No. 26006 - State of West Virginia ex rel. Terry Haynes v. West Virginia Parole Board

Starcher, C. J., dissenting:

        Although I somewhat reluctantly authored the previous majority opinion in Carper, I dissent to the decision in this case. I do so because I do not think that the majority opinion in Carper went far enough in protecting the ex post facto rights of the petitioner in that case.

        I have no problem with the propriety of the Carper decision's requiring certain standards and procedures of the parole board in granting parole set-offs of more than 1 year. I also have no problem with this Court establishing such standards and procedures so as to hold a statute constitutional. And, if the Legislature finds the standards to be objectionable and wants to establish other procedures and standards that meet constitutional muster, the Legislature can do so.

        Carper, as far as it went, was fine. But Carper represents as far as three other members of this Court would go at the time it was being decided, and I joined them in going that far, and I wrote the opinion. That's jurisprudence.

        But, to me, neither Carper nor this case goes far enough in taking a stand against any erosion of the vital and fundamental ex post facto clause of our constitution, and I feel the need to so state today.