Board’s policies permit expedited reviews in the event of
a change in circumstance or new information.
California Dep’t of Corrections v. Morales, 514 U.S.
499 (1995). Petitioner complained that California’s
parole procedures, which decreased the frequency of
parole hearings for certain offenders, violated the ex post
facto law. Those procedures allowed the Parole Board,
after holding an initial hearing, to defer for up to three
years a subsequent parole suitability hearing for prisoners
convicted of multiple murders if the Board found it was
unreasonable to expect that it would grant parole at a
hearing during the subsequent years, violated the ex post
facto clause. Held: Because the parole procedures had not
changed the quantum of punishment attached to the
petitioner’s offense, they were not ex post facto. The
Court rejected petitioner’s argument that the ex post
facto clause forbids any legislative change that has any
conceivable risk of affecting a prisoner’s punishment, and
noted that the question of what legislative adjustments
will be held to be of sufficient moment to transgress the
ex post facto prohibition must be a matter of degree. The
Court declined to articulate a single formula for
identifying those legislative changes that have a sufficient
effect on substantive crimes or punishments to fall within
the prohibition.
Royster v. Fauver, 775 F.2d 527 (3d Cir. 1985).
Petitioner, who was convicted of a murder he committed
in 1968, argued that the Parole Act of 1979, which was
passed post-conviction, violated the ex post facto clause.
Held: The 1979 Act and the prior Act were precisely the
same, so the application of the 1979 Act to petitioner was
not a violation of the ex post fact clause.
But see, Lynce v. Mathis, 519 U.S. 433 (1997).
Petitioner, who was incarcerated, received early release
credits due to prison overcrowding. A statute was then
passed which retroactively canceled these provisional
early release credits, resulting in the rearrest and
reincarceration of petitioner. Held: This statute violated
the ex post facto clause because the retroactive
cancellation had the effect of increasing petitioner’s
punishment, regardless of the legislative purpose in
enacting the overcrowding statute.
F. Evidence
State v. Gadsen, 245 N.J. Super. 93 (App. Div. 1990).
Defendant was convicted of unlawful possession of
cocaine with intent to distribute within 1,000 feet of a
school. At trial, the State utilized an amended statute
authorizing the use of a map to establish that cocaine was
distributed within 1,000 feet of a school. Because the
statute was amended after commission of the offense,
defendant argued that its application violated the ex post
facto clause. Held: Since changes in evidentiary rules
enacted after the commission of a crime are not ex post
facto laws unless they are a guise for depriving defendants
of a substantial right, and the law does not make any
change in defining the offense or its punitive
consequences, defendant’s ex post facto claim is without
merit.But see, Carmell v. Texas, 529 U.S. 513, 120 S.Ct.
1620, 146 L.Ed.2d 577 (2000). Petitioner was
convicted in 1996 of committing sexual offenses from
1991 to 1995 when the victim was 12 to 15 years old.
Pursuant to a 1993 amendment to a Texas statute, the
victim’s testimony alone could support a conviction if the
victim was under 18. Prior to the amendment, the
statute specified that a victim’s testimony could not, by
itself, support a defendant’s conviction, and that there
had to be corroborating evidence. Held: The application
of the 1993 amendment violated the ex post facto clause
because the law “alters the legal rules of evidence, and
receives less, or different testimony than the law required
at the time of the commission of the offen[se].”G. Capital PunishmentDobbert v. Florida, 432 U.S. at 296-298 (1977). It
does not violate the ex post facto prohibition to sentence
a defendant to death under a death penalty statute
implemented subsequent to the occurrence of the
defendant’s capital offense if the death penalty statute in
existence on the date of the offense was thereafter held to
be unconstitutional.
In Dobbert, the defendant was convicted of first
degree murder. The death penalty statute which was in
existence at the time of the crime was later held to be
unconstitutional. However, at the time the defendant
was tried, a new death penalty statute had been enacted
which met constitutional mandates. The death penalty
was imposed based upon findings made in accordance
with the new statute. The defendant claimed that the
death penalty statute could not be imposed upon him
because it had been enacted following his offense.The Supreme Court was not persuaded. This was
because the changes in the death penalty statute between
the time of the offense and the time of the trial were
procedural and on the whole ameliorative. The new
statute simply altered the methods employed in
determining whether the death penalty was to be
imposed, and there was no change in the quantum of the