WEAVER v. GRAHAM

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ORAL ARGUMENT OF THOMAS C. MacDONALD, JR., ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Burger: At 1 o'clock we will hear arguments promptly in Weaver v. Graham, the Governor of Florida.

0 [Recess.]

Mr. MacDonald, you may proceed whenever you are ready.

Mr. MacDonald: Mr. Chief Justice and may it please the Court:

This petition for writ of certiorari to the Supreme Court of Florida brings an ex post facto question before the Court, challenging the application to this petitioner of a Florida statute reducing the statutory gain time formula available to those incarcerated in Florida.

Although not a class action it has potential consequences to as many as 16,000 persons sentenced in Florida prior to January 1, 1979.

A statement of the rather brief facts delineates the issue which is involved in this case.

In 1976 Weaver, following a negotiated plea bargain, was sentenced to 15 years in the penitentiary.

Florida law at that time prescribed a gain time formula which was mandated upon good conduct.

We use "gain time" as an expression in Florida.

Some states: "good time".

In common vernacular, time off for good behavior.

The State concedes with great candor that all one needed to do under the Florida statute, and I quote, was "stay out of trouble".

The time was earned each month.

Unidentified Justice: And that was by statute?

Mr. MacDonald: Yes, sir.

The so called new law, Mr. Justice Rehnquist, they added the phrase, "at beginning of each month".

But if you read both statutes, you will see in Subsection 1(c) of the so called old law, or first statute, that it is added each month.

As a matter of administrative convenience alone, when the prisoner is introduced to the system, a so called tentative expiration date is calculated on the assumption that he would earn all of the time.

This is done under both statutes.

In 1978 Florida reduced the formula, the former formula which was set out in brief as the so called 5-10-15, reduced to 3-6-9, a 40 percent reduction applied from January 1, 1979, forward.

The effect of this upon my client is that if he had earned all of the time under the old statute he would have been required to serve only 8-1/2 years.

Under the new statute, 11 years.

Thus the burden of the two years.

Upon petition by several pro se petitioners acting separately to the Supreme Court of Florida, the ruling was had which is now the subject of the petition before this Court.

Acting pro se, without oral argument, and I must say, in candor, without discussion of the controlling authorities enunciated by this Court in the past, the Supreme Court of Florida held in effect that this Act of the Florida Legislature was an act of legislative grace which of course is a monumental begging of the question.

The establishment of the system in the first instance is the act of grace.

But the amendment, alteration, and change is not an act of grace, and that was the issue not discussed.

That doctrine, of course, has been discredited in virtually every state in which this issue has arisen, and in comparable situations it has been discredited, we feel, by the decisions of this Court.

Once the state adopts an early release procedure, be it parole or otherwise, it may not change it.

Unidentified Justice: You suggest that a state could not abolish parole entirely?

Mr. MacDonald: Not for those who are already in the system, Your Honor, because that brings me immediately, Mr. Chief Justice, to the classic definitions which the Court has given to an ex post facto loss, it's the Calder case in 1798, in which we speak of the critical time is the time of the commission of the offense.

Calder limits it to criminal cases and a perhaps small area of penalties or forfeitures.

Beyond that the effective time is the date of the commission of the crime.

Thereafter, under Calder, adoption of a legislative act which would allow a greater penalty is an ex post facto law.

In 1883, for example, in Kring, the Court expressed it slightly differently, stating that with relation to the consequences of the offense, that which alters the situation of the defendant or prisoner to his disadvantage, is a forbidden ex post facto law.

We do not need to go to parole, pardon, things of that type, because we are confronted here with gain time, which the state again concedes, pages 5 and 6 of its brief, gain time has the effect of determining the time of confinement.

And of course, confinement being the antithesis of liberty, and the extension of it, or the diminution of it obviously affects the penalty.

Unidentified Justice: Your case really comes down to the proposition that you expressed when you said, the state which had a parole system could not abolish it with respect to prisoners already convicted while that parole system was on the books.

Mr. MacDonald: That was our opinion, although of course you would not reach that issue in this case.

You're only dealing with the gain time, but I would feel that that would follow.

Unidentified Justice: How do you distinguish?

Mr. MacDonald: There are some differences between parole, obviously it being a much more subjective matter.

We have, for example, outlined in our brief the various types of early release provisions which Florida does have and then contrast it with the so called statutory gain time, the time off for good behavior with which we are concerned here, and so called--

Unidentified Justice: What if Florida after the commission of the offense but previous to the trial expanded the type of information that could be used by the trial judge in sentencing the defendant, if he were convicted.

This new information would be admissible under the new system but not under the old system.

Would that be a violation of ex post facto?

Mr. MacDonald: --There are cases on that, Your Honor.

The question would be whether that ultimately amounted to a procedural change or it would bring us to the fourth classification which is set out in Calder, that which changes the testimony, or the nature of the testimony, to the point where it would on the one hand insure a conviction and without it, on the other hand, there would be no conviction.

Then one would have the fourth category in Calder.

So I would think the conflicting arguments to be advanced on the one hand from your procedural change, which is not ex post facto; on the other hand, a change of such significance that it falls within the fourth category of Calder.

Unidentified Justice: What if a state adopts a code of evidence under the new code, after a given person has committed a crime, before he is tried, before he is charged with the crime.

And in the new code certain evidence which was previously inadmissible is now made admissible.

Is that ex post facto?

Mr. MacDonald: It might very well be xx the fourth definition of Calder, although there are some interesting cases which we did not brief because I sought only to brief those decisions of the Court which related to punishment.

This is the third category enunciated by Mr. Justice Chase.

There are, I would suggest to you, if it was clear that the admission of this evidence... for example, the changing of the nature of the testimony, which I believe is the phrase in Calder... for example, you'll find that quoted, Mr. Chief Justice, on page 20 of our brief:

"Every law that alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense. "

We need not go that far in this case.

We contend the case is almost squarely within Lindsey v. Washington, a 1937 case, in which the Court held that that which had been formerly a permissive sentence now made mandatory subsequent to the commission of the crime was a forbidden ex post facto law; followed by the per curiam affirmance of the three judge district court in Massachusetts in 1968 in Greenfield, which held that there, subsequent to the crime, Massachusetts adopted a statute which precluded parole violators from earning gain time for the first six months after reincarceration, that also being held a prohibited ex post facto law.

It's interesting to compare the result in that case with this case.

In Massachusetts the petitioner, Greenfield, lost 100 percent of the opportunity to achieve gain time for six months.

In this case my client loses 40 percent for 12 years.

And I've measured that in the brief, and I think you can see the distinction in the materiality and the substantiality of the burden imposed upon him.

As I say--

Unidentified Justice: Mr. MacDonald, may I just ask this one question.

I understand that generally the ex post facto cases speak in terms of the date of the offense.

Mr. MacDonald: --Yes, sir.

Unidentified Justice: But would it not be more appropriate in this case to focus on the date of the sentencing or the date of the conviction, because--

Mr. MacDonald: Indeed it would.

Unidentified Justice: --as of the date of the trial the judge could adjust or... I mean, the fact that the offense occurred before and then he was tried afterwards, I couldn't see there'd be any unfairness.

Mr. MacDonald: Well, Mr. Justice Stevens, I could not agree with you more.

The distinction need not be made in this case because the extending amendment comes not merely after sentencing, but after approximately 2-1/2 years of acquisition of time under the old formula.

I may say, it's particularly significant and I agree with you completely, because this comes as a result of a plea bargain.

We cite in our brief a number of remonstrances to trial judges in their seminars; keep in mind what the man will really serve.

We all know that in the combative atmosphere of the criminal justice system the ultimate... to use perhaps an analogy familiar in another situation, the bottom line in the criminal justice system is, how much time must I actually serve?

Not what is written on the paper, but how long will I be there and how long will I lose my liberty?

I think that that point could very well be made.

The problem, however, is that from the time of Calder, the date of the crime--

Unidentified Justice: Are you suggesting that the judicial system, or the society must respond to what the convicted criminal thinks about the whole problem, by that bottom line suggestion?

Mr. MacDonald: --Your Honor, in a plea bargaining situation, one surrenders certain rights.

This man pled guilty.

Unidentified Justice: Well, does it make any difference whether the person pleads guilty or is found guilty, for this purpose?

Mr. MacDonald: I think not for this purpose.

I simply point out that if one goes to reliance, if one deals with the test enunciated by the Supreme Court of Florida, that is, no vesting, no right of reliance, then one can make an argument.

Here there is, in this case, indeed reliance.

Of the--

Unidentified Justice: Do you think that's--

Mr. MacDonald: --Beyond that, I think... if I might pursue that just for a moment, the trial judge himself is entitled to rely upon it.

Let us suggest that Florida abolishes gain time January 1, 1979.

The trial judge did not intend for the man actually to spend 15 years, he measured it by the law in effect at that time.

Unidentified Justice: --That's quite a different thing from what the defendant expects or anticipates, isn't it?

Mr. MacDonald: Well, I think he is entitled, if the Court please, when he enters into the judicial system, to believe that the ex post facto clause means what it says and that the law and rules cannot be changed.

And I think to that extent society should be concerned about what he relied upon; yes, indeed.

Unidentified Justice: Mr. MacDonald, straighten me out on one detail.

He was sentenced in '76 originally?

Mr. MacDonald: Yes, Mr. Justice.

Unidentified Justice: The statute was changed in '78?

Mr. MacDonald: Yes, sir.

Unidentified Justice: And what about the gain time that he "earned" up to that time?

Was that under the old system?

Mr. MacDonald: All right.

That... that... yes, sir.

And that brings--

Unidentified Justice: That was never taken away from him?

Mr. MacDonald: --That's correct.

It was not taken away from him in the sense of recalculation under the new formula.

And that brings me directly to one of the answers which the state gives.

This is not retroactive because we only take it from this day forward, we don't take that which was already earned.

That is not even a good argument under Florida law, and it's one reason that the Florida Supreme Court did not even deal with it.

Florida, for example, defines a retrospective or retroactive statute as one which attaches a disability to a prior act.

And of course, obviously this does.

This Court in Kring, which I mentioned earlier, spoke of attaching consequences to prior acts.

This clearly is aimed at the measure of punishment, and therefore is retroactive.

One is not in prison merely to acquire or to lose gain time.

One is there serving a sentence as a result of criminal misconduct.

Unidentified Justice: Well, how do you distinguish Dobbert, then, because there in the new statute it was provided for a minimum of 25 years, which the old statute had not provided?

Mr. MacDonald: Well, in Dobbert the Court did not answer the question because the man was sentenced to death and did not get the life sentence, but I think--

Unidentified Justice: Well, but... we still don't know how much time your man has got, sir?

Mr. MacDonald: --We know that he is losing this time each month, Your Honor, from January 1, 1979.

Unidentified Justice: Wasn't there some discretion?

Mr. MacDonald: The State says, the words under the old statute were,

"faithful, diligent, industrious, orderly, and peaceful; good conduct. "

Under the new statute, "satisfactory" and "acceptable".

Unidentified Justice: Do you think it takes away the incentive to behave himself in prison?

Mr. MacDonald: No, indeed, Your Honor.

That comes from the denial of the gain time for the lack of good conduct, which is an entirely different matter.

He also may forfeit prior earned time.

Unidentified Justice: But you're saying that he can behave all he wants to, but he will earn less good time every day than he did before?

Mr. MacDonald: That's correct.

Yes, sir.

Unidentified Justice: And hence he's been deprived of the opportunity to earn 2X good time instead of X?

Mr. MacDonald: Yes, sir, because as a matter of mathematics, he was in the ten day a month category at the time the statute went into effect.

He is now in the six days--

Unidentified Justice: At the time he went into prison the promise was, every day you're good you earn ten days?

Mr. MacDonald: --Yes, sir.

Unidentified Justice: And that promise was changed to every day you're good you get five, or whatever the figure is?

Mr. MacDonald: Yes.

That's this case.

Unidentified Justice: That's one ground for your case?

Mr. MacDonald: Yes, sir.

Unidentified Justice: What about if you take it from the time of the offense, the promise, as we're calling legislative enactments here, in Dobbert was that you were going to serve a minimum of 25 years regardless under the new statute?

Mr. MacDonald: Yes, but the Court said, Mr. Justice Rehnquist, that if in fact Petitioner Dobbert had not been condemned to death but had been sentenced to the life imprisonment and had to serve the 25 years, my recollection is the court said, there would be a very serious ex post facto question.

And I believe under the decided precedents... in fact, I would say that would be governed almost completely by Lindsey v. Washington, which you distinguished in your opinion.

Remembering also that in that case Dobbert made what I would regard as virtually a sophistry that he wasn't governed by either statute because there wasn't a valid capital offense statute in effect in Florida at that time.

It is argued by the State that there is no liberty interest in unearned gain time, and therefore the ex post facto clause is not applicable.

In other words, if we do not reach procedural due process in the cause, then we need not concern ourselves with the ex post facto clause.

I submit that those are both mutually independent.

We mention such cases as Greenfield and Wolff v. McDonnell in our brief to point out that the Court has held in the past that gain time once acquired is a liberty interest, and once you lose earned gain time for disciplinary reasons, it must be done with certain minimal procedural due process.

My point in citing those cases is not to suggest this is a Fourteenth Amendment case at all, but merely to point out that by definition the right to acquire a liberty interest necessarily affects liberty in the first instance, thus affects punishment, and thus is within those cases which we cite under the ex post facto clause.

Unidentified Justice: What do you do about the Lindsey case?

Mr. MacDonald: Lindsey?

I think Lindsey is clearly in point in our situation, if the Court please.

Unidentified Justice: And tell me why.

Mr. MacDonald: All right.

It was a Washington statute which provided, as I recall, the period was 15 years, at the time of the commission of the offense.

Unidentified Justice: It required a penalty of 15 years?

Mr. MacDonald: That was permissive.

It was within the discretion of the trial judge.

Unidentified Justice: Well, what was the authorized penalty at the time of the crime in Lindsey?

Mr. MacDonald: I recall it was 15 years.

It was within the sentencing range of the judge; subsequent to the commission of the offense it was made mandatory.

Forgive me if I'm wrong about the number but the point is that what was formerly the outer limit of his discretion became a minimum.

Unidentified Justice: So what was he sentenced to, though?

Mr. MacDonald: My recollection... I do not recall--

Unidentified Justice: Wasn't he sentenced to 15 years?

Mr. MacDonald: --Yes, he was.

And the Court--

Unidentified Justice: Now, here's a law that says, at the time of the crime you can be punished up to 15 years.

He is sentenced to 15 years?

Mr. MacDonald: --Yes, sir.

Unidentified Justice: Then, the law is changed to 15 years?

Said 15 years mandatory?

Mr. MacDonald: But the Court said that it need not inquire whether technically that was an increase in punishment because it violated the statute; that he had the right to go before the judge and receive consideration by a trial judge who was not obliged to sentence him ten to 15 years, but he might very well, under the former statute.

And I think obviously that's a much more ethereal concept than the one my client--

Unidentified Justice: You think that's different from Dobbert, you say?

Mr. MacDonald: --Well, that's what this Court held; yes, indeed.

Because he was sentenced to death, and so it made no difference.

It was purely theoretical.

I think I have a stronger case than Lindsey, and of course Dobbert had no case.

I would say quite briefly in closing--

Unidentified Justice: Mr. MacDonald, before you close, do you have any response to the state's argument that by virtue of liberalizing the opportunities for extra gain time, that the package as a whole is actually more--

Mr. MacDonald: --Yes, Your Honor, I had just passed that over because I saw my time was running out.

I say, we have printed in the reply, in the appendix to our reply brief, a comparison of the former statutory gain time, the permissive statutes which are not mentioned by the State, the administrative rules which were adopted by the Division of Corrections pursuant to those permissive statutes, which altogether permitted my client both to have the benefit of the 5-10-15 formula.

That's substantially all.

I don't believe that I quite explained away the going to college or the disability, but there's nothing on this record that shows that my client is even qualified to do that, so I think that on the whole I have made a case in our reply brief that what the state says is simply not the case, and that the only change in the law is the one which the Supreme Court of Florida says at the outset of its brief opinion.

The difference in this statute is we formerly had a 5-10-15 formula; we now have a 3-6-9.

That's the question only.

I think Florida should have kept its word and that this petitioner is entitled to have his gain time calculated from that day forward under the old formula.

Thank you.

Chief Justice Burger: Mr. Allbritton.

ORAL ARGUMENT OF WALLACE E. ALLBRITTON, ESQ., ON BEHALF OF THE RESPONDENT

Mr. Allbritton: Mr. Chief Justice and may it please the Court:

As I understand the issue urged upon this Court, it is that the application of Florida's new gain time statute in the computation of gain time makes the statute an ex post facto law as applied to petitioner.

This same issue was rejected by the Florida Supreme Court.

As I understand it, the basis for the ex post facto claim is that Section 944.275 permits the accumulation of a lesser amount of gain time than did the old statute, Section 944.27.

The Respondent contends that Florida's new gain time statute is not ex post facto, because it does not apply a new punitive measure to a crime already consummated to the detriment or material disadvantage of the wrongdoer.

And I submit to the Court that this is a necessary ingredient in order to support an ex post facto claim, and this Court so held, I believe, in Dobbert v. Florida.

The statute is remedial and constitutes a procedural change in the statutory mechanism designed for the purpose of granting gain time to deserving prisoners.

The statute deprives petitioner of nothing that he has already earned, and at this point let me urge upon the Court that I believe it should be pointed out that under this Court's holding in Beazell v. Ohio, that the prohibition against ex post facto laws does not limit the legislative control of remedies and modes of procedure.

I think this Court's decision in Hopt v. Utah ably pinpoints the position of the respondent here, and I quote very briefly.

It says,

"The crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his guilt, all remain unaffected. "

And I submit to you that those same remarks could be applied to the statute that is here under attack.

Unidentified Justice: Mr. Attorney General, suppose the criminal statute providing for the penalty said, the penalty for this crime shall be 15 years, less any good time earned at the rate of five days for every day of good behavior.

I suppose you would be here arguing the same thing, that the Legislature after a fellow is sentenced under that provision, that the Legislature could amend that penalty provision by saying, less two days for every day of good behavior?

Mr. Allbritton: That's true, but Mr. Justice White--

Unidentified Justice: Wouldn't your argument follow?

Mr. Allbritton: --Yes, I would follow the same argument.

I want to point out, sir, that your argument assumes something that we do not have in this case at all.

The statute in this case, the gain time statute is no part of the sentencing proceeding at all, none whatsoever.

Unidentified Justice: I understand that.

Mr. Allbritton: All right, sir.

Unidentified Justice: But nevertheless, nevertheless, if prior to amendment the warden refused to give him good time for days that he behaved, I suppose the warden would be in trouble, wouldn't he?

Mr. Allbritton: He would be in trouble; yes.

Because the man had earned it.

He had earned the right, then; absolutely.

And he would have a colorful due process argument.

Unidentified Justice: Well, the warden couldn't... the warden couldn't tell him in advance either that, well, you may have earned a lot of good time up to date, but from here on you don't earn any good time.

Mr. Allbritton: Justice White, you're assuming things that I don't believe exist at all.

I can't accept that.

I don't believe any warden is going to tell any prisoner that at all.

Unidentified Justice: No, I'm sure he wouldn't.

He'd know better.

Mr. Allbritton: I would hope so.

Yes, sir.

Unidentified Justice: Mr. Attorney General, you do recognize that this man loses four days a month?

Mr. Allbritton: No, sir, I do not.

I want to point out that although the new gain time statute does reduce the fixed amount of calendar statutory gain time from the fixed formula of 5, 10, and 15, to 3, 6, and 9.

However, sir, by virtue of additional provisions contained therein, the new statute provides greater opportunity to accumulate a greater amount of gain time than did the old statute.

Now, let me illustrate this with just three examples.

Unidentified Justice: But he still loses the four days?

Mr. Allbritton: Sir?

Unidentified Justice: He still loses four days?

Mr. Allbritton: Not necessarily.

Unidentified Justice: What you're saying is, although he loses four days, he can get some more days out of something else?

Isn't that what you're saying?

Mr. Allbritton: More so; yes, sir.

More than--

Unidentified Justice: But you still admit he loses more than four days?

Mr. Allbritton: --He could lose four days.

That's true.

Unidentified Justice: No, doesn't he lose four days?

Mr. Allbritton: Not necessarily.

No, sir, I won't admit that at all.

Unidentified Justice: Can he get ten days like he did before?

Mr. Allbritton: Not under the statutory--

Unidentified Justice: Can he get ten--

Mr. Allbritton: --5, 10, and 15; no.

Unidentified Justice: --So he loses four?

Mr. Allbritton: He can get it in other ways.

Unidentified Justice: Sure.

He can get it in a lot of ways.

He can--

--Counsel, without these additional provisions you'd still be making the same argument?

Mr. Allbritton: I'd still be making the argument based primarily on the fact that under Florida law parole and probation and gain time are a matter of legislative grace.

Just because we have that doesn't mean that a prisoner is automatically declared to have a liberty interest therein.

We have it.

It was given at the grace of the Legislature, and it can be withdrawn at the grace of the Legislature almost at will.

Unidentified Justice: After it's given?

Mr. Allbritton: After it's given.

But--

Unidentified Justice: It can be withdrawn after it's given?

It can be withdrawn after it's given?

Mr. Allbritton: --Just hear me out, please, sir.

It can be withdrawn, yes, because they didn't have to give it in the first place.

But in so doing they cannot deprive a man of the gain time that he has already earned; oh, no.

I'm not arguing that and I don't wish to be understood that way at all.

They can withdraw it, but the gain time the man has already earned, he cannot be deprived of that by a legislative act.

No, sir.

Unidentified Justice: What do you do with... what was the name of that case, that your colleagues rely on here?

Scafati?

What do you do about that case?

Mr. Allbritton: That case is an illustration of what we spoke about just minutes ago.

In the Scafati case and under Massachusetts, the good time credits adhere in the sentence imposed.

After Scafati was sentenced and he went to the penal institution, he was then paroled and he was returned therefore because he violated the parole.

Now then, in the interim, in the interim, after Scafati was sentenced, if the Court please, they passed a law which says that if a man is paroled and violates the conditions thereof and is returned to the penal institution, he is deprived of good time credits for the first six months after his return.

Unidentified Justice: So you're deprived of the right to earn good time credits for six months?

Mr. Allbritton: Yes, that's it.

Now, and since, sir, the good time adheres in the sentence under Massachusetts law, if the Court please, the original sentence imposed is necessarily lengthened; has to be.

Unidentified Justice: So you distinguish your case from Scafati in saying that the good time statute was separate from the sentencing statute?

Mr. Allbritton: Absolutely; absolutely.

And that is a marked distinction.

There are two kinds of good time statutes on the books, those which adhere in the sentencing and those which are no part of it, just as this man here.

The good time statute in effect at the time he received his time in 1976 was no part of the sentencing proceedings whatsoever.

Unidentified Justice: Isn't that a pretty theoretical distinction?

Mr. Allbritton: Beg pardon?

Unidentified Justice: Isn't that a pretty theoretical distinction?

I mean, if somewhere on the statute books is contained a method for calculating gain time and it's changed during the course of a prisoner's imprisonment, does it make any difference whether it was in the sentencing section of the Code or in some other, or in the penal institution section of the Code?

Mr. Allbritton: Yes, I think it does.

Unidentified Justice: It has to for you to win, doesn't it?

Mr. Allbritton: It makes it a very strong distinction, absolutely, sir; absolutely.

Because if it adheres in his summons, if the Court please, then he cannot be deprived of it by an ex post facto law.

But under the Florida law it does not so do, and it does not apply retroactively.

The statute which is attacked here does not apply retroactively at all.

In fact, it gives the man more of an opportunity to earn gain time than he had under the old statute.

And I'd like to point out, if I may, please, three distinctions on this, because I think they are material.

Unidentified Justice: Before you do that, if I may just be clear on one thing.

If I remember the Florida Supreme Court's opinion, they don't rely at all on this particular argument you're about to make, do they?

They rely on the fact that the State can reduce, change the formula in a way adverse to the present... So this is a separate argument; we don't have the benefit of the Supreme Court of Florida's--

Mr. Allbritton: I don't think the Supreme Court touched on that in the Harris case; no, sir.

They did rely on the fact that under Dear v. Mayo, Mayo v. Lukers, and other cases, that under Florida law that probation, parole, and gain time are a matter of legislative grace and can be changed, modified, withdrawn, at any time, as long, sir, as they don't deprive the man of anything that he has previously gained under the old law.

Now, that would be wrong.

I'll admit that.

Unidentified Justice: --But when this law went into effect, the minimum that this defendant could have received went up, didn't it?

Mr. Allbritton: The maximum went down but the minimum went up.

Unidentified Justice: There's more discretion?

Mr. Allbritton: Yes, there is more discretion.

Unidentified Justice: But it's discretion that can be used against him as well as for him?

Mr. Allbritton: Yes, that's true.

If he violates the rules of the institution, gain time can be taken away from him.

Unidentified Justice: May I ask one other question on your basic theory before we get to whether the package is better or worse.

Under your view that there's a difference between gain time already earned, and gain time that would be earned after the statute became effective, what if the man had after, say, three years in prison, become eligible to be considered for parole, but two weeks before his parole hearing was set the new statute was passed saying, you don't become eligible for parole unless you've been in for at least ten years, or something like that, so he lost eligibility for parole, but did not lose parole itself.

Would that be retroactive or not?

Mr. Allbritton: No, sir, I don't believe so.

I think the Greenholtz case touches on that.

A man doesn't acquire a vested interest in parole just because there is that.

Unidentified Justice: Till he actually gets it.

Mr. Allbritton: But now, if he is eligible, and the requirements are not changed and the parole board applies wrong criteria or impermissible criteria, then you have a different case.

But that isn't the problem with--

Unidentified Justice: What about all this grace?

Mr. Allbritton: --It is grace.

Unidentified Justice: Well, why would he have any rights under this last question you answered?

Why would he have any rights at all if it was grace?

Mr. Allbritton: Well, because even though it is grace, the State gave the grace in the first instance.

Unidentified Justice: And the State can take it away?

Mr. Allbritton: As long as they don't deprive him of anything, they can; yes.

As long as they don't deprive him of anything.

Unidentified Justice: Such as due process?

Mr. Allbritton: Due process or anything else.

Absolutely.

But the man has a vested interest in parole.

Unidentified Justice: Oh, ex post facto.

Mr. Allbritton: Then they can't deprive him of it by saying we're going to withdraw the parole statute.

Unidentified Justice: No, Mr. Attorney General, I just want to know what articles of the Constitution do not apply to "grace" matters?

Mr. Allbritton: All of the Constitution applies, I'm sure, as you well know, Mr. Justice Marshall.

Unidentified Justice: I'm not worried about what I know.

I'm asking you the question.

Mr. Allbritton: Yes, sir, the procedural due process under the Fourteenth Amendment, that does apply to grace, absolutely it does.

It can be released in that way, if a man by the withdrawal of that grace, he's been deprived of a protectable interest.

Unidentified Justice: Well, was this man with four days a month withdrawn?

Mr. Allbritton: Yes.

If you look to nothing more, sir, than the rigid formula of 5, 10, and 15, as compared with the new statute's 3, 6, and 9.

If you look only to that, you exclude everything else, then he loses; that's true.

Unidentified Justice: Well, suppose I look at that plus the reply brief of the petitioner?

Mr. Allbritton: Well, I hope you'll read mine too.

That's fine if you look at his reply brief, because that's all he wants the Court to view is the reduction in the 5, 10, 15.

Unidentified Justice: I said, all of what you said, plus that.

Mr. Allbritton: Fine, but it's my argument, and I haven't yet been able to get it out, that by addition, by virtue of additional provisions contained in the new statute, that the man has a right to earn a greater amount of gain time under the new statute than he had under the old.

Absolutely.

And I'd like to give... still like to give you three examples of that.

Unidentified Justice: But counsel, I come back again.

Then you are relying on these additional provisions?

Mr. Allbritton: Yes.

I certainly am.

Unidentified Justice: In other words you would not be here if they were not present in your statute?

Mr. Allbritton: I would not be here making the same argument that I am.

That's true, sir.

Unidentified Justice: Well, I wonder why you make this concession?

Mr. Allbritton: Sir?

Unidentified Justice: I wonder why you make this concession.

Isn't your case just as strong in theory at least, without these additional provisions?

Mr. Allbritton: It may be in theory, but as a matter of fact, I'm afraid it would be not.

Hopefully that it would, that I could prevail on an argument that the gain time is a matter of legislative grace, that the man didn't have any right whatsoever to assume that this gain time statute in effect at the time he was sentenced, was going to stay in effect and not be changed.

Unidentified Justice: Well, in essence, isn't your argument that all that lies ahead after the change in the statute was an expectation on which he may not rely?

Mr. Allbritton: That's all he has in support of his argument here.

It's all he has... he's saying here, and he has to say here, that he has a constitutionally protectable interest in gain time to be earned at a given rate in the future.

He has to maintain that or else I don't see how be can prevail in this Court.

And under the case law that I have in my brief, I don't believe that he has a protectable interest under the Constitution.

If he doesn't have a protectable interest, then against what is the ex post facto clause supposed to operate?

Against what evil is the ex post facto clause supposed to protect him if in the first instance he doesn't have a constitutionally protected interest?

I say to you that in that case he cannot be said to have been placed in a materially more disadvantaged position than he was prior to the passage of the new statute, if the Court please.

Unidentified Justice: Can I just ask you one of the... an admittedly extreme example so that I at least understand what your argument or charge is.

Supposing he is sentenced to 15 years and the Legislature has not provided any gain time at all, and he is on the last day of his 15th year and the Legislature changes the sentence of his crime to 20 years.

And he goes to pick up his stuff at the warden's office and the warden says, sorry, you're going to have to serve an extra five years because the Legislature just changed the statute.

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

Mr. Allbritton: Yes, it would, Mr. Justice Rehnquist.

It would indeed.

Unidentified Justice: Let's modify that just to this... supposing the statute said, your sentence shall be from one to 15 years and the warden, depending on how you behave in prison, shall decide when you get out, within that range.

And then after he starts to serve, with no definite promise of when he'll get out, a new statute is passed saying everybody in that category must serve the full 15 years.

Would that violate the ex post facto law?

He wouldn't have had any right to get out when the statute was passed.

It would be just like this case, wouldn't it?

Mr. Allbritton: I think it would; I think it would, yes.

Unidentified Justice: It would be like this case?

Mr. Allbritton: It would, because that we're dealing with something that is taking place at sentencing.

That is, the new law that you assume to be passed will have made the imposition of the 15-year sentence mandatory, and that would be harsher.

I think that that would be ex post facto.

Unidentified Justice: Let me just change it a little bit.

Instead of saying, serve 15 years, he gets out when the warden xx parole him within the 15-year period, and then later on you pass a statute saying, we don't have any more parole.

Mr. Allbritton: I don't know what they'd do in that case at all, I really don't.

You can guess this way or that way, but it's hard to say.

I can't even predict what this Court is going do in the case.

I'd like to point out one thing in the new statute, and this, I think, is new in penology.

The new statute permits the accumulation of gain time by any prisoner who because of age, illness, because he's infirm, or for some other reason he cannot participate in a work release program; now, even though he can't build gain time in a work release program, he can still be given gain time because the man is old.

He's ill, and under the old statute there was no comparable provision at all.

And one more--

Unidentified Justice: Is this man old or ill?

Mr. Allbritton: --I don't know.

I've never seen the man.

Unidentified Justice: Well, how can you claim that it'll help him?

Mr. Allbritton: I'm just pointing out that it could help him.

Unidentified Justice: If he gets ill or old--

Mr. Allbritton: Well, it can help him, yes.

I'm pointing out that the new statute has more generous provisions in it than did the old.

For example, you can go to school.

Now, I don't know whether he wants to go to school or not; he may.

But if he participates in an approved course of education, this means that he can receive gain time therefor, and under the old statute this could not have been done at all.

I rely also on Singleton v. Shafer, Trantino v. Department of Corrections.

All of those cases are in the brief that I have submitted to the Court and I write much better than I speak, so I'll leave that with you at this time.

Thank you.

Chief Justice Burger: Thank you, counsel.

Do you have anything further, Mr. MacDonald?

ORAL ARGUMENT OF THOMAS C. MacDONALD, JR., ESQ., ON BEHALF OF THE PETITIONER-- REBUTTAL

Mr. MacDonald: Thank you, Mr. Chief Justice, and may it please the Court:

I only have a few brief points.

Not only did the Supreme Court of Florida not consider the so called ameliorative effects of this statute, I urge the Court to look at the Appendix.

You will find the response of the Attorney General to the pro se petition.

You'll find the argument wasn't even made.

And the obvious reason it wasn't made, is if you lay them down time doesn't permit.

Mr. Justice Marshall correctly points out, the regulations, the permissive, general statutes, which were merely incorporated together in a codification of the new law, show that the difference is just what the Court said, they changed the schedule.

Mr. Allbritton says my client has been deprived of nothing.

He has been deprived of the statutorily guaranteed right to acquire gain time which the State says he could do,

"merely by staying out of trouble. "

Now, let me go quite quickly to one of the points raised by the questions of Mr. Justice White.

Unidentified Justice: Before you do, Mr. MacDonald, apparently there was another change, if I'm not mistaken, between the two laws.

One is that at least administratively the credit was given right at the beginning and the provisional time of release was set right at the beginning.

And then, under the contemporary law, the credit is given only when it accrues, is that right?

Mr. MacDonald: Your Honor, here's the situation on that.

Actually, there's still a third statute, and I don't want to confuse things, but the ultimate effect of it was that under the new law they add the word monthly in the early portion of the statute.

But if you will read Subsection 1(c) at the end of the 15-day provision into the 9-day provision, you will see that the gain time is credited each month.

Under both statutes the State still calculates the tentative date because in the Supreme Court of Florida under the new law--

Unidentified Justice: That's fine... up front in quotations, is it?

Mr. MacDonald: --Yes, sir.

They gave--

Unidentified Justice: So in other words you make no point of that?

Mr. MacDonald: --No sir--

Unidentified Justice: All right.

Mr. MacDonald: --because there's no change.

Unidentified Justice: That was my only question.

Mr. MacDonald: No, sir.

Let me go very quickly.

Need it be a part of the sentence?

I suppose that is tied to the word "annexed" in the third category in Calder.

First, let me say, Mr. Justice Chase adds at the end, "or similar laws".

I know of no case that says they must be physically tied the one to the other, that the judge must breathe the words, you're sentenced to so many years subject to all of the laws of Florida.

If one so desires, I have cited in my reply brief, the fact that indeed Florida biennially and before this time, reenacts in its entirety all of its criminal statutes... all of its statutes, indeed.

So they are enacted at the same time.

Finally, I think the Court disposed of that point in the Lindsey case which we discussed earlier, because it said we need not go to the question of whether this is technically a change in the punishment annexed.

And let me finally say that if that is the law of Florida, then Florida can change all of its sentences, because Your Honors can look at the Florida statutes and see that it merely provides that murder is a certain type of felony, burglary is a certain type of felony, and all of the punishments are somewhere else.

Unidentified Justice: I'm just curious, do you practice criminal law?

Mr. MacDonald: No, I do not, Your Honor.

I do corporate and antitrust litigation.

Unidentified Justice: I'm just curious.

How did you come across the Scafati case?

Mr. MacDonald: The Scafati case?

I found it by first finding it in the district court opinions and then finding the per curiam affirmance.

I believe Your Honor noted in that case that you would have granted oral argument as opposed to--

Unidentified Justice: And you found that... you were looking through.

Did you look... were you looking in LEXIS for the district court cases--

Mr. MacDonald: --We had Westlaw, Your Honor.

Unidentified Justice: --The Westlaw, and you found the district court cases included in Scafati--

Mr. MacDonald: Yes, sir.

Unidentified Justice: --And then went to Westlaw, and it said there, affirmed?

Mr. MacDonald: Yes, sir.

Now, I found that in that manner.

I might say, finally, and quite briefly in closing, if you read the district court opinion by Circuit Judge Aldrich you will find that the provisions in Massachusetts are almost identical to Florida, even down to the calculating of the up front time.

Absolutely no difference, except Greenfield came out immeasurably better that Weaver would under what Florida tries to do to him in this case.

Unidentified Justice: Of course, Scafati didn't... the per curiam affirmance didn't cite any authority, did it?

Mr. MacDonald: No, sir.

No, it did not.

Unidentified Justice: Did the district court?

Mr. MacDonald: The district court, indeed it did.

Massachusetts had a better argument.

If I could pursue that a moment--

Unidentified Justice: What did the... was Scafati, didn't that come from a state court?

Mr. MacDonald: --No, sir, it came from a three judge district court--

Unidentified Justice: Three-judge district court.

Mr. MacDonald: --enjoining the enforcement of the Massachusetts statute, the opinion written by Circuit Judge Bailey Aldrich.

I might give you, if I could--

Unidentified Justice: And what did they rely on?

Mr. MacDonald: --The chronology was, commission of the offense, sentencing.

And at that point Massachusetts changed the law which provided that henceforth parole violators who are reincarcerated would lose the right to acquire gain time for the first six months of the reincarceration.

The statute had a savings clause.

It saved its effect for all those out on parole.

It did not save it for those in prison but not yet on parole.

The Commonwealth made what I thought was a rather good argument that by thereafter accepting parole Scafati in effect was bound by the laws of the time of the parole.

The three judge district court rejected that argument and cited many of the cases which we cite and so held in that case.

Unidentified Justice: Like what?

Do you think there are cases other than Scafati in this Court--

Mr. MacDonald: Yes.

Unidentified Justice: --that hold squarely on this one?

Mr. MacDonald: I think Lindsey does, and I think then one must go back to the more generalized pronouncements which take us back to Kring, Cummings, and all the way back to Calder, as to the nature of punishment.

But I think Lindsey and Scafati are the closest and finally, as I say, virtually every state court which has passed upon this has held in our direction.

Thank you very much.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.