Petition for Writ of Certiorari — Hannigan v. Stansbury

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FILED

¢) BS S67 AUC 5 1 1998

Nos. 98-__, 98-__ OfEicg 05

rr.

In The

Supreme Court of the United States

October Term, 1997

ROBERT D. HANNIGAN, WARDEN, et al.,

Petitioners,

RAYMOND F. STANSBURY,

Respondent.

CHARLES SIMMONS, SECRETARY OF

CORRECTIONS, et al.,

Petitioners,

MICHAEL A. BANKES,

Respondent.

On Petition For Writs Of Certiorari To The

Supreme Court Of The State Of Kansas

PETITION FOR WRITS OF CERTIORARI

TimotHy G. MaAppDEN Cara J. STOVALL

Chief Legal Counsel Attorney General

Kansas Dept. of Corrections SE

900 Jackson St., Suite 400 Seerkal A : A

Topeka, Kansas 66612 eee Sivorney

pexa,

(785) 296-4508 ange

(Counsel of Record)

301 S.W. 10th Avenue

Topeka, Kansas 66612-1597

(785) 296-2215

—

QUESTIONS PRESENTED

1. Is a state department of corrections regulation

that implements a statutory directive that all good time

credits “shall be awarded on an earned basis”, or that

defines what constitutes “good behavior” and the conse-

quences of misbehavior, a “law” for ex post facto pur-

poses?

2. Does a state department of corrections regulation

that changes the awarding of good time credits from “a

projected basis” to “an earned basis”, as required by the

controlling statute, and solely for purposes of determin-

ing an inmate’s conditional release date, without any

negative impact on credits accumulated prior to the regu-

lation’s effective date or the total amount of credits avail-

able, violate constitutional ex post facto principles?

3. Does a state department of corrections regulation

that changes prospectively the good time credit losses for

inmate misconduct, but which does not alter the credits

already accumulated nor the total amount of credits

available, violate constitutional ex post facto principles?

4. Does a state department of corrections regulation

that changes prospectively the definition of good behav-

ior for purposes of awarding earned good time credits by,

for example, requiring convicted sex offenders to partici-

pate in mental health treatment programs as an aspect of

good behavior, but which does not alter the credits

already accumulated nor the total amount of credits

available for good conduct, violate constitutional ex post

facto principles?

LIST OF PARTIES

Hannigan v. Stansbury:

Robert D. Hannigan, Warden; David R. McKune; William

Cummings; Anthony McElroy; Jamie Lanza; and J. Wark

Simmons v. Bankes:

Charles Simmons, Secretary, Kansas Department of Cor-

rections; Robert D. Hannigan; Mr. Wilson, Mr. Taylor, Mr.

Robinson, Mr. Stokes, Mr. Ron Hicks, and Kansas Depart-

ment of Corrections

ee eee

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TABLE OF CONTENTS

Page

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CONSTITUTIONAL AND STATUTORY PROVI-

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Teeth is 5k sab is sap ke ons thee 6s 4

REASONS FOR GRANTING THE WRIT ........... 13

I. The Kansas Supreme Court’s Decisions Are Con-

trary To Decisions Of Federal Courts Of Appeal

And Other State Courts Of Last Resort........ 13

A. The Lower State And Federal Courts Have

Divided Over What Regulations Affecting

Inmates Are “Laws” For Ex Post Facto Pur-

poses And What Changes Affecting Good

Time Credits Violate Constitutional Ex Post

snc 5 ian oak SS Ras Sn ese bbs ese 13

B. The Kansas Supreme Court’s Decisions

Address Important, Unresolved Ex Post Facto

Questions On Which Prison Authorities And

The Lower Federal And State Courts Require

SNAG Whe waren Ve veh serie veeWebbecen ies 21

II. The Kansas Supreme Court’s Decisions Are Con-

trary To This Court’s Ex Post Facto Decisions..... 22

CONCLUSION

aes ck cMb ies secs cancccssécanscevses

TABLE OF AUTHORITIES

Page

CASES

Arnold v. Cody, 951 F.2d 280 (10th Cir. 1991) ........ 14

Bailey v. Gardebring, 940 F.2d 1150 (8th Cir. 1991)....15

Bailey v. Noot, 503 U.S. 952 (1992)........ 10, 15, 21, 23

Beck v. Kansas Adult Authority, 241 Kan. 13, 735

Fe A SREY 54 a ve dk CaRERTK PANS WEROS LDC es ce aek 5

Beebe v. Phelps, 650 F.2d 774 (Sth Cir. 1981).......... 14

California Dept. of Corrections v. Morales, 514 U.S.

BEF CORE a ews a vous Ged ie ne sa ues eres teks chen passim

Chauvin v. Erickson, 998 F.2d 617 (8th Cir. 1993) ..14, 18

Collins v. Youngblood, 497 U.S. 37 (1990)......... passim

Department of Revenue of Montana v. Kurth Ranch,

DES, SRN FREE s Av ASS Lainnd 4 <ocade cased vA wee s 28

Dobbert v. Florida, 432 U.S. 282 (1977) ............ 23, 25

Dominique v. Weld, 73 F.3d 1156 (1st Cir. 1996)

Let kde bee op cha Rea so bake ea eee ine Wine 10, 14, 15, 19, 23

Ewell v. Murray, 11 F.3d 482 (4th Cir. 1993)

PE Tee ET ee es 14, 15, 18, 19, 23

Francis v. Fox, 838 F.2d 1147 (11th Cir. 1988) ........ 15

Gilbert v. Peters, 55 F.3d 237 (7th Cir. 1995).......... 18

Hudson v. United States, 522 U.S. __, 118 S. Ct. 488

os RERSE RSENS OR ieee Can OR re 2 eae 28

Jones v. Murray, 962 F.2d 302 (4th Cir. 1992)......... 18

Kansas v. Hendricks, 521 U.S. __, 117 S. Ct. 2072

eg REPRE eG eer he re a ieee rg mttaby ae tShE 15, 24, 28

oe Lea 2 ees hod ie. RAG

TABLE OF AUTHORITIES - Continued

Knox v. Lanham, 895 F. Supp. 750 (D. Md. 1995). .... 14

Knuck v. Wainwright, 759 F.2d 856 (11th Cir. 1985) .... 14

Lindsey v. Washington, 301 U.S. 397 (1937)........ 23, 26

Lynce v. Mathis, 519 U.S. __, 117 S. Ct. 891 (1997)

Miahyan Cok Raheem tay eke hb eadwaakee 14, 20, 23, 27, 28

Miller v. Florida, 482 U.S. 423 (1987). . 10, 14, 15, 23, 24, 26

Piper v. Perrin, 560 F. Supp. 253 (D.N.H. 1983) ...... 14

In re Ramirez, 39 Cal. 3d 931, 218 Cal. Rptr. 324,

EE SD Xs 4 srk: 6-4 wee 26 niem'nd a0 bs oc 14, 17

Rise v. Oregon, 59 F.3d 1556 (9th Cir. 1995).......... 18

Spradling v. Maynard, 527 F. Supp. 398 (W.D. Okla.

EE sox ci ongn wktan ve htk Sane HERS KO REO ALES 11, 14

United States v. Byrd, 116 F.3d 770 (5th Cir. 1997) .... 14

United States v. Ellen, 961 F.2d 462 (4th Cir. 1992).... 15

Weaver v. Graham, 450 U.S. 24 (1981)............ passim

United States v. Ursery, 518 U.S. 267 (1996).......... 28

CONSTITUTIONAL PROVISIONS

Se I BOR i ve c's cc vada peuetiaceve steers 1

STATUTES

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I OM thr c's cok che saa vases dak abeavs 1

ce aia snkvai'netucueeci es 1,5

TABLE OF AUTHORITIES - Continued

Page

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PcilGs AS pho KOSS dea ke bets va 00s Pew ads «Oe Ben y

eT Re PAI TOPTUE SLL RE ee 6, 7

Ad RII 8a 05 25 Els > ce vicainieN tts Rae passim

De EMO Sid 5S dw Ns ka ae cheb eeay showsas CR) 2, 6

OTHER AUTHORITIES

16A C.J.S. Constitutional Law § 409.................. 10

Harold J. Krent, The Puzzling Boundary Between

Criminal And Civil Retroactive Lawmaking, 84

SSRI CFI Ts 5s RU MOMOIE to 6k nena hid ane tecnes 28

Thomas K. Landry, “Punishment” And The Eighth

Amendment, 57 Ohio St. L. J. 1607 (1996).......... 15

Tu. CARY CM PRS RONG, Op RPMs aes crscnnavesscce 22

RON, City SUT AALS CAE. DF, ROW OPs cece ses ccnvcsace 22

eS dak nN alent Oia

OPINIONS BELOW

The June 5, 1998, decisions of the Kansas Supreme

Court, holding that certain administrative regulations gov-

erning good time credits violate constitutional ex post facto

principles are reported, 265 Kan. 404, __ P.2d ___ (1998),

and 265 Kan. 341, ___ P.2d__ (1998), and are included as

Appendix A. The unreported July 8, 1998 orders of the

Kansas Supreme Court denying the petitioners’ request

for rehearing are included as Appendix B.

JURISDICTION

This Court's jurisdiction to review the final judgment

of the Kansas Supreme Court is invoked pursuant to 28

U.S.C. § 1257(a). The Kansas Supreme Court issued its

decisions in these cases on June 5, 1998, and denied the

State’s timely petitions for rehearing on July 8, 1998. This

petition has been filed within ninety days of the latter

date as required by Supreme Court Rule 13.1. Because the

judgments in these cases involve identical or closely

related questions, this single petition for writs of certiorari

addresses both cases. Sup. Ct. R. 12.4.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Ex Post Facto Clause applicable to the States

provides that

“No State shall . . . pass any . . . ex post

facto Law. . . . U.S. Const. Art. I, § 10.

Kansas Statute Annotated (K.S.A.) § 22-3717(a) pro-

vides in part that an inmate

shall be eligible for parole after serving the

entire minimum sentence imposed by the court,

less good time credits.

K.S.A. § 22-3718 provides in part that an inmate’s condi-

tional release date is

the inmate’s maximum term or terms, less such

work and good behavior credits as have been

earned. ...

K.S.A. § 22-3725(d) provides that

Good time credits shall be awarded on an

earned basis pursuant to rules and regulations

adopted by the secretary of corrections.

One of the two Kansas Administrative Regulations

(“K.A.R.”) invalidated in these cases, K.A.R. 44-6-142,

provides as follows:

When computing the conditional release

date, it shall be presumed that prior to March 1,

1995, 100% of the available good time credits

were earned. On and after March 1, 1995, good

time credits shall be awarded on an earned basis

pursuant to K.A.R. 44-6-124 for the purpose of

determining the conditional release date. K.A.R.

44-6-142 (1995) (emphasis added).

The prior version of the regulation, effective when the

respondents were convicted and sentenced, provided that

When computing the conditional release

date, it shall be presumed that 100% of the avail-

able good time credits has been earned, and the

good time credits shall be applied on a projected

basis. K.A.R. 44-6-142 (1989) (emphasis added).

The other regulation the Kansas Supreme Court invali-

dated, K.A.R. 44-6-124(g) (1993), provides in part as follows:

(g) An inmate’s disciplinary record shall

affect the earning of good time awards in the

following manner.

(1) A guilty finding of a class I disciplinary

offense shall result in the withholding of a mini-

mum of 50% of the good time credits available

for that program classification review period.

(2) A guilty finding of a class II disciplin-

ary offense shall result in the withholding of a

minimum of 25% but not more than 50% of the

good time credits available for that program

classification review period.

(3) A guilty finding of a class III disciplin-

ary offense shall result in the withholding of a

minimum of 10% but not more than 25% of the

good time credits available for that program

classification review period.

* + *

(6) A refusal by an inmate to construc-

tively work or participate in assigned programs

shall result in the withholding of 100% of the

good time credits for that program classification

review period, unless the inmate is determined

by the facility health authority to be physically

or mentally incapable of working or participat-

ing in a particular program or detail.

The version of K.A.R. 44-6-124 in effect when respondents

were convicted and sentenced provided that

(a) For parole eligibility, award of good

time credits shall be limited as follows:

(1) Inmates with no class I offenses during

the review period shall receive at least 50% of

the good time credits allocated for that period.

(2) Inmates with no class I or II offenses

during the review period shall receive at least

60% of the good time credits allocated for that

period.

(3) Inmates with no class I, II or II!

offenses during the review period shall receive

at least 70% of the good time credits allocated

for that period.

(4) Inmates with no class I, II, III or IV

offenses during the review period shall receive

at least 80% of the good time credits allocated

for that period.

PSS ee ee ee SE

(5) The balance of the credits above the

percentages listed in paragraphs (a)(1) to (a)(4)

shall be awarded by the unit team based on

factors of good work, behavior, and on other

performance factors related to effective reha-

bilitation of the inmate.

STATEMENT

Procedural History

Respondent Michael A. Bankes has been incarcerated

since 1990 under a 4- to 15-year sentence for indecent

liberties with a child and additional consecutive sen-

tences for drug offenses. Respondent Raymond F. Stans-

bury, has been incarcerated since 1991 under a 10- to 20-

year sentence for rape. Respondents filed these state

post-conviction actions in Kansas district courts, alleging

that changes in the Kansas Department of Corrections

regulations regarding the awarding of good time credits

for purposes of determining an inmate’s parole eligibility

and conditional release dates violates the constitutional

prohibition on ex post facto laws. One district court dis-

missed Bankes’ suit while another district court ruled in

Stansbury’s favor.

On June 5, 1998, in two separate opinions that refer-

ence each other, the Kansas Supreme Court reversed the

dismissal of Bankes’ suit, and affirmed judgment in

Stansbury’s favor, holding that the regulations at issue

are constitutionally prohibited ex post facto laws. Appen-

dix A. On July 8, 1998, the Kansas Supreme Court denied

the State’s timely request for rehearing in both cases.

Appendix B. On July 9, 1998, the Kansas Supreme Court

denied the State’s petition for review of a Kansas Court of

Appeals decision raising substantially similar ex post facto

issues. That case is the subject of a separate petition,

McKune, et al. v. Steltzlen, No. 98-__, filed simultaneously

with this petition.

The Kansas Supreme Court denied the State’s request

for a recall of the mandate in these cases pending pro-

ceedings in this Court. Appendix C. Petitioners are filing

simultaneously with this petition an application for a stay

of these decisions with Justice Breyer, Circuit Justice for

the Tenth Circuit.

Statement of Facts

1. The Kansas Statutes And Administrative Regulations

Concerning Good Time Credits And Parole Eligibility

Dates

In Kansas, the awarding of good time credits is

authorized by statute. See K.S.A. § 22-3725. Some details

of how such credits are earned, awarded, forfeited, with-

held and accumulated are included in the statute, but the

statute also provides that “[glood time credits shall be

awarded on an earned basis pursuant to rules and regula-

tions adopted by the secretary of corrections.” Id. at § (d).

The earning, awarding, forfeiting, withholding and

accumulation of good time credits affect two important

dates for inmates: (1) an inmate’s parole eligibility date;

and (2) an inmate’s conditional release date. The parole

eligibility date is, as its name suggests, the date on which

an inmate first becomes eligible to be considered for

parole. In Kansas, that date is the “entire minimum sen-

tence imposed by the court, less good time credits.”

K.S.A. § 22-3717(a). The conditional release date, on the

other hand, is the date on which an inmate is entitled to

be released from incarceration. Conditional release is “the

inmate’s maximum term or terms, less such work and

good behavior credits as have been earned.” K.S.A.

§ 22-3718; see generally Beck v. Kansas Adult Authority, 241

Kan. 13, 29-30, 735 P.2d 222, 234-35 (1987).

These important dates, when the inmate is serving an

indeterminate sentence less than life imprisonment, are

calculated by deducting good time credits from the mini-

mum and maximum terms of imprisonment respectively.

Thus, the parole eligibility date for an inmate like Stans-

bury serving a 10- to 20-year sentence is calculated by

deducting earned good time credits from 10 years, while

the conditional release date is calculated by deducting

good time credits from 20 years.

With respect to conditional release dates, the Depart-

ment of Corrections regulation in effect at the time the

respondents in these cases committed their crimes, were

convicted and sentenced, provided that “it shall be pre-

sumed that 100% of the available good time credits has

been earned, and the good time credits shall be applied

on a projected basis.” K.A.R. 44-6-142 (1989); see also

K.A.R. 44-6-108(c) (1989). This meant that, solely for pur-

poses of calculating the conditional release date, the

instant an inmate entered prison the inmate was pre-

sumed to have earned 100% of the available good time

credits. So, in the preceding example, if the available

good time credit on a 20-year sentence was 10 years, the

inmate’s conditional release date would be 10 years from

the beginning date of the sentence, and that date would

be established the day the inmate entered the prison. In

1995, however, the Department of Corrections amended

the regulation to conform to the statutory directive that

good time credits be “earned,” providing that

When computing the conditional release

date, it shall be presumed that prior to March 1,

1995, 100% of the available good time credits

were earned. On and after March 1, 1995, good

time credits shall be awarded on an earned basis

pursuant to K.A.R. 44-6-124 for the purpose of

determining the conditional release date. K.A.R.

44-6-142 (1995) (emphasis added).

With respect to parole eligibility dates, the depart-

ment of corrections regulations never presumed that

100% of available good time credits would be earned.

SE ae IS eR OE Re aN EN ME RE Iie La IE ERE Tw ee OPN Py ete Gr

Rather, good time credits counting toward parole eligi-

bility had to be actually earned and were accumulated

only as they were earned. See K.A.R. 44-6-108(b) (1989).

Also, at the time these respondents committed their

crimes, were convicted and sentenced, good time credits

for parole eligibility were awarded on a minimum per-

centage basis for each category or categories of prison

offenses that inmates avoided committing during the

review period. See K.A.R. 44-6-124(a) (1989) (quoted in

full above). In other words, the regulations were phrased

in terms of minimum rewards for good behavior. That

changed, however, in 1993, when the regulations were

amended to require minimum withholding of good time

credits for prison offenses (rather than minimum awards

for good conduct), and to provide that refusal to partici-

pate in an assigned program, such as the Sexual Abuse

Treatment Program, would result in the withholding of

100% of good time credits for the review period. See

K.A.R. 44-6-124(g)(1)-(6) (1993) (quoted in full above).

Thus, the regulations at issue in these cases made

three changes in the good time credit regulations (but not

the statutes) in effect when the respondents committed

their crimes, were convicted and sentenced: (1) good time

credits toward conditional release are no longer pre-

sumed earned on a projected basis but, after March 1,

1995, must be actually earned; (2) for both parole eligi-

bility and conditional release, good time credits are deter-

mined by minimum withholding for misconduct rather

than by minimum rewards for good conduct; and (3)

good conduct, for purposes of potentially withholding

good time credits, has been further defined to include

participation in assigned programs, such as the Sexual

Abuse Treatment Program.

What is undisputed and unchanged about good time

credits in Kansas is that the relevant statutes have not

changed and the total amount of good time credits avail-

able to shorten parole eligibility and conditional release

dates is unchanged. Only if the respondents engage in

misconduct after the effective dates of the regulatory

changes discussed above will their parole eligibility and

conditional release dates be any different than they

would have been under the regulatory scheme in effect

when respondents committed their crimes, were con-

victed and sentenced.

2. Raymond F. Stansbury

Raymond Stansbury was convicted of rape and sen-

tenced to a term of 10 to 20 years in 1991. App. 3a. As

noted previously, administrative regulations in place in

the Kansas prisons in 1991 did not authorize the with-

holding of good time credits for refusal to participate in

formal programs, such as a treatment program. Id. at

3a-4a. Stansbury’s unit team in the prison recommended

that he participate in the Sexual Abuse Treatment Pro-

gram (SATP). Id. at 4a.

A condition of participation in the SATP is an admis-

sion of guilt by the inmate. Stansbury has refused to

participate in the SATP because of this requirement. As a

result, the prison has withheld 100% of Stansbury’s good

time credits applicable to his parole eligibility date since

April, 1994, following the 1993 amendment to the regula-

tions to provide that a refusal to participate in an

assigned program shall result in a 100% withholding of

good time credits for that review period. Id. The prison

also has withheld credit toward Stansbury‘s conditional

release date since the 1995 amendment requiring that

such credits be actually earned. Id. at 7a-14a.

3. Michael A. Bankes

In 1990, Michael Bankes was convicted of indecent

liberties with a child and sentenced to 4 to 15 years in

prison. App. 28a. Bankes also received consecutive 1- to

5-year and 4- to 15-year sentences for drug offenses. As

discussed above, the administrative regulations in place

in the Kansas prisons in 1990 did not authorize the with-

holding of good time credits for refusal to participate in

formal programs, such as a treatment program. Id. at 29a.

Bankes’ sentence did not include any order for him to

participate in any kind of sexual offender treatment pro-

gram, id., but his unit team in the prison recommended

that he participate in the Sexual Abuse Treatment Pro-

gram (SATP). Id.

A condition of participation in the SATP is an admis-

sion of guilt by the inmate. Id. at 28a. Like Stansbury,

Bankes has refused to participate in the SATP because of

this requirement. Id. As a result, the prison has withheld

100% of Bankes’ good time credits applicable to his con-

ditional release date since 1995, id. at 29a, following the

1993 amendment of K.A.R. 44-6-124 to provide that “[a]

refusal by an inmate to constructively work or participate

in assigned programs shall result in the withholding of

100% of the good time credits for that program classifica-

tion review period,” unless the inmate is determined to

be physically or mentally unable to participate.

4. The Kansas Supreme Court's Decisions

A majority of the Kansas Supreme Court concluded

that the amended regulations amounted to ex post facto

violations when applied to Bankes and Stansbury. The

Chief Justice dissented, but without a written opinion.

a. Stansbury v. Hannigan, et all.

The Kansas Supreme Court began its ex post facto

analysis by citing and quoting this Court’s decision in

Weaver v. Graham, 450 U.S. 24 (1981), for the proposition

that, in order for a law to be ex post facto, two critical

elements must be present. “The law must be retrospec-

tive, applying to events occurring before its enactment,

and it must disadvantage the offender affected by it.”

App. 14a (paraphrasing Weaver, 450 U.S. at 29). The court

first considered whether the constitutional ex post facto

prohibition applies to prison regulations, as opposed to

legislative enactments, but concluded that, at least in

Kansas, it must. The court relied upon the proposition

that “[p]olitical subdivisions of a state, or quasi-legisla-

tive instrumentalities, exercising delegated legislative

power are within the ambit of the Ex Post Facto Clause.”

App. 14a (citing 16A C.J.S., Constitutional Law § 409, p.

355). The court observed that regulations adopted in

accordance with the procedures set forth by the Kansas

Legislature have the force and effect of law in Kansas.

App. 15a. The court pointed out that the Kansas Depart-

ment of Corrections is a state agency, and opined that the

agency, when adopting good time credits regulations,

“acts as a political subdivision exercising delegated legis-

lative power.” Id. For that reason, the court concluded

that the prison regulations at issue in these cases “are

within the ambit of the Ex Post Facto Clause of the United

States Constitution.” Id.} a

The court then addressed this Court’s decision in

Weaver, which involved an ex post facto challenge to a

statutory reduction in the number of good time credits

1 There is an acknowledged split of authority in the Courts

of Appeal and state courts over the issue whether prison

regulations and parole guidelines are “laws” for ex post facto

purposes. See Bailey v. Noot, 503 U.S. 952 (1992) (White, J.,

dissenting from the denial of certiorari); Dominique v. Weld, 73

F.3d 1156, 1162 & n. 10 (ist Cir. 1996) (noting the continuing split

of authority); see also Miller v. Florida, 482 U.S. 423, 434 (1987)

(observing that numerous lower federal courts have refused to

apply the Ex Post Facto Clause to revisions in the federal parole

guidelines).

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available for award to Florida inmates for good behavior.

The court pointed out that this Court in Weaver rejected

the argument that the statutory reduction in the amount

of available good time credits was offset — for ex post facto

purposes — by new opportunities to earn equal or even

greater good time at prison officials’ discretion. App.

16a-17a. Instead, this Court reasoned that Florida inmates

were disadvantaged by the change because, even if they

obeyed all prison regulations and completed all work

assignments, the credits they received would be reduced

and they could only make up the difference by satisfying

extra conditions that previously had not existed. 450 U.S.

at 35. The Kansas Supreme Court also examined a district

court decision in Spradling v. Maynard, 527 F. Supp. 398

(W.D. Okla. 1981), which found an. ex post facto violation

when Oklahoma altered its good time credit system to

require that such credits be earned, rather than automat-

ically awarded.

The court opined that Stansbury’s “position is similar

to those in Weaver and Spradling.” App. 18a. The court

concluded that the 100% withholding of good time credits

toward parole eligibility for Stansbury’s refusal to partici-

pate in the SATP was both retrospective and disadvan-

taged Stansbury. Id. The court then reached the same

conclusion with respect to the change in calculating an

inmate’s conditional release date by requiring that good

time credits be actually earned. “Again, the regulation as

applied to the petitioner was retrospective in that it

applied to events occurring before its enactment, and it

disadvantaged the offender affected by it.” App. 19a.

Lastly, the Kansas Supreme Court considered

whether this Court’s decision in California Dept. of Correc-

tions v. Morales, 514 U.S. 499 (1995), affected the preceding

conclusions. In Morales, this Court rejected an ex post facto

challenge to a statutory amendment that lengthened the

time. between parole hearings in California for certain

‘categories of inmates. The Kansas Supreme Court opined

ee ve

that Morales “does refine the focus of the ex post facto

analysis,” App. 20a, by inquiring not whether the change

“disadvantages” an inmate but, rather, whether the

change alters the definition of criminal conduct or

increases the penalty for the crime. Nonetheless, the court

asserted that Morales does not affect the outcome in this

case. First, the court opined that the change in calculating

the conditional release date necessarily increases the pun-

ishment for an inmate’s crime and is thus an ex post facto

law even under Morales. App. 20a. Second, although the

court acknowledged that the parole eligibility question

“is much closer,” id., it still concluded that the amended

regulation was an ex post facto law. The court reasoned

that

the amendment we deal with in this case

goes beyond merely allowing the petitioner an

opportunity to take advantage of provisions for

an earlier release date. The amended regulation

actually forces the petitioner to engage in the

required program or risk the loss of good time

credits which would automatically be earned

under the old system. As a result, it has a very

direct effect on the petitioner’s parole eligibility

and also constitutes an ex post facto application

of law. App. 21a.

Chief Justice McFarland dissented without opinion. App.

26a.

b. Bankes v. Simmons, et al.

Relying on its decision in Stansbury v. Hannigan, the

Kansas Supreme Court agreed with Bankes’ claim that

application of the revised parole eligibility and condi-

tional release regulations to him violated ex post facto

principles. The court pointed out that its Stansbury deci-

sion addressed and decided the same issue, but added

that

trial judges are aware of conditional release

dates and how they are computed. When the

defendant was sentenced, most trial judges

would have considered the maximum time the

defendant would have to serve in setting the

sentence. App. 45a.

Thus, the court concluded that, “[flor the reasons set

forth in Stansbury, the application of K.A.R. 44-6-124 by

KDOC to Bankes, due to his refusal to participate in the

SATP, violates the ban on ex post facto laws. ...” App.

45a. Chief Justice McFarland again dissented from the

court’s ex post facto holding. App. 46a (“I dissent from the

majority opinion’s determination that K.A.R. 44-6-124

constitutes an ex post facto law in reliance upon Stansbury

v. Hannigan”).

REASONS FOR GRANTING THE WRIT

I. The Kansas Supreme Court’s Decisions Are Con-

trary To Decisions Of Federal Courts Of Appeal And

Other State Courts Of Last Resort

A. The Lower State And Federal Courts Have

Divided Over What Regulations Affecting

Inmates Are “Laws” For Ex Post Facto Purposes

And What Changes Affecting Good Time

Credits Violate Constitutional Ex Post Facto

Principles

1. The Kansas statutes and prison regulations at

issue in these cases are not unique. Indeed, ex post facto

challenges to changes in good time statutes and regula-

tions have been relatively common since this Court's

potentially sweeping decision in Weaver v. Graham, 450

U.S. 24 (1981). In Weaver, this Court invalidated a Florida

good time credit statute that reduced the amount of

credits available for good behavior, i.e., an inmate behav-

ing in the same fashion received more good time credits

before the statute was changed. This Court itself has

decided several other ex post facto cases since Weaver,

arguably narrowing the application of Weaver in perhaps

all of those cases. See Miller v. Florida, 482 U.S. 423 (1987);

Collins v. Youngblood, 497 U.S. 37 (1990); California Dept. of

Corrections v. Morales, 514 U.S. 499 (1995); and Lynce v.

Mathis, 519 U.S. __, 117 S. Ct. 891 (1997)

Several post-Weaver lower court decisions have

rejected ex post facto challenges to statutory and regula-

tory changes in the awarding of good time credits, often

in reliance upon later decisions such as Collins and

Morales. See, e.g., Ewell v. Murray, 11 F.3d 482 (4th Cir.

1993), cert. denied, 511 U.S. 1111 (1994); In re Ramirez, 39

Cal. 3d 931, 218 Cal. Rptr. 324, 705 P.2d 897 (1985), cert.

denied, 476 U.S. 1152 (1986); Chauvin v. Erickson, 998 F.2d

617 (8th Cir. 1993); cf. Dominique v. Weld, 73 F.3d 1156 (1st

Cir. 1996) (change in work release program does not

violate ex post facto prohibition); United States v. Byrd, 116

F.3d 770 (5th Cir. 1997), cert. denied, 118 S. Ct. 354, 612

(1997) (change in sentencing guidelines after defendant

committed crime but before defendant violated probation

does not violate ex post facto prohibition).

Other decisions have invalidated such changes on ex

post facto grounds, almost always relying quite heavily on

Weaver, as did the Kansas Supreme Court in these cases.

In addition to the Kansas decisions at issue here and in

the related petition, McKune, et al. v. Steltzlen, No. 98-__,

see, for example, Knuck v. Wainwright, 759 F.2d 856 (11th

Cir. 1985); Beebe v. Phelps, 650 F.2d 774 (5th Cir. 1981);

Arnold v. Cody, 951 F.2d 280 (10th Cir. 1991); Spradling v.

Maynard, 527 F. Supp. 398 (W.D. Okla. 1981); Piper v.

Perrin, 560 F. Supp. 253 (D.N.H. 1983); cf. Knox v. Lanham,

895 F. Supp. 750 (D. Md. 1995) (changes in work release

requirements are ex post facto violation), aff'd, 76 F.3d 377

(4th Cir. 1996).

2. A preliminary issue that the Kansas Supreme

Court addressed in these cases and on which there is an

acknowledged split of authority is whether ex post facto

prohibitions even apply to prison or parole regulations,

as opposed to legislative enactments. See Bailey v. Noot,

503 U.S. 952 (1992) (White, J., dissenting from the denial

of certiorari with respect to that issue); Dominique v. Weld,

73 F.3d 1156, 1162 & n. 19 (1st Cir. 1996) (noting the split);

Ewell v. Murray, 11 F.3d 482, 487 n. 2 (4th Cir. 1993)

(noting the split); see also Miller v. Florida, 482 U.S. 423,

434 (1987) (observing that numerous lower federal courts

have refused to apply the Ex Post Facto Clause to revi-

sions in the federal parole guidelines); Thomas K. Landry,

“Punishment” And The Eighth Amendment, 57 Ohio St. L. J.

1607, 1658-59 (1996) (noting the uncertainty and conclud-

ing that the possibility of the Court limiting the Ex Post

Facto Clause’s application to statutory amendments “can-

not be ignored, especially in light of the Court’s recent

constriction of ex post facto doctrine”).

All of this Court’s ex post facto decisions cited above

involved amendments to state statutes, not changes in

prison or parole regulations, and there are clear state-

ments in this Court’s cases that the Ex Post Facto Clause

“has been interpreted to pertain exclusively to penal stat-

utes.” Kansas v. Hendricks, 117 S. Ct. 2072, 2086 (1997)

(emphasis added) (citing California Dept. of Corrections v.

Morales, 514 U.S. 499, 505 (1995)); see also Collins v. Young-

blood, 497 U.S. 37, 41 (1990) (“Although the Latin phrase

‘ex post facto’ literally encompasses any law passed ‘after

the fact,’ it has long been recognized by this Court that

the constitutional prohibition on ex post facto laws applies

only to penal statutes. .. . ”). Thus, contrary to the Kansas

Supreme Court, some courts have concluded that prison

and parole regulations are not “Laws” for ex post farto

purposes. See, e.g., Bailey v. Gardebring, 940 F.2d 1150,

1155-57 (8th Cir. 1991), cert. denied, Bailey v. Noot, 503 U.S.

952 (1992); Francis v. Fox, 838 F.2d 1147, 1150 (11th Cir.

1988); United States v. Ellen, 961 F.2d 462, 465 (4th Cir.),

cert. denied, 506 U.S. 875 (1992).

This issue alone merits this Court’s review, and these

Kansas cases provide an appropriate vehicle for resolving

the question. The Kansas Supreme Court addressed and

decided this federal question on the merits, and resolu-

tion of the issue could be determinative of the outcome in

both of these cases.

3. On the merits of the ex post facto question, the

decisions invalidating changes in the awarding of good

time credits, like the Kansas Supreme Court's decisions in

these cases, rely heavily on this Court’s decision in

Weaver v. Graham, 450 U.S. 24 (1981). In particular, the

cases rely upon this Court’s statement that the two criti-

cal elements of an ex post facto claim are that the law

“must be retrospective, that is, it must apply to events

occurring before its enactment, and it must disadvantage

the offender affected by it.” 450 U.S. at 29 (emphasis

added). Continuing reliance upon Weaver, however, is

problematic for several reasons.

One problem is that the concepts of retrospectivity,

and especially “disadvantage,” have almost unlimited

potential breadth. This Court recognized in California

Dept. of Corrections v. Morales, that some of the Court’s

prior ex post facto decisions emphasize the “disadvan-

tage” concept, but then concluded that such

language was unnecessary to the results in those

cases and is inconsistent with the framework

developed in Collins v. Youngblood, 497 U.S. 37,

41 (1990). After Collins, the focus of the ex post

facto inquiry is not on whether a legislative

change produces some ambiguous sort of “dis-

advantage,” . . . but on whether any such change

alters the definition of criminal conduct or

increases the penalty by which a crime is pun-

ishable. 514 U.S. at 506 n. 3.

Contrary to the Kansas Supreme Court in these cases,

a number of federal Courts of Appeal and at least one

state supreme court have rejected ex post facto challenges

in essentially identical circumstances. Generally, they

have been critical of Weaver or have largely disregarded it

in so doing. For example, in In re Ramirez, 705 P.2d 897

(Cal. 1985), the California Supreme Court rejected ex post

facto challenges to statutory changes in the awarding,

withholding and forfeiture of good time credits that, in

most respects, are indistinguishable from the changes at

issue in these Kansas cases. In particular, the changes in

California law altered the types of infractions that could

give rise to loss of good time credits, increased the pun-

ishment for disciplinary offenses, punished misbehavior

during an assigned activity by withholding both good

behavior and participation credits, and eliminated prior

limits on the amount of credits subject to forfeiture dur-

ing a given time period. 705 P.2d at 899.

The California Supreme Court examined Weaver in

detail, criticizing the case’s emphasis on the “disadvan-

tage” concept, 705 P.2d at 900 (“If we were unencumbered

we would be tempted to find that any disadvantage

stems from petitioner’s own action and the 1982 amend-

ments are not disadvantageous on their face”), but none-

theless upholding the California statutory changes on the

ground that they were not “retrospective” under Weaver.

Rather, the court concluded that “the increased sanctions

are imposed solely because of petitioner’s prison miscon-

duct occurring after the 1982 amendments became effec-

tive.” 705 P.2d at 901. In a statement that describes these

Kansas cases perfectly, the California Supreme Court

observed that

There is a critical difference between a dimi-

nution of the ordinary rewards for satisfactory

performance of a prison sentence — the issue in

Weaver — and an increase in sanctions for future

misbehavior in prison — which is at issue here.

Here, petitioner’s opportunity to earn good

behavior and participation credits is unchanged.

All that has changed are the sanctions for prison

misconduct. 705 P.2d at 901.

The court also emphasized the importance of the ex

post facto issue in prison administration, correctly point-

ing out that

From the standpoint of prison order, it is

simply infeasible to run a prison in which some

inmates are wholly or partially immune from

punishment for conduct for which others

receive serious penalties. Id.

Lastly, the California Supreme Court observed that the

rules affecting prison misconduct are “too contingent and

remote” to have a significant influence on defendants and

trial courts at the time of sentencing and that, in any

event, the inmate in this case “had fair warning” of the

new sanctions. Id. at 902. The Eighth Circuit has reached

the same result. See Chauvin v. Erickson, 998 F.2d 617 (8th

Cir. 1993) (finding that a new statute requiring inmate ; to

perform work assignments in order to earn good time

credits rather than automatically receiving credits for

good behavior did not violate the Ex Post Facto Clause).

At least two Court of Appeals decisions have rejected

ex post facto challenges to changes in good time credits

and work release opportunities that in particular affected

sex offenders, like the respondents in these Kansas cases.

In Ewell v. Murray, 11 F.3d 482 (4th Cir. 1993), the Fourth

Circuit upheld a change in prison regulations that made

incarcerated sex offenders’ failure to provide blood sam-

ples for a DNA data bank a new prison infraction that

would result in the loss of good time credits.2 The

inmates in Ewell argued that the change was retrospective

2 See also Jones v. Murray, 962 F.2d 302 (4th Cir. 1992)

(rejecting constitutional challenges to the DNA sampling itself);

Gilbert v. Peters, 55 F.3d 237 (7th Cir. 1995) (same); Rise v. Oregon,

59 F.3d 1556, 1562 (9th Cir. 1995), cert. denied, 517 U.S. 1160

(1996) (same).

and disadvantaged them within the meaning of Weaver,

but the Fourth Circuit relied instead on this Court's later

decision in Collins v. Youngblood, 497 U.S. 37 (1990), which

purported to narrow the concept of “disadvantage” to

changes altering the definition of criminal conduct or

increasing the punishment for the crime. 11 F.3d at 485.

The Fourth Circuit proceeded to reject the ex post

facto claim for a number of reasons. First, the court

observed that

Reasonable prison regulations are not fro-

zen at the time of each inmate’s conduct, but

rather, they may be subject to reasonable

amendments as necessary for good prison

administration, safety and efficiency, without

implicating ex post facto concerns. 11 F.3d at

485-86.

Next, the court pointed out the DNA data bank statute

was not penal in nature and that the total amount of good

time credits available for good conduct had not changed.

Id. at 486. The court correctly declared that an inmate

“has no right to a particular set of prison regulations

adopted to maintain the order, safety, and efficiency of

the prison.” Id. Thus, in the court’s view, the regulations

only increased the punishment for future misconduct

constituting a violation of prison regulations; they did

not constitute additional punishment for the original

crime. Id. at 487. The court concluded that

In summary, the good conduct credit system

in this case has remained constant, unlike the

circumstances in Weaver, and prison punishment

was adopted to apply to existing inmates pro-

spectively for infractions of reasonable prison

regulations. Id.

Similarly, in Dominique v. Weld, 73 F.3d 1156 (1st Cir.

1996), the inmate was a convicted sex offender who might

have qualified for a work release program under regula-

tions in effect when he was convicted and sentenced.

Later, however, the regulations were amended to prohibit

sex offenders from participating in work release pro-

grams unless they successfully completed a treatment

program and admitted their sex offenses. Id. at 1161. The

First Circuit rejected the inmate’s ex post facto challenge to

the new regulation.

First, the court pointed out the split of authority in

the Circuits on the question whether prison regulations

are “laws” for ex post facto purposes. Id. at 1162 & n. 10.

The court did not, however, attempt to resolve the issue

because it rejected the ex post facto claim on the merits.

Largely ignoring Weaver v. Graham and instead relying on

this Court’s decision in California Dept. of Corrections v.

Morales, 514 U.S. 499 (1995), the First Circuit declared that

the test is whether the change in regulations increased the

penalty for the inmate’s crime. 73 F.3d at 1162, 1163.

Recognizing that the amended regulation subjected the

inmate to a different and stricter regime than when he

committed his crime, the court nonetheless found no ex

post facto violation because the change did not affect the

length of the inmate’s sentence or his parole options. Id.

at 1163. The First Circuit concluded by emphasizing that

The Ex Post Facto Clause does not encour-

age close scrutiny by the federal courts of ongo-

ing procedural or operational changes in prisons

to coordinate treatment, promote security, and

protect the public safety. Id.

Thus, unlike the lower court decisions that have fol-

lowed this Court’s more recent ex post facto decisions such

as Collins and Morales, the Kansas Supreme Court

adhered to the sweeping approach this Court first sug-

gested in Weaver. As indicated above, the Kansas

Supreme Court is not alone in continuing to rely on

Weaver. This Court itself did so in part in its most recent

ex post facto decision involving good time credits, Lynce v.

Mathis, 519 U.S. __, 117 S. Ct. 891 (1997). With all due

respect, petitioners request that this Court grant review

in this case to clarify whether, and if so how, ex post facto

principles apply to prison regulations affecting good time

credits.

B. The Kansas Supreme Court’s Decisions Address

Important, Unresolved Ex Post Facto Questions

On Which Prison Authorities And The Lower

Federal And State Courts Require Guidance

As the preceding discussion demonstrates, these

Kansas cases and the ex post facto issues they raise are by

no means rare or unique.? Under existing constitutional

jurisprudence, every change in prison regulations gov-

erning the conduct of inmates is a potential ex post facto

problem. Moreover, it is beyond dispute that the States

and the federal government have compelling interests

both in maintaining order and discipline in their prisons

and in protecting society from dangerous, incarcerated

offenders who may some day be released. Currently,

however, it is unclear to what extent prison officials may

address these problems other than on a purely prospec-

tive basis.

As explained above, several decisions - including

these Kansas cases — have invalidated changes in statutes

or regulations affecting good time credits, while several

other decisions have rejected the very same challenges.

The reasoning behind the decisions rejecting and uphold-

ing such challenges cannot be reconciled. Given the

importance of the inmates’ interests and the serious

prison administration and safety concerns present in

these cases, it is appropriate for this Court to intervene

3 As Justice White noted, ex post facto issues regarding

amended parole or prison regulations, are “likely to arise

frequently.” Bailey v. Noot, 503 U.S. 952, 953 (1992) (dissenting

from the denial of certiorari).

and provide additional guidance to the lower courts and

prison officials at this time.

The ex post facto issues that arise in these Kansas

cases are a source of controversy across the country, and

the answers to the questions are of extreme importance to

the administration of today’s large prison populations. A

report recently released by the United States Department

of Justice indicates that our nation’s adult prison popula-

tion has risen to an all-time high of more than 1.7 million

inmates, with much of the increase fueled by inmates

serving longer terms for violent crimes. See, e.g., Fox

Butterfield, Prison population posts gain for ‘97, Kan. City

Star Al12 (Aug. 9, 1998); Associated Press, Longer incarcer-

ations produce growth in U.S. prison population, Kan. City

Star A3 (Aug. 3, 1998). :

Prison officials often need the flexibility to amend

and refine the rules and regulations that govern inmates’

conduct. But if every change or amendment is an ex post

facto violation when applied to inmates already in the

prison, then prison officials’ hands will be tied. Moreover,

ex post facto issues with respect to good time credits tend

to be most significant for the inmates serving the longest

prison terms. Often these inmates are the most serious

and violent offenders in the prison systems. Given the

extreme public importance of the questions presented,

the compelling interests at stake on both sides of these

issues, and the sharp split of authority in the federal

Courts of Appeal and the state courts on these issues,

these cases warrant this Court’s plenary review.

II. The Kansas Supreme Court’s Decisions Are Con-

trary To This Court’s Ex Post Facto Decisions

The decisions addressing the constitutionality of

changes in prison regulations and good time credit-stat-

utes have turned upon the lower courts’ understanding

of this Court’s ex post facto decisions, in particular Weaver

v. Graham, 450 U.S. 24 (1981), and to a lesser extent

Dobbert v. Florida, 432 U.S. 282 (1977); Miller v. Florida, 482

U.S. 423 (1987); Collins v. Youngblood, 497 U.S. 37 (1990);

California Dept. of Corrections v. Morales, 514 U.S. 499

(1995); and Lynce v. Mathis, 519 U.S. __, 117 S. Ct. 891

(1997).

None of the cases question the proposition that

inmates have constitutional protection from retroactive

increases in their punishment, and the State of Kansas

does not question that fundamental constitutional princi-

ple. This Court’s decisions, however, do not support the

result the Kansas Supreme Court reached in these cases.

1. First, and most importantly, the Kansas Supreme

Court erred in concluding that prison regulations are

subject to ex post facto restrictions, at least in these cases.

Although the Kansas Department of Corrections promul-

gated the regulations pursuant to statutory authority, the

controlling Kansas statutes are clear that good time

credits shall be “earned.” The Department of Corrections

lacked the power to provide otherwise, which simply

proves the point that the Ex Post Facto Clause should be

limited, as this Court’s cases repeatedly have recognized,

to the application of penal statutes. This issue, however,

has divided the lower courts. See Bailey v. Noot, 503 U.S.

952 (1992) (White, J., dissenting from the denial of cer-

tiorari with respect to that issue); Dominique v. Weld, 73

F.3d 1156, 1162 & n. 10 (ist Cir. 1996) (noting the split);

Ewell v. Murray, 11 F.3d 482, 487 n. 2 (4th Cir. 1993)

(noting the split); Landry, 57 Ohio St. L. J. at 1658-59.

For the past sixty years, this Court’s ex post facto

decisions have all involved amendments to statutes, not

prison regulations. Thus, the ex post facto challenges in

Lindsey v. Washington, 301 U.S. 397 (1937); Weaver, 450

U.S. at 25; Miller v. Florida, 482 U.S. at 434-35; Morales, 514

U.S. at 503; and Lynce, 117 S. Ct. at 893, all involved

amendments to state penal statutes. Similarly, this Court

has expressly declared in recent years that the ex post facto

prohibition “has been interpreted to pertain exclusively

to penal statutes.” Kansas v. Hendricks, 117 S. Ct. 2072,

2086 (1997); see also Collins v. Youngblood, 497 U.S. 37, 41

(1990). (“Although the Latin phrase ‘ex post facto’ literally

encompasses any law passed ‘after the fact,’ it has long

been recognized by this Court that the constitutional

prohibition on ex post facto laws applies only to penal

statutes... «s:7).

This Court also has observed that, prior to the sen-

tencing guidelines era, the lower federal courts generally

upheld revisions in the federal parole guidelines against

ex post facto challenges. See Miller v. Florida, 482 U.S. 423,

434 (1987). The Court pointed out that the lower courts

reached that conclusion for three reasons: (1) federal

parole guidelines are not “laws” for ex post facto pur-

poses; (2) the parole guidelines merely “rationalize the

exercise of statutory discretion”; and (3) retrospective

application of the parole guidelines does not result in a

more onerous punishment. 482 U.S. at 434-35. With all

due respect, all three of those rationales, which were

_widely endorsed and_followed by the lower federal

courts, apply to the Kansas regulations at issue in these

cases.

The conditional release and parole eligibility statutes

in Kansas have not changed since respondents committed

their sexual crimes, nor have respondents’ sentences

changed, and they make no such claims. Moreover, not

even the total amount of good time credits available to

respondents has changed. Rather, respondents are com-

plaining about changes in administrative regulations

designed to implement statutory directives and to main-

tain prison discipline and safety. With respect to condi-

tional release dates, those regulations originally adopted

an approach contrary to the plain statutory language and

to the unwarranted benefit of inmates such as respon-

dents. With respect to parole eligibility dates, the regula-

tions have simply further refined what constitutes good

behavior and the sanctions for misconduct. But there has

been no change in the Kansas penal statutes that “alters

the definition of criminal conduct or increases the penalty

by which a crime is punishable.” California Dept. of Correc-

tions v. Morales, 514 U.S. 506 n. 3 (1995); see also Dobbert v.

Florida, 432 U.S. 282, 293-94 (1977) (ex post facto question

is whether the statutory amendment changes “the quan-

tum of punishment”).

2. Second, this Court’s decision in Weaver, on which

the Kansas Supreme Court relied almost exclusively, is

distinguishable. Weaver involved a statute that reduced

the amount of good time credits available even if the

inmate complied with good behavior requirements. See

450 U.S. at 26. In Weaver, after the statutory amendment,

the inmates would have received significantly less good

time credit for the very same good behavior. See id. at 33

(“On its face, the statute reduces the number of monthly

gain-time credits available to an inmate who abides by

prison rules and adequately performs his assigned

tasks.”).

That is not true in these Kansas cases. The amended

Kansas regulations do not take away the opportunity for

the same total good time credits as existed before the

changes. Rather, they simply require the earning of good

time credits toward conditional release, as the controlling

statute requires, and they further refine the definition of

good behavior and the consequences of bad behavior

with respect to parole eligibility. The Kansas regulations

do not reduce the “gain time available solely for good

conduct.” Id. at 35.

Moreover, three Justices in Weaver concurred in the

judgment but expressed reservations about constitu-

tionalizing the States’ good time credits systems. Justice

Blackmun wrote that, “[w]ere the Court writing on a

clean slate,” he would reject the ex post facto claim,

analyzing it as follows:

(a) the 1978 Florida statute does not affect

petitioner’s credits earned and accumulated

prior to the effective date of the statute; (b)

“good time” or “gain time” is something to be

earned and is not part of, or inherent in, the

sentence imposed; (c) all the new statute did

was to remove some of petitioner’s hope and a

portion of his opportunity; and (d) his sentence

therefore was not enhanced by the statute. 450

U.S. at 36-37.

Chief Justice (then Justice) Rehnquist also concurred,

declaring the case to be “a close one,” and asserting that

states should retain flexibility in revising good time credit

systems, especially if reductions in good time credits for

good conduct are offset by increases in the availability of

credits that could be earned for more than good conduct.

Id. at 37-38.

Other decisions of this Court invalidating statutory

amendments on ex post facto grounds have clearly

involved detrimental changes in the penal statute itself,

and without regard to any future behavior of the inmate.

See, e.g., Lindsey v. Washington, 301 U.S. 397 (1937)

(invalidating retroactive application of sentencing statute

that required mandatory 15-year sentence rather than

permitting sentence up to 15 years); Miller v. Florida, 482

U.S. 423 (1987) (finding ex post facto violation when state

applied new sentencing guidelines identifying presump-

tive sentence of 5'/2 to 7 years to defendant, rather than

31/2 to 41/2 presumptive sentence applicable at the time of

the offense). On the other hand, the Court has rejected an

ex post facto challenge when the statutory amendment

affects only the opportunity to obtain early release, but not

the actual sentence itself. California Dept. of Corrections v.

Morales, 514 U.S. 499 (1995) (no ex post facto violation

when legislature amended parole provisions to increase

the time between parole hearings for certain categories of

inmates).

3. This Court’s most recent ex post facto decision in

the prison context also raises serious concerns about the

Kansas Supreme Court's decisions in these cases. In Lynce

v. Mathis, 519 U.S. __, 117 S. Ct. 891 (1997), this Court

found an ex post facto violation when Florida amended a

statute, with respect to certain categories of inmates such

as attempted murderers like Lynce, to retroactively cancel

credits previously awarded and used based on over-

crowding of the prison system. 117 S. Ct. at 893. Because

of the credits he accumulated under the prior version of

the statute, Lynce had been released from incarceration.

After the statute was amended to cancel the overcrowd-

ing credits, state authorities reincarcerated Lynce. Thus,

this Court phrased the question as whether the applica-

tion of the amendment cancelling the credits “after they

had been awarded - indeed, after they had resulted in the

prisoners’ release from custody - violates the Ex Post

Facto Clause of the Federal Constitution.” Id. Not sur-

prisingly, the Court found an ex post facto violation.

But both the Court’s careful phrasing of the question

and the concurring opinion by Justice Thomas emphasize

the narrow and specific nature of the holding in Lynce.

Justice Thomas concurred, joined by Justice Scalia, to

drive home the relatively unique circumstances of the

case:

Under these narrow circumstances, I agree

with the Court that the State’s retroactive nulli-

fication of petitioner’s previously accrued, and

then used, release credits violates the Constitu-

tion’s ban on ex post facto lawmaking. I do not,

however, join the majority’s discussion of

Weaver v. Graham, which I find unnecessary to

the resolution of this case. In Weaver, we consid-

ered whether a statute that merely altered the

availability of “good conduct” credits ran afoul

of the Ex Post Facto Clause. The present case

involves not merely an effect on the availability

of future release credits, but the retroactive elim-

ination of credits already earned and used. 117

S. Ct. at 900 (internal citations omitted).

4. Lastly, the Kansas Supreme Court’s opinion relies

almost exclusively on this Court’s decision in Weaver.

Thus, even assuming that prison regulations implicate the

Ex Post Facto Clause, the Kansas Supreme Court's deci-

sion hinges upon the proposition that the primary ques-

tion is whether the effect of the amended regulations is to

disadvantage inmates. But this Court’s recent decisions

addressing whether particular provisions amount to

“punishment” for constitutional purposes take a very

different view.

Indeed, in the sexual predator context and in double

jeopardy challenges to civil forfeiture and civil sanctions,

this Court does not even begin with an “effects” analysis,

but instead first considers legislative purpose. See, e.g.,

Hudson v. United States, 522 U.S. __, 118 S. Ct. 488, 493-95

(1997) (first question is whether enactment is non-puni-

tive on its face or has non-punitive purpose); Kansas v.

Hendricks, 521 U.S. __, 117 S. Ct. 2072 (1997) (same);

United States v. Ursery, 518 U.S. 267 (1996) (same); cf.

Lynce v. Mathis, 519 U.S. __, 117 S. Ct. 891, 897 (1997)

(discussing to what extent legislative purpose may be

relevant to the ex post facto analysis). Moreover, this Court

has held that “whether a sanction constitutes punishment

is not determined from the defendant’s perspective.”

Department of Revenue of Montana v. Kurth Ranch, 511 U.S.

767, 777 n. 14 (1995). See also Harold J. Krent, The Puzzling

Boundary Between Criminal And Civil Retroactive Lawmak-

ing, 84 Geo. L. J. 2143 (1996). The Kansas Supreme Court’s

approach, however — based on this Court’s decision in

Weaver — does not provide any limit to the_reach of the Ex

Post Facto Clause in the prison context, since many

changes in prison regulations arguably have a disadvan-

tageous “effect” on inmates, at least from the inmates’

perspective.

In these Kansas cases, the purposes behind the regu-

latory changes are not punitive. The conditional release

date regulation was amended to conform to the control-

ling statutory directive that good time credits be earned.

The parole eligibility regulations were amended to

increase the incentives for inmates to participate in

important programs available in prison, such as sexual

abuse treatment programs. Overall, these regulatory

changes are designed to improve prison safety, discipline

and order, and to better protect the public when these

inmates are released, not to impose additional criminal

punishment on inmates.

CONCLUSION

For the foregoing reasons, petitioners respectfully

request that this Court grant this petition for writs of

certiorari and set these cases for plenary review, in order

to resolve the splits of authority in the lower federal and

state courts.

Respectfully submitted,

TimotHy G. MADDEN Carta J. STOVALL

Chief Legal Counsel Attorney General

Kansas Dept. of Corrections

900 Jackson St., Suite 400

Topeka, Kansas 66612

(785) 296-4508

STEPHEN R. MCALLISTER

Special Asst. Attorney

General

(Counsel of Record)

301 S.W. 10th Avenue

Topeka, Kansas 66612-1597

(785) 296-2215

August, 1998

APPENDIX INDEX

Page

APPENDIX A

oo ee a he ee la

Ee At S ao A ese e ei See kd whe ae stad, 27a

APPENDIX B

The Kansas Supreme Court Orders Denying

a ee ee Poet oe Oy 8 eee ga 47a

APPENDIX C

The Kansas Supreme Court Orders Denying Recall

Se ee MENIIDS K4 ciicw¥ 54a dee DAN Wis ee K6 0.8 56 oe e's 49a

APPENDIX A

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 79,384

RAYMOND F. STANSBURY,

Appellee/Cross-Appellant,

ROBERT D. HANNIGAN, et al.,

Appellants/Cross-Appellees.

SYLLABUS BY THE COURT

The United States Constitution’s ex post facto prohi-

bition forbids legislative enactment of any law which

imposes a punishment for an act which was not punish-

able at the time it was committed or imposes additional

punishment to that then prescribed.

Two critical elements must be present for a criminal

or penal law to be ex post facto. It must be retrospective,

that is, it must apply to events occurring before its enact-

ment, and it must alter the definition of criminal conduct

or increase the penalty by which a crime is punishable.

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 legisla-

ture increases punishment beyond what was prescribed

when the crime was committed. Thus, even if a statute

merely alters penal provisions accorded by the grace of

the legislature, it violates the clause if it is both retrospec-

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

of the offense.

Kansas Administrative Regulations, when adopted,

have the force and effect of statute. The Kansas Depart-

ment of Corrections, in adopting regulations governing

inmate conduct in the penal institutions of this state, acts

as a quasi-legislative instrumentality exercising delegated

legislative power. Thus, the regulations adopted are

within the ambit of the Ex Post Facto Clause of the United

States Constitution.

When an inmate is afforded the opportunity to pos-

sess personal property, he or she enjoys a protected inter-

est in the ownership of that property that cannot be

infringed without due process. However, the inmate has

no protected right to possession of the property while in

prison.

While states may under certain circumstances create

liberty interests on behalf of inmates, these interests will

be generally limited to freedom from restraint which

imposes an atypical and significant hardship on the

inmate in relation to the ordinary incidents of prison life.

The record is examined in this case involving good

time credits for prisoners, and it is held: (1) The 1993

amendment to K.A.R. 44-6-124 constitutes an ex post

facto application of law to the petitioner and those sim-

ilarly situated; and (2) the incentive level system estab-

lished by Internal Management Policies and Procedures

11-101 does not violate due process.

Appeal from Leavenworth district court, MARTIN

ASHER, judge. Opinion filed June 5, 1998. Affirmed.

Jeff Cowger, special assistant attorney general, and

Carla J. Stovall, attorney general, were on the briefs for

appellants /cross-appellees.

Raymond F. Stansbury, appellee/cross-appellant, was

on the briefs pro se.

The opinion of the court was delivered by

DAVIS, J.: This appeal by the Department of Correc-

tions and cross-appeal by the petitioner inmate involve

two questions. The first question is whether the with-

holding of good time credits from the petitioner under

regulations amended after the petitioner’s crime was

committed violated the Ex Post Facto Clause of the

United States Constitution. The second question is

whether internal management policies adopted after the

petitioner’s sentence, resulting in his loss of privileges,

violates the petitioner’s due process rights under the

United States Constitution. Both matters are questions of

first impression before this court. We transferred this case

from the Court of Appeals. Our jurisdiction is based upon

K.S.A. 20-3017 and K.S.A. 60-2101(b).

The petitioner was tried by jury and convicted on

May 10, 1991, of the charge of rape, which arose out of

circumstances occurring on September 9, 1990. He was

sentenced to the Secretary of Corrections for a term of 10

to 20 years. He began serving his indeterminate sentence

on May 18, 1991.

Prior to April 1994, the petitioner earned 100% of his

authorized good time credits by remaining free of any

prison offenses and by the discretionary grant of good

time credits by the unit team manager. See K.A.R.

44-6-124 (1989). After April 1994, based upon the 1993

amendment to K.A.R. 44-6-124, 100% of the petitioner’s

potential good time credits (120 days) were withheld for

his failure to sign an amended Sex Abuse Treatment

Program (SATP) agreement. In August 1994, another 120

days of good time credits were withheld. Sixty days of

good time credits were withheld in April 1995, and 120

days more were withheld in October 1995. In January

1996, 120 days of good time credits were again withheld.

Before the adoption of Internal Management Policies

and Procedures (IMPP) 11-101 in 1996, the petitioner was

entitled and had certain privileges during his incarcera-

tion, including but not limited, to the following: owner-

ship and possession of a personal television and

handicrafts, use of outside funds, canteen expenditures

up to $140 a month, approved visitors, and incentive pay.

After the adoption of IMPP 11-101, inmates were required

to earn these privileges by generally remaining free of

offenses and demonstrating a willingness to participate in

recommended programs including, in the petitioner’s

case, the SATP. Based upon the petitioner’s refusal to

participate in SATP, he was placed at RAPP 11-101 Level

I. At this level he was no longer allowed a personal

television but did have access to general television, can-

teen expenditures were limited to $20 per month, incen-

tive pay was reduced, and visitors were limited to

immediate family.

After exhausting his administrative remedies, the

petitioner filed a petition for writ of habeas corpus. He

contended that the application of the 1993 amendment to

K.A.R. 44-6-124 to him constituted an ex post facto viola-

tion and violated due process and that the withholding of

good time credits based on his failure to comply with the

SATP violated his Fifth Amendment rights. He also con-

tended that the change in his prison conditions and loss

of privileges as the result of his classification under IMPP

11-101, constituted a violation of the Ex Post Facto Clause

of the United States Constitution.

The trial court narrowed the issues in pretrial confer-

ence to the following: the alleged Fifth Amendment viola-

tion, the ex post facto nature of the 1993 amendment to

K.A.R. 44-6-124, the ex post facto nature of the applica-

tion of the IMPP 11-101 system, and a claim that the

actions of the respondents violated the Eighth Amend-

ment.

The trial court held that the 1993 amendment to

K.A.R. 44-6-124(g)(6), as applied to the petitioner who

was sentenced in 1991, was an ex post facto law and void

under the United States Constitution. The trial court

denied any further relief. The Department of Corrections

with other named respondents appeal, and the petitioner

cross-appeals. For the reasons set forth below, we affirm

the trial court.

There are two aspects of this appeal. The first aspect

involves good time credits under state statutes and the

Kansas Administrative Regulations. The Department of

Corrections appeals the trial court’s determination that

the 1993 amendment to K.A.R. 44-6-124(g)(6), as applied

to the petitioner, is an ex post facto law. The petitioner

cross-appeals, contending that the 1993 amendment vio-

lated his due process rights and that the trial court erred

in determining that the withholding of good time credits

for the petitioner’s failure to participate in the SATP did

not violate his rights under the Fifth Amendment to the

United States Constitution.

The second aspect of this appeal involves IMPP

11-101, adopted by the Department of Corrections in 1996

and applied to the petitioner, who was convicted and

sentenced in 1991. The petitioner contended before the

trial court that such application was ex post facto,

although he has abandoned this claim on appeal. For the

first time on appeal, he contends that application of the

IMPP violates his due process rights. We consider this an

important constitutional issue and elect to treat his con-

tention even though he failed to address the matter

before the trial court. See State v. Bell, 258 Kan. 123, 126,

899 P.2d 1000 (1995).

Good Time Credits

In Kansas, the award of good time credits is autho-

rized by law. See K.S.A. 21-4722; K.S.A. 22-3725. The

manner in which such credits are earned, awarded, for-

feited, withheld, and accumulated by individual inmates

is governed by duly authorized regulations adopted by

the Department of Corrections. Good time credits serve a

useful purpose within our penal system by providing

incentives for good behavior and inmate participation in

remedial and rehabilitation programs, as well as sanc-

tions for lack of performance and disobedience.

Two important dates are affected by the awarding,

forfeiting, and withholding of good time credits. The first

date is the date on which an inmate becomes eligible to

be considered for parole. See K.S.A. 22-3717. The second

date is the conditional release date which is the date upon

which an inmate is entitled to be released from incarcera-

tion. See K.S.A. 22-3718; Beck v. Kansas Adult Authority,

241 Kan. 13, 29-30, 735 P.2d 222 (1987).

Parole Eligibility

K.A.R. 44-6-124 (1989), in effect when the petitioner

was convicted, provided in pertinent part:

“For parole eligibility, award of good time

credits shall be limited as follows:

“(1) Inmates with no class I offenses dur-

ing the review period shall receive at least

50% of good time credits allocated for that

period.

“(2) Inmates with no class I or II offenses

during the review period shall receive at

least 60% of the good time credits allocated

for that period.

“(3) Inmates with no class I, II or III

offenses during the review period shall

receive at least 70% of the good time credits

allocated for that period.

“(4) Inmates with no class I, II, II or IV

offenses during the review period shall

receive at least 80% of the good time credits

allocated for that period.

“(5) The balance of the credits above the

percentages listed in paragraphs (a)(1) to

(a)(4) shall be awarded by the unit team

based on factors of good work, behavior,

}

i +?

and on other performance factors related to

effective rehabilitation of the inmate.”

The regulation further provided that the unit team

had the discretion to refuse to award all or part of that

portion of credits for which it had discretion, or 20% of the

total available for cooperation or non-cooperation,

including the inmate’s nonparticipation in programs.

K.A.R. 44-6-124(b) (1989).

According to the provisions of K.S.A. 22-3717(a), an

inmate “shall be eligible for parole after serving the entire

minimum sentence imposed by the court, less good time

cre¢’ts.” Under the provisions of the regulation in effect

at the time of the petitioner’s conviction, good time

credits earned were applied to the inmate’s minimum

sentence to determine the date he or she was eligible for

parole. The more good time credits earned, the earlier the

inmate became eligible for parole. As indicated above, the

petitioner in this case earned 100% of available good time

credit until application of the 1993 amendment to K.A.R.

44-6-124 discussed below.

Conditional Release Date

K.A.R. 44-6-108(c) (1989), which was also in effect

when the petitioner was sentenced, stated in pertinent

part that “[t]o establish the conditional release date, good

time credits, not forfeited, shall be presumed earned and

shall be applied to the maximum sentence term when

first computed.” (Emphasis added.) Thus, an inmate’s

conditional release date was computed based upon the

presumption that he or she would earn all good time

credits available under the system then in effect. These

good time credits were then applied to the inmate’s maxi-

mum sentence, thereby fixing the time the inmate was

entitled to be released from incarceration, the inmate's

conditional release date. Any forfeiture of good time

credits because of institutional offenses after parole eligi-

bility had been reached would result in the forfeited time

being added to the inmate’s conditional release date up to

the maximum sentence, thereby extending the time the

inmate would be incarcerated. See K.A.R. 44-6-125(b)

(1989).

Thus, credits for parole eligibility had to be actually

earned under the system as it existed at the time the

petitioner was convicted, while good time credits for the

conditional release date were awarded at the outset of his

sentence. For the purposes of earning parole eligibility, an

inmate with no class I offenses during the review period

would receive at least 50% of the good time credits for

that period. An inmate with no class I, II, III, or IV

offenses was guaranteed to receive at least 80% of the

allocated good time credits. The balance of the credits

were discretionary and could be awarded or not awarded

for a variety of reasons, including failure to construc-

tively participate in a program. See K.A.R. 44-6-124(b)

(1989).

In addition, the petitioner’s conditional release date

was set at the beginning of his sentence based upon the

presumption that he would earn all available good time

credits authorized by 22-3725. See K.A.R. 44-6-108 (1989).

As the respondents state in their brief on appeal, “[a]t the

time of petitioner’s crime, pursuant to K.S.A. 22-3725, he

was entitled to have the opportunity to be_able to earn a

potential total of ten (10) years of good time credit off of

10a

his sentence.” Thus, the petitioner’s conditional release

date was 10 years less than the maximum sentence of 20

years.

The 1993 amended version of K.A.R. 44-6-124(a) pro-

vided:

“(flor crimes, other than class A crimes, commit-

ted prior to July 1, 1993, an inmate may earn

good time credits which shall be subtracted

from the minimum sentence in order to establish

a parole eligibility date or the maximum sen-

tence in order to establish the conditional

release date.”

Moreover, K.A.R. 44-6-124(g) (1994) provided a marked

change in awarding and withholding good time credits:

“(g) An inmate’s disciplinary record shall

affect the earning of good time awards in the

following manner.

“(1) A guilty finding of a class I disciplin-

ary offense shall result in the withholding of a

minimum of 50% of the good time credits avail-

able for that program classification review

period.

“(2) A guilty finding of a class II disciplin-

ary offense shall result in the withholding of a

minimum of 25% but not more than 50% of the

: good time credits available for that program

classification review period.

“(3) A guilty finding of a class II disci-

plinary offense shall result in the withholding of

a minimum of 10% but not more than 25% of the

good time credits available for that program

classification review period... .

eet

pet ee

Re ak ch el ts

ree ee ene

;

lla

“(6) A pattern of refusal by an inmate to

constructively work or participate in assigned

programs shall result in the withholding of 100%

of the good time credits for that program classi-

fication review period, unless the inmate is

determined by the facility health authority to be

physically or mentally incapable of working or a

participating in a particular program or detail.”

(Emphasis added.)

The effect of the change on the petitioner was sub-

stantial. The trial court illustrated this point by incor-

porating into its memorandum decision the authorities

and ruling of its earlier decision on the same issue,

wherein it stated:

“Under the prior regulations, an inmate

without a disciplinary violation was automat-

ically awarded 80% of the good time credits

available for the review period with the remain-

ing 20% left to the discretion of the unit team.

Under the current regulations, an inmate with-

out a disciplinary violation, could lose 100% of

the good time credit available because of failure

to participate in a program; which is exactly the

plight of the petitioner.”

The plight of this petitioner is the same. He refused

to participate in the SATP, and under the provisions of

K.A.R. 44-6-124(g)(6), his failure to participate “shall [and

did] result in the withholding of 100% of the good time

credits for that program classification review period.”

(Emphasis added.) Under the system in effect when the

petitioner was sentenced he, without offenses, was guar-

anteed 80% good time credits, while under the 1993

12a

amendment, without offenses, 100% of his good time

credits were withheld because of his failure to participate

in the SATP. The change applied retrospectively, altering

the method by which good time credits were awarded

and forfeited or withheld. It is this withholding that

altered penal provisions accorded by the grace of the

Department of Correction jsic] in its regulations.

In addition to affecting his or her parole eligibility

date, the application of K.A.R. 44-6-124 may also have an

adverse affect upon an inmate’s conditional release date.

K.A.R. 44-6-124 provides that

“(flor crimes, other than class A crimes, commit-

ted prior to July 1, 1993, an inmate may earn

good time credits which shall be subtracted

from the minimum sentence in order to establish

a parole eligibility date or the maximum sentence

in order to establish the conditional release date.”

(Emphasis added.)

Effective March 1, 1995, the Department of Correc-

tions adopted K.A.R. 44-6-142 (1996 Supp.), which pro-

vided in part:

“When computing the conditional release

date, it shall be presumed that prior to March 1,

1995, 100% of the available good time credits

were earned. On and after March 1, 1995, good

time credits shall be awarded on an earned basis

pursuant to K.A.R. 44-6-124 for the purpose of

determining the conditional release date.”

The record is unclear whether good time credits were

subtracted from the petitioner’s maximum sentence prior

to March 1, 1995, to establish his conditional release date

based upon the withholding of 100% for his failure to

13a

participate in the SATP. What is apparent is that in April

1994, pursuant to the 1993 amendment to K.A.R. 44-6-124,

100% of the petitioner’s potential good time credits (120

days) were withheld for his failure to sign an amended

SATP agreement. In August 1994, another 120 days of

good time credits were withheld. Sixty more days of good

time credits were withheld in April 1995, and 120 days

more were withheld in October 1995. In January 1996, 120

days of good time credits were again withheld.

After March 1, 1995, good time credits would no

longer be presumed but would have to be earned. How-

ever, in the petitioner’s case, his failure to participate in

the SATP resulted in the withholding of 100% of his good

time credits. Thus, what was under the regulations in

existence at the time the petitioner was sentenced a pre-

sumption that he earned all good time credits available,

thereby setting his conditional release date, now becomes

a matter that must be earned and is subject to 100% good

time credits being withheld for failure to participate in

the SATP. The respondents state in their brief:

“At the time of petitioner’s crime, pursuant to

K.S.A. 22-3725, he was entitled to have the

opportunity to be able to earn a potential total

of ten (10) years of good time credit off of his

sentence. The amendment to K.A.R. 44-6-124 did

not change that, he still has the same amount of

potential good time credit available, ten (10)

years.”

However, prior to the 1993 amendment, the petitioner’s

conditional release date was fixed by the presumption

that all available good time credits were earned. This date

l4a

could only be changed if he lost credits for committing

offenses.

The United States Constitution’s ex post facto prohi-

bition provides: “No Bill of Attainder or ex post facto

Law shall be passed.” U.S. Const., art. 1, § 9, cl. 3; see art.

1, § 10, cl. 1. Its prohibition forbids legislative enactment

of any law which imposes a punishment for an act which

was not punishable at the time it was committed or

imposes additional punishment to that then prescribed.

In order for a law to be considered ex post facto, two

critical elements must be present. The law must be retro-

spective, applying to events occurring before its enact-

ment, and it must disadvantage the offender affected by

it. Weaver v. Graham, 450 U.S. 24, 29, 67 L. Ed. 2d 17, 101 S.

Ct. 960 (1981). In Weaver, the United States Supreme

Court noted:

“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 punish-

ment 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.” 450

U.S. at 30-31.

Political subdivisions of a state, or quasi-legislative

instrumentalities, exercising delegated legislative power

are within the ambit of the Ex Post Facto Clause. 16A

C.J.S., Constitutional Law § 409, p. 355. Administrative

regulations adopted in accordance with the procedures

set forth by the legislature have the force and effec« of

;

15a

law in Kansas. See K.S.A. 77-425. This statute provides in

part:

“Every rule and regulation other than a

temporary rule and regulation which is filed by

the state agency in the office of the secretary of

state as provided in this act shall have the force

and effect of law on and after the date pre-

scribed in K.S.A. 77-426, and amendments

thereto, until amended or revoked as provided

by law and such amendment or revocation shall

have become effective.”

The Kansas Department of Corrections is a state agency.

In adopting regulations governing the granting, with-

holding, and forfeiture of good time credits, it acts as a

political subdivision exercising delegated legislative

power. As such, its regulations adopted are within the

ambit of the Ex Post Facto Clause of the United States

Constitution.

Weaver addressed the question of whether a change

in Florida’s provisions for prison “gain-time credits” con-

stituted an ex post facto law. The factual situation in

Weaver is somewhat similar to the case at hand. Under

Florida law, inmates were awarded a certain number of

gain-time credits automatically simply for avoiding disci-

plinary infractions and for performing assigned tasks. 450

U.S. at 26. In 1978, however, the system was changed in

that the number of gain-time credits awarded automat-

ically was reduced, although extra gain-time credits were

available to those inmates who performed meritorious

and outstanding work. 450 U.S. at 26-27, 34-35.

The inmate in Weaver argued that this change in

regulations constituted an ex post facto law, and the

16a

United States Supreme Court agreed. 450 U.S. at 27-28. In

reaching this conclusion, the Court noted that the avail-

ability of gain time is one determinant in an inmate’s

prison term and, thus, the prison term is altered when

this determinant is changed. 450 U.S. at 32. The Court

concluded that the Florida statute was applied retrospec-

tively and further was disadvantageous to the petitioner

and those persons similarly situated, saying:

“On its face, the statute reduces the number of

monthly gain-time credits available to an inmate

who abides by prison rules and adequately per-

forms his assigned tasks. By definition, this

reduction in gain-time accumulation lengthens

the period that someone in petitioner’s position

must spend in prison. . . . Here, petitioner is

. . . disadvantaged by the reduced opportunity

to shorten his time in prison simply through

good conduct.” 450 U.S. at 33-34.

The Court in Weaver stated that it did not matter that

Florida’s new statutory scheme enabled the inmate to

earn more good time credits through satisfying extra

conditions. 450 U.S. at 35. The Court noted: —

“The fact remains that an inmate who performs

satisfactory work and avoids disciplinary viola-

tions could obtain more gain time per month

under the repealed provision [citation omitted],

than he could for the same conduct under the

new provision [citation omitted]. To make up

the difference, the inmate has to satisfy the extra

conditions specified by the discretionary gain-

time provisions. Even then, the award of the

extra gain time is purely discretionary, contin-

gent on both the wishes of the correctional

authorities and special behavior by the inmate,

17a

such as saving a life or diligent performance in

an academic program.” 450 U.S at 35.

Accordingly, the Court found that the new regulations

were ex post facto as applied to Weaver. 450 U.S. at 36.

Weaver was cited by the United States District Court

for the Western District of Oklahoma in another case

similar to the one at hand. See Spradling v. Maynard, 527 F.

Supp. 398 (W. D. Okla. 1981). In Spradling, the statutes in

effect prior to September 1976 provided a system similar

to that in Kansas where good time credits were automat-

ically applied to an inmate’s sentence, although they

could later be forfeited for disciplinary infractions. Okla-

homa then amended the system to one in which the

inmate was forced to earn the credits. In finding that the

change constituted an ex post facto law as applied to the

complaining inmate, the court stated:

“It is clear from a reading of the provisions

of § 138, as they existed prior to September 8,

1976 and as they exist at this time, that the

amendment of that provision in 1976 required an

inmate to ‘earn’ credits by satisfying certain con-

ditions, whereas previously such credits were

automatic, subject only to being forfeited at a

later date for disciplinary reasons. As in Weaver,

the 1976 amendment made more onerous the

punishment for crimes committed before its

enactment. Thus, under Weaver, petitioner, and

others similarly situated, are entitled to the bene-

fits of § 138 as it existed prior to September 8,

1976, i.e., the automatic “good time” credits

against sentences imposed for crimes committed

before September 8, 1976. . . . ” 527 F. Supp. at

404.

18a

The petitioner’s position is similar to those in Weaver

and Spradling. At the time the petitioner was sentenced,

he would, absent disciplinary infractions, earn 80% of his

available good time credits, with the remaining 20% sub-

ject to discretionary award by the unit team manager.

K.A.R. 44-6-124 (1989). While this 20% may have been

forfeited for failure to participate in rehabilitation pro-

grams, no provision within the regulations in effect at the

time the petitioner was sentenced related to the forfeiture

or withholding of all available good time credits for such

failure. These good time credits were applied to the peti-

tioner’s minimum sentence of 10 years to determine his

parole eligibility date.

After the adoption of the 1993 amendments to K.A.R.

44-6-124 which expressly applied to the petitioner, 100%

of the petitioner’s good time credits were mandatorily

withheld based upon his refusal to participate in the

SATP. See K.A.R. 44-6-124(g)(6). The result in the peti-

tioner’s case was to extend the time he would have to

serve before being eligible for parole. Thus, the regula-

tion as applied to the petitioner was retrospective in that

it applied to events occurring before its enactment and it

disadvantaged the offender affected by it. See Weaver, 450

U.S. at 29.

Moreover, the 1993 amendment to K.A.R.

44-6-124(g)(6), in conjunction with the 1995 amendment

to K.A.R. 44-6-142, changed the way the petitioner’s con-

ditional release date was determined. As the petitioner

was convicted and began his sentence, he was presumed

to earn all available good time credits or 10 years. See

K.A.R. 44-6108(c) (1989); K.A.R. 44-6-142 (1989). After the

1995 amendment he was required to earn good time

19a

credits, and his failure to participate in the SATP resulted

in the loss of 100% of his good time credits as it related to

his conditional release date. The effect upon the peti-

tioner was to extend his conditional release date based

upon his failure to earn good time credits because of his

refusal to participate in the SATP. Again, the regulation as

applied to the petitioner was retrospective in that it

applied to events occurring before its enactment, and it

disadvantaged the offender affected by it. See Weaver, 450

U.S. at 29.

Does it matter that the 1993 amendment to K.A.R.

44-6-124(g)(6) uses the term “withholding” rather than

“forfeiting”? In Gilmore v. McKune, 22 Kan. App. 2d 167,

169-70, 915 P.2d 779 (1995), the Court of Appeals found

that there was a distinction between the withholding of

good time credits and the forfeiture of good time credits,

with the latter constituting a penalty but the former not

doing so. The distinction by the Court of Appeals is that

forfeited good time credits such as those for disciplinary

actions may not be restored to the inmate while withheld

good time credits may presumably be restored. However,

whether the good time credits are withheld or forfeited,

; inmates under the prior system are still subject to a loss~

: of such credits for their failure to participate in the SATP

: in that good time credits which have already been

awarded to them are withheld. Therefore, as to the peti-

tioner and others similarly situated, the Court of

Appeals’ decision in Gilmore does not apply.

a Le 3

The respondents argue that the recent decision of the

United States Supreme Court in California Dept. of Correc-

tions v. Morales, 514 U.S. 499, 131 L. Ed. 2d 588, 115 S. Ct.

1597 (1995), changes the Weaver analysis and, therefore,

20a

should change the result in this case. In Morales, the

Court addressed a statutory change which lengthened the

period of time between parole hearings. The Court deter-

mined that the application of the increased time between

parole hearings to inmates whose crimes were committed

before the change did not constitute an ex post facto

violation. 514 U.S. at 514. In doing so, the Court refined

the ex post facto analysis, stating that rather than focus-

ing on whether the change in the law worked to the

disadvantage of the inmate, the focus should be on

whether the change alters the definition of criminal con-

duct or increases the penalty by which a crime is punish-

able. See 514 U.S. at 506-07, n.3.

Morales does refine the focus of the ex post facto

analysis. However, Morales does not compel a contrary

result with regard to the award of good time credits used

to calculate conditional release in this case. The effect of

the 1993 amendment was to force the petitioner to earn

credits he had already been awarded, and for each good

time credit the petitioner failed to earn, his conditional

release date and, thus, the actual term of his punishment,

would be extended. Thus, even under the Morales anal-

ysis, the application of the 1993 amendment to those good

time credits used to calculate the petitioner’s conditional

release date would be ex post facto.

With regard to the award of good time credits used to

calculate parole eligibility, the question is much closer. In

Morales, the Court noted that the focus should not be on

whether an amendment affects a prisoner’s “ ‘opportunity

to take advantage of provisions for earlier release.’ ” 514

U.S. at 506-07, n.3. This would seem to suggest that if the

effect of the 1993 amendment on the good time credits

21a

used to calculate parole eligibility is to merely alter the

petitioner’s opportunity to take advantage of provisions

for early release, it does not constitute an ex post facto

application of law. However, the amendment we deal with

in this case goes beyond merely allowing the petitioner an

opportunity to take advantage of provisions for an earlier

release date. The amended regulation actually forces the

petitioner to engage in the required program or risk the

loss of good time credits which would automatically be

earned under the old system. As a result, it has a very

direct effect on the petitioner’s parole eligibility and also

constitutes an ex post facto application of law.

As a result, the district court was correct in determin-

ing that the application of the 1993 amendment to K.A.R.

44-6-124(g)(6) to the petitioner constituted an ex post

facto application of law. The respondents’ appeal must

fail. Based upon our conclusion, we need not address the

questions raised by the petitioner’s cross-appeal regard-

ing whether the 1993 amendment constitutes a denial of

due process or a violation of the petitioner’s Fifth

Amendment rights.

Internal Management Procedures and Policies

The petitioner also contends in his cross-appeal that

subjecting him to the IMPP 11-101 level system because of

his failure to participate in the SATP violated his due

process rights. In order to properly address this issue,

some background on the level system created by IMPP

11-101 is necessary.

IMPP 11-101 is an internal management policy and

procedure concerning offender privileges and incentives.

Under IMPP 11-101, inmates can earn certain privileges,

including television ownership, handicrafts, participation

in organizations, use of outside funds, canteen expendi-

tures, property, incentive pay, and visitation. Under IMPP

11-101, there are several levels of privileges. At Level I,

the level at which the petitioner was placed following his

refusal to participate in the SATP, the inmate may not

have a personal television but has access to general tele-

vision. Inmates at Level I are limited in activities, have

limited expenditures at the canteen up to $20, may earn

up to 60¢ per day in incentive pay, and may receive

visitors from immediate family. At Level III, the highest

level for inmates, the inmate may purchase a personal

television, spend up to $140 in the canteen on a more

extensive list of items, and may have any approved visi-

tor.

In order to move from level to level, the inmate must

remain free of class I or class II disciplinary reports and

demonstrate a willingness to participate in recommended

programs and/or work assignments for a full review

cycle of a minimum of 120 days. An inmate may lose

levels for disciplinary offenses and is automatically

reduced to Level I in the event the inmate is terminated

from a work program for cause, refuses to participate in a

recommended program such as SATP, commits felony

offenses or has serious disciplinary offenses.

When an inmate loses levels, property items which

the inmate is-no longer authorized to have are removed

from the facility. The first time an inmate is removed from

Level II or III to Level I, unauthorized items purchased

by the inmate at the canteen such as televisions, sound

equipment, and large appliances are stored for the inmate

Ditto vena

uray TONLE TES IIR PRE i AN M S Asap

23a

at the facility and returned to the inmate when the inmate

advances back to a level at which they are authorized.

~ However, if the inmate is returned to Level I a second

time or fails to advance to Level II at the earliest possible

time, these items are removed from the facility.

When an item is removed from the facility, the

inmate has the choice of having the item mailed to an

address of the inmate’s choosing at the inmate’s expense

or with the approval of the warden at the expense of the

facility, donating the item to charity, having the property

picked up by an authorized person, or having the prop-

erty delivered to a local address ‘by the facility upon the

approval of the warden. At the time IMPP 11-101 was

implemented on January 1, 1996, all inmates currently

incarcerated were placed at Level Ill, the highest level

available. At this level, the inmates enjoyed the same

privileges that existed prior to implementation of IMPP

11-101.

The petitioner contends that as the result of his non-

participation in the SATP, he was made subject to IMPP

11-101 and reduced to Level I, with the result being that

certain privileges and property that he had been allowed

were taken away. He contends that this violated due

process.

As we have already noted, the petitioner did not

raise this argument before the district court. Instead, he

argued that subjecting him to IMPP 11-101 was an ex post

facto application which he appears to have abandoned.

Ordinarily, issues not raised before the trial court cannot

be raised on appeal. Ripley v. Tolbert, 260 Kan. 491, Syl.

q 6, 921 P.2d 1210 (1996). However, we have recognized

24a

an exception to this rule where consideration of the issue

is necessary to serve the ends of justice or to prevent the

denial of fundamental rights. See State v. Bell, 258 Kan.

123, 126, 899 P.2d 1000 (1995). As the due process issue

raised in the petitioner’s appeal is an important one, we

now address it.

The first step in this analysis is to determine whether

the petitioner’s property interests were infringed upon.

The petitioner contends that when he was reduced to

Level I, his personal property was confiscated.

The Court of Appeals has held that when inmates are

afforded the opportunity to possess personal property,

they enjoy a protected interest in that property that can-

not be infringed upon without due process. Bryant v.

Barbara, 11 Kan. App. 2d 165, 167-68, 717 P.2d 522, rev.

denied, 239 Kan. 693 (1986). This reasoning is sound, in

that once an inmate owns certain property, the ownership

of that property may not be taken from him or her with-

out due process of law. However, there is a difference

between the inmate’s ownership rights in the property

and the inmate’s right to possess the property while in

prison.

Under IMPP 11-101, when an inmate is reduced to

Level I so that certain property which is in his or her

possession may no longer be possessed by the inmate in

prison, the property is not taken from his or her owner-

ship. Instead, if this reduction to Level I is the first for the

inmate, the property is stored at the institution until the

inmate has either regained a level or failed to advance. If

the inmate does regain a level, the inmate receives the

property back. Otherwise, in every other case where the

Me NL

ee SEED PRM SOA OT) SPR NILE RE TAD WER Se! 5

25a

reduction to Level I is not the first such reduction for the

inmate, the property must leave the institution. However,

this does not deny the inmate ownership of the property.

Instead, the inmate has the choice of having the item

mailed to an address of the inmate’s choosing at the

inmate’s expense or with the approval of the warden at

the expense of the facility, donating the item to charity,

having the property picked up by an authorized person,

or having the property delivered to a local address by the

facility upon the approval of the warden.

Courts have held that where an inmate has been

allowed to send property the inmate owns but is not

allowed to possess in prison from the institution to an

address of his or her own choosing, the inmate has not

been deprived of the property so as to implicate the due

process clause. See Williams v. Meese, 926 F.2d 994, 998

(10th Cir. 1991); Pryor-El v. Kelly, 892 F. Supp. 261, 271

(D.D.C. 1995). Thus, although the petitioner was not

allowed possession of the property in the case at hand, he

did not lose ownership of the property, and therefore

there was no taking sufficient to implicate due process.

Next, this court must address whether the restric-

tions imposed by IMPP 11-101 infringed upon the pro-

tected liberty interest of the petitioner. The first question

in this analysis is whether the petitioner had a liberty

interest in being allowed to possess certain property or

enjoy certain activities and status available to him at

Level III but denied at Level I. In Sandin v. Conner, 515

U.S. 472, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995), the

United States Supreme Court held that while states may

under certain circumstances create liberty interests, these

interests will be generally limited to freedom from

restraint which imposes an atypical and significant

Bits! '

26a

hardship on the inmate in relation to the ordinary inci-

dents of prison life. See Murphy v. Nelson, 260 Kan. 589,

600-01, 921 P.2d 1225 (1996).

The restrictions imposed at Level I do not impose an

atypical or significant hardship on the petitioner in rela-

tion to the ordinary incidents of prison life. While the

petitioner is denied the use of certain personal electronic

equipment, this does not impose a significant hardship.

Nor do the restrictions on purchases at the canteen or the

types of purchases and personal property allowed consti-

tute an atypical hardship. While Level I has a restriction

on visitation, the United States Supreme Court has held

that the denial of prison access to a particular visitor is

well within the terms of confinement ordinarily contem-

plated by a prison sentence. See Kentucky Dept. of Correc-

tions v. Thompson, 490 U.S. 454, 461, 104 L. Ed. 2d 506, 109

S. Ct. 1904 (1989). Also, while Level I imposes some

incentive pay restrictions, it has been held that an inmate

does not have a constitutionally protected interest in

employment. See Templeman v. Gunter, 16 F.3d 367, 370

(10th Cir. 1994). It is true that the test for whether a

restriction is a significant hardship is not whether such

restriction would violate due process on its own. See

Sandin, 515 U.S. at 486. However, neither the restrictions

on visitaticn nor incentive pay constitute a significant or

an atypical hardship on an inmate which would not have

been contemplated in his or her original sentence.

As a result, the application of IMPP 11-101 to the

petitioner does not violate process.

Affirmed.

McFARLAND, C.J., dissenting.

27a

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 78,722

MICHAEL A. BANKES,

Appellant,

Vv.

CHARLES SIMMONS, et al.,

Appellees.

SYLLABUS BY THE COURT

Proceedings on a petition for writ of habeas corpus

filed pursuant to K.S.A. 60-1501 are not subject to ordi-

nary rules of civil procedure. To avoid summary dis-

missal of a K.S.A. 60-1501 petition, allegations must be

made of shocking and intolerable conduct or continuing

mistreatment of a constitutional stature.

y &

The Fifth Amendment to the United States Constitu-

tion not only permits a person to refuse to testify against

himself or herself at a criminal trial in which he or she is

the petitioner, but also gives the person the privilege not

to answer official questions in any other proceeding, civil

or criminal, formal or informal, where the answers might

incriminate that person in future criminal proceedings.

A witness protected by the privilege against self-

incrimination may rightfully refuse to answer questions

that would incriminate the witness unless and until he or

she is protected at least against the use of his or her

compelled answers and evidence derived therefrom in

a a ee eee

28a

any subsequent criminal case in which he or she is a

defendant. Absent such protection, if the witness is nev-

ertheless compelled to answer, the witness’ answers are

inadmissible against him or her in a later criminal pros-

ecution.

Appeal from Reno district court; WILLIAM F. LYLE,

JR., judge. Opinion filed June 5, 1998. Affirmed in part

and reversed in part.

Michael K. Lehr, of Wichita, argued the cause and was

on the brief, for appellant.

Timothy G. Madden, Chief Legal Counsel, Kansas

Department of Corrections, argued the cause and was on

the brief, for appellees.

The opinion of the court was delivered by

ABBOTT, J.: This is a habeas corpus action brought

by Michael A. Bankes, a prisoner in the Hutchinson Cor-

rectional Facility (HCF). Bankes was convicted of inde-

cent liberties with a child and sentenced to 4 to 15 years

in prison in 1990. Some time after his sentencing, Bankes’

unit team at the HCF recommended that he participate in

the Sexual Abuse Treatment Program (SATP). In order to

be admitted into SATP, Bankes was required to admit

guilt for the crime of which he was convicted. This

admission of guilt, along with any other information

which Bankes conveyed to SATP counselors, could be

turned over to authorities and used against Bankes in

future proceedings. Due to this required admission of

guilt, Bankes refused to participate in SATP. As a result of

29a

his refusal to participate in SATP, Bankes’ privilege incen-

tive level was reduced from a level 2 to a level 1, pur-

suant to the Kansas Department of Corrections Internal

Management Policies and Procedures (IMPP) Rule 11-101

(1998). Because of this reduction in his privilege incentive

level, Bankes lost his personal TV and certain canteen

privileges. Moreover, for each program review period in

which Bankes refused to participate in the recommended

SATP, he did not receive any good time credits pursuant

to K.A.R. 44-6-134. This denial of good time credits

resulted in an extension of Bankes’ parole eligibility date

and his conditional release date. Both IMPP 11-101 and

K.A.R. 44-6-124 were amended to create this outcome

after Bankes had been sentenced and served part of his

sentence. Based on these consequences for his refusal to

participate in SATP, Bankes filed a petition for habeas

corpus in Reno County District Court, alleging that

K.A.R. 44-6-124 violated his privilege not to incriminate

himself and constituted an ex post facto law. The Reno

County District Court dismissed Bankes’ habeas corpus

petition for failure to state a claim. Bankes appealed this

ruling to the Court of Appeals. The case was transferred

to this court pursuant to K.S.A. 20-3018(c).

Bankes’ 4- to 15-year sentence did not include any

order for Bankes to participate in any kind of psychologi-

cal or psychiatric treatment for sexual offenders. The

Kansas Department of Corrections (KDOC) placed

Bankes in the Hutchinson Correctional Facility (HCF). At

the time of his placement with the HCF, Bankes was not

ordered to participate in any kind of psychological or

psychiatric counseling for sexual offenders.

30a

Further, at the time Bankes was sentenced to prison,

KDOC had set out regulations in K.A.R. 44-5-104 and

K.A.R. 44-5-105. K.A.R. 44-5-105 required that all inmates

incarcerated in a KDOC facility be subject to a program

plan conducted by a unit team within 1 month of an

inmate’s admission into prison. The plan could assign an

inmate to participate in a certain program, but “the

inmate [could] not be penalized for refusal to participate

in a formal program plan.” K.A.R. 44-5-104 classified the

security level of the inmate. The inmate’s security level

determined his supervision requirements and his allow-

able privileges and freedoms. The factors necessary to

determine an inmate’s security level, pursuant to K.A.R.

44-5-104, and the supervision and privileges associated

with each level were set out in the Secretary of Correc-

tions’ Internal Management Policies and Procedures man-

ual (IMPP).

On February 9, 1993, and July 11, 1994, Bankes’ pro-

gram plan was reviewed by his unit team. These reviews

did not order Bankes to attend a program for sexual

offenders, and it classified Bankes as a medium security

inmate pursuant to K.A.R. 44-5-104.

Good time credits are applied to an inmate’s mini-

mum sentence to determine his or her parole eligibility

date and are applied to the inmate’s maximum sentence

to determine his conditional release date. K.A.R.

44-6-101(g), (m); K.A.R. 44-6-108. Upon reaching the con-

ditional release date, an inmate is entitled to be released.

See K.S.A. 22-3718; Beck v. Kansas Adult Authority, 241

Kan. 13, 29, 735 P.2d 222 (1987).

~ ee

3la

K.A.R. 44-6-108(c), which was in effect when Bankes

committed his crime, stated, in pertinent part, that “[t]o

establish the conditional release date, good time credits,

not forfeited, shall be presumed earned and shall be applied

to the maximum sentence term when first computed.”

(Emphasis added.) Thus, it was presumed for the purpose

of conditional release that the inmate earned all available

good time credits, and his or her conditional release date

was predicated on that presumption. For parole eligi-

bility, on the other hand, no such presumption applied,

and the credits were tallied as earned to establish parole

eligibility. See K.A.R. 44-6-108(b) (1989).

K.A.R. 44-6-124 (1989) provided guidelines for

awarding good time credits for parole eligibility. No guide-

lines for the award of good time credits for conditional

release were necessary, as 100% was presumed. The regu-

lation stated:

“(1) Inmates with no class I offenses dur-

ing the review period shall receive at least 50%

of good time credits allocated for that period.

“(2) Inmates with no class I or II offenses

during the review period shall receive at least

60% of the good time credits allocated for that

period.

“(3) Inmates with no class I, I, or III

offenses during the review period shall receive

at least 70% of the good time credits allocated

for that period.

“(4) Inmates with no class I, II, Il or IV

offenses during the review period shall receive

at least 80% of the good time credits allocated

for that period.

32a

“(5) The balance of the credits above the

percentages listed in paragraphs (a)(1) to (a)(4)

shall be awarded by the unit team based on

factors of good work, behavior, and on other

performance factors related to effective reha-

bilitation of the inmate.” K.A.R. 44-6-124(a)

(1989).

The regulation went on to further provide that the unit

team had the discretion to refuse to award all or part of

the portion of credits for which it had discretion based on an

inmate’s refusal to participate in recommended pro-

grams. K.A.R. 44-6-124(b) (1989).

K.A.R. 44-6-125(b) provided for the forfeiture of

those good time credits “earned” for parole eligibility as

well as those used to “create the conditional release

date.” It stated:

“Forfeit only on minimum until parole eligi-

bility. Prior to parole eligibility, forfeited good

time credits shall be subtracted from the amount

of good time credits earned toward the parole

eligibility only, and not from those credits used

to create the conditional release date. After

parole eligibility is established, forfeited credits

shall be subtracted from the credits used to form

the conditional release date.” K.A.R.

44-6-125(b)(1989).

Thus, for purposes of parole eligibility, an inmate under

the system as it existed at the time of Bankes’ conviction

was forced to earn his or her good time credits toward

parole eligibility, while good time credits for a condi-

tional release date were awarded at the outset. For the

purposes of earning parole eligibility, an inmate with no

class I offenses during the review period would receive at

- g3a

least 50% of the good time credits for that period. An

inmate with no class I, II, III, or IV offenses was guaran-

teed to receive at least 80% of the allocated good time

credits. The balance of the credits were discretionary and

could be awarded or not awarded for failure to partici-

pate in a program.

In January 1995, K.DOC amended K.A.R. 44-6-124 to

its present form. In pertinent part, it provided that “[a]

refusal by an inmate to constructively work or participate

in assigned programs shall result in the withholding of

100% of the good time credits for that program classifica-

tion review period, unless the-inmate is determined by

the facility health authority to be physically or mentally

incapable of working or participating in a particular pro-

gram or detail.” K.A.R. 44-6-124(g)(6). K.A.R. 44-6-142

was also amended and now provides that, rather than all

available good time credits being presumed earned for

purposes of conditional release, such credits were now

subject to being earned as the sentence progressed, in the

same manner as used for the calculation of parole eligi-

bility.

In addition to these regulatory amendments, the Sec-

retary of Corrections also revised the Department’s inter-

nal management policies and procedures. Under IMPP

11-101, KDOC defined a new privilege incentives level

system, the factors necessary to move up or down an

incentive level, and the supervision and privileges associ-

ated with each level. This revised IMPP 11-101 is called

the “Level System,” and it created a system of incentives

and privileges to encourage inmates to participate in

programs. Under the level system, there are three levels

at which an inmate can be classified. Under level 1,

sds

i ae |

34a

inmates can watch the general TV and spend $20 per

payroll period at the canteen. Under level 2, an inmate

can have a personal TV, and the inmate can spend $80 per

payroll period at the canteen. Obviously, the higher the

level at which an inmate is classified, the more privileges

and liberties the inmate receives. Under IMPP 11-101, if

an inmate is assigned to participate in a certain program

and the inmate refuses, then the inmate can be moved

down an incentive level and lose the privileges associated

with the higher level.

In 1995, Bankes participated in a 120-day program

plan review by his unit team. He was assigned to partici-

pate in SATP. Bankes refused to voluntarily sign the

program review or to participate in SATP. Pursuant to

K.A.R. 44-6-124, 100% of Bankes’ good time credits for

this review period were withheld due to his refusal to

participate in the assigned program.

At his next program review, the unit team again

suggested that Bankes participate in SATP. Bankes contin-

ued to refuse to participate in such treatment. Pursuant to

K.A.R. 44-6-124, 100% of Bankes’ good time credits were

again withheld due to his refusal to participate in SATP.

Eventually, Bankes was reclassified, under IMPP 11-101,

from a level 2 of privileges and incentives to a level 1,

due to his refusal to participate in SATP, and Bankes lost

the privileges associated with a level 2.

One of the main reasons Bankes refused to partici-

pate in SATP is that SATP requires each offender to

“accept responsibility for the offense in which he was

involved.” In order to voluntarily be admitted into SATP,

the program requires that the offender admit guilt to the

35a

crime of which he or she was convicted. As the SATP

admission document states:

“This is to confirm that I understand the

criteria for being accepted into the S.A.T.P. (Sex-

ual Abuse Treatment Program) at Hutchinson

Correctional Facility, which includes an admis-

sion of Guilt for my sex crime. I realize that I am

being allowed to participate in an evaluation for

acceptance into S.A.T.P. with the understanding

that I followed through with an Admission of

Guilt. This document will serve as my official

Admission of Guilt to the following: [space pro-

vided for the inmate to write in the crime to

which they are admitting guilt].”

Bankes objected to this admission of guilt require-

ment and refused to participate in SATP because of this

requirement. At trial, Bankes denied that he committed

the crime. Bankes continues to deny that he committed

the crime and is currently pursuing an appeal of his

conviction in federal court. According to Bankes, confess-

ing guilt for the purpose of admission into SATP would

jeopardize his appeal and subject him to perjury charges

based on his testimony at trial.

In addition to requiring an admission of guilt for the

crime for which the inmate is convicted, SATP also

requires a participant to sign releases allowing the dis-

closure of confidential information gained by the SATP

staff to KDOC personnel, the Kansas Parole Board, and

HCF-SATP coordinator and staff.

Further, SATP requires participants to submit to

polygraph testing as a part of the “treatment process.” An

unwillingness to participate in the polygraph testing as a

- Oo as reyes Tegan ene TNs ary

36a

part of the treatment is considered a violation of the

program agreement and can result in the termination of

SATP treatment. Prior to taking a polygraph test, the

SATP participant must provide an admission of guilt in

his or her own words, an autobiography, a complete

sexual history, and a complete confidential polygraph

questionnaire. The polygraph results are only to be used

for therapeutic purposes and are not to be used to deter-

mine guilt or innocence.

Finally, SATP requires participants to submit to a

plethysmograph examination to evaluate the inmate’s

sexual arousal intensity and interests. Although the

plethysmograph testing is voluntary, if the inmate should

refuse to complete the evaluation or fail to cooperate with

the evaluation, it will be noted and reported to the SATP

treatment team and may constitute grounds for termina-

tion from the program. “3

In 1994, the Kansas Legislature enacted K.S.A.

59-29a01 et seq., the Kansas Commitment of Sexually Vio-

lent Predators Act. Under this Act, if KDOC has informa-

tion about an inmate convicted of a sexually violent

offense which indicates that the inmate has a mental

abnormality or personality disorder and meets the crite-

ria for a sexually violent predator, then KDOC must give

written notice of this information to the Attorney General

before the inmate is released from prison so that the

Attorney General can evaluate whether the inmate is a

sexually violent predator and, if so, pursue commitment

proceedings. KDOC is required to turn over this informa-

tion even if it was gained through SATP. K.S.A.1997 Supp.

59-29a16; K.S.A.1997 Supp. 59-29a03.

37a

The effect of the amendments to IMPP 11-101 and

K.A.R. 44-6-124 on Bankes has been substantial. Prior to

his refusal to participate in SATP, Bankes was assigned to

a level 2 incentive level. Under this level, he was allowed

his own personal TV and was allowed to spend $80 per

pay period at the canteen. However, once Bankes refused

to participate in SATP, his incentive level was reduced

from a level 2 to a level 1 pursuant to IMPP 11-101. This

reduction in incentive level resulted in Bankes losing

access to his own personal TV and only being allowed to

spend $20 per pay period at the canteen. Further, the

amendments to K.A.R. 44-6-124 have affected both

Bankes’ parole eligibility date and his conditional release

date. Prior to the 1993 amendment, his conditional release

date was fixed by the presumption that all available good

time credits were earned. Thereafter, that date could only

be changed if he lost credits for committing offenses.

However, under the 1993 amendment, Bankes became

subject to a mandatory loss of 100% of his good time

credits for failing to participate in a program. Thus, if he

failed to participate, he would stop earning good time

credits, and for every good time credit he failed to earn,

his conditional release date would be extended. Thus,

Bankes is now forced to earn good time credits toward

conditional release, whereas under the prior regulations,

he could only lose them for his improper behavior. He is

also forced to earn good time credits toward parole eligi-

bility, whereas previously he was guaranteed at least a

percentage (80%) of available credits should he not have

any Class I, II, Ill, or IV offenses.

The withholding of Bankes’ earned good time credits

lengthens his sentence for each plan review period he

ry os | Hee Rr Es et. ee

38a

continues to refuse to participate in SATP. Thus far,

KDOC’s action has lengthened his parole eligible date

from November 26, 1994, as of February 9, 1993, to at

least November 8, 1998, as of June 21, 1996, assuming he

earns all his future good time credits by participation in

SATP. His conditional release date has been lengthened

from November 11, 2009, at the time of his incarceration,

to at least May 5, 2011, as of November 5, 1996, assuming

he earns all future good time credits. Bankes’ release

date, without receiving any future good time credits due

to his continued refusal to participate in SATP, is July 21,

2024. This increase in jail time results from his refusal to

participate in SATP, which requires him to not only admit

to the crime he was convicted of, but to admit to other

possible violations of the law by providing a complete

sexual history to his SATP therapists. Should Bankes

make these admissions, they can be released to law

enforcement agencies without any guarantee that they

will not be used against Bankes in any future criminal

proceeding.

On December 26, 1996, Bankes filed this habeas

corpus action in the District Court of Reno County

against his unit team members, the HCF warden, and the

Secretary of KDOC. In this action, Bankes claims that

KDOC’s requirement that he admit guilt for the crime of

which he was convicted and participate in SATP violates

his privilege not to incriminate himself as embodied in

the Fifth Amendment to the United States Constitution

and § 10 of the Kansas Constitution Bill of Rights. Fur-

ther, Bankes asserts that K.A.R. 44-6-124, which mandates

KDOC to withhold his good time credits for refusing to

participate in SATP, constitutes an ex post facto law by

39a

increasing the punishment for a crime for which he had

already been convicted. The District Court of Reno

County dismissed Bankes’ habeas corpus petition for fail-

ure to state a claim for which relief could be granted.

Bankes appealed.

I. FIFTH AMENDMENT

“Proceedings on a petition for writ of habeas

corpus filed pursuant to K.S.A. 60-1501 are not

subject to ordinary rules of civil procedure. To

avoid summary dismissal of a K.S.A. 60-1501

petition, allegations must be made of shocking

and intolerable conduct or continuing mistreat-

ment of a constitutional stature.” Swisher v.

Hamilton, 12 Kan. App. 2d 183, Syl. { 1, 740 P.2d

95 (1987), rev. denied, 242 Kan. 905 (1987).

The question of whether K.A.R. 44-6-124 violates

Bankes’ privilege not to incriminate himself or whether it

is an ex post facto law is a question of law. The district

court found there was no merit to this question and

dismissed Bankes’ habeas corpus petition for failure to

state a claim. However, “this court’s review of conclu-

sions of law is unlimited.” Gillespie v. Seymour, 250 Kan.

123, 129, 823 P.2d 782 (1991). Thus, the district court’s

conclusions are not binding on this court.

The Fifth Amendment to the United States Constitu-

tion and § 10 of the Kansas Constitution Bill of Rights

provide identical language that “[nJo person ‘shall be

compelled in any criminal case to be a witness against

himself.’ ” The Kansas Supreme Court has ruled that the

provisions of § 10 of the Kansas Constitution Bill of

as 906g

6 ono atngnctimnnaamaiinatn, alta

40a

Rights grant no greater protection against self-incrimina-

tion than does the Fifth Amendment to the United States

Constitution. The purpose of the constitutional provi-

sions, both state and federal, is to prohibit the compelling

of self-incriminating testimonial or communicative acts

from a party or a witness.

The Fifth Amendment not only permits a person to

refuse to testify against himself at a criminal trial in

which he is the petitioner, but also “privileges him not to

answer Official questions in any other proceeding, civil or

criminal, formal or informal, where the answers might

incriminate him in future criminal proceedings.” Minne-

sota v. Murphy, 465 U.S. 420, 426, 79 L. Ed. 2d 409, 104 S.

Ct. 1136 (1984), reh. denied, 466 U.S. 945 (1984); Lefkowitz v.

Turley, 414 U.S. 70, 77, 38 L. Ed. 2d 274, 94 S. Ct. 316

(1973). In all such proceedings:

“a witness protected by the privilege may -ight-

fully refuse to answer unless and until he is

protected at least against the use of his com-

pelle@ answers and evidence derived therefrom

in any subsequent criminal case in which he is a

defendant. . . . Absent such protection, if he is

nevertheless compelled to answer, his answers

are inadmissible against him in a later criminal

prosecution.” Lefkowitz, 414 U.S. at 78; see Min-

nesota v. Murphy, 465 U.S. at 426.

In Allen v. Illinois, 478 U.S. 364, 92 L. Ed. 2d 296, 106

S. Ct. 2988 (1986), the defendant challenged the Illinois

State Sexually Dangerous Persons Proceedings Act. The

defendant was charged with committing the crimes of

unlawful restraint and deviant sexual assault. The State

of Illinois filed a petition to have the defendant declared

4la

a sexually dangerous person under an Illinois involun-

tary commitment procedure. Two psychiatrists testified at

the commitment trial and gave an opinion as to the

defendant’s sexual dangerousness. Based in part on this

testimony, the trial court committed the defendant as a

sexually dangerous person. The defendant appealed his

commitment to the United States Supreme Court. The

Court held that the Illinois proceeding for involuntary

commitment of a sexually dangerous person was a civil

proceeding, as opposed to a proceeding of a “criminal”

nature. Therefore, it concluded, the defendant’s Fifth

Amendment privilege against self-incrimination did not

apply to him during such proceedings; thus, his Fifth

Amendment privilege was not violated. However, in

upholding the statute, the United States Supreme Court

specifically noted that the Illinois Supreme Court had

ruled that a person the State attempts to commit under

the Act is protected from the use of his or her compelled

answers in a psychiatric evaluation in any subsequent crim-

inal case, as opposed to civil, ... which he is the defendant.

478 U.S. at 368.

In Kansas, as in Illinois, commitment as a sexually

violent predator is a civil proceeding, not a criminal

proceeding. Since the Fifth Amendment does not apply in

civil settings, the petitioner’s compelled information

required by SATP can be used against him in a civil

commitment proceeding as a sexually violent predator.

The Allen case does not allow the use of compelled infor-

mation in future criminal cases — other sex crimes, per-

jury, etc. - but it does allow use of the compelled

information in future civil cases, such as a commitment

for a sexually violent predator.

é a. Miao

2 pA Ay th il

42a

In view of our ruling this day in Stansbury v. Han-

nigan, 265 Kan. __, __ P.2d ___ (1998), that the 1993

amendment to K.A.R. 44-6-124(g)(6) violated the Ex Post

Facto Clause to the United States Constitution, we follow

that decision. Later in this case, we find that many of the

defendant’s arguments concerning the Fifth Amendment

are moot.

The United States Supreme Court has held that the

Sexual Predator Act, allowing a person’s confinement for

treatment as a violent sexual offender, is civil in nature;

thus, the Fifth Amendment to the United States Constitu-

tion does not apply. We see no valid reason to interpret

§ 10 of the Kansas Constitution Bill of Rights any differ-

ently. This, however, does not end our inquiry. The ques-

tion remains as to information the defendant must

furnish which subsequently can be used against him in a

criminal proceeding. The State of Kansas must either give

the defendant immunity from prosecution, or be subject

to the well-recognized policies behind the privilege of

self-incrimination and the legitimate need of govern-

ments to protect its children. Thus, if the State coerces a

defendant into furnishing possible incriminating testi-

mony by giving a prisoner no choice but to furnish

incriminating information or serve a longer sentence for

failure to do so, the State may not use that information or

its fruits in subsequent criminal proceedings. See

Lefkowitz v. Turley, 414 U.S. 70; Allen v. Illinois, 478 U.S.

364. We again note that the coerced information can be

used in a civil proceeding, subject tothe rules of evi-

dence.

The housing assignment given to an inmate, his or

her custody classification, granting of parole, spending

43a

limitations at a canteen, regulation of visiting hours,

withholding of good time awards, and regulation of other

daily activities which are not atypical and do not pose a

significant hardship within a prison, do not involve a

liberty interest or violate the defendant’s Fifth Amend-

ment right by-compelling him to incriminate himself and

participate in SATP. See Riddle v. Mondragon, 83 F.3d 1197

(10th Cir. 1996); Lile v. Simmons, 23 Kan. App. 2d 1, 929

P.2d 171 (1996); Gilmore v. McKune, 22 Kan. App. 2d 167,

915 P.2d 779 (1995); Davis v. Finney, 21 Kan. App. 2d 547,

902 P.2d 498 (1995).

In State v. Imlay, 249 Mont. 82, 813 P.2d 979 (1991), the

question, similar to the one in the case at hand, was

whether an inmate could be compelled, as a prerequisite

to admission in a sexual therapy program, to admit guilt,

where completion of such a program was required in

order to allow him to keep his suspended sentence. 249

Mont. at 83. The Montana Supreme Court found that

compelling the inmate to do so would cause a Fifth

Amendment violation, absent any grant of immunity for the

statements. 249 Mont. at 91. In so finding, the Montana

Supreme Court reasoned:

“Even though the defendant has already

been convicted of the crime that he denies, our

system still provides, as noted in [Thomas v.

United States, 368 F.2d 941 (5th Cir. 1966)], for

opportunities to challenge that conviction. For

example, the defendant still had the right to

challenge his conviction, based on newly dis-

covered evidence, or by collateral attack. These

are important rights guaranteed to every defen-

dant under our criminal justice system, but

would be rendered meaningless if the defendant

44a

could be compelled to admit guilt as a condition

to his continued freedom. Furthermore, while

such a defendant would be foreclosed from

invoking the protection of such procedures to

establish his innocence, the reliability of an

admission of guilt under such circumstances

would be highly suspect. In addition, by admit-

ting guilt in this case, the defendant would have

to abandon his right guaranteed by the Fifth

Amendment, not only as to the crime for which

he has been convicted, but also to the crime of

perjury. He testified in his own defense during

his trial and denied committing the offense with

which he was charged.” 249 Mont. at 90-91.

Upon analyzing questions in conjunction with an

inmate’s probation, the United States Supreme Court

noted in Minnesota v. Murphy:

“Our cases indicate, moreover, that a State

may validly insist on answers to even incrimi-

nating questions and hence sensibly administer

its probation system, as long as it recognizes the

required answers may not be used in a criminal

proceeding and thus eliminates the threat of incrimi-

nation. Under such circumstances, a proba-

tioner’s ‘right to immunity as a result of his

compelled testimony would not be at stake’.

[Citations omitted.]” 465 U.S. at 435 n. 7.

Thus, respondents, in administering their Sexual

Abuse Treatment Program, can insist that the petitioner

admit responsibility, so long as his or her admission is

not used against the petitioner in later criminal proceed-

ings.

45a

This is not a terribly satisfactory outcome. Bankes

stands convicted of the offense, but maintains his inno-

cence. He would consequently be forced to admit guilt

which he does not acknowledge in order to participate in

SATP and to keep his level 2 privileges. Whether Bankes

and society will benefit from Bankes’ treatment under

those circumstances is not for the court to decide in this

case. However, this situation does not appear to rise to

the level of a Fifth Amendment violation; thus, this issue

fails.

Il. EX POST FACTO

Bankes argues that K.A.R. 44-6-124 constitutes an ex

post facto law. According to Bankes, this regulation

imposes an additional punishment on him after he had

already been sentenced for the crimes of which he was

convicted.

This issue has been decided on this day in Stansbury,

265 Kan. __. To the reasoning in that case, we would add

that trial judges are aware of conditional release dates

and how they are computed. When the defendant was

sentenced, most trial judges would have considered the

maximum time the defendant would have to serve in

setting the sentence.

For the reasons set forth in Stansbury, the application

of K.A.R. 44-6-124 by KDOC to Bankes, due to his refusal

to participate in SATP, violates the ban on ex post facto

laws contained in the United States Constitution. Thus, as

to the ex post facto issue only, the trial court’s dismissal

of Bankes’ habeas corpus petition for failure to state a

claim is reversed.

46a

MCFARLAND, C.J., concurring and dissenting: I dis-

sent from the majority opinion’s determination that

K.A.R. 44-6-124 constitutes an ex post facto law in

reliance upon Stansbury v. Hannigan, No. 79,384, this day

decided. I concur with the balance of the majority opin-

ion.

LOCKETT, J., concurring and dissenting: I dissent

from the majority’s determination that withholding good

time credits from a person who claims to be innocent and

will not acknowledge guilt in order to participate in

sexual abuse treatment program does not rise to the level

of a Fifth Amendment violation. The majority reqres an

individual who may or may not be innocent to serve a

longer sentence than those who admit guilt. Punishing

Bankes for refusing to admit guilt is not violative of

Bankes’ constitutional rights under the Fifth Amendment,

it is violative of Bankes’ constitutional equal protection

and due process rights under the Fourteenth Amend-

ment.

I concur with the balance of the majority opinion.

ALLEGRUCCL J., joins in the concurring and dissent-

ing opinion of Lockett, J.

47a

APPENDIX B

SUPREME COURT ORDER

DISTRICT CASE NO. 9607HC75

IN THE SUPREME COURT

OF THE STATE OF KANSAS

PRO SE

RAYMOND STANSBURY,

APPELLEE, CROSS-APPELLANT,

V NO. 97-79384-AS

ROBERT D. HANNIGAN, ET AL.,

APPELLANTS, CROSS-APPELLEES.

YOU ARE HEREBY NOTIFIED OF THE FOLLOWING

ACTION TAKEN BY THE COURT:

MOTION FOR REHEARING AND MODIFICA-

TION BY ROBERT D. HANNIGAN, ET AL.

CONSIDERED BY THE COURT AND DENIED.

DATE: 07/08/98.

CAROL G. GREEN

CLERK

48a

SUPREME COURT ORDER

DISTRICT CASE NO. 96C483

IN THE SUPREME COURT

OF THE STATE OF KANSAS

MICHAEL A. BANKES,

APPELLANT,

V NO. 97-78722-AS

CHARLES SIMMONS, ET AL.,

APPELLEES.

YOU ARE HEREBY NOTIFIED OF THE FOLLOWING

ACTION TAKEN BY THE COURT:

MOTION FOR REHEARING AND MODIFICA-

TION BY CHARLES SIMMONS, ET AL.

CONSIDERED BY THE COURT AND DENIED.

DATE: 07/08/98.

CAROL G. GREEN

CLERK

49a

APPENDIX C

SUPREME COURT ORDER

DISTRICT CASE NO. 9607HC75

IN THE SUPREME COURT

OF THE STATE OF KANSAS

PRO SE

RAYMOND STANSBURY,

APPELLEE, CROSS-APPELLANT,

V NO. 97-79384-AS

ROBERT D. HANNIGAN, ET AL.,

APPELLANTS, CROSS-APPELLEES.

YOU ARE HEREBY NOTIFIED OF THE FOLLOWING

ACTION TAKEN BY THE COURT:

MOTION FOR STAY PENDING CERTIORARI

TO THE UNITED STATES SUPREME COURT

BY APPELLANT, ROBERT HANNIGAN, ET AL.

DENIED.

DATE: 08/05/98.

CAROL G. GREEN

CLERK

SS os SS Ce ee ene ee ae en ee! ee ee ee ee eS ae ae

50a

SUPREME COURT ORDER

DISTRICT CASE NO. 96C483

IN THE SUPREME COURT

OF THE STATE OF KANSAS

MICHAEL A. BANKES,

APPELLANT,

V NO. 97-78722-AS

CHARLES SIMMONS, ET AL.,

APPELLEES.

YOU ARE HEREBY NOTIFIED OF THE FOLLOWING

ACTION TAKEN BY THE COURT:

MOTION FOR STAY PENDING CERTIORARI

TO THE UNITED STATES SUPREME COURT

BY APPELLEE, CHARLES SIMMONS, ET AL.

DENIED.

DATE: 08/05/98.

CAROL G. GREEN

CLERK

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.