# Petition for Writ of Certiorari — Hannigan v. Stansbury

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1516%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 1060

## Text

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?

ii
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

ill

TABLE OF CONTENTS

Page
SLE WOME EES cae esse cecsniscacdesns i
ee eee Ces kay os cba seb vane ee ii
SE ST EOE EID snc Gee scn vcchesscessavcsesic iii
| Ge ayy 8) cyt iv
Ne eA R a eden db on eS PRREA Dies 6K 1
a 5 5 5 ik 65 wisn Win kaa 4 ado sh 40.085 6008 1
CONSTITUTIONAL AND STATUTORY PROVI-
cae ch cay cen Gass ses semen en.np 1
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

iv

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 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

1
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

2

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

3

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

4

(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.

5

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

7

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

8

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

9

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

10

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).

" ‘ ithe Sco) Ue om a eert Se ease 2 od dine Moe a, bai oes Rs
° roe Pace ee peak fe a i ete a C4 DRO E oS Phy y its ee Ret Ay Sige
et Me ‘*
a 5 Ae FS

11

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

12

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

13

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

14

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

4

15

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).

16

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

17

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.

18

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).

19

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.

20

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

21

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).

22

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

23

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

24

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

25

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:

26

(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).

27

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

28

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

la

APPENDIX A
IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 79,384

RAYMOND F. STANSBURY,
Appellee/Cross-Appellant,

V.

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.

2.

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.

3.

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.

2a

4.

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.

3.

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.

6

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.

y.

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.

3a

~

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

4a

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

5a

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

6a

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

7a

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,

}
f
i +?

8a

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

9a

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

|
¥
.
¥
;

7

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

i
;
H

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.

|
5)
i

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.

3.

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 |
4

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

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1516%3A1. Public record. Not legal advice.