(dissenting) — The ex post facto clauses of the federal and state constitutions3 prohibit Congress and the states from enacting laws which make an act punishable which was not punishable when committed, or which impose additional punishment to that then prescribed. Weaver v. Graham, 450 U.S. 24, 28, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981). The majority holds Substitute House Bill 1457 (SHB 1457)4 is not an ex post facto law as applied to prisoners who were not certified as parolable as of the effective date of the law (petitioners Powell, Forsman and Halstien), but is an ex post facto violation as applied to those who were certified prior to that date (petitioner Thompson). Whether or not a prisoner has been certified is irrelevant. The law in effect at the time *207the petitioners committed their crimes should be applied to determine the time at which they become eligible for parole. Because SHB 1457 extends this amount of time, it violates the ex post facto clause. Therefore, I dissent.
The majority correctly sets forth the test for a violation of the ex post facto clause: whether the law (1) is substantive, rather than procedural; (2) is retrospective; and (3) disadvantages the person affected. Majority opinion, at 185. I agree with the majority that SHB 1457 is substantive and retrospective. The majority then sets forth a 2-pronged analysis to determine whether a law which affects parole is disadvantageous to prisoners: (1) whether the law alters the standard of punishment which existed under prior law; and (2) whether this change is disadvantageous to the prisoner. I agree with the majority that SHB 1457 alters the standard of punishment. The majority states the disadvantage "appears" to be the extension of time before which an inmate can be considered for parole. I agree with the petitioners' assertion that SHB 1457 does indeed extend this time and that this extension disadvantages the petitioners. The majority then addresses the second prong by constructing a balancing test between the disadvantages and the ameliorative effects of the law. Majority opinion, at 188-90.
The majority concludes the "ameliorative effects" of SHB 1457 outweigh the disadvantages and therefore the law is not ex post facto. Majority opinion, at 185. I disagree. The majority finds the ameliorative effect of SHB 1457 is that it makes the possibility of parole more determinate and that this gain in determinacy "more than makes up for what is lost in terms of the possibility of early release." Majority opinion, at 185. In so finding, the majority misses the point of petitioners' argument: it is not the probability of parole which is of concern to petitioners, but the increase in time before they may even be considered eligible for parole. The majority asserts the petitioners are not ensured of a right to less punishment (parole). However, the petitioners do not assert such a *208right. Rather, they assert their right is to be considered eligible for parole in accordance with the law as it existed at the time of their convictions. Petitioners assert SHB 1457 lengthens the time before they may be considered eligible for parole.
Under the law as it existed at the time of petitioners' convictions, a prisoner serving a mandatory life sentence was required to serve 20 years (less good time) before he or she would become eligible for parole. In addition, he or she would have to be "certified" as parolable by the superintendent of the penitentiary. Thus, the majority asserts, such prisoners never knew, "until the day they were actually considered for parole, whether and when they would be considered for parole." Majority opinion, at 186. This statement does not address the crucial issue. While they were not certain of parole, petitioners knew they would at least be considered for parole after serving 20 years.
Under SHB 1457, the petitioners must now serve 25 to 27 years before they may be considered eligible for parole. It is this change in time, whether they are released for parole or not, which is the disadvantage caused by SHB 1457. This amendment was enacted in order to apply the sentencing ranges under the Sentencing Reform Act of 1981 (SRA) to mandatory life prisoners. Thus it affects mandatory life prisoners in three ways: it requires the board to set a minimum term; it states this minimum term must be consistent with the SRA sentencing ranges; and it eliminates the requirement that a warden recommend the prisoner for parole. Comment, Applying Washington's Sentencing Reform Act to Mandatory Life Prisoners: An Ex Post Facto Violation, 66 Wash. L. Rev. 229, 234 (1991). Under the SRA, 20 years is the mandatory minimum term, being on the lowest possible end of the scale (see RCW 9.94A.120(4) and .310(1)). In making their mandatory minimum terms consistent with the SRA, SHB 1457 sets back petitioners' opportunity for early release by several years. Under the law as it existed *209at the time petitioners were convicted, they would become eligible for parole after 20 years (former RCW 9.95.115). Under SHB 1457, they will be required to serve more than 20 years before they become eligible.
Weaver v. Graham, 450 U.S. 24, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981) is directly applicable to this case. In Weaver, the United States Supreme Court held a retrospective amendment to a parole statute is disadvantageous to a prisoner where it reduces the prisoner's opportunity to receive a shorter sentence. 450 U.S. at 33-35. SHB 1457 extends the petitioners' eligibility for parole date from 20 years to 25 to 27 years, thereby reducing their opportunity to receive a shorter sentence. Under Weaver, this retrospective change in the law constitutes an ex post facto violation.
In Weaver, the Court held the ameliorative effect must compensate for the harm caused. 450 U.S. at 35. According to the majority, the "ameliorative effect" in this case is the fact prisoners are certain to be considered for parole after serving the minimum term imposed in accordance with the SRA. The elimination of the superintendent's certification somehow brings in an element of determinacy that prisoners will be considered for parole. I do not view this as an ameliorative effect. Under the prior law, a prisoner "may" be considered for parole after serving 20 years (less good time). Under SHB 1457, a prisoner "may" be considered for parole after serving a mandatory minimum term, which in petitioners' cases ranges from 25 to 27 years.
The majority holds SHB 1457, as applied to Thompson, violates the ex post facto clause because he was already certified as parolable. Whether a prisoner has been certified is irrelevant. The holding in Weaver does not apply only to those prisoners who know when they will be released (like Thompson), but applies as well to the calculation of when prisoners will first be considered eligible for parole (which, in the case of the other petitioners, would be after they have served 20 years). 450 U.S. at 34.
*210Amendments to parole statutes which clearly delay a prisoner's opportunity for parole are detrimental to a prisoner. Devine v. New Mexico Dep't of Corrections, 866 F.2d 339, 343 n.7 (10th Cir. 1989) (citing Weaver v. Graham, supra). Contrary to the majority's assertion (at page 194), Devine and the other cases cited by petitioners are relevant in that they hold amendments such as SHB 1457 are detrimental (disadvantageous) to prisoners, thereby raising an ex post facto violation.
In Marshall v. Garrison, 659 F.2d 440 (4th Cir. 1981), the Fourth Circuit compared new and old parole statutes to determine whether the retrospective application of certain parole criteria disadvantaged prisoners. Under the prior law, parole was based on rehabilitation. Under the new law, parole was based solely on severity of the offense. The court found the retrospective application of the new statute made parole more difficult to obtain because it required the Federal Parole Commission to consider additional criteria when making parole decisions. 659 F.2d at 445. In Marshall's case, this resulted in a lengthening of the period of time he must spend in prison. Therefore, the court held retrospective application of the statute violated the ex post facto clause. 659 F.2d at 444-45.
Similarly, in the present case, the statutory amendment changed the criteria the board must consider in determining a prisoner's eligibility for parole, resulting in a longer period of time which petitioners must spend in prison.
Conclusion
SHB 1457 is retrospective in nature and effects a substantive change in the law. It disadvantages petitioners because it changes the criteria by which the board sets minimum terms. There is no ameliorative effect which outweighs this disadvantage. Therefore, SHB 1457 violates the ex post facto clauses of the federal and state constitutions. I would grant the personal restraint petitions of all four petitioners.
*211Because I find SHB 1457 is ex post facto, I do not find it necessary to consider the equal protection and due process arguments.
Dore, C.J., and Smith and Johnson, JJ., concur with Utter, J.
U.S. Const. art. 1, § 9, cl. 3; U.S. Const. art. 1, § 10, cl. 1; Const. art. 1, § 23. Hereinafter, I will refer simply to the "ex post facto clause".
Substitute House Bill 1457, 51st Legislature (1989); Laws of 1989, ch. 259, codified as RCW 9.95.009, .013, .115, and .116.