language that is
particularly relevant here, the Court found a prisoner's
"expectation" of parole important for Eighth Amendment
purposes because -- in contrast to commutation -- "[t]he law
generally specifies when a prisoner will be eligible to be
considered for parole, and details the standards and

10

procedures applicable at that time." /d. at 300 (emphasis
added).°

Consistent with the view stated by this Court in
Rummel and Solem, California law expressly recognizes that
a sentence of life with a possibility of parole is less onerous
than a life sentence that does not include parole
consideration. For, absent a finding that statutorily
enumerated aggravating circumstances outweigh potentially
mitigating circumstances, California law precludes the
imposition of a life sentence without the possibility of parole.
See Cal. Penal Code §§ 190-190.4 (West 1988). And more
than simply providing an opportunity for conditional release,
parole in California offers the offender an opportunity to
extinguish the underlying sentence -- even one of life
imprisonment -- and gain a complete discharge from custody.
Most offenders, once given conditional release, cannot be
required to remain on parole more than three years before
they must be discharged altogether. /d § 3000(b) (West
1982 & Supp. 1994). At the time Morales was convicted, the
California Penal Code accorded offenders convicted of
second-degree murder similar treatment. Thus, even though

* From its institutional beginnings, release on parole has been

viewed as an intrinsically less onerous form of punishment than
imprisonment. Captain Alexander Maconochie, who in 1840 implemented
the first parole system, at Norfolk Island prison in Australia, regarded
parole (which was termed a “ticket-of-leave") as a stage of punishment
several degrees less burdensome than imprisonment. See 1V ATTORNEY
GENERAL’S SURVEY OF RELEASE PROCEDURES | 1 (reprint 1974) (1939).
The pioneer of the parole system in Spain, Colonel Montesinos, similarly
regarded parole as a way for society to “correct” offenders rather than
me ‘ly “punish” them. See id. at 8-9.

1]

he was sentenced to a term of 15 years to life imprisonment,
Morales -- if granted release on parole -- cannot be required
to serve more than five years in that status prior to being
discharged. /d.

Not surprisingly, an offender’s eligibility for parole
release, and the timing of that eligibility, are important
considerations in the criminal sentencing process. Judges
inevitably account for parole eligibility when fixing the
length of sentences within authorized statutory ranges. See,
e.g., Kramer v. United States, 409 F. Supp. 1402, 1404 (N.D.
Ga. 1976). The availability of parole also influences a
defendant’s willingness to enter a negotiated plea of guilty.
As this Court recognized in Weaver, "a prisoner’s eligibility
for reduced imprisonment is a significant factor entering into
both the defendant’s decision to plea bargain and the judge’s
calculation of the sentence to be imposed." 450 U.S. at 32.
Indeed, in California, as in many jurisdictions, the timing of
an offender’s eligibility for parole has been held to be so
central to the punishment imposed that the offender may
withdraw a guilty plea if he has been misinformed on that

® From the earliest experimentation with parole regimes, the
availability of parole and other applicable parole rules have been
understood to have a significant effect on the length of the underlying
sentences to which they attach. See 1[V ATTORNEY GENERAL’S SURVEY
OF RELEASE PROCEDURES 3-4 (citing Gault, The Parole System, A Means
of Protection, § J. CRIM. L. 802 (1915); Butler, The Indeterminate
Sentence and Parole Law, INDIANA BULL. CHARITIES & Corr. 8 (1916);
and ALCO, INDETERMINATE SENTENCE AND PAROLE 3 (1926)).

12

subject. See People v. Tabucchi, 64 Cal. App. 3d 133, 134
Cal. Rptr. 245 (1976).’

It follows that a prisoner’s statutory eligibility for
parole may not retroactively be withdrawn consistent with the
Ex Post Facto Clause. A statutory withdrawal of parole
eligibility plainly alters the authorized punishment for an
offense, even if the release decision is committed to the
discretion of a paroling authority, and even though the
ameliorative effect of parole on the actual period of
confinement served by the offender cannot be determined
with precision. As this Court has noted, "‘[i]t may be
‘legislative grace’ for Congress to provide for parole but
when it expressly removes all hope of parole upon conviction
and sentence for certain offenses . . . this is in the nature of
an additional penalty." Warden, Lewisburg Penitentiary v.
Marrero, 417 U.S. 653, 663 (1974) (quoting Durant v.
United States, 410 F.2d 689, 691 (1st Cir. 1969)); see also
Weaver, 450 U.S. at 30-31 ("even if a statute merely alters
penal provisions accorded by the grace of the legislature, it
violates the [Ex Post Facto] Clause if it is both retrospective
and more onerous than the law in effect on the date of the

” See also Durant v. United States, 410 F.2d 689, 693 (Ist Cir.
1969) (“the district court should not have accepted the guilty plea without
first informing the defendant that conviction upon the plea would make
him ineligible for parole"), cited in Weaver, 450 U.S. at 32; Munich v.
United States, 337 F.2d 356, 361 (9th Cir. 1964); People v. Victorian, 2
Cal. App. 4th 954, 4 Cal. Rptr. 2d 460 (1992) (inaccurate advice
— length of parole term entitles defendant to withdraw guilty
plea).

13

offense"). The practical reality that parole eligibility
typically presages reduced confinement, and not the due
process-based notion that a prisoner is without an enforceable
right to release, is crucial here. "[O]nly an unusual prisoner,"
the Court has explained, "could be expected to think that he
was not suffering a penalty when he was denied eligibility for
parole." Marrero, 417 U.S. at 662-63 (citing United States
v. Ross, 464 F.2d 376, 379 (2d Cir. 1972), cert. denied, 410
U.S. 990 (1973) and United States v. De Simone, 468 F.2d
1196, 1199 (2d Cir. 1972), cert. denied, 410 U.S. 989
(1973)).’

* Marrero addressed the question whether a provision of law
prohibiting parole for certain drug offenders remained applicable to the
sentences of those already confined, notwithstanding its repeal by the
Comprehensive Drug Abuse Prevention and Control Act of 1970. The
Court held, inter alia, that a previously sentenced drug offender’s
ineligibility for parole was part of his “punishment,” and thus was a
"“penalty, forfeiture, or liability’ saved from release . . . by | U.S.C.
§ 109." Marrero, 417 U.S. at 660-62.

* This question has not proved to be a close one in the state and
lower federal courts. Nearly every court to address the issue has held that
the availability of parole is “annexed” to the crime such as to implicate
ex post facto concerns when modified retroactively. See, e.g., United
States v. Meeks, 25 F.3d 1117, 1121 (2d Cir. 1994); United States v.
Paskow, \1 F.3d 873 (9th Cir. 1993); Akins, 922 F.2d 1558; Fender v.
Thompson, 883 F.2d 303, 307 (4th Cir. 1989); Schwartz v. Muncy, 834
F.2d 396, 398 n.4 (4th Cir. 1987); Burnside v. White, 760 F.2d 217, 220
(8th Cir.), cert. denied, 474 U.S. 1022 (1985); Lerner v. Gill, 751 F.2d
450, 454 (Ist Cir.), cert. denied, 472 U.S. 1010 (1985); Beebe v. Phelps,
650 F.2d 774 (Sth Cir. Unit A 1981); Rodriguez v. United States Parole
Comm'n, 594 F.2d 170 (7th Cir. 1979); Shepard v. Taylor, 556 F.2d 648
(2d Cir. 1977); Greenfield v. Scafati, 277 F. Supp. 644, 645-46 (D. Mass.
1967), aff'd, 390 U.S. 713 (1968) (per curiam); see also Williams v.
Board of Parole, \12 Or. App. 108, 828 P.2d 465, review dismissed, 313

14

In short, the elimination of preexisting eligibility for
parole, like any other enhancement of punishment, cannot be
effected retroactively consistent with the Ex Post Facto
Clause.

Il. RETROACTIVE POSTPONEMENT OF A
PRISONER’S STATUTORY OPPORTUNITY FOR
PAROLE CONSIDERATION INCREASES
PUNISHMENT IN VIOLATION OF THE EX
POST FACTO CLAUSE.

A. Penal Code § 3041.5(b)(2) Effectively Postpones
Morales’ Parole Eligibility By Delaying
Morales’ Parole Consideration Hearings.

Parole suitability "hearings" are the touchstone of
parole release in California. By statute, the Board of Prison
Terms is permitted to fix a date for a prisoner’s release from
confinement only through such a hearing. See Cal. Penal
Code §§ 3041, 3041.5, 3042 (West 1982 & Supp. 1994); see
also In re Jackson, 39 Cal. 3d 464, 468, 703 P.2d 100, 102
(1985). The nature and extent of the procedural steps the
Board must take before, during, and after the hearing make
this unmistakably clear." What is more, there is no

Or. 300, 832 P.2d 456 (1992); Tiller v. Klincar, 138 Ill. 2d 1, 11, 561
N.E.2d 576, 580 (1990), cert. denied, 498 U.S. 1031 (1991).

'° For instance, under California law, the Board must provide thirty
days’ advance notice of the hearing to, inter alia, the judge of the court
before whom the prisoner was convicted, "the district attorney of the
county in which the offense was committed, the law enforcement agency
that investigated the case," Cal. Penal Code § 3042(a) (West 1982 &
Supp. 1994), and, upon request, “any victim of a crime committed by the
prisoner, or . . . the next of kin of the victim if the victim has died,” id.

15

statutory or regulatory mechanism, enforceable or not, by
which a prisoner may petition for the determination of a
release date outside the parole suitability hearing process.
Absent a parole suitability hearing, accordingly, there is no
statutory opportunity for a prisoner to obtain parole in
California. ''

At the time of Morales’ offense, a prisoner found
unsuitable for parole at his initial parole suitability hearing
was by statutory mandate entitled to a hearing for
reconsideration of that determination in the following year,

§ 3043. By law, a release date must be chosen at the hearing, and
provided to the prisoner within ten days thereafter, unless the Board
determines that "the gravity of the current convicted offense or offenses,
or the timing and gravity of current or past convicted offenses, is such
that consideration of the public safety requires a more lengthy period of
incarceration." /d. § 3041(b). If a release date is chosen or confirmed,
the Penal Code bars release of the prisoner until the expiration of sixty
days after the date of the hearing. /d If, on the other hand, the Board
determines that "consideration of the public safety" prevents selection of
a release date, it must inform the prisoner of the basis of its decision in
writing, and offer suggestions to the prisoner on how to improve his
chances of gaining release in the future. /d. § 3041.5(b)(2).

'' Petitioners assert “that parole suitability hearings are convened

solely to gauge the fitness of an inmate to have a parole hearing which in
turn might result in the setting of a parole date for certain felons with
indeterminate sentences." (Pet’rs Br. at 10.) The assertion is, at best,
mistaken. The hearing at which the Board considers an inmate’s fitness
for parole is the sole procedura! mechanism by which the parole
suitability of and release date for offenders in Morales’ position are
determined. Cal. Penal Code § 3041(a); Cal. Code Regs. tit. 15, § 2401
(1990). If the Board finds an offender suitable for parole at such a
hearing, the statute and regulations provide that "[a] parole date shall be
set." Cal. Code Regs. tit. 15, § 2401 (emphasis added); see Cal. Penal
Code § 3041(a). Thus, petitioners’ suggestion that suitability hearings are
a distinct predicate proceeding to a parole hearing is simply wrong.

16

and in each year thereafter. Cal. Penal Code § 3041.5(b)(2)
(see J.A. 3). At this hearing, the prisoner was entitled to
proffer any circumstances tending to support his suitability
for release, e.g., indications that he understands the nature
and magnitude of the offense; evidence that he committed the
crime as the result of significant stress in his life; evidence
that his age reduces the probability of recidivism; evidence
that he has made realistic plans for release; evidence that he
has developed marketable skills that can be put to use upon
release; or evidence that his activities while institutionalized
indicate an enhanced ability to function within the law upon
release. '?

The 1981 amendment, however, withdrew this annual
entitlement for persons convicted of more than one offense
involving the taking of a life, instead permitting the Board to
forego reconsideration hearings for as many as three years
following a hearing at which parole suitability is denied.
Now, only if such persons are able to convince the Board of
Prison Terms that it is "reasonable to expect that parole [will]
be granted at a hearing during the following years” can they
be assured of the annual consideration hearings to which they
were previously entitled by statute. As the Ninth Circuit
observed, § 3041.5(b)(2), as amended, "permits the Board to
frustrate a prisoner’s interest in obtaining a parole release
date for three times as long as was permitted by prior law."

? Cal. Code Regs. tit. 15, § 2402(d)(3)-(4), (6)-(8) (1990). This list
is inclusive, not exhaustive. See id. § 2402(d). The applicable
regulations permit the offender to proffer other changed circumstances
tending to demonstrate his suitability for parole, such as terminal illness,
a need to care for a disabled or ill relative, breakthroughs in psychological
or pharmacological treatment, or selfless acts such as protecting a guard
from harm from rioting prisoners.

17

Watson v. Estelle, 859 F.2d 105, 109 (1988), vacated on
other grounds, 886 F.2d 1093 (9th Cir. 1989)."°

A prisoner whose parole reconsideration hearings have
been withdrawn under the 1981 amendment may remain
technically "eligible" for parole, in the sense that his
confinement may have extended beyond his "minimum
eligible parole release date." See Cal. Penal Code § 3041(a).
But technical "eligibility" for parole is meaningful only
insofar as it affords the prisoner an opportunity to gain
release from confinement -- that is, an opportunity to
demonstrate parole suitability to the Board of Prison Terms.
This opportunity can be realized only through a suitability
hearing before the Board, the very hearing that the 1981
amendment denies to prisoners in Morales’ position for as
many as three years. As the Seventh Circuit reasoned in
addressing an ex post facto claim similar to that presented
here, "[e]ligibility [for parole] in the abstract is useless; only
an unusual prisoner could be expected to think that he is not
suffering a penalty when even though he is eligible for parole
and might be released if granted a hearing, he is denied that
hearing." Rodriguez v. United States Parole Comm'n, 594
F.2d 170, 176 (7th Cir. 1979); see also Roller v. Cavanaugh,
984 F.2d 120, 123 (4th Cir.) ("Eligibility without
consideration is a cold comfort."), cert. dismissed, 114 S. Ct.
594 (1993)."*

'? See also In re Jackson, 39 Cal. 3d at 473, 703 P.2d at 105 (change
embodied in § 3041.5(b)(2) “did eliminate the possibility that a parole
date would be set within the period of the postponement”).

'* Petitioners suggest that, under applicable parole suitability
guidelines, Morales might not actually be released on parole until the
passage of 19 years following his initial confinement and that, because of
aggravating circumstances relating to Morales’ offense, no "reasonable

18

By permitting the elimination, for as many as three
years, of the annual parole suitability hearings that were
required by law at the time of Morales’ crime, the 1981
amendment to § 3041.5(b)(2) lengthens the period that a
prisoner in Morales’ position must serve in confinement
following an initial denial of parole before he is again
provided an opportunity to obtain early release.

person could find that [Morales] would be ready for parole” during the
period in which his right to annual suitability hearings has been
eliminated. (See Pet’rs Br. at 21, 22 n.8.) But the guidelines to which
petitioners refer are just that -- guidelines. The Board of Prison Terms
may depart from the regulations’ “suggested base term" to an unlimited
extent merely by articulating “particular facts" which it finds justify such
a departure. Cal. Code Regs. tit. 15, § 2403 (1990); see also id. § 2401
(parole release regulations “are guidelines only”).

Moreover, the very “guidelines” to which petitioners refer indicate
that Morales may be immediately parolable upon a finding of suitability.
In calculating Morales’ release date, any “suggested base term” of
confinement derived from the Board's sentencing matrix must be reduced
by Morales’ 1,050 days of preconviction custody and good-time credits.
See id. § 2411(b); R. 30 (Judgment (July 1, 1982), Ex. 1 to Return to Pet.
for Writ of Habeas Corpus). Thus, Morales’ suggested base term of
confinement would be slightly more than 16 years and one month, not 19
years. In addition, Morales is eligible for up to 50 months of
postconviction good-time credit, i.¢., up to four months credit for each
year he has served (and possibly more, if his “performance, participation
or behavior warrants"). Cal. Code Regs. tit. 15, § 2410(b). When these
potential credits are deducted from his suggested base term, Morales’
adjusted period of confinement is slightly less than 12 years. See id §
2411. Since it is the adjusted period of confinement which governs an
offender’s suggested release date under the Board’s own guidelines,
Morales (who has already served 12 years and five months) could be
parolable immediately upon a finding of parole suitability. Thus, while
petitioners contend that the decision in /n re Jackson was correct because
in that case "there was . . . no evidence of any untoward effect on any
possible release date” (Pet’rs Br. at 17) (emphasis added), such an
untoward effect does exist here.

19

B. Retroactive Constraints On Parole
Consideration, And Thus On Parole Eligibility,
Violate The Ex Post Facto Clause.

Petitioners do not dispute that a State violates the Ex
Post Facto Clause by retroactively eliminating or postponing
a prisoner’s parole eligibility. (Pet’rs Br. at 17.) Petitioners
also concede that Penal Code § 3041.5(b)(2) postpones
opportunities for parole consideration for prisoners in
Morales’ position. (Pet’rs Br. at 21-22.) Petitioners instead
assert that ex post facto protection against retroactive
elimination of parole eligibility is available only to those
prisoners who can show that they otherwise would likely
have been released. This assertion misreads the Court’s
precedents and distorts the applicable ex post facto standard.

When a statute retroactively forecloses opportunities
for reduced or less onerous punishment, the Ex Post Facto
Clause does not place the burden on the individual offender
to show that he or she would have received a less onerous
punishment under prior law. To the contrary, "[t]he inquiry
looks to the challenged provision, and not to any special
circumstances that may mitigate its effect on the particular
[offender]." Weaver, 450 U.S. at 33 (citing Dobbert v.
Florida, 432 U.S. 282, 300 (1977)); see also Lindsey, 301
U.S. at 401; Rooney v. North Dakota, 196 U.S. 319, 325
(1905). If the "challenged provision" retroactively deprives
an offender of previously accorded opportunities to gain a
shorter sentence of confinement, that provision renders the
imposed punishment more onerous as a matter of law.

The leading decision on this issue is Lindsey v.
Washington, a case ignored by petitioners. Lindsey flatly
rejected the assertion that a legislature is free retroactively to
stiffen the range of possible punishments for a crime, so long
as the sentences of the offenders to whom the law is applied

20

might have been the same under prior law. See 301 U.S. at
401-02. In Lindsey, the law in effect at the time of the
petitioners’ crime provided for a maximum sentence of 15
years in prison, but also permitted the sentencing court to
impose a prison term of less than 15 years. Washington
amended the law between the time of the petitioners’ crime
and the date of their sentencing to provide simply for a
mandatory 15-year sentence, within which the State’s Board
of Prison Terms was permitted to fix the actual duration of
confinement. /d. at 398-99. Petitioners received a 15-year
maximum sentence.

Before the Court, the Lindsey petitioners argued that
they had retroactively been deprived of the opportunity for a
maximum sentence of fewer than 15 years. Brief for
Petitioners at 14-15, Lindsey, 301 U.S. 397 (No. 660). The
State’s response (much like California’s here) was that it was
quite possible that the Lindseys would have received the
same 15-year maximum sentence under the old law. See
Answering Brief of Appellee at 21, Lindsey (arguing that "no
court can indulge in the presumption that the court would in
any given case impose a lesser maximum term"). Because
the Lindseys were thus unable to show any concrete
“disadvantage in the matter of the sentence imposed,” the
State of Washington insisted that the law did not violate the
Ex Post Facto Clause. /d. at 45-46.

The Lindsey Court emphatically -- and unanimously --
rejected this argument, and reversed the petitioners’ sentence.
The Court focused on whether the statute retroactively
increased the "standard of punishment" for the Lindseys’
crime, and not at all on whether the Lindseys might (or
would) have received the same quantum of punishment under
the superseded law. 301 U.S. at 401. "[A]n increase in the
possible penalty is ex post facto," the Court wrote,

21

"regardless of the length of the sentence actually imposed,
since the measure of punishment prescribed by the later
statute is more severe than that of the earlier." 301 U.S. at
401 (emphasis added; citations omitted).

Lindsey’ s treatment of the "detriment" prong of ex post
facto analysis bears particular emphasis here. The Lindseys
were not required to show a likelihood, or even a realistic
possibility, that the judge might have sentenced them to less
than the 15-year maximum punishment under the prior law.
To the contrary, the Court’s ruling unambiguously rests on
the fact that a less onerous punishment would have been open
to the sentencing judge under the superseded regime. As the
Court explained, it was "plainly to the substantial
disadvantage of petitioners to be deprived of all opportunity
to receive a sentence which would [have] give[n] them
freedom from custody and control prior to the expiration of
the 15-year term." Jd. at 401-02 (emphasis added); see also
id. at 401 (the challenged law “operates to [petitioners’]
detriment in the sense that the standard of punishment
adopted by the new statute is more onerous than that of the
old" (emphasis added)). Thus, it was Washington’s
foreclosure of the previously available opportunity that was
the gravamen of the ex post facto violation in Lindsey,
unadorned by any speculation about whether that opportunity
was a likely or realistic one.

The Lindsey Court’s focus on the "standard of
punishment" imposed by a retroactive measure is faithful to
the long-understood meaning, and long-practiced application,
of the Ex Post Facto Clause. Historically, whether a law
violated the Ex Post Facto Clause depended not on whether
a given offender actually received harsher punishment than he
otherwise would have, but on whether the retroactive law
provided for the possibility of greater punishment, and thus

22

presented a risk that the offender’s actual punishment might
exceed that which would have been imposed under prior law.
See WILLIAM A. SUTHERLAND, NOTES ON _ THE
CONSTITUTION 253-54 (1904) (statutory changes in
punishment with the potential to result in increased
punishment, no matter to how small a degree, are invalid ex
post facto laws).'°

The unqualified nature of the Ex Post Facto Clause --
that is, its intolerance for the retroactive enhancement of
punishment no matter how subtle the attempt, and no matter
how compelling the proffered justification for the measure --
helps explain the historical focus (exemplified by Lindsey) on
whether the challenged law modifies the "standard of
punishment" affixed to the crime. The Constitution neither
requires nor permits courts to show special solicitude for laws
that enhance the possible range of punishments applicable to
a category of crimes, and has therefore long been understood
to command that any doubt about whether a particular
retroactive measure has potentially enhanced an offender’s
punishment be resolved in favor of the offender.'®

'S E.g., Hartung v. People, 22 N.Y. 95, 106 (1860) ("It is enough to
bring the law within the condemnation of the Constitution, that it changes
the punishment, after the commission of the offence, by substituting for
the prescribed penalty a different one. We have no means of saying
whether one or the other would be the most severe in a given case. That
would depend upon the disposition and temperament of the convict. The
legislature cannot thus experiment upon the criminal law.").

'° See, eg. In re Petty, 22 Kan. 477, 483 (1879) ("We have no
absolute means of saying whether the old or the new law would be the
more severe in a given case, and hence we cannot affirm that [the later
statute] mitigates the punishment"); FRANCIS WHARTON, COMMENTARIES
ON LAW § 472 (1884) (in cases where it is "a matter of dispute whether
a penalty attached by a new law is severer than the penalty in force under

23

The principle announced in Lindsey has recently been
reaffirmed by the Court. In Miller v. Florida, 482 U.S. 423
(1987), the Court held unanimously that the Ex Post Facto
Clause prohibits States from depriving an offender of
opportunities to obtain a shorter sentence that were available
to him under the law in effect at the time of his crime. The
petitioner in Miller was sentenced under state sentencing
guidelines that prescribed a presumptive prison term of five
and one-half to seven years. The guidelines in force when he
committed his crime prescribed a presumptive sentence of
only three and one-half to four and one-half years. Under
both statutes, the judge could impose sentences outside the
recommended range, provided he gave clear and convincing
written reasons. /d. at 426-27. Florida asserted in Miller
that the revised guidelines did not disadvantage the petitioner
because he could not "show definitively that he would have
gotten a lesser sentence” under the old provisions. /d. at 432.
The Court was unpersuaded, holding that the State’s assertion
was plainly "foreclosed" by Lindsey. Id.

The Court’s decision in Weaver v. Graham likewise
rests on Lindsey's “standard of punishment" principle.
Weaver addressed a challenge to a retrospective Florida
statute implementing a more restrictive formula for awarding
inmates "gain-time" credits for time served in compliance
with prison rules, and for adequate performance of prison
work duties. See 450 U.S. at 25-26. Applying Lindsey, the
Court held that retroactive application of this statute violated
the Ex Post Facto Clause by reducing the amount of "gain-
time" credits potentially available to a prisoner if he were
adjudged by correctional authorities to have behaved

the old law when the offence was committed," the issue “is to be
determined in favor of the accused").

24

properly, even though it was sheer speculation to assume that
Weaver might ultimately be awarded those credits. /d. at 33-
34. The Court stressed that the constitutional injury was
Weaver's loss of "the opportunity to shorten his time in
prison" through potential accumulation of gain-time credits.
Id. (emphasis added). See also Dobbert, 432 U.S. at 300
(“one is not barred from challenging a change in the penal
code on ex post facto grounds simply because the sentence he
received under the new law was not more onerous than that
aa might have received under the old ) (emphasis

/ Under these authorities, as Petitioners concede, a State
plainly cannot, through retroactive legislation, eliminate the
possibility of parole altogether. Neither can it legislate a
retroactive postponement of opportunities for early release on
parole. The availability and timing of Opportunities for early
release on parole, like statutory provisions for minimum and
maximum periods of confinement, are constituent elements of
the punishment prescribed for criminal acts. Just as a State

’ The Lindsey principle has been widely applied by federal and state
courts when addressing statutory changes in prisoners’ opportunities for
reduced confinement. See, e.g., United States v. Arzate-Nunez, 18 F.3d
730, 734 n2 (9th Cir. 1994) ("the ex post facto inquiry focuses on a
defendant’s eligibility to receive a certain sentence, not his actual
sentence"), citing United States v. Paskow, 11 F.3d 873, 877 (9th Cir.
1993); Watson, 859 F.2d at 106-07 n2 ("numerous cases establish that
prisoners have an interest protected by the ex post facto clause in
programs ane “ the possibility of reductions in the duration of their
incarceration"); see also Flemming v. Oregon Bd. o Parole, 998 F.2d
721, 725 (9th Cir. 1993); Chatman v. Marquez, 754 A 1531, 1535 (9th
Cir.), cert. denied, 474 U.S. 841 (1985); Dugger v. Williams, 593 So. 2d
180, 181 (Fla. 1991); see also Williams vy. Florida Parole Comm'n, 625

So. 2d 926, 935 (Fla. App. 1993), review denied, 637 So. 2d 236 (Fla.
1994), and cases cited therein.

25

cannot retroactively deprive an offender of opportunities to
urge the sentencing judge that a shorter period of
confinement should be imposed at the outset, see Lindsey,
301 U.S. at 401-02; Miller, 482 U.S. at 432-35, a State may
not retroactively eliminate opportunities for a prisoner to urge
the paroling authority that the statutorily permissible option
of early release is appropriate in his case. Each category of
retroactive legislation removes previously guaranteed
opportunities to obtain reduced imprisonment, whether from
the sentencing judge (as in Lindsey or Miller) or from the
paroling authority (as in the case at bar).

It is no answer to say, as do petitioners (Pet’rs Br. at
22-23), that any reduction in an offender's confinement
stemming from parole is purely a function of the paroling
authority’s exercise of discretion.'* A sentencing judge
exercises discretion to fix an offender’s length of confinement

'S The federal appellate decisions denying challenges to the
retroactive application of parole guidelines by the former United States
Parole Commission do not support the proposition that the Ex Post Facto
Clause condones retroactive postponement of parole eligibility. As this
Court has recognized, most of these decisions held that the guidelines
simply rationalize the exercise of previously delegated statutory discretion,
or do not constitute "laws" for purposes of the Ex Post Facto Clause at
all. See Miller, 482 U.S. at 434-35, and cases cited therein. Neither
circumstance obtains here.

A few courts disposed of prisoners’ ex post facto challenges to the
guidelines on the ground that the guidelines do not increase punishment.
See, e.g., Yamamoto v. United States Parole Comm'n, 794 F.2d 1295,
1300 (8th Cir. 1986); Dufresne v. Baer, 744 F.2d 1543, 1547 (11th Cir.
1984), cert. denied, 474 U.S. 817 (1985). But these courts expressly
distinguished retroactive implementation of the guidelines from a
retroactive statutory restriction on the availability of parole, indicating that
the latter would increase punishment in violation of the Ex Post Facto
Clause. See, e.g., Yamamoto, 794 F.2d at 1300; Dufresne, 744 F.2d at
1549-50.

26

that is indistinguishable from the discretion exercised by a
paroling authority to adjust the period of confinement
afterward. Both the judge (under the statutes fixing
minimum and maximum prison terms) and the paroling
authority (under the statutes fixing an offender’s eligibility
for parole) adjust offenders’ periods of confinement within
limits established by the legislature. The only difference is
that the sentencing judge operates at the front end of the
process and the paroling authority at the back end. That
California has chosen a regime where the Board of Prison
Terms, rather than the sentencing judge, has primacy in
fixing offenders’ periods of confinement within legislative
parameters does not affect the applicability of the Ex Post
Facto Clause. See Cummings v. Missouri, 71 U.S. (4 Wall.)
277, 325 (1867) ("[W]hat cannot be done directly [under the
Ex Post Facto Clause] cannot be done indirectly. The
Constitution deals with substance, not shadows.").

Measures such as the 1981 amendment to
§ 3041.5(b)(2), by making unavailable the only mechanism
by which a prisoner can obtain parole release, deprive parole-
eligible prisoners of opportunities to reduce their periods of
confinement. By eliminating chances to obtain an earlier
release date, such laws inevitably tend to "punish a prior act
in a different and more onerous manner." JOSEPH STORY,
COMMENTARIES ON THE CONSTITUTION § 1345, at 240-41
(3d ed. 1858) (citing Fletcher v. Peck, 10 U.S. (6 Cranch)
87, 138 (1810))."? Here, at the time of Morales’ offense,
the State legislature had clearly defined the availability and
timing of opportunities for consideration of early release on
parole. By retroactively lengthening the period of

'° Likewise, such laws deprive offenders of the fair notice of the
consequences of their acts which the Ex Post Facto Clause guarantees.
See Morales, 16 F.3d at 1005 (citing Weaver, 450 U.S. at 30).

27

confinement Morales was required to serve until he could
next be considered for parole release, the 1981 amendment to
§ 3041.5(b)(2) unconstitutionally enhanced the standard of
punishment applicable to Morales’ offense.”

C. Section 3041.5(b)(2)’s So-Called "Procedural
Safeguards" Do Not Exempt It From Ex Post
Facto Scrutiny.

Petitioners claim that there can be no ex post facto
problem where the State implements "procedural safeguards"
purportedly designed to withdraw early release opportunities
only from those offenders whom the State believes are least
deserving of such release. (Pet’rs Br. at 16, 21-22.)
Petitioners submit that this is such a case. They point to
§ 3041.5(b)(2)’s requirement that the Board of Prison Terms
make a finding that "it is not reasonable to expect that" the
individuals for whom it is eliminating annual parole
suitability hearings will be given parole dates in the interim.
Cal. Penal Code § 3041.5(b)(2) (West 1982). This self-
policing quality of the 1981 amendment, petitioners assert,
ensures that it cannot violate the Ex Post Facto Clause.

20 Amici Criminal Justice Legal Foundation, ef a/. argue that this
Court’s decision in Collins v. Youngblood, 497 U.S. 37 (1990), precludes
the extension of Lindsey, Miller, and Weaver to cover Morales’ case
because each of those cases cited the now overruled cases of Kring v.
Missouri, 107 U.S. 221 (1803), and Thompson v. Utah, 170 U.S. 343
(1898). However, amici’s arguments do not withstand scrutiny. Morales
relies on Lindsey, Miller, and Weaver for the proposition that application
of a harsher "standard of punishment" constitutes harsher punishment for
ex post facto purposes, not for the claim that "a// ‘legislative acts’" must
give fair warning of their effect. See Br. of Amici Criminal Justice Legal
Foundation, et al. at 9. While amici are correct that Lindsey, Miller, and
Weaver contain some dicta derived from Kring and Thompson, Morales
need not -- and does not -- rely on the dicta thus derived.

28

Petitioners are mistaken. As emphasized earlier, this
Court’s decisions in Lindsey, Miller, and Weaver do not hold,
or even suggest, that retroactive enhancements of punishment
may be sustained as to particular offenders simply because
those offenders cannot show that they would have been given
a shorter period of confinement under prior law. To the
contrary, if retroactive legislation deprives an offender of "ail
opportunity" for reduced punishment, such legislation is ex
post facto whether or not the offender’s actual prospects for
reduced p) nishment are substantial. See Lindsey, 301 U.S.
at 401-02; cf Rummel, 445 U.S. at 281 ("the possibility of
parole, however slim, serves to distinguish [the petitioner]
from a person sentenced . . . without parole") (emphasis
added). This is because doubts about the effect of a
retroactive measure on the quantum of a particular offender’s
punishment -- no matter how compelling the legislative

29

justification for the enhancement”! -- are to be resolved in
favor of the offender. Section II(B), supra.

Petitioners’ preoccupation with the "procedural
safeguards" afforded by § 3041.5(b)(2) betrays their
confusion of ex post facto with due process principles.
Contrary to petitioners’ sugyestion, Morales need not
establish a "legitimate entitlement to parole" (Pet’rs Br. at 23)
in order to claim protection under the Ex Post Facto Clause
against retroactive impairment of his parole eligibility. See
Weaver, 450 U.S. at 29. As this Court announced in Weaver,
"when a court engages in ex post facto analysis, which is
concerned solely with whether a statute assigns more
disadvantageous criminal or penal consequences to an act
than did the law in place when the act occurred, it is
irrelevant whether the statutory change touches any vested

*! Amici Pacific Legal Foundation, ef a/. argue that retroactive
application of the 1981 amendment to § 3041.5(b)(2) should be upheld as
a means to spare victims’ families the trouble and expense of appearing
at parole hearings. (See Br. of Amici Pacific Legal Foundation, ef a/. at
22.) Such a consideration cannot overcome the Constitution's
unconditional command that “no State .. . shall pass any . . . ex post
facto Law.” California remains free to enact prospective laws to spare
victims’ families the rigors of participation in the parole process. The
State also has resort to myriad means to conduct annual parole hearings
without the direct participation of victims’ families (and without
offending the Ex Post Facto Clause), such as the use of videotaped or
written testimony, see Cal. Penal Code § 3043.2 (West Supp. 1994), and
the re-use of such testimony in subsequent years.

It bears noting that California first required crime victims and
their families to be notified about the scheduling of parole hearings, and
to be accorded an opportunity to testify therein, in a statute enacted in
1982, after Morales’ crime was committed. See id. § 3043 (1982).
Clearly, the State may not bootstrap its alleged need to address a
"problem" created by a statute enacted after Morales’ crime into a
justification for retroactive criminal legislation.

30

rights." /d. at 29-30 n.13. Thus, although § 3041.5(b)(2)’s
procedures may be sufficient to preserve Morales’ due
process rights to parole (such as they are), they are wholly
incompetent to protect his ex post facto rights against
subjection to a statute that “assigns more disadvantageous
criminal or penal consequences" to prior acts. /d.

In any event, the findings required by § 3041.5(b)(2)
do not truly provide procedural safeguards, because they fail
meaningfully to distinguish the offenders for whom deferral
of eligibility is ordered from those for whom it is not.
California’s Attorney General conceded as much in his
argument to the California Supreme Court in /n re Jackson,
complaining -- with respect to the 1982 amendment to
§ 3041.5(b)(2) that permitted deferrals of parole suitability
hearings for as many as two years for all prisoners -- that the
standard for determining a prisoner unsuitable for parole and
the standard for determining a prisoner suitable for deferral
of parole hearings were virtually identical. The Attorney
General concluded that it was absurd to require the Board to
issue separate findings as to its application of the two
standards. See In re Jackson, 39 Cal. 3d at 478, 703 P.2d at
109 ("The Attorney General argues that it is not rational to
require two separate statements since such a requirement is
‘virtually impossible’ to comply with. In his view, ‘{both]
the decision to deny parole and to delay a subsequent hearing
for two years must be the same.’").””

*? Morales’ own experience illustrates how the two standards are
conflated in practice. The Board made four findings to support its denial
of parole (as opposed to its postponement decision) at Morales’ 1989
hearing: (1) that his crime was “heinous, atrocious and cruel"; (2) that he
had a prior record of violent behavior, namely, his prior murder
conviction and violation of parole by committing a second murder; (3) he
had not participated in beneficial therapy programs while incarcerated;

31

State and federal courts have uniformly condemned
retroactive laws withdrawing or postponing parole eligibility,
even where the State has purported to limit eligibility only
for those offenders deemed least suitable for release. The
great weight of authority holds that a State may not
retroactively change a prisoner's initial parole eligibility date,
regardless of whether the prisoner's petition for parole release
would likely be granted on or about the date of initial
eligibility. Similarly, the courts are nearly unanimous in

and (4) "[p]sychiatric factors." (See Pet’rs Br. at 7-8.) These findings
track the parole guidelines for life prisoners published in the California
Code of Regulations. See Cal. Code Regs. tit. 15, § 2402(c) (1990). The
Board then essentially listed the same factors in support of its decision to
deny Morales parole review for the next three years. (See Pet'rs Br. at
9.) The Board engaged in no independent factfinding at all, preferring --
in fulfillment of the California Attorney General's prophecy in /n re
Jackson -- to let its finding of Morales’ current unsuitability for parole do
double duty in supporting application of § 3041.5(b)(2)’s three-year
deferral provision.

23 See Yamamoto v. United States, 794 F.2d 1295, 1300 (8th Cir.
1986); Love v. Fitzharris, 460 F.2d 382 (9th Cir. 1972), vacated on other
grounds, 409 U.S. 1100 (1973); Fender v. Thompson, 883 F.2d 303, 307
(4th Cir. 1989); Devine v. New Mexico Dep't of Corrections, 866 F.2d
339, 343 (10th Cir. 1989); Beebe v. Phelps, 650 F.2d 774, 777 (Sth Cir.
Unit A 1981); Geraghty v. United States Parole Comm'n, 579 F.2d 238,
266 (3d Cir. 1978), rev'd on other grounds, 445 U.S. 388 (1980);
Shepard v. Taylor, 556 F.2d 648, 654 (2d Cir. 1977); State v. Beachman,
189 Mont. 400, 406, 616 P.2d 337, 340-41 (1980); Davis v. Mabry, 266
Ark. 487, 491, 585 S.W.2d 949, 951-52 (1979); State v. Mendivil, 121
Ariz. 600, 602, 592 P.2d 1256, 1258 (1979); Lee v. State, 294 So. 2d
305, 306 (Fla. 1974); State ex rel. Mueller v. Powers, 64 Wis. 2d 643,
646-47, 221 N.W.2d 692, 694 (1974); /n re Griffin, 63 Cal. 2d 757, 760,
408 P.2d 959, 961 (1965); Goldsworthy v. Hannifin, 86 Nev. 252, 257,
468 P.2d 350, 353-54 (1970); State ex rel. Woodward v. Board of Parole,
99 So. 534, 536 (La. 1924); but see Zink v. Lear, 28 N.J. Super. 515, 101

32

finding ex post facto violations in the circumstances
presented here, i.e., when the State retroactively reduces the
frequency of a parole-eligible prisoner’s consideration for
release. Again, the courts have so held without regard to
whether the prisoner can demonstrate a likelihood of attaining
parole during the period in which the opportunity for
consideration is eliminated.”

A.2d 72 (1953) (changes to parole eligibility dates may be made
retroactively).

** See Morales, 16 F.3d at 1000; Roller, 984 F.2d 120 (reduction in
frequency of parole hearings from every year to every other year); Akins
v. Snow, 922 F.2d 1558 (11th Cir.) (reduction in frequency of parole
hearings from every year to every 8 years), cert. denied, 501 U.S. 1260
(1991), Watson, 859 F.2d 105 (1981 amendment to § 3041.5(b\(2)):
Rodriguez, 594 F.2d 170 (parole hearings reduced from every six months
to every eighteen months); State v. Reynolds, 642 A.2d 1368, 1370 (N.H.
1994) (right to petition for sentence suspension changed from every two
years to every four years); Griffin v. State, 433 $.E.2d 862 (S.C. 1993)
(parole hearings reduced from every year to every other year), cert
denied, \\4S. Ct. 924 (1994); Tiller, 138 Ill. 2d 1, 9-11, 561 N.E.2d 561.
578-80 (1990) (parole hearings reduced from every year to every three
years if it is found “not reasonable to expect that parole would be
granted” in intervening years); see also State ex rel Mueller, 64 Wis. 2d
463, 466-67, 221 N.W.2d 692, 694 (1974) ("Although the decision to
refuse or grant parole lies within the discretion of the department [of
parole], Wisconsin law grants petitioners as a matter of right the
opportunity to be considered for parole after serving a given period of
time."); State ex rel. Woodward v. Board of Parole, 99 So. 534, 536 (La.
1924) ("[petitioner’s] privilege of having his case submitted to the
discretion of the board at the proper time” may not be removed
retrospectively), but see In re Jackson, 703 P.2d at 105 (changing
frequency of parole suitability hearings from every year to every other
year held not significant enough to violate Ex Post Facto Clause).

In Bailey v. Gardebring, 940 F.2d 1150 (8th Cir. 1991), cert
denied, \\2 S. Ct. 1516 (1992), the court declined to invalidate a
statutory reduction in Minnesota's parole hearing frequency. Judge

33

D. Petitioners Cannot Insulate The 1981
Amendment To § 3041.5(b)(2) From Ex Post
Facto Scrutiny Merely By Labelling The
Change "Procedural."

Petitioners attempt to save the 1981 amendment to
§ 3041.5(b)(2) by terming its effect “merely procedural”
(Pet’rs Br. at 23), and thus outside the proscription of the Ex
Post Facto Clause. This Court has rejected such formalistic
arguments in the past, and should reject petitioners’
suggestion here.

"{S]imply labelling a law ‘procedural’ . . . does not
thereby immunize it from scrutiny under the Ex Post Facto
Clause." Collins v. Youngblood, 497 U.S. at 46. To the
contrary, a change in a law that alters punishment "can be ex
post facto ‘even if the statute takes a seemingly procedural
form.’ Miller, 482 U.S. at 433 (quoting Weaver, 450 U.S.
at 29 n.12). As the Ninth Circuit observed in an opinion that
presaged its later judgment in Morales, "[t)he distinction
between ‘procedure’ and ‘substance’ is a commentary on the
basic inquiry rather than a separate doctrine." Watson, 859
F.2d at 107 n.3. The essential ex post facto inquiry remains
whether the "standard of punishment” imposed by retroactive
legislation is more onerous than the predecessor statute; if it
is, the statute cannot retroactively be applied to an offender

Bowman's opinion announcing the judgment of the court noted that the
change in frequency was based on a change in Minnesota's hearing
frequency regulations, which he found not to constitute laws for purposes
of the Ex Post Facto Clause. /d. at 1157. No other judge concurred in
this reasoning, however. See id. (Stuart, J., concurring in result); id. at
1158-59 (Lay, J., dissenting) (noting that in Yamomoto, 794 F.2d at 1300-
01, the Eighth Circuit observed that “[a]dverse changes in the frequency
with which a prisoner may be considered for parole . . . may also violate
the ex post facto clause”).

34

whether or not it takes a "procedural" form. Thus, the Court
has regularly struck down seemingly "procedural" changes in
penal statutes where those changes have the effect of

mak([ing] more burdensome the punishment for a crime”
after its commission.”

The 1981 amendment to § 3041.5(b)(2) has precisely
that effect on the punishment of offenders in Morales’
position. Although the amendment technically targets parole
procedures, its effect on the category of offenders to which
it is directed is undeniably substantive -- that is, it serves to
lengthen offenders’ required periods of confinement prior to
renewed parole availability.

: The retroactive criminal statutes that the Court has
sustained against ex post facto challenges illustrate the gulf
between the 1981 amendment to § 3041.5(b)(2) and
genuinely "procedural" measures. The latter are directed to
the manner in which a criminal case is adjudicated rather
than to the manner in which a previously committed offense
is punished. See Collins, 497 U.S. at 45 ("changes in the
procedures by which a criminal case is adjudicated” are
generally immune from ex post facto scrutiny); Dobbert, 432
U.S. at 293-94 ("The new statute simply altered the methods

* See, eg, Miller, 482 US. at 433-34 (sentencin idelines
amendment defended as “procedural” in nature held violative of the Ex
Post Facto Clause where amendment "was intended to, and did, increase
the ‘quantum of punishment’"); Weaver, 450 U.S. at 36 n.21 (State's
claim that statute altering gain-time computation "is merely procedural”
rejected in view of statute's effect on quantum of punishment for offenses
previously committed); cf Cummings v. Missouri, 71 U.S. (4 Wail.) at
318, 321, 325 (loyalty oaths, though technically “qualification{s] for
holding certain offices,” violated Ex Post Facto Clause because they
aan imposed additional “deprivation” on the basis of prior

35

employed in determining whether the death penalty was to be
imposed; there was no change in the quantum of punishment
attached to the crime."); Hopt v. Utah, 110 U.S. 574 (1884)
(retrospective statute making admissible testimony by felons
held to be directed to methods of adjudication); Thompson v.
Missouri, 171 U.S. 380 (1898) (retrospective statute making
handwritten documents admissible for use as handwriting
exemplars held procedural); Beazell v. Ohio, 269 U.S. 167
(1925) (retrospective statute eliminating right to separate trial
for co-conspirators held procedural); Malloy v. South
Carolina, 237 U.S. 180 (1915) (retrospective statute
substituting one form of evidence for another held
procedural). Changes in adjudicatory procedures, while
arguably disadvantageous to the occasional specific
defendant, do not disadvantage the entire category of
offenders to which they apply.** Because the adjudicatory
procedures in force in a given jurisdiction therefore cannot be
thought to influence an offender’s primary conduct, changes
in those procedures do not implicate the fair notice concerns
that are at the core of the Ex Post Facto Clause. See, e.g.,
Dobbert, 432 U.S. at 297-98, 301.

The 1981 amendment to § 3041.5(b)(2) does not
retroactively change the way criminal cases are adjudicated.

2° For instance, in Dobbert, the Court concluded that the challenged
retrospective legislation making advisory (rather than mandatory) a
sentencing jury's determination as to whether the death penalty or life
imprisonment should be imposed could well spare a defendant of what
would otherwise be a binding jury determination of death just as
frequently as it could result in judicial rejection of a jury recommendation
of life. See 432 U.S. at 294-97. Thus, even though the petitioner in
Dobbert had been sentenced to death by the trial judge in derogation of
a jury recommendation of life imprisonment, the Court rejected the
petitioner's contention that the legislation violated the Ex Post Facto
Clause. /d.

36

Instead, the amendment retroactively changes the way
prisoners in Morales’ position are punished by lengthening
prisoners’ required periods of incarceration prior to renewed
opportunities for parole. Unlike the "procedural" enactments
the Court has sustained against ex post facto challenges, the
1981 amendment disadvantages all offenders to whom it
applies. The amendment has none of the potentially
ameliorative qualities that characterize permissible retroactive
changes in criminal adjudicatory procedures. Like many
other changes in so-called "procedures" governing prisoners
that the Court has addressed over the years, the 1981
amendment to § 3041.5(b)(2) is undeniably substantive in
effect, and may not be applied retroactively. See, e.g., Inre
Medley, 134 U.S. 160 (1890) (retroactive requirement that
prisoners on death row be placed in solitary confinement
pending execution held violative of Ex Post Facto Clause);
Weaver, 450 U.S. at 30 (retroactive change in procedure for
calculating gain-time credits held to be ex post facto as to
prisoners sentenced prior to enactment).

Ill. THERE IS NO DE MINIMIS EXCEPTION TO
THE EX POST FACTO CLAUSE.

At bottom, petitioners and their supporting amici urge
the creation of a de minimis exception to the ex post facto
prohibition. They request, in substance, that the Court
sustain retroactive application of § 3041.5(b)(2) because it
operates to defer parole eligibility only for a class of
prisoners whose chances of actually receiving parole are slim
anyway. (See, e.g., Pet’rs Br. at 21-23.) The suggestion
should be rejected. Nothing in the text or history of the
Constitution, the decisions of this Court, or the principles
animating the Ex Post Facto Clause even intimates that
retroactive enhancements in punishment may be imposed
provided the enhancements are small.

37

The Court has refused to sanction retrospective
enhancements in punishment even of modest proportions. In
In re Medley, the Court struck down a retroactive state law
that required offenders sentenced to death to be housed in
solitary confinement prior to their execution, ruling that the
imposition of confinement away from other prisoners "was an
additional punishment" violative of the Ex Post Facto Clause.
134 U.S. at 171. The Medley Court found an additional ex
post facto violation in the law’s retroactive requirement that
death row prisoners be informed only of the specific week
within which their execution was set, rather than the specific
date of execution. /d. at 172-73. The Court reached these
results over the vigorous objections of two dissenting justices
who explicitly urged recognition of a de minimis exception
to the ex post facto proscription that would shelter what they
termed to be "trifling" enhancements. See id. at 175 (Brewer,

J., dissenting).

Thus, whether the range of confinement prescribed for
a particular offense is enhanced dramatically by multiples of
years, or marginally by multiples of days, the Ex Post Facto
Clause enjoins its accomplishment retroactively. And
whether a statute heightening the "standard of punishment"
has certainly, likely, possibly, or even remotely increased the
actual punishment given a particular offender is irrelevant for
purposes of applying the Ex Post Facto Clause. Cf Lindsey,
301 U.S. at 401-02. As the Court observed in Collins,
"[s]ubtle ex post facto violations are no more permissible
than overt ones." 497 U.S. at 46.”’

2? Petitioners assume that because only a small percentage of the
offenders subject to the 1981 amendment might, as a consequence, serve
longer periods of confinement, the provision is somehow insulated from
condemnation under the Ex Post Facto Clause. This contention has no
basis in the Court’s decisions. The important question, as this Court has

38

| Petitioners’ de minimis approach would also be
impossible to implement. This case amply illustrates the
difficulty. The 1981 amendment to § 3041.5(b)(2) purports
to distinguish between prisoners who have twice been
convicted of an offense involving the taking of a human life
and other prisoners, finding the former to be somehow
uniquely unsuitable for annual parole consideration. Yet
petitioners offer no principle by which a court could conclude
that _ offenders in Morales’ position are categorically
unsuitable for parole vis-a-vis others who have been
convicted of homicides, or even others who have been
convicted of serious crimes, especially when the applicable
state law makes all such offenders eligible for parole.

While the 1981 amendment decrees that a three-year
delay in parole consideration hearings is appropriate for
offenders in Morales’ position, and possibly may not lengthen
the confinement of any offender subject to it, there is no
principled way to determine how significant a risk of
enhanced confinement is to be tolerated through such hearing
delays. Inevitably, as the period between parole hearings
lengthens, the number of prisoners who might otherwise have
been paroled in the interim in view of changed circumstances
grows larger. A prisoner who might not have made sufficient
progress toward rehabilitation in three years might well be
able to demonstrate such progress in five years, or eight

emphasized, is whether punishment Sor the category of offenders to which
the retroactive law applies has been enhanced. If it has, the law violates
the Ex Post Facto Clause, no matter how small the number of offenders
whose actual punishment turns out to exceed that which they would ‘iave
obtained under the prior law. Notably, petitioners do not take the position
that offenders in Morales’ position have no chance of gaining release on
parole during the period of their terms of imprisonment.

39

years, or ten years, and be able to urge these facts to the
paroling authority in support of early release.

Petitioners claim that a statute affecting the timing of
parole hearings crosses the de minimis threshold only when
it affects the parole eligibility of offenders whose chances of
parole release are deemed genuine or "reasonable." They
further assert that courts are competent to police such
statutory changes, and to enjoin application of retroactive
postponements of parole consideration to offenders whose
factual prospects of parole meet this undefined constitutional
minimum. (Pet’rs Br. at 19-23.) But it is too much to ask
a court, as a necessary first step in the resolution of an ex
post facto claim, to engage in a speculative assessment of the
likelihood that an offender will be able to convince a
paroling authority to exercise its discretion in favor of release
if more frequent parole consideration hearings are provided.
Under petitioners’ regime, courts would be required to act as
rump parole boards -- and to determine the factual prospects
for early release -- in order to resolve each and every
prisoner’s ex post facto claim growing out of statutory
postponements of parole consideration. To make matters
worse, courts would likely face this routine with respect to
each prisoner whose hearings are deferred under provisions
such as § 3041.5(b)(2), and with respect to each and every
successive deferral decision, given that a prisoner’s factual
prospects for release typically change over time.

Expending judicial resources in this fashion would not
only be wasteful in the extreme, but also would involve the
judiciary in inquiries that are not properly "judicial" in
nature. In California, as in other States, the parole decision
"‘involves the deliberate assessment of a wide variety of
individualized factors on a case-by-case basis, and the
striking of a balance between the interests of the inmate and

40

of the public.’" Jn re Powell, 45 Cal. 3d 894, 902, 7

881, 886 (1988). The endeavor required by hs
approach -- unguided speculation concerning how a paroling
authority might apply its broad discretion as time unfolds, or
as new facts and circumstances suggesting a prisoner’s further
rehabilitation emerge -- is simply not within the institutional
competence of the courts. Where, as here, a decision has
been committed to the near-absolute discretion of an
administrative body, there are no judicially manageable
standards by which a court can assess the likelihood that such
discretion will be exercised one way or the other. See Board
of Pardons v. Allen, 482 U.S. 369, 374 (1987) ("parole
release decisions are inherently subjective and predictive");
id. at 384 (O’Connor, J., dissenting) ("An appellate court
reviewing the decision of the [Parole] Board that release of
a prisoner would not be ‘in the best interests of society’ or
would be ‘detriment{al] . . . to the community’ would have

little or no basis for taking issue with the i
Soe’ g e judgment of the

The experiences of other courts illustrate the difficulty
of drawing a de minimis line. The one court to uphold a
retroactive change in the frequency of parole consideration
hearings (from once yearly to once every two years) found
the ex Post facto question "close," but sustained the law in
the belief that it did not "significantly impair[]" a prisoner’s
opportunity for release. Jn re Jackson, 39 Cal. 3d at 472,

476, 703 P.2d at 105, 109. In so deciding. th
Court of California observed: @, the Supreme

Obviously, the right to be heard is an important
right. Restrictions on this right may have
significant consequences. For this reason, not
every retrospective encroachment on the right to

4]

annual review will pass muster under ex post
facto principles as "merely procedural."

39 Cal. 3d at 477 n.12, 703 P.2d at 108 n.12. Perhaps
because Jackson was the first case to address a retroactive
change in the frequency of parole hearings, the Jackson
majority failed to anticipate the inexorable legislative
demands for further "retrospective encroachment on the right
to annual review" that would be unleashed by judicial
approval of the practice. Predictably, in the wake of Jackson
California has moved well down the slippery slope. In 198},
the California Legislature approved the law at issue here,
permitting three-year postponements for those convicted of
two offenses involving the taking of human life. It quickly
followed that legislation with permission to make two-year
postponements for any offender. And effective January |,
1995, California will permit five-year deferrals of parole
consideration for any prisoner convicted of murder. In light
of what petitioners themselves describe as "the national trend
toward .. . harsher penalties and conditions of confinement
for offenders and inmates" (Pet’rs Br. at 11), this progression
is hardly surprising.”

The Supreme Court of South Carolina originally
followed California’s lead, upholding a one-year
postponement provision on the grounds that the change had
little effect on punishment, and so was “procedural.” See
Gunter v. State, 378 S.E.2d 443, 444 (S.C. 1989). A few

2® Nor was such a pattern of creeping retroactivity beyond the
foresight of the Founding Fathers. As James Madison wrote long ago on
the subject of ex post facto legislation, “one legislative interference is but
the first link of a long chain of repetitions, every subsequent interference
being naturally produced by the effects of the preceding.” THE
FEDERALIST NO. 44, at 283 (James Madison) (Clinton Rossiter ed., 1961).

42

years later, however, in Griffin v. State, 433 S.E.2d 862 (S.C.
1993), cert. denied, 114 S. Ct. 924 (1994), South Carolina
reversed course, concluding that it was logically impossil Je
to exempt from ex post facto analysis laws postponing parole
review for even a single year. The unanimous South
Carolina court observed that the Georgia law at issue in Akins
v. Snow, 922 F.2d 1558 (11th Cir.), cert. denied, 501 U.S.
1260 (1991), which allowed parole authorities to postpone
hearings for up to eight years, "was an example of how a
procedural change could be expected to have substantive
effect." 433 S.E.2d at 864. Further, the court observed that
if an eight-year retroactive postponement of parole
consideration violated the Ex Post Facto Clause, there could

be no principled rationale for permitting even a one-year
postponement:

It is difficult to determine where the difference lies
between a review once every two years and once every
eight years. This gray area tortures the ex post facto
analysis between a change in standards for review and
a procedural change in timing. ... We must now
acknowledge that where a procedural rule is so overly
intrusive ‘that it substantively affects the review
standard, it then becomes an ex post facto violation.

Id.

There is, in short, no princi
__ Ther ‘ , pled means of
distinguishing between statutes that retre ively defer parole
review for "just a few" years and those \uat effect deferral for
many years. A prisoner’s statutory eligibility for i
parole is
part of his punishment for ex post facto purposes, and such
eligibility may not be deferred by States in the guise of
retroactive constraints on the frequenc f
consideration hearings. ts sects

43

CONCLUSION

The Court of Appeals for the Ninth Circuit properly
held that a State cannot retroactively delay a prisoner’s
statutorily mandated parole hearings without violating the Ex
Post Facto Clause. A prisoner’s statutory eligibility for
parole release is an integral and important mitigating aspect
of punishment. Retroactive delays in parole hearings make
punishment more onerous by eliminating opportunities for
release. Contrary to petitioners’ assertion, the Ex Post Facto
Clause does not place the burden on the offender to show
what punishment he or she would have received under the
less onerous prior law. Rather, an ex post facto violation
occurs whenever a State retroactively prescribes a more
onerous standard of punishment, and applies that new
standard to prior acts. Accordingly, the judgment of the
Court of Appeals for the Ninth Circuit should be affirmed.

Respectfully submitted,

JAMES R. ASPERGER
Counsel of Record

DANIEL H. BOOKIN

BRIAN D. BOYLE

THOMAS J. KARR
O’MELVENY & MYERS

400 South Hope Street

Los Angeles, CA 90071-2899

Telephone: (213) 669-6000

Attorneys for Respondent

DATED: December 6, 1994

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0500%3A07. Public record. Not legal advice.