Opposition Brief — Lynce v. Mathis

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BEST AVAILABLE COPY

No. 95-7452

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1995

KENNETH LYNCE,

HAMILTON MATHIS, Superintendent,

Mayo Correctional Institution,

Petitioner,

Florida Department of Corrections,

Respondent.

ON WRIT OF CERTIORARI TO THE

U. S. COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

SUSAN A. MAHER

DEPUTY GENERAL COUNSEL

Florida Bar No. 0438359

Department of Corrections

2601 Blair Stone Road

Tallahassee, Florida 32399-2500

(904) 488-2326

Counsel for Respondent

Po -

QUESTION PRESENTED

The Respondent modifies the Questions presented by Petitioner

as follows:

II.

Does the Ex Post Facto Clause forbid a state to cancel a

prisoner’s previously granted early release credits and

nondiscretionary early release date established solely to

address prison overcrowding through the retroactive

application of offense-based exclusions from eligibility?

™o%es a state legislature deprive a prisoner of liberty

-hout due process of law by retroactively cancelling

lawfully granted early-release credits and a lawfully

established early-release dated established solely

through a mechanism for controlling prison overcrowding

without providing adjudicatory procedures, when the

overcrowding crisis ceases to exist?’

1

Respondent notes that although this is second question is

contained in the Questions Presented For Review by the Petitioner,

no substantial argument was made in the petition.

i

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TABLE OF CONTENTS

Page No.

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II. The Conflicting Decisions of the Tenth

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TABLE OF AUTHORITIES

CASES Page No.

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TABLE OF AUTHORITIES (cont’d)

Page No.

CONSTITUTION, STATUTES, AND RULES

UNITED STATES CONSTITUTION

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FLORIDA STATUTES

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Chapter 944 (Supp. 1988)

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Chapter 944 (Supp. 1990)

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Chapter 944 (Supp. 1992)

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Chapter 944 (1993)

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Chapter 947 (1989)

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LAWS OF FLORIDA

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CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Article I, Section 10

provides in pertinent part:

Section 10. No state shall .. . pass any Bill of

Attainder, ex post facto Law, or Law impairing the

Obligation of Contracts . :

United States Constitution, Amendment XIV, § 1, provides

in pertinent part:

(NJor shall any State deprive any person of life,

liberty, or property, without due process of law .

The relevant Florida statutes are codified as:

Florida Statutes Section 944.276, 1987

Florida Statutes Section 944.277,

Supp. 1988 and Supp. 1992

Florida Statutes Section 944.598, Supp. 1986

(These statutes have been reprinted in full in the

appendix to Petitioner’s brief.)

STATEMENT OF THE CASE

I. Historical Background of Florida’s Overcrowding Statutes

Since 1983, the State of Florida has enacted a series of early

release statutes specifically and solely designed to alleviate an

overcrowding crisis which has plagued the state prison system over

the last decade. In the face of a federal court consent decree on

overcrowding and delivery of health services in the Florida prison

system, the Florida Legislature opted to afford the Department of

Corrections an emergency relief procedure to preclude the mass

release of Florida inmates at the direction of the federal courts.

See Costello v. Wainwright, 397 F.Supp. 20 (M.D. Fla. 1975), aff'd,

525 F.2d 1239 (Sth Cir. 1976).

The first early release statute (Florida Statutes Section

944.598), enacted in 1983 and repealed in 1993, provided for the

mandatory grant of emergency gaintime to all inmates within the

prison system if the threshold of 99% of lawful capacity was

reached. This statute was never implemented. Later overcrowding

statutes administered by the Florida Department of Corrections

(Florida Statutes Sections 944.276 and 944.277), enacted in 1987

and 1988, respectively, provided for the discretionary grant of

credits to all inmates who met the criteria for such awards and who

were not otherwise excluded by the statutes. The threshold levels

required to trigger awards under these later statutes were below

the 99% level of the original emergency release statute.

As the overcrowding crisis began to subside and in light of

the grave concern for public safety, the Florida Legislature

commenced to narrow the categories of prisoners eligible for

overcrowding release and various exclusions were added to the

statutes. Prisoners convicted of murder offenses were not

initially among the excluded classes under any of the overcrowding

statutes. However, in 1990, the Florida Legislature removed from

eligibility for early release for overcrowding any prisoner

convicted of a murder offense. § 944.277(1) (i), Fla. Stat. (Supp.

1990). Simultaneously, the Florida Legislature enacted a new

overcrowding mechanism which would transfer the responsibility for

review and release of prisoners because of prison overcrowding from

the Florida Department of Corrections to the Florida Parole

Commission.* § 947.146, Fla. Stat. (1989). Like the overcrowding

mechanisms previously administered by the Department, the control

release statute administered by the Commission contained specific

exclusions from eligibility for early release because of

* The primary reason for this transfer of responsibility was

to allow for greater review of the individual prior to release

because of prison overcrowding. In light of the Florida Parole

Commission’s expertise in parole reviews, the Florida Legislature

determined that the Commission was in a better ition to make

release determinations in the interests of public safety as its

staffiag and function were designed specifically for that purpose.

The overcrowding statutes administered by the Department of

Corrections did not provide for individual review because the

department was not structured to accomplish such reviews in a time

frame that would allow releases sufficient to control prison

overcrowding. To overcome the inability to conduct individualized

reviews, the legislature included a built-in behavior indicator in

the statute -- overcrowding credits could only be allocated to an.

otherwise eligible inmate if that inmate was also "

incentive gain-time" This statutory restriction was not annlenal

as an prison management or rehabilitative tool. Nor was this

restriction intended as a reward to inmates for good behavior. It

was simply a risk-assessment mechanism in furtherance of public

safety concerns to assure that inmates with consistently

unsatisfactory behavior would not be released early.

overcrowding.

As other measures, such as front-end diversionary programs and

the building of additional prison beds, continued to reduce

overcrowding concerns, the Florida Legislature systematically

narrowed the pool of inmates eligible for very early release due to

prison overcrowding. The legislature’s efforts culminated in the

retroactive cancellation in 1992 of early release credits for some

groups of violent offenders, such as Mr. Lynce,’ and ultimately,

with the enactment of Florida’s Safe Streets Act in June 1993,* the

retroactive cancellation of all pending early release balances for

prisoners in custody as well as those prisoners returned to custody

after release on bond, escape, or revocation of supervision.

Florida has not made any releases because of prison

overcrowding since December 1994.

II. Statement of The Case

Respondent accepts the Petitioner’s rendition of the case and

facts.

> See § 944.277(1) (h), (i), Fla. Stat. (Supp. 1992); 1992 Op.

Att’y Gen. Fla. 092-96 (December 29, 1992).

* See Ch. 93-406, Laws of Fla., codified, in part, at Florida

Statutes Section 944.278.

—

REASONS FOR DENYING THE WRIT

Be The Judgement of the Court of Appeals In Lynce Is Consistent

With Collins And Morales And Is Distinguishable From Weaver

Petitioner Lynce seeks to liken the early release due to

prison overcrowding to satisfaction of sentence and release due to

the application of goodtime/gaintime earned by a prisoner. The

allocation of overcrowding credits (provisional credits), a

mechanism legislated solely for the purpose of controlling prison

overcrowding, is not goodtime/gaintime to be earned by a prisoner.

None of Florida’s early release mechanisms for overcrowding were

designed to foster rehabilitation, provide a prison management

tool, or inure as a benefit or reward to a prisoner for good

behavior in prison. Both the Florida Supreme Court and the

Eleventh Circuit clearly recognized this very important factor in

their decisions addressing Florida’s early release statutes. Both

courts specifically distinguished the cases dealing with early

release due to prison overcrowding from those addressing basic and

incentive gaintime. In Griffin v. Singletary, 638 So. 2d 500 (Fla.

1994), Florida’s highest court noted in addressing the provisional

credits statute:

In Dugger v. Rodrick, 584 So. 2d 2, 4 (Fla. 1991),

this Court held that the state’s unilateral

decision to restrict the "provisional credit" does

not trigger the constitutional issues that would be

present if some other forms of credits or gain time

were at stake. The reason is that provisional

credits are not a reasonably quantifiable

expectation at the time an inmate is sentenced.

Rather, provisional credits are an inherently

arbitrary and unpredictable possibility that is

awarded based solely on the happenstance of prison

overcrowding. Thus, provisional credits in no

sense are tied to any aspect of the original

sentence and cannot possibly be a factor at

sentencing or in deciding to enter a plea bargain.

As a result we held that provisional credits are

not subject to the prohibition against ex post

facto laws. Id.

Griffin, 638 So. 2d at 501, citing Dugger v. Rodrick, 584 So. 2d at 4.

Similarly, in a very recent decision, still pending a petition

for rehearing when this Court rendered its decision in Cal. Dept.

of Corrections v. Morales, U.S. » 238 8.Ce. is97, i332

L.Ed.2a 588 (1995), the Eleventh Circuit followed the Griffin

rationale in addressing a later overcrowding mechanism, control

release:

The control release statute is quite different. It

reduces an inmate’s imprisonment automatically for

the convenience of the Department of Corrections.

The statute is procedural, not substantive like

“good-time" gain time, and therefore is not ex post

facto. Rodrick, 584 So. 2d at 4.

Additionally, the retroactive application of

control release does not actually disadvantage the

petitioner by reducing his opportunity to shorten

his time in prison. Because control release is

based on an arbitrary and unpredictable

determinant, the prison population level, an inmate

has no reasonable expectation at the time he is

sentenced that the prison population will reach the

specified triggering level and that his

incarceration will therefore be reduced.

Hock, 41 F.3d 1470, 1472 (11th Cir. 1995).

Both the Florida Supreme Court and the Eleventh Circuit

analyzed the substance of Florida’s early release statutes, not

just the obvious effect. In so doing, the these courts recognized

the very important fact that Florida’s early release statutes

merely provide procedural mechanisms to the executive bodies

administering them to achieve the singular goal of controlling

prison overcrowding. Mr. Lynce claims that the decision below is

a eee

irreconcilable with the holdings in Weaver and Greenfield.

Petition at 7. On the contrary, the decision of the Eleventh

Circuit is distinguishable from Weaver v. Graham, 450 U.S. 24

(1981). In Weaver, this Court considered the effect of a Florida

statute which reduced the amount of automatic or basic gaintime

applied to a prisoner’s sentence upon incarceration.* Under the

earlier 5-10-15 formula for award of automatic gaintime, a sentence

of 10 years was automatically reduced to a _ sentence of

approximately 6 years upon incarceration. Under the formula

enacted in 1978 providing for a reduced formula of 3-6-9, a

sentence of 10 years was only reduced to 8 years. Thus, the

retroactive application of the later formula resulted in an

increase in the lower end of the possible sentence range. Because

the automatic gaintime was truly a determinant of the actual

sentence imposed, the alteration of this determinant in a fashion

that increased the initial penalty imposed ran afoul of the Ex Post

Facto Clause.

Florida’s early release mechanisms do not produce this

same effect. There is no automatic reduction of sentence upon

’ The statutes in effect in 1976 that were considered in.

Weaver provided for automatic deductions from a prisoner’s sentence

of 5 days per month off the first and second years, 10 days per

month off the third and fourth years, and 15 days per month off the

fifth and all succeeding years. § 944.27(1), Fla. Stat. (1975). —

In 1978, the Florida legislature repealed the previous gaintime

statute and enacted a new formula for automatic deductions of 3

days per month off the first and second years, 6 days per month off

the third and fourth years, and 9 days per month off the fifth and

all succeeding years. § 944.275(1), Fla. Stat. (1979). These

deductions automatically were applied upon incarceration as a lump-

sum deduction from sentence. See Knuck v. Wainwright, 759 F.2d 856

(llth Cir. 1985).

incarceration. There is no relationship between original length of

sentence and the allocation of overcrowding credits. There is no

predictability as to when or how many overcrowding credits would

need to be allocated. Indeed on the date a prisoner committed his

crime, there was no assurance that overcrowding would still be in

effect on the date of incarceration. Thus, the actual penalty for

the crime imposed was never altered by the allocation of

overcrowding credits. A 10-year sentence on the date of

incarceration was still a 10-year sentence.

In Collins v. Youngblood, 497 U.S. 37 (1990) and Cal. Dept. of

Corrections v. Morales, 514 U.S. __, 115 S.Ct. 1597, 131 L.Ed.2d

588 (1995), this Court has made clear that "the focus of the ex

post facto inquiry is not on whether a legislative change produces

some ambiguous sort of ‘disadvantage,’ mor .. . on whether an

amendment affects a prisoner’s ‘opportunity to take advantage of

provisions for early release,’ (citation omitted), but on whether

any such change alters the definition of criminal conduct or

increases the penalty by which a crime is punishable." Morales,

514 U.S. __, 131 L.Bd.2d at 595, n.3. In both Collins and Morales,

the Court has emphasized that it is the “increase in the penalty by

which a crime is punishable" which triggers the ex post facto

prohibitions not just any potential disadvantage occasioned by a

prisoner or change that results in an alteration of the actual

length of confinement. The State of Florida did not change its

mind as to the overall terms of imprisonment it believed

appropriate as punishment for Petitioner Lynce’s crimes. It simply

was faced with addressing an independent and somewhat unpredictable

problem of overcrowding -- the fact that the Legislature devised

various mechanisms to allow releases to control prison overcrowding

did not in any way alter the punishment Petitioner was destined to

receive on the date he committed his crime. Mr. Lynce had no way

of knowing what the future might hold with regard to prison

overcrowding and his potential to receive a very early release as

a result. Neither the State of Florida nor the sentencing courts

altered the punishment range under the state sentencing guidelines

based upon prison overcrowding -- overcrowding was a phenomena

addressed administratively by the Florida Legislature. Both

Florida and the federal courts in this circuit have consistently.

determined that Florida’s overcrowding statutes are remedial,

administrative, and procedural statutes designed to address prison

overcrowding rather than penal statutes designed to address

punishments for crimes. These statutes do not offend the

prohibition against ex post facto laws under either the Collins or

Morales tests. The judgment of the Eleventh Circuit in Lynce is

consistent with present ex post facto jurisprudence. No further

review is warranted by this Court.

II. The Conflicting Decisions of the Tenth Circuit and A Texas

Criminal Appellate Court Are Anomalies That Present No

Substantial Conflict For Resolution

Petitioner Lynce urges the Court to grant his petition because

the rationale and result of the lower court’s disposition directly

conflict with Arnold v. Cody, 951 F.2d 280 (10th Cir. 1991) and Ex

Parte Rutledge, 741 S.W.2d 460 (Tex. Crim. app. 1987) (en banc).

(Petition at 10.) Mr. Lynce points to a single federal circuit

court decision and a single state criminal appellate court decision

as providing substantial and sufficient conflict to warrant this

Court’s resolution. On the contrary, these decisions are anomalies

which cannot serve as a basis to review the overwhelmingly

consistent decisions in the state and federal courts in this

circuit.

The Texas case, Ex parte Rutledge, 741 S.W.2d 460

(Tex.Crim.App. 1987) (en banc), was decided long before and without

benefit of this Court’s decisions in Collins and Morales. Thus,

the result in Rutledge may well have been different and should not

be viewed for purposes of establishing substantial conflict.

Unlike Rutledge, however, the decision of the Tenth Circuit in

Arnold v. Cody, 951 F.2d 280 (10th Cir. 1991) was rendered after

Collins. While the Lynce decision is indeed in conflict with the

Arnold decision of the Tenth Circuit, Arnold is erroneously

grounded in effect-based analysis of Weaver v. Graham, 450 U.S. 24

(1981), Miller v. Florida, 483 U.S. 423 (1987), and Lindsey v.

Washington, 301 U.S. 397 (1937): the focus is on the potential

lengthening of incarceration.‘ The Arnold court had before it for

* As this Court noted in Morales, 514 U.S. , 115 S.Ct.

1597, 131 L.Ed.2d 588, 595 n.3.,

Our opinions in Lindsey, Weaver, and Miller suggested

that enhancements to the measure of criminal punishment

fall within the ex post facto prohibition because they

operate to the "disadvantage" of covered offenders. See

10

review an appeal from a federal habeas in which the Oklahoma

prisoner challenged an amendment to Oklahoma’s prison overcrowding

statutes which reduced his eligibility for emergency release due to

overcrowding. In Arnold, the Tenth Circuit relied on an earlier

decision of the Oklahoma Court of Criminal Appeals, Ekstrand v.

Oklahoma, 791 P.2d 92 (Okla.Crim.Aop.1990) (citing Weaver), in

which the Oklahoma court addressed whether an amended Oklahoma

statute relating to "earned" credits was an ex post facto law when

its application to prisoners resulted in the computing of fewer

earned credits than under the statute before the amendment, thereby

lengthening the prisoners’ sentences. Id. at 93. In Ekstrand,

"({a)fter comparing the potential for earning credits before and

after amendment, the [Oklahoma] court concluded that the amendment

was disadvantageous". Id. at 94. Based on that factor, and that

factor alone, the Oklahoma court declared the amendment in

violation of the ex post facto clause.

In adopting Ekstrand, the Tenth Circuit rejected another

decision of the Oklahoma Court of Criminal Appeals, Barnes v.

Lindsey, 301 US, at 401, 81 L Ed 1182, 57 S Ct 797;

Weaver, 450 US, at 29, 67 L Ed 2d 17, 101 S Ct 960;

Miller, 482 US, at 433, 96 L Ed 2d 351, 107 S Ct 2446.

But that language was unnecessary to the results in those

cases and is inconsistent with the framework developed in

Collins v. Youngblood, 497 US 37, 41, 111 L Ed 2d 30, 110

S Ct 2715 (1990). After Collins, the focus of the ex post

facto inquiry is not on whether a legislative change

produces some ambiguous sort of "disadvantage," nor, as

the dissent seems to suggest, on whether an amendment

affects a prisoner’s “opportunity to take advantage of

provisions for early release," see post, at __, 131

L.Ed. 2d, at 602, but on whether any such change alters

the definition of criminal conduct or increases the

penalty by which a crime is punishable.

11

Oklahoma, 791 P.2d 1010 (Okla.Crim.App.1990), in which Oklahoma, CONCLUSION

like Florida, drew a distinction between credits earned for good The petition for a writ of certiorari should be denied.

behavior, which were the subject of the Ekstrand decision and , R submitted,

emergency credits meted out to alleviate prison overcrowding. As Nf f |!

edi

Florida’s courts and the federal district courts in this circuit st A. MAHER

DEPUTY GENERAL COUNSEL

have recently done, the Oklahoma court concluded that prison

Department of Corrections

overcrowding was unrelated to a prisoner’s crime and could not be 2601 Blair Stone Road

Tallahassee, Florida 32399-250v

viewed as a consequence attached to the crime at the time it was (904) 488-2326

committed. As a result, eligibility for emergency release due to Counsel for Respondent

overcrowding never ventured into the realm subject to ex post fact

Dated: April 8, 1996

analysis. The Tenth Circuit rejected the state court’s

determination of the nature of emergency overcrowding credits,

finding no difference between "earned" credits and “emergency"

credits. Such a matter is a determination of state law that should

not have been disturbed. When closely analyzed, the Arnold court’s

sole test for whether an ex post facto violation occurred was

whether Arnold himself was disadvantaged. This factor alone is an

incorrect test in assessing an ex post facto challenge. This

singular, conflicting decision is founded on an incorrect test and

does not provide a compelling basis for this Court to review the

overwhelmingly consistent decisions of the state and federal courts

within this circuit.

12 13