Secretary, Department of Public Safety & Correctional Services v. Demby

GREENE, J. This matter has its origin in multiple decisions of the Inmate Grievance Office (“IGO”) dismissing the grievances of Quinton Demby, Jesse Baltimore, Kenneth E. Woodall, Daniel Falcone, and Earl F. Cox, Jr. All are, or were, 1 inmates serving sentences in the Division of Correction (“DOC”). In ⁵⁸⁵ his respective grievance, each inmate alleged that amendments to the Code of Maryland Regulations (“COMAR”) adopted by the Department of Public Safety and Correctional Services (“the Department”) were ex post facto laws, in violation of the United States Constitution and Article 17 of the Maryland Declaration of Rights. The regulations concerned “special project” diminution of confinement credits that were awarded to inmates lor being double celled. 2 The dismissed grievances were each appealed to the respective circuit courts in the counties in which the inmates were confined 3 and all of the dismissals were affirmed. Each respondent filed an application for leave to appeal the decisions to the Court of Special Appeals.

The intermediate appellate court, in a reported opinion, 4 granted each respective application and consolidated the matters, ultimately reversing the circuit courts and remanding with instructions to reverse the Secretary and order further proceedings. Demby, supra, v. Secretary, Dep’t of Pub. Safety and Corr. Servs., 163 Md.App. 47 , 877 A.2d 187 (2005).

We subsequently granted the petition for writ of certiorari filed by the Secretary of Public Safety and Correctional Services (“the Secretary”) and the cross-petition for writ of certiorari filed by respondents. 5 Secretary of Corr. v. Demby, 388 Md. 97 , 879 A.2d 42 (2005). The Secretary presented two issues for our review, which we have recast as: ⁵⁸⁶ 1. Are the amendments to former COMAR 12.02.06.05N(2) (now COMAR 12.02.06.04F(1)) “laws” and thus subject to the prohibition against ex post facto laws by the Federal and Maryland Constitutions? 2. If the amendments constitute laws within this context, do they violate the ex post facto prohibitions?

Respondents raise three issues. Two of the respondents’ issues are encompassed in our rephrased questions above; respondents’ additional question is: 1. Did the Secretary waive her principal argument here by not raising that argument in the circuit courts? 6 For -the reasons stated below, we conclude that the Secretary’s amendments are laws within the meaning of ex post facto clause and that those amendments violate the prohibition against ex post facto laws under the Federal and Maryland Constitutions. Facts In his application for leave to appeal, Mr. Demby admits that the Agency record is “meager” and proffers the following regarding his underlying charges and sentence: ⁵⁸⁷ Mr. Demby initiated his case by filing an administrative remedy procedure complaint (“ARP”) 7 that was received on May 15, 2002.

Mr. Demby’s complaint was reviewed by the warden and dismissed on June 10, 2002. An administrative appeal of this decision was received by the Commissioner of Correction (the “Commissioner”) on June 20, 2002, and was dismissed by Assistant Commissioner of Correction on July 17, 2002. Mr. Demby’s timely complaint was received by the IGO on August 13, 2002. The substance of Mr. Demby’s IGO complaint was that his eligibility to earn special housing credits for double celling was terminated by the amendments to COMAR 12.02.06.05N, and that this violated the ex post facto clause.

Mr. Demby’s complaint was dismissed by the IGO on October 4, 2003. 8 ⁵⁸⁶ [Mr. Demby] is serving a term of confinement as a result of a sentence imposed on April 8, 1999[,] by the Circuit Court for Harford County as follows: No. 99C0042 Count 1— assault [2nd] degree, 10 years from 2/21/99; No. 98C1286 Count 1 — distribution of a non-controlled substance, 2 years consecutive to No. 99C0042. The result is a term that expires on February 21, 2011. ⁵⁸⁷ Mr. Demby’s petition for judicial review was heard on May .16, 2003, in the Circuit Court for Somerset County. That ⁵⁸⁸ court affirmed the decision of the IGO, finding that the Secretary and Commissioner have the authority to abolish, revoke, or revise the eligibility standards for double-celling credits. The Circuit Court also found that the ex post facto clause did not apply to Mr. Demb/s case.

On June 12, 2003, Mr. Demby filed for leave to appeal from the decision of the Circuit Court for Somerset County. The procedural histories of respondents, Messrs. Baltimore, Woodall, Falcone, and Cox are similar to that of Mr. Demby. Previously, all respondents had been eligible for special project credits for double celling, but were precluded from such credits as a result of the January 1, 2002, amendment to COMAR 12.02.06.05 (“the amendments”).

Mr. Dem-by was serving a term of confinement for both qualifying and disqualifying sentences, and was informed on May 15, 2002, in response to his ARP, that, as a result of the amendment, he would no longer be eligible for special project credits because his sentence included a disqualifying offense. Mr. Woodall is serving a term of confinement for both qualifying and disqualifying sentences. Subsequently, in response to his ARP, the DOC informed Mr. Woodall that as of January 1, 2002, he was no longer eligible for special project credits for housing because his charge for kidnapping was included as a disqualifying offense per the amendment. Similarly, Mr. Falcone’s term of confinement consists of a sentence for robbery with a deadly weapon, a qualifying offense, and a consecutive sentence for carjacking, a disqualifying offense.

The carjacking sentence precluded Mr. Falcone from receiving special project credits for housing after the amendment. Mr. Cox was serving a sentence for assault, a qualifying offense, and for use of a handgun in the commission of a crime of violence, which always has been a disqualifying offense. On April 20, 2000, Mr. Cox’s handgun sentence ended, beginning his eligibility for double-celling credits. While the record is unclear as to the specific crimes respondents committed, we note that all respondents were serving terms of confinement that included at least one sentence that made them eligible to receive special ⁵⁸⁹ project housing credits for double celling prior to the amendment.

The respondents who remain incarcerated provided the following updated information on their current situations in their brief: Based on information provided to counsel by the DOC, the projected mandatory release date for Respondent Kenneth E. Woodall, currently incarcerated in Maryland Correctional Institution in Hagerstown, is May 13, 2010 (as of June 30, 2005). The projected release date for Respondent Daniel Falcone, currently incarcerated at the Maryland Correctional Training Center, also in Hagerstown, is October 11, 2008 (as of July 31, 2005). The dismissals of the respondents’ grievances were affirmed by the Circuit Courts for Somerset and Washington Counties. After granting respondents’ petitions for leave to appeal, the Court of Special Appeals held that the COMAR amendments were laws for ex post facto purposes, “by virtue of the legislative discretion granted to the Secretary and the Commissioner pursuant to Corr.

Serv. § 3-707.” Demby, supra, 163 Md.App. at 67-68 , 877 A.2d at 199 . Further, the intermediate appellate court held that the amendments violated the ex post facto prohibition because the “application of current COMAR § 12.02.06.04F ... alters [respondents’] punishments by increasing the lengths of their sentences.” Id. at 64, 877 A.2d at 197 . In its reversal of the opinions of the respective circuit courts and the decisions of the Secretary, the Court of Special Appeals noted: With this opinion, we do not suggest that once doublecelling credits are established they must remain unchanged and available to all inmates in perpetuity. Clearly, current COMAR § 12.02.06.04F may lawfully be applied to inmates who committed their offenses after it took effect.

Nor do we suggest that an inmate who is serving a sentence for an offense that is eligible for double-celling credits may not be removed to a single cell in accordance with DOC policies and regulations. ⁵⁹⁰ We hold only that an inmate serving a term of confinement for an offense committed prior to January 1, 2002(i) may not be denied double-celling credits, for periods of time during which he or she was or is serving only an eligible sentence, for the sole reason that another sentence in his or her term of confinement is ineligible, and (ii) may not be denied double-celling credits on sentences for offenses that were eligible under the former regulation but are ineligible under the current regulation. Id. at 68, 877 A.2d at 199-200 (footnote omitted). We granted both side’s petitions for writ of certiorari. The Special Project Credit Regulations The current provision that governs special project housing credits is COMAR 12.02.06.04: A. Diminution credit 9 may be awarded under Correctional Services Article, §§ 3-703 [thru] 3-707, Annotated Code of Maryland, in one or more of the following categories: (1) Good conduct; (2) Work tasks; (3) Education; or ⁵⁹¹ (4) Special projects. * * * * E. Special Projects Credit.

(1) The Commissioner, with the approval of the Secretary and based on the Division’s current policy and procedure, may establish a list of assignments that qualify for special projects credit that may, but need not, be limited to the following: (a) Prison industry assignments; (b) Education programs; (c) Work details; or (d) Work release employment. (2) Special projects credit awarded by a local detention center, between the date an inmate is sentenced to the custody of the Commissioner and the date the inmate is transferred to the Division, shall qualify as special projects credit. F. Special Projects Credit for Housing. (1) Except as provided in § F(3) of this regulation, an inmate may be awarded special projects credit for housing under Correctional Services Article, § 3-707, Annotated Code of Maryland, if the inmate is: (a) Assigned to a cell containing two beds and is not serving a period of disciplinary segregation; or (b) Housed in a dormitory or dormitory-type housing and the housing area where the inmate is confined does not provide 55 square feet of living space per inmate, exclusive of dayrooms, toilets, and showers.

(2) An inmate may be awarded a maximum of five special projects credits for housing for each calendar month, and on a prorated basis for any portion of a calendar month, beginning on a date and ending on a date the Secretary determines appropriate, based on the demand for inmate housing and services in the Division, subject to §§ F(3) and G of this regulation. ⁵⁹² (3) An inmate may not be awarded special projects credit under this section during the inmate’s term of confinement if the inmate is serving a term of confinement that includes a: (a) Sentence for: (i) Abduction; (ii) Arson in the first degree; (iii) Carjacking or armed carjacking; (iv) Kidnapping; (v) Manslaughter, except involuntary manslaughter; (vi) Mayhem and maiming, as previously proscribed under Article 27, §§ 384-386, Annotated Code of Maryland; (vii) Murder or attempted murder; (viii) Use of a handgun in the commission of a felony or other crime of violence; (ix) Child abuse, abuse or neglect of a vulnerable adult, or child sale, barter, or trade under Criminal Law Article, § 3-601, 3-602, or 3-603, Annotated Code of Maryland; (x) Assault on a Division inmate or employee under Criminal Law Article, § 3-205, Annotated Code of Maryland; (xi) A drug crime; or (xii) An offense which would cause the offender to be defined as a child sexual offender, offender, sexually violent offender, or sexually violent predator under Criminal Procedure Article, Title 11, Subtitle 7, Annotated Code of Maryland; (b) Mandatory sentence for the commission of a felony; or (c) Sentence as a repeat offender under Criminal Law Article, § 14-101, Annotated Code of Maryland. (4) This section may not be interpreted, understood, or construed to mean that an inmate who is eligible to receive the credits described in this section has a right to these credits or that an inmate will continue to receive these credits in the future. ⁵⁹³ G. An inmate may not be awarded more than 20 diminution credits for a calendar month. COMAR 12.02.06.04F is the most recent version of the regulation governing special project credits, and it was amended on January 1, 2002, as an emergency provision, 29:4 Md. R. 413, and the emergency status was extended at 29:15 Md. R. 1140. The version of the regulation that was in effect at the time the respondents in this case committed their crimes, 10 was COMAR 12.02.06.05N, which provided, in pertinent part: N. Special Project Credit for Double Celled Inmates.

(1) Inmates who meet the eligibility criteria in § N(2) are in a special project pursuant to Article 27, § 700(1), Annotated Code of Maryland, except inmates who are serving a: ⁵⁹⁴ (a) Sentence for murder, rape, sex offenses, child abuse, drug trafficking or distribution, or use of a firearm in the commission of a felony; (b) Mandatory sentence for the commission of a felony; or (c) Sentence as a repeat offender under Article 27, § 643B, Annotated Code of Maryland. (2) Inmates eligible for special project credits under this section are inmates who: (a) Have agreed to be voluntarily double-celled; (b) Are double-celled in an institution which is required by court order to be single-celled or by court order has a population cap and the population cap is exceeded; or (c) Are double-celled in an institution which is not under court order but where the number of double cells exceeds the single-cell design capacity of the institution; or (d) Are housed in a dormitory or dormitory-type housing and the housing area where the inmates are confined does not provide for 55 square feet of living space per inmate exclusive of dayrooms, toilets, and showers. (3) Inmates who meet the criteria described above shall receive 5 days credit for each calendar month, and on a prorated basis for any portion of a calendar month, beginning on the date and ending on the date the Secretary determines appropriate, based on the demand for inmate housing and services in the Division of Correction. (4) And inmate may not, under any circumstances, be entitled to earn from all sources, including this regulation, more than the statutory maximum of 15 credit days per month.

(5) The Commissioner shall revoke all special project credits earned under this section if, within 30 days before the inmate’s release on mandatory supervision, an inmate is found guilty of an intentional rule violation for: (a) Assault; (b) Possession of contraband; ⁵⁹⁵ (c) Escape; or (d) Attempted escape. (6) The Department of Public Safety and Correctional Services shall give the name, last known address, date of birth, release date, and current convictions, of each inmate released, to the state or local law enforcement officials in the jurisdiction into which the inmate is released. (7) This regulation may not be interpreted, understood or construed to mean that inmates who are eligible to receive the credits described in this section have any right to those credits on that inmates will continue to receive those credits in the future. This former COMAR regulation was analyzed by the Court of Special Appeals in Smith v. State, 140 Md.App. 445 , 780 A.2d 1199 (2001).

Ramarro Smith was an inmate in DOC custody at the time the Court of Special Appeals rendered its decision. He was denied “special project” credits that he allegedly had earned through double celling during his incarceration. Smith, 140 Md.App. 445, 448-49 , 780 A.2d 1199, 1201 . The Circuit Court for Baltimore City denied Smith’s petition for writ of habeas corpus, and the Court of Special Appeals granted his application for leave to appeal.

Smith, 140 Md.App. at 448-49 , 780 A.2d at 1201-1202 . Smith was sentenced to thirty-years incarceration for second-degree murder, and his sentence began on June 10, 1977. Smith 140 Md.App. at 449 , 780 A.2d at 1202 . Smith was paroled on January 5, 1989, and, subsequently, the Maryland Parole Commission issued a parole violation warrant as a result of a reasonable belief that Smith had violated parole.

Id. Smith’s parole was revoked, and the parole commissioner awarded him 273 of the 373 days he had been on parole as “street time credit.” See Md.Code 1999, § 7-401(d)(l) of the Correctional Services Article. Smith returned to the DOC and his maximum term of confinement date was recalculated. Id. at 450, 780 A.2d at 1202 .

After his return to the DOC, Smith was convicted for a robbery that he committed while on parole and was sentenced to a five-year ⁵⁹⁶ term consecutive to his murder sentence. Id. The DOC refused to give Smith special project credits for double celling. Id.

Smith argued that the hearing court erred in failing to award him special project credits for double celling which accrued during his robbery sentence. Id. at 451 , 780 A.2d at 1203 . The DOC responded that the fact that Smith was serving a term of confinement for a murder sentence precluded his earning double-celling credits under the regulations. Id. at 452 , 780 A.2d at 1203 .

In support of its position, the DOC cited § 3-702 of the Correctional Services Article which provides for an entitlement to diminution of confinement credits as a result of an inmate’s “term of confinement” rather than “sentence.” Id. The Court of Special Appeals held in Smith, inter alia, that precedent supported the contention that the intermediate appellate court had already considered and “rejected attempts to narrow eligibility for diminution credits by using the ‘term of confinement’ concept to deny an inmate credits against a sentence that is eligible for them.” Id. at 460, 1208. Pursuant to the rule that governs good conduct credits, the intermediate appellate court ultimately held that, “when an inmate’s term of confinement includes both a sentence that is not eligible for the special project credits in question and a consecutive sentence that is eligible for those credits, the two sentences must be considered separately, so that the inmate may reduce his or her term of confinement by earning special project credits against the eligible sentence.” 140 Md.App. at 461 , 780 A.2d at 1209 . In addressing the DOC’s argument that application of good conduct credits and special project credits should be distinguished, the Court of Special Appeals stated: ⁵⁹⁷ ment.

The DOC established double celling as a special project under the authority of section 3-707. Once the special program was created and defined in accordance with section 3-707, it became a legislatively created benefit, albeit one accomplished through the Secretary and Commissioner. Exercising the discretionary authority given by the legislature, the Secretary and Commissioner selected eligibility standards for earning double-celling credits, and then promulgated a regulation adopting those standards in order to confer the benefit of double-celling credits on inmates. At that point DOC was bound by its regulation.

See Hopkins, 40 Md.App. at 336, 391 A.2d 1213 . ⁵⁹⁶ The fact that special project credits are legislatively authorized, but not mandated, does not justify the DOC’s denial of special project credits. We think the DOC has missed the broader lesson of these “good conduct” cases— that diminution credits, once they are created, should be earned and calculated against the eligible sentence of an inmate rather than against his or her entire term of confine- ⁵⁹⁷ The DOC is now obligated to honor and follow the regulation as it is written. If an inmate serving an eligible sentence qualifies for double-celling credits, then the inmate may not be denied those credits. The DOC may not enact the regulation and then ignore an inmate who falls within its ambit.

See, e.g., id. at 336-37, 780 A.2d 1199 , 40 Md.App. 329 , 391 A.2d 1213 (reversing order sentencing inmate to isolated confinement, because DOC violated its own rules governing such sentencing, which “confer[red] important procedural benefits and safeguards”). We are not persuaded otherwise by language in subsection (7) of the DOC regulation that “[t]his regulation may not be interpreted, understood, or construed to mean that an inmate who is eligible to receive the credits described in it has a right to these credits or that an inmate will continue to receive these credits in the future.” COMAR 12.10.06.05N(7). We do not read this language as reserving unlimited authority in the DOC. As we have discussed, the DOC does not have complete discretion to deny doublecelling credits to inmates who clearly meet the eligibility standards in the regulation.

Accordingly, we shall not construe this language as an attempt to confer on the DOC impermissible authority to exercise its power and discretion in an arbitrary manner that conflicts with its own regulation. ⁵⁹⁸ Instead, we view this language as a forthright reminder that the Secretary and Commissioner have authority to abolish, to revoke, or to revise the eligibility standards for double-celling credits. Under section 3-707, they may determine whether any special project credits are available, what projects earn such credits, how many credits may be earned, and who may earn them. Subsection (7) does not expand, but merely reserves this authority. Smith, 140 Md.App. at 461-62 , 780 A.2d at 1209-10 .

The intermediate appellate court remanded the case to the hearing court to determine if Smith was eligible for any double-celling credits for the time served on his robbery sentence. Id. at 462-63 , 780 A.2d at 1210 . Discussion I. Are the amendments to former COMAR 12.02.06.05N(2) (now COMAR 12.02.06.04F(1)) “laws” and thus subject to the prohibition against ex post facto laws by the Federal and Maryland Constitutions? The ex post facto prohibition applies to “statutory changes and also ... to changes in administrative regulations that represent an exercise of delegated legislative authority, as opposed to an interpretation of legislation by an agency authorized to execute, not make, laws.” Prater v. U.S. Parole Comm’n, 802 F.2d 948, 953-54 (7th Cir.1986) (citations omitted).

Petitioner argues that the COMAR amendments were not laws for the purposes of the ex post facto Clause because the amendments were interpretive in nature, and were merely a result of a change in policy by the Secretary and the Commissioner as to how double-celling credits should be awarded and as to which inmates should be eligible to receive such credits. Petitioner relies upon our decision in Watkins v. Secretary Dept. of Public Safety and Correctional Servs., 377 Md. 34 , 831 A.2d 1079 (2003), and analogizes the arguments of the respondents in the instant case to those of the inmates in Watkins . ⁵⁹⁹ In Watkins , the focus of our ex post facto analysis was not “special project” credits, but DOC directives that affected security classification, work release, and family leave. With regard to security classification, the DOC maintained a subjective policy that based transfers to minimum security and prerelease on a discretionary assessment by the DOC classification team. Watkins, supra, 377 Md. at 37 , 831 A.2d at 1081 .

While changes in the policy occurred, the general policy of the DOC “did not exclude all inmates serving life sentences from the pre-release system.” Id. The DOC formally changed its policy on December 1, 1994, and declared that “no inmates sentenced to life imprisonment could be transferred below medium security.” Id. at 38 , 831 A.2d at 1081 . Subsequently, in June 1995, the DOC issued DOC directive (“DCD”) 100-005 which stated that “[ijnmates serving life sentences shall be initially classified at no less than maximum security and shall not be reclassified below medium security.” Id. (citing DCD 100-005.II.N.l.b).

The DOC also included security classification limits on inmates serving a term of confinement for rape or sex offenses, stating that those offenders “shall not be reduced below medium security unless approved for a delayed parole release contingent upon a transfer to lesser security ... or unless within one year of a mandatory supervision release date or maximum expiration release date.” Id. On June 2,1993, after an inmate who had been serving a life sentence murdered his girlfriend while on work release, the Commissioner suspended all work release privileges of inmates serving life sentences. DCD 100-508 was subsequently amended, making all inmates serving life sentences “ineligible for work release.” Id. at 39 , 831 A.2d at 1082 . The final amended DCD involved family leave.

Prior to the Commissioner’s amendment, § 3-811 of the Correctional Services Article granted authority to the Commissioner to allow an inmate to visit his family for a reasonable time if the inmate was (1) confined to a DOC correctional facility; (2) classified to be in pre-release status; and (3) recommended by the correctional facility’s case management team and managing official. Id. (citing Md.Code (1999) § 3-811 of the Correction ⁶⁰⁰ al Services Article). On June 2, 1993, the Commissioner declared that all life-sentenced inmates were ineligible for family leave.

Id. DCD 100-543 followed, stating that “[i]n-mates serving life sentences, including life with all but a portion suspended, and inmates under a sentence of death are not eligible for family leave consideration.” Id. at 40, 831 A.2d at 1082 . The inmates each appealed from their denials of relief issued in their respective circuit courts. Watkins, supra, 377 Md. at 45 , 831 A.2d at 1085 .

The Court of Special Appeals consolidated the inmates’ appeals and this Court issued a writ of certiorari prior to any proceedings in the intermediate appellate court. Id. The issue decided by this Court was whether, as applied to the inmates, the DCDs at issue violated the Constitutional prohibition against ex post facto laws. Id., 831 A.2d at 1085-86 .

We ultimately determined that the DCDs at issue did not violate the ex post facto clause “because they [were] not ‘laws’ within the meaning of the United States Constitution or Maryland Declaration of Rights. Rather, the DCDs were guidelines promulgated as an exercise of the discretion of the Commissioner of Correction who has authority to modify them.” Id. at 45 , 831 A.2d at 1086 . The inmates in Watkins argued that the DCDs at issue constituted “laws” for the purposes of the ex post facto prohibition because they were “ ‘legislative rules’ [that prevent] the staff of the DOC from exercising any discretion over assigning a lesser security classification.” Id. at 46 , 831 A.2d at 1086 . The inmates further argued that the DCDs enhanced the punishments for their crimes by changing the parole eligibility rules after the date of the offenses committed by the inmates.

Id. at 47 , 831 A.2d at 1086-87 . The Secretary in Watkins countered by asserting that the DCDs merely annunciated the manner in which the Commissioner intended to exercise his discretion concerning security classifications. Id. In our discussion, we relied upon Gluckstern v. Sutton, 319 Md. 634 , 574 A.2d 898 (1990), cert. denied, Henneberry v. Sutton, 498 U.S. 950 , 111 S.Ct. 369 , 112 L.Ed.2d 331 (1990), where “we interpreted the ex post facto clause to prohibit the ⁶⁰¹ retroactive application of a statute requiring the Governor to approve parole for inmates serving life sentences at the Patuxent Institution.

Watkins, supra, at 48 , 831 A.2d at 1087 (citing Gluckstern, supra, 319 Md. at 668 , 574 A.2d at 914 ). The inmate who brought the claim in Gluckstem began serving a life sentence at Patuxent when the Institutional Board of Review of the Patuxent Institution ‘retained exclusive control to parole a Patuxent inmate.’ ” Gluckstem, supra, 319 Md, at 642, 574 A.2d at 901 . The General Assembly subsequently enacted a statute that required the Governor to approve parole for all inmates serving life sentences. Id. at 643 , 574 A.2d at 902 .

We concluded that the retroactive application of that statute, which modified the inmate’s parole eligibility, “ ‘substantially alter fed] the consequences attached to a crime already completed and therefore changefd] the quantum of punishment.’” Id. at 668 , 574 A.2d at 914 (citation omitted). We distinguished Gluckstem from those federal cases that held that the ex post facto prohibition did not apply to changes by the United States Parole Commission to its own discretionary guidelines for granting parole, because the federal opinions dealt with guidelines that did not have “ ‘the force and effect of law’ but are merely ‘policies] ... that show how agency discretion is likely to be exercised.’ ” Id. at 672 , 574 A.2d at 916 (citations omitted). Because the Parole Commission could choose not to follow the guidelines in a prisoner’s case, as statements of discretionary administrative policy, we found that they did not affect a prisoner’s punishment “either actually or potentially.” Watkins, supra, 377 Md. at 49 , 831 A.2d at 1088 (citing Gluckstern, supra, 319 Md. at 672 , 574 A.2d at 916 ) (citations omitted). Judge Battaglia, 'writing for this Court in Watkins , found our emphasis on the distinction between discretionary and non-discretionary administrative policy directives in Lomax v. Warden, Md. Corr.

Training Ctr., 356 Md. 569 , 741 A.2d 476 (1999), to be notable. In Lomax , the petitioner filed a petition for writ of habeas corpus in response to the Governor’s announcement in 1995 that he would not approve parole for any inmates sentenced to life in prison unless they were very ⁶⁰² old or terminally ill, and that he had instructed the Parole Commission not to bother recommending murderers and rapists to him for parole. 356 Md. at 573 , 741 A.2d at 478 . Having been convicted of first-degree murder and sentenced to life in prison, Lomax argued that the Governor’s statement effectively changed his sentence to life without the possibility of parole. Id.

With regard to the effect of the Governor’s statement, we held: If the General Assembly in 1995 had enacted a statute restricting the Governor’s discretion to approve the parole of inmates serving life sentences, and providing that the Governor could only approve the parole of those beyond a certain age or who were terminally ill, the holding in Gluckstem would preclude the application of the statute to Lomax. No such statute or regulation, however, has been enacted. The Governor today has the same discretionary authority under the law regarding the parole of persons in Lomax’s position as a Governor had in 1969 or 1967. Id. at 577 , 741 A.2d at 480 .

We recognized that, although in the context of the ex post facto clause, the “concept of a ‘law’... is broader than a statute enacted by a legislative body, and may include some administrative regulations,” it does not encompass “ ‘guidelines assisting [a government agency] in the exercise of its discretion.’” Therefore, whether an administrative provision qualifies as a “law” for ex post facto purposes depends in large part on the manner and extent that it limits an agency’s discretion. Watkins, 377 Md. at 49 , 831 A.2d at 1088 (citations omitted). If the provision “do[es] not have the force and effect of law” but simply announces how an agency is likely to exercise its discretion, “the ex post facto clause does not apply.” Id. (Citations omitted.) In Watkins we found “no meaningful difference between the promulgation of the DCDs at issue in that case and the Governor’s statement in Lomax,” and we noted that the Commissioner’s authority to establish policies that govern the ⁶⁰³ inmates in her custody is similar to the Governor’s authority to exercise discretion over parole decisions.

Id. at 50 , 831 A.2d 1079 , 881 A.2d at 1088-89. Our decision in that case turned on the extent of the Commissioner’s discretion. Acknowledging that certain administrative rules may be considered “law” in the ex post facto context, we reiterated that such rules are not subject to the prohibition against ex post facto prohibition if the rules merely serve as “ ‘guides ... that may be discarded where circumstances require.’ ” Id. at 52, 831 A.2d at 1090 (citing Lomax, supra, 356 Md. at 576 , 741 A.2d at 480 ). In our consideration of the Commissioner’s discretion in Watkins , we noted that the Commissioner has discretion to establish policy guidelines regarding security classifications “without legislative ratification.” Id.

As such, we held that the Commissioner, in the context of carrying out his or her policies on security classifications, inmate ineligibility for work release, and family leave, “unilaterally, may adopt or discard whatever DCDs he or she deems appropriate.” Id. at 53 , 831 A.2d at 1090 . Thus, we held that the DCDs in Watkins did not violate the ex post facto prohibition. The intermediate appellate court in the present case addressed the impact of Watkins . It said: “The [Court of Appeals] by no means implied in Watkins , however, that the Legislature has given the Commissioner discretion to make a prisoner’s punishment more burdensome than it was at the time the offense was committed.” Demby, supra, 163 Md.App. at 64 , 877 A.2d at 197 .

The Court of Special Appeals also acknowledged that its opinion in Smith, supra, did not quantify the special projects credits for double celling as a law, but did note that it was established under the authority of § 3-707 of the Correctional Services Article and “[o]nce the special program was created and defined in accordance with section 3-707, it became a legislatively-created benefit, albeit one accomplished through the Secretary and Commissioner.” Demby, supra, 163 Md.App. at 62-63 , 877 A.2d at 196 (quoting Smith, supra, 140 Md.App. at 461 , 780 A.2d at 1199 ). Primarily, Petitioner argues that, similar to the directives upheld in Watkins , the Secretary and Commissioner’s current ⁶⁰⁴ policies regarding the eligibility criteria for double celling can be revised at any time and are thus not laws for the purposes of the ex post facto prohibition. The clear distinction between Watkins and the instant case is the method in which the regulations are submitted and approved. Petitioner, citing a case from the Ninth Circuit, contends that the promulgation of the regulations at issue through the notice and comment rule making procedures of the Administrative Procedure Act, Md. Code (1984, 2004 Repl.Vol.), §§ 10-101 et seq. of the State Government Article, does not transform them into laws for the purposes of the ex post facto prohibition.

Unlike the purely verbal expression of policy intent by the Governor in Lomax , the Secretary’s amendments in this case were submitted as emergency regulations pursuant to Md.Code (1984, 2004 Repl. Vol.), § 10-111(b) and were published in the Maryland Register, subject to public comment, and committee approval. Similarly, the amendments are distinct from the DCDs in Watkins , as DCDs are not submitted pursuant to the Administrative Procedure Act. See Demby, supra, 163 Md.App. at 63 n. 10, 877 A.2d at 196 n. 10.

In the determination of whether the amendments in the present case are laws for the purposes of the ex post facto prohibition, we must focus our analysis on the nature of the amendment. The United States Court of Appeals for the Fourth Circuit has noted the relevant factors to consider when determining whether actions of administrative agencies are exempt from scrutiny under the ex post facto clause: “When Congress has delegated to an agency the authority to make a rule instead of making the rule itself, the resulting administrative rule is an extension of the statute for purposes of the [C]lause.” Rodriguez v. United States Parole Comm’n, 594 F.2d 170, 173 (7th Cir.1979). The reason for applying the Clause to such legislative rules is straightforward: Congress “should not be allowed to do indirectly what it is forbidden to do directly.” Prater, 802 F.2d at 954 . But when an agency promulgates an interpretive rule, the Ex Post Facto Clause is inapplicable. “[I]nterpretive rules simply state what the administrative agency ⁶⁰⁵ thinks the statute means, and only ‘remind’ affected parties of existing duties.” Jerri’s Ceramic Arts, Inc. v. Consumer Product Safety Comm’n, 874 F.2d 205 , 207 (4th Cir.1989).

Unlike legislative rules, which “ha[ve] the force of law,” id,., interpretive rules “are statements of enforcement policy. They are ... ‘merely guides, and not laws: guides may be discarded where circumstances require; laws may not.’” Prater, 802 F.2d at 954 (quoting Inglese v. United States Parole Comm’n, 768 F.2d 932 , 936 (7th Cir.1985)). ⁶⁰⁶ Such a distinction between “interpretative” rules and “something more,” i.e., “substantive” or “legislative” rules, is not always easily made. Nonetheless, courts are in general agreement that interpretative rules simply state what the administrative agency thinks the statute means, and only “remind” affected parties of existing duties. Chula Vista City School District v. Bennett, 824 F.2d 1573, 1582 (Fed.Cir.1987); Southern California Edison Co. v. Federal Energy Regulatory Commission, 770 F.2d 779, 783 (9th Cir.1985); General Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1562 (D.C.1984); Gibson Wine Co. v. Snyder, 194 F.2d 329, 331 (D.C.Cir.1952).

In contrast, a substantive or legislative rule, pursuant to properly delegated authority, has the force of law, and creates new law or imposes new rights or duties. National Latino Media Coalition v. Federal Communications Commission, 816 F.2d 785, 788 (D.C.Cir.1987)[.] ⁶⁰⁵ United, States v. Ellen, 961 F.2d 462, 465 (4th