# Respondents Brief — Lynce v. Mathis

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## Record

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

## Text

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.

29

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0790%3A06. Public record. Not legal advice.