Cite as: 519 U. S. 433 (1997)
Opinion of Thomas, J.
97.5% of lawful capacity, rather than 98%. Fla. Stat. § 944.277 (1988). See Griffin v. Singletary, 638 So. 2d 500 (Fla. 1994).
The changes in the series of statutes authorizing the award of overcrowding gain-time do not affect petitioner's core ex post facto claim. Petitioner could have accumulated gain-time under the emergency gain-time provision in much the same manner as he did under the provisional credits statute. We recognize, however, that although the differences in the statutes did not affect petitioner's central entitlement to gain-time, they may have affected the precise amount of gain-time he received. Between 1988 and 1992, the provisional credits were authorized when the prison reached 97.5% capacity rather than 98% capacity as under the emergency gain-time statute. If the prison population did not exceed 98% of capacity between 1988 and 1992, and if petitioner received provisional credits during those years, there is force to the argument that the cancellation of that portion of the 1,860-day total did not violate the Ex Post Facto Clause. Because this point was not adequately developed earlier in the proceeding, and because it may not in any event affect petitioner's entitlement to release, we leave it open for further consideration on remand.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Thomas, with whom Justice Scalia joins, concurring in part and concurring in the judgment.
I understand the Court's opinion to hold that retroactively canceling petitioner's so-called "provisional credits" after he has used them to gain his freedom violates the Ex Post Facto Clause. This result naturally follows from our consistent view that the Clause is intended to prohibit laws that "retroactively alter the definition of crimes or increase the punish-
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