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No. 95-7452. Argued November 4, 1996-Decided February 19, 1997

Beginning in 1983 the Florida Legislature enacted a series of statutes authorizing the award of early release credits to prison inmates when the state prison population exceeded predetermined levels. In 1986 petitioner received a 22-year prison sentence on a charge of attempted murder. In 1992 he was released based on the determination that he had accumulated five different types of early release credits totaling 5,668 days, including 1,860 days of "provisional credits" awarded as a result of prison overcrowding. Shortly thereafter, the state attorney general issued an opinion interpreting a 1992 statute as having retroactively canceled all provisional credits awarded to inmates convicted of murder and attempted murder. Petitioner was therefore rearrested and returned to custody. He filed a habeas corpus petition alleging that the retroactive cancellation of provisional credits violated the Ex Post Facto Clause. Relying on precedent rejecting this argument on the ground that the sole purpose of these credits was to alleviate prison overcrowding, the District Court dismissed the petition. The Court of Appeals denied a certificate of probable cause.

Held: The 1992 statute canceling provisional release credits violates the Ex Post Facto Clause. Pp.439-449.

(a) This Court rejects respondents' contention that the cancellation of petitioner's provisional credits did not violate the Clause because the credits had been issued as part of administrative procedures designed to alleviate prison overcrowding and were therefore not an integral part of petitioner's punishment. To fall within the ex post facto prohibition, a law must be retrospective and "disadvantage the offender affected by it," Weaver v. Graham, 450 U. S. 24, 29, by, inter alia, increasing the punishment for the crime, see Collins v. Youngblood, 497 U. S. 37, 50. The operation of the 1992 statute was clearly retrospective, and a determination that it disadvantaged petitioner by increasing his punishment is supported by Weaver v. Graham, 450 U. S., at 36, in which the Court held that retroactively decreasing the amount of gain-time awarded for an inmate's good behavior violated the Ex Post Facto Clause. Because Weaver and subsequent cases focused on whether the legislature's action



lengthened the prisoner's sentence without examining the subjective purposes behind the sentencing scheme, see, e. g., id., at 33, the fact that the generous gain-time provisions in Florida's 1983 statute were motivated more by the interest in avoiding overcrowding than by a desire to reward good behavior is not relevant to the essential ex post facto inquiry. California Dept. of Corrections v. Morales, 514 U. S. 499, 507, distinguished. Respondents are foreclosed by Weaver, 450 U. S., at 32, to the extent they argue that overcrowding gain-time is not in some technical sense part of the sentence. Their further argument that petitioner could not reasonably have expected to receive any overcrowding credits when he entered his plea of nolo contendere is singularly unpersuasive, given the facts that he was actually awarded 1,860 days and that those credits were retroactively canceled as a result of the 1992 statute. Pp.439-447.

(b) The Court disagrees with respondents' argument that petitioner is not entitled to relief because his provisional overcrowding credits were awarded pursuant to statutes enacted after the date of his offense rather than pursuant to the 1983 statute. Although the overcrowding statute in effect at the time of his crime was slightly modified in subsequent years, its basic elements remained the same, and the changes do not affect his core ex post facto claim. However, the differences in the statutes may have affected the precise amount of release time he received. Because this point was not adequately developed earlier in the proceeding, and because it may not in any event affect petitioner's entitlement to release, the Court leaves it open for further consideration on remand. Pp. 447-449.

Reversed and remanded.

STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which SCALIA, J., joined, post, p. 449.

Joel T. Remland argued the cause for petitioner. With him on the briefs was Carter G. Phillips.

Parker D. Thomson, Assistant Attorney General of Florida, argued the cause for respondents. On the brief for respondent Butterworth were Mr. Butterworth, Attorney

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