Request By:
Mr. Burnett Napier, Chairman
Parole Board
Bureau of Corrections
State Office Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Rodney V. Tapp, Assistant Attorney General
In your recent letter to the Office of the Attorney General, you have requested an opinion of this Office concerning the application of administrative regulations of the Kentucky Parole Board. Subsection 2 of 501 KAR 1:010 makes felons confined after April 9, 1975, who are serving sentences in the penitentiaries eligible for parole consideration after a period of confinement as specified in an accompanying schedule. For example, a person serving a sentence over nine (9) years, up to and including fifteen (15) years, must serve two (2) years before he is eligible for parole consideration. Regulations in effect prior to April 9, 1975, required a person serving a sentence in the aforesaid range to serve a minimum of one year before parole consideration.
You have asked two questions concerning the application of the present regulations:
(1) Does the ex post facto provision of the United States Constitution as interpreted by Calder v. Bull, 3 U.S. 386, 1 L. Ed. 648 (1798), and more recently by the Kentucky Supreme Court in Blondell v. Commonwealth, Ky., 556 S.W.2d 682 (1977) apply to the Administrative Regulations of the Kentucky Parole Board as set out in 501 KAR 1:010 et seq.
(2) If the answer to the question number one is affirmative, then is the Parole Board required to hear a person under the old regulations whose crime was committed prior to their adoption but whose sentence was not imposed until subsequent to the adoption of the regulations.
It is our opinion that the regulations in question must be given prospective application only by the Kentucky Parole Board. Retroactive application of the regulations would constitute an ex post facto law prohibited by Article I, Section 10, Clause 1 of the United States Constitution. Love v. Fitzharris, 460 F.2d 382 (9th Cir. 1972); Greenfield v. Scafati, 277 F.Supp. 644, 646 (D.C. Mass. 1967), affirmed 390 U.S. 713, 20 L. Ed. 2d 250, 88 S. Ct. 1409; State ex rel Mueller v. Powers, 64 Wis. 2d 643, 221 N.W.2d 692, 694 (1974); Ex Parte Alegria, 464 S.W.2d 868, 873 (Tex. Cr. App. 1971); Goldsworthy v. Hamilton, 86 Nev. 252, 468 P.2d 350, 352 (1970).
The above cited cases represent the modern trend as well as the majority trend of the courts which have considered the question of whether statutory increases in the period of time a person must serve before consideration of parole constitute ex post facto laws. The Court in Ex Parte Alegria, supra, explained why the increases in confinement time prior to eligibility for parole consideration are a type of ex post facto law:
Any law is an ex post facto law which inflicts a greater punishment than the law annexed to the crime when committed, or which alters the situation of the accused to his disadvantage. See Calder v. Bull, 3 Dall. 386, 1 L. Ed. 648; In re Medley 134 U.S. 160, 10 S. Ct. 384, 33 L. Ed. 835; Lindsey v. Washington, 301 U.S. 397, 57 S. Ct. 797, 81 L. Ed. 1182. 464 S.W.2d at 872. (Emphasis added)
The Court then described the situation as one where "the legislative enactment does not increase the sentence but, in some other manner, alters the punishment to the detriment or disadvantage of the individual after the crime has been committed, or as the case at bar, after sentence has been imposed and service thereunder has commenced." Ex Parte Alegria, 464 S.W.2d 868, 872 (Tex. Cr. App. 1971). Finally, the Court determined that the application of the new legislative enactment by the Texas Board of Paroles to the conviction obtained long before its enactment thereby "automatically extending the time for parole eligibility consideration alters the situation of the prisoner to his disadvantage and is therefore ex post facto and unconstitutional." Ex Parte Alegria, supra, at 874.
It should be pointed out that the holdings of Courts in other jurisdictions dealt with statutory enactments, while your questions concern changes in administrative regulations. Since administrative regulations properly adopted and filed have the full effect of law in this Commonwealth, we feel the distinction is not of any significance and the analysis is the same. See eg. Kentucky Association of Chiropractors, Inc., v. Jefferson County Medical Society, Ky., 549 S.W.2d 817, 821 (1977). Also, in the Love case, the United States District Court saw no reason not to extend the ex post facto principle to any change in law, whether wrought by legislative amendment, judicial construction, or administrative reinterpretation, which is applied retroactively so as to deprive a criminal defendant of fair notice of the punishment to which he will be subject upon conviction.
The Supreme Court of Kentucky in the case of Blondell v. Commonwealth, Ky., 556 S.W.2d 682, 684 (1977) considered a situation involving the same principles as does the instant question. In Blondell, supra, it was determined that KRS 533.060 (1) which denies eligibility for probation or conditional discharge to certain felons operated as an ex post facto law as it applied to a person who committed an offense prior to the effective date of the challenged statutory provision. The Court reached its conclusion notwithstanding the fact that the defendant had been sentenced after the effective date of the provision. The Court observed that it "may be 'legislative grace' for the General Assembly to provide for shock probation but when it expressly removes all hope of shock probation upon conviction and sentence for certain offenses this is in the nature of an additional penalty." Blondell, supra, at 684. Likewise, in Preston v. Piggman, 496 F.2d 270 (6th Cir. 1974), the Court concluded that parole is no longer a state of administrative grace that may be summarily and arbitrarily ended at the whim of a parole board. Therefore, it would not be unreasonable to conclude that "if the legislature undertakes to enact laws granting parole . . . those rights granted as acts of clemency or grace must be administered in accordance with concepts of due process and may not arbitrarily increase the punishment previously imposed in unequal and illogical manner done here." Goldsworthy, supra, 468 P.2d at 353.
Your second question concerns how the determination as to whom the present regulations should apply is to be made. First, it has been our position that the effect of the change in the regulations is to lengthen the period of incarceration for some persons, thereby altering the punishment to their detriment. For that reason, for purposes of Calder v. Bull, 3 U.S. 386, 1 L.Ed 648 (1798), eligibility for parole is annexed to the crime at the time is was committed. So, it is the date on which the offense of a prospective parolee was committed that should be used by the parole board when determining the date the person is eligible for parole consideration.
In conclusion, it is our opinion that any change in the administrative regulations of the Kentucky Parole Board which has the effect of increasing the period of incarceration for a person prior to initial parole consideration would operate as an ex post facto law as applied to those persons whose offenses were committed prior to the effective date of the change in regulation.