Respondents Brief — Lynce v. Mathis

BEST AVAILABLE COPY

QUESTION PRESENTED

During the years 1988-1993, when prison population

reached statutorily set limits, Florida awarded inmates

such as the petitioner provisional credits, a form of “gain

time” intended solely to relieve prison overcrowding by

reducing inmates’ sentences. Between 1988 and 1991,

the petitioner was given 1,860 days of provisional

credits. Then, in 1992, the Florida Legislature revoked

all provisional credits given to inmates like the

petitioner, who had been convicted of violent crimes.

Question: whether that revocation violated the ex post

facto clause of the U.S. Constitution.

PARTIES TO THE PROCEEDINGS

The parties to this proceeding are:

1. The petitioner, Kenneth Lynce.

2. Robert A. Butterworth, Florida Attorney General,

respondent.

3. Hamilton Mathis, superintendent of Tomoka

Correctional Institution, respondent.

4. Harry K. Singletary, secretary of the Florida Department

of Corrections, respondent.

TABLE OF CONTENTS

RUT 6 cece ser eee secess i

PARTIES TO THE PROCEEDINGS ................ ii

ge.) Ee el

pp i 9 oy. iit

MURTY I MID ss ce et ore ce cee eees l

1. Overcrowding Gain Time — an Exercise in Prison Crisis

Es Mis bccn ob veces cess. 2

2. The Proces@imas Below. ..... 2... ce eee. )

SUMMARY OF ARGUMENT .................... 12

EN EEE 13

I. REVOCATION OF THE PETITIONER'S

OVERCROWDING CREDITS DID NOT VIOLATE

THE CONSTITUTION’S EX POST FACTO CLAUSE

BECAUSE THEY DID NOT FORM PART OF THE

II.

Ill

PUNISHMENT TO WHICH HIS CRIME WAS

I PE oe ee 14

A. Revocation of the petitioner's overcrowding gain

time credits did not violate the ex post facto clause

because, at the time of his offense, overcrowding

gain time did not exist................ 14

B. Florida's revocation of the petitioner's

overcrowding gain time credits did not violate the

ex post facto clause. Overcrowding gain time did

not form part of the petitioner's potential

punishment because the statute provided fair

warning that it was not part of the range of

punishments to which he was exposed. : 15

C. Anticipating early release because of overcrowding

was too subjective an expectation to justify ex post

facto protection................... as

D. Revocation of the petitioner's overcrowding gain

time amounted only to loss of an opportunity to take

advantage of provisions of early release. .... 23

THE 1992 REVOCATION OF THE PETITIONER'S

OVERCROWDING GAIN TIME CREDITS DID NOT

OFFEND THE POLICIES UNDERLYING THE EX

POST FACTO CLAUSE. .............0::. 24

THE COURT’S PRISON DEFERENCE CASES

AND FEDERALISM AND COMITY CONCERNS

REQUIRE THE COURT TO AFFIRM THE

DECISION BELOW | 26

CONCLUSION 30

TABLE OF AUTHORITIES

Cases

Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)

bie C00 ebesccenes Jésnkheua¥e bs knee, 26

Blankenship v. Dugger, 521 So.2d 1097 (Fla. 1988) ...... 5, 14

Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d

SE 0.0 dads ¢ dude Gnddtinn adletiedits ima 16

Calder v. Bull, 3 Dall. 386(1798) .................... 14

California Department of Corrections v. Morales, — US. —, 115

§ 5 — SPER 8, 22, 23

Celestineo & Costello v. Dugger, 147 F _R.D. 258 (M_D. Fla. 1993).

PP PTE eT ee» rT Sl PRY -* 2 4

Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 675, 58 L.Ed.2d 596

SE ano ee ian nl ae ae ee i a 17

Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715 (1990) _. . 14,

22

Colten v. Commonwealth of Kentucky, 407 U.S. 104, 92 $.Ct. 1953,

RF eer retort err srre 17

Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126

SD ad's We Fe 604660046640. 0045 0b 6 racers ans 16

Costello v. Wainwright, 397 F Supp. 20 (M.D. Fla. 1975), aff'd 525

PE CUUEED S vbccccdeccancdeue¥ecee ee 3, 28

Dobbert v. State of Florida, 432 U.S. 282, 97 $.Ct. 2290, 53 L.Ed 2d

SOG GIIGED owe cere ee eee des TERRE a ic ctw 16

Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d

Se GE a iwc da ads io ou we vidnt Fébwbe Fea dee! 16

iv

Griffin v. Singletary, 638 So.2d 500 (Fla. 1994)... . 6, 10, 21

Hock v. Singletary, 41 F.3d 1470 (11th Cir. 1995), cert. denied, —

U.S. —, 116 S.Ct 715 (1996) ............... 11, 15, 19, 21

Jones v. North Carolina Prisoners Labor Union, 433 U.S. 119, 97

ge i Pern ae 26

Keeton v. State of Oklahoma, 32 F 3d 452 (10th Cir. 1994) ._. . 25,

Lewis v. Casey, — U.S. —, 116 S.Ct. 217(1996) ...... 26

Marks v. U.S., 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977)

acaropath (ni enrne -h NE Se a a 16

Pt ip ae ieee aaa Geils win'd'd dw ede 6 h6'0.0.0 4/0 5 24

Dn Udekivcketens neneGeewGhlekenasecudses sas 7

O'Lone v. Estate of Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 96

BS rr 26

Pell v. Procunier, 417 U.S. 817,94 $.Ct. 2800, 41 L.Ed. 2d 495 (1974)

26, 28

Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224

SESE tae eine eae epee 26

Dt + dceu@ahetenskedaevesecdeceese sue hes fnew

Shifrin v. Fields, 39 F.3d 1112 (10th Cir. 1994) ....... 28

State ex. rel. Smith v. Jorandby, 498 So.2d 948 (Fla. 1986) _. 25

Vv

Stephens v. Thomas, 19 F.3d 498 (10th Cir. 1994); cert. denied, —

US. —, 115 S.Ct. 516, 130 L.Ed. 2d 422 (1994) ............ 7

Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459

ID SAD ESO CET I IER 5 IE 26

Turner v. Safely, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)

26, 27, 29, 30

U.S. v. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516

GED 6a Lage a WeeE oh 6 ev OSE AES He AEVC diners es oe) 17

U.S. v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46 L_Ed.2d 228 (1975)

Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981)

7, 8, 14, 15, 18, 21, 22, 24, 29

Statutes

Chapter 83-131, Laws of Florida ...................... 5

Chapter 88-122, Laws of Florida ...................... 6

Chapter 89-526, Laws of Florida ...................... 7

Chapter 93-406, Laws of Florida ................... 5,7

Section 944.276, Florida Statutes...................... 5

Section 944.023, Florida Statutes ...................... 4

Section 944.275, Florida Statutes .................. 7-9, 21

Section 944.277, Florida Statutes ............ 6, 7, 9, 10, 19,

22

Section 944.278, Florida Statutes ...................... 8

Section 944.598, Florida Statutes ...................... 5

Section 947.146, Florida Statutes ..................... 7

Other Authorities

1992 Op. Atty. Gen. Fla. 092-96 (December 29, 1992) .... 6,10

vil

In the Supreme Court of the United States

October Term 1995

No. 95-7452

KENNETH LYNCE,

Petitioner,

v.

HAMILTON MATHIS, ROBERT A. BUTTERWORTH

AND HARRY K. SINGLETARY,

Respondents

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

BRIEF OF RESPONDENT

ROBERT A. BUTTERWORTH

STATEMENT OF THE CASE

This case began as a petition for a writ of habeas corpus

challenging Florida’s cancellation of 1,860 days of “provisional

credits” given to a Florida prison inmate. These credits, if used

by a prison inmate, can result in early release from sentence

They are widely regarded as a form of “gain time,” a term for a

variety of early release mechanisms, some of which are given to

inmates as a means of behavior control. The particular type of

gain time at issue in this action, however, had a special purpose:

to enable state prison officials to prevent prison overcrowding

]

and to keep state prison populations under a cap mandated by

a federal consent decree.

The petitioner is a prisoner in the custody of the Florida

Department of Corrections (DOC). The respondents are the

Florida Attorney General and two state prison officials

responsible for operating a prison system that grew rapidly

during the 1970s and 1980s to become one of the largest in the

United States.

By October 1992, the petitioner had accumulated 1,860 days

of these provisional or “overcrowding” gain time credits and

was released. DOC released the petitioner and others like him

based on its initial interpretation of 1992 amendments to the

overcrowding gain time law that the petitioner retained the

ability to use accumulated overcrowding gain time to secure

early release. However, in December 1992, the Florida Attorney

General determined that the 1992 Florida Legislature in fact had

intended retroactively to revoke the petitioner’s accumulated

overcrowding gain time, an interpretation of the statute later

upheld by the Florida Supreme Court. Because the petitioner

had been unlawfully released, still having time remaining on his

sentence, he was taken back into state custody.

On petition for a writ of habeas corpus alleging an ex post

facto violation, the U.S. District Court for the Middle District

of Florida (adopting the report and recommendation of a

magistrate judge) determined that, in fact, the Florida

Legislature’s revocation of the petitioner’s overcrowding gain

time did not violate the U.S. Constitution’s ex post facto clause.

The Eleventh Circuit Court of Appeals denied review.

This Court granted the petitioner’s petition for a writ of

certiorari in May 1996 to determine one question: whether the

1992 legislative cancellation of the petitioner's overcrowding

gain time violated the ex post facto clause.

1. Overcrowding Gain Time — an Exercise in Prison

Crisis Management.

During the 1970s and 1980s, the Florida prison system

found itself under pressure from two directions. First, rising

crime rates and increased in-migration drove up the number of

crimes committed in the state and, therefore, the number of

people sentenced to state prison by state courts. During the

1970s, state prison populations grew more rapidly than the state

could build facilities to house them. For instance, between June

30, 1971, and May 12, 1975, the state prison population in

creased by 43 percent, from 9,530 inmates to 13,700. See

Costello v. Wainwright, 397 F.Supp. 20, 31 n. 9. (M_D. Fla.

1975), aff'd 525 F.2d 1239 (Sth Cir. 1976). The DOC secretary

three times temporarily closed the state prison system to new

admissions. /d., 397 F.Supp. at 31. During this period, the

department temporarily housed inmates in tents at Florida’s

then-main prison at Starke. /d., 397 F.Supp. at 22. The inmate

population continued to rise, and as of August 21, 1996, there

were 64,082 inmates in the Florida prison system — an increase

of 570 percent over the number in June 1971.

Second, the state faced judicial pressure as well. Until this

Court’s decision in Rhodes v. Chapman, 452 U.S. 337, 101

S.Ct. 2392, 69 L.Ed.2d 59 (1981), it was widely assumed that

prison overcrowding was a per se constitutional violation.

Consequently, many inmate plaintiffs were quick to file civil

rights actions alleging overcrowding. Florida was the target of

such a lawsuit, and in 1975, finding that overcrowding

threatened inmates’ health and led to increased violence, the

U.S. District Court for the Middle District of Florida issued a

preliminary injunction ordering Florida to reduce its prison

population. Costello v. Wainwright, 397 F Supp. at 38.

Costello was a significant overcrowding case. Although it

began in 1972 as a pro se challenge to the alleged failure to

provide adequate medical and mental health care, it was

amended to become an overcrowding class action after the

district court appointed counsel to represent the plaintiffs. In

1979, the parties entered into a consent decree providing for a

cap on inmate populations, which remained in place through

3

judicial order until 1993. See Celestineo & Costello v. Dugger,

147 F R_D. 258, 264 (M_D. Fla. 1993).' This cap limited inmate

populations based on square footage of living space per inmate

bed. As part of the Costello termination process, the Legislature

enacted the consent decree limitations into law. See note to s.

944.023, Florida Statutes (Supp. 1992).

Florida’s first response to the Costello injunction was to

build more prison beds. By June 1982, however, the problem of

prison population growth had become so acute that the Florida

Governor called a special legislative session to deal with it.

During that session, the Florida Legislature appropriated

additional prison building and operating funds, and ordered the

creation of a task force to find other ways to keep inmate

populations under the cap imposed by the Costello consent

decree. Lodg. Doc. 76.

Among other things, the task force made three significant

public policy recommendations. First, it proposed the creation

of a system of sentencing guidelines. It was thought that, by

making sentences more uniform, prison population growth could

be more easily estimated. Second, the task force proposed

changes to Florida’s basic gain time statute, s. 944.275, Florida

Statutes, which serves as a behavior management tool, again

with the aim of making population growth more predictable.

Lodg. Doc. 73, 112-113. Finally, the task force proposed the

creation of an early release mechanism that would act as a

“safety valve” in case the prison population could not be

brought under control or predicted accurately. Lodg. Doc. 75.

In the years that followed, the Florida Legislature

experimented with four “safety valve” overcrowding

mechanisms. They were:

* This is the same case as Costello v. Wainwright. The order cited

terminated the case after 21 years, 14 of them under consent decrees.

4

© Emergency Release — Enacted in 1983, this statute

authorized the emergency release of inmates based on

incremental reductions in gain time when overall prison

populations reached 98 percent of capacity. See s. 944.598,

Florida Statutes (1985). The statute did not condition access

to credits based on the nature of the inmate’s offense.

Despite language that appears mandatory, Florida never

granted inmates emergency release credits or released

anyone pursuant to this statute. Blankenship v. Dugger, 521

So.2d 1097, 1098 (Fla. 1988).? After remaining on the

books unused, the emergency release statute was repealed

in 1993. Sec. 32, chapter 93-406, Laws of Florida.

© Administrative gain time — Enacted in 1987,

administrative gain time provided that “Whenever the inmate

population of the correctional system reaches 98 percent of

lawful capacity as defined in s. 944.598, the secretary of the

Department of Corrections shall certify to the Governor that

such condition exists. When the Governor acknowledges

such certification in writing, the secretary may grant up to

a maximum of 60 days administrative gain-time equally to all

inmates who are earning incentive gain-time, unless such

inmates” were serving sentences for a short list of offenses.

See s. 944.276, Florida Statutes (1987). The Legislature,

however, repealed this section the following year, 1988, and

* Sections 3 and 5, chapter 83-131, Laws of Florida.

* As of March 10, 1988, the date of the Blankenship opinion, neither

DOC nor the Governor had “ever taken the steps necessary to

activate the reduction of sentences under this section.” This means

that the petitioner never received emergency release credits. By

March 1988, the second experiment in overcrowding gain time,

known as administrative gain time, had been in place almost a year.

Id. The petitioner received administrative gain time but does not

challenge its cancellation in this case.

5

replaced it with provisional credits. Sections 5 and 6,

chapter 88-122, Laws of Florida.

© Provisional Credits — Enacted in 1988,‘ s. 944.277,

Florida Statutes, began with language almost identical to

that in the repealed administrative gain time statute:

Whenever the inmate population of the

correctional system reached 97.5 percent of

lawful capacity as defined in s. 944.096, the

Secretary of the Department of Corrections shall

certify to the Governor that such condition

exists. When the Governor acknowledges such

condition in writing, the secretary may grant up

to 60 days of provisional credits equally to each

inmate who is earning incentive gain-time,

except an inmate who .. .”

was serving a longer list of offenses than set out in the

administrative gain time statute. The Florida Supreme Court

saw no practical distinction between administrative gain time

and provisional credits other than the name change. “The

sole purpose of both was to reduce prison overcrowding

when the correctional system reached ninety-eight percent

of its lawful capacity.” Griffin v. Singletary, 638 So.2d 500,

501 (Fla. 1994).

In 1989, the Legislature removed inmates convicted of

murder and murder-related offenses from eligibility for

provisional credits but did not revoke credits already

distributed.

In 1992, balancing public safety concerns against the

need for administrative flexibility to respond to

overcrowding, the Legislature revoked all provisional

“overcrowding” credits granted to the petitioner and others

convicted of murder or murder-related offenses. See 1992

Op. Atty. Gen. Fla. 092-96 (December 29, 1992), Griffin v.

* Section 5, chapter 88-122, Laws of Florida.

6

Singletary, 638 So.2d 500 (Fla. 1994); Waite v. Singletary,

632 So.2d 192 (Fla. 3d DCA 1994).°/

In 1993, the Legislature repealed s. 944.277 and

canceled all previously granted administrative and

provisional “overcrowding” credits. Sec. 32 and 35 chapter

93-406, Laws of Florida; section 944.278, Florida Statutes

(1993).

© Control Release — Enacted in 1989,’ s. 947.146, Florida

Statutes, authorizes release from incarceration rather than

decreases in sentence to control prison population. It works

more like parole than gain time and cannot be considered a

“gain time” measure. It also is the only population control

mechanism to survive the experimentation of the 1980s and

early 1990s.

These overcrowding relief mechanisms, particularly

administrative gain time and provisional credits, should not be

confused with “good time,” or basic, gain time found in s.

944.275, Florida Statutes. Basic gain time was the type at issue

in Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d

17 (1981). In Weaver, this Court concluded that basic gain time

was part of the punishment or sentence and any reduction in its

° Florida’s cancellation of release credits, after publication of a state

attorney general’s opinion that granting them was unlawful, is not an

isolated phenomenon. The same situation occurred in Stephens v.

Thomas, 19 F.3d 498 (10th Cir. 1994); cert. denied, —U.S. —, 115

S.Ct. 516, 130 L.Ed.2d 422 (1994)

° The petitioner implies (and one amicus argues) that the Attorney

General’s interpretation was wrong and that the Court should

examine its correctness. However, that would be inappropriate. In

Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535

(1983), this Court said that, in a habeas corpus case, it was bound by

the state court’s interpretation of state statutes.

” Section 2, chapter 89-526, Laws of Florida

7

availability “had the purpose and effect of enhancing the range

of available prison terms.” California Department of

Corrections v. Morales, — U.S. —, 115 S.Ct. 1597, 1602

(1995). Basic gain time, however, becomes part of the sentence

because it operates differently from overcrowding gain time.

Florida law provides that basic gain time comes off the top of

the inmate’s sentence upon arrival at the Florida DOC. Prison

officials have no discretion whether to immediately grant this

sort of gain time; its award is automatic. See Weaver, 450 U S.

at 26; s. 944.275(4)(a), Florida Statutes. And it can be taken

away only for specific reasons. Sections 944.275(5)" and

944.278°, Florida Statutes.

In contrast, overcrowding credits were not automatically

awarded. Instead, they became available only upon the

occurrence of an unpredictable and arbitrary event unrelated to

the petitioner’s original crime or his behavior in prison — the

prison population exceeding a threshold percentage of system

capacity. Whether the prison population hit the threshold

depended on three factors, all of which are beyond the control

of prison officials: 1) the rate of judicial commitments to prison,

2) the rate of discharges from prison based on normal

completions of sentences (as defined by the sentencing order

and basic gain time) and parole, and 3) the rate of prison

construction. Even when populations hit the threshold, prison

officials retained discretion in granting “overcrowding” gain

time. For instance, the Governor could decline to acknowledge

the DOC secretary’s certification under the administrative and

provisional release statutes. Under both such statutes, the

* Such as the failure to comply with the department’s rules.

* Basic gain time is forfeited for escape or an attempt to escape,

parole revocation, assault, threatening or knowingly endangering

another’s life, refusing to carry out an instruction, neglecting to

perform a duty or work, violating any state law or rule of the

department.

secretary had the discretion as to how much overcrowding gain

time to give, ranging from zero to 60 days per inmate. This is a

significant difference from basic gain time, where the Legislature

prescribed the amount based on the length of the inmate’s

sentence.

2. The Proceedings Below.

On April 14, 1986, the petitioner pleaded guilty to attempted

first. degree murder, armed burglary of a dwelling, and

possession of a firearm and was sentenced to 22 years in the

Florida prison system." J.A. 3, 33, 53. These crimes were

committed on October 27, 1985. Lodg. Doc. 144-145.

Upon his arrival at DOC, the department deducted 2,640

days of basic gain time from the petitioner's sentence in

accordance with section 944 275(4)(a), Florida Statutes (1985)

J.A. 50. During his imprisonment, petitioner received an

additional 958 days of incentive gain time under section

944 275(4)(b), Florida Statutes (1985). Jd.

After the 1987 enactment of the administrative gain time

Statute, s. 944.276, the department allocated 335 days of

administrative gain time to the petitioner. J.A. 50.

Between July 1988 and January 1991, after replacement of

administrative gain time by provisional credits, the petitioner

received 1,860 provisional overcrowding credits. J. A. 50

In 1989, the Florida legislature amended the provisional

credit statute, s. 944.277, to exclude inmates convicted of

murder or attempted murder from eligibility for provisional

credits. The limitation on eligibility applied prospectively only to

offenders with crimes committed on or after January |, 1990

'° Petitioner also pleaded to possession and delivery of cocaine in

two additional cases and was sentenced to three and one-half years in

each case. J.A. 49, 50. However, because the petitioner's release

date is controlled by the 22-year term, these sentences are not the

subject of this proceeding.

Section 6, chapter 89-100, Laws of Florida. In 1992, the

Legislature again amended s. 944.277, reenacting the

elimination of eligibility for murder-related offenses, but without

making that ineligibility prospective."

The lack of language making ineligibility prospective caused

confusion. The Florida Department of Corrections initially

interpreted the 1992 amendment to require them to continue

releasing inmates such as the petitioner based on accumulated

provisional credits. Therefore, the department released the

petitioner on October 1, 1992. J.A. 50.

However, in December 1992 questions were raised about

the department’s statutory authority to release, pursuant to

provisional credits, inmates like the petitioner who had been

convicted of a murder-related offense. In that month, at the

request of the secretary of DOC and other state officials, the

Florida Attorney General interpreted s. 944.277 and its 1992

amendments and concluded that the offense-based exclusions

contained in s. 944.277(1)(h) and (i) applied retroactively

effective July 6, 1992, to exclude from eligibility for provisional

credits all inmates who committed murder-related offenses

before the law's enactment — and to require retroactive

cancellation of all provisional overcrowding credits previously

allocated. (Later the Florida courts affirmed this interpretation

of DOC’s statutory authority. Griffin v. Singletary, 638 So.2d

500 (Fla. 1994); Waite v. Singletary, 632 So.2d 192 (Fla. 3d

DCA 1994).) DOC immediately canceled all provisional credits

allocated to offenders covered by the 1992 exclusions.

After publication of the Attorney Genera!’s opinion, DOC

realized that it had unlawfully released some inmates like the

petitioner because revoked credits had been counted toward

their release dates. Therefore, the department sought a warrant

for the petitioner’s return to custody. J. A. S51. On May 17,

1993, a state court issued a warrant for the petitioner’s arrest,

‘* Section 944.277(1)(i), Fla. Stat. (Supp. 1992).

10

and he was returned to custody on June 8, 1993, to complete

the remainder of his sentence. J.A. 51.

On August 18, 1994, the petitioner filed a petition for writ

of habeas corpus in the United States District Court for the

Middle District of Florida. J.A. 2-29. The petitioner alleged

that the retroactive cancellation of the provisional credits under

the 1992 amendments to s. 944.277(1) violated the ex post facto

clause, Article I, Section 10, clause 1, of the United States

Constitution. /d. The petitioner argued that the revocation of

overcrowding, or provisional release, credits previously

allocated to him and his return to custody was an

unconstitutional increase in the punishment for a crime after its

commission. J.A. 22-25.

The respondents opposed the petition, citing a line of state

and federal cases standing for the proposition that the

overcrowding release statutes were procedural in nature They

argued that overcrowding gain time was procedural because its

sole purpose was to provide an orderly mechanism to alleviate

the administrative crisis of prison overcrowding not to the

traditional purposes of punishment. J.A. 44-46.

On March 14, 1995, a United States magistrate judge

recommended that the petition be denied and dismissed with

prejudice on the ground that the 1992 amendments to section

944 .277(1) were adopted merely as a means to relieve prison

overcrowding, and, therefore, were not subject to the

prohibitions of the ex post facto clause. J.A 53-60. The

magistrate judge relied on Hock v. Singletary, 41 F.3d 1470

(11th Cir. 1995), cert. denied, — U.S. —, 116 S.Ct 715 (1996).

Id. On May 10, 1995, the district court adopted the magistrate's

- feport and recommendation, and denied the petition. J.A. 64.

Petitioner applied for a certificate of probable cause on June 8,

1995, which the district court denied on June 16, 1995. J.A. 65.

The petitioner reapplied for a certificate of probable cause to the

United States Court of Appeals for the Eleventh Circuit, which

was denied on October 16, 1995. J.A. 66. On January 10,

1996, petitioner filed with this Court a petition for writ of

11

certiorari. J.A. 67. On May 13, 1996, the Court granted

certiorari. J.A. 67.

SUMMARY OF ARGUMENT

This case requires the Court to determine whether

elimination of an inmate’s ability to use a special type of gain

time, which was intended solely to relieve prison overcrowding,

in order to secure early release violates the U.S. Constitution’s

ex post facto clause. In this case, the 1992 Florida Legislature

revoked “overcrowding” provisional credits given to the

petitioner and others like him who had been convicted of violent

crimes.

During the 1980s, in response to rapidly increasing prison

populations in a prison system under a consent decree

establishing a population cap, the Legislature gave executive

branch officials the discretion to reduce the sentences of state

prison inmates when prison populations threatened to exceed

the cap. Never quite satisfied with the balance struck between

public safety and responsible prison management, the

Legislature amended overcrowding gain time, formally known

as provisional credits, eliminating the ability to use such gain

time for classes of inmates such as the petitioner. And finally in

1993, the Legislature revoked all inmates’ overcrowding gain

time.

The Florida Legislature’s actions did not violate the

petitioner’s constitutional mghts or increase his punishment.

First, the overcrowding gain time statute under which the

petitioner received credits did not exist at the time of his

offense, October 1985. Therefore, it cannot be considered part

of the range of potential punishment to which he could be

subjected, because the ex post facto clause looks at the range on

the day of the offense.

Second, overcrowding gain time was a remedial measure

whose sole objective was to enable prison officials to control

12

inmate population levels and to maintain compliance with a

federal consent decree capping prison populations. It was never

intended to be part of the petitioner’s sentence or punishment.

Because of the strictly remedial nature of the overcrowding gain

time statute and the administrative problem it addressed,

because receipt of overcrowding credits was contingent upon

the occurrence of events outside the petitioners’ and the

respondents’ control, and because the statute provided no

expectation or entitlement, the petitioner had “fair warning” that

overcrowding gain time did not constitute part of the range of

available punishments to which he could be subjected. Thus, the

Legislature’s revocation of the petitioner’s overcrowding credits

did not enhance the range of punishment available at the time of

the commission of his crime. Instead, it only eliminated an

opportunity for early release and did not alter the definition of

the punishment to which the petitioner was susceptible.

Since the Florida Legislature did not alter the definition of

the petitioner’s potential punishment, its revocation of his

overcrowding credits did not violate the Constitution's ex post

facto clause.

In addition, the Court should defer to the Florida

Legislature's judgment about the handling of prison

overcrowding. The provisional overcrowding credit statute was

reasonably related to a legitimate penological interest in

maintaining security and promoting inmates’ health and welfare.

As such, the decision to revoke the credits is entitled to judicial

deference. The Court will show such deference if it regards

elimination of the petitioner’s provisional overcrowding credits

as merely the loss of an opportunity for early release that does

not trigger ex post facto protection.

ARGUMENT

I. REVOCATION OF #£THE PETITIONER’S

OVERCROWDING CREDITS DID NOT VIOLATE

THE CONSTITUTION’S EX POST FACTO CLAUSE

13

BECAUSE THEY DID NOT FORM PART OF THE

PUNISHMENT TO WHICH HIS CRIME WAS

SUSCEPTIBLE.

A. Revocation of the petitioner’s overcrowding gain time

credits did not violate the ex post facto clause because,

at the time of his offense, overcrowding gain time did

not exist.

The legislative history makes evident a surprising fact: the

statutes by which the petitioner received overcrowding gain time

did not exist on the date of his offense.

The petitioner’s offense occurred on October 27, 1985.

Lodg. Doc. 144-145.

He did not get emergency release credits, since such credits

were never given, Blankenship v. Dugger, 521 So.2d 1097,

1098 (Fla. 1988), and the Florida Legislature did not enact the

second overcrowding gain time statute until 1987, or the third

(the loss of which the basis of his claim) until 1988.

Thus, the overcrowding gain time credits the petitioner

received came under a statute enacted after the date of his

offense.

One essential purpose of the ex post facto clause is to

prohibit the state from increasing a convicted person’s potential

range of punishment as it stood on the date of the offense.

Weaver v. Graham, 450 U.S. at 28, 30-31 (“Critical to relief

under the Ex Post Facto Clause is not an individual’s right to

less punishment, but the lack of fair notice and governmental

restraint when the legislature increases punishment beyond what

was prescribed when the crime was consummated. Thus, even

if a statute merely alters penal provisions accorded by the grace

of the legislature, it violates the Clause if it is both retrospective

and more onerous than the law in effect on the date of the

offense.”); Collins v. Youngblood, 497 U.S. 37, 110 $.Ct. 2715,

2719 (1990) (citing Calder v. Bull, 3 Dall. 386, 390 (1798)).

14

In this case, overcrowding gain time cannot be a part of the

petitioner’s potential punishment because the provisionional

credit, or overcrowding gain time, statute did not exist in

October 1985. Revocation of his overcrowding gain time,

instead of increasing his punishment, simply returned him to the

same position in which he stood in October 1985. (The

petitioner attacks Hock v. Singletary, on which the lower courts

relied, as wrongly decided. However, Hock involved identical

ultimate facts: the inmate challenged retroactive application of

Florida’s control release statute, which took effect after he was

incarcerated. Although approaching the issue from the slightly

different angle, the Eleventh Circuit concluded there was no ex

post facto violation because retroactive application did not

affect “the quantum of punishment imposed.” Hock, 41 F 3d at

1472.)

The ex post facto clause does not bar Florida from giving

what amounts to after-the-fact clemency to address

overcrowding and then revoking it when conditions change.

Such actions do not “enhanc[e] the range of available prison

terms” or “impose additional punishment to the term then

prescribed’” in October 1985, the date of the petitioner's

offense. California Department of Corrections v. Morales, \\5

S.Ct. at 1602; Weaver v. Graham, 450 U.S. at 28. Whatever

one might feel about the wisdom of the public policy decisions

Florida made dealing with prison overcrowding, they were

Florida’s to make, uninhibited by the ex post facto clause, given

the facts of this case.

For this reason alone, the Court should affirm the decision

below.

B. Florida’s revocation of the petitioner's overcrowding

gain time credits did not violate the ex post facto

clause. Overcrowding gain time did not form part of

the petitioner’s potential punishment because the

statute provided fair warning that it was not part of

the range of punishments to which he was exposed.

15

Even if the provisional overcrowding credits statute existed

on the date of the petitioner’s offense, it still did not form part

of the potential punishment for his crime because the statute

provided fair warning that it was not included in the penalty.

One of the fundamental purposes of the ex post facto clause

is to ensure that citizens have fair warning of the nature of a

given crime and its potential punishment. Weaver v. Graham,

450 US. at 28; Dobbert v. State of Florida, 432 U.S. 282, 298,

97 S.Ct. 2290, 2300, 53 L.Ed.2d 344 (1977); Marks v. U.S.,

430 US. 188, 191, 97 S.Ct. 990, 992, 51 L.Ed.2d 260 (1977).

The thrust of Marks v. U.S. is that due process fair warning

cases provide guidance in the interpretation of the fair warning

component of the ex post facto clause. In Marks, the Court said

that “the principle on which the Clause is based — the notion

that persons have a right to fair warning of that conduct which

will give rise to criminal penalties — is fundamental to our

concept of constitutional liberty.” Jd, 430 at 191. The Court

went on to say that the same right to fair warning “is protected

against judicial action by the Due Process Clause of the Fifth

Amendment.” /d., at 192. Thus, the Court held that judicial

interpretation of a criminal statute retroactively applying hard

core pornography standards to impose criminal liability violated

the due process clause in the same way as a retroactive

legislative enactment violated the ex post facto clause. See also

Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12

L.Ed.2d 894 (1964). In a word, fair warning concerns were the

same under either clause. Therefore, since fair warning operates

the same way under the due process and ex post facto clauses,

the cases arising under one clause should apply to those falling

under the other

The “due process fair warning” doctrine arose from cases

dealing with criminal statutes challenged as unconstitutionally

vague. See, for example, Grayned v. City of Rockford, 408 US

104, 92 §.Ct. 2294, 33 L.Ed.2d 222 (1972); and Connally v.

General Construction Co., 269 U.S. 385, 46 S.Ct. 126 (1926).

The requirements of fair warning, which are rooted in “a rough

16

idea of fairness,” Colten v. Commonwealth of Kentucky, 407

U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584 (1972), are

straightforward: The statute must be clear enough that a person

of common intelligence can determine what is, or is not,

proscribed. Connally v. General Construction Co., 269 U.S. at

391"; Grayned v. City of Rockford, 408 U.S. at 108. Thus, this

Court requires that fair notice demands “explicit standards.”

Grayned, supra; but see U.S. v. Smith, 415 U.S. 566, 573, 94

S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974) (requiring reasonably

clear guidelines). Where one must guess at a statute’s meaning,

where different people are reasonably likely to get varying

impressions as to the statute’s meaning, where one must

speculate about its applicability, or where the statute is subject

to arbitrary or erratic application, the statute lacks the required

fair notice. Connally v. General Construction Co.., 269 U.S. at

391, 395; Bouie v. City of Columbia, 376 U.S. at 351 (“[njo

one may be required at peril of life, liberty or property to

speculate as to the meanir: of penal statutes. All are entitled to

be informed as to what tne State commands or forbids.”’).

Colautti v. Franklin, 439 U.S. 379, 390, 99 S.Ct. 675, 683. 58

L.Ed.2d 596 (1979) (fair notice is lacking where a statute “is so

indefinite that ‘it encourages arbitrary and erratic arrests and

convictions.””).

Vulnerability to arbitrary application is an important factor.

In U.S. v. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65

L.Ed. 516 (1921), this Court was presented with the question

whether a section of the Lever Act, a wartime measure

" “That the terms of a penal statute creating a new offense must be

sufficiently explicit to inform those who are subject to it what

conduct on their part will render them liable to its penalties is a well-

recognized requirement, consonant alike with ordinary notions of fair

play and the settled rules of law; and a statute which either forbids or

requires the doing of an act in terms so vague that men of common

intelligence must necessarily guess at its meaning and differ as to its

application violates the first essential of due process of law.”

17

regulating the sale of food, was unconstitutionally vague. The

precise language at issue was “made unlawful for any person

willfully . . . to make any unjust or unreasonable rate or charge

in handling or dealing in or with any necessaries . . .” The court

concluded that the phrase was unconstitutionally vague because

what constituted an unreasonable rate or charge varied with

economic conditions. Jd, 255 U.S. at 90 n. 2. Because

“unreasonable rates” depended on “the vagaries of supply and

demand, factors over which [the defendant] had no control,”"

Mr. Cohen could have no idea what conduct was proscribed.

In the present case, we are not concerned with the definition

of criminal behavior. Rather, we are concerned with the

question of what fair warning Florida statutes gave of the

prescribed punishment for the petitioner’s crime. Thus, the fair

warning doctrine, applied to the definition of punishments, can

be stated: whether a person of common or reasonable

intelligence would know that a particular statute was part of the

“range of available prison terms” for the petitioner’s crime. To

reach the answer, one must ask: Is the statute which is the

target of the inquiry explicitly included? Must one speculate or

guess as to its applicability? Is the statute subject to arbitrary or

erratic application?

Although the court has rejected an entitlement or vested

nights analysis for ex post facto claims, Weaver v. Graham, 450

U.S. at 29 n. 13, one might easily summarize all the questions in

the preceding paragraph as: do Florida statutes create a

reasonable expectation that the petitioner’s sentence will be

reduced by overcrowding gain time? Questions about explicit

inclusion, speculation or guesswork about applicability, and

arbitrary or erratic enforcement can be rolled together in this

way because they all have, at their heart, an assumption about

reasonable expectations.

*? US. v. Powell, 423 U.S. 87, 92-93, 96 S.Ct. 316, 320, 46 L.Ed.2d

228 (1975).

18

In this case, the petitioner lacked any reasonable expectation

of overcrowding credits. As the Eleventh Circuit noted in Hock

v. Singletary, 41 F.3d at 1472-1473, overcrowding release “is

based on an arbitrary and unpredictable determinant, the prison

population level [so] 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.” The unpredictability, dependency on an essentially

arbitrary event, and erratic application of overcrowding gain

time distinguish it from basic gain time, whose award is

automatic and predictable in amount. /d., 41 F.3d at 1473

Moreover, eligibility for provisional overcrowding credits

depends on the occurrence of other unpredictable events. The

Governor had to concur that there was an overcrowding crisis.

There is nothing in the statute requiring him to concur. Section

944 277(1), Florida Statutes (Supp. 1992). Furthermore. the

amount of provisional overcrowding credits the petitioner could

get was subject to the discretion of the DOC secretary, who

could award between zero and 60 days.

Thus, because the availability of provisional overcrowding

gain time was erratic and subject to unpredictable fluctuations

in prison population and to the discretion of the Governor and

the secretary, the petitioner had no reasonable expectation that

he would get any credits. Lacking this reasonable expectation,

he had fair warning that overcrowding gain time was not a part

of the range of available punishment for his crime. Since the

petitioner had fair warning that provisional overcrowding gain

time was not part of the range of available punishment,

revocation of that gain time did not offend the ex post facto

Clause.

C. Anticipating early release because of overcrowding

was too subjective an expectation to justify ex post

facto protection.

19

The petitioner argues that he reasonably expected to get

provisional overcrowding credits at the time he pleaded guilty,

so they should be regarded as part of his sentence. Petitioner s

brief at 32-35. He bases his reasonable expectation on two

points. First, he contends that because the prison system's

population was “burgeoning” an award of overcrowding credits

was a “near certainty”. As a near certainty, he implies that he

contemplated, at the time of his guilty plea, that he would

receive early release because of prison overcrowding. (He

provides no evidence that he actually so contemplated,

however.) ft

The petitioner cannot have anticipated receiving provisional

overcrowding credits because the provisional credit statute did

not exit in April 1986, when he pleaded guilty. |

Assuming that the statute existed at the time of his plea, if

the petitioner truly anticipated early release because of

overcrowding at the time of his plea, that expectation was

speculative. His thinking is like that of a Wall Street trader, who

says to himself, “The market is going up, therefore I’m sure to

make a profit.” In fact, we recognize such thinking as mere

speculation, a wish dependent on social and economic factors

outside anyone’s control. As we know, the market can suddenly

go down, as well as up, and upward trends often are interrupted

by dives.

Suppose, for example, that after the petitioner's plea, the

Florida Legislature had decided to embark on a bigger prison

building program during the 1980s (rather than spending money

on schools and roads). Or suppose that under the existing

building program a prison was opened after his plea, reducing

prison populations below the cap. In either situation under the

petitioner’s theory, his expectation would still be reasonable

because no building program existed at sentencing to disrupt his

expectation. The petitioner’s theory forces the Court to examine

prison conditions, legislative appropriations, the prison building

program, prison population trends, the rate of prison releases

and other factors as they stood on the day of sentencing for any

20

inmate with an overcrowding gain time complaint to determine

whether the inmate’s expectation was reasonable. The need for

such a day-by-day examination of a variety of fluctuating factors

exposes the speculative nature of the expectation. Being merely

speculative, the petitioner’s expectation is subjective.

Like the Eleventh Circuit in Hock v. Singletary, the Florida

Supreme Court pointed out the inherently speculative nature of

provisional overcrowding credits:

[T]he 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 [sic] 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 of

sentencing or in deciding to enter a plea bargain.

Griffin v. Singletary, 638 So.2d at 501

Even the notion that one should examine the petitioner’s

expectation on the day of sentencing is flawed. Under the ex

post facto clause, the critical date is not the date of the

sentencing or of the plea, but the date of the offense. Weaver,

450 US. at 28, 30-31.

Second, the petitioner contends that there was no more

speculation involved in the receipt of overcrowding gain time

than there was in the receipt of basic gain time. The structure of

these very different statutes disproves the point. The award of

basic gain time is automatic upon commitment to DOC. Section

944 275, Florida Statutes. Basic gain time comes right off the

top of the sentence imposed by the state court, yielding a release

date by simple arithmetic: Judge’s sentence - basic gain time

(less time lost for disciplinary infractions) = release date. See

Griffin v. Singletary, 638 So.2d at 501.'* Not so overcrowding

gain time, which required a surge in prison population above a

specified threshold of prison bed space, a notification of that

event to the Governor by the DOC secretary, a written

acknowledgment by the Governor (which he was not required

to give if, for some reason, he thought overcrowding releases

would be improvident) and, finally, the decision by the secretary

as to how much overcrowding gain time to award inmates. See

s. 944.277, Florida Statutes (1988 Supp., 1989 and Supp.

1992). In short, overcrowding gain time was contingent upon

the happening of several events. Basic gain time is not

contingent. Griffin v. Singletary, supra.

Nonetheless, Weaver v. Graham offers some support for an

argument that if “a prisoner’s eligibility for reduced

imprisonment is a significant factor entering into both the

defendant’s decision to plea bargain and the judge’s calculation

of the sentence to be imposed,” id., 450 U.S. at 32, it should

enjoy ex post facto protection. The Weaver Court used this

possibility as a reason to avoid determining whether basic gain

time was actually a part of the punishment at the time of

sentencing, implying that such a decision was unnecessary.

The Court should recede from this part of Weaver. It is out

of step with Morales’ tight focus on the actual penalty and looks

instead to “disadvantage” and “opportunity for early release”

considerations Morales’’ and Collins rejected. It is also

inconsistent with the underlying ex post facto principle that the

critical date is the date of the offense. In addition, it injects a

‘4 The court said that under Florida law, incentive and basic gain

time were markedly different from provisional credits. “These kinds

of gain time were reasonably quantifiable at the time of sentencing

and thus were a factor that could be taken into account in deciding to

enter a plea bargain.”

*° Morales, 115 §.Ct. at 1602 n. 3.

22

subjective and often speculative element into the analysis. The

a map be wary of tying fundamental constitutional

imitations On state action to the subjective speculations of

criminal defendants at sentencing time.

D. Revocation of the petitioner's overcrowding gain time

amounted only to loss of an opportunity to take

advantage of provisions of early release.

In recent years, ex post facto law had gone astray. In

California Department of Corrections v. Morales and Collins

v. Youngblood, this Court made a course correction. The Court

said that the sole focus of an ex post facto inquiry is not whether

someone has suffered a disadvantage or lost an “opportunity to

take advantage of provisions for early release,””, but “whether

any such change alters the definition of criminal conduct or

increases the penalty by which a crime is punishable ” Morales,

115 S.Ct. at 1602 n. 3 (emphasis the Court’s).

Provisional overcrowding gain time was not part of the

penalty by which the petitioner’s crime was punishable Thus,

revocation of his overcrowding gain time represented only the

loss of an Opportunity to take advantage of provisions of early

release, a deprivation which should not offend the Constitution

Citing Weaver, the petitioner urges the Court to consider

revocation of the opportunity to secure early overcrowding

release as an increase in his sentence. There is a logical

discontinuity here, which the Morales Court apparently sensed

It is hard to see how the loss of an opportunity to decrease a

sentence imposed by the court (as automatically modified by

— ~~ actually results in an increase.

s Mora S implies, it is fair, sensible, good public polic

and consistent with the ex post facto clause to treat

overcrowding gain time for what it is, a form of clemency,

granted at the state’s discretion, that constitutes only an

opportunity for early release and is not part of the petitioner’s

actual sentence. Since it is not part of the actual sentence.

23

removing the opportunity does not increase the sentence. In

reality, the sentence remains unchanged.

Il. THE 1992 REVOCATION OF THE PETITIONER’S

OVERCROWDING GAIN TIME CREDITS DID NOT

OFFEND._THE POLICIES UNDERLYING THE EX

POST FACTO CLAUSE.

As the petitioner points out, this Court has identified three

policy considerations underlying the ex post facto clause:

1. To restrain the national and state legislatures from

enacting arbitrary or vindictive legislation. Miller v.

Florida, 482 U.S. 423, 429, 107 S.Ct. 2446, 96 L.Ed.2d

351 (1987),

2. To provide fair warning of the elements of a crime and

the nature of its punishment. Jd , 482 U.S. at 430, and

3. To “uphold{] the separation of powers by confining the

legislature to penal decisions with prospective effect and

the judiciary and executive to applications of existing

law.” Weaver v. Graham, 450 U.S. at 29 n. 10.

None of these policies were offended by the 1992 revocation

of the petitioner’s overcrowding gain time.

First, the 1992 amendment eliminating overcrowding gain

time for the petitioner was neither arbitrary nor vindictive. It

did not single him out personally, like a bill of attainder. It did

not ifcrease his punishment from that in effect on the day he

committed his crime. Indeed, the Florida Legislature did not

intend its overcrowding enactments to be a form of punishment.

It acted solely to address a pressing issue of prison management

to give prison officials the statutory tools they needed to keep

prison populations under a federally mandated cap. In doing so,

the Legislature had to balance issues of inmate nights under a

federal consent decree and the Eighth Amendment against public

safety. As often happens, the balance was not struck

immediately. The scale wobbled in one direction and the other

until it steadied. The Florida Legislature’s action must be seen

24

in that light, not as a vindictive, arbitrary act. Eliminating the

eligibility of violent offenders to gain early release due to prison

crowding was a reasonable act. See Keeton v. State of

Oklahoma, 32 F.3d 452, 453 (10th Cir. 1994).

We have already dealt above with the second ex post facto

On the third point, separation of powers, the petitioner

argues that revocation of overcrowding gain time injects the

Legislature into the sentencing process in violation of separation

of powers principles. While maintaining separation of powers

between courts and legislatures is, in our system, a fundamental

Constitutional goal, it is not the province of the federal courts to

police the forays of state legislatures into the domains of state

courts. There is no federal constitutional prohibition against

state legislative invasions of the powers of their local courts.

Rather, these are questions of state law, which should be

remedied in the state courts under state constitutional

limitations. A federal court should only concern itself with the

effect of legislative action, which is the objective of Morales’

tight focus on whether an enactment retroactively increased the

punishment for a crime after the date of its occurrence.

In any event, Florida’s revocation of overcrowding gain time

did not offend separation of powers principles. In Florida, state

executive branch officials can act only pursuant to constitutional

or statutory authority. State ex. rel. Smith v. Jorandby, 498

So.2d 948 (Fla. 1986). State prison officials have no power to

release inmates to control prison populations without statutory

authority. In order to control prison populations, the Florida

Legislature made a policy judgment that such authority was

necessary. Later, it made a similar policy judgment that part of

that grant of authority was improvident and withdrew it Neither

act involved interference in the petitioner's actual sentence or

trampled on executive or judicial branch prerogatives

Ill. THE COURT’S PRISON DEFERENCE CASES

AND FEDERALISM AND COMITY CONCERNS

25

REQUIRE THE COURT TO AFFIRM THE

DECISION BELOW.

In other cases involving inmates’ fundamental rights, this

Court has applied a standard designed to take into account the

deference and restraint federal courts should exercise when

reviewing challenges to the constitutionality of regulations

governing prison management. Thornburgh v. Abbott, 490 US.

401, 407-408, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989),

O'Lone v. Estate of Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 96

L.Ed 2d 282 (1987).

Since provisional overcrowding credits are intended solely

for prison management, there is no reason why this Court

should not employ a deference-tempered standard here. The

failure to do so is inconsistent with the deference this Court

traditionally accords states’ efforts to cope with the difficult job

of prison management. See Lewis v. Casey, — U.S. —, 116

S.Ct. 2174 (1996); Turner v. Safely, 482 U.S. 78, 89, 107 S.Ct

2254, 96 L.Ed.2d 64 (1987); Bell v. Wolfish, 441 U.S. 520, 99

S.Ct. 1861, 60 L_Ed.2d 447 (1979); Jones v. North Carolina

Prisoners Labor Union, 433 U.S. 119, 97 S.Ct. 2532, 53

L.Ed 2d 629 (1977), Pell v. Procunier, 417 U.S. 817, 94 S.Ct

2800, 41 L.Ed.2d 495 (1974). In matters dealing with prison

management, this Court has said in these cases that federal

courts should defer to the judgment of prison officials if the

challenged policy or practice is reasonably related to a legitimate

penological interest. Turner, 482 U.S. at 89, 107 S.Ct. at 2261

(“when a prison regulation impinges in inmates’ constitutional

rights, the regulation is valid if it is reasonably related to

legitimate penological interests. In our view, such a standard 1s

necessary if ‘prison administrators .. . and not the courts, [are)

to make the difficult judgments concerning institutional

operations.”); Procunier v. Martinez, 416 U.S. 396, 404-405,

94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974) (deference to

prison administrators’ decisions was appropriate because judicial

involvement in the details of prison management was beyond the

26

competence of the courts and these state officials were in a

better position to make the delicate judgments that prison

management requires.) The central issue in 7urner was whether

Pe a santana ona atten entra

reviewing challenges to prison regulations addressing

legitimate penological interest. Opting for a standard that

incorporated appropriate deference, the Court rejected strict

scrutiny because applying that test to “day-to-day judgments” of

prison officials “would seriously hamper their ability to

anticipate security problems and to adopt innovative solutions

to the intractable problems of prison administration.” Jd. (In

the Court’s deference cases, strict scrutiny was a rigid, narrow,

difficult test. It is not unlike the rigid, narrow ex post facto test

the petitioner proposes — the loss of an opportunity to subtract

a day off time served amounts to an increase in his sentence and,

therefore, an ex post facto violation.)

The Court’s deference cases also involved challenges to

executive branch policies. However, there is no reason why the

Court should not defer to a prison policy enacted by a state

legislature. It is, after all, the job of legislatures to establish

prisons, to set the policies by which they are run, and to

delegate authority to the executive branch to carry those policies

out. Legislatures are a step removed from direct operation, but

since they are still directly involved in the setting of prison

policies and prison operation, they must consider the same

minutia as the executive branch and are better positioned than

courts to make the delicate judgments that prison management

requires. In fact, in Turner, this Court recognized that legislative

acts concerning prison management may be entitled to

deference. Id., 482 U.S. at 84-85 (“Running a prison is an

inordinately difficult undertaking that requires expertise,

planning, and the commitment of resources, all of which are

peculiarly within the province of the Legislative and Executive

Branches of Government. Prison administration is, moreover, a

task that has been committed to the responsibility of those

branches, and separation of powers concerns counsel a policy of

27

judicial restraint.” Emphasis added.)"*. Therefore, legislative

decisions that are rationally related to a legitimate penological

interest should be given the same degree of deference.

Provisional, or overcrowding, credits are rationally related

to legitimate penological interests. One such interest is internal

security, the central issue of prison management. Pell v.

Procunier, 417 U.S. at 823, 94 S.Ct. at 2804. When the district

court in Costello issued its preliminary injunction ordering

reductions in Florida’s prison population because of

overcrowding, it concluded based on the facts presented that

there was a relationship between overcrowding and the risk of

inmate assaults. Costello v. Wainwright, 397 F.Supp at 38.

Certainly prevention of violence is an internal security matter.

The district court also concluded that, based on the facts

presented, overcrowding in Florida’s prisons affected inmate

health and general welfare. Jd. Therefore, controlling prison

population and preventing overcrowding is a legitimate

penological interest. See also Keeton v. State of Oklahoma, 32

F.3d 451, 452 (10th Cir. 1994) (“We agree with the district

court that the state has a legitimate interest in reducing prison

overcrowding and thereby diminishing the many attendant

difficulties related to overcrowding.”), Shifrin v. Fields, 39 F.3d

1112, 1114 (10th Cir. 1994) (Oklahoma’s analogue to

provisional overcrowding credits was rationally related to a

legitimate penological interest).

Providing early release mechanisms, such as provisional

overcrowding credits, is rationally related to these interests.

They allow a direct way of reducing the inmate population.

It is also reasonable and serves legitimate penological

interests to release one class of inmates based on the nature of

their crime and not another. See Keeton v. State of Oklahoma,

‘© Turner, however, did not involve a legislative policy. Turner

challenged Missouri Division of Corrections rules governing inmate

correspondence and marriage.

32 F.2d at 452 (“the state has a legitimate interest in designating

that only prisoners who have been convicted of lesser crimes or

who are subject to no higher than medium security may be

released so as to avoid a greater threat to society.” Therefore,

Oklahoma’s analogue to provisional overcrowding credits was

constitutional. ); Shifrin v. Fields, 39 F 3d at 1114."

Therefore, the Court should not invalidate Florida’s

revocation of the petitioner’s provisional overcrowding credits.

Rather, it should view revocation as merely the elimination of an

opportunity to enjoy early release from prison which does not

trigger the ex post facto clause. Such a test is consistent with

the Court’s objective in Zurner to fashion “a standard of review

of prisoners’ constitutional claims that is responsive both to the

‘policy of judicial restraint regarding prisoner complaints and

vol the need to protect constitutional rights.” Jd, 482 US. at

17 «

The district court correctly determined that Appellant failed to

make a viable argument that excluding inmates from emergency time

credits because of their status as violent or repeat offenders violates

the Equal Protection Clause, the Due Process Clause, or the Eighth

Amendment.”

® Given the evolution of deference doctrine as reflected in Turner.

the Court may wish to reexamine the reasoning and the result in

Weaver v. Graham. A case can be made that the deference doctrinc.

which wasn’t considered in Weaver, requires the federal courts to

uphold retroactive changes in basic gain time against an ex post facto

challenge. Whether basic gain time, the kind at issue in Weaver. is

part of the punishment or represents an opportunity for early release,

like provisional overcrowding gain time, is a close question. Basic

gain time can easily be regarded more as an opportunity for carly

release and a behavior management tool than as a part of the

sentence. Furthermore, basic gain time reasonably serves the

legitimate penological interest of security maintenance because, as a

behavior management tool, it preserves prison security.

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If the Court fails to afford this degree of deference, it will

stifle the sort of innovative management experimentation it

sought to protect in Turner.

Comity and federalism concerns also militate against

interference in Florida’s efforts to control its prison

population.’? Management of state prisons is a fundamental

exercise of state sovereignty. The ability to control population

size is an important management tool. If the Court decides that

overcrowding gain time falls under the ex post facto clause, it

will significantly and unreasonably limit Florida’s ability to

manage its prisons, without having furthered the underlying

purposes of the ex post facto clause.

CONCLUSION

For these reasons, Respondent Butterworth asks the Court

to affirm the decision below.

RESPECTFULLY SUBMITTED,

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

JASON VAIL

Assistant Attorney General

Fla. Bar no. 298824

Counsel of Record

Office of the Attorney General

Building 2, room 204

1317 Winewood Blvd.

*? “Where a state penal system is involved, federal courts have . .

additional reason to accord deference to appropriate prison

authorities.” Turner, 482 U.S. at 85.

30

August 26, 1996

Tallahassee, FL 32399

(904)488-2381

(904)922-3947 (fax)

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