Ex Post Facto Clauses Future Prison Misconduct
The In re Ramirez (1985) court observed:
"All that has changed are the sanctions for prison misconduct. . . . Petioner's effective sentence is not altered by the 1982 amendments unless petitioner, by his own actions, chooses to alter his sentence. . . . We conclude that the frequency and seriousness of a defendant's future prison misconduct is too contingent and remote to influence significantly either defendants or trial courts before plea and sentencing." (39 Cal. 3d at pp. 937-938.)
The court supported its holding by reference to "the policy behind the ex post facto clauses that criminal laws must give fair warning to those who may fall within their ambit." (Id. at p. 938; citation omitted.)
In the present case, the court found, "petitioner had fair warning that if he committed certain offenses after January 1, 1983, he would be subject to increased sanctions." (Ibid.)
The Ramirez court acknowledged the opinion in Greenfield v. Scafati, supra, but did not consider Greenfield controlling in "the future-prison-misconduct context" for two reasons:
"(1) the focus of Greenfield was not on the effect on prison administration of a holding that the statute was invalid, but on conduct outside the prison walls;
(2) invalidating the statute as to certain prisoners did not have the effect of immunizing their future conduct from sanctions for prison rule violations.
As far as one can tell, they remained subject to loss of credits for 'misbehavior.'" (39 Cal. 3d at p. 938.)
Ramirez has been followed in subsequent cases involving extended prison time for defendants who commit infractions while in prison. (In re LeDay (1985) 177 Cal. App. 3d 461, 464-465, 221 Cal. Rptr. 398; In re Nolasco (1986) 181 Cal. App. 3d 39, 43, 226 Cal. Rptr. 65.)
Taken together, these cases arguably support the People's position a parole revocation term, or fine, is considered to be imposed for the parole violation rather than for the original offense. (See People v. Blunt (1986) 186 Cal. App. 3d 1594, 1600, 231 Cal. Rptr. 588.)
Much of the reasoning in People v. Hainline (1933) and Ramirez is echoed in United States v. Reese, supra, which rejected the reasoning of the majority of circuits with respect to changes in supervised release (see discussion supra, at pp. 7-9 & fn. 7) and concluded amending the terms of release after the defendant committed his crime was not an ex post facto violation.
The United States v. Reese (6th Cir. 1995) court compared supervised release violation statutes to recidivist statutes which have long been upheld against ex post facto attack. (71 F.3d at pp. 587, 588; People v. Hainline, supra, 219 Cal. at pp. 535-536; and see discussion supra, pp. 8-9.)
The court also rejected the defendant's attempt to link punishment for violation of supervised release to punishment for the underlying offense through a cause-in-fact or "but for" test.
This test led nowhere, the court concluded, because while it was true that "if the predicate offense had not been committed, the later offense would not have resulted in such severe punishment" is was also true that "if the current offense had not been committed, there would have been no new or additional punishment." (71 F.3d at p. 588; cf. Ramirez, supra, 39 Cal. 3d at p. 936.)
The court also questioned whether a "but for" analysis could even be applied to statutes punishing post-offense conduct.
"A person on supervised release, situated identically to Reese, who did not repeatedly test positive for drugs would have suffered no ill consequences from the passage of the new law . . . . When the punishment at issue here does not reach an identically situated prisoner who committed the same earlier conduct, it can hardly be logically argued that the punishment is being imposed 'because of' the earlier conduct." (71 F.3d at p. 590.)