What Are Ex Post Facto Laws ?
Ex post facto laws are those that "retroactively alter the definition of crimes or increase the punishment for criminal acts." (Collins v. Youngblood (1990) 497 U.S. 37; accord, People v. Alford (2007) 42 Cal.4th 749, 755.)
"A change in the law that merely operates to the disadvantage of the defendant or constitutes a burden is not necessarily ex post facto. It must be 'a more burdensome punishment.'" (People v. Bailey (2002) 101 Cal.App.4th 238, 243.)
Although Piltz asserts only a federal ex post facto claim, both the California and United States Constitutions prohibit ex post facto laws. (Cal. Const., art. I, 9; U.S. Const., art. I, 10, cl. 1.) The two provisions are analyzed identically. (Alford, at p. 755.)
In California Dept. of Corrections v. Morales (1995) 514 U.S. 499, the United States Supreme Court held a 1981 amendment to Penal Code section 3041.5 that decreased the frequency of parole suitability hearings did not violate ex post facto principles. The amendment authorized the Board to defer parole suitability hearings for up to three years for inmates who had committed multiple murders if the Board found it was not reasonable to expect parole to be granted before that. (Morales, at p. 514.)
The controlling inquiry was whether retroactive application of the amendment created "a sufficient risk of increasing the measure of punishment attached to the covered crimes." (Id. at p. 509.)
The Morales Court reasoned there was no ex post facto violation because the amendment did not increase the statutory punishment for the crime; or disturb the indeterminate sentence, the substantive formula for securing any reductions to the sentence, the process for setting the minimum eligible parole date or the standards for determining parole suitability. (Id. at p. 507.)
Moreover, the Board "retained the authority to tailor the frequency of subsequent suitability hearings to the particular circumstances of the individual prisoner" (id. at p. 511), and inmates given two- or three-year denials, rather than the normative one-year denial, were not precluded from asking, based on changed circumstances, for earlier hearings. (Id. at pp. 513-514.)
Because the amendment created "only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment for covered crimes," it was not unconstitutional when applied to an inmate whose crime had been committed prior to the effective date of the amendment. (Id. at p. 509.)
The Supreme Court again considered ex post facto principles in connection with the timing of parole hearings in Garner v. Jones (2000) 529 U.S. 244.
At the time the defendant had committed his crime, Georgia's parole board was required to reconsider parole suitability every three years. (Id. at p. 247.)
The parole board thereafter amended its rules, extending reconsideration hearings for all inmates with life terms to at least every eight years. (Ibid.)
Although the new rules allowed the parole board to extend parole reconsideration by significantly more than the two additional years at issue in California Dept. of Corrections v. Morales, supra, 514 U.S. 499, applied to all prisoners serving life sentences and not just those committing multiple murders and afforded fewer procedural safeguards than the amendment at issue in Morales, the Supreme Court found these differences were "not dispositive." (Garner, at p. 251.)
The Garner Court explained, although the presence of discretion does not displace the ex post facto analysis, "to the extent there inheres in ex post facto doctrine some idea of actual or constructive notice to the criminal before commission of the offense of the penalty for the transgression, we can say with some assurance that where parole is concerned discretion, by its very definition, is subject to changes in the manner in which it is informed and then exercised. The idea of discretion is that it has the capacity, and the obligation, to change and adapt based on experience. New insights into the accuracy of predictions about the offense and the risk of recidivism consequent upon the offender's release, along with a complex of other factors, will inform parole decisions. The essence of respondent's case, as we see it, is not that discretion has been changed in its exercise but that, in the period between parole reviews, it will not be exercised at all. The statutory structure, its implementing regulations, and the Parole Board's unrefuted representations regarding its operations do not lead to this conclusion." (Garner v. Jones, supra, 529 U.S. at pp. 253-254.)
Georgia's amended statute preserved the parole board's discretion to deny parole for a range of years and permitted an expedited review if a change of circumstances or new information indicated an earlier review was warranted. (Id. at p. 254.)
Thus, the change in the law did not lengthen the inmate's time of actual imprisonment because it did not deprive the parole board of discretion during the time between hearings. (Id. at p. 256.)