Barton v. South Carolina Department of Probation Parole & Pardon Services

Justice KITTREDGE.

I concur in result. I join the majority’s construction of section 24-21-645 of the South Carolina Code, specifically as to the meaning of “two-thirds.” Appellant received the requisite two-thirds approval and should be paroled.

I disagree, however, that the statutory change from a majority to two-thirds constitutes an ex post facto violation. I view the statutory amendment as merely a procedural change. See, e.g., Alston v. Robinson, 791 F.Supp. 569 (D.Md.1992) (finding statutory revision requiring a larger percentage of members of the parole board to approve prisoner leave, work release and parole was a procedural change that did not substantially alter prisoners’ quantum of punishment, and therefore, its retroactive application did not violate the Ex Post Facto Clause); Arizona ex rel. Gonzalez v. Superior Court, 184 Ariz. 103, 907 P.2d 72, 74 (1995) (holding that the legislature’s alteration of the vote requirement for parole does not violate ex post facto constitutional principles, for although it “may diminish [a prisoner’s] ability to achieve parole,” the amended statute does not affect the quantum of punishment and “has not newly criminalized his acts, enhanced his punishment, or altered the legal rules of evidence”).