CALIFORNIA DEPARTMENT OF CORRECTIONS v. MORALES

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ORAL ARGUMENT OF JAMES CHING ON BEHALF OF THE PETITIONERS

Chief Justice Rehnquist: We'll hear argument now in Number 93-1462, the California Department of Corrections v. Jose Ramon Morales.

Mr. Ching.

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

There are two modes of analysis which are used in determining ex post facto cases.

The first is the substantial harm or detriment analysis, and second is the Calder/Collins analysis.

Under either analysis, the judgment of the Ninth Circuit in this case should be reversed.

The history of substantial harm, detriment, however the test is phrased, is relatively recent.

We can see, for instance, in Miller v. Florida, a case in which there is a 9-0 vote, that an increase in the recommended sentencing guides, which results in a recommended sentence which is patently higher than that which the inmate previously faced, would be an ex post facto law.

We are also aware, because of the concurring opinion in Collins, of what does not constitute substantial harm.

That is, a procedural rule which does not affect a concededly valid conviction.

Between these two poles is a lot of room, and in this room I believe the indication, for instance, in the concurring opinion of Chief Justice Rehnquist in Weaver, that we are talking about a lose form of evaluation, an evaluation of whether, on the bottom line, the inmate has been harmed.

In the instant case, the Ninth Circuit made a quick showing of substantial harm by assuming that it existed.

We have a statement that logic dictates that because a parole suitability hearing must be had before a parole date may be obtained, it must be that the failure to accord them frequently amounted to substantial harm.

This is clearly fallacious.

What the Ninth Circuit has done--

Unidentified Justice: Well, it may or may not be correct in the given case, but doesn't it have something to recommend it at least as a way of measuring what probably will be the general effect of the statute?

Mr. Ching: --Well, certainly and, of course, you're correct in pointing out that we are concerned with the general class of prisoners affected.

Unidentified Justice: And I take it you also would not say that there is anything conclusive in the fact that there will always be a finding that it would be unlikely that if the prisoner came back within 3 years there would be any relief.

I take it you don't rest entirely on that to take you out of the general rule.

Mr. Ching: Yes, Your Honor, my contention is that the provision of the annual parole suitability hearing is a necessary condition, but it is not a sufficient condition for any given inmate to obtain a parole date.

Unidentified Justice: Well, but is it always going to be... in your view, is the general rule always going to be displaced by the finding made that in all... I forget what the term of art is, that probably if the prisoner were to come back within 3 years, he would not get relief by parole?

Mr. Ching: Yes, Your Honor, I agree entirely with your supposition.

That is, I am saying that the findings made by the parole board that the individual would not receive a parole date in the first and second year subsequent to the initial hearing obviates any possibility that he may successfully claim substantial harm by the--

Unidentified Justice: So it is conclusive, then.

Mr. Ching: --I'm sorry, yes, I meant... I meant to say that, yes.

Unidentified Justice: Well, then what we're left with is a general rule in which you concede the probable effect of the general rule over a large class of cases will be to extend the date before which parole is granted, and yet you're saying that in any individual case there will never be a showing of harm because of this particular finding.

Mr. Ching: Yes.

Unidentified Justice: Is that where we leave it?

Mr. Ching: Yes.

I believe that it is impossible for an inmate who is affected by this modification to show that he would have received suitability... a successful suitability hearing in the first and second years, those years in which he would not under the amendment statute, and therefore he can never show substantial harm, and neither can any member of the affected class, within reason.

Unidentified Justice: Well, what about in Miller?

Would it have been possible to show that the recommended sentence would necessarily be the sentence?

There, also, you could say that getting a lower recommended... or getting a lower recommended sentence is a necessary condition of establishing your claim, but not a sufficient condition.

Mr. Ching: Well, Marrero really is a case that turns on a closer analysis of State statutes, and the interrelation with the Federal system at that time between the sentence pronounced, in actual terms of numbers of years of incarceration, and the giving of parole, the granting of parole.

In Marrero, there was no diminution to the inmate involved.

He remained parole ineligible until one-third of the term had been served.

I--

Unidentified Justice: Suppose there had been a change in that respect?

Suppose that when the person is sentenced he would come up for parole after one-third of the time of the full sentence, and that is changed retroactively to have him come up after he served one-half of the sentence.

Would that fall under the ex post facto ban?

Mr. Ching: --Yes, Your Honor.

Unidentified Justice: And would you distinguish the parole eligibility, the initial eligibility hearing from the subsequent suitability hearing in that regard?

Why do you draw that... you've given me a firm yes, if they change the initial eligibility date to his detriment, that's ex post facto, but if they change the later, the subsequent reconsideration, which you call the suitability, subsequent suitability hearings, that doesn't fall within the ex post facto ban, so could you distinguish--

Mr. Ching: Yes.

Your Honor, the opportunity for receiving parole in Marrero was keyed directly to the sentence pronounced in that case.

If you go to the hearing itself, however, and you establish, according to established criteria with written findings, that the individual had no possibility of being paroled in the second or third year afterwards, then there is actual proof of no substantial harm, as opposed to the possibility that you may find some harm to him if his initial hearing is postponed, okay.

There is nothing that precedes the initial hearing which would indicate that he would not be successful at that first hearing, and besides, it is a condition which provides for some amelioration of his term.

What I am saying is that the production of written findings as to his status is sufficient proof positive that although... that is, although he might have deserved an initial hearing, he certainly need not deserve a hearing as frequently in the future.

Unidentified Justice: --So if they just changed it from 1-year interval to 2-year intervals, without any requirement that the parole board find it unlikely--

Mr. Ching: Yes.

Unidentified Justice: --that that would also fall under the ex post facto--

Mr. Ching: I think we're getting very close to a possible ex post facto condition there.

The issue is whether or not the record supports a finding of harm.

Now, this is not, admittedly, well-defined, but you can utilize some speculation about the class as a whole, where you have nothing to indicate that the individual is completely without any prospects for parole.

The basic problem is defining the nature of substantial harm.

If the record provides solid and unequivocal data that there could not be any harm because he would not have been paroled in the intervening years between the first and third year, I think there cannot be any reasonable possibility, without countervailing data in the record, that there is any substantial harm--

Unidentified Justice: --And is the principal datum that you rely upon the board's own determination that the hearing was unnecessary?

Mr. Ching: --Yes, Your Honor.

The agency is entrusted by State law, and the standards are well-defined and established in regulation and State law.

We assume that an administrative agency performs its duty absent--

Unidentified Justice: Can the board, if it deems it necessary because there's some dramatic change in circumstances, rescind its determination and hold an earlier hearing, notwithstanding the ruling that it made?

Mr. Ching: --Certainly, Your Honor, and in--

Unidentified Justice: And is there some... is there a citation for that?

Is that--

Mr. Ching: --Your Honor, not in this particular provision.

We have... we have an assertion by counsel that the determination of postponement is immutable.

I do not believe it's so, and there's nothing in the record that shows that.

Unidentified Justice: --Well, but what authority can you cite to show that counsel is in error in that regard?

Mr. Ching: I--

Unidentified Justice: I notice the California supreme court, as I recall, said that it's conceivable a hearing could be held, but--

Mr. Ching: --Yes, it is conceivable under--

Unidentified Justice: --that seems to me speculation on the part of the... California's highest court, and that is not a very sound basis upon which--

Mr. Ching: --Well, I believe--

Unidentified Justice: --For us to base a decision.

Mr. Ching: --the meaning of conceivability there is that there is no specific regulation which authorizes the inmate to make a direct appeal to the board for an earlier hearing notwithstanding the previous findings.

However, I believe that is the practice of the board, therefore there is nothing in the record one way or the other.

Unidentified Justice: You mean it's the practice, even if they've made this finding that there's no reasonable possibility?

Mr. Ching: Yes.

I am informed--

Unidentified Justice: Doesn't that indicate that the finding should not be taken at face value?

Mr. Ching: --No.

If the inmate should say, within a year I have made such significant progress that your prior finding about me is incorrect, the board will review the file, it is my understanding, and consider whether or not--

Unidentified Justice: That suggests that you can't be sure at the time the finding is made because your procedures allow second-guessing the finding.

Mr. Ching: --Well, Your Honor, no.

What it shows is a great deal of solicitude toward the inmates by the board, in that an inquiry--

Unidentified Justice: Why would they show solicitude for an inmate who there was no reasonable possibility of any chance of parole for the next 2 years?

I don't understand that.

Mr. Ching: --Well, I believe it's--

Unidentified Justice: If the finding isn't conclusive, why take the trouble to make it?

Mr. Ching: --Oh, it's definitely conclusive absent new information.

If the inmate can produce new information... for instance--

Unidentified Justice: Well, but there'll always be new information in the ensuing year or two.

He'll always argue I behaved better than you expected, I passed my high school exam, or something.

There's always new information every year, isn't there?

Mr. Ching: --Yes, and in fact the accumulation of information would not be reviewed absent some direct inquiry by the inmate, or until the preparation was made for the postponed hearing.

Unidentified Justice: Can the inmate challenge the board's determination that it would be... it would not be reasonable to expect parole within 3 years?

Mr. Ching: Yes, Your Honor.

Habeas corpus is available to the inmate, and... both in State and Federal courts, but also--

Unidentified Justice: What is available?

I didn't hear the... what kind of--

Mr. Ching: --Habeas corpus... I'm sorry.

Unidentified Justice: --You bring a State habeas corpus in order to get the accelerated hearing, or in order to get the regularly scheduled hearing?

Mr. Ching: In other words, the inmate would apply to a State court for a habeas corpus because of the postponement.

Unidentified Justice: Well, what good does it do for the California legislature to pass a statute, then, that says instead of having hearings every year we're going to have them every 3 years, if every inmate that is disadvantaged by that can go and get a State habeas petition?

Mr. Ching: Well--

Unidentified Justice: Have there been cases, actual cases in California where the California courts have reviewed this sort of a determination by the parole board?

Mr. Ching: --I have not personally handled any.

I do not have a citation for a published case at this point.

However, I am certain that inmates have filed such writs.

The writs, of course--

Unidentified Justice: Well, inmates file lots of writs--

Mr. Ching: --Yes, they--

Unidentified Justice: --that don't get anywhere.

Mr. Ching: --Yes.

Unidentified Justice: You think the California courts, if he made some sort of a showing that this was a disputed determination and that he could come into habeas corpus and say, look, they were wrong in saying I wouldn't be eligible for parole because, you know, look at all the good things in my background, and the habeas court would pass on that one way or the other?

Mr. Ching: I believe that the courts retain jurisdiction to do so.

Unidentified Justice: Well, that the... my question was, do you think they would decide a case like this on the merits?

Mr. Ching: I have not seen one, Your Honor.

I believe it's theoretically possible.

Unidentified Justice: So it's speculative on your part whether a habeas remedy is available, just as it's speculative on your part in the California supreme court's... or that the board might alter its decision and hold an earlier hearing?

All this is speculation?

Mr. Ching: Your Honor, I can only point out that as to the writ of habeas corpus, it's clearly within the jurisdiction of the superior court to do so, and as to the agency practice, I only know that it is practice and it is not placed in any regulation which I may cite to you today.

Unidentified Justice: Is there some date by which this particular respondent has to be paroled, in any event?

Mr. Ching: No, Your Honor.

Unidentified Justice: It's life, unless--

Mr. Ching: It is a true life maximum, Your Honor.

The matrix that we have pointed out is a matter of estimating the possible times, should a date be set.

That is, should he be found suitable for parole.

The matrix is not in operation until that time.

Unidentified Justice: --Well, if this is a true life sentence, when is the first parole... how long after he goes to prison is the first parole hearing at which he might be released?

Mr. Ching: His first parole hearing is the minimum eligible parole date, which is the bottom of the term pronounced... that is 15 to life in this case... minus such credits as he may have earned for good behavior.

Unidentified Justice: So it would be 15 years after he enters prison, minus time for good behavior?

Mr. Ching: Yes.

Unidentified Justice: And that's when he had his... he had his parole eligibility hearing.

Mr. Ching: Yes, Your Honor.

Unidentified Justice: And at that time they said, don't come back for another 3 years?

Mr. Ching: Yes, they did, based on an examination of his record.

Unidentified Justice: Could the State have passed a statute in this case saying that a hearing can be held whenever the board thinks there's a probability that parole would be granted?

Mr. Ching: Yes, Your Honor, that would be within the discretion that is commonly accorded to parole boards throughout the Nation.

Unidentified Justice: You think that would not present an ex post facto problem, if previous--

Mr. Ching: If it had been modified.

Unidentified Justice: --Yes.

If the first rule were that you have a parole hearing every 2 years, and then the legislature modified it to say that you don't get the hearing every 2 years, you just get it when the board thinks that there's a likelihood that you'll be paroled.

Mr. Ching: I would not think it would present an ex post facto problem if the findings that we have in this case were made.

The mere prospect of a hearing is not sufficient to deprive... to indicate a deprival of any substantial right that he may have.

Unidentified Justice: But I thought you answered my question earlier that if they cut the time back from annual to 2-year intervals without requiring the parole board to find anything at all about the particular offender, that that would violate the ex post facto clause.

Mr. Ching: My contention there was that without the findings you have no way of determining the individual's actual suitability for parole, hence you have only considerations which may derive from the situation presented by the increase in time, and therefore some speculation may enter into the calculation of harm to the class involved.

Unidentified Justice: Excuse me, I don't under... the burden, I thought your proposition was the burden is upon the prisoner to show that harm accrued from the change.

Mr. Ching: Well, Your Honor--

Unidentified Justice: Is that so, or not?

Mr. Ching: --Yes.

Unidentified Justice: Well, if that's so, then whether there's a finding or not, it seems to me, you have to argue there's no violation of the ex post facto clause, because the prisoner can't show that he's been harmed.

Mr. Ching: I have seen cases, Your Honor, which very much tracked Justice Ginsburg's hypothetical in which ex post facto implications were found.

My contention as to whether it's the petitioners' burden is based on a consideration that we have presented here with a habeas corpus in which he bears the burden of proof, and my other contention is that the record in every one of these cases--

Unidentified Justice: Well, he always bears the burden of proof of showing an ex post facto violation, I assume, doesn't he?

Mr. Ching: --Yes, but specifically in he context of habeas corpus.

I had in mind the alternative which has been permitted in Akins and Roller of an injunction coupled with a 1983 action.

Unidentified Justice: But I still don't see why you need the finding.

It's nice to have it, I suppose, but as far as you're concerned, this case comes out the same way with the finding or without it.

Mr. Ching: Unless the court in its solicitude determines that the initial parole hearing presents such an advantageous situation for the class of prisoners affected--

Unidentified Justice: But before, your answer was not the court's solicitude.

You gave me an unequivocal yes that if they cut the time, if they enlarged the time from one-third of the sentence to half the sentence, that that would violate the ex post facto clause, and then you further said that if they decreased the... they increased the interval from 1 year to 2 years, that also would violate the ex post facto clause.

I'm trying to understand precisely what your argument is, because now you seem to be qualifying your earlier answers.

Mr. Ching: --Your Honor, my... my statement as to the increase in the minimum time served prior to the initial hearing--

Unidentified Justice: Yes.

Mr. Ching: --Is based on my examination of the case law.

As to my position on the increase, if that increase is accompanied by specific findings similar to the ones in this case, is that i is not an ex post facto violation.

Unidentified Justice: And if there are no findings, the legislature just says in every case we want to conserve resources so we're going to make it hearings every 2 years, not every 1 year.

Mr. Ching: Yes, I would believe that would be close to an ex post facto violation for the same reason that the increase in the minimum term would be.

This Court may speculate as to the harm--

Unidentified Justice: Close to, but not?

Mr. Ching: --I hedge because I find the case law quite equivocal.

Unidentified Justice: I thought you were drawing a line because of the reason you gave me in answer to one of my earlier questions.

If there is no finding, as in this case, then the extension of the time before which another hearing could be held I supposed would run afoul of what you concede to be the generally expectable effect of a change of the law like this.

You conceded that the... that in general the effect of such a change in the law will be to increase the time which must be served before parole, so I thought you were drawing the line as you did because in the absence of a finding that this fellow had no reasonable expectation, he could take advantage of the general rule that a change in the law like this will tend to increase the sentence served, and as a general rule will do so.

Isn't that--

Mr. Ching: Yes, that's--

Unidentified Justice: --why you draw the line where you do?

Mr. Ching: --That's correct, Justice Souter.

That's what I meant to say.

I think that this discussion of substantial harm must be qualified by a consideration of the Calder categories which are emphasized again in the majority opinion in Collins.

The only logical category which may be affected by this change before the Court is a possible increase in punishment.

The numerous tests that have been utilized in the ex post facto area, a mere regulation as opposed to a change in the law, great discretion in the administrative agency, the procedural substance distinction, all of them talk about and around the issue of attenuation.

What is the linkage between the term of years pronounced as a sentence and the prospect of parole?

If there is a linkage, then a change in the parole procedure would be a change in the determinant of the sentence, and therefore there would be a possible ex post facto violation.

There are two extremes in parole systems, one in which there is a strict determinism.

The sentence pronounced also determines the time of parole.

The other extreme is something very much like the California system.

Complete discretion is given to an administrative agency subsequent to the pronouncement of a term of years.

if there is no substantial linkage, as in the California-type system, then there cannot be a connection under the third category of Calder, and therefore there cannot be an ex post facto violation.

In sum, the two tests can coexist together in the easy cases.

They did so in Collins, they did so in effect in Miller, and they did so in Weaver.

I believe, however, that there is substantial problem with compliance with the majority opinion in Collins in the courts of appeal of this country, and it's necessary for this Court to remind the courts of appeal that we are now dealing with Calder/Collins analysis, and this should be the primary means of resolving ex post facto claims.

Unless there are further questions, I wish to reserve the remainder of my time for rebuttal.

Unidentified Justice: Very well, Mr. Ching.

Mr. Asperger, we'll hear from you.

ORAL ARGUMENT OF JAMES R. ASPERGER ON BEHALF OF THE RESPONDENT

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

The core of the ex post facto in this case is the retroactive denial of prisoners' opportunities for parole.

The State had no obligation here to set up a parole system in the first instance, nor did it have any obligation to design the system such that the only mechanism for parole consideration and release was a mandatory annual hearing, but when the State made the affirmative decision to do so, as it did in this case, the retroactive elimination of that hearing, of the only mechanism under the State law for a prisoner's release, violates, the ex post facto clause.

In effect here, by taking away that mechanism for consideration for release, the State has in effect made the prisoner ineligible for parole for a period of time.

The State... Mr. Ching uses the example that it would be a violation if the initial eligibility date were extended from one-third of the term of years to one-half.

There is no analytical distinction between that violation of the ex post facto clause and this violation.

The Court asked the question about the finding in this case.

I believe the finding for purposes of the ex post facto clause is somewhat of a red herring here.

The question is, could the legislature in the first instance deny the opportunity for parole which was previously guaranteed by the statute for a period of time?

If the answer to that question is no, then the legislature can't get around that violation by delegating discretion to an administrative agency to do so.

You might take another example.

Take Lindsey with a slight variation.

Lindsey provided for a 15-year mandatory minimum sentence, and the Court found that to be a violation.

Let's assume that's the statute in the first instance, and then it's obvious, I think, that the legislature could not say, we're going to retroactively create a mandatory minimum sentence of 30 years, so it would be no less of a violation for the legislature to say to the judge, you can now, judge, impose a term of years retroactively for up to 30 years, the point being that the delegation of discretion to do what the legislature could not do in the first instance is just as much of a violation of the ex post facto clause as the legislature's original action?

Unidentified Justice: Well, why isn't the distinction simply that something more than discretion has been granted?

It is discretion controlled by a probability judgment that must be made, and if the probability judgment is, in fact, sound, then one could conclude, as Mr. Ching argues, that the prisoner has in fact not lost any.

Mr. Asperger: I think there are at least two responses to that question, Your Honor.

First of all is, the changing of the standard to a probability determination is very different from what the State had set up in the first instance, and that was a guaranteed annual consideration of all current facts to decide if, over time, the prisoner had become suitable for release, and many of the factors under the State--

Unidentified Justice: Well, if I understand you, you're saying that in fact the very definition of the sentence includes these opportunities regardless of whether the opportunities would be likely to result in release, that a sentence is essentially different depending on whether it's going to be reviewed every year or not, even in cases in which the annual review can be assumed to have no likely effect on the release date.

Mr. Asperger: --I'm saying you have to start with a State statute in the first instance, and since the State statute here requires current present consideration of the facts, a fresh look, based upon a prisoner's rehabilitation and capacity to be reintegrated into society, that the legislature cannot change the rules of the game after the offense has been committed, and that is an essential component here.

You can also look at it on a broader level, I think, Your Honor and that is, if you compare, for example, a life sentence that carries with it the possibility of parole and a life sentence that does not have any possibility of parole, although there's no guarantee that the prisoner will get out, there's no doubt, based upon common sense and practical experience, that the life sentence without the possibility of parole is more onerous.

This Court recognized that principle in Solomon v. Helms for the Eighth Amendment purposes.

It also recognized that principle in Warden v. Marrero, when it held that the taking away of parole eligibility is punishment, and a penalty.

Unidentified Justice: But that's because there's a probability of release is there not?

That's the only... that's the legal reason--

Mr. Asperger: Yes, I--

Unidentified Justice: --the moving force behind the ex post facto argument.

Mr. Asperger: --I don't read the cases that way, Your Honor.

I don't believe it's because there is a probability of release.

It's because there is an opportunity of release.

The key--

Unidentified Justice: Mr. Asperger, suppose... I mean, to test that, suppose the procedures of the State had required that each of these annual parole hearings last for as long as the prisoner desired... you could put on as much evidence as long as it took... and then they've decided these things are taking too much time, so they are now saying, parole release hearings henceforth will last no more than 1 hour.

You'll have an hour to make the case.

We'll think about it, decide it, and be done with it.

Is that an ex post facto law?

Mr. Asperger: --I think the substance of what the State is giving the prisoner here, Your Honor, is a fresh look at the facts each year, and the State may be free.

You're one step removed from the situation here.

The--

Unidentified Justice: Am I?

I'm not sure.

The only thing that's happened is that the... you can certainly make your case better in 3 hours than in 1 hour, can't you?

Mr. Asperger: --I think there's some question about that in some cases, Your Honor.

Oftentimes you can make your case very well in a brief period of time, depending upon what the facts and the merits are, but I think the substance here, the substance that was conferred by the State in the first instance, comes from the original statute that was enacted in 197--

Unidentified Justice: The substance in the case I've given you is how long each hearing is.

The substance in the case that you're talking about before us here is how frequently the hearings will be.

Mr. Asperger: --I think--

Unidentified Justice: I'm not sure either of them goes to whether or not you get parole, directly.

It simply doesn't.

It goes to, you know, how good your chances are.

You acknowledge that, especially when the fact-finder has to make a prediction.

We'll give you a hearing next year unless I can make this fact-finding.

I don't see that that's very much different from simply cutting back the amount of time you have to plead.

Mr. Asperger: --Your Honor, I do see, depending on the particular facts, that may or may not be the case, but I do see a major distinction between taking away what the statute gave as a fresh look at the facts.

If you look at the California parole scheme, the fact... many of the factors that are looked at are institutional behavior, development of marketable skills, showings of remorse, and a host of other considerations that change over time, and so when you take away the hearing in its entirety, you're taking away the guts or the substance of what the statute conferred at the time of the offense.

Unidentified Justice: It won't change over time for everybody.

I mean, if this fellow is a multiple ax murderer, they're not going to let him out any sooner because he's acquired a useful trade in the meantime.

I mean, isn't it clear that in some cases these factors predictably are not going to make any difference, and shouldn't the State be able to say, it's no use going through a hearing next year, this multiple ax murderer is not going to get out for the next 2 years?

Mr. Asperger: Your Honor, I think for purposes of the ex post facto clause the answer to that question is no.

You could just as easily have a defendant like you have in Rummell v. Estelle, who was subjected to a career criminal statute and had only taken $150, or whatever the amount was involved in that case, and your judgment, your standard that you apply here has to be the same.

Unidentified Justice: Well, supposing... you say, Mr. Asperger, one of the factors to be considered is showing of remorse.

Now, if the prisoner hasn't shown any remorse in the first 15 years he's been in prison, do you think the parole board has to anticipate that perhaps in the sixteenth or seventeenth year he may show some remorse?

Mr. Asperger: Your Honor, I don't think the Court should be getting involved in making that type of prediction, or getting into that level of analysis.

Unidentified Justice: You may be right, but I don't think that that necessarily helps your cause.

Mr. Asperger: Let me try and explain how I think it does, Your Honor.

I think that for ex post facto purposes the question that the Court should be asking is, first of all, has the prisoner shown that he or she was subjected to the statute that imposes the punishment?

Once the answer to that question is yes, as it clearly is here, you have to move to a higher level of analysis.

You have to look at the statute itself, and a very good example of that is the case of Dobbert v. Florida.

In that case, the defendant received the most onerous sentence possible under our system of jurisprudence... death... and yet this Court held that we've got to go beyond the individual defendant.

We have to look at the State statute, and the State statute in this case is on the whole ameliorative and satisfies the ex post facto clause.

In this case, in Morales' case, the statute has no ameliorative qualities whatsoever.

Unidentified Justice: Well, Mr. Asperger, we have said in several cases that procedural changes don't violate the ex post facto clause, and the substantive standards for granting parole in California have not changed with this law.

What has changed is the date in which a suitability hearing will be conducted if certain findings are made.

Why aren't those procedural changes?

Mr. Asperger: Your Honor, first of all I think that, as I read the Court's opinion in Collins v. Youngblood, the analysis doesn't hinge so much as on procedure versus substance.

You look at whether the penalty is in any way more onerous.

And I think in this case, when you look at the statute as it was originally adopted, which doesn't say the parole board has discretion to hold hearings whenever it would like, it says it must hold hearings to give defendants a fresh look, that is something substantive, and the problem you're going to run into if you find that... based on the facts of Morales' case that there isn't a violation, is there's really no logical stopping point.

California has already changed the statute to permit delays for all murderers up to 5 years.

That's effective the first of this year.

I don't see any analytical distinction between 5 years, 10 years, or the elimination of the opportunity for parole in its entirety.

It seems to me the theoretical question you are dealing with in this case is, does it violate the Constitution to retroactively deny opportunities for parole?

If a State can't eliminate the statute in its entirety retroactively, then it can't do it in a slightly less onerous way by eliminating part of that eligibility for parole, and that comes back to the question that was asked earlier.

If you extend the eligibility for parole from one-third of the term to one-half of the term, that's a violation.

There's no logical, theoretical, or analytical difference.

Unidentified Justice: So you say there are no lines, then, that can be drawn, and so essentially it's irrelevant that in this case we're dealing with a particular class that's unlikely to be paroled early?

This is a double... this is just for a double murder situation, isn't it?

This--

Mr. Asperger: He had... yes.

He had committed two murders at different times--

Unidentified Justice: --Yes.

Mr. Asperger: --and he was in jail the second time.

Unidentified Justice: So the slimness of the chance that that category of offenders would get out is essentially irrelevant, or is irrelevant to the ex post facto question.

Mr. Asperger: Given the way the State has structured the law in the first instance, which has to be the starting point, the answer to that question is yes, Your Honor.

You can't look at individual probabilities.

Looking at individual--

Unidentified Justice: I'm not talking about an individual offender.

I'm talking about, can California say, for that category of offenders we know that the chance of parole is so slight that there isn't going to be any detriment if we prolong the interval?

Mr. Asperger: --I believe the answer to that question is yes, Your Honor, for two reasons.

One is, I don't see any intellectual distinction between that case and the factual situation of Rummell v. Estelle, where you have someone who in fact, as the Court noted in Solomon v. Helms, got out on parole.

If the parole statute had been changed to extend his eligibility for parole or deny him the hearing for 5 years, that would clearly have been an egregious violation in his case because of the time that he got out.

So when you're conducting your theoretical... or your analysis here as a matter of principle, I think you should put out of your minds the fact that we're talking about a category of murderers, because I don't see that as distinguishable for ex post facto purposes.

I also think that when you get into analysis of individual harm, as the State is asking you to do in this case, you really open the floodgates to enormous jurisprudential problems, and making those types of considerations, whether it's individual or class, is going to be something that is very difficult for the Court to do.

And it also, even with this class of individuals, over time, the fact of the matter is that many life prisoners in California do get out.

Now, maybe not at age 54, like Mr. Morales is, but over time they will, so that's another reason why the... trying to permit, or permitting the State to simply deny or delay the hearing for a class of individuals as we have in this case has no principal or logical stopping point.

Unidentified Justice: Why doesn't it... the first time they have this parole eligibility hearing, how long has he been in prison, the first year, the second year, or when does he--

Mr. Asperger: No, the way it's set up under California law for life prisoners is that the statute, under Penal Code section 2131, the State initially provides for eligibility of 15 years, but you can earn good-time credit, and--

Unidentified Justice: --Let's take his first hearing.

Mr. Asperger: --It's 10 years.

Unidentified Justice: Fine.

So, 10 or 15 years.

Anyway, he goes to the first hearing.

Suppose they say, fine, we're going to grant it.

Does he get out the next day?

When does he get out?

Mr. Asperger: They have to set a release date immediately.

Unidentified Justice: They could set one the next day?

Mr. Asperger: They could set one the next day, they could set one in the future, and you'll notice in the brief there's a reference to the matrix which would say, in this case it's 19 years.

In fact, though, there's pre-prison credit that comes out of that base term of confinement, and there's also good-time credit there, so it is possible, depending on what the parole board does with the 1,050 days' mandatory credit and good-time credit, he could be... he could have been released in 1994.

Unidentified Justice: All right, so the practical... there is a practical difference, then.

If you're going to... you say you're going to hold them every 2 years instead of 1 year, then what the practical difference is, the parole board couldn't let him out during that year.

Mr. Asperger: Correct.

Unidentified Justice: That's the difference.

Mr. Asperger: That's correct, because this is the only way he can get out.

Unidentified Justice: On the other hand, they're only doing that for people who they determine the chances of letting them out during the next year are near zero, or small.

Mr. Asperger: Well, there's a--

Unidentified Justice: That's what the statute says.

Mr. Asperger: --The statute doesn't say there's no way somebody gets--

Unidentified Justice: No, not no way, it says reasonable.

Mr. Asperger: --It says reasonable.

Unidentified Justice: Okay.

Now, why do you say there's no difference between a statute like that and, let's say, one that didn't say it's limited to people who we wouldn't let out anyway, or reasonably expect to?

Why isn't this thing turned on what's practical?

That is, suppose a commission just said, or a State just said, we hold hearings once every year, and they were always held on Mondays, and they said, we're going to hold them on Tuesdays, or they said we're not going to hold them during Christmas vacation, or we're not going to hold them... I mean, why isn't it all practical rather than theoretical, because after all, one day theoretically could theoretically make a difference?

Mr. Asperger: The difference between Monday and Tuesday is not a matter of substance, in my view.

I think what we're dealing with here is something that is of great substance and great importance.

Unidentified Justice: All right.

But that was my question, then.

You are seeing it in practical terms and not as a matter of theory.

That is, the question before us would be whether, as a practical matter, there's a significant number of people who might serve significantly greater time as a result of the change.

Is that right?

Mr. Asperger: No.

I do not agree with that, Your Honor.

I think that you... there is the potential for one or more or... prisoners to serve more than they would serve under what was granted them and conferred under the original statute.

That is a very serious problem.

Take that hypothetical one step further.

What if the legislature said, we're going to allow the judge in the first instance to make a determination that Mr. Morales should never be eligible for parole.

That would be okay if it was prospective, but it's not okay in this case because it's retroactive, and it clearly, much more clearly than a 1-year or 2-year delay, affects his eligibility for parole.

But I think the key question that you have to look at is, does the statute affect the eligibility for parole and in fact deny him eligibility for parole for longer than it originally granted that eligibility, and then once you answer that question, there is a violation or there isn't, there's no distinction that I think is meaningful between 2 years, 3 years, 5 years, and 50 years.

Unidentified Justice: But there is for a day.

There is for a week.

Mr. Asperger: Well, you... what is... that's not what the statute granted, Your Honor.

The statute granted a hearing once a year, and so my assumption is that the substance of what he is being given here is a hearing once a year, so given that assumption, whether the hearing is on Monday or Tuesday is not a violation.

Unidentified Justice: Well, do you say... if he was granted a hearing once a year, supposing his last hearing was on January 15th, 1994, and that the parole board must grant him a hearing by January 15th, 1995, what if they said, we're just not meeting in January, we're meeting in February, and we'll hear him then, so instead of getting a hearing once a year, he's gotten a hearing once every 13 months?

Mr. Asperger: Then, based upon the text of the statute and what is granted in the first instance, there is a violation, because the guarantee was once a year.

In that analysis, the practical effect would be you'd probably find it's a harmless error if they conferred the hearing in February.

Unidentified Justice: But is that... do we ordinarily decide ex post facto claims on the basis of harmless error?

Mr. Asperger: No, not in the first instance.

You would find a violation, but if he got the hearing, then you'd have to do an individual analysis at the time it reached the courts about whether he was harmed about it, but he does have to have that hearing every year and that arises from the language or the substance of the guarantee under the statute.

Unidentified Justice: You're saying he's harmed even if it's only 1 day, and even if it's Tuesday to Wednesday, but I guess you're appealing to the doctrine de minimis non curat lex, right?

One... it's de minimis.

It doesn't matter.

Mr. Asperger: Well--

Unidentified Justice: Wouldn't you say that?

Mr. Asperger: --I don't think there is--

Unidentified Justice: You're going to give away the case where the hearing is held on a Wednesday instead of a Tuesday, aren't you?

Why, because it's minimal.

De minimis, right?

Mr. Asperger: --For... if it's more onerous in the first instance when you're looking at the statutory level--

Unidentified Justice: It's technically a violation.

Mr. Asperger: --then it is a violation of the ex post facto clause.

Unidentified Justice: That's what de minimis is for, to take care of technical violations that don't really make any significant difference.

Mr. Asperger: You Honor, I think the--

Unidentified Justice: I'm trying to help you here.

[Laughter]

Mr. Asperger: --And my point is, yes, if it's more than a day you do have a violation, but it may turn out that he isn't harmed.

You still have the violation in the first instance.

Unidentified Justice: Do you agree with counsel for the State that as a matter of regular administrative practice the parole board could reopen its determination not to give a hearing?

Mr. Asperger: Absolutely not, Your Honor.

I don't... I haven't seen anything in the record to suggest that that can occur or has ever occurred.

More importantly, neither the statute nor the regulation provides any mechanism whatsoever for the prisoner to have... to send a letter for the parole board to consider that letter for having a reconsideration of the hearing.

I think the focus for ex post facto purposes has to be what the statutes and the law provide, not what the board may do in exercising discretion outside the law.

In addition, I think given the California statute as it was in effect when Morales committed his offense, the substance of that statute was a hearing, a full-blown hearing on the merits, a fresh look at the facts, and sending a letter is vastly different from having that hearing that was guaranteed in the first instance.

Now, I think that in looking at this case, another thing that is important to consider is that if the Court is to find there's no ex post factor violation in this case, it in effect undermines, and the way that I would interpret that decision overrules Lindsey, Weaver, and Miller.

The focus in each of those cases was on the opportunities for the prisoner to receive a sentence that was less onerous, or less burdensome.

In each case, the State made exactly the argument that the State of California is making here.

The individual offender cannot show that in his particular case he would have received a less onerous sentence, so I don't think the standard can change for purposes of Mr. Morales.

To adopt the position that the State is asking for significantly undercuts and ultimately, I think, leads to the demise of that principle set forth in each of those cases.

Unidentified Justice: But could the State in those cases show that he would not have received a less onerous sentence?

I mean, that's what the contention is here, that by reason of the finding the State has shown that he wouldn't have.

Mr. Asperger: I don't think the State in this case can show that he would not have received a less onerous... less onerous sentence, because if you put yourself back in the position of the board in 1989, the board is making a prediction of the future, when in fact it may change over time based upon the considerations that are pertinent by the very terms of the statute.

And the finding, as I mentioned earlier, is not, no way will he get out, but it's not reasonable to expect that he might get out.

That concedes the possibility that things could change during that period of delay, and again, I think it raises the problem of the slippery slope, that as you move further and further along--

Unidentified Justice: Nobody concedes the possibility.

If it's not reasonable to think that he can get out, it means there's no possibility he can get out.

There certainly are prisoners in California, like Charles Manson and whatever... Sirhan Sirhan... who have just been up for parole and been repeatedly denied parole, presumably because of the nature of their offenses.

Are you saying that the parole board could never make up its mind that, as one of my colleagues said, this guy is a double ax murderer, and we don't care if he's a choir boy in prison, he's not going to get out for a while?

Mr. Asperger: --Your Honor, to the extent the prisoner was... committed his offense between 1977 and 1981, which is when this mandatory annual hearing requirement was put into effect, the answer to that question is no, because the statute requires them annually.

It requires a present fresh look at all relevant factors.

The State didn't have to set up the statute that way in the first place.

States are free to set up a parole system that says Charles Mansons are never eligible for parole, but they can't change it retroactively.

One way--

Unidentified Justice: Under the system, we know, looking back, that Charles Manson has had a number of parole hearings and never gotten out.

There must be a class of people in California prisons who are regarded as, just because of the nature of their offenses, they are not likely to be paroled very soon.

Mr. Asperger: --There are, Your Honor, but again, they were given that right to have the fresh consideration each year, and in Charlie Manson's case, it may be that they hold that hearing each year and decide, he's not going to get out, but being denied the hearing under California State law as it was set up was something substantive and meaningful as the statute was designed.

Unidentified Justice: Well, but then you're getting away from what Justice Breyer called the practical approach.

You know, does this really make any difference, and you're saying that because there was something technically there before that's not here now, there has been a violation of the ex post facto clause.

Mr. Asperger: I think that looking even at somebody like Mr. Morales, Your Honor, over time the facts are going to change such that he very well may get out, and statistically, depending upon the individual proclivities of particular boards, prisoners like Mr. Morales did, in fact, get out, so put the hearing ahead 10 years.

He's in his sixties.

He's no danger.

If they made the same finding, it has a real, substantive effect on Mr. Morales.

I think it is a mistake to focus solely on the individual offender, or even the categories of offenders when you're talking about the retroactive clause.

The core concerns are at the very heart of this statute, because given the current national mood to keep prisoners in jail for longer than they've been in jail, to lock prisoners up for longer periods of time, the State can deal with offenses that are committed in the future, but it can't deal under the ex post facto clause with offenses that were committed in the past unless it tries to do it in this back-door sort of way, by saying we're not going to take away parole, we're just going to take away eligibility, the right to a hearing.

Now, I was trying to think about an analogy that might be appropriate, and I think it's very tough, because analogies are dangerous, and they just... they aren't particularly apropos, but one other way of looking at this might be, for example, if the commissioner of baseball were to change the rules so that the umpire could make a determination in the first instance that this batter has such a lousy batting average, and this pitcher is so good, that I'm going to look at you and call you out before you get up to the plate.

That would be a meaningful, substantive change in the rules of baseball, and that is a meaningful change here, not necessarily because Mr. Morales individually would have gotten out at this point in time, but the way the system was set up, this substantive hearing was the essence of the State system.

States are free to set up the mechanism for consideration of release however they want.

They don't have to require hearings at all.

They can leave it to the total discretion of the parole board.

They're free to make sentences as long as they want, but they all focus, all of those decisions are related to the key issue, and that is a prisoner's release, and the State has to do that.

It has to set the timing of releases in the way that all sentences are handled, and that is prospectively.

Unidentified Justice: Release is at the discretion of the parole board, though.

Could you... is there... could you ever bring a law suit demanding parole when it's been denied?

Mr. Asperger: No, Your Honor, but I--

Unidentified Justice: I mean, assuming that... you know, that the board hasn't said we're denying it to you because you're black, or because you're white, or, you know, for some impermissible reason.

It just says, we don't want to give it to you.

Mr. Asperger: --No, but the statute here is a step removed.

It's the opportunity to be considered for release, and also Weaver recognizes that you don't have to have a vested right or enforceable right to establish a violation of the ex post facto clause.

Unidentified Justice: I understand that.

It just seems strange to me, though, that the State can deny it absolutely, and you have no recourse, but if they don't give you a hearing every year, you do.

It seems strange.

Thank you, Mr. Asperger.

Mr. Asperger: Thank you, Your Honor.

Unidentified Justice: Mr. Ching, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF JAMES CHING ON BEHALF OF THE PETITIONERS

Mr. Ching: If it please the Court, I have two factual points to make.

With regard to Justice Kennedy's inquiry about remedies, there is an administrative appeal available within 90 days for the decision that we have in mind.

That is at section 2050 of title 50 in Code of California Regulations.

With regard to Justice--

Unidentified Justice: Excuse me, administrative appeal from what, from the nonhearing?

Mr. Ching: --No, no, no, the remedy for challenging the order, or finding, that one should postpone.

Unidentified Justice: Oh, okay.

But I assume it must be taken immediately following that finding.

Mr. Ching: Yes.

Unidentified Justice: It's not an appeal that can be taken a year later saying the finding is no longer good because of intervening circumstances.

Mr. Ching: Right, and with regard to--

Unidentified Justice: What is the time limit for that finding... for the appeal?

Mr. Ching: --Ninety days, Your Honor.

Unidentified Justice: Ninety days.

Mr. Ching: And then thereafter, of course, there would be... this would be a prerequisite for the State habeas corpus challenge.

With regard to Justice Breyer's comment with regard to the credit, this is not an instance where an individual having received a suitability finding is released the next day.

The... there is in practical terms no short period of time, once a parole date is fixed.

For instance, in this case, 10 years, his first hearing, if he had been granted a date at that time, it would be near 19 years or 20 years.

We're not talking about 3 or 4 days, and therefore... and I refer the Court to footnote 2 of my reply brief for the intricacies of the law involved.

Unidentified Justice: You mean, if there's a hearing at the end of... he's been in prison 10 years and the parole board says, yes, we're going to give you parole in 9 years from now?

Mr. Ching: Yes, that's right, Your Honor, because there are standardized matrices.

Unidentified Justice: In other words, would they ever say, we're going to give you parole and you can... you're going to get out next month?

Mr. Ching: They could, Your Honor, within their discretion and there would be no one around to challenge that abuse of discretion.

However, that is the very purpose of having the matrices which I have included in the supplemental appendix.

It is to control that... and that different kind of discretion, abuse of discretion.

Unidentified Justice: Thank you, Mr. Ching... do you have a question, Justice Breyer?

Any empirical idea of how often it is that they grant... when they grant these things, that the person is actually released within a year?

Mr. Ching: I would think practically zero.

There's no occasion that I know of, and an examination of any of the matrices would indicate a substantial period of time between the initial hearing and your hypothetical of granting of a parole date and the actual date.

Chief Justice Rehnquist: Thank you.

The case is submitted.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the court in number 94-1462 California Department of Corrections versus Morales will be announced by Justice Thomas.

Argument of Justice Thomas

Mr. Thomas: This case comes to us on writ of certiorari to the United States Court of Appeals for the Ninth Circuit, in an essence it involves twice convicted murder who says that after I was convicted you had changed the parole hearing rules and that violates the ex post facto clause.

Respondent was convicted of murdering his wife in 1980 while on parole for previous murder.

He became eligible for parole in 1990.

As required by California Law the Board of Prison terms held a hearing in 1990.

At that time the board found respondent unsuitable for parole although the California Law in effect when respondent was convicted provided for annual hearings, parole hearings.

In 1981 amendment to that law allowed the board to differ respondent’s subsequent hearings for up to three years.

In this case the board differed the hearing of respondent. After it found that the, it was not reasonable to expect the parole would be granted and another hearing during the intervening years.

The board scheduled respondent’s next hearing for 1992.

Respondent then filed this habeas petition.

He argued that as apply to him, the 1981 amendment constituted and ex post facto law.

The District Court denied the petition but the Court of Appeals reversed, holding that the amendment effectively increase respondent’s sentence.

In an opinion filed with the clerk today we reverse.

The ex post facto clause is aimed at laws that retroactively alter the definition of crimes or increase punishments.

The 1981 Amendment has or had no effect on the punishment attach to respondent’s crime.

It left untouched respondent’s indeterminate sentence as well as the substantive formula for securing any reductions to that sentence.

The Amendment simply altered the methods for fixing a parole release date under identical substantive standards.

Respondent contains that there is some conceivable risk that the Amendment will effect the actual term of his confinement.

We conclude however that respondent’s speculation is insufficient to establish an ex post facto violation.

The amendment creates only the most attenuated possibility of increasing the measure of punishment for the effected crimes, this showing his insufficient under the ex post facto clause.

Justice Stevens has filed a dissenting opinion in which Justice Souter has joined.