Cite as: 514 U. S. 499 (1995)
Stevens, J., dissenting
would be granted at a hearing during the following years and states the bases for the finding." Ibid. The statute does not contain any provision authorizing any sort of review of a Board order dispensing with annual hearings. Nor does it provide any procedure for dealing with exceptional changed circumstances warranting the setting of a release date that might arise before the next scheduled hearing. In short, the amended statute vests unreviewable discretion in the Board to dispense with annual hearings for up to three years by making the required finding.
In my view, the requirement that the Board make this finding is insufficient to render the 1981 amendment constitutional. We have previously expressed doubts that an early release regime that substitutes administrative discretion for statutory requirements complies with the Ex Post Facto Clause. In Weaver v. Graham, we noted that the state statute at issue reduced the amount of gain time to which an inmate was "automatically entitled . . . simply for avoiding disciplinary infractions and performing his assigned tasks." 450 U. S., at 35. The State argued, however, that the statute as a whole caused inmates no increase in punishment because the statute provided inmates with new ways to earn gain time. We rejected the State's argument, noting that "the award of the extra gain time is purely discretionary, contingent on both the wishes of the correctional authorities and special behavior by the inmate." Ibid.
The reasoning behind our skepticism in Weaver is applicable to this case. As is true under almost any factfinding regime, the Board will occasionally make mistakes and will defer parole hearings for inmates who would have been found suitable at those hearings.8 Because the parole hear-8 There may be reasons to be particularly skeptical of the reliability of the Board's findings with respect to deferrals under the 1981 amendment. The Board's determination that the inmate is not currently suitable for parole and the determination that the inmate will not be suitable for parole in the next three years are expected to be separate determina-
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