Subject:  COLLINS v. YOUNGBLOOD, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus


COLLINS, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL
DIVISION v. YOUNGBLOOD


certiorari to the united states court of appeals for the fifth circuit

No. 89-742.  Argued March 19, 1990--Decided June 21, 1990

Respondent was convicted in a Texas state court of aggravated sexual
assault and sentenced to life imprisonment and a $10,000 fine.  After his
conviction and sentence were affirmed on direct appeal, he applied for a
writ of habeas corpus in state court, arguing that Texas law did not
authorize both a fine and prison term for his offense, and thus that his
judgment and sentence were void and he was entitled to a new trial.  The
court, bound by a State Court of Criminal Appeals' decision, recommended
that the writ be granted.  Before the writ was considered by the Court of
Criminal Appeals however, a new statute was passed allowing an appellate
court to reform an improper verdict assessing a punishment not authorized
by law.  Thus, the Court of Criminal Appeals reformed the verdict by
ordering that the fine be deleted and denied the request for a new trial.
Arguing that the new Texas law's retroactive application violated the Ex
Post Facto Clause of Art. 1, MDRV 10, respondent filed a writ of habeas
corpus in Federal District Court, which was denied.  The Court of Appeals
reversed.  Relying on the statement in Thompson v. Utah, 170 U. S. 343,
that retroactive procedural statutes violate the Ex Post Facto Clause
unless they "leave untouched all the substantial protections with which
existing law surrounds the . . . accused," the court held that respondent's
right to a new trial under former Texas law was a "substantial
protection."

Held:

    1. Although the rule of Teague v. Lane, 489 U. S. 288--which prohibits
the retroactive application of new rules to cases on collateral review-- is
grounded in important considerations of federal-state relations, it is not
jurisdictional in the sense that this Court, despite a limited grant of
certiorari, must raise and decide the issue sua sponte.  Since Texas has
chosen not to rely on Teague, the merits of respondent's claim will be
considered.  P. 3.

    2. The application of the Texas statute to respondent is not prohibited
by the Ex Post Facto Clause.  Pp. 3-14.

    (a) The definition of an ex post facto law as one that (1) punishes as
a crime an act previously committed, which was innocent when done, (2)
makes more burdensome the punishment for a crime, after its commission, or
(3) deprives one charged with a crime of any defense available according to
law at the time when the act was committed, Beazell v. Ohio, 269 U. S. 167,
is faithful to this Court's best knowledge of the original understanding of
the Clause: Legislatures may not retroactively alter the definition of
crimes or increase the punishment for criminal acts.  Respondent concedes
that Texas' statute does not fall within the Beazell categories, since it
is a procedural change in the law.  However, he errs in arguing that this
Court's decisions have not limited the Clause's scope to those categories,
but have stated more broadly that retroactive legislation contravenes the
Clause if it deprives an accused of a "substantial protection" under law
existing at the time of the crime, and that the new trial guaranteed by
Texas law is such a protection.  When cases have described as "procedural"
those changes that do not violate the Clause even though they work to the
accused's disadvantage, see, e. g., Beazell, supra, at 171, it is logical
to presume that "procedural" refers to changes in the procedures by which a
criminal case is adjudicated as opposed to substantive changes in the law.
The "substantial protection" discussion in Beazell, Duncan v. Missouri, 152
U. S. 377, 382-383, and Malloy v. South Carolina, 237 U. S. 180, 183, has
imported confusion into the Clause's interpretation and should be read to
mean that a legislature does not immunize a law from scrutiny under the
Clause simply by labeling the law "procedural."  It should not be read to
adopt without explanation an undefined enlargement of the Clause.  Pp.
3-9.

    (b) Kring v. Missouri, 107 U. S. 221, and Thompson v. Utah, supra, are
inconsistent with the understanding of the term "ex post facto law" at the
time the Constitution was adopted, rely on reasoning that this Court has
not followed since Thompson was decided, and have caused confusion in state
and lower federal courts about the Clause's scope.  Kring and Thompson are
therefore overruled.  Pp. 9-14.

882 F. 2d 956, reversed.


Rehnquist, C. J., delivered the opinion of the Court, in which White,
Blackmun, O'Connor, Scalia, and Kennedy, JJ., joined.  Stevens, J., filed
an opinion concurring in the judgment, in which Brennan and Marshall, JJ.,
joined.


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Subject: 89-742--OPINION, COLLINS v. YOUNGBLOOD

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.

SUPREME COURT OF THE UNITED STATES


No. 89-742



JAMES A. COLLINS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION, PETITIONER v. CARROLL F. YOUNGBLOOD

on writ of certiorari to the united states court of appeals for the fifth
circuit

[June 21, 1990]



    Chief Justice Rehnquist delivered the opinion of the Court.
    The question presented in this case is whether the appli cation of a
Texas statute, which was passed after respondent's crime and which allowed
the reformation of an improper jury verdict in respondent's case, violates
the Ex Post Facto Clause of Art. I, MDRV 10.  We hold that it does not.
    Respondent Carroll Youngblood was convicted in a Texas court of
aggravated sexual abuse.  The jury imposed punishment of life imprisonment
and a fine of $10,000.  After his conviction and sentence were affirmed by
the Texas Court of Criminal Appeals, Youngblood applied for a writ of
habeas corpus in the State District Court.  He argued that Texas Code of
Criminal Procedure did not authorize a fine in addition to a term of
imprisonment for his offense, and, thus, under the decision of the Court of
Criminal Appeals in Bogany v. State, 661 S. W. 2d 957 (Tex. Crim. App.
1983), the judgment and sentence were void, and he was entitled to a new
trial. {1}  In April 1985, the District Court, feeling bound by Bogany,
recommended that the writ be granted.
    Before the habeas application was considered by the Texas Court of
Criminal Appeals, which has the exclusive power under Texas law to grant
writs of habeas corpus, see Tex. Code Crim. Proc. Ann., Art. 11.07 (Vernon
1977 and Supp. 1990), a new Texas statute designed to modify the Bogany
decision became effective.  Article 37.10(b), as of June 11, 1985, allows
an appellate court to reform an improper verdict that assesses a punishment
not authorized by law.  Tex. Code Crim. Proc. Ann., Art. 37.10(b) (Vernon
Supp. 1990); see Ex parte Johnson, 697 S. W. 2d 605 (Tex. Crim. App. 1985).
Relying on that statute, the Court of Criminal Appeals reformed the verdict
in Youngblood's case by ordering deletion of the $10,000 fine, and denied
his request for a new trial.
    Youngblood then sought a writ of habeas corpus from the United States
District Court for the Eastern District of Texas, arguing that the
retroactive application of Article 37.10(b) violated the Ex Post Facto
Clause of Art. I, MDRV 10.  The District Court concluded that since
Youngblood's "punishment . . . was not increased (but actually decreased),
and the elements of the offense or the ultimate facts necessary to
establish guilt were not changed," there was no ex post facto violation.
App. to Pet. for Cert. C-6.
    The Court of Appeals reversed.  Youngblood v. Lynaugh, 882 F. 2d 956
(CA5 1989).  It relied on the statement in this Court's decision in
Thompson v. Utah, 170 U. S. 343 (1898), that retroactive procedural
statutes violate the Ex Post Facto Clause unless they " `leave untouched
all the substantial protections with which existing law surrounds the
person accused of crime,' " Lynaugh, supra, at 959 (quoting 170 U. S., at
352).  It held that Youngblood's right to a new trial under the Bogany
decision was such a "substantial protection," and therefore ordered that a
writ of habeas corpus be issued.  We granted certiorari.  493 U. S. ----
(1989).
    Because respondent is before us on collateral review, we are faced with
a threshold question whether the relief sought by Youngblood would
constitute a "new rule," which would not apply retroactively under our
decisions in Teague v. Lane, 489 U. S. 288 (1989), and Butler v. McKellar,
494 U. S. ---- (1990).  Generally speaking, "[r]etroactivity is properly
treated as a threshold question, for, once a new rule is applied to the
defendant in the case announcing the rule, evenhanded justice requires that
it be applied retroactively to all who are similarly situated."  Teague,
supra, at 300.  The State of Texas, however, did not address retroactivity
in its petition for certiorari or its briefs on the merits, and when asked
about the issue at oral argument, counsel answered that the State had
chosen not to rely on Teague.  Tr. of Oral Arg. 4-5.  Although the Teague
rule is grounded in important considerations of federal-state relations, we
think it is not "jurisdictional" in the sense that this Court, despite a
limited grant of certiorari, must raise and decide the issue sua sponte.
Cf. Patsy v. Board of Regents of Fla., 457 U. S. 496, 515, n. 19 (1982)
(Eleventh Amendment defense need not be raised and decided by the Court on
its own motion).  We granted certiorari to consider the merits of
respondent's ex post facto claim, and we proceed to do so.
    Although the Latin phrase "ex post facto" literally encompasses any law
passed "after the fact," it has long been recognized by this Court that the
constitutional prohibition on ex post facto laws applies only to penal
statutes which disadvantage the offender affected by them.  Calder v. Bull,
3 Dall. 386, 390-392 (1798) (opinion of Chase, J.); id., at 396 (opinion of
Paterson, J.); id., at 400 (opinion of Iredell, J.).  See Miller v.
Florida, 482 U. S. 423, 430 (1987). {2}  As early opinions in this Court
explained, "ex post facto law" was a term of art with an established
meaning at the time of the framing of the Constitution.  Calder, 3 Dall.,
at 391 (opinion of Chase, J.); id., at 396 (opinion of Paterson, J.).
Justice Chase's now familiar opinion in Calder expounded those legislative
acts which in his view implicated the core concern of the Ex Post Facto
Clauses:

"1st. Every law that makes an action done before the passing of the law,
and which was innocent when done, criminal; and punishes such action.  2d.
Every law that aggravates a crime, or makes it greater than it was, when
committed.  3d. Every law that changes the punishment, and inflicts a
greater punishment, than the law annexed to the crime, when committed.
4th. Every law that alters the legal rules of evidence, and receives less,
or different, testimony, than the law required at the time of the
commission of the offence, in order to convict the offender."  Id., at 390
(emphasis in original).


    Early opinions of the Court portrayed this as an exclusive definition
of ex post facto laws.  Fletcher v. Peck, 6 Cranch 87, 138 (1810); Cummings
v. Missouri, 4 Wall. 277, 325-326 (1867); id., at 391 (Miller, J.,
dissenting) ("This exposition of the nature of ex post facto laws has never
been denied, nor has any court or any commentator on the Constitution added
to the classes of laws here set forth, as coming within that clause"); Gut
v. State, 9 Wall. 35, 38 (1870).  So well accepted were these principles
that the Court in Beazell v. Ohio, 269 U. S. 167 (1925), was able to
confidently summarize the meaning of the Clause as follows:

"It is settled, by decisions of this Court so well known that their
citation may be dispensed with, that any statute which punishes as a crime
an act previously committed, which was innocent when done; which makes more
burdensome the punishment for a crime, after its commission, or which
deprives one charged with crime of any defense available according to law
at the time when the act was committed, is prohibited as ex post facto."
Id., at 169-170.


See also Dobbert v. Florida, 432 U. S. 282, 292 (1977). {3}
    The Beazell formulation is faithful to our best knowledge of the
original understanding of the Ex Post Facto Clause: Legislatures may not
retroactively alter the definition of crimes or increase the punishment for
criminal acts.  Several early state constitutions employed this definition
of the term, and they appear to have been a basis for the Framers'
understanding of the provision.  See The Federalist No. 44, p. 301 (J.
Cooke ed. 1961) (J. Madison); 2 Records of the Federal Convention of 1787,
p. 376 (M. Farrand ed. 1966); Calder, 3 Dall., at 391-392 (opinion of
Chase, J.); id., at 396-397 (opinion of Paterson, J.).  The Constitutions
of Maryland and North Carolina, for example, declared that "retrospective
laws, punishing facts committed before the existence of such laws, and by
them only declared criminal, are oppressive, unjust, and incompatible with
liberty; wherefore no ex post facto law ought to be made."  See
Constitution of Maryland, Declaration of Rights, Art. XV (1776);
Constitution of North Carolina, Declaration of Rights, Art. XXIV (1776).
Other state constitutions, though not using the phrase "ex post facto,"
included similar articles.  See Declaration of Rights and Fundamental Rules
of the Delaware State, MDRV 11 (1776); Constitution or Form of Government
for the Commonwealth of Massachusetts, Declaration of Rights, Art. XXIV
(1780).
    Another historical reference, Blackstone's Commentaries, which was
discussed by the Framers during debates on the Ex Post Facto Clause, see 2
Records of the Federal Convention of 1787, p. 448-449 (M. Farrand ed.
1966), and deemed an authoritative source of the technical meaning of the
term in Calder, see 3 Dall., at 391 (opinion of Chase, J.); id., at 396
(opinion of Paterson, J.), buttresses this understanding.  According to
Blackstone, a law is ex post facto "when after an action (indifferent in
itself) is committed, the legislator then for the first time declares it to
have been a crime, and inflicts a punishment upon the person who has
committed it."  1 W. Blackstone, Commentaries * 46.  Although increased
punishments are not mentioned explicitly in the historical sources, the
Court has never questioned their prohibition, apparently on the theory that
"[t]he enhancement of a crime, or penalty, seems to come within the same
mischief as the creation of a crime or penalty."  Calder, supra, at 397
(opinion of Paterson, J.).  The Beazell definition, then, is faithful to
the use of the term "ex post facto law" at the time the Constitution was
adopted.
    Respondent concedes that Art. 37.10(b) of the Texas Code of Criminal
Procedure does not fall within any of the Beazell categories and, under
that definition, would not constitute an ex post facto law as applied to
him.  The new statute is a procedural change that allows reformation of
improper verdicts.  It does not alter the definition of the crime of
aggravated sexual abuse, of which Youngblood was convicted, nor does it
increase the punishment for which he is eligible as a result of that
conviction.  Nevertheless, respondent maintains that this Court's decisions
have not limited the scope of the Ex Post Facto Clause to the finite
Beazell categories, but have stated more broadly that retroactive
legislation contravenes Art. I, MDRV 10 if it deprives an accused of a
"substantial protection" under law existing at the time of the crime.  He
argues that the new trial guaranteed him by former Texas law is such a
protection.
    Several of our cases have described as "procedural" those changes
which, even though they work to the disadvantage of the accused, do not
violate the Ex Post Facto Clause.  Dobbert v. Florida, supra, at 292-293,
and n. 6; Beazell v. Ohio, 269 U. S., at 171; Mallett v. North Carolina,
181 U. S. 589, 597 (1901).  While these cases do not explicitly define what
they mean by the word "procedural," it is logical to think that the term
refers to changes in the procedures by which a criminal case is
adjudicated, as opposed to changes in the substantive law of crimes.
Respondent correctly notes, however, that we have said a procedural change
may constitute an ex post facto violation if it "affect[s] matters of
substance," Beazell, supra, at 171, by depriving a defendant of
"substantial protections with which the existing law surrounds the person
accused of crime," Duncan v. Missouri, 152 U. S. 377, 382-383 (1894), or
arbitrarily infringing upon "substantial personal rights."  Malloy v. South
Carolina, 237 U. S. 180, 183 (1915); Beazell, supra, at 171.
    We think this language from the cases cited has imported confusion into
the interpretation of the Ex Post Facto Clause.  The origin of the rather
amorphous phrase, "substantial protections," appears to lie in a nineteenth
century treatise on constitutional law by Professor Thomas Cooley.  T.
Cooley, Constitutional Limitations * 272.  According to Cooley, who notably
assumed the Calder construction of the Ex Post Facto Clause to be correct,
Constitutional Limitations * 265, a legislature "may prescribe altogether
different modes of procedure in its discretion, though it cannot lawfully,
we think, in so doing, dispense with any of those substantial protections
with which the existing law surrounds the person accused of crime."  Id.,
at * 272.
    This Court's decision in Duncan v. Missouri, supra, subsequently
adopted that phraseology:

"[A]n ex post facto law is one which imposes a punishment for an act which
was not punishable at the time it was committed; or an additional
punishment to that then prescribed; or changes the rules of evidence by
which less or different testimony is sufficient to convict than was then
required; or, in short, in relation to the offence or its consequences,
alters the situation of a party to his disadvantage; but the prescribing of
different modes or procedure and the abolition of courts and creation of
new ones, leaving untouched all the substantial protections with which the
existing law surrounds the person accused of crime, are not considered
within the constitutional inhibition.  Cooley Const. Lim. (5th ed.) 329."
Id., at 382-383 (other citations omitted) (emphasis added).


Later, in Malloy v. South Carolina, supra, we stated that even with regard
to procedural changes, the Ex Post Facto Clause was "intended to secure
substantial personal rights against arbitrary and oppressive legislative
action."  Id., at 183.  We repeated that recognition in Beazell itself,
while also emphasizing that the provision was "not to limit the legislative
control of remedies and modes of procedure which do not affect matters of
substance."  Beazell, supra, at 171.
    We think the best way to make sense out of this discussion in the cases
is to say that by simply labelling a law "procedural," a legislature does
not thereby immunize it from scrutiny under the Ex Post Facto Clause.  See
Gibson v. Mississippi, 162 U. S. 565, 590 (1896).  Subtle ex post facto
violations are no more permissible than overt ones.  In Beazell, supra, we
said that the constitutional prohibition is addressed to laws, "whatever
their form," which make innocent acts criminal, alter the nature of the
offense, or increase the punishment.  269 U. S., at 170.  But the
prohibition which may not be evaded is the one defined by the Calder
categories.  See Duncan, supra, at 382; Malloy supra, at 183-184.  The
references in Duncan and Malloy to "substantial protections" and "personal
rights" should not be read to adopt without explanation an undefined
enlargement of the Ex Post Facto Clause.
    Two decisions of this Court, relied upon by respondent, do not fit into
this analytical framework.  In Kring v. Missouri, 107 U. S. 221 (1883), the
Court said "it is not to be supposed that the opinion in [Calder v. Bull]
undertook to define, by way of exclusion, all the cases to which the
constitutional provision would be applicable."  Id., at 228.  It defined an
ex post facto law, inter alia, as one which, " `in relation to the offence
or its consequences, alters the situation of a party to his disadvantage.'
"  Id., at 228-229 (quoting United States v. Hall, 26 F. Cas. 84, 86 (No.
15,285) (D Pa. 1809)) (emphasis deleted).  And in Thompson v. Utah, 170 U.
S. 343 (1898), the Court held that a change in Utah law reducing the size
of juries in criminal cases from 12 persons to 8 deprived Thompson of "a
substantial right involved in his liberty," and violated the Ex Post Facto
Clause.  Id., at 352.
    Neither of these decisions, in our view, is consistent with the
understanding of the term "ex post facto law" at the time the Constitution
was adopted.  Nor has their reasoning been followed by this Court since
Thompson was decided in 1898.  These cases have caused confusion in state
and lower federal courts about the scope of the Ex Post Facto Clause, as
exemplified by the opinions of the District Court and Court of Appeals in
this case.  See also Murphy v. Kentucky, 465 U. S. 1072, 1073 (1984)
(White, J., dissenting from denial of certiorari) (noting "the evident
confusion among lower courts concerning the application of the Ex Post
Facto Clause to changes in rules of evidence and procedure"); United States
v. Kowal, 596 F. Supp. 375, 377 (Conn. 1984) (Supreme Court jurisprudence
applying ex post facto prohibition to retroactive procedural changes "is
not all of one piece"); L. Tribe, American Constitutional Law 638 (2d ed.
1988) (procedural changes upheld by the Court "can hardly be distinguished
in any functional way from those invalidated").
    The earlier decision, Kring v. Missouri, was a capital case with a
lengthy procedural history.  Kring was charged with first-degree murder,
but pursuant to a plea agreement, he pled guilty to second-degree murder.
The plea was accepted by the prosecutor and the trial court, and he was
sentenced to 25 years in prison.  He appealed the judgment, however, on the
ground that his plea agreement provided for a sentence of no more than 10
years.  The State Supreme Court reversed the judgment and remanded for
further proceedings.  In the trial court, Kring refused to withdraw his
guilty plea to second-degree murder and refused to renew his plea of not
guilty to first-degree murder, insisting instead that the acceptance of his
earlier plea constituted an acquittal on the greater charge.  The trial
court, over Kring's objection, directed a general plea of not guilty to be
entered, and upon retrial, he was convicted of first-degree murder and
sentenced to death.
    At the time the crime was committed, Missouri law provided that a
defendant's plea of guilty to second-degree murder, if accepted by the
prosecutor and the court, served as an acquittal of the charge of
first-degree murder.  After the crime, but before Kring made his plea, a
new Missouri Constitution abrogated that rule.  The State was thus free, as
a matter of Missouri law, to retry Kring for first-degree murder after his
conviction and the 25-year sentence for second-degree murder were vacated.
The Supreme Court of Missouri held that the new law did not violate the Ex
Post Facto Clause, because it effected only a change in criminal
procedure.
    This Court reversed by a vote of 5 to 4.  As support for the view that
Calder did not define an exclusive list of legislative acts falling within
the constitutional prohibition, Justice Miller's opinion for the Court
quoted a jury charge given by Justice Washington sitting in the District
Court: " `[A]n ex post facto law is one which, in its operation, makes that
criminal which was not so at the time the action was performed; or which
increases the punishment, or, in short, which, in relation to the offence
or its consequences, alters the situation of a party to his disadvantage.'
"  Kring, 107 U. S., at 228-229 (quoting United States v. Hall, supra, at
86) (emphasis in original).  Applying that test, the Court concluded that
because the new Missouri Constitution denied Kring the benefit of an
implied acquittal which the previous law provided, it "altered the
situation to his disadvantage," and his conviction for first-degree murder
was void.  Kring, supra, at 235-236.
    The Court's departure from Calder's explanation of the original
understanding of the Ex Post Facto Clause was, we think, unjustified.  The
language in the Hall case, heavily relied upon in Kring and repeated in
other decisions thereafter, does not support a more expansive definition of
ex post facto laws.
    In Hall, a vessel owner was sued by the United States for forfeiture of
an embargo bond obliging him to deliver certain cargo to Portland.  As a
legal excuse, the defendant argued that a severe storm had disabled his
vessel and forced him to land in Puerto Rico, where he was forced by the
Puerto Rican government to sell the cargo.  In dicta, Justice Washington
hypothesized that, according to the law in effect at the time Hall
forfeited the cargo, an "unavoidable accident" was an affirmative defense
to a charge of failing to deliver cargo.  His jury instruction then
explained that a subsequent law imposing an additional requirement for the
affirmative defense-- that the vessel or cargo actually be lost at sea as a
result of the unavoidable accident--would deprive Hall of a defense of his
actions available at the time he sold the cargo, and thus be an invalid ex
post facto law.
    This analysis is consistent with the Beazell framework.  A law that
abolishes an affirmative defense of justification or excuse contravenes
Art. I, MDRV 10, because it expands the scope of a criminal prohibition
after the act is done.  It appears, therefore, that Justice Washington's
reference to laws "relat[ing] to the offence, or its consequences," was
simply shorthand for legal changes altering the definition of an offense or
increasing a punishment.  His jury charge should not be read to mean that
the Constitution prohibits retrospective laws, other than those encompassed
by the Calder categories, which "alter the situation of a party to his
disadvantage."  Nothing in the Hall case supports the broad construction of
the ex post facto provision given by the Court in Kring.
    It is possible to reconcile Kring with the numerous cases which have
held that "procedural" changes do not result in ex post facto violations by
saying that the change in Missouri law did take away a "defense" available
to the defendant under the old procedure.  But this use of the word
"defense" carries a meaning quite different from that which appears in the
quoted language from Beazell, where the term was linked to the prohibition
on alterations in "the legal definition of the offense" or "the nature or
amount of the punishment imposed for its commission."  Beazell, 269 U. S.,
at 169-170.  The "defense" available to Kring under earlier Missouri law
was not one related to the definition of the crime, but was based on the
law regulating the effect of guilty pleas.  Missouri had not changed any of
the elements of the crime of murder, or the matters which might be pleaded
as an excuse or justification for the conduct underlying such a charge; it
had changed its law respecting the effect of a guilty plea to a lesser
included offense.  The holding in Kring can only be justified if the Ex
Post Facto Clause is thought to include not merely the Calder categories,
but any change which "alters the situation of a party to his disadvantage."
We think such a reading of the Clause departs from the meaning of the
Clause as it was understood at the time of the adoption of the
Constitution, and is not supported by later cases.  We accordingly overrule
Kring.
    The second case, Thompson v. Utah, must be viewed in historical
context.  Thompson was initially charged with his crime--grand larceny
committed by stealing a calf--in 1895, when Utah was a Territory.  He was
tried by a jury of 12 persons and convicted.  A new trial was subsequently
granted, however, and in the meantime Utah was admitted into the Union as a
State.  The Constitution of the State of Utah provided that juries in
noncapital cases would consist of eight persons, not twelve, and Thompson
was retried and convicted by a panel of eight.
    This Court reversed the conviction.  It reasoned first that while Utah
was a Territory, the Sixth Amendment applied to actions of the territorial
government and guaranteed Thompson a right to a 12-person jury.  170 U. S.,
at 349-350.  The Court then held that "the State did not acquire upon its
admission into the Union the power to provide, in respect of felonies
committed within its limits while it was a Territory, that they should be
tried otherwise than by a jury such as is provided by the Constitution of
the United States."  Id., at 350-351.  Because the State Constitution
"deprive[d] him of a substantial right involved in his liberty" and
"materially alter[ed] the situation to his disadvantage," the Court
concluded that Thompson's conviction was prohibited by the Ex Post Facto
Clause.  Id., at 352-353.
    The result in Thompson v. Utah foreshadowed our decision in Duncan v.
Louisiana, 391 U. S. 145 (1968), which held that the Sixth Amendment right
to trial by jury--then believed to mean a jury of 12, see, e. g., Patton v.
United States, 281 U. S. 276, 288-289 (1930)--was incorporated and made
applicable by the Fourteenth Amendment against the states.  The Court held
that since Utah was a territory when Thompson's crime was committed, and
therefore obligated to provide a twelve-person jury by the Sixth Amendment,
the Ex Post Facto Clause prevented the State from taking away that
substantial right from him when it became a State and was no longer bound
by the Sixth Amendment as then interpreted.  The right to jury trial
provided by the Sixth Amendment is obviously a "substantial" one, but it is
not a right that has anything to do with the definition of crimes,
defenses, or punishments, which is the concern of the Ex Post Facto Clause.
To the extent that Thompson v. Utah rested on the Ex Post Facto Clause and
not the Sixth Amendment, we overrule it. {4}
    The Texas statute allowing reformation of improper verdicts does not
punish as a crime an act previously committed, which was innocent when
done; nor make more burdensome the punishment for a crime, after its
commission; nor deprive one charged with crime of any defense available
according to law at the time when the act was committed.  Its application
to respondent therefore is not prohibited by the Ex Post Facto Clause of
Art. I, MDRV 10.
    The judgment of the Court of Appeals is
Reversed.


 
 
 
 
 

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1
    In Bogany, the Texas Court of Criminal Appeals held that a jury verdict
which included a punishment unauthorized by law was void at its inception,
and must be set aside.  It concluded that Texas law at that time did not
give appellate courts authority to reform such verdicts.

2
    Although there has been some debate within the Court about the accuracy
of the historical discussion in Calder v. Bull, see Satterlee v. Matthew
son, 2 Pet. 380, 381 (1829) (note by Justice Johnson), the Court has con
sistently adhered to the view expressed by Justices Chase, Paterson, and
Iredell in Calder that the Ex Post Facto Clause applies only to penal
statutes.

3
    The Beazell definition omits the reference by Justice Chase in Calder
v. Bull, 3 Dall. 386 (1798) to alterations in the "legal rules of
evidence."  See also Hopt v. Utah, 110 U. S. 574, 590 (1884) (approving
procedural changes "leaving untouched the nature of the crime and the
amount or degree of proof essential to conviction").  As cases subsequent
to Calder make clear, this language was not intended to prohibit the
application of new evidentiary rules in trials for crimes committed before
the changes.  Thompson v. Missouri, 171 U. S. 380, 386-387 (1898)
(rejecting ex post facto challenge to retroactive application of statute
making admissible handwritten documents as handwriting exemplars); Hopt,
supra, at 588-590 (upholding retroactive application of statute making
felons competent to testify).

4
    The Court's holding in Thompson v. Utah, 170 U. S. 343 (1898), that the
Sixth Amendment requires a jury panel of 12 persons is also obsolete.
Williams v. Florida, 399 U. S. 78 (1970).





Subject: 89-742--CONCUR, COLLINS v. YOUNGBLOOD

 


    SUPREME COURT OF THE UNITED STATES


No. 89-742



JAMES A. COLLINS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION, PETITIONER v. CARROLL F. YOUNGBLOOD

on writ of certiorari to the united states court of appeals for the fifth
circuit

[June 21, 1990]



    Justice Stevens, with whom Justice Brennan and Justice Marshall join,
concurring in the judgment.
    The "Ex Post Facto" Clause of the Constitution  {1} has been construed
to embrace any law that deprives a person accused of crime of a
"substantial protection" that the law afforded at the time of the alleged
offense.  Thus, the Clause prohibits not only the retroactive creation of
new criminal offenses and more harsh penalties, but also substantial
changes in pro cedure that are designed to protect the defendant from a
wrongful conviction.  The question in this case is whether a law that
changed a postconviction remedy for an erroneous sentence--by conforming it
to the law in effect at the time of the offense instead of affording the
defendant a new trial on all issues--effected a "substantial" deprivation
within the meaning of our cases.  I agree with the Court's conclusion that
the new law did not violate the Ex Post Facto Clause, but I believe that
conclusion is entirely consistent with our precedents.

I
    Respondent committed a crime that was punishable by a maximum sentence
of life imprisonment, and was convicted on March 17, 1982.  Under Texas
law, it was the jury's task to impose sentence as well as to determine
guilt or innocence.  By consequence of a faulty instruction, respondent was
improperly sentenced to life imprisonment and a fine of $10,000.  The
following year, in Bogany v. State, 661 S. W. 2d 957 (1983), the Texas
Court of Criminal Appeals held in a somewhat similar case that the fine was
not authorized by law, and that no reviewing court had authority to correct
such an erroneous sentence.  Instead, the entire judgment was deemed "void"
and the defendant was entitled to a new trial. {2}  Understandably, the
Texas legislature recognized that corrective legislation was in order, for
it is difficult to understand why an error in sentencing should necessitate
a second trial on the issue of guilt or innocence.
    Theoretically, the legislature might have remedied the situation in
either of two ways.  It might have authorized a punishment of both life
imprisonment and a $10,000 fine for respondent's offense or, alternatively,
it might have authorized a court to correct the sentence by eliminating the
fine.  The former option would plainly have violated the Ex Post Facto
Clause because it would have increased the respondent's punishment beyond
the penalty authorized at the time of his offense.  The second option,
which the Texas legislature adopted, is not subject to that defect; nor
does it criminalize previously innocent conduct or make any change in the
procedures used to convict or to sentence respondent.  It created a new
remedy designed to conform respondent's sentence to that authorized by law
at the time of his offense.  Such legislation does not violate the Ex Post
Facto Clause.
    The argument to the contrary is based on our cases holding that the
Clause applies to procedural, as well as substantive, changes that deprive
a defendant of "substantial personal rights" and a claim that respondent's
right to a new trial after an erroneous sentence was such a right.  The
argument misreads our precedents and overlooks the critical importance of
evaluating the procedural right at issue by reference to the time of the
offense.

II
    In Kring v. Missouri, 107 U. S. 221 (1883), the Court rejected the
argument that the Ex Post Facto Clause has no application to procedural
changes.  At the time of Kring's offense, Missouri law provided that the
acceptance of a plea of guilty to second-degree murder constituted an
acquittal of first-degree murder.  A subsequent amendment to the Missouri
Constitution abrogated that rule and Kring was thereafter convicted of
first-degree murder and sentenced to death.  The Missouri Supreme Court
held that there was no violation of the Ex Post Facto Clause because the
retroactive amendment was merely a procedural change. {3}  This Court's
reversal of that holding demonstrates that the Clause applies to some
procedural changes, but our decision rested on the fact that the change had
deprived the defendant of a complete defense to the charge of first-degree
murder and to the imposition of the death penalty.  We wrote:

    "Whatever may be the essential nature of the change, it is one which,
to the defendant, involves the difference between life and death, and the
retroactive character of the change cannot be denied."  Id., at 224.
    "In the case before us the Constitution of Missouri so changes the rule
of evidence, that what was conclusive evidence of innocence of the higher
grade of murder when the crime was committed, namely, a judicial conviction
for a lower grade of homicide, is not received as evidence at all, or, if
received, is given no weight in behalf of the offender.  It also changes
the punishment, for, whereas the law as it stood when the homicide was
committed was that, when convicted of murder in the second degree, he could
never be tried or punished by death for murder in the first degree, the new
law enacts that he may be so punished, notwithstanding the former
conviction."  Id., at 228.


    Thompson v. Utah, 170 U. S. 343 (1898), involved an offense committed
while Utah was a territory, but the case was tried after Utah became a
State.  At the time of the offense, the defendant was entitled to a trial
by a 12-person jury, but under the new State's law only 8 jurors were
required.  We held that this retrospective procedural change deprived
Thompson of "a substantial right belonging to him when the offense was
committed," and therefore violated the Ex Post Facto Clause.

    "We are of opinion that the State did not acquire upon its admission
into the Union the power to provide, in respect of felonies committed
within its limits while it was a Territory, that they should be tried
otherwise than by a jury such as is provided by the Constitution of the
United States.  When Thompson's crime was committed, it was his
constitutional right to demand that his liberty should not be taken from
him except by the joint action of the court and the unanimous verdict of a
jury of twelve persons.  To hold that a State could deprive him of his
liberty by the concurrent action of a court and eight jurors, would
recognize the power of the State not only to do what the United States in
respect of Thompson's crime could not, at any time, have done by
legislation, but to take from the accused a substantial right belonging to
him when the offence was committed.
    "It is not necessary to review the numerous cases in which the courts
have determined whether particular statutes come within the constitutional
prohibition of ex post facto laws.  It is sufficient now to say that a
statute belongs to that class which by its necessary operation and `in its
relation to the offence, or its consequences, alters the situation of the
accused to his disadvantage.'  United States v. Hall, 2 Wash. C. C. 366;
Kring v. Missouri, 107 U. S. 221, 228; Medley, Petitioner, 134 U. S. 160,
171.  Of course, a statute is not of that class unless it materially
impairs the right of the accused to have the question of his guilt
determined according to the law as it was when the offence was committed."
170 U. S., at 350-351.


    In Beazell v. Ohio, 269 U. S. 167 (1925), we made it clear that the
question whether a particular procedural change has a sufficiently drastic
impact on a defendant to be characterized as "substantial" is a matter of
degree.  In that case we held that the rule applied in Kring and Thompson
did not preclude the retrospective application of a rule allowing two
codefendants to be tried jointly for a noncapital offense.  We summarized
our earlier cases construing the Ex Post Facto Clause and explained:

"The constitutional prohibition and the judicial interpretation of it rest
upon the notion that laws, whatever their form, which purport to make
innocent acts criminal after the event, or to aggravate an offense, are
harsh and oppressive, and that the criminal quality attributable to an act,
either by the legal definition of the offense or by the nature or amount of
the punishment imposed for its commission, should not be altered by
legislative enactment, after the fact, to the disadvantage of the accused."
Id., at 170.
"And there may be procedural changes which operate to deny to the accused a
defense available under the laws in force at the time of the commission of
his offense, or which otherwise affect him in such a harsh and arbitrary
manner as to fall within the constitutional prohibition.  Kring v.
Missouri, 107 U. S. 221; Thompson v. Utah, 170 U. S. 343.  But it is now
well settled that statutory changes in the mode of trial or the rules of
evidence, which do not deprive the accused of a defense and which operate
only in a limited and unsubstantial manner to his disadvantage, are not
prohibited."  Ibid.
    "Just what alterations of procedure will be held to be of sufficient
moment to transgress the constitutional prohibition cannot be embraced
within a formula or stated in a general proposition.  The distinction is
one of degree.  But the constitutional provision was intended to secure
substantial personal rights against arbitrary and oppressive legislation,
see Malloy v. South Carolina, 237 U. S. 180, 183, and not to limit the
legislative control of remedies and modes of procedure which do not affect
matters of substance."  Id., at 170-171.

III
    The foregoing cases make it clear that the mere fact that this case
involves a procedural change in Texas law is not sufficient to exclude it
from the coverage of the Ex Post Facto Clause.  But it is equally clear
that our analysis should focus on the impact of the change upon the "right
belonging to [the defendant] when the offense was committed."  Thompson,
170 U. S., at 351.  In this case, neither the defendant's right to a fair
trial nor his right to be protected against unauthorized or excessive
punishment has been impaired in the slightest by the new Texas rule.
    This conclusion follows immediately from an observation which is both
sensible and evident from precedent: a pro cedural protection is likely to
be substantial, when viewed from the time of the commission of the offense,
only if it affects the modes of procedure by which a valid conviction or
sentence may be imposed.  The claims in Kring and Thompson both satisfy
this threshold test.  In Kring, the procedural change--which deprived Kring
of a defense based upon an earlier trial or plea--made it easier for the
State to obtain a first-degree murder charge against a defendant who had
never been subject to any valid conviction for the crime in question, much
less a valid conviction for first-degree murder.  In Thompson, the
reduction in the size of the jury made it easier for the State to obtain a
unanimous verdict against a defendant who, before the verdict, likewise had
not been convicted.
    Mallett v. North Carolina, 181 U. S. 589 (1901), is, however,
distinguishable from Kring and Thompson because it fails to meet the
threshold test.  In Mallett, a valid conviction had been obtained against
the defendant.  Under the defendant's theory in that case, however, the
State would have been prohibited from relying upon this conviction because
it had been vacated by an intermediate appellate court.  Although the North
Carolina Supreme Court reinstated the conviction, Mallett claimed that it
lacked power to do so.  At the time Mallett committed his crime, the State
was prohibited by state law from appealing the adverse decisions of
intermediate appellate courts in criminal cases.  This restriction had been
removed, but Mallett contended that the State had thereby enacted an ex
post facto law.  As the case came to this Court, it was conceded that
Mallett was convicted after a trial which afforded him all the procedural
and substantive protections guaranteed by North Carolina law at the time he
committed his offense.  Nevertheless, according to Mallett's theory, the
State was prohibited from relying upon his conviction because of the
combination of an intervening-- and, for this Court's purposes,
erroneous--appellate decision and a restriction upon the State's access to
the appellate processes.  Not surprisingly, we rejected this claim.
    This case is comparable to Mallett.  Respondent does not claim that he
was denied any procedural protections relevant to the determination of his
guilt or innocence.  Nor does he claim that his life sentence was
unauthorized by law, or that it was the consequence of improper procedures.
Finally, he does not argue that he has been deprived of any avenue of
review for correcting errors that may have vitiated the validity of his
conviction or sentence.  For example, respondent does not contend--and we
do not see how he could plausibly contend--that the State has deprived him
of any opportunity to challenge his conviction on the ground that the
improper sentencing instruction somehow infected the jury's deliberations
about his guilt or about the propriety of life imprisonment.  Respondent
instead claims, as did the defendant in Mallett, that an unrelated error
must bar the State from relying upon his concededly valid conviction, and
predicates this claim solely on a restriction upon the State's access to
appellate--or, more precisely in this case, post conviction-- remedies. {4}
Unlike the defendants in Thompson and Kring, Youngblood wishes to have a
new trial according to the same procedures, regulated by the same laws,
open to the same evidence, and capped by the same sentencing limitations
that resulted in his conviction and his life sentence. {5}
    Obviously, as our decision in Beazell itself makes clear, a procedural
protection does not become substantial merely because it meets the low
threshold that I have discussed. It does, however, become insubstantial by
failing to do so.  Whatever else may be said of the factors that determine
whether a procedural protection affects substantial rights, it is difficult
to imagine how a retroactive law could, when viewed from the standpoint of
the date the offense was committed, implicate substantial rights of any
defendant if the law does no more than expand the flexibility of post
conviction processes available to the State with respect to a defendant who
is subject to a valid conviction and sentence.  Indeed, respondent has
barely even attempted to articulate any justification for the Texas
procedure that the legislature abolished.  The mere possibility of a
capricious and unlikely windfall is not the sort of procedural protection
that could reasonably be judged substantial from the perspective of the
defendant at the time the offense was committed.
    Accordingly, I concur in the Court's judgment, but not in its opinion.

 
 
 
 
 


------------------------------------------------------------------------------
1
    Art. I, MDRV 10 of the Constitution provides in part:
    "No State shall enter into any Treaty, Alliance, or Confederation;
grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit;
make any Thing but gold and silver Coin a Tender in Payment of Debts; pass
any Bill of Attainder, ex post facto Law, or Law impairing the Obligation
of Contracts, or grant any Title of Nobility."

2
    At the time of respondent's offense, it apparently was well established
under Texas law that, as a general proposition, when a criminal jury
rendered a verdict not authorized by law the verdict was void at its
inception.  See, e. g., Ex parte McIver, 586 S. W. 2d 851, 854 (Tex. Crim.
App. 1979); Ocker v. State, 477 S. W. 2d 288, 290 (Tex. Crim. App. 1972).
However, until the Court of Criminal Appeals decided Bogany, there was some
doubt both as to whether that general rule would apply to the error in this
case, and as to whether the sentence imposed by the jury in this case was
in fact unlawful.  See, e. g., Adams v. State, 642 S. W. 2d 211, 213-14
(Tex. App. 1982) (reforming jury's sentence); Bogany v. State, 646 S. W. 2d
663, 664-665 (Tex. App.) (stating that jury's sentence could be reformed),
rev'd, 661 S. W. 2d 957 (1983); Bogany v. State, 661 S. W. 2d 957, 960
(Tex. Crim. App. 1983) (McCormick, J., dissenting) (contending that
supplementary fine was authorized by law).  For purposes of this opinion, I
assume that both the substantive limitation upon respondent's sentence and
the procedural limitation on the remedial powers of reviewing courts were
law at the time that respondent's offense was committed.

3
    The Missouri Supreme Court relied upon the reasoning of the St. Louis
Court of Appeals.  See State v. Kring, 74 Mo. 612, 631 (1881).  The
relevant passage from the Court of Appeals opinion was quoted (and then
disavowed) by this Court in Kring v. Missouri, 107 U.S. 221, 223-224
(1883):

" `Formerly it was held in Missouri (State v. Ross, 29 Mo. 32) that, when a
conviction is had of murder in the second degree on an indictment charging
murder in the first degree, if this be set aside, the defendant cannot
again be tried for murder in the first degree.  A change introduced by
sect. 23 of art. 2 of the Constitution of 1875 has abrogated this rule.  On
the oral argument something was said by counsel for the defendant to the
effect that under the old rule defendant could not be put on his trial for
murder in the first degree, and that he could not be affected by the change
of the constitutional provision, the crime having been committed whilst the
old constitution was in force.  There is, however, nothing in this; this
change is a change not in crimes, but in criminal procedure, and such
changes are not ex post facto.  Gut v. State, 9 Wall. 35; Cummings v.
Missouri, 4 id. 326.' "

4
    In Mallett v. North Carolina, 181 U. S. 589 (1901) the unrelated
intervening error was an incorrect decision by the intermediate appellate
court; in this case, it was the imposition of a supplementary fine in
addition to the life sentence.  In Mallett, the restriction upon the review
process prohibited the State from taking an appeal; in this case, it
prohibits the courts from saving the conviction and sentence by removing
the improper supplement.

5
    Indeed, this case is a fortiori by comparison to Mallett.  In that
case, the defendant would benefit from an evidentiary exclusion at the
secondary trial, although that exclusion would be entirely the consequence
of the appellate court's incorrect interpretation of State law, and not a
consequence of the trial procedures established by North Carolina law in
effect at the time of the offense.  By contrast, in this case the
procedures at the second trial would be in all relevant respects
identical.
