Violation of Ex Post Facto Clause Parole Revocation

The leading case involving retroactive application of parole violation statutes is Greenfield v. Scafati (D. Mass. 1967) 277 F. Supp. 644, 645-646, aff'd. mem. (1968) 390 U.S. 713, 88 S. Ct. 1409, 20 L. Ed. 2d 250. In Greenfield, a prisoner who was incarcerated following revocation of his parole challenged a Massachusetts statute adopted after he committed his underlying offense which prohibited a parole violator from receiving good-conduct credits during the first six months in custody following revocation. The court held application of the statute to Greenfield violated the ex post facto clause because the statute prevented him from being released as early as he might have been had he been able to amass good-conduct credits under the statute in effect at the time he committed the underlying offense. As to a prisoner in Greenfield's position: "The difference between no penalty, other than a termination of the parole, and a substantial increase in imprisonment for violation, is far from inconsequential. To effect this by legislation enacted after the offense for which sentence was imposed cannot be constitutionally supported." (277 F. Supp. at p. 646.) The court reached this conclusion despite the fact the new provision was necessarily triggered by conduct occurring after its enactment and petitioner had fair warning if he violated parole he would be subject to increased sanctions. (277 F. Supp. at pp. 645-646.) Applying like reasoning, the Ninth Circuit in United States v. Paskow, concluded the sanctions imposed for supervised release violations constitute a portion of the sentence for the defendant's original crime and therefore a violation could not be considered a new offense for ex post facto purposes. (11 F.3d at p. 880-881.) For this reason, "revocation of parole is not a punishment for a new offense, although the conduct on which revocation is based may be punished separately." Rather, "for revocation purposes, the conduct simply triggers the execution of the conditions of the original sentence." (Id. at p. 881.)