# Collins v. Youngblood/Concurrence Stevens

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Stevens
Justice STEVENS, with whom Justice BRENNAN and Justice MARSHALL join, concurring in the judgment.
The "Ex Post Facto " Clause of the Constitution 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 procedure 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.
* 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. 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 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.
In Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (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. 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., 107 U.S., at 224, 2 S.Ct., at 445.
"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, 2 S.Ct., at 449.
Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (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 [26 F.Cas. 84,] 2 Wash.C.C. 366; Kring v. Missouri, 107 U.S. 221, 228 [2 S.Ct. 443, 449, 27 L.Ed. 506]; Medley, Petitioner, 134 U.S.
160, 171 [10 S.Ct. 384, 387, 33 L.Ed. 835.] 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." Id., at 350-351, 18 S.Ct., at 622-623.
In Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (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." 269 U.S., at 170, 46 S.Ct., at 68-69.
"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 [2 S.Ct., 444]; Thompson v. Utah, 170 U.S. 343 [18 S.Ct., 620.] 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 [35 S.Ct. 507, 508,] and not to limit the legislative control of remedies and modes of procedure which do not affect matters of substance." Id., 269 U.S., at 171, 46 S.Ct., at 68-69.
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, 18 S.Ct., at 623. 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 procedural 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, 21 S.Ct. 730, 45 L.Ed. 1015 (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, postconviction-remedies. 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.
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 postconviction 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.

## Notes

* ↑ Art. I, § 10, of the Constitution provides in part:
* ↑ 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, 213-214 (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 (Tex.Crim.App.1983); id., at 960 (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.
* ↑ 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, 2 S.Ct. 443, 445-446, 27 L.Ed. 506 (1883):
* ↑ In Mallett v. North Carolina, 181 U.S. 589, 21 S.Ct. 730, 45 L.Ed. 1015 (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.
* ↑ 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.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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