(dissenting).
[¶40] I dissent. This court is bound by the Eighth Circuit Court of Appeals decision in Williams v. Lee, 33 F.3d 1010 (8th Cir.1994), cert. denied, 514 U.S. 1032, 115 S.Ct. 1393, 131 L.Ed.2d 244 (1995) (Williams II). See our July 11, 1995 “Order Directing Issuance of Judgment of Reversal” in High Elk v. Class, # 18870, which provides in relevant part:
[High Elk’s appeal] is meritorious on the following grounds: 1. that the issues on appeal are clearly controlled by settled South Dakota law or federal law binding upon the states, Williams v. Lee, 33 F.3d 1010 (8th Cir.1994), cert. denied, 514 U.S. 1032, 115 S.Ct. 1393, 131 L.Ed.2d 244 (1995).
(Emphasis added; a copy of the order is attached to this dissent).
[¶ 41] Even though this order is not binding precedent in unrelated litigation under SDCL 15-26A-87.1(E), is it not binding on us? By acknowledging that this court is bound by the Eighth Circuit opinion, we impliedly abandoned and rejected our prior decision in In re Williams, 488 N.W.2d 667 (S.D.1992) (Williams I), and the majority opinion’s reliance on that case is misplaced. Even if our order were not binding on us, what has changed since July 11, 1995 that would lead us to a different conclusion? Absolutely nothing. We should reverse.
[¶ 42] This situation does not differ significantly from Williams II or High Elk. In Williams II, the Eighth Circuit stated:
Because the law Williams challenges increases his punishment, it is being applied to his detriment. It also is being applied retroactively, because the law extends the term Williams must serve on his South Dakota rape conviction, and does not constitute a punishment for his South Carolina fraudulent check offense (South Carolina already has punished Williams for that offense).
33 F.3d at 1013 (footnote omitted). Likewise, in this case:
Because the law Lewis challenges increases his punishment, it is being applied to his detriment. It also is being applied retroactively, because the law extends the term Lewis must serve on his South Dakota assault and burglary conviction, and does not constitute a punishment for his Colorado offense, for which Colorado has already punished Lewis.
[¶ 43] Even if we were to conclude that we were not bound by Williams II and High Elk, it is an absolute tenet of constitutional law that the states are bound5 by the United States Supreme Court’s interpretation of the *68United States Constitution. See Cooper v. Aaron, 358 U.S. 1, 18, 78 S.Ct. 1401, 1409-10, 3 L.Ed.2d 5, 16-17 (1958). The provisions of the Constitution, including the ex post facto clause, can only have one meaning. This court is bound to respect and enforce the United States Supreme Court’s decisions regarding that constitutional provision. Id.
[¶ 44] The relevant date is the date of the offense, not the parole release date or the date of later parole violations. By focusing on the wrong date, the majority opinion misapplies the test set out by the United States Supreme Court in Weaver v. Graham, 450 U.S. 24, 31, 101 S.Ct. 960, 965, 67 L.Ed.2d 17, 24 (1981):
This argument fails to acknowledge that it is the effect, not the form, of the law that determines whether it is ex post facto. The critical question is whether the law changes the legal consequences of acts completed before its effective date. In the context of this case, this question can be recast as asking whether [the statute] applies to prisoners convicted for acts committed before the provision’s effective date. Clearly, the answer is in the affirmative .... Thus, the provision attaches legal consequences to a crime committed before the law took effect.
See also Williams II, 33 F.3d at 1013:
“Critical to relief under the Ex Post Facto Clause is not an individual’s right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.” Thus, notice is relevant when the prisoner commits his criminal acts, not when he is paroled.
(Quoting Weaver, 450 U.S. at 30, 101 S.Ct. at 965, 67 L.Ed.2d at 24 (emphasis added; original emphasis omitted)). In reaching its decision in Williams II, the Eighth Circuit relied in part on Greenfield v. Scafati, 277 F.Supp. 644 (D.Mass.1967) (three-judge court), aff'd mem., 390 U.S. 713, 88 S.Ct. 1409, 20 L.Ed.2d 250 (1968), noting:
The [Greenfield ] court held the law to be ex post facto, reasoning that the law applied to the punishment that had been imposed on the prisoner as a result of his initial offense, and thus was retroactive, and that the law disadvantaged him because it operated to increase the time he ultimately would be required to spend in prison.
Williams II, 33 F.3d at 1012 (emphasis added).
[¶45] The majority opinion attempts to distinguish Williams II by emphasizing that the Eighth Circuit did not expressly reach the ex post facto question with regard to SDCL 24-15-21. This is not the issue. The issue is not which statute is being analyzed. The issue is the effect that any statute, enacted after the offense was committed, has on the inmate’s sentence. See, e.g., Lynce v. Mathis, 519 U.S.-,-, 117 S.Ct. 891, 896, 137 L.Ed.2d 63, 73 (1997) (noting that retroactive effect of statute is considered without regard to the purpose behind its enactment).
[¶ 46] The criminal charges for which Lewis was confined to the penitentiary relate back to the crimes for which he received his September 27, 1985 suspended imposition of sentence. When he violated his probation and was sent to prison, it was for his original offenses, not for the probation violation. The United States Supreme Court recently explained that the ex post facto clause maintains the status quo between the State and a criminal defendant from the time of the criminal offense. See Lynce, 519 U.S. at-, 117 S.Ct. at 895, 137 L.Ed.2d at 71:
The specific prohibition on ex post facto laws is only one aspect of the broader constitutional protection against arbitrary changes in the law. In both the civil and the criminal context, the Constitution places limits on the sovereign’s ability to use its law-making power to modify bargains it has made with its subjects. The basic principle is one that protects not only the rich and the powerful, but also the indigent defendant engaged in negotiations that may lead to an acknowledgment of guilt and a suitable punishment..
(Citation omitted). The terms of the bargain between the State and a defendant are written in those statutes in effect at the time of the offense. Id. at n. 12, 117 S.Ct. at *69895 n. 12, 137 L.Ed.2d at 71 n. 12 (“The Ex Post Facto Clause flatly prohibits retroactive application of penal legislation.”); Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) (unanimous decision concluding that a revision in sentencing guidelines enacted between date of offense and date of conviction violated the ex post facto clause); see also Brim v. South Dakota Bd. of Pardons & Paroles, 1997 SD 48, ¶31, 563 N.W.2d 812, 819 (Sabers, J., dissenting; Amundson, J., joining) (stating that the statutory provisions relating to parole are “incorporated into the sentence by virtue of law, and become a part of it as much as if the provisions were actually written into it.” quoting People v. Joyce, 246 Ill. 124, 92 N.E. 607, 613 (1910)). Therefore, the majority’s statement in ¶ 27 that Lewis had “fair warning” is incorrect and clearly contrary to existing United States Supreme Court precedent.6
[¶ 47] SDCL 24-15-21 was not amended until after Lewis committed his crime. Therefore, the State had no authority to toll Lewis’ sentence. In Lynce, Florida argued that the grant of “overcrowding gain time”7 was not part of the original sentence. In rejecting that argument, the Court stated:
[T]his argument is foreclosed by our precedents. As we recognized in Weaver, retroactive alteration of parole or early release provisions, like the retroactive application of provisions that govern initial sentencing, implicates the Ex Post Facto Clause because ... [the] effective sentence is altered once this determinant [of petitioner’s prison term] is changed.
519 U.S. at -, 117 S.Ct. at 898, 137 L.Ed.2d at 75 (quoting Weaver, supra).
[¶ 48] Under the second part of the ex post facto analysis, the question is whether Lewis is disadvantaged by the retroactive application of a statute. Delano v. Petteys, 520 N.W.2d 606, 608 (S.D.1994) (citations omitted). Clearly, this can be answered in the affirmative; it is “punishment beyond what was prescribed when the crime was committed” to imprison Lewis for sixteen months more than prescribed by his original sentence. Weaver, 450 U.S. at 30, 101 S.Ct. at 965, 67 L.Ed.2d at 24.
[¶49] It is within the Board of Pardons and Parole’s discretion to release an inmate on parole. Once an inmate is paroled, he remains “an inmate under the legal custody of the Department of Corrections until the expiration of his term of imprisonment.” SDCL 24-15-1.1. In fact, a parolee “shall at all times be considered confined[.]” SDCL 24-15-13. In other words, the clock is still running, and the inmate/parolee is still serving his sentence. The Legislature realized there was a problem and amended SDCL 24-15-21 to prevent a parolee from violating parole and evading re-incarceration while his sentence ran out. While this was a valid concern and SDCL 24-15-21 an effective, necessary law, it can not be applied to inmates whose crimes were committed before July 1, 1986 without violating the ex post facto clause.8 Lynce, 519 U.S. at-, *70117 S.Ct. at 898, 137 L.Ed.2d at 72; Miller, 482 U.S. at 480-32, 107 S.Ct. at 2451-52, 96 L.Ed.2d at 359-61; Weaver, 450 U.S. at 30, 101 S.Ct. at 965, 67 L.Ed.2d at 24; Greenfield, supra. As previously noted, the retroactive effect of the statute is analyzed without regard to the purpose behind its enactment.
[¶50] Despite the cursory treatment afforded Weaver by the majority opinion, and its failure to mention Greenfield or Lynce, these cases control our ex post facto analysis and no amount of citation to California and Colorado state law (supra ¶ 23) can overcome the dictates of the United States Supreme Court in this regard.
[¶ 51] In summary, SDCL 24-15-21, which was not enacted until 1986, can not be applied to Lewis without violating ex post facto constitutional provisions. “This court is to presume that the legislature’s ... amendment was passed to change existing law[.]” Petteys, 520 N.W.2d at 609. Because the 1986 amendment is “more onerous than the prior law,” it constitutes a violation of his rights under the ex post facto clause. Id. at 610 (citing Dobbert v. Florida, 432 U.S. 282, 294, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977)).
. "That the states are bound" by United States Supreme Court constitutional interpretations is best stated in Cooper v. Aaron, 358 U.S. 1, 18, 78 S.Ct. 1401, 1409-10, 3 L.Ed.2d 5, 16-17 (1958):
Article VI of the Constitution makes the Constitution the "supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60, that "It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court ... is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, "to support this Constitution.” [...]
No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: "If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution becomes a solemn mockery....” United States v. Peters, 5 Cranch 115, 136, 3 L.Ed. 53.
Obviously, this mandate applies with equal force to all state courts, including this court.
. The cases upon which the majority relies in ¶ 24 are distinguishable from this case. Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948) and McDonald v. Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542 (1901) both concerned whether habitual offender statutes violated the ex post facto clause. The Court held that they did not apply retroactively to convictions occurring before the statutes’ enactment. “The [enhanced] sentence ... is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.” Gryger, 334 U.S. at 732, 68 S.Ct. at 1258, 92 L.Ed. at 1687 (citations omitted).
. To alleviate serious prison overcrowding, Florida generously awarded early-release credits, known as “gain time” credits to most inmates. The statute authorizing gain time was enacted in 1983; Lynce was sentenced in 1986. At issue in Lynce was subsequent legislation expanding the list of offenders ineligible for the credits. Shortly thereafter, the Florida Attorney General issued an opinion interpreting the legislation as retroactively canceling all gain time credits awarded to inmates convicted of murder or attempted murder. The latter action resulted in the cancellation of credits and the re-arrest and re-incarceration of certain parolees, including Lynce. The Court held that this was a violation of the ex post facto clause and prevented Florida from rescinding Lynce’s gain time.
.This does not leave the State without a remedy in that it can prosecute a parolee for escape. See SDCL 22-11A-2:
Any prisoner who escapes is guilty of a Class 4 felony. If such prisoner is under sentence of imprisonment, his sentence on conviction for *70an escape shall commence following the expiration of the term of the last sentence of his imprisonment.
See also SDCL 22-11A-1:
The term "prisoner” when used in this chapter, includes every person who is in custody by being under arrest or by being under process of law issued from a court of competent jurisdiction, whether civil or criminal. A prisoner at the time of his escape need not be in a place designated for the keeping of prisoners.
The term “escape” when used in this chapter includes departure without lawful authority or failure to return to custody following a temporary leave granted for a specific purpose or limited period.
A Class 4 felony is punishable by ten years imprisonment, and a fine of up to $10,000.00. SDCL 22-6-1(6). As noted in SDCL 22-11A-2, the sentence must be served consecutively to the one in effect at the time of escape.
There is no statutory authority for the Board to "sentence” Lewis for his Colorado crimes. Therefore, the majority's statement that "the suspension of parole supervision time is imposed solely because of the new crimes which the petitioner was sentenced to in the State of Colorado” (supra V 26) is made with no basis in law. The revocation of parole, like the revocation of probation, does not constitute a criminal prosecution. State v. Murphy, 506 N.W.2d 130, 132 (S.D.1993) (citing State v. Burkman, 281 N.W.2d 442 (S.D.1979)). Unless the State charges him with a new crime, the only authority it may exercise over an inmate/parolee relates back to the original offense for which he is incarcerated.