# Neal v. Shimoda > Court of Appeals for the Ninth Circuit · December 11, 1997 · 131 F.3d 818 URL: https://www.frixlaw.com/law-library/cases/6960305 ## Case - **Full name:** A.J. NEAL v. Edwin SHIMODA, Administrator, Correctional Facilities Guy Hall, Administrator, Correctional Facilities Richard Mello, Case Manager, Halawa Correctional Facility Barry Coyne, Administrator, Sex Offender Treatment Program, Halawa Correctional Facility John Does 1-10 Doe Entities 1-10 State of Hawaii, Defendants-Appellees Marshall MARTINEZ v. Shelley NOBRIGA, H.C.F., Classification Coordinator George Sumner, Dir., Dept. of Public Safety Edwin Shimoda, Div. Administrator of H.C.F. John Smythe, Administrator for H.C.F., in their individual and official capacities - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** December 11, 1997 - **Citations:** 131 F.3d 818; 97 Daily Journal DAR 14953; 97 Cal. Daily Op. Serv. 9274; 1997 U.S. App. LEXIS 34596; 1997 WL 761974 - **Precedential status:** Published - **Opinion:** Concurring in part by Reinhardt - **Judges:** Hawkins, Nelson, Reinhardt - **Cited by:** 368 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6960305 ## How later opinions describe it (automated extraction) - finding that stigmatizing consequences of labeling instructs that additional procedures with respect to “forward- inmate as “sex offender,” combined with parole ineligibility looking” determinations are less likely to increase the for non-completion of mandatory treatment prog… - holding in the state-created liberty interest context that while participation in Hawaii’s sex offender therapy was technically voluntary, because refusing to participate rendered an inmate completely ineligible for parole, the “coercive component of the SOTP [was] functionall… - holding that inmates’ challenge to sex offender label did not undermine validity of their convictions or continuing confinement because victory would merely “mak[e] them eligible for parole consideration according to the terms of their sentences” and would “in no way guarantee… - explaining that “the stigmatizing consequences” of a sex offender classification “coupled with the subjection of the targeted inmate to a mandatory treatment program whose successful completion is a precondition for parole eligibility” is a liberty interest requiring procedura… ## Opinion text REINHARDT, concurring and dissenting: I concur in the majority’s analysis in all respects except its conclusion that Hawaii’s SOTP, as applied to the appellants, does not violate the Ex Post Facto Clause. .In reaching its conclusion, the majority relies upon the Supreme Court’s recent decision in Kansas v. Hendricks, — U.S. -, 117 S.Ct. 2072 , 138 L.Ed.2d 501 (1997). Because I do not think that Hendricks affects plaintiffs’ ex post facto claims and because the law aside from Hendricks, including controlling Ninth Circuit precedent, clearly supports their claims, I dissent as to the ex post facto issue and as to the result with respect to Martinez. 1 Deciding whether a state statute violates the Ex Post Facto Clause involves a two-part inquiry. First, we must determine whether the law is retrospective: whether it applies to events that occurred before its enactment. Second, we must determine whether the law would disadvantage the person involved if it were applied to him. Hamilton v. United States, 67 F.3d 761, 764 (9th Cir.1995); United States v. Paskow, 11 F.3d 873, 877 (9th Cir.1993); Chatman v. Marquez, 754 F.2d 1531, 1535 (9th Cir.), cert. denied, 474 U.S. 841 , 106 S.Ct. 124 , 88 L.Ed.2d 101 (1985). Under this two-part test, application of the provisions of the Hawaii Sex Offender Treatment Program to Neal and Martinez as a condition of parole eligibility clearly violates the Ex Post Facto Clause. Both Neal and Martinez were sentenced prior to the adoption of SOTP and are disadvantaged by the substantial delay in parole eligibility that results from its subsequent application to them. We held in Paskow that “the date of eligibility for parole is tantamount to a presumptive release date” and that the state’s delay of that date on account of a subsequently enacted provision constitutes an ex post facto violation. Paskow, 11 F.3d at 878 . “Because parole eligibility is part of the sentence for the underlying offense, its terms and conditions are fixed at the moment the underlying offense is complete. Therefore, like the length of a term of incarceration, the conditions affecting parole eligibility cannot be retrospectively altered.” Id. at 879 . Paskow is controlling. Here, the terms and conditions of appellants’ eligibility dates were fixed as of the time of their sentencing. Those terms and conditions could not lawfully be changed so as to require them to serve their full sentences without becoming eligible for parole. Id. Yet such was the retrospective and disadvantageous consequence of their refusal to sign consent forms and participate in the Sex Offender Treatment Program. In short, the adoption and application of SOTP adversely affected the appellants’ preexisting parole eligibility dates and violated their rights under the Ex Post Facto Clause. Aside from its discussion of Hendricks, the majority offers no analysis or explanation to refute this conclusion. The majority acknowledges that “[bjefore the Supreme Court’s opinion in Kansas v. *835 Hendricks, the inmates’ argument had substantial merit.” (majority opinion 826) (citations omitted). It then relies exclusively on Hendricks in rejecting the ex post facto claims. In doing so, however, the majority fails to recognize two fundamental differences between Hendricks and the case before us-differences that emerge clearly in the majority’s own explanation of Kansas’s Sexually Violent Predator Act. As the majority states, the Kansas Act establishes procedures for the involuntary civil commitment of individuals who are presently suffering from a mental abnormality, and “are likely to engage in predatory acts of sexual violence.” (majority opinion 826, 827). Involuntary civil commitment is designed to treat individuals who the court determines are currently “sexually violent predators,” including both those convicted of offenses and those acquitted of crimes of sexual violence by reason of mental illness. Hendricks, — U.S. at -, 117 S.Ct. at 2077 . Under the Kansas statute what is' controlling is the state’s determination of the individual’s present mental status. That determination involves a lengthy formal proceeding, and the alleged sexual predator is afforded the option of a jury trial, the opportunity to review the state’s documentary evidence, and the right to present and cross-examine witnesses. The state has the burden of proving beyond a reasonable doubt that the individual’s present condition qualifies him as a “sexually violent predator.” 2 By contrast, under Hawaii’s SOTP, prison officials select individuals based solely on their past acts, not their current mental or behavioral condition. The SOTP defines a “sex offender” as someone “having been convicted, at any time, of any sex offense or [who] engaged in sexual miseon-duct during the course of an offense.” The SOTP program does not even provide for an inquiry into the inmates’ present condition, and the individuals designated for inclusion in the program have no procedural rights in any way similar to those provided under the Kansas statute. Although the administrator of SOTP stated by letter that he identifies all offenders in custody “who would benefit from” treatment, the actual procedures do nothing to determine the current criminal propensities of the inmates before they are classified as sexual offenders, and certainly do not purport to establish those propensities by requiring the authorities to meet any burden of proof. To the contrary, SOTP classifications of persons as “sex offenders” are based solely on the individual’s past charged crimes or convictions. The Hendricks Court upheld the Kansas statute against ah ex post facto challenge in part because it determined that involuntary civil commitment under the Act “does not impose punishment.” Id. at -, 117 S.Ct. at 2085 . The Kansas Act states that “the prognosis for rehabilitating sexually violent predators in a prison setting is poor,” and different treatment “modalities” are needed for rehabilitation as compared to punishment. Hendricks, — U.S. at -, 117 S.Ct. at 2077 . Pursuant to these rehabilitative objectives, the Kansas Act places the individual in a facility designed to provide long-term care and treatment. The Hendricks Court emphasized that the Kansás program “directed that confined persons be segregated from the general prison population” and that it afforded them “the same status as others who have been civilly committed.” Id. at -, 117 S.Ct. at 2085 . 3 Despite the majority’s argu *836 ment to the contrary, persons undergoing Hawaii’s SOTP are being punished. They are locked up in a penal institution as a part of the general prison population and are treated as prisoners in all respects. The conditions under which SOTP participants are held are thus of an entirely different order than those required by the Kansas Act, and can in no way be considered purely rehabilitative and non-punitive. More,over, SOTP exacts an additional punishment of extended incarceration in a penal institution by denying the selected prisoners parole eligibility if they are not willing to undergo the program or do not perform satisfactorily. Furthermore, as the majority points out, SOTP has other powerful stigmatizing consequences. Notwithstanding the distinctions so clearly drawn in Hendricks, the majority erroneously equates the denial of parole eligibility-and the extension of a prisoner’s presumptive release date and term of servie'e-with an involuntary civil commitment in a non-puhi-tive setting. Nowhere in Hendricks does the Court state or imply that “it is certainly not punishment to deny an inmate eligibility for parole,” as the majority opinion asserts, (majority opinion 827). Quite the contrary! In fact, the majority’s analysis and conclusion are wholly inconsistent with the rationale of Hendricks as well as in direct conflict with Paskow . The latter decision makes it clear that parole eligibility is part of a prison sentence, and that delaying that eligibility (the presumptive release date) is equivalent to extending the time the prisoner must serve. Thus, I cannot accept the majority’s attempt to treat the application of the SOTP requirements in this case as something other than the imposition of additional punishment through continued or additional incarceration. For the reasons I have described above, the Kansas involuntary civil commitment program for current sexual predators is entirely different in its purposes, procedures, and consequences from Hawaii’s SOTP. Hendricks provides no support for the majority’s conclusion that the indefinite postponement under SOTP of parole eligibility for prisoners sentenced prior to SOTP’s adoption is consistent with the Ex Post Facto Clause. Under the law prior to Hendricks, the application of Hawaii’s SOTP to previously sentenced prisoners unwilling to participate in SOTP would, as the majority seems to recognize, have .violated the Ex Post Facto Clause. If the application of SOTP would have been unconstitutional before Hendricks, it is equally unconstitutional now. In short, the Constitution forbids the retrospective application of laws such as SOTP that would disadvantage previously sentenced criminal defendants. Given the majority’s finding of a parallel due process violation in Neal’s case, the Ex Post Facto Clausé violation apparently does not affect him. Martinez’s case is different, however. Martinez will be subject to an unconstitutional extension of his period of incarceration as the result of the application of SOTP. Accordingly, while I concur as to the result in Neal (see h. 1 supra), I cannot concur in the result with respect to Martinez, and respectfully dissent in his case. . As I understand it, the majority opinion holds that Neal is entitled to summary judgment on his due process claim, thus providing him with the same relief as he would receive if he were to prevail on his ex post facto claim: specifically, a declaration that he is now eligible for parole. If, however, the majority's decision on his due process claim allows the state to conduct a further hearing that might further postpone the date of his parole eligibility, then his right to be free from ex post facto punishment would be implicated and I would dissent as to Neal as well. . Through the following measures, among others, the Kansas program ensures that it confines only those individuals that presently require treatment and that it does so only so long as their abnormality poses a threat to others: 1) it enables the individual to petition at any time for a reassessment of his needs; 2) it allows for a maximum period of confinement of one year after which a court must determine beyond a reasonable doubt that the individual still qualifies as a sexual predator and requires continued confinement; and 3) it enables the Secretary of Social and Rehabilitation Services to decide at any time that the individual's condition has changed and release him. Hendricks, - U.S. at - - -, -, 117 S.Ct. at 2078-81, 2083 . . With regard to the conditions of confinement imposed by the Kansas program, the Court stated: "What is significant ... is that Hendricks was placed under the supervision of the Kansas Department of Health, and Social and Rehabilitative Services, housed in a unit segregated from the general prison population, and operated not by employees of the Department of Corrections, but by other trained individuals.” Hendricks, at *836 -, 117 S.Ct. at 2085 . The Court also noted that the state “declared absolutely that persons under the Act are now receiving in the neighborhood of .31.5 hours of treatment per week." Id. (internal quotations omitted). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6960305. Public record. Not legal advice.