In this case certiorari was granted, 300 U.S. 652, 57 S.Ct. 752, 81 L.Ed. --, to review a decision of the Supreme Court of Washington, 187 Wash. 364, 61 P.(2d) 293, that chapter 114, page 308, of the Laws of Washington, 1935, under which petitioners were sentenced to terms of imprisonment, is not an ex post facto law prohibited by article 1, § 10, of the Federal Constitution.
Petitioners were convicted in the state court of the crime of grand larceny, made a felony by state law, section 2601(2), Remington Rev.Stat., and sentenced to be punished by confinement in the state penitentiary and reformatory respectively for terms of not more than fifteen years. On April 15, 1935, the date of the commission of the offense, the prescribed penalty for grand larceny was imprisonment 'for not more than fifteen years.' No minimum term was prescribed. Remington Rev.Stat., § 2605. On that date, the statutes also provided, Remington Rev.Stat. § 2281, for indeterminate sentences for any felony 'for which no fixed period of confinement is imposed by law.' All such sentences were required to be 'for a term not less than the minimum nor greater than the maximum term of imprisonment prescribed by law for the offense * * * and where no minimum term of imprisonment is prescribed by law, the court shall fix the same in his discretion at not less than six months nor more than five years.' Section 2282, as modified by section 10803, provided for a parole board which could 'at any time after the expiration of the minimum term of imprisonment * * * direct that any prisoner * * * shall be released on parole.'
The Act of June 12, 1935 (Laws 1935, p. 308), enacted after petitioners' commission of the offense and before his sentence, modifies the sections relating to indeterminate sentences and paroles and provides, so far as now relevant, section 2, paragraph 1, that upon conviction of a felony 'the court * * * shall fix the maximum term of such person's sentence only. The maximum term to be fixed by the court shall be the maximum provided by law for the crime of which such person was convicted, if the law provides for a maximum term.' It also provides, section 2, paragraph 4, that within six months after the admission of a convicted person to the place of confinement the board of prison, terms and paroles '* * * shall fix the duration of his or her confinement. The term of imprisonment so fixed shall not exceed the maximum provided by law for the offense for which he or she was convicted or the maximum fixed by the court, where the law does not provide for a maximum term.'
By section 2, paragraph 6, if the person undergoing sentence commits any infraction of the rules and regulations of the place of confinement, the board '* * * may revoke any order theretofore made determining the length of time such convicted person shall be imprisoned and make a new order determining the length of time he or she shall serve, not exceeding the maximum penalty provided by law for the crime for which he or she was convicted.' It is provided, section 4, that a convicted person may be released on parole by the board after he has served the period of confinement fixed by the board, less time credits for good behavior and diligence which may not exceed 'one-third of his sentence as fixed by the board,' and that the board shall have power '* * * to return such person to the confines of the institution from which he or she was paroled, at its discretion.' The Governor is authorized to cancel and revoke paroles granted by the board, and the period following cancellation or revocation of parole, and prior to the convicted person's return to custody, is not a 'part of his term.'
The sentences of not more than fifteen years imposed on petitioners were the maximum provided by law, and were made mandatory by the act of 1935. In obedience to its command the court fixed no minimum. It does not appear from the record whether the board of prison, terms and paroles has fixed the 'duration' of petitioners' 'confinement.' Numerous grounds are urged by petitioners in support of their contention that the sentence authorized by the later statute is ex post facto as applied to their offense, committed before its enactment. We find it necessary to consider only one.