Reply Brief — Lynce v. Mathis

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Supreme Court, U.S.

FILED

SEP 30 1996

A <s SR

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

KENNETH LYNCE,

Petitioner,

Vv.

HAMILTON MATHIS, ROBERT A. BUTTERWORTH,

and HARRY K. SINGLETARY,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

REPLY BRIEF OF PETITIONER

Of Counsel: H. JAY STEVENS

CARTER G. PHILLIPS JOEL T. REMLAND *

PAUL A. HEMMERSBAUGH Federal Public Defender

SIDLEY & AUSTIN Middle District of Florida

1722 Eye Street, N.W. 80 N. Hughey Avenue

Washington, D.C. 20006 Suite 417

(202) 736-8000 Orlando, FL 32801

(407) 648-6338

Counsel for Petitioner

September 30, 1996 * Counsel of Record

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TABLE OF CONTENTS

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II.

III.

IV.

RESPONDENTS’ PRINCIPAL ARGUMENT

RESTS ON A FUNDAMENTAL MISAPPRE-

HENSION OF EX POST FACTO LAW AND

WHAT IS AT ISSUE IN THIS CASE .........

THE 1992 ACT’S REVOCATION OF PETI-

TIONER’S EARLY RELEASE GAIN-TIME

CREDITS RETROACTIVELY INCREASED

HIS PUNISHMENT BY INCREASING THE

LENGTH OF HIS INCARCERATION ............

RESPONDENTS’ NEWFOUND ARGUMENT

THAT PETITIONER IS NOT ENTITLED TO

THE PROTECTION OF THE EX POST FACTO

CLAUSE IS BARRED BY THEIR FAILURE

TO RAISE IT BELOW; REGARDLESS, IT

MISAPPREHENDS BOTH PETITIONER’S

CLAIM AND EX POST FACTO LAW............

PRISON ADMINISTRATION CASES HAVE

NO APPLICATION TO FLORIDA’S LEGIS-

LATIVE DECISION RETROACTIVELY TO

INCREASE THE SUBSTANTIVE PUNISH-

MENT ATTACHED TO PETITIONER’S OF-

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TN cinentetassscncceiithtispeapemnaniinninentanittdnenmtctaeatipttigpesind

TABLE OF AUTHORITIES

CASES Page

Bell v. Wolfish, 441 U.S. 520 (1979) .............-...... 17

Calder v. Bull, 3 U.S. (8 Dall.) 386 (1798) ............. 16

California Dep’t of Corrections Vv. Morales, 115

S. Ct. 1597 (1995) ...... passim

Collins v. Youngblood, 497 U.S. 37 (1990) dacchideekin’ 8, 15, 18

Florida v. Mozo, 655 So. 2d 1115 (Fla. 1995) ........ 13

Florida v. Tsavaris, 394 So. 2d 41? (Fla. 1981)... 13

Griffin v. Singletary, 688 So. 2d 500 (Fla. 1994) .... 12

Herring v. Singletary, 879 F. Supp. 1180 (N.D.

Fit. 20GB) ccececcesececocunsocespane 12

Ipnar vy. Singletary, No. 81,040 (Fla. Apr. 29,

[ |) eee 12

Matsushita Elec. Indus. Co. Vv. Epstein, 116 8. Ct.

7) | a ee ll

Miller v. Florida, 482 U.S. 423 (1987) .................. 9, 10, 15

Peralta v. Heights Medical Ctr., Inc., 485 U.S. 80

(()) |) EE eee 11

Stutson v. United States, 116 S. Ct. 600 (1996)... 11

Turner V. Safely, 482 U.S. 78 (1987) ...................... 17

Waldrup v. Dugger, 562 So. 2d 687 (Fla. 1990)... 5,14

Weaver Vv. Graham, 450 U.S. 24 (1981) .................. 5

STATUTES

tof, BY |) eee 19

too, Be? YY § S| eee 19

1986 Fla. Laws ch. 86-278, § 1 —.................--.-cc-eeeeeeeees 19

§ 921.001, Fla. Stat. (Supp. 1988) ............................ 6,14

§ 921.001, Fla. Stat. (Supp. 1992) ......................... 3, 6

§ 944.275, Fla. Stat. (1985 & 1993) .......- 7

§ 944.275, Fla. Stat. (1987) ..............-...-.----ccceseseceenees 7

§ 944.275, Fla. Stat. (Supp. 1988) ..................-.0....... 14

§ 944.277, Fla. Stat. (Supp. 1988) -...................-........ 14

§ 944.277, Fla. Stat. (Supp. 1992) ......... wae : 7

§ 944.598, Fla. Stat. (1985) —......-..-...-.........-ecc--00-- 18, 14, 16

§ 944.598, Fla. Stat. (Supp. 1986) 18

§ 947.146, Fla. Stat. (1989) -............. 8

REPLY BRIEF OF PETITIONER

Respondents’ primary argument in support of their

retroactive withdrawal of Petitioner’s early release credits

is that the initial award of release credits was contingent

and uncertain. That argument fails entirely to address

the ex post facto issue presented in this case. It is undis-

puted that Respondents in fact did lawfully award early

release credits to Petitioner. Given that fact, retrospective

assessment of Petitioner’s odds of receiving credits in the

first instance is moot and irrelevant. Rather, the question

presented in this Petition is whether the retroactive change

in the duration of Petitioner's incarceration effected by

the 1992 Act violates the constitutional prohibition on

ex post facto laws.

Respondents raise in their opposition brief for the first

time a new state statutory interpretation argument. In

accordance with its general practice, the Court should not

consider this argument. Regardless, Respondents’ belated

State law argument has already been resolved by the

Florida Supreme Court.

Effectively, Respondents ask the Court to create a new

“overcrowding” exception to the Ex Post Facto Clause.

Such an erosion of a bulwark against arbitrary and vindic-

tive government deprivations of liberty is particularly in-

appropriate under these circumstances. Prison “over-

crowding” is a crisis of the government's own making,

which it could readily resolve without resort to uncon-

stitutional measures.

Petitioner does not seek to curtail Florida’s power to

to crime as it sees fit or to change the punish-

ment prescribed for crimes, so long as any punishment

changes operate prospectively. Consistent with the Ex

Post Facto Clause, Florida could repeal prospectively all

early release gain-time mechanisms. What the Ex Post

Facto Clause prohibits is the change effected by the 1992

Act: a retroactive increase in the quantum of punishment

prescribed for a crime, based solely on Petitioner’s offense

of conviction.

I. RESPONDENTS’ PRINCIPAL ARGUMENT RESTS

ON A FUNDAMENTAL MISAPPREHENSION OF

EX POST FACTO LAW AND WHAT IS AT ISSUE

IN THIS CASE.

The majority of Respondents’ argument focuses on the

question of whether the overcrowding gain-time statutes

in place from 1985 to 1991 were sufficient to allow Peti-

tioner to form a reasonable, definite expectation of re-

duced incarceration time. Mathis Br. 17-30; Butterworth

Br. 15-25. Respondents’ second general argument is re-

lated, and centers on the state’s reasons for creating over-

ing credits. See Mathis Br. 2-9; Butterworth Br.

2-9. Both of those questions are irrelevant to the issue

in this case: whether the 1992 Florida statute that retro-

actively increased the duration of Petitioner’s incarcera-

tion—based solely on his offense of conviction—violated

the Ex Post Facto Clause.

A. Respondents’ argument that, at the time of Petition-

er’s offense, the future award of overcrowding credits was

speculative and contingent is not only irrelevant, it mis-

understands fundamentally the Ex Post Facto inquiry.

Petitioner is challenging the 1992 Act’s retroactive revoca-

tion of actually awarded provisional release credits. Re-

spondents’ arguments regarding the contingent nature of

the award of overcrowding gain-time credits under the

Statutes in effect from 1985 to 1991 are misplaced be-

cause Petitioner is not challenging those statutes or the

pre-conditions they placed on the award of gain-time

credits." The Ex Post Facto Clause has no application to

changes in penal laws that operate prospectively, like the

prison overcrowding condition precedent to the award of

overcrowding gain time. What the Ex Post Facto Clause

prohibits—and what Petitioner challenges here—is a

retroactive increase in the punishment prescribed for a

crime.

1In all events, arguments regarding whether the award of pro-

visional release credits was speculative at some point in time are

now moot. All parties agree that Petitioner actually received 1860

days of those credits.

Under Morales, the test is whether the statute that can-

celed retroactively Petitioner’s previously awarded early

release credits—the 1992 Act—“produce[d] a sufficient

risk of increasing the measure of punishment attached”

to Lynce’s crime. California Dep't of Corrections Vv.

Morales, 115 §S. Ct. 1597, 1603 (1995). The circum-

stances of this case are quite different from those in

Morales, where there was a real question regarding what

effect, if any, the challenged statute would have on the

duration of the prisoner’s incarceration. See id. at 1597-

98.* Here, there is no question that the challenged stat-

ute—the 1992 Act—as applied, retroactively increased

the duration of Petitioner’s incarceration. Petitioner was

released unconditionally in October 1992, and reincarcer-

ated for his original offense in June 1993, pursuant to the

1992 Act. The “risk” of increased incarceration due to

the 1992 Act was an absolute 100% certainty. Florida

law as it existed prior to the 1992 Act mandated that the

t of Corrections release Petitioner in October

1992. See Il infra. As a result of the 1992 Act, Peti-

tioner was forced to spend more than five additional years

2In Morales, the statute at issue reduced the frequency of parole

hearings for certain offenders. Morales challenged the statute,

claiming that it reduced the likelihood that he would receive parole,

and thus increased his punishment. Morales, 115 S. Ct. at 1602-03.

The prisoner in !fora’es had not yet been awarded parole, so the

Court conducted an inquiry into the likelihood that the reduced

frequency of parole hearings would actually diminish his prospects

for early release on parole. It was in this context that the Court

found the challenged statute created “only the most speculative

and attenuated possibility of producing the prohibited effect of

increasing the measure of punishment for covered crimes.” /d. at

1603. By contrast, at the time of the 1992 Act, Mr. Lynce had

already received Florida’s analog to a parole date, a mandatory

release date determined by the award of early release gain-time.

See § 921.001(10), Fla. Stat. (Supp. 1992). The determination of

his mandatory release date required no speculation or prognostica-

tion whatsoever. If Morales had already been granted parole and

the challenged statute revoked that parole—and al! future elig-

ibility for parole—based solely on his offense of conviction, looking

backward to determine his likelihood of obtaining parole in the

first instance would have been a pointless exercise.

in prison.* The only question in this case is whether that

retroactive increase in Petitioner’s term of incarceration is

consistent with the requirements of the Ex Post Facto

Clause. Respondents’ attempt to reconstruct the likelihood

of an overcrowding gain-time award in the period prior

to its actual award is an irrelevant distraction.

B. Florida’s motivation for enacting overcrowding re-

lease credit statutes is similarly irrelevant. Florida has the

power and the authority to prescribe the penalties for

violations of state law, so long as those prescriptions oper-

ate prospectively. The state’s motivation for creating or

revising prison sentences, sentencing systems and deter-

minants of the duration of prison time in the first instance

has no bearing on whether the retroactive increase in the

punishment for selected offenses as a result of the 1992

Act violates the Ex Post Facto Clause.*

II. THE 1992 ACT'S REVOCATION OF PETITIONER’S

EARLY RELEASE GAIN-TIME CREDITS RETRO-

ACTIVELY INCREASED HIS PUNISHMENT BY

INCREASING THE LENGTH OF HIS INCARCERA-

TION.

Respondents argue that Petitioner’s additional five

years’ incarceration for the same offense did not consti-

* There is no dispute that the 1992 Act, as applied, was retro-

active. See Mathis Br. 34-37.

* Assume, for example that a state enacted a law effective Jan-

uary 1, 1986 providing that a certain crime should be punished by

a penalty of no more than five years. Further assume that the

enacting legislature believed that the severity of that crime actually

warranted a 10-year sentence, but that because of prison population

and fiscal resource constraints, it was necessary to prescribe a five-

year sentence. Finally, assume a person is convicted of that crime

in 1986 and sentenced to five years in prison. If the state increased

retroactively the penalty for the prisoner’s crime to ten years in

1991, the fact that the five-year sentence prescribed at the time of

the offense was motivated in part by overcrowding concerns would

be entirely irrelevant to an Ex Post Facto challenge. Similarly,

the fact that Florida’s motivation in enacting various types of

gain-time was to respond to prison overcrowding is irrelevant to

the question of whether it may retroactively revoke those credits

once they have been awarded.

tute increased punishment because the award of over-

crowding gain-time credits was discretionary in the first

instance. Mathis Br. 30-34. This argument proves too

much. Ultimately, the use of every type of early release

gain-time in Florida is discretionary, as are parole deci-

sions in states retaining a parole system.° Following Re-

spondents’ argument, the government could abolish retro-

actively all a or retroactively abolish parole, with-

out implicating the Ex Post Facto Clause. The clear im-

port of Morales is that the government may not retro-

actively abolish parole (or parole eligibility) or mecha-

nisms providing for early release—if the government con-

stitutionally could abolish parole retroactively for certain

offenders, a fortiori the government could enact a statute

that unambiguously made it substantially less likely that

those offenders would be granted parole. See Morales,

115 S. Ct. 1597 (addressing degree of likelihood of effect

5 Respondents’ attempts to make technical distinctions between

different types of gain-time based on a discretionary/mandatory

distinction are unavailing. The Florida Supreme Court has ex-

pressly held that basic gain-time, which Respondent Mathis char-

acterizes as “automatic” and “mandatory,” is ultimately discre-

tionary. Waldrup v. Dugger, 562 So. 2d 687 (1990). As they must

in light of Weaver v. Graham, 450 U.S. 24 (1981), Respondents

concede that basic gain-time is a determinant of punishment, and

its retroactive revocation a violation of the Ex Post Facto Clause.

Although Respondent Mathis attempts to distinguish between

“gain-time” and overcrowding early release “credits,” the Florida

Legislature did not draw such fine distinctions. See § 944.276, Fla.

Stat. (1987) (Lodg. Doc. 17) (“Administrative gain time”’—which

the Florida Supreme Court has held is indistinguishable from pro-

visional release credits—is triggered when prison population ex-

ceeds 98% of capacity). Nor does the Florida Attorney General

appear to endorse this semantic distinction. See Butterworth Br. 1

(“[Provisional release credits] are widely regarded as a form of

‘gain time,’ a term for a variety of early release mechanisms .. .”).

Finally, contrary to Respondent Mathis’ contention, the clearest

statement in the otherwise inconclusive legislative history demon-

strates that the legislature considered all release credits to be types

of “gain-time.” See Senate Staff Analysis and Economic Impact

Statment for SB 210 (rev. Mar. 7, 1989) (Lodg. Doc. 48) (“Florida

law currently authorizes four different types of gain time: basic,

incentive, meritorious, and provisional credits.”’) .

on parole decision necessary to show Ex Post Facto

violation ).

A. Conspicuously absent from Respondents’ briefs is

any mention whatsoever of the statute governing Petition-

er’s release, § 921.001, Fla. Stat. (Supp. 1992). Respond-

ents’ failure to discuss this statute is telling, because the

statute plainly demonstrates that provisional release cred-

its (“PRC”), once awarded, were a central, mandatory

determinant of the duration of the recipient’s incarcera-

tion. Because Respondents’ unsupported assertions may

have confused the role of PRC in determining the length

of Petitioner’s incarceration, a careful step-by-step review

of the actual governing statutes is necessary to clarify the

requirements of the law of Florida during the relevant

period. The contemporary statute governing the release

of Florida prisoners from custody provided, in relevant

part:

A person who is convicted of a crime committed on

or after October 1, 1983, but before October 1,

1988, shall be released from incarceration only:

(a) Upon expiration of his sentence;

(b) Upon expiration of his sentence as reduced

by accumulated gain-time;

ing clemency; or

(d) Upon attaining the provisional release date.

§ 921.001(10), Fla. Stat. (Supp. 1988) (Lodg. Doc. 12)

(emphasis added).* The statutory language is clear and

mandatory—a prisoner shall be released on his provisional

release date. “Provisional release date,” in turn, is defined

in the provisional release credit statute:

At such time as provisional credits are granted, the

Department of Corrections shall establish a provi-

sional release date for each eligible inmate incarcer-

ated. which will be the tentative release date less any

provisional credits granted.

* The text of Section 921.001(10), Fla. Stat. remained unchanged

from 1988 to 1993.

§ 944.277(3), Fla. Stat. (Supp. 1992) (Lodg. Doc. 24)

(Pet. Br. App. 3a) (emphasis added). Finally, the gov-

erning statute defines “tentative release date” as

the date projected for the prisoner’s release from cus-

tody by virtue of gain-time granted or forfeited as

described in this [gain-time statute]. The initial ten-

tative release date shall be determined by deducting

basic gain-time granted from the maximum sentence

expiration date. Other gain-time shall be applied

when granted or restored to make the tentative re-

lease date proportionately earlier; and forfeitures of

gain-time, when ordered, shall be applied to make

the tentative release date proportionately later.’

§ 944.275(3)(a), Fla. Stat. (1987) (Lodg Doc. 17).

Together, the three quoted statutes make clear the for-

mula mandated by Florida law for determining the dura-

tion of a prisoner’s incarceration: A prisoner’s mandatory

release date is determined by the guideline sentence im-

posed by the sentencing judge, less all gain-time he has

been awarded, including provisional release credits and

all other overcrowding gain-time. The interaction of the

three statutes also shows the integrated nature of the

several component determinants of the length of punish-

ment under the Florida system. The statutory sentence

range, the sentencing guidelines, and all forms of gain-

time operated together as part of an organic whole to

determine the length of an offender’s incarceration.*

7 The statute later provides that gain-time may be forfeited by

prison administrators “{[w]hen a prisoner is found guilty of an

infraction of the laws of this state or the rules of the department

[of corrections].” § 944.275(5), Fla. Stat. (1985 & 1993) (Lodg.

Doc. 14, 15); see § 944.28, Petitioner committed no such infrac-

tion, and Respondents do not here contend that gain-time credits

awarded under Section 944.275 were forfeited or rescinded. At

issue in this case is the legislative withdrawal of Petitioner’s pro-

visional release gain-time credits.

* The futility of Respondents’ attempt to differentiate between

the several integrated statutory determinants of punishment under

Florida law is illustrated by the inconsistent arguments of Respond-

ent Mathis. Superintendent Mathis first states that under applic-

able Florida law, “an offender’s actual prison penalty—that is, his

Contrary to Respondents’ contention, the provisional

release date was not a mere “forecast,” it was a non-

discretionary, mandatory release date. A careful reading

of the relevant statutes reveals that the only contingent or

“provisional” feature of provisional release credits was

whether they would be granted in the first instance.°

Once the state decided to award the credits, there was

no statutory provision for their revocation under any cir-

cumstances. There is simply no support in Florida stat-

utes, or relevant legislative history, for the notion that the

state retained discretion to withdraw previously granted

provisional release credits if overcrowding should subside.”®

To be sure, consistent with the Ex Post Facto Clause,

the state could have created an early release system that

prospectively reduced the duration of incarceration only

so long as overcrowding persisted. Indeed, in 1989 (effec-

tive 1990) the Florida Legislature incorporated into its

sentencing system just such a mechanism, entitled “control

release,” which expressly provides for the adjustment of

prisoners’ release dates for a variety of reasons, including

changes in overcrowding. See § 947.146(6)(a)(3), Fla.

Stat. (1989). The statute—which remains in effect today

punishment—was calculated as the actual sentence less the award

of mandatory gain-time.” Mathis Br. 32 (emphasis added). Apply-

ing this formula, Mathis continues, Petitioner’s “22-year sentence

became roughly a 15-year sentence.” Jd. at 32 n.37. On the very

next page, Mathis reverses field, claiming that “petitioner cannot

show that the punishment for his crimes on the date he committed

them was something less than the 22 years to which he was actually

sentenced.” Jd. at 33.

* Mathis maxes much of the fact that the Legislature named the

gain-time credits at issue here provisional release credits, suggest-

ing without any citation to authority that the mere name of the

credits makes such credits insubstantial and ephemeral. Mathis

Br. 33. As this Court has made abundantly clear, the label the

government affixes to a statute does not immunize it from Ex Post

Facto scrutiny. See, e.g., Collins v. Youngblood, 497 U.S. 37, 46

(1990).

There is no dispute that, absent the 1992 Act, Petitioner’s pro-

visional release date was October 1, 1992, the date he was actually

released.

—gave the state the prison population management flexi-

bility it desired. Importantly, the change to the sentencing

system effected by Section 947.146 does not offend the

Ex Post Facto Clause so long as the government applies

it prospectively, i.e., so long as it applies only to persons

who commit offenses after the statute’s effective date. In

contrast, what the government may not do is what it did

to Petitioner—enact a law that increases retroactively the

duration of his incarceration for the same offense. See

Miller v. Florida, 482 U.S. 423 (1987); see also Morales,

115 S. Ct. at 1603 n.4 (ex post facto analysis of adjust-

ments to mechanisms surrounding sentencing process

focuses on whether those adjustments increased prisoner’s

term of confinement).

Respondents cannot seriously dispute that an increase

in the duration of incarceration is an increase in the quan-

tum of punishment. Incarceration—the deprivation of lib-

erty—is, and always has been, the primary form of pun-

ishment societies mete out for serious crime. With the

exception of capital cases, the crux of virtually every

Ex Post Facto case is a claim that the challenged govern-

ment action had the effect or potential effect of increasing

the length of the claimant’s term of incarceration. See,

e.g., Morales, 115 S. Ct. 1597 (petitioner complained that

less frequent parole hearings reduced his potential for a

shorter term of incarceration through parole).

B. The only distinction between this case and the

Lindsey-Weaver-Miller trilogy is that the retroactive pun-

ishment in this case is more clear, more definite, and more

onerous. In Lindsey, the statutory change eliminated the

low end of the range of incarceration terms that could be

imposed for specific crimes. In Weaver, the State of Flor-

ida reduced the number of gain-time credits that a prisoner

was eligible to receive after the effective date of the new

statute. In each case, it was possible that the duration of

the prisoner’s sentence would have been the same under

the amended statute as under the statute in effect at the

time of his offense. Nonetheless, in both cases the Court

held the statutory change violated the Ex Post Facto

Clause. Here, unlike Lindsey and Weaver, there is no

question that the 1992 Act actually increased Petitioner’s

term of incarceration.

Florida’s action in Miller is closer to the retroactive

change it imposed in the present case. In Miller, the

state changed the presumptive sentencing range for the

petitioner’s crime from 342-442 years to 514-7 years.

The Court held that this post-offense increase in the

“quantum of punishment” violated the Ex Post Facto

Clause. Miller, 482 U.S. at 433-34. Here, Florida seeks

to achieve the same result it achieved in Miller by retro-

actively “adjusting” a different determinant of the duration

of his sentence. The result here differs only in its certainty

and severity. In Miller, the offender faced the possibility

of an increased sentence of as much as 3% years (new

maximum of seven years less old minimum of 342). Here,

Florida imposed—through the 1992 Act—a certain in-

crease in incarceration of more than five years.

Ill. RESPONDENTS’ NEWFOUND ARGUMENT THAT

PETITIONER IS NOT ENTITLED TO THE PRO-

TECTION OF THE EX POST FACTO CLAUSE IS

BARRED BY THEIR FAILURE TO RAISE IT

BELOW; REGARDLESS, IT MISAPPREHENDS

BOTH PETITIONER’S CLAIM AND EX POST

FACTO LAW.

Respondents raise for the first time in their merits briefs

the new argument that the State’s retroactive cancellation

of Petitioner’s early release gain-time credits and the re-

sultant increase in the duration of his incareation is im-

mune from ex post facto scrutiny because the version of

the statute under which Petitioner received credits was

not in effect at the time of his offense. See Mathis Br.

26-30; Butterworth Br. 14-19. Never before in this case,

including Respondents’ Opposition to Certiorari, have Re-

spondents raised this argument for any court’s considera-

tion. Only after the magistrate judge, the district court,

and the Eleventh Circuit had ruled, and after this Court

granted certiorari, did Respondents see fit to raise this

hypertechnical argument drawing distinctions between one

—

early release statute and the virtually indistinguishable

statutes that served as its functional replacements.

A. This belated argument is not properly before the

Court, and the Court should follow its sound general prac-

tice of refusing to hear arguments raised for the first time

in this Court. The Court generally does not address argu-

ments that were not the basis for the decision of the courts

below. Matsushita Elec. Indus. Co. v. Epstein, 116 S. Ct.

873, 880 n.5 (1996). This is particularly true where, as

here, the issue involves a question of state law. See

Peralta v. Heights Medical Ctr., Inc., 485 U.S. 80, 86

(1988). Principles of judicial efficiency, fairness and

notice, and inter-system comity militate against allowing

Respondents to decline to make this argument before the

lower courts, only to raise it for the first time after this

Court has granted certiorari, in an attempt to divert the

Court from the merits of Petitioner's ex post facto

challenge.”

B. Even if the Court departs from its general policy

and considers Respondents’ new argument, the Florida

Supreme Court has already resolved the state law issue

in Petitioner’s favor. As Respondents themselves insist,

the interpretation and application of state penal law, in-

cluding all early release gain-time statutes, is the province

of the state judiciary. See Mathis Br. 34-38. The state

law question of whether there was any rélevant substan-

tive difference between emergency gain-time and the two

overcrowding release credit statutes that succeeded it is

properly decided by Florida state courts. The Florida

Supreme Court has decided several ex post facto cases

1! Exactly four years have elapsed since Petitioner’s October 1992

release. As a result of the 1992 Act, Petitioner has spent nearly

3‘ of those years in prison. As this Court recently noted, “[w]hen

a litigant is subject to the continuing coercive power of the Gov-

ernment in the form of imprisonment, our legal traditions reflect

a certain solicitude for his rights.” Stutson v. United States, 116

S. Ct. 600, 603 (1996). Such “solicitude” is particularly appropriate

where, as here, the government allows a case to work its way

through the system and then raises an entirely new argument for

the first time after this Court has granted certiorari.

arising in the same temporal circumstances, i.e., a pris-

oner whose offense date pre-dated the enactment of pro-

visional release credits challenging the State’s treatment

of provisional release credits. In each case, the Florida

Supreme Court decided the ex post facto challenge to

cancellation of provisional release credits or administra-

tive gain-time. See, e.g., Griffin v. Singletary, 638 So. 2d

500 (Fla. 1994) (inmate’s offense date was prior to en-

actment of provisional release credits and administrative

gain-time statutes, court decided ex post facto challenge

to retroactive cancellation of both types of gain-time) ';

Ipnar v. Singletary, No. 81,040 (Fla. Apr. 29, 1993)”;

see also Herring v. Singletary, 879 F. Supp. 1180 (N.D.

Fla. 1995) (petitioner committed offense in 1984, court

12 In Griffin v. Singletary, 638 So. 2d 500 (Fla. 1994), a prisoner

sentenced in 1986, when emergency gain-time was the only type of

overcrowding credit available, challenged the revocation of provi-

sional release credits awarded under the successor statute also at

issue in this case. The Court proceeded directly to the question

of whether the revocation of provisional credits violated the Ex

Post Facto Clause, pausing briefly to note that “ ‘provisional credits

and ‘administrative’ gain-time are the same for [ex post facto |

purposes .. . The sole purpose of both forms was to reduce prison

overcrowding when the correctional system reached ninety-eight

percent of its lawful capacity.” Jd. at 501. The Court further noted

that although provisional credits were not technically referred to

as “gain-time,” “the distinction lacks a difference, if only because

the two are different names applied to essentially the same thing.

Id. at 501 n.1.

18 In Ipnar, Respondent Singletary raised the very timing argu-

ment he has raised belatedly in this case. See Respondent Single-

tary’s Response to Petition. for a Writ of Habeas Corpus at 24,

Ipnar v. Singletary, No. $1,040 (Fla. Apr. 29, 1993). Mr. Ipnar

committed his offense in 1985, and he challenged the revocation of

his provisional release credits. Respondent Singletary argued that

Ipnar could not challenge the revocation of provisional release

credits because the statute providing for that version of credits

was enacted after Ipnar had committed his crime and been con-

victed and sentenced. See id. In an unpublished memorandum

opinion, the Florida Supreme Court declined to address this argu-

ment, instead proceeding directly to reject Ipnar’s ex post facto

challenge to the cancellation of provisional release credits. See slip

op., Ipnar v. Singletary, No. 81,040 (Fla. Apr. 29, 1993).

decided ex post facto challenge to 1992 revocation of

provisional release credits, enacted in 1988). Like fed-

eral courts, the Florida Supreme Court will reach a con-

stitutional question only if the case cannot be decided on

statutory or other non-constitutional grounds. Florida v.

Tsavaris, 394 So. 2d 418, 421 (Fla. 1981); see Florida

Vv. Mozo, 655 So. 2d 1115, 1117 (Fla. 1995).™

Moreover, even if the Florida Supreme Court had not

resolved the issue—which it has—there is no relevant sub-

Stantive difference between the succeeding versions of

overcrowding gain-time. As demonstrated in Respondents’

briefs, provisional release credits were part of a series of

“overcrowding gain-time” mechanisms created by Florida

to respond to the excess of prisoners over prison space.

See Mathis Br. 3-9; Butterworth Br. 2-7. The three suc-

cessive statutes in effect during the relevant period all

provided for the discretionary award of gain-time when

the Florida prison population reached 98% of capacity.”

4 In Tsavaris, the petitioner contended that because the Florida

Supreme Court had not expressly addressed the application and

meaning of the statutory term “interception” in a prior decision

regarding the constitutionality of a statute as applied, the Court

had not decided the question in the prior case. Tsavaris, 394 So. 2d

at 421. After acknowledging that the prior decision had not ex-

pressly addressed the statutory interpretation question, the Tsavaris

Court rejected petitioner’s attempt to distinguish the prior case,

holding “had this Court believed that [the activity at issue in the

prior case] did not fit within the term ‘interception,’ we most cer-

tainly would have decided the case on those grounds, for the Court

will not pass upon a constitutional issue if the case can be decided

on other grounds.” Jd. (emphasis added).

1 Respondent Mathis misstates the relevant statutory parameters

in his attempt to dismiss the fact that Florida prisons reached the

98% statutory trigger a month before Petitioner’s sentencing.

Mathis Br. 28 n.34 (claiming, without citation, that the statutory

trigger at the time of sentencing was 99%). At the time Lynce

committed the offense, at the time of his plea, and at the time he

was sentenced, the statutory trigger for overcrowding credits was

98% of capacity. See §944.598(1), Fla. Stat. (1985) (Lodg. Doc.

27). It was not until after Petitioner was incarcerated that Florida

changed the trigger percentage for one type of overcrowding gain-

time (“emergency gain-time”) to 99%. See § 944.598(1), Fla. Stat.

(Supp. 1986) (Lodg. Doc. 29).

Only the name and the technical operation of the early

release mechanisms changed as one mechanism supplanted

its predecessor between 1986 and 1988." The substantive

core remained constant—overcrowding credits, when

awarded, operated in conjunction with the Florida sen-

tencing guidelines to create a mandatory release date. See

§§ 921.001, 944.275, 944.277, Fla. Stat. (Supp. 1983)

(Lodg. Doc. 11, 17, 19); § 944.276, Fla. Stat. (1987)

(Lodg. Doc. 17-18); § 944.598, Fla. Stat. (1985) (Lodg.

Doc. 19-21). Florida’s changes in the mechanics of

awarding gain-time credit in 1987 and 1988 did not vio-

late the Ex Post Facto Clause precisely because, with

respect to Petitioner, they effected no substantive change

in the law. Compare Waldrup v. Dugger, 562 So. 2d 637

(Fla. 1990) (application of successor gain-time statute

to reduce DOC discretion to grant gain-time under statute

in effect at time of offense violates ex post facto prohibi-

tion) with Morales, 115 S. Ct. at 1603 (mechanical

changes to sentencing and release procedures are per

mitted by the Ex Post Facto Clause) .”

16 Respondents’ argument that emergency release credits were

limited to 30 total days per inmate also misreads the statute.

Under the statute, DOC was required to declare a state of «mer-

gency, triggering eligibility for the award of emergency credits,

“whenever the population of the [Florida] correctional system ex-

ceeds 98 percent of [its] lawful capacity.” § 944.598(7), Fia. Stat.

(1985) (Lodg. Doc. 27) (emphasis added). If emergency release

credits and resulting releases of prisoners were imadequate to

bring the prison population below 98% of capacity, DOC would be

required to declare another emergency, triggering new eligibility

for emergency gain-time. Under the statv’e, such successive awards

of emergency gain-time could occur each time the prison population

exceeded 98% of capacity.

17 Unlike the 1992 Act, the mechanical changes to overcrowding

gain-time in 1987 and 1988 made no significant substantive changes.

The Florida Legislature alse amended the provisional release credits

statute in 1989 to add offense-based eligibility exclusions. See

§ 944.277(1) (i) & n.2 Fla. Stat. (1989) (Ledg. Doe. 21). This

was the first time since the creation of the system in 19838 that

attempted murderers were excluded from eligibility for any type

of gain-time. However, because those exclusions expressly applied

prospectively only, they had no substantive effect for prisoners

C. Respondents’ expectation/reliance argument de-

pends on the erroneous premise that the Ex Post Facto

Clause proscribes only laws that thwart a prisoner’s sub-

jective expectation at the time of his offense regarding the

length of his incarceration. See Mathis Br. at 26-30.

This crabbed conception is contrary to an unbroken line

of this Court's cases stretching to the founding of the

Republic, holding that the Ex Post Facto Clause prohibits

laws that “ ‘retroactively . . . increase the punishment for

criminal acts."” Morales, 115 S. Ct. 1597, 1601 (1995)

(quoting Collins v. Youngblood, 497 US. 37, 43

(1990)). The crux of the inquiry is not what a prisoner

actually expected—or even what he might reasonably have

expected—at the time of sentencing, but rather whether

the challenged statute has the effect of increasing the

quantum of punishment attached to a crime. E.g., Miller

Vv. Florida, 482 U.S. 423, 432 (1987).

Respondents’ expectation/reliance argument misses the

mark for two reasons. First and foremost, reliance is

merely one of the interests protected by the Ex Post

Facto Clause, not a precondition to its application or a

necessary element of an Ex Post Facto claim.” Indeed,

18 Respondents correctly recognize that one of the several inter-

ests protected by the Ex Post Facto Clause is a general reliance

interest. See Miller, 482 U.S. at 430 (Calder found that one purpose

of the Ex Post Facto Clause was to ensure that “legislative enact-

ments ‘give fair warning of their effect and permit individuals to

rely on their meaning until explicitly changed.’”) (quoting Weaver

Vv. Graham, 450 U.S. 24, 28-29 (1981)). Although reliance is one

interest protected by the Clause, actual reliance has never been

an Ex Post Facto claim. With

changes in punishment, the test has always been based

effects, viz., whether a law retroactively changes the quantum

of punishment attached to a crime. See, ¢.g., Collins v. Youngblood,

the punishment for criminal acts”). Moreover, contrary to Re-

spondents’ apparent belief, this Court has never held that a Peti-

tioner must show actual subjective reliance in order to demonstrate

latures from enacting arbitrary or vindictive legislation.

See Calder v. Bull, 3 U.S. (3 Dall.) 386, 389, 396

(1798). Thus, even if the 1992 Act had not invaded the

Ex Post Facto Clause. /d.; see Morales, 115 S. Ct. 1597.

Second, the 1992 Act did violate the objective reliance

interests of Petitioner and similarly situated offenders.

At the time of Petitioner’s offense and at the time of his

plea and sentencing, the law of Florida provided that,

under certain conditions, prisoners would receive over-

crowding gain-time credits. See § 944.598, Fla. Stat.

(1985) (Lodg. Doc. 27). Once awarded, those credits

would reduce the duration of the recipient’s incarceration.

Id. Absent some violation of the law or prison rules by

the recipient, credits awarded were irrevocable.

the mechanics procedures for the award of overcrowd-

Thus, throughout the seven years at issue in this case

(1985 to 1992), Florida prisoners had an objectively rea-

sonable expectation that under certain conditions they

would receive early release credits that would reduce the

length of their incarceration, and that those credits, once

awarded, would not be revoked based on the recipient's

original offense of conviction.

The 1992 Act frustrated the reasonable expectations of

Petitioner Lynce and nearly 3000 other Florida prisoners

by canceling retroactively gain-time credits awarded in

accordance with the statutory scheme described above.

At least 135 of those prisoners were returned to prison

after having been released in accordance with the gain-

that a retroactive change in the law infringed the reasonable roli-

ance interests protected by the Ex Post Facto Clause.

time statutes.” Without fair warning, the 1992 Act vio-

lated reascnable reliance and expectation interests created

by Florida penal statutes and retroactively increased the

punishment of nearly 3000 prisoners.

IV. PRISON ADMINISTRATION CASES HAVE NO

APPLICATION TO FLORIDA’S LEGISLATIVE DE-

CISION RETROACTIVELY TO INCREASE THE

SUBSTANTIVE PUNISHMENT ATTACHED TO

PETITIONER’S OFFENSE.

Respondent Attorney General Butterworth and amici

States (hereinafter collectively referred to as the “At-

torney General”) urge that states’ prison management

concerns require deference to a state’s decision to deprive

dilute the Ex Post Facto Clause’s protections against arbi-

trary deprivations of liberty.

First, unlike all of the cases cited by the Attorney Gen-

eral, which involve the government's rules and regulations

governing persons in custody, this case involves the prior

determination of whether the government lawfully may

continue to incarcerate the Petitioner. See Turner v.

Safely, 482 US. 78 (1987) (prison regulation limiting

inmates’ exercise of First Amendment rights while in

prison); Bell v. Wolfish, 441 U.S. 520 (1979) (same).

As these cases note, the day-to-day management of prisons

is a di and complicated endeavor, and deference to

* judgment in such matters is both neces-

tion of whether the state may incarcerate a citizen is not

a matter of day-to-day prison administration, but a legal

See Letter from Florida Dep't of Corrections (July 9, 1996),

Appendix A to Brief of Amicus Curiae Florida Public Defender

Association, Inc.

question that falls outside the competence and jurisdic-

tion of prison administrators.” Tellingly, the Respondent

most competent to address prison management concerns,

Corrections Superintendent Mathis, does not make this

argument.

Second, the exception the Attorney General advocates

would swallow not only the Ex Post Facto Clause, but

virtually every other constitutional right of prisoners, while

simultaneously eroding ordinary citizens’ _ Protections

against arbitrary government deprivation of liberty. The

Attorney General effectively argues that, to facilitate

prison “administration,” prison officials and state legisla-

tures should be given complete discretion to increase

punishment retroactively, so long as that increase is ration-

ally related to a legitimate penological interest.

The primary penological interest the Attorney General

asserts in support of the cancellation of early release

credits is protection of public safety. See States’ Amicus

Br. 14-16; Butterworth Br. 28-29. In virtually every ex

post facto challenge, the government’s action is rationally

related to the protection of public safety. For example,

few would deny that decisions to incarcerate convicted

felons Miller, Weaver, and Lindsey for a longer period

of time than that prescribed at the time of their offenses

were rationally related to the protection of public safety.

Similarly, a government “administrative” decision to ex-

ecute all prisoners previously convicted of violent crimes

would be rationally related to the goal of protecting gen-

2° The Attorney General suggests that the Court should give the

Cf. Collins, 497 U.S. at 46 (constitutional prohibition of ex post

facto laws is aimed at laws “

retroactively the punishment for an offense) (citing Beazell v.

Ohio, 269 U.S. 167 (1925)).

eral public safety. However, numerous constitutional pro-

tections, including the Ex Post Facto Clause, prohibit

such government actions, regardless of whether they bear

a rational relation to the protection of public safety.

Third, what Florida is really seeking is an unnecessary

waiver of a federally guaranteed constitutional right, in

order to fix a resource problem of its own making, which

is well within the state’s existing power to address. Prison

“overcrowding” is not primarily the result of an Act of

God or some other exogenous force outside of the state’s

control." The surplus of prisoners over prison space—

“overcrowding”—tresults from the State’s refusal to allo-

cate the additional fiscal resources necessary to accommo-

date the inevitable increase in prison population created

by its punishment decisions. As Respondents acknowl-

edge, this “overcrowding crisis” is not new. See, e.g.,

Butterworth Br. 3-4 (prison overcrowding crisis has ex-

isted since at least the early 1970s). Florida cannot argue

at this juncture that overcrowding took it by surprise in

the late 1980s.”

* * * *

*1 Prison population growth is primarily the gradual and pre-

dictable result—maybe even the intended result—of a series of

deliberate legislative decisions regarding crime and punishment,

including the definition of crimes and increases in the duration

of incarceration attached to those crimes. See, e.g., 1988 Fla. Laws

ch. 88-131 (expanding habitual offender laws, creating new 15-year

mandatory minimum sentences, creating prison sentences for all

felonies, including lesser felonies previously subject to non-prison

penalties) ; 1987 Fla. Laws ch. 87-110; 1986 Fla. Laws ch. 86-273,

§ 1 (“The extent of departure [from sentence prescribed by sentenc-

ing guidelines} shall not be subject to appellate review.”). Over-

crowding occurs when a government is unwilling to pay to

construct and maintain sufficient prison space to house the growing

prison population resulting from those decisions. While this re-

luctance is understandable, it cannot justify violation of the Ex

Post Facto Clause.

2 During the 1990s, Florida decided to devote greater resources

to new prison construction. As a result, Florida’s prison over-

crowding crisis has subsided and Florida actually has significant

excess prison capacity. See, ¢e.g., Florida Parole Commission Con-

The 1992 Act retroactively increased the punishment

prescribed for Petitioner’s crime by withdrawing previ-

ously awarded early release credits and revoking a statu-

torily prescribed mandatory release date, based solely on

his 1985 offense of conviction. As a result of this retro-

active statutory change, Petitioner was reincarcerated for

an additional five years. This selective retroactive increase

in punishment is prohibited by the Ex Post Facto Clause.

CONCLUSION

For the foregoing reasons and those stated in Petition-

er’s opening brief, the judgment of the court of appeals

should be reversed and the Petition for Writ of Habeas

Corpus should be granted.

Respectfully submitted,

Of Counsel: H. JAY STEVENS

CARTER G. PHILLIPS JoEL T. REMLAND *