Petition for Writ of Certiorari — Martinez v. Raske

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1989

BOB MARTINEZ, et al.,

Petitioners,

Vv.

JEFFREY RASKE,

Respondent.

‘ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL OF FLORIDA

SUSAN A. MAHER

ASSISTANT ATTORNEY GENERAL

(Counsel of Record)

DEPARTMENT OF LEGAL AFFAIRS

The Capitol Sai

Tallahassee, Florida 32399-1050

(904) 488-9935

COUNSEL FOR PETITIONERS

QUESTIONS PRESENTED

1. Does the Statutory amendment to Section

944.275, Florida Statutes (1983), reducing

the number of days of discretionary

gaintime available from a potential of 37

days to a potential of 20 days, violates

the ex post facto prohibition of the

federal constitution as applied to a

prisoner who had been convicted of an

offense occurring prior to the effective

date, where the award of gain time is

discretionary and conditioned upon factors

other than good behavior and where the

underlying purpose of . the statutory

provision is administrative rather than

penal.

2. Do the prohibitions of the ex post

facto clause of the United States Constitu-

tion extend to matters of a state's prison

administration which utilize gain time

awards to accomplish administrative goals.

PARTIES TO THE PROCEEDINGS BELOW

The following is a list of all parties

appearing in the proceedings before the

United States Court of Appeals for the

Eleventh Circuit who are petitioners or

respondents before this Court:

Petitioners

Bob Martinez, Governor,

State of Florida

Richard L. Dugger, Secretary,

Florida Department of

Corrections

Respondent

Jeffrey Raske, a prisoner in

the custody of the Florida

Department of Corrections

— =

TABLE OF CONTENTS

PAGE

Questions Presented i

Parties to the Proceedings Below ii

‘Table of Contents iii

Table of Authorities ae iv

Opinions Below 2

Jurisidiction 2

Constitutional and Statutory

Provisions Involved | ¥

Statement of the Case 3

Reasons for Granting the Writ 12.

Conclusion | 27

Certificate of Service | 28

- 444. -

TABLE OF AUTHORITIES

CASES PAGES

Blankenship v. Du er,

521 So.2d 1091 (Fla. 1988) 22

Calder v. Bull,

3 U.S. (3 Dall.) 386 (1798) 14, 15, 25

Dobbert v. Florida,

432 U.S. 282 (1977) 15, 18

Fletcher v. Peck,

10 U.S (6 Cranch) 87 (1810) 15

Kennedy v. Mendoza-Martinez,

372 U.S. 144 (1963) 16, 17, 18

Miller v. Florida,

482 U.S. (1987) 15

Portley v. Grossman,

444 U.S. 1311 (1980) 18

Raske v. Martinez,

876 F.2d 1496 (llth Cir. 1989) 9, 10,

ll, 21

Weaver v..Graham,

450 U.S. 24 (1981) passim

OTHERS

Ch. 131, §8, 1983 Fla. Laws 6

Ch. 304, §1, 1978 Fla. Laws 6

-iv-

Section 944.275,

Florida Statutes

Section 944.275(1),

Florida Statutes (1979-1981)

Section 944.275(2)(a),

Florida Statutes (1979-1981)

Section 944.275(3)(a),

Florida Statutes (1979-1981)

Section 944.275(1),

Florida Statutes (1983)

Section 944.275(4)(a),

Florida Statutes (1983)

Section 944.275(4)(b),

Florida Statutes (1983)

Section 944.276,

Florida Statutes (1987)

Section 944.277,

Florida Statutes (1988 Supp.)

Supreme Court Rule 20

28 U.S.C. §1254(1)

28 U.S.C. §2101(c) -

United States Constitution

Article I, Section 9

United States Constitution

Article I, Section 10

- V-

IN THE SUPREME OURT OF THE UNITED STATES

October Term, 1989

BOB MARTINEZ, et al.,

Petitioners,

Vv.

JEFFREY RASKE,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Petitioners, Bob Martinez, Governor of

Florida, and Richard L. Dugger, Secretary

of the Florida Department of Corrections,

petition this Court for a writ of

certiorari to review a judgment of the

United States Court of Appeals for the

Eleventh Circuit.

OPINIONS BELOW

The July 11, 1989, decision of the

United States Court of Appeals for the

Eleventh Circuit affirming the district

court is reported at 876 F.2d 1496 (llth

Cir. 1989). (App. A-1.)

The opinion and judgment of the United

States District Court for the Middle

District of Florida is not reported. (App.

A-28.)

JURISDICTION

The decision of the court of appeals

was entered on July 11, 1989. This

petition has been filed and docketed within

the period established by the Supreme Court

Rule 20 and 28 U.S.C. 210l(c).

This Court has jurisdiction pursuant to

28 U.S.C. 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The constitutional and statutory

provisions involved are:

United States Constitution

Article I, Section 10

Section 944.275,

Florida Statutes (1983)

Section 944.275,

Florida Statutes (1981)

The pertinent text of the foregoing

constitutional provisions and statutes is

reproduced in the appendix.

STATEMENT OF THE CASE

The facts pertinent to consideration of

this petition appear in the decision of the

Circuit court.

~The respondent, Jeffrey Raske, is an

inmate in the Florida prison- system,

presently serving three concurrent twenty-

five year prison sentences imposed by the

circuit court of Broward County, Florida,

for a series of robberies that occurred in

1982. At the time of Raske's offenses,

Florida law provided the following formula

for the calculation of gain time:

(1) The [Department of

Corrections] shall grant’ the

following deductions for gain-

time on a monthly basis, as

earned, from the sentences of

every prisoner who has

committed no infraction of the

rules of the department or of

the laws of the state and who

has performed in a satisfactory

and acceptable manner the work,

duties, and tasks assigned, as

follows:

(a) Three days per month off

the first and second years of

the sentence;

(b) Six days per month off

the third and fourth years of

the sentence; and

(c) Nine days per month off

the fifth and all succeeding

years of the sentence. ...

(2)(b) The department is

authorized to grant additional

gain-time allowances on a

monthly basis, as earned, up to

1 day for each day of

productive or institutional

labor performed by any prisoner

who has committed no infraction

of the rules of the department

or of the laws of this state

and who has accomplished, in a

satisfactory and acceptable

manner, the work, duties, and

tasks assigned. Such gain-time

allowances under this section

shall be awarded on the basis

of diligence of the inmate, the

quality and quantity of work

performed, and the skill

required for performance of the

work.

(3) (a) An inmate who

faithfully performs the

assignments given to him in a

conscientious manner over and

above that which may normally

be expected of him, against

whom no disciplinary report has

been filed within the preceding

6 months, and whose conduct,

personal adjustment, and

individual effort toward his

own rehabilitation show his

desire to be a better than

average inmate or who

diligently participates in an

approved course of academic or

vocational study may be

granted, on an individual

basis, from 1 to 6 days per

month extra gain-time to be

deducted from the term of his

sentence.

Ch. 304, §1, 1978 Fla. Laws 870, 870-71,

codified, as amended, at Fla. Stat.

§944.275(1), (2)(a), (3)(a) (1979-1981).

In 1983, the Florida legislature

amended section 944.275 to provide as

follows:

(1) The [department] is

authorized to grant deductions

from sentence in the form of

gain-time to encourage

satisfactory prisoner behavior,

to provide incentive for

prisoners to participate in

productive activities and to

reward prisoners who perform

outstanding deeds or services.

(4)(a) As a means of

encouraging satisfactory

behavior, the department shall

-grant basic gain-time at the

rate of 10 days for each monthy

of each sentence imposed on a

prisoner. .. .

(b) For each month a prisoner

works diligently . . . the

department may grant up to 20

days of incentive gain-time,

which shall be credited and

applied monthly.

Ch. 131, §8, 1983 Fla. Laws 442, 442-43,

codified at Fla. Stat. 944.275(1), (4)(a)-

(b) (1983).

The 1983 revisions to the gain time

statute increased the amount of basic gain

time inmates were to be awarded for general

good behavior from a three/six/nine day

variable rate to ten days per month; the

potential incentive gain time available to

prisoners, however, decreased from thirty-

seven to twenty days per month.

The Florida Department of Corrections

has applied the method of awarding

incentive gain time adopted in 1983 to all

inmates, including those convicted prior to

the 1983 enectaent .

Raske sought a writ of habeas corpus,

Claiming that the 1983 statute which

altered the amount and calculation of gain

time constituted an ex post facto law as

applied to prisoners such as himself who

were convicted of offenses that occurred

prior to the statute's passage. The

district court granted the writ. (App. A-

28.) Relying primarily on this Court's

decision in Weaver v. Graham, 450 U.S. 24

(1981), the district court found that the

1983 statute substantially altered the

consequences attached to a crime already

completed by changing’ the quantum of

punishment. (App. A-38.) The . district

court rejected the Department's argument

that the potential for earning’ work

(incentive) gain time was speculative and,

therefore, did not affect the quantum of

punishment which can be assessed at the

time a crime is committed. (App. A-40,

41.) The district court further

specifically declared that the procedures

for awarding work (incentive) gain time

were no more discretionary than the

procedures for awarding automatic gain time

in Weaver v Graham, supra. (App. A-4l,

42.)

A panel of the court of appeals

affirmed the district court decision.

Raske v. Martinez, 876 F.2d 1496 (llth Cir.

1989). (App. A-1l.) The appeals court,

like the district court, found the

principles announced in Weaver v. Graham,

Supra, to be controlling. Raske, 876 F.2d

at 1498. (App. A-9.) Relying on dicta in

Weaver specifically directed to the nature

and purpose of extra gain time, the State

of Florida raised several arguments to

distinguish between the automatic (basic)

gain time addressed in Weaver and the

discretionary work (incentive) gain time at

issued in Raske. Id. at 1499. (App. A-1l-

21.) Specifically noting that the Weaver

MI "9

~

:

court observed that the award of extra gain

time is “purely discretionary", Weaver, 450

U.S. at. 35, the State of Florida argued

that the award of such gain time is too

speculative to substantialiy affect the

quantum of punishment which can be assessed

at the time a crime is committed and thus

cannot satisfy the second prong of the

Weaver test. The appeals court conceded

that a prisoner may be less likely to earn

work (incentive) gain time than automatic

(basic) gain time and further that a

prisoner who performs his duties only in an

adequate manner may indeed be better off

under the 1983 act. Raske, 876 F.2d at

1500, 1501. (App. A-19, 23.)

Nevertheless, the circuit court determined

that even though a prisoner may diligently

perform his assigned duties so as to earn

the full thirty-seven days previously

available, the elimination of the

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opportunity to do so is sufficient to make

the 1983 amendments ex post facto as

applied to Raske. Id. at 1500. (App. aA-

21-21.)

The State of- Florida also contended

that wrone underlying purpose of incentive or

work gain time is not punitive or penal in

nature and, therefore, outside the

prohibitions of the ex post facto clause.

The appeals court did not address this

argument.

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REASONS FOR GRANTING THE WRIT

The Eleventh Circuit Court of Appeals

has decided an important question of

federal law which has not been, but should

be, settled by this Court. The initial

question before the Sant is.» whether the

1983 amendment of Florida Statute 944.275,

reducing work or incentive gain time from a

potential of 37 days per month to a

potental of 20 days, violates the ex post

facto prohibition of the federal

constitution as applied to a prisoner who

had been convicted prior to the effective

date, where the award of gain time is

discretionary and conditioned upon factors

other than good behavior and where the

underlying purpose of the statutory

provision is administrative rather than

penal. However, the Petitioners suggest

that the ultimate question before this

Court, and the one which should be settled,

-12--

is whether the ex post facto prohibition of —

the United States Constitution extends to

matters of prison administration which are

accomplished through the - discretionary

award of gaintime. If so, then the ability

for Florida (and other states) to

effectively administer the burgeoning

prison ceili niin will be eroded in that

legislative and departmental mechanisms

designed to motivate, manage, rehabilitate,

Or control the ever-expanding population

will be constrained merely because they are

predicated upon awards which reduce prison

time.

The framers of the Constitution

considered the ex post facto prohibition so

important that it appears twice -- once in

Article I, Section 9, forbidding’ the

Congress from passing any ex -post facto

law, and again in Article I, Section 10,

placing the same limitation upon. the

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states. Obviously, the framers, in their

providence and not far removed from the

excesses of tyranny, included the ex post

facto clauses as an added precaution to

future oppression. However, as noted by

Justice Chase in Calder v. Bull, 3 U.S. (3

Dall.) 386, 390 (1798), the seminal case in

ex post facto analysis:

The prohibition, “that no state

shall, pass any ex post facto

law," necessarily requires some

explanation; for, naked _ and

without explanation, it is

unintelligible, and means

nothing.

Justice Chase went on to state what

laws he considered to be ex post facto

laws, "within the words and the intent of

the prohibition":

lst. Every law that makes an

action done before the passing

of the law, and which was

innocent when done, criminal;

and punishes such action. 2d.

Every law <hat aggravates a

crime or makes it greater than

it was, when committed. 3d.

Every law that changes’ the

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a a -

punishment, and inflicts a

greater punishment, than the

law annexed to the crime, when

committed. 4th. Every law that

alters the legal rules. of

evidence, and receives less, or

different testimony, than the

law required at the time of the

commission of the offense, in

order to convict the offender.

Id. at 390.

There is no doubt that one of the

objectives underlying the ex post facto

prohibitions is to provide fair notice and

to foster governmental restraint when a

legislature increases punishment beyond

what was prescribed when the crime was

consummated. Calder v. Bull, 3 U.S. (3

Dall) at 387-388; Fletcher v. Peck, 10 U.S.

(6 Cranch) 87, 138 (1810); Dobbert v.

Florida, 432 U.S. 282, 298 ‘1977); Weaver

v. Graham, 450 U.S. 24, 28-29 (1981);

Miller v. Florida, 482 U.S. , 107 S.Ct.

2446 (1987). The Raske court holds that

the 1983 amendment to Section 944.275,

Florida Statutes, lowering the potential to

earn additional gaintime for labor

performed, violates the third prohibition

enumerated by Justice Chase -- that is, the

reduced availability of incentive gaintime

somehow changes the "punishment", and

inflicts a greater "punishment" than

provided for at the time Petitioner

committed his crime. The logical inquiry

which follows is "What constitutes

‘punishment '?".,

In Kennedy v. Mendoza-Martinez, 372

U.S. 144, 168-69, 83 S.Ct. 554, 567-68, 9

L.Ed.2d 644 (1963), this Court described

the standards traditionally applied to

determine whether a statute is punitive or

penal in nature:

Whether the sanction involves

an affirmative disability or

restraint, whether it has

historically been regarded as a

punishment, whether it comes

into play only on a finding of

scienter, whether its operation

- 16 -

will promote the traditional

aims of punishment--retribution

and deterrence, whether’ the

behavior to which it applies is

already a crime, whether an

alternative purpose to which it

may rationally be connected is

assignable for it, and whether

it appears excessive in

relation to the alternative

purpose assigned are all

relevant to the inquiry, and

may often point in differing

directions.

Id. (Emphasis in original.)

The underlying purpose of the incentive

Or work gain time provision is to encourage

positive and rehabilitative behavior. It

is used as a daily management tool by

prison officials. Unlike automatic or

basic gaintime, incentive gaintime does not

automatically attach and incorporate itself

as an integral part of a prisoner's

sentence at the time the offense occurs.

Rather, it is contingent upon the wishes of

correctional authorities and the _ special

affirmative behavior of the prisoner once

- 17 -

he is within the prison walls. Indeed, if

the underlying purposes of the provisions

governing the awards of basic and incentive

gain time were not separate and distinct,

and utilized to achieve different goals,

there would be no need for the Florida

Legislature to have enacted separate gain

time provisions.

In Dobbert v. Florida, 432 U.S. 282,

293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344

(1977), this Court held that the

prohibition of ex post facto laws does not

extend to every change of law that "may

work to the disadvantage of a defendant."

It is intended to secure

"substantial personal rights"

from retroactive deprivation

and does not "limit the

legislative control of remedies

and modes of procedure which do

not affect matters of

substance."

Portley v. Grossman, 444 U.S. 1311, 1312,

100 S.Ct. 714, 715 (1980), citing Dobbert,

Supra.

- 18 -

The critical question, as

Florida has often acknowledged,

is whether the new provision

imposes greater punishment

after the commission of the

offense, not merely whether it

increases a criminal sentence.

Weaver, 450 U.S. at 32, n.17, citations

omitted.

The incentive gaintime provision does

not impose a greater punishment on a

prisoner after the commission of his

offense. Indeed, it does not increase his

Original sentence at all. Instead, the

provision merely affords a prisoner an

opportunity to reduce his prison time if he

is willing to exert additional, affirmative

behavior. However, because the award of

incentive gaintime is purely discretionary

and because it is contingent on the

availability of a work assignment, the

wishes of correctional authorities and the

special behavior of the prisoner, incentive

- 19 -

gaintime can be viewed as no more than a

“mere expectancy". The fact that the 1983

amendment to Section 944.275 diminished the

potential benefits accruing to that

expectancy, if and when the expectancy

became reality, does not create an ex post

facto violation. Indeed, the speculative

nature of incentive gaintime was readily

recognized by this Court in Weaver, supra,

when it treated the ameliorative provisions

increasing the availability of

discretionary gaintime as incapable of

offsetting the reduced awards of basic

gaintime. Weaver, 450 U.S. at 35. It thus

appears from the Weaver decision, that this

Court did not believe discretionary

gaintime to be a determinant of a

prisoner's term of incarceration which

could "substantially alter the consequences

attached to a crime already completed."

450 U.S. at 32-35.

- 20 -

‘

aR AA CS a nee

The Eleventh Circuit Court of Appeals

has rejected the arguments which have been

presented above. In short, the Eleventh

Circuit has refused to recognize a

distinction between the nature and purpose

of automatic (basic) and work (incentive)

qnietiness: While conceding that incentive

gaintime is ' discretionary in a limited

sense and that a prisoner may be less

likely to earn incentive gaintime than

basic gaintime, the Raske court’ has

concluded that the Weaver decision limits

the ex post facto examination solely to

whether a prisoner is “disadvantaged by the

reduced opportunity to shorten his time in

prison." Raske, 876 F.2d at 1500, citing

to Weaver v. Graham, 450 U.S. 24, 33-34,

101 S.Ct. 960, 966-967 (emphasis in

Original). However, if the sole

determinant for the purposes of ex post

facto analysis is the ability or

- ae

opportunity for a prisoner to shorten his

prison term, then no legislative enactment

which effectively reduces a prisoner's term

of incarceration, even if solely for the ;

purpose of prison administration, and which

is later changed to restrict or eliminate

that opportunity, could withstand ex post

facto scrutiny.

For example, the State of Florida has

enacted a number of early release statutes

which provide mechanisms for early release

through the award of gain time or

credits. See Fla. Stat. 944.276 (1987);

Fla. Stat. 944.277 (1988 Supp.). In

Blankenship v. Dugger, 521 So.2d 1097 (Fla.

1988), the Florida Supreme Court considered

whether changes in the early’ release

Statutes enacted for the purpose of

alleviating prison overcrowding ran afoul

of the ex post facto clause of the

Constitution. In Blankenship, the Florida

- 22 -

Supreme Court distinguished between the

Mature and purpose of administrative gain

time awarded for early release and the

basic or automatic gain time which was

considered in Weaver. The Florida Supreme

Court concluded that early release statute

enacted to modify eligibility for the early

release awards was not an invalid ex post

facto law. Blankenship, 521 So.2d at

1099. However, under the analysis

presented in Raske, any changes in

eligibility for administrative gain time

would necessarily disadvantage the excluded

prisoner by removing his potential for

early release and thus fall within the

prohibitions of the ex post facto clause.

This issue has now reached this Court in

Woolworth v. Dugger, Docket No. 88-6976, in

which a Petition for Writ of Certiorari is

pending consideration. The time appears

ripe to address to what extent the ex post

- 23-

facto clause should extend into matters of

prison administration.

For the reasons cited above,

Petitioners submit that the decision in

Raske impermissibly expands the

prohibitions of the ex post facto clause

beyond its intent and purpose. This is not

to suggest that the decision in Weaver is

erroneous; however, the Weaver decision is,

as described by some members of that court,

"a close one". Weaver, 450 U.S. at 36-38,

concurring opinions of Blackmun, Jes

Burger, C.J., and Rehnquist, J. Certainly,

the framers of the Constitution did not

intend for the ex post facto prohibitions

to prevent a state from effectively

managing its prison system. Indeed, it is

unlikely the framers, in all of their

providence, could have forseen the special

problems inherent in managing the prison

systems of today. Unfortunately, there are

- 24 -

few tools available by which the states and

the state correctional systems may

accomplish this goal. The award of various

forms of gaintime is one _ such _ tool.

Petitioners submit that the statutory

provisions governing the award of the

various types of gaintime must be

scrutinized carefully to determine whether,

under the standards illuminated in Kennedy

v. Mendoza-Martinez, supra, the statute is

truly punitive or penal in nature rather

than a matter of prison administration. If

the latter, then the prohibitions of the ex

post facto clause should not apply.

As noted in Calder v. Bull, 3 U.S. (3

Dall.) 386, 390 (1798), “{t]Jhe prohibition,

‘that no state shall pass any ex post facto

law, ' necessarily requires some

explanation. . . ." While the definitions

of “ex post facto law" have evolved over

the years, they are far from precise.

- 25 =

Petitioners submit that the Raske decision

now extends the prohibitions of the ex post

facto clause beyond that contemplated by

the framers when they included the

prohibition in the Constitution.

Petitioners further suggest that the time

is ripe to refine the definition of ex post

facto law with regard to matters which are

purely related to prison administration.

- 26 -

CONCLUSION

For these various reasons, the petition

for certiorari should be granted.

Respectfully submitted,

ROBERT A . BUTTERWORTH

A ney G al

SUSAN A. MAHER

Assistant Attorney General

DEPARTMENT OF LEGAL AFFAIRS

The Capitol - Suite 1502

Tallahassee, Florida 32399-1050

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-

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the foregoing

Petition for Writ of Certiorari was served

in accordance with Rule 28.1 of the Rules

of the Supreme Court of the United States

by depositing three true copies in a United

States post office or mailbox, with first-

class postage prepaid, addressed to:

Baya nusxteen: III

Attorney at Law

The Murphy House

317 East Park Avenue

Talla e, rida 32301

chew

SUSAN A. MAHER

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