author: Justice Brennan

text:
    CATERPILLAR INC. et al. v. WILLIAMS et al.
    No. 86-526.
    Argued April 21, 1987
    Decided June 9, 1987

      Brennan, J., delivered the opinion for a unanimous Court.

      Gerald D. Skoning argued the cause for petitioners. With him on the briefs were Charles C. Jackson, J. Stephen Poor, Theodore R. Johnson, and Nancy L. Snowden.

      Fritz Wollett argued the cause and filed a brief for respondents.

      Briefs of amici curiae urging reversal were filed for the Chamber of Commerce of the United States by James C. Pams, Kingsley R. Browne, and Stephen A. Bokat; for the Equal Employment Advisory Council by
        Robert E. Williams, Douglas S. McDowell, and Garen E. Dodge; for the Merchants and Manufacturers Association et al. by Charles G. Bakaly, Jr.; and for the Union Pacific Railroad Co. by I. Michael Greenberger and Mark B. Goodwin.

      Briefs of amici curiae urging affirmance were filed for the American Federation of Labor and Congress of Industrial Organizations by Marsha Berzon, David M. Silberman, and Laurence Gold; for the Employment Law Center of the San Francisco Legal Aid Society by Joan M. Graff, Robert Barnes, and John M. True; and for the Plaintiff Employment Lawyers Association by Paul H. Tobias.

   Justice Brennan

delivered the opinion of the Court.

The question for decision is whether respondents’ state-law complaint for breach of individual employment contracts is completely pre-empted by §301 of the Labor Management Relations Act, 1947 (LMRA), 61 Stat. 156, 29 U. S. C. § 185, and therefore removable to Federal District Court.

h-i

At various times between 1956 and 1968, Caterpillar Tractor Company (Caterpillar) hired respondents to work at its San Leandro, California, facility. Complaint ¶¶ 10-26, App. to Pet. for Cert. (App.) A-40 — A-42. Initially, each respondent filled a position covered by the collective-bargaining agreement between Caterpillar and Local Lodge No. 284, International Association of Machinists (Union). Each eventually became either a managerial or a weekly salaried employee, positions outside the coverage of the collective-bargaining agreement. Respondents held the latter positions for periods ranging from 3 to 15 years; all but two respondents served 8 years or more. App. A-97 — A-98.

Respondents allege that, “[djuring the course of [their] employment, as management or weekly salaried employees,” Caterpillar made oral and written representations that “they could look forward to indefinite and lasting employment with the corporation and that they could count on the corporation to take care of them.” Complaint 1ffl27A, 27D, App. A-43. More specifically, respondents claim that, “while serving Caterpillar as managers or weekly salaried employees, [they] were assured that if the San Leandro facility of Caterpillar ever closed, Caterpillar would provide employment opportunities for [them] at other facilities of Caterpillar, its subsidiaries, divisions, or related companies.” Id. ¶27F, App. A-48. Respondents maintain that these “promises were continually and repeatedly made,” and that they created “a total employment agreement wholly independent of the collective-bargaining agreement pertaining to hourly employees.” Id. ¶29, App. A-49. In reliance on these promises, respondents assert, they “continued to remain in Caterpillar’s employ rather than seeking other employment.” Id. ¶ 31, App. A-49.

Between May 1980 and January 1984, Caterpillar downgraded respondents from managerial and weekly salaried positions to hourly positions covered by the collective-bargaining agreement. Respondents allege that, at the time they were downgraded to unionized positions, Caterpillar supervisors orally assured them that the downgrades were temporary. Id. ¶ 27F, App. A-48. On December 15, 1983, Caterpillar notified respondents that its San Leandro plant would close and that they would be laid off.

On December 17, 1984, respondents filed an action based solely on state law in California state court, contending that Caterpillar “breached [its] employment agreement by notifying [respondents] that the San Leandro plant would be closed and subsequently advising [respondents] that they would be terminated” without regard to the individual employment contracts. Id. ¶32, App. A-49. Caterpillar then removed the action to federal court, arguing that removal was proper because any individual employment contracts made with respondents “were, as a matter of federal substantive labor law, merged into and superseded by the . . . collective bargaining agreements.” Petition for Removal, App. A-36. Respondents denied that they alleged any federal claim and immediately sought remand of the action to the state court. In an oral opinion, the District Court held that removal to federal court was proper, and dismissed the case when respondents refused to amend their complaint to attempt to state a claim under § 301 of the LMRA. App. A-4.

The Court of Appeals for the Ninth Circuit reversed, holding that the case was improperly removed. 786 F. 2d 928 (1986). The court determined that respondents’ state-law claims were not grounded, either directly or indirectly, upon rights or liabilities created by the collective-bargaining agreement. Caterpillar’s claim that its collective-bargaining agreement with the Union superseded and extinguished all previous individual employment contracts alleged by respondents was deemed irrelevant. The court labeled this argument a “defensive allegation,” “raised to defeat the [respondents’] claims grounded in those independent contracts.” Id., at 936. Since respondents’ cause of action did not require interpretation or application of the collective-bargaining agreement, the court concluded that the complaint did not arise under § 301 and was not removable to federal court.

We granted certiorari, 479 U. S. 960 (1986), and now affirm.

II

A

The Court recently set forth in some detail “[t]he century-old jurisdictional framework governing removal of federal question cases from state into federal courts,” Metropolitan Life Insurance Co. v. Taylor, 481 U. S. 58, 63 (1987) (citing Franchise Tax Board of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1 (1983)), and we sketch only its outline here.

Only state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant. Absent diversity of citizenship, federal-question jurisdiction is required. The presence or absence of federal-question jurisdiction is governed by the “well-pleaded complaint rule,” which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff’s properly pleaded complaint. See Gully v. First National Bank, 299 U. S. 109, 112-113 (1936). The rule makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.

Ordinarily federal pre-emption is raised as a defense to the allegations in a plaintiff’s complaint. Before 1887, a federal defense such as pre-emption could provide a basis for removal, but, in that year, Congress amended the removal statute. We interpret that amendment to authorize removal only where original federal jurisdiction exists. See Act of Mar. 3, 1887, ch. 373, 24 Stat. 552, as amended by Act of Aug. 13, 1888, ch. 866, 25 Stat. 433. Thus, it is now settled law that a case may not be removed to federal court on the basis of a federal defense, including the defense of preemption, even if the defense is anticipated in the plaintiff’s complaint, and even if both parties concede that the federal defense is the only question truly at issue. See Franchise Tax Board, 463 U. S., at 12.

There does exist, however, an “independent corollary” to the well-pleaded complaint rule, id., at 22, known as the “complete pre-emption” doctrine. On occasion, the Court has concluded that the pre-emptive force of a statute is so “extraordinary” that it “converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.” Metropolitan Life Insurance Co., supra, at 65. Once an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered, from its inception, a federal claim, and therefore arises under federal law. See Franchise Tax Board, supra, at 24 (“[I]f a federal cause of action completely pre-empts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily ‘arises under’ federal law”).

The complete pre-emption corollary to the well-pleaded complaint rule is applied primarily in cases raising claims preempted by § 301 of the LMRA. Section 301 provides:

“Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect of the amount in controversy or without regard to the citizenship of the parties.” 29 U. S. C. § 185(a).

In Avco Corp. v. Machinists, the Court of Appeals decided that “[s]tate law does not exist as an independent source of private rights to enforce collective bargaining contracts.” 376 F. 2d 337, 340 (CA6 1967), aff’d, 390 U. S. 557 (1968). In affirming, we held that, when “[t]he heart of the [state-law] complaint [is] a . . . clause in the collective bargaining agreement,” id., at 558, that complaint arises under federal law:

“[T]he pre-emptive force of § 301 is so powerful as to displace entirely any state cause of action ‘for violation of contracts between an employer and a labor organization.’ Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of § 301.” Franchise Tax Board, supra, at 23.

B

Caterpillar asserts that respondents’ state-law contract claims are in reality completely pre-empted §301 claims, which therefore arise under federal law. We disagree. Section 301 governs claims founded directly on rights created by collective-bargaining agreements, and also claims “substantially dependent on analysis of a collective-bargaining agreement.” Electrical Workers v. Hechler, 481 U. S. 851, 859, n. 3 (1987); see also Allis-Chalmers Corp. v. Lueck, 471 U. S. 202, 220 (1985). Respondents allege that Caterpillar has entered into and breached individual employment contracts with them. Section 301 says nothing about the content or validity of individual employment contracts. It is true that respondents, bargaining unit members at the time of the plant closing, possessed substantial rights under the collective agreement, and could have brought suit under § 301. As masters of the complaint, however, they chose not to do so.

Moreover, contrary to Caterpillar’s assertion, see Reply Brief for Petitioner 10, respondents’ complaint is not substantially dependent upon interpretation of the collective-bargaining agreement. It does not rely upon the collective agreement indirectly, nor does it address the relationship between the individual contracts and the collective agreement. As the Court has stated, “it would be inconsistent with congressional intent under [§301] to pre-empt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract.” Allis-Chalmers Corp., supra, at 212.

Caterpillar next relies on this Court’s decision in J. I. Case Co. v. NLRB, 321 U. S. 332 (1944), arguing that when respondents returned to the collective-bargaining unit, their individual employment agreements were subsumed into, or eliminated by, the collective-bargaining agreement. Thus, Caterpillar contends, respondents’ claims under their individual contracts actually are claims under the collective agreement and pre-empted by § 301.

Caterpillar is mistaken. First, J. I. Case does not stand for the proposition that all individual employment contracts are subsumed into, or eliminated by, the collective-bargaining agreement. In fact, the Court there held:

“Individual contracts cannot subtract from collective ones, and whether under some circumstances they may add to them in matters covered by the collective bargain, we leave to be determined by appropriate forums under the law of contracts applicable, and to the Labor Board if they constitute unfair labor practices.” 321 U. S., at 339.

Thus, individual employment contracts are not inevitably superseded by any subsequent collective agreement covering an individual employee, and claims based upon them may arise under state law. Caterpillar’s basic error is its failure to recognize that a plaintiff covered by a collective-bargaining agreement is permitted to assert legal rights independent of that agreement, including state-law contract rights, so long as the contract relied upon is not a collective-bargaining agreement. See Allis-Chalmers Corp., supra. Caterpillar im-permissibly attempts to create the prerequisites to removal by ignoring the set of facts (i. e., the individual employment contracts) presented by respondents, along with their legal characterization of those facts, and arguing that there are different facts respondents might have alleged that would have constituted a federal claim. In sum, Caterpillar does not seek to point out that the contract relied upon by respondents is in fact a collective agreement; rather it attempts to justify removal on the basis of facts not alleged in the complaint. The “artful pleading” doctrine cannot be invoked in such circumstances.

Second, if an employer wishes to dispute the continued legality or viability of a pre-existing individual employment contract because an employee has taken a position covered by a collective agreement, it may raise this question in state court. The employer may argue that the individual employment contract has been pre-empted due to the principle of exclusive representation in § 9(a) of the National Labor Relations Act (NLRA), 29 U. S. C. § 159(a). See Machinists v. Wisconsin Employment Relations Comm’n, 427 U. S. 132, 146 (1976) (quoting Teamsters v. Morton, 377 U. S. 252, 260 (1964)) (NLRA pre-empts state law that “ ‘upset[s] the balance of power between labor and management expressed in our national labor policy’”). Or the employer may contend that enforcement of the individual employment contract arguably would constitute an unfair labor practice under the NLRA, and is therefore pre-empted. See San Diego Build ing Trades Council v. Garmon, 359 U. S. 236 (1959) (state law that infringes upon the National Labor Relations Board’s primary jurisdiction over unfair labor practice charges is preempted). The fact that a defendant might ultimately prove that a plaintiff’s claims are pre-empted under the NLRA does not establish that they are removable to federal court.

Finally, Caterpillar argues that § 301 pre-empts a state-law claim even when the employer raises only a defense that requires a court to interpret or apply a collective-bargaining agreement. Caterpillar asserts such a defense claiming that, in its collective-bargaining agreement, its unionized employees waived any pre-existing individual employment contract rights.

It is true that when a defense to a state claim is based on the terms of a collective-bargaining agreement, the state court will have to interpret that agreement to decide whether the state claim survives. But the presence of a federal question, even a § 301 question, in a defensive argument does not overcome the paramount policies embodied in the well-pleaded complaint rule — that the plaintiff is the master of the complaint, that a federal question must appear on the face of the complaint, and that the plaintiff may, by eschewing claims based on federal law, choose to have the cause heard in state court. When a plaintiff invokes a right created by a collective-bargaining agreement, the plaintiff has chosen to plead what we have held must be regarded as a federal claim, and removal is at the defendant’s option. But a defendant cannot, merely by injecting a federal question into an action that asserts what is plainly a state-law claim, transform the action into one arising under federal law, thereby selecting the forum in which the claim shall be litigated. If a defendant could do so, the plaintiff would be master of nothing. Congress has long since decided that federal defenses do not provide a basis for removal. See supra, at 392, and n. 5, 392-393.

III

Respondents’ claims do not arise under federal law and therefore may not be removed to federal court. The judgment of the Court of Appeals is

Affirmed.

       The complaint also avers that Caterpillar “made clear ... its intention to employ [respondents] indefinitely by promoting them from entry level hourly positions to mid-level technical or weekly positions and to management positions,” and by giving respondents “favorable performance evaluations,” “payment increases and bonuses,” and “training ... to provide additional job security.” Complaint ¶¶ 27A, 27B, 27C, App. A-43. Written representations with respect to job security were allegedly contained in employment memoranda, manuals, brochures, handbooks, and in Caterpillar’s “Code of Worldwide Business Conduct and Operating Principles.” Id. ¶27£, App. A-43-A-48.

       Under California law, an implied contract of employment may arise from a combination of factors, including longevity of service, commendations and promotions, oral and written assurances of stable and continuous employment, and an employer’s personnel practices. See Pugh v. See’s Candies, Inc., 116 Cal. App. 3d 311, 327-329 (1981); Cleary v. American Airlines, Inc., 111 Cal. App. 3d 443, 455-456 (1980).

       Respondents also brought state-law causes of action for breach of a covenant of good faith and fair dealing, intentional infliction of mental distress, and fraud. See Complaint ¶¶ 36-55, App. A-51 — A-55. Petitioners principally rely on the breach-of-contract claim to support removal to federal court.

       The Court of Appeals also appears to have held that a ease may not be removed to federal court on the ground that it is completely pre-empted unless the federal cause of action relied upon provides the plaintiff with a remedy. For example, the court stated:
      “[A] state law cause of action has been ‘completely pre-empted’ when federal law both displaces and supplements the state law — that is, when federal law provides both a superseding remedy replacing the state cause of action and preempts that state law cause of action. These are two distinct inquiries, both of which must be satisfied to permit removal of an action to federal court.” 786 F. 2d, at 932 (emphasis in original; citations omitted).
      This analysis is squarely contradicted by our decision in Avco Corp. v. Machinists, 390 U. S. 567 (1968). We there held that a § 301 claim was properly removed to federal court although, at the time, the relief sought by the plaintiff could be obtained only in state court. We reasoned as follows:
      “The nature of the relief available after jurisdiction attaches is, of course, different from the question whether there is jurisdiction to adjudicate the controversy. . . . [T]he breadth or narrowness of the relief which may be granted under federal law in § 301 cases is a distinct question from whether the court has jurisdiction over the parties and the subject matter.” Id., at 561.
      Thus, although we affirm the Court of Appeals’ judgment, we reject its reasoning insofar as it is inconsistent with Avco. See also Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1, 23 (1983) (“The Court of Appeals held, [in Arco,] and we affirmed,. . . that the petitioner’s action ‘arose under’ § 301, and thus could be removed to federal court, although the petitioner had undoubtedly pleaded an adequate claim for relief under the state law of contracts and had sought a remedy available only under state law”) (emphasis in original; citation omitted).

       Title 28 U. S. C. § 1441 provides:
      “(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.”

       Federal district courts have original jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U. S. C. § 1331.

       See The Fair v. Kohler Die & Specialty Co., 228 U. S. 22, 25 (1913) (“Of course, the party who brings a suit is master to decide what law he will rely upon”) (Holmes, J.); see also Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U. S. 804, 809, n. 6 (1986) (“Jurisdiction may not be sustained on a theory that the plaintiff has not advanced”); Great North R. Co. v. Alexander, 246 U. S. 276, 282 (1918) (“[T]he plaintiff may by the allegations of his complaint determine the status with respect to removability of a case”).

       See, e. g., Metropolitan Life Insurance Co. v. Taylor (state contract and tort claims completely pre-empted by §§ 502(a)(1)(B) and 502(f) of the Employee Retirement Income Security Act of 1974, 88 Stat. 891, 892); Oneida Indian Nation v. County of Oneida, 414 U. S. 661, 675 (1974) (state-law complaint that alleges a present right to possession of Indian tribal lands necessarily “asserts a present right to possession under federal law,” and is thus completely pre-empted and arises under federal law); Avco, supra (discussed infra).

       Caterpillar contends for example, that, under California law governing implied contracts of employment, the state court will have to examine the collective-bargaining agreement as part of its evaluation of the “totality of the parties’ relationship.” Brief for Petitioners 35, n. 24. But respondents rely on contractual agreements made while they were in managerial or weekly salaried positions — agreements in which the collective-bargaining agreement played no part. The irrelevance of the collective-bargaining agreement to these individual employment contracts is illustrated by the District Court’s disposition of the claim of Mr. Chambers, who was not in the bargaining unit at the time he was laid off. His claim was deemed solely a matter of state law (and, by implication, not intertwined with the collective-bargaining agreement), and thus was remanded to state court. See App. A-22. Moreover, it is unclear whether an examination of the collective-bargaining agreement is truly required by California law. See Youngman v. Nevada Irrigation Dist., 70 Cal. 2d 240, 246-247, 449 P. 2d 462, 466 (1969) (“In pleading a cause of action on an agreement implied from conduct, only the facts from which the promise is implied must be alleged”); 2 J. Chadbourn, H. Grossman, & A. Van Alstyne, California Pleading § 1011, p. 159 (1961) (same).

       Section 301 does not, as Caterpillar suggests, require that all “employment-related matters involving unionized employees” be resolved through collective bargaining and thus be governed by a federal common law created by § 301. Brief for Petitioners 26. The Court has stated that “not every dispute concerning employment, or tangentially involving a provision of a collective-bargaining agreement, is pre-empted by § 301 or other provisions of the federal labor law.” Allis-Chalmers Corp. v. Lueck, 471 U. S. 202, 211 (1986). Claims bearing no relationship to a collective-bargaining agreement beyond the fact that they are asserted by an individual covered by such an agreement are simply not pre-empted by §301. See also Franchise Tax Board, 463 U. S., at 25, n. 28 (“[E]ven under § 301 we have never intimated that any action merely relating to a contract within the coverage of § 301 arises exclusively under that section. For instance, a state battery suit growing out of a violent strike would not arise under §301 simply because the strike may have been a violation of an employer-union contract”).

       Cf. Federated Department Stores, Inc. v. Moitie, 462 U. S. 394, 410, n. 6 (1981) (BRENNAN, J., dissenting) (Although “occasionally the removal court will seek to determine whether the real nature of the claim is federal, regardless of plaintiff’s characterization, . . . most of them correctly confine this practice to areas of the law pre-empted by federal substantive law”) (internal quotations omitted).

         Caterpillar also contends that enforcement of individual employment contracts negotiated with employees covered by the collective-bargaining agreement would violate §9(a) of the NLRA, 49 Stat. 463, 29 U. S. C. § 159(a), because, with exceptions not here relevant, it is an unfair labor practice “for the employer to disregard the bargaining representative by negotiating with individual employees, whether a majority or a minority, with respect to wages, hours, and working conditions.” Medo Photo Supply Corp. v. NLRB, 321 U. S. 678, 684 (1944). Even if these individual employment contracts were negotiated with respondents while the latter were covered by a collective agreement (which is disputed), this fact is irrelevant to the removal question. For reasons similar to those stated in text, see supra, at 394-397, and this page, respondents’ state-law claims might be pre-empted by the NLRA, but they would not be transformed into claims arising under federal law.

       We intimate no view on the merits of this or any of the pre-emption arguments discussed above. These are questions that must be addressed in the first instance by the state court in which respondents filed their claims.

       See, e. g., Cook v. Georgetown Steel Corp., 770 F. 2d 1272 (CA4 1985); Medlin v. Boeing Vertol Co., 620 F. 2d 957 (CA3 1980).

       Caterpillar contends that the Court of Appeals’ decision offends the paramount national labor policy of referring disputes to arbitration, since its collective-bargaining agreement with the Union contains an arbitration cause. Brief for Petitioners 36. This argument presumes that respondents’ claims are arbitrable, when, in fact, they are alleged to grow out of individual employment contracts to which the grievance-arbitration procedures in the collective-bargaining agreement have no application.


source: Caselaw Access Project

author: Justice O’Connor Justice Stevens,

license: Public Domain

text:
    CALIFORNIA v. SUPERIOR COURT OF CALIFORNIA, SAN BERNARDINO COUNTY (SMOLIN et al., real parties in interest)
    No. 86-381.
    Argued April 22, 1987
    Decided June 9, 1987

      O’CONNOR, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, MARSHALL, Blackmun, Powell, and Scalia, JJ., joined. Stevens, J., filed a dissenting opinion, in which Brennan J., joined, post, p. 412.

      J. Robert Jibson, Supervising Deputy Attorney General of California, argued the cause for petitioner. With him on the brief were John K. Van de Kamp, Attorney General, and Steve White, Chief Assistant Attorney General.

      Dennis P. Riordan argued the cause for respondent. With him on the brief was Karen L. Snell

      A brief of amici curiae urging reversal was filed for the State of Alaska et al. by James E. Tierney, Attorney General of Maine, William R. Stokes, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Harold M. Broivn of Alaska, Corinne K. A. Watanabe of Hawaii, Jim Jones of Idaho, Linley E. Pearson of Indiana, Robert T. Stephan of Kansas, David L. Armstrong of Kentucky, William J. Guste, Jr., of Louisiana, Mike Greely of Montana, Brian McKay of Nevada, Stephen E. Merrill of New Hampshire, Michael Turpén of Oklahoma, LeRoy S. Zimmerman of Pennsylvania, Hector Rivera Cruz of Puerto Rico, Mark V. Meierhenry of South Dakota, J. Michael Cody of Tennessee, Jim Mattox of Texas, David L. Wilkinson of Utah, Leroy A. Mercer of The Virgin Islands, and Archie G. McClintock of Wyoming.

        Ephraim Margolin filed a brief for California Attorneys for Criminal Justice et al. as amici curiae urging affirmance.

   Justice O’Connor

delivered the opinion of the Court.

At issue in this case are the limits imposed by federal law upon state court habeas corpus proceedings challenging an extradition warrant.

I

Richard and Judith Smolin were divorced in California in 1978. Sole custody of their two children, Jennifer and Jamie, was awarded to Judith Smolin, subject to reasonable visitation rights for Richard. Until November 1979, all the parties remained in San Bernardino County, California, and Richard apparently paid his child support and exercised his visitation rights without serious incident. In August 1979, however, Judith married James Pope, and in November, Mr. Pope’s work required that the family relocate to Oregon. When the Popes moved without informing Richard, the battle over the custody of the minor children began in earnest.

It is unnecessary to recite in detail all that ensued. Richard alleged, and the California courts later found, that the Popes deliberately attempted to defeat Richard’s visitation rights and to preclude him from forming a meaningful relationship with his children in the course of their succeeding re-locations from Oregon to Texas to Louisiana. On February 13, 1981, the Popes obtained a decree from a Texas court granting full faith and credit to the original California order awarding sole custody to Judith. Richard was served but did not appear in the Texas proceeding. Before the Texas decree was issued, however, Richard sought and obtained in California Superior Court modification of the underlying California decree, awarding joint custody to Richard and Judith. Though properly served, the Popes did not appear in these California proceedings; and, though served with the modification order, the Popes neither complied with its terms, nor notified the Texas court of its existence. On January 9, 1981, Richard instituted an action in California Superior Court to find Judith in contempt and to again modify the custody decree to give him sole custody. In February 1981, sole custody was granted to Richard by the California court, subject to reasonable visitation rights for Judith.

This order also was ignored by the Popes, apparently acting on the advice of counsel that the California courts no longer had jurisdiction over the matter. Richard did not in fact obtain physical custody for over two years. When he finally located the Popes in Louisiana, they began an adoption proceeding, later described by the California courts as “verging on the fraudulent,” to sever Richard’s legal tie to Jennifer and Jamie. App. 51. After securing a California warrant to obtain custody of the children on February 27, 1984, Richard and his father, Gerard Smolin, resorted to self-help. On March 9, 1984, they picked up Jennifer and Jamie as they were waiting for their school bus in Slidell, Louisiana, and brought them back to California. On April 11, 1984, the Popes submitted to the jurisdiction of the California Superior Court and instituted an action to modify the 1981 order granting Richard sole custody. 41 Cal. 3d 758, 764, n. 4, 716 P. 2d 991, 994, n. 4 (1986). Those proceedings are apparently still pending before the California courts.

Meanwhile, the Popes raised the stakes by instituting a criminal action against Richard and Gerard Smolin in Louisiana. On April 30, 1984, after the Popes instituted modification proceedings in California, Judith Pope swore out an affidavit charging Richard and Gerard Smolin with kidnaping Jennifer and Jamie from her custody and asserting that they had acted “without authority to remove children from [her] custody.” App. B to Pet. for Cert. 6. On the basis of this affidavit, the Assistant District Attorney for the 22d Judicial District of Louisiana, William Alford, Jr., filed an information charging Richard and Gerard Smolin each with two counts of violating La. Rev. Stat. Ann. § 14:45 (West 1986), the Louisiana kidnaping statute. On June 14, 1984, the Governor of Louisiana formally notified the Governor of California that Richard and Gerard Smolin were charged with “simple kidnaping” in Louisiana and demanded that they be delivered up for trial. 41 Cal. 3d, at 763, 716 P. 2d, at 993-994.

In early August 1984, the Smolins petitioned in the California Superior Court for a writ of habeas corpus to block the anticipated extradition warrants. On August 17, 1984, the anticipated warrants issued and on August 24, 1984, the Superior Court orally granted a writ of habeas corpus after taking judicial notice of the various custody orders that had been issued. The court concluded “that the findings in the family law case adequately demonstrate that, in fact, the process initiated by Mrs. Pope in Louisiana and her declarations and affidavits were totally insufficient to establish any basis for rights of either herself personally or for the State ... of Louisiana.” App. C to Pet. for Cert. 5. California then sought a writ of mandate in the California Court of Appeal on the ground that the Superior Court had abused its discretion in blocking extradition. The Court of Appeal reluctantly issued the writ:

“Although we abhor Judy’s apparent willingness to take advantage of our federal system to further this custody battle, and are sympathetic to [the Smolins’] position, we must conclude that their arguments are irrelevant to the only issue a court in the asylum state may properly address: are the documents on their face in order.” App. B to Pet. for Cert. 16.

A divided California Supreme Court reversed. The majority interpreted the Superior Court’s finding to be that the Smolins were not substantially charged with a crime. It found that the California custody decrees were properly considered by the Superior Court, and that its conclusion that the Smolins were not substantially charged was correct. Under the full faith and credit provisions of the federal Parental Kidnaping Prevention Act of 1980, 28 U. S. C. § 1738A, the majority determined that those decrees conclusively established that Richard Smolin was the lawful custodian of the children at the time that they were taken from Louisiana to California. Finally, the court found that, under Louisiana law, the lawful custodian cannot be guilty of kidnaping children in his custody. State v. Elliott, 171 La. 306, 311, 131 So. 28, 30 (1930). We granted certiorari, 479 U. S. 982 (1986), to consider whether the Extradition Clause, Art. IV, §2, cl. 2, and the Extradition Act, 18 U. S. C. § 3182, prevent the California Supreme Court from refusing to permit extradition on these grounds.

HH I — I

The Federal Constitution places certain limits on the sovereign powers of the States, limits that are an essential part of the Framers’ conception of national identity and Union. One such limit is found in Art. IV, § 2, cl. 2, the Extradition Clause:

“A person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.”

The obvious objective of the Extradition Clause is that no State should become a safe haven for the fugitives from a sister State’s criminal justice system. As this Court noted in its first opportunity to construe the Extradition Clause:

“[T]he statesmen who framed the Constitution were fully sensible, that from the complex character of the Government, it must fail unless the States mutually supported each other and the General Government; and that nothing would be more likely to disturb its peace, and end in discord, than permitting an offender against the laws of a State, by passing over a mathematical line which divides it from another, to defy its process, and stand ready, under the protection of the State, to repeat the offence as soon as another opportunity offered.” Kentucky v. Dennison, 24 How. 66, 100 (1861).

The Extradition Clause, however, does not specifically establish a procedure by which interstate extradition is to take place, and, accordingly, has never been considered to be self-executing. See, e. g., Hyatt v. People ex rel. Corkran, 188 U. S. 691, 708-709 (1903); Kentucky v. Dennison, supra, at 104. Early in our history, the lack of an established procedure led to a bitter dispute between the States of Virginia and Pennsylvania. J. Scott, Law of Interstate Rendition 5-7 (1917). In 1791, Pennsylvania demanded the extradition of three men charged with kidnaping a free black man and selling him into slavery. Virginia refused to comply with Pennsylvania’s demand. The controversy was finally submitted to President Washington who, relying upon the advice of Attorney General Randolph, 9 National State Papers of the United States 1789-1817, pt. II, pp. 144-145 (E. Carzo ed. 1985), personally appeared before the Congress to obtain the enactment of a law to regulate the extradition process. Congress responded by enacting the Extradition Act of 1793, which provides in its current form:

“Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded .with having committed treason, felony or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear.” 18 U. S. C. §3182.

This Court has held the Extradition Act of 1793 to be a proper exercise of Congress’ powers under the Extradition Clause and Art. IV, § 1, to “prescribe the manner in which acts, records and proceedings shall be proved, and the effect thereof.” Kentucky v. Dennison, supra, at 105; Prigg v. Pennsylvania, 16 Pet. 539, 618-622 (1842). By the express terms of federal law, therefore, the asylum State is bound to deliver up to the demanding State’s agent a fugitive against whom a properly certified indictment or affidavit charging a crime is lodged.

The language, history, and subsequent construction of the Extradition Act make clear that Congress intended extradition to be a summary procedure. As we have repeatedly held, extradition proceedings are “to be kept within narrow bounds”; they are “emphatically” not the appropriate time or place for entertaining defenses or determining the guilt or innocence of the charged party. Biddinger v. Commissioner of Police, 245 U. S. 128, 135 (1917); see also, e. g., Michigan v. Doran, 439 U. S. 282, 288 (1978); Drew v. Thaw, 235 U. S. 432, 440 (1914); Pierce v. Creecy, 210 U. S. 387, 405 (1908); In re Strauss, 197 U. S. 324, 332-333 (1905). Those inquiries are left to the prosecutorial authorities and courts of the demanding State, whose duty it is to justly enforce the demanding State’s criminal law — subject, of course, to the limitations imposed by the Constitution and laws of the United States. Biddinger v. Commissioner of Police, supra, at 135; Drew v. Thaw, supra, at 440. The courts of asylum States may do no more than ascertain whether the requisites of the Extradition Act have been met. As the Court held in Michigan v. Doran, supra, the Act leaves only four issues open for consideration before the fugitive is delivered up:

“(a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether .the petitioner is a fugitive.” 439 U. S., at 289.

The parties argue at length about the propriety of the California courts taking judicial notice of their prior child custody decrees in this extradition proceeding. But even if taking judicial notice of the decrees is otherwise proper, the question remains whether the decrees noticed were relevant to one of these four inquiries. The Smolins do not dispute that the extradition documents are in order, that they are the persons named in the documents and that they meet the technical definition of a “fugitive.” Their sole contention is that, in light of the earlier California custody decrees and the federal Parental Kidnaping Prevention Act of 1980, 28 U. S. C. § 1738A, they have not been properly charged with a violation of Louisiana’s kidnaping statute, La. Rev. Stat. Ann. § 14:45 (West 1986).

Section 14:45A(4) prohibits the

“intentional taking, enticing or decoying away and removing from the state, by any parent, of his or her child, from the custody of any person to whom custody has been awarded by any court of competent jurisdiction of any state, without the consent of the legal custodian, with intent to defeat the jurisdiction of the said court over the custody of the child.”

A properly certified Louisiana information charges the Smo-lins with violating this statute by kidnaping Jennifer and Jamie Smolin. The information is based on the sworn affidavit of Judith Pope which asserts:

“‘On March 9,1984, at approximately 7:20 a. m., Richard Smolin and Gerard Smolin, kidnapped Jennifer Smolin, aged 10, and James C. Smolin, aged 9, from the affiant’s custody while said children were at a bus stop in St. Tammany Parish, Louisiana.
“The affiant has custody of the said children by virtue of a Texas court order dated February 5, 1981, a copy of said order attached hereto and made part hereof. The information regarding the actual kidnapping was told to the affiant by witnesses Mason Galatas and Cheryl Galatas of 2028 Mallard Street, Slidell, Louisiana, and Jimmie Huessler of 2015 Dridle Street, Slidell, Louisiana. Richard Smolin and Gerard Smolin were without authority to remove children from affiant’s custody.’” App. B to Pet. for Cert. 5-6.

The information is in proper form, and the Smolins do not dispute that the affidavit, and documents incorporated by reference therein, set forth facts that clearly satisfy each element of the crime of kidnaping as it is defined in La. Rev. Stat. Ann. § 14:45A(4) (West 1986). If we accept as true every fact alleged, the Smolins are properly charged with kidnaping under Louisiana law. In our view, this ends the inquiry into the issue whether or not a crime is charged for purposes of the Extradition Act.

The Smolins argue, however, that more than a formal charge is required, citing the following language from Roberts v. Reilly, 116 U. S. 80, 95 (1885):

“It must appear, therefore, to the governor of the State to whom such a demand is presented, before he can lawfully comply with it, first, that the person demanded is substantially charged with a crime against the laws of the State from whose justice he is alleged to have fled, by an indictment or an affidavit, certified as authentic by the governor of the State making the demand. . . .
“[This] is a question of law, and is always open upon the face of the papers to judicial inquiry, on an application for a discharge under a writ of habeas corpus.”

The Smolins claim that this language in Roberts spawned a widespread practice of permitting the fugitive, upon a petition for writ of habeas corpus in the asylum State’s courts, to show that the demanding State’s charging instrument is so insufficent that it cannot withstand some generalized version of a motion to dismiss or common-law demurrer. Tr. of Oral Arg. 29-36. The cases the Smolins principally rely upon as support for this asserted practice are People ex rel. Lewis v. Commissioner of Correction of City of New York, 100 Misc. 2d 48, 417 N. Y. S. 2d 377 (1979), aff’d, 75 App. Div. 2d 526, 426 N. Y. S. 2d 969 (1980), and Application of Varona, 38 Wash. 2d 833, 232 P. 2d 923 (1951). See Brief for Respondent 15-17. In Lewis, however, the New York trial court actually granted extradition despite its apparent misgivings about the substantiality of the criminal charge. Lewis, supra, at 56, 417 N. Y. S. 2d, at 382. And, in Varona, the Washington Supreme Court relied on the fact that the indictment, on its face, did not charge a crime under California law. Application of Varona, supra, at 833-834, 232 P. 2d, at 923-924. Neither case, in our view, supports the broad proposition that the asylum State’s courts may entertain motions to dismiss or demurrers to the indictment or information from the demanding State.

To the contrary, our cases make clear that no such inquiry is permitted. For example, in Pierce v. Creecy, decided after Roberts, supra, this Court refused to grant relief from extradition over multiple objections to the sufficiency of the indictment. The Pierce Court concluded that it was enough that “the indictment, whether good or bad, as a pleading, unmistakably describes every element of the crime of false swearing, as it is defined in the Texas Penal Code . . . .” 210 U. S., at 404. It reasoned:

“If more were required it would impose upon courts, in the trial of writs of habeas corpus, the duty of a critical examination of the laws of States with whose jurisprudence and criminal procedure they can have only a general acquaintance. Such a duty would be an intolerable burden, certain to lead to errors in decision, irritable to the just pride of the States and fruitful of miscarriages of justice. The duty ought not be assumed unless it is plainly required by the Constitution, and, in our opinion, there is nothing in the letter or the spirit of that instrument which requires or permits its performance.” Id., at 405.

Similarly, in Biddinger v. Commissioner of Police, 245 U. S. 128 (1917), the appellant argued that he had a seemingly valid statute of limitations defense based on the fact that more than three years, the limitations period, had elapsed since the date of the crime recited in the indictment and that he had been publicly and openly resident in the demanding State for that entire period. The Court found that the question of limitations was properly considered only in the demanding State’s courts. Id., at 135; see also Drew v. Thaw, 235 U. S., at 439-440 (whether the escape of a person committed to a mental institution is a crime “is a question as to the law of New York which the New York courts must decide”).

This proceeding is neither the time nor place for the Smolins’ arguments that Judith Pope’s affidavit is fraudulent and that the California custody decrees establish Richard as the lawful custodian under the full faith and credit provision of the federal Parental Kidnaping Prevention Act of 1980. There is nothing in the record to suggest that the Smolins are not entirely correct in all of this: that California had exclusive modification jurisdiction over the custody of Jennifer and Jamie; that, under the California decrees, Richard Smolin had lawful custody of the children when he brought them to California; and, that, accordingly, the Smolins did not violate La. Rev. Stat. Ann. § 14:45A(4) (West 1986) as is charged. Of course, the Parental Kidnaping Prevention Act of 1980 creates a uniform federal rule governing custody determinations, a rule to which the courts of Louisiana must adhere when they consider the Smolins’ case on the merits. We are not informed by the record why it is that the States of California and Louisiana are so eager to force the Smolins halfway across the continent to face criminal charges that, at least to a majority of the California Supreme Court, appear meritless. If the Smolins are correct, they are not only innocent of the charges made against them, but also victims of a possible abuse of the criminal process. But, under the Extradition Act, it is for the Louisiana courts to do justice in this case, not the California courts: “surrender is not to be interfered with by the summary process of habeas corpus upon speculations as to what ought to be the result of a trial in the place where the Constitution provides for its taking place.” Drew v. Thaw, supra, at 440. The judgment of the California Supreme Court is

Reversed.

Justice Stevens,

with whom Justice Brennan joins, dissenting.

There is no constitutional or statutory reason why the scope of an asylum State’s judicial inquiry need be so narrow that it precludes the grant of habeas corpus in this case. It has been settled for over a century that before the Governor of an asylum State can lawfully comply with a requesting State’s demand for extradition, it must appear that the person sought is “substantially charged with a crime” and is also a fugitive from justice. Roberts v. Reilly, 116 U. S. 80, 95 (1885). “The first of these prerequisites is a question of law, and is always open upon the face of the papers to judicial inquiry, on an application for a discharge under a writ of habeas corpus.” Ibid. Because there is no reasonable possibility that the charges of simple kidnaping filed against Richard and Gerard Smolin in Louisiana are valid, I agree with the California Supreme Court’s conclusion that they have not been substantially charged with a crime. In addition, the Parental Kidnaping Prevention Act of 1980, 28 U. S. C. § 1738A, makes clear that Richard had custody of his daughters and thus there is no reasonable possibility that his travel from Louisiana to California with them made him a fugitive from justice.

I

The scope of the legal inquiry preceding extradition is extremely restricted because the courts of the asylum State cannot be expected to make “a critical examination of the laws of States with whose jurisprudence and criminal procedure they can have only a general acquaintance.” Pierce v. Creecy, 210 U. S. 387, 405 (1908). Nevertheless, our precedents make clear that if a critical allegation of fact in the indictment is “impossible in law,” see Roberts, 116 U. S., at 96, the asylum State must refuse the extradition demand because the person has not been substantially charged with a crime. Munsey v. Clough, 196 U. S. 364, 373 (1905). In Drew v. Thaw, 235 U. S. 432 (1914), the habeas corpus petitioner was under a New York indictment for conspiracy to obstruct the due administration of laws; he was charged with plotting to effect his own escape from an insane asylum to which he had been committed. Justice Holmes’ opinion for the Court held that the indictment charged a crime because New York courts could decide that the conspiracy charged “did tend to obstruct the due administration of the law.” Id., at 439. Even though the habeas court could not inquire “upon the facts or the law of the matter to be tried,” Justice Holmes made it clear that there nevertheless must be a “reasonable possibility” that the crime charged “may be such.” Id., at 439-440.

In Pierce v. Creecy, the Court acknowledged that “an objection which, if well founded, would destroy the sufficiency of the indictment, as a criminal pleading, might conceivably go far enough to destroy also its sufficiency as a charge of crime.” 210 U. S., at 404. The Court concluded that the objections to the indictment in that case were not of that nature. Likewise, in In re Strauss, 197 U. S. 324 (1905), Ohio sought a fugitive who had been charged by affidavit before a justice of the peace for a felony which was subject to trial only upon an indictment. This Court found no constitutional barrier to extradition on those facts, but observed that the availability of extradition must be balanced against the duty of courts to avoid injustice:

“It may be true, as counsel urge, that persons are sometimes wrongfully extradited, particularly in cases like the present; that a creditor may wantonly swear to an affidavit charging a debtor with obtaining goods under false pretences. . . . While courts will always endeavor to see that no such attempted wrong is successful, on the other hand care must be taken that the process of extradition be not so burdened as to make it practically valueless.” Id., at 332-333.

The inquiry undertaken by the California courts in this case established the “impossibility in law” of convicting the Smolins and therefore the injustice of their extradition. The crime charged was two counts of simple kidnaping in violation of Louisiana law, which defines the crime, in relevant part, as:

“The intentional taking, enticing or decoying away and removing from the state, by any parent of his or her child, from the custody of any person to whom custody has been awarded by any court of competent jurisdiction of any state, without the consent of the legal custodian, with intent to defeat the jurisdiction of the said court over the custody of the child.” La. Rev. Stat. Ann. § 14:45A(4) (West 1986).

In my opinion the limited scope of the inquiry open to the California courts in this case did not preclude an examination of either federal law or California’s own judicial decrees. This summary examination was permissible because it had a direct bearing on whether the information “substantially charged” the Smolins with a crime or whether there was no reasonable possibility that the crime of simple kidnaping charged “may be such.” Drew v. Thaw, 235 U. S., at 440.

The Smolins’ conviction for this crime was an impossibility for three reasons. First, a California court, the court of competent jurisdiction under the federal Parental Kidnaping Prevention Act, had awarded sole custody of Jennifer and Jamie to Richard Smolin more than three years before he took them to California; he plainly could not be convicted of removing the children from his own custody. Second, regardless of whether Richard or Judith Smolin had custody of the children, he clearly believed that custody had been awarded to him by a California court which retained jurisdiction. His act of taking the children to California therefore could not have been accomplished with the intent to defeat the jurisdiction of that court. Third, because he did not believe that a Louisiana court had jurisdiction over the custody determination, he could not logically be convicted under the kidnaping statute for departing from Louisiana with the intent to defeat the jurisdiction of the courts of that State. There is, in short, no possibility — and certainly no “reasonable possibility” — that his conduct violated the Louisiana statute cited in the extradition papers. A sensible application of the requirement that a fugitive must be “substantially charged” with a crime, informed by the twin necessities of avoiding a trial-like inquiry into the law of sister States and preventing the injustice of extradition to face a legally impossible charge, leads me to conclude that the judgment of the California Supreme Court should be affirmed.

The Court’s heavy reliance on the dicta in Michigan v. Doran, 439 U. S. 282, 288 (1978), and Biddinger v. Commissioner of Police, 245 U. S. 128, 135 (1917), is misplaced. The issue in Doran was whether a court in the asylum State could review the demanding State’s judicial determination that there was probable cause for the fugitive’s arrest — an issue that is entirely unrelated to the substantiality of the criminal charge. The fact that the Court omitted the word “substantial” in its summary description of the proper inquiry in the asylum State surely was not intended to modify or eliminate a requirement that this Court had recognized for decades. See, e. g., McNichols v. Pease, 207 U. S. 100, 108-109 (1907) (accused must be “substantially charged with crime against the laws of the demanding State”); Ex parte Reggel, 114 U. S. 642, 651 (1885) (indictment accompanying the requisition was valid because it substantially charged the crime). In recognition of this longstanding requirement, the Uniform Criminal Extradition Act, which both Louisiana and California have adopted, specifies that the “indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state.” 11 U. L. A. 92 (1974); La. Code Crim. Proc. Ann., Art. 263 (West 1967); Cal. Penal Code Ann. § 1548.2 (West 1982).

The Biddinger case relied upon by the Court is also inappo-site because the validity of the fugitive’s statute of limitations defense in that case depended on the law of the demanding State; the fact that the limitations period had expired between the date of the offense and the charge did not foreclose the possibility that the statute had been tolled. 245 U. S., at 131-132, 135. The common thread in Doran and Biddinger, as in Drew v. Thaw, supra, is that an asylum state court’s inquiry may not reach the merits of issues that could be fully litigated in the charging State; such examinations entangle the asylum State’s judicial system in laws with which it is unfamiliar and endanger the summary nature of extradition proceedings. To obtain habeas relief, “[tjhere must be objections which reach deeper into the indictment than those which would be good against it in the court where it is pending.” Pierce v. Creecy, 210 U. S., at 401; cf. Pacileo v. Walker, 449 U. S. 86, 87-88 (1980) (per curiam) (California Supreme Court erred in granting habeas relief to fugitive by directing its Superior Court to determine whether prison conditions in demanding State violated Eighth Amendment). Neither of those dangers is posed by the respondent California Superior Court’s conclusion that the Smolins had legal custody and thus were not “substantially charged” with kidnaping.

II

Prima facie proof that the accused be “a fugitive from the justice of the demanding State” is a “condition precedent to the surrender of the accused.” Ex parte Reggel, 114 U. S., at 652-653. Deeming Richard Smolin a “fugitive from justice” would not serve the purpose of the Extradition Clause. The Framers’ provision for extradition was designed to prevent state boundaries from becoming impermeable walls within which “the fugitives from a sister State’s criminal justice system” may find “safe haven.” Ante, at 406 (quoting Kentucky v. Dennison, 24 How. 66, 100 (1861)); cf. Jones v. Helms, 452 U. S. 412, 419 (1981) (State’s right to obtain extradition of criminal necessarily qualifies that citizen’s right to interstate travel). The requirement that fugitivity be established nevertheless has some teeth to it; otherwise state boundaries would become mere markings in an atlas, and the demanding State could exercise criminal jurisdiction over a person anywhere in the Union regardless of the extent of that person’s culpable connection with the State. Thus, to be a fugitive from justice it is necessary “that having within a State committed that which by its laws constitutes a crime, when he is sought to be subjected to its criminal process to answer for his offence, he has left its jurisdiction and is found within the territory of another.” Roberts v. Reilly, 116 U. S., at 97 (emphasis added). “For all that is necessary to convert a criminal under the laws of a State into a fugitive from justice is that he should have left the State after having incurred guilt there.” Strassheim v. Daily, 221 U. S. 280, 285 (1911) (citing Roberts v. Reilly, supra). See also Appleyard v. Massachusetts, 203 U. S. 222, 227 (1906).

Despite this seemingly sweeping language, we have previously rejected the claim that a person could be considered a fugitive if he could establish that he was outside of the demanding State at the time of the alleged offense, even if “constructive presence” would be a sufficient basis for criminal liability. In Munsey v. Clough, we wrote:

“When it is conceded, or when it is so conclusively proved, that no question can be made that the person was not within the demanding State when the crime is said to have been committed, and his arrest is sought on the ground only of a constructive presence at that time, in the demanding State, then the court will discharge the defendant. Hyatt v. Corkran, 188 U. S. 691 [(1903)], affirming the judgment of the New York Court of Appeals, 172 N. Y. 176 [1902].” 196 U. S., at 374-375.

See also South Carolina v. Bailey, 289 U. S. 412, 421-422 (1933); McNichols v. Pease, 207 U. S., at 109-110 (1907); Ex parte Reggel, 114 U. S., at 651.

Similarly, I believe that we should today reject the notion that a parent who holds custody as determined by the Parental Kidnaping Prevention Act of 1980, 28 U. S. C. § 1738A, must be extradited as a charged kidnaper. Three reasons compel this conclusion. First, when the fleeing parent lacks child custody under federal law, it is proper to subject him or her to extradition in order to face criminal prosecution. But when the parent acts consistently with the federal law that governs interstate custody disputes, he should not be deemed to have fled from the judicial process of the demanding State. By allowing the custodial parent under federal law to be branded as a fugitive, the Court implicitly approves non-adherence to the uniform federal rule governing custody determinations.

Second, requiring the extradition of Richard Smolin is at cross-purposes with Congress’ intent to “discourage continuing interstate controversies over child custody” and to “deter interstate abductions and other unilateral removals of children undertaken to obtain custody and visitation awards.” See 28 U. S. C. § 1738A note. Compelling extradition to face a criminal charge which cannot lead to a conviction, no less than “child snatching,” is the coerced transportation of a party to a custodial dispute to another forum in order to serve a private interest. ■ It is anomalous that the Act, which was clearly intended to deter the former type of coercion, should not also be interpreted to discourage the latter.

Third, the Extradition Clause should be construed consistently with the Parental Kidnaping Prevention Act because both are expressions of the constitutional command of full faith and credit that governs relations among the several States. The Extradition Clause “articulated, in mandatory language, the concepts of comity and full faith and credit, found in the immediately preceding clause of Art. IV.” Michigan v. Doran, 439 U. S., at 287-288. The courts of every State best adhere to this principle, when considering an extradition request for alleged parental kidnaping, by giving full faith and credit to custody judgments rendered by other States as commanded by the Act. It is clear to a court performing this task that the Smolins are not fugitives within the meaning of the extradition request; as the custodial parent under the federal statute, Richard Smolin did not commit while in Louisiana “an act which by the law of the State constitutes a crime.” Hogan v. O’Neill, 255 U. S. 52, 56 (1921).

hH I — i I — I

The Court is scrupulously fair in its recital of the facts and frank in its acknowledgment that the criminal process may have been abused in this case. The reasoning the Court follows nevertheless adopts an overly restrictive view of the questions that the habeas courts of a rendering State must pose. The law governing interstate rendition for criminal proceedings does not foreclose a summary inquiry into whether the crime charged is legally impossible. Moreover, in an area in which Congress has seen fit to enact nationwide legislation, I cannot agree that respect for the criminal laws of other States requires the State of California indiscriminately to render as fugitives those citizens who are con-clusorily charged with simple kidnaping for their exercise of a right conferred upon them by a valid custody decree issued by a California court. The Court’s contrary conclusion will, I fear, produce unnecessary inconvenience and injustice in this case and provide estranged parents with an inappropriate weapon to use against each other as they wage custody disputes throughout this land.

I respectfully dissent.

      The California Supreme Court found that under the Parental Kidnap-ing Prevention Act, California had exclusive modification jurisdiction over the original custody decree. 41 Cal. 3d 758, 770, 716 P. 2d 991, 999 (1986). See 28 U. S. C. § 1738A(d) (“The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as [such court has jurisdiction under the law of such State] and such State remains the residence of the child or any contestant”); 28 U. S. C. § 1738A(f) (“A court of a State may modify a determination of the custody of the same child made by a court of another State, if— . . . (2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination”).

       See also Hyatt v. Corkran, 188 U. S. 691, 709-710 (1903); Munsey v. Clough, 196 U. S. 364, 372-373 (1905); Pierce v. Creecy, 210 U. S. 387, 401, 405 (1908).

       “When, as here, the identity of the person, the fact that he is a fugitive from justice, the demand in due form, the indictment by a grand jury for what it and the Governor of New York allege to he a crime in that State and the reasonable possibility that it may be such, all appear, the constitutionally required surrender is not to be interfered with by the summary process of habeas corpus upon speculations as to what ought to be the result of a trial in the place where the Constitution provides for its taking place.” Drew v. Thaw, 235 U. S. 432, 440 (1914) (emphasis supplied).

       See ante, at 405, n.

       The Louisiana Assistant District Attorney who filed the information against the Smolins was aware of the California custody orders at the time he filed the information. He believed, however, that a crime had been committed because “ ‘he viewed the California judgment as being void, having been obtained by fraudulent misrepresentations, and the valid order having been that issued by Texas on February 13, 1981.’ ” 41 Cal. 3d 768, 763, n. 1, 716 P. 2d 991, 993, n. 1 (1986). In my opinion that speculation on the part of the Assistant District Attorney is inadequate to overcome the fact that Richard Smolin, as the holder of a custody determination that was valid on its face, could not be substantially charged with a crime for his exercise of the parental rights conferred upon him by that custody determination.

       An asylum State’s review of a determination by a magistrate in the requesting State that probable cause exists to arrest the fugitive may cause “friction and delay,” but nothing indicates that “routine and basic inquiry” into the existence of a charge “has led to frustration of the extradition process.” Michigan v. Doran, 439 U. S. 282, 296-297, n. 7 (1978) (Blackmun, J., concurring in result).

       “Any other interpretation would lead to the conclusion that the mere requisition by the executive of the demanding State, accompanied by the copy of an indictment, or an affidavit before a magistrate, certified by him to be authentic, charging the accused with crime committed within her limits, imposes upon the executive of the State or Territory where the accused is found, the duty of surrendering him, although he may be satisfied, from incontestable proof, that the accused had, in fact, never been in the demanding State, and, therefore, could not be said to have fled from its justice.” Ex parte Reggel, 114 U. S. 642, 652 (1885).

       In the context of extradition — a form of recognition of sister-state indictments — no less than in the context of recognition of judgments or of laws, “[s]tate boundaries are neither irrelevancies nor licenses to disengage.” Brilmayer, Credit Due Judgments and Credit Due Laws: The Respective Roles of Due Process and Full Faith and Credit in the Interstate Context, 70 Iowa L. Rev. 95, 112 (1984).

       A uniform rule establishing which parent has custody deters “child snatching.” See Field, Sources of Law: The Scope of Federal Common Law, 99 Harv. L. Rev. 881, 959, n. 340 (1986). The Parental Kidnaping Prevention Act achieves a uniform rule in practice by establishing the circumstances under which a State may render or modify a child custody determination and requiring that other States give full faith and credit to judgments that conform to these standards. See 28 U. S. C. §§ 1738A(a), (c)-(g). If States were free not to give full faith and credit to the custody judgments of other States, a forum-shopping parent would have an incentive to remove the child to a State which was more likely to render a custodial decree in favor of that parent. See Brilmayer, supra, at 103.

       Of course, persons who remove a child from a State in violation of the Parental Kidnaping Prevention Act should be brought to justice. Indeed, Congress has explicitly pointed out that the Fugitive Felon Act, 18 U. S. C. § 1073, which makes it a federal crime for a person to move or travel “in interstate or foreign commerce with intent... to avoid prosecution . . . under the laws of the place from which he flees, for a crime . . . which is a felony under the laws of the place from which the fugitive flees” applies to parental kidnaping. 28 U. S. C. § 1738A note. The Act also makes available, in certain limited instances, the assistance of the Federal Bureau of Investigation in apprehending interstate abductors. See generally Donigan, Child Custody Jurisdiction: New Legislation Reflects Public Policy Against Parental Abduction, 19 Gonz. L. Rev. 1, 64-66 (1983-1984) (Department of Justice does not interpret Act to require routine federal involvement in parental abductions). Congress’ assertions of the federal interest in regulating parental abduction require habeas courts to exercise particular vigilance that a custodial parent not be extradited as a fugitive from justice.


author: Justice O’Connor

text:
    MILLER v. FLORIDA
    No. 86-5344.
    Argued April 21, 1987
    Decided June 9, 1987

      O’CONNOR, J., delivered the opinion for a unanimous Court.

      Anthony Calvello argued the cause for petitioner. With him on the briefs were Richard L. Jorandby and Craig S. Barnard.

      Joy B. Shearer, Assistant Attorney General of Florida, argued the cause for respondent. With her on the brief was Robert A. Butterworth, Attorney General.

        Gerald D. Stem and Alvin Bronstein filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal.

   Justice O’Connor

delivered the opinion of the Court.

At the time petitioner committed the crime for which he was convicted, Florida’s sentencing guidelines would have resulted in a presumptive sentence of 314 to 414 years’ imprisonment. At the time petitioner was sentenced, the revised guidelines called for a presumptive sentence of 514 to 7 years in prison. The trial court applied the guidelines in effect at the time of sentencing and imposed a 7-year sentence. The question presented is whether application of these amended guidelines in petitioner’s case is unconstitutional by virtue of the Ex Post Facto Clause.

t — I

In 1983, the Florida Legislature enacted legislation replacing Florida’s system of indeterminate sentencing with a sentencing guidelines scheme intended “to eliminate unwarranted variation in the sentencing process. ” Fla. Rule Crim. Proc. 3.701(b) (1983). See 1983 Fla. Laws, ch. 83-216. Under the sentencing statute, a guidelines commission was responsible for “the initial development of a statewide system of sentencing guidelines.” Fla. Stat. §921.001(1) (1983). Once the commission had made its recommendation, the Supreme Court of Florida was to develop a final system of guidelines. These guidelines were to become effective for crimes committed on or after October 1, 1983. Fla. Stat. §921.001(4)(a) (1983).

The sentencing statute authorized the guidelines commission to “meet annually or at the call of the chairman to review sentencing practices and recommend modifications to the guidelines.” Fla. Stat. §921.001(3) (1983). Before the convening of the legislature each year, the commission was to make its recommendations regarding the need for changes in the guidelines. The Supreme Court of Florida then could revise the sentencing guidelines to conform to all or part of the commission’s recommendations. The sentencing law provided, however, that such revisions would become effective “only upon the subsequent adoption by the Legislature of legislation implementing the guidelines as then revised.” Fla. Stat. §921.001(4)(b) (1983).

In accordance with this legislation, the Supreme Court of Florida developed sentencing guidelines that went into effect on October 1, 1983. See In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So. 2d 848 (1983). Under the scheme, offenses were grouped into nine “offense categories” (e. g., “robbery” and “sexual offenses”). A single sentencing “scoresheet” would be prepared based on the defendant’s “primary offense,” defined as the crime “with the highest statutory degree” at the time of conviction. Fla. Rule Crim. Proc. 3.701(d) (1983). In scoring a defendant’s guidelines sentence, points would be assigned based on the primary offense, additional offenses at the time of conviction, prior record, legal status at the time of the offense, and victim injury. The defendant’s total point score then would be compared to a chart for that offense category, which provided a presumptive sentence for that composite score.

The presumptive sentence range was “assumed to be appropriate for the composite score of the offender.” Fla. Rule Crim. Proc. 3.701(d)(8) (1983). Within the recommended range, the sentencing judge had discretion to fix the sentence “without the requirement of a written explanation.” Ibid. If the sentencing judge wished to depart from the guideline range, however, the judge had to give clear and convincing reasons in writing for doing so:

“Departures from the presumptive sentence should be avoided unless there are clear and convincing reasons to warrant aggravating or mitigating the sentence. Any sentence outside of the guidelines must be accompanied by a written statement delineating the reasons for the departure. Reasons for deviating from the guidelines shall not include factors relating to either instant offense or prior arrests for which convictions have not been obtained.” Fla. Rule Crim. Proc. 3.701(d)(ll) (1983).

The “clear and convincing” standard was construed as requiring reasons “of such weight as to produce in the mind of the judge a firm belief or conviction, without hesitancy, that departure is warranted.” State v. Mischler, 488 So. 2d 523, 525 (Fla. 1986). Only those sentences that fall outside the guidelines’ range are subject to appellate review. See Fla. Stat. §921.001(5) (1983).

Petitioner was convicted in August 1984 on counts of sexual battery with slight force, a second-degree felony, Fla.

Stat. §794.011(5) (Supp. 1984); burglary with an assault, a felony of the “first degree punishable by . . . life,” Fla. Stat. §810.02 (1983); and petit theft, a misdemeanor, Fla. Stat. §812.014(2)(c) (1983). On April 25, 1984, when these offenses were committed, the sentencing guidelines adopted October 1,1983, were still in effect. On May 8,1984, however, the Supreme Court of Florida proposed several revisions to the sentencing guidelines. See Florida Bar: Amendment to Rules of Criminal Procedure (§.701, S.988 — Sentencing Guidelines), 451 So. 2d 824 (1984). In June 1984 the Florida Legislature adopted the recommended changes, see 1984 Fla. Laws, ch. 84-328, and the legislation implementing the revised guidelines became effective July 1, 1984. When petitioner was sentenced on October 2, 1984, therefore, these revised sentencing guidelines were the guidelines then in effect.

Only two changes made in the revised guidelines are relevant here. First, the guidelines changed the definition of “primary offense” from the offense wdth “the highest statutory degree,” to the offense which results in “the most severe sentence range.” See 451 So. 2d, at 824, n. This changed petitioner’s primary offense from burglary wdth assault — the offense with the higher statutory degree — to sexual battery. Petitioner does not argue here that the new definition itself changed his presumptive sentence. See Tr. of Oral Arg. 6. As a result of the new definition, however, petitioner was affected by another change in the revised guidelines law: a 20% increase in the number of primary offense points assigned to sexual offenses. The Supreme Court of Florida, in its comments accompanying the revised guidelines, described the change: “The revision increases the primary offense points by 20% and wdll result in both increased rates and length of incarceration for sexual offenders.” 451 So. 2d, at 824, n. As a result of the point increase, petitioner’s total point score jumped to a presumptive sentence of to 7 years. See App. 12.

At petitioner’s sentencing hearing on October 2, 1984, the State contended that the revised guidelines should apply in determining petitioner’s sentence. Alternatively, the State argued that if the sentencing judge applied the earlier guidelines, he should depart from the guidelines’ range and impose a 7-year sentence. Id., at 8-9. The sentencing judge, rejecting petitioner’s ex post facto argument, ruled that the revised guidelines should apply. Concluding that he would “stay within the new guidelines,” the judge imposed a 7-year term of imprisonment for the sexual assault count. Id., at 10. Petitioner received a concurrent 7-year sentence on the burglary count, and time served on the misdemeanor charge. Id., at 6, 11.

On appeal, the Florida District Court of Appeal, relying on this Court’s decision in Weaver v. Graham, 450 U. S. 24 (1981), vacated petitioner’s sentence and remanded for re-sentencing in accordance with the sentencing guidelines in effect at the time the offense was committed. 468 So. 2d 1018 (1985). In remanding the case, the court noted that “the same sentence is possible if clear and convincing reasons for departure from the then applicable guidelines are stated in writing.” Ibid.

The Supreme Court of Florida reversed. 488 So. 2d 820 (1986). In a summary opinion, the court concluded that its decision in State v. Jackson, 478 So. 2d 1054 (1985), established that “the trial court may sentence a defendant pursuant to the guidelines in effect at the time of sentencing.” 488 So. 2d, at 820. In Jackson, the Supreme Court of Florida had emphasized that “the presumptive sentence established by the guidelines does not change the statutory limits of the sentence imposed for a particular offense.” 478 So. 2d, at 1056. On that basis, it had concluded that a modification in sentencing guidelines procedure was “merely a procedural change, not requiring the application of the ex post facto doctrine” under Dobbert v. Florida, 432 U. S. 282 (1977). 478 So. 2d, at 1056.

We granted certiorari, 479 U. S. 960 (1986), and now reverse.

II

Article I of the United States Constitution provides that neither Congress nor any State shall pass any “ex post facto Law.” See Art. I, §9, cl. 3; Art. I, §10, cl. 1. Our understanding of what is meant by ex post facto largely derives from the case of Calder v. Bull, 3 Dall. 386 (1798), in which this Court first considered the scope of the ex post facto prohibition. In Calder, Justice Chase, noting that the expression “ex post facto” “had been in use long before the revolution,” id., at 391, summarized his understanding of what fell “within the words and the intent of the prohibition”:

“1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender.” Id., at 390 (emphasis omitted).

Accord, Dobbert v. Florida, supra, at 292, quoting Beazell v. Ohio, 269 U. S. 167, 169-170 (1925).

Justice Chase explained that the reason the Ex Post Facto Clauses were included in the Constitution was to assure that federal and state legislatures were restrained from enacting arbitrary or vindictive legislation. See 3 Dall., at 389. Justices Paterson and Iredell, in their separate opinions in Calder, likewise emphasized that the Clauses were aimed at preventing legislative abuses. See id., at 396 (Paterson, J.); id., at 399-400 (Iredell, J.). See also Malloy v. South Carolina, 237 U. S. 180, 183 (1915); James v. United States, 366 U. S. 213, 247, n. 3 (1961) (separate opinion of Harlan, J.). In addition, the Justices’ opinions in Calder, as well as other early authorities, indicate that the Clauses were aimed at a second concern, namely, that legislative enactments “give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed.” Weaver v. Graham, supra, at 28-29. See Calder v. Bull, 3 Dall., at 388 (Chase, J.); id., at 396 (Paterson, J.); 1W. Blackstone, Commentaries *46. Thus, almost from the outset, we have recognized that central to the ex post facto prohibition is a concern for “the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.” Weaver, 450 U. S., at 30.

Our test for determining whether a criminal law is ex post facto derives from these principles. As was stated in Weaver, to fall within the ex post facto prohibition, two critical elements must be present: first, the law “must be retrospective, that is, it must apply to events occurring before its enactment”; and second, “it must disadvantage the offender affected by it.” Id., at 29. We have also held in Dobbert v. Florida, supra, that no ex post facto violation occurs if a change does not alter “substantial personal rights,” but merely changes “modes of procedure which do not affect matters of substance.” Id., at 293. See Beazell v. Ohio, supra, at 170-171. Respondent contends that the revised sentencing law is neither impermissibly retrospective, nor to petitioner’s disadvantage; respondent also contends that the revised sentencing law is merely a procedural change. We consider these claims in turn.

A law is retrospective if it “changes the legal consequences of acts completed before its effective date.” Weaver, supra, at 31. Application of the revised guidelines law in petitioner’s case clearly satisfies this standard. Respondent nevertheless contends that the ex post facto concern for retrospective laws is not violated here because Florida’s sentencing statute “on its face provides for continuous review and recommendation of changes to the guidelines. ” Brief for Respondent 27-28. Relying on our decision in Dobbert, respondent argues that it is sufficient that petitioner was given “fair warning” that he would be sentenced pursuant to the guidelines then in effect on his sentencing date. Brief for Respondent 28.

In our view, Dobbert provides scant support for such a pinched construction of the ex post facto prohibition. In Dobbert, the capital sentencing statute in effect at the time the murders took place later was held to be invalid. In rejecting the defendant’s argument that imposition of the death penalty therefore was a change in punishment from the punishment “in effect” when the crimes were committed, the Court concluded that ex post facto concerns were satisfied because the statute on the books at the time Dobbert committed the crimes warned him of the specific punishment Florida prescribed for first-degree murders. See 432 U. S., at 298. Here, by contrast, the statute in effect at the time petitioner acted did not warn him that Florida prescribed a 514- to 7-year presumptive sentence for that crime. Petitioner simply was warned of the obvious fact that the sentencing guidelines law — like any other law — was subject to revision. The constitutional prohibition against ex post facto laws cannot be avoided merely by adding to a law notice that it might be changed.

It is “axiomatic that for a law to be ex post facto it must be more onerous than the prior law.” Dobbert, supra, at 294. Looking only at the change in primary offense points, the revised guidelines law clearly disadvantages petitioner and similarly situated defendants. See 451 So. 2d, at 824, n. (the purpose and effect of the change in primary offense points was to “increas[e] [the] rates and length of incarceration for sexual offenders”). Considering the revised guidelines law as a whole does not change this result. Unlike Dobbert, where we found that the “totality of the procedural changes wrought by the new statute . . . did not work an onerous application of an ex post facto change,” 432 U. S., at 296-297, here respondent has not been able to identify any feature of the revised guidelines law that could be considered ameliorative.

Respondent maintains that the change in guidelines laws is not disadvantageous because petitioner “cannot show definitively that he would have gotten a lesser sentence.” Tr. of Oral Arg. 29. This argument, however, is foreclosed by our decision in Lindsey v. Washington, 301 U. S. 397 (1937). In Lindsey, the law in effect at the time the crime was committed provided for a maximum sentence of 15 years, and a minimum sentence of not less than six months. At the time Lindsey was sentenced, the law had been changed to provide for a mandatory 15-year sentence. Finding that retrospective application of this change was ex post facto, the Court determined that “we need not inquire whether this is technically an increase in the punishment annexed to the crime,” because “[i]t is plainly to the substantial disadvantage of petitioners to be deprived of all opportunity to receive a sentence which would give them freedom from custody and control prior to the expiration of the 15-year term.” Id., at 401-402. Thus, Lindsey establishes “that one is not barred from challenging a change in the penal code on ex post facto grounds simply because the sentence he received under the new law was not more onerous than that which he might have received under the old.” Dobbert, supra, at 300.

Petitioner plainly has been “substantially disadvantaged” by the change in sentencing laws. To impose a 7-year sentence under the old guidelines, the sentencing judge would have to depart from the presumptive sentence range of 314 to 414 years. As a result, the sentencing judge would have to provide clear and convincing reasons in writing for the departure, on facts proved beyond a reasonable doubt, and his determination would be reviewable on appeal. By contrast, because a 7-year sentence is within the presumptive range under the revised law, the trial judge did not have to provide any reasons, convincing or otherwise, for imposing the sentence, and his decision was unreviewable. Thus, even if the revised guidelines law did not “technically . . . increase . . . the punishment annexed to [petitioner’s] crime,” Lindsey, supra, at 401, it foreclosed his ability to challenge the imposition of a sentence longer than his presumptive sentence under the old law. Petitioner therefore was “substantially disadvantaged” by the retrospective application of the revised guidelines to his crime.

Finally, even if a law operates to the defendant’s detriment, the ex post facto prohibition does not restrict “legislative control of remedies and modes of procedure which do not affect matters of substance.” Dobbert, 432 U. S., at 293. Hence, no ex post facto violation occurs if the change in the law is merely procedural and does “not increase the punishment, nor change the ingredients of the offence or the ultimate facts necessary to establish guilt.” Hopt v. Utah, 110 U. S. 574, 590 (1884). See Dobbert, supra, at 293-294 (“The new statute simply altered the methods employed in determining whether the death penalty was to be imposed; there was no change in the quantum of punishment attached to the crime”). On the other hand, a change in the law that alters a substantial right can be ex post facto “even if the statute takes a seemingly procedural form.” Weaver, 450 U. S., at 29, n. 12.

Although tííe distinction between substance and procedure might sometimes prove elusive, here the change at issue appears to have little about it that could be deemed procedural. The 20% increase in points for sexual offenses in no wise alters the method to be followed in determining the appropriate sentence; it simply inserts a larger number into the same equation. The comments of the Florida Supreme Court acknowledge that the sole reason for the increase was to punish sex offenders more heavily: the amendment was intended to, and did, increase the “quantum of punishment” for category 2 crimes. See 451 So. 2d, at 824, n.

Respondent objects that it is misleading to view the change in the revised guidelines apart from the sentencing scheme as a whole. Relying largely on decisions by the Courts of Appeals sustaining the United States Parole Commission’s guidelines against ex post facto claims, respondent urges that the revised guidelines “merely guide and channel” the sentencing judge’s discretion. Brief for Respondent 35. See, e. g., Wallace v. Christensen, 802 F. 2d 1539 (CA9 1986) (en banc); Yamamoto v. United States Parole Comm’n, 794 F. 2d 1295 (CA8 1986); Dufresne v. Baer, 744 F. 2d 1543 (CA11 1984), cert. denied, 474 U. S. 817 (1985); Warren v. United States Parole Comm’n, 212 U. S. App. D. C. 137, 659 F. 2d 183 (1981), cert. denied, 455 U. S. 950 (1982). See also Portley v. Grossman, 444 U. S. 1311 (1980) (Rehnquist, J., in chambers). Invoking the reasoning of these cases, respondent contends that an increase in the guidelines sentence operates only as a “procedural guidepost” for the exercise of discretion within the same statutorily imposed sentencing limits.

We find the federal parole guidelines cases inapposite. The courts that have upheld the retrospective application of federal parole guidelines have articulated several reasons why the ex post facto prohibition does not apply. The majority of these courts have held that the federal parole guidelines are not “laws” for purposes of the Ex Post Facto Clause. See, e. g., Wallace v. Christensen, supra, at 1553-1554 (citing cases). Other courts have found that the guidelines merely rationalize the exercise of statutory discretion, and that retrospective application of the guidelines thus does not violate the Ex Post Facto Clause. See, e. g., Warren v. United States Parole Comm’n, supra, at 149, 659 F. 2d, at 195; Portley v. Grossman, supra, at 1312. Finally, some of the cases have held that retrospective application of the guidelines does not result in a more onerous punishment and thus does not constitute an ex post facto violation. See, e. g., Dufresne v. Baer, supra, at 1549-1550.

None of the reasons given in the federal parole cases even arguably applies here. First, the revised sentencing law is a law enacted by the Florida Legislature, and it has the force and effect of law. Cf. Williams v. State, 500 So. 2d 501, 503 (Fla. 1986) (departure sentence not supported by clear and convincing reasons was erroneous even though defendant consented, because “a defendant cannot . . . confer on the court the authority to impose an illegal sentence”). Nor do the revised guidelines simply provide flexible “guideposts” for use in the exercise of discretion: instead, they create a high hurdle that must be cleared before discretion can be exercised, so that a sentencing judge may impose a departure sentence only after first finding “clear and convincing reasons” that are “credible,” “proven beyond a reasonable doubt,” and “not... a factor which has already been weighed in arriving at a presumptive sentence.” See State v. Mischler, 488 So. 2d, at 525; Williams v. State, 492 So. 2d 1308, 1309 (Fla. 1986). Compare S. Rep. No. 98-225, p. 38 (1983) (describing the “unfettered discretion” of the Parole Commission under the system of parole guidelines). Finally, the revised guidelines directly and adversely affect the sentence petitioner receives. Thus, this is not a case where we can conclude, as we did in Dobbert, that “[t]he crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his guilt, all remained unaffected by the subsequent statute.” 432 U. S., at 294.

r — H I — I I — I

The law at issue in this case, like the law in Weaver, “makes more onerous the punishment for crimes committed before its enactment.” Weaver, supra, at 36. Accordingly, we find that Florida’s revised guidelines law, 1984 Fla. Laws, ch. 84-328, is void as applied to petitioner, whose crime occurred before the law’s effective date. We reverse the judgment of the Supreme Court of Florida, and remand the case for further proceedings not inconsistent with this opinion.

It is so ordered.