# Opposition Brief — Lynce v. Mathis

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1997
- **Citation:** 519 U.S. 433

## Text

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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

+

TABLE OF CONTENTS
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TABLE OF AUTHORITIES

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TABLE OF AUTHORITIES (cont’d)

Page No.

CONSTITUTION, STATUTES, AND RULES
UNITED STATES CONSTITUTION

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0790%3A03. Public record. Not legal advice.