dissenting:
Because I believe retroactive application of Washington’s new parole scheme, violates the Ex Post Facto Clause, I respectfully dissent.
*717As the majority correctly notes, the critical question in this case is whether the new parole scheme “ameliorates or worsens conditions imposed by its predecessor.” Weaver v. Graham, 450 U.S. 24, 33, 101 S.Ct. 960, 966, 67 L.Ed.2d 17 (1981). In my opinion, the new scheme unquestionably worsens prisoners’ conditions.
In Weaver, the Supreme Court held viola-tive of the Ex Post Facto Clause Florida’s retroactive application of a statute reducing the “time off for good behavior” prisoners could earn. Despite the fact that there, was no way to know that a given prisoner would have earned time off under the old law, the Court found the new law disadvantageous. The disadvantage, it said, lay in a prisoner’s “reduced opportunity to shorten his time in prison simply through good conduct.” 450 U.S. at 33-34, 101 S.Ct. at 967 (emphasis added). See also Lindsey v. Washington, 301 U.S. 397, 401-02, 57 S.Ct. 797, 799, 81 L.Ed. 1182 (1937) (invalidating on ex post facto grounds retroactive application of a law requiring felons to be sentenced at — rather than at or below — statutory máximums: “It is plainly to the substantial disadvantage of petitioners to be deprived of all opportunity to receive” a sentence below the statutory maximum) (emphasis added).
Similarly here. Powell has lost the opportunity to have a hearing after 20 years. It is little consolation that Powell need only wait another 10 years in prison, for a total of 30 years’ imprisonment, to be guaranteed a parole hearing. What Powell has lost is the possibility of receiving a hearing 10 years sooner.
To be sure, Powell was not guaranteed a hearing in 20 years even under the old system, because a hearing was only available if the prison superintendent certified that Powell had behaved well and deserved one. • But Powell (and other prisoners) had a chance under the old system. Those who behaved in an exemplary fashion for 20 years could hope that the superintendent would deem them entitled to a hearing. True, the superintendent’s decision was wholly discretionary; but we must assume that for at least some exemplary prisoners, that discretion was favorably exercised.
The majority tries to get around this evident disadvantage by citing Washington Revised Code section 9.95.(352, which it reads as permitting the parole board to override its original minimum term determination. See Majority Op. at 714-16. But this provision by no means rectifies the disadvantages of the new law.
Un&er the new law, once the board sets a prisoner’s minimum term of imprisonment, its decision is ordinarily not revisited. That is the point of the law — to allow the board to determine at the outset how many years will go by before it will consider a prisoner’s parole eligibility. The reexamination contemplated in section 9.95.052 is thus an exception to the rule. It only comes into play if the board decides, apparently sua sponte, that it wants to reconsider a prisoner’s hearing date. And even then the date remains unchanged unless, based on such criteria as the board “deems appropriate,” it decides a change is warranted. Wash.Rev.Code Ann. § 9.95.052. Thus, while the possibility of a reexamination exists under the new law, the law is designed to operate otherwise,
I cannot agree that this new scheme, designed to postpone for 30 years any review of Powell’s parole eligibility, does not represent a disadvantage over the former law, which would have granted Powell a parole review in 20 years if his behavior satisfied the superintendent. 'If a state’s adoption of a “safety hatch” provision such as section 9.95.052— creating the possibility, however remote, that the harsher effects of a new law could be eliminated in certain cases — were enough to shield the law from ex post facto difficulties, then any law could be made immune from ex post facto review and invalidation. I do not believe the guarantees of the Ex Post Facto Clause are so easily circumvented. “Subtle ex post facto violations are no more permissible than overt ones.” Collins v. Youngblood, 497 U.S. 37, 46, 110 S.Ct. 2715, 2721, 111 L.Ed.2d 30 (1990).
I would affirm the district court’s grant of Powell’s habeas petition.