# Opposition Brief — Hannigan v. Stansbury

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 1060

## Text

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wt No. 98-367 ev \W 1“ 8

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

ROBERT D. HANNIGAN, WARDEN, ET AL., PETITIONERS
v.

RAYMOND F. STANSBURY, RESPONDENT

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
The respondent asks leave to file the attached brief in opposition without prepayment of
costs and to proceed in forma pauperis.

[X] Respondent has peviously been granted leave to proceed in forma pauperis in the
following court(s):

The! Te District C
The Supreme Court of the State of Kansas

[ ] Respondent has not previously been granted leave to proceed in forma pauperis in any
other court.

Respondent’s affidavit or declaration in support of this motion is attached hereto.

= ® &

AFFIDAVIT OR DECLARATION
IN SUPPORT OF MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

oat

: Raymond F. Stansbury , am the petitioner in the above-entitled case. In i
support of my motion to proceed without being required to prepay fees, costs or give security ;
therefor, I state that because of my poverty I am unable to pay the costs of this case or to give
security therefor; and I believe I am entitled to redress.

I further swear that the responses I have made to the questions and instructions below
relating to my ability to pay the cost of proceeding in this Court are true.

1. Are you presently employed? Yes No X_
a. If the answer is yes, state the amount of your salary or wages per month and give the
name and address of your employer.

b. If the answer is no, Ae uae te came ee the amount of salary or
wages per month which you received. em ployment _ terminated in November of
19905 at thal time, my gross wont as was $3,000.22
2. Have you received within the past twelve ths any income from a business, profession or
other form of self-employment, or in the form of rent payments, interest, dividends, or other
sources? Yes_- No X

a. If the answer is yes, describe each source of income and state the amount received from
each during the past twelve months.

x Do you own any cash or have a checking or savings account? Yes No X

a. If the answer is yes, state the total value of the items owned.

4, Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property
(excluding ordinary household furnishings and clothing) Yes___ No _X

a. If the answer is yes, describe the property and state its approximate value.

5. List the persons who are dependent upon you for support and state your relationship to

TORR INT oo SE ay ae

those persons.
I declare under , ted jury that the foregoing is true and correct.
Executed on: , 1998 .

Kayman F. Srvaboig

(Signature)

No. 98-367

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

ROBERT D. HANNIGAN, WARDEN, ET AL., PETITIONERS
v.

RAYMOND F. STANSBURY, RESPONDENT

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF KANSAS

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

RAYMOND F. STANSBURY, PRO SE
Ellsworth Correctional Facility

P.O. Box 107

Ellsworth, KS 67439-0107

i
TABLE OF CONTENTS
Page
A RED ko cs oun os Guu cb oe h op Khe Oath wee bk bea wees iV
eT HOE IIER os v6 kaw ccae Gas Su pad py be ei oboe can aia baw y vi
CONSTITUTIONAL, STATUTORY, AND REGULATORY PROVISIONS INVOLVED ... 1
L eC SEE BONE SOI ns sca Wihln bs 028 EER ese poh s 4d tk Hea es 9
I. REASONS FOR DENYING THE PETITION ..... 0... cece cece cece eee eees 14
A. The September 13, 1993 Version of K.A.R. 44-6-124 Is Inherently
More Punitive Than The Old Version, Withholding Good Time for
a eS ey ee ota ee 14
B. The Provisions of K.A.R. 44-6-145, 44-6-107(a), (b); And 44-5-105(c)(1)
Are Dispositive Of The Petitioners’ Application For A Writ of Certiorari ..... 16
+d Upon Examination, Many Of The Cases Cited By The Petitioners As
Being Contrary To The Kansas Supreme Court’s Decisions Ironically
Offer Support, While Others Are Distinguishable Or Irrelevant ............. 17
D. Virtually All Of The Petitioners’ Administrative Regulations Create
Constitutionally Enforceable Liberty Interests .................0.000005- 27
E. The Circumstances In Weaver v. Graham, 450 U.S. 24, 101 S. Ct. 960
(1981), Were Mild Compared To What The Petitioners Have Imposed
RD I OE in Fs cee Oe eee s oa bad os hy DERE bs Woe Coe Coens ce oe 29
F. Because Their Interminable Punitive Measures For Refusing To Officially
Assume Guilt Suppress The State Statutory And Federal Constitutional
Rights Of Those Who Wish To Challenge Their Convictions, The E
Petitioners’ Application For Certiorari Should Be Summarily Denied
(U.S. Const. Art. 1, § 9, cl. 2; K.S.A. 60-1507; 28 U.S.C. § 2254) .......... 32
1. The Petitioners’ Coercive Tactics Are Designed To
Override The Fifth Amendment Privilege Against
Compelled Self-Incrimination .................0e0e00e0: 32

2. Denying Parole Eligibility And Conditional Release To
Only Certain Individuals Who Have Been Convicted
Of An Alleged Sex-Related Offense Because They
Refuse To Abdicate The Statutory And Constitutional
Right To Seek Habeas Relief, While All Other Offenders
Are Free To Challenge Their Convictions Unfettered,
Violates The Precepts Of Due Process And Equal
ee ee cn 5 ed aela ssa smen es 36

ERE IT RC ean ee ee re ice 38

iv

Cases: Page(s)
Aas @. Cote G61 F 26 FER, Bae Cee PP vache dc iviosencocescoer behets. 31
aly 9: Cee, SES Fae BAP BTED his co clivcke bc cceeksnevvnsspevespens 27
Baxter v. Palmigiano, 425 U.S. 308, 96 S. Ct. 1551 (1976) ... 0... eee eee 35
Beck v. Kansas Adult Authority, 735 P.2d 222, Syl. 4 18, 241 Kan. 13 (1987)............. 19
Board of Pardons v. Allen, 482 U.S. 369, 377-78, 107 S. Ct. 2415 (1987)................ 28
Bordenkircher v. Hayes, 434 U.S. 357, 363, 989 S. Ct. 663 (1978) .................05.. 37
Bowen v. Johnston, 306 U.S. 199, 26, 49 S. Ct. 442 (1939) .... 0. ee cee ee 36
California Dept. of Corrections v. Morales, 514U.S.__, 115 S. Ct. 1597 (1995).......... 18
Chaffin v. Stynchcombe, 412 U.S. 17, 32-33, no. 20, 93 S. Ct. 1977 (1973) ............., 37
See, De. Des es Oe FG, BD es viv kis cova cos svetectn cds oepecves 23
City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S. Ct. 3249 (1985) ......... 37
Collins v. Youngblood, 497 U.S. 37, 110 S. Ct. 2175 (1990)... 0... e cece cece eevee eens 22
Dobbert v. Florida, 432 U.S. 282, 298, 97 S. Ct. 2290 (1977) ... 00. ee ee 20
SD, WOU FO ee SOOO OME, SUD ihc se cece od sb vreeevvrersr¥verevcns 26
Ekstrand vy. Oklahoma, 791 P.2d 92, 95 (Okla. Crim. App. 1990) ............. 00000000 31
Estelle v. Smith, 451 U.S. 454, 462, 101 S. Ct. 1866 (1981) .............0 0. eee eee 35
es ee a ae kc ca derecverevereesces’ 25, 26
Ex parte Hull, 312 U.S. 546, 549, 61 S, Ct. 640 (1941) 000. cece eee eee 36
Fender v. Thompson, 883 F.2d 303 (4th Cir. 1989) ............. cece eee eee eee 25
Pees ee, rs CO Be ener rrresereererracerece 27
Garner v. United States, 424 U.S. 648, 661, 96 S. Ct. 1178 (1976) ..................... 35
Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 12, 99 S. Ct. 2100 (1979) ...)......... 28
i a ne ede vcore sedenirerve’ 23
Jacobs, Visconsi & Jacobs, Co. v. City of Lawrence, Kan., 927 F.2d 1111,

I OL, 2 a Sn a a 38
Johnson v. Avery, 393 U.S. 483, 486, 89 S. Ct. 747 (1969)... eee ees 36
ee, 0 ee SA IOEED . ,, chor ees rebetoredbeotoresecers 26
Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 109-S. Ct. 1904 (1989) ........ 28
ee Se ee ae ee, EOE EUES) . Gp bavbcvecrotroeebrcsuvesvobere 20
Lynce v, Mathis, S19 U5. B97 F. Ce. BOL IGG) 0. ee eer rere rv nns 21, 22, 32
a a pes besbereveverbeserrver 35
Minnesota v. Murphy, 465 U.S. 420, 444, 104 S. Ct, 1136 (1984)... 0... eee 35
Preiser v. Rodriguez, 411 U.S. 475, 484-85, 93 §. Ct. 1827 (1973) ........--. eee eee eee, 37
Rodrigu..z v. United States Parole Com’n, 594 F.2d 170, 175 (7th Cir. 1979) ............. 20
Spaulding v. Maynard, 527 F. Supp. 398, 399, Syl. 41 (D. Okla. 1981)..............+.., 31
Ee EE, BUTERA iccir rte ccetccscerisrreesrderorresrens 33
Taylor v. Best, 746 F.24 220, 222 (4th Civ, 1984) on. reer reer cre rerrrerers 32
Thomas v, United States, 368 F.2d 941 (Sth Cir. 1966) ..... 6.6... eee eee eee 33, 34
United States v. Conkins, 987 F.2d 564, 565, Syl, 96 (9th Cir. 1993) .......-. 55sec eees 37
United States v. Ellen, 961 F.2d 462, 465 (4th Cir. 1992) .........- ccc reer eee eee 17, 27
United States v. Goodwin, 457 U.S, 368, 372, 102 §, Ct. 2485 (1982) ......... eee eee 37

Warden v, Marrero, 417 U.S, 653, 663, 94 S. Ct. 2532(1974) .........ceeeeeeeevveees 20

Vv

Weaver v. Graham, 450 U.S. 24, 101 S. Ct. 960 (1981)... 0.0.0.0... ee eee. passim
Wolf v. McDonnell, 418 U.S. 539, 555, 94 S. Ct. 2963 (1984) ............0. 0.0. 27
Constitutional Provisions:

re oe 2 ee ee . . Puc awed obec daccddeesrvenaweesven l
a ee eee o-8 6 Ue w USO uN ERG bd 5 Geen eins l
ee ee epee G bk ca kane et mas Uae sb a CAVES 1, 32
ee na an a ad sty Wb oa RR eres vB 4 WES Ree Ak ale ee ]
Statutes:

I ek SNe re rr Ne ee a hah y AMR wale See ee 32, 37
I gf es Ol eS ea Cogan sau bias cee tee eee 3,17
eae baie 3 URNA N.b \ Ola eae Re tk dae ee es 3,17
ES re a big ba wah iy OS be 2 ee Ud Ld Cem a ee EOE LG CL ee ee 17
SiS a ee A ae es a eae 2, 3, 5, 6, 7, 8, 22
a te a ree Ea oe ee ea late 2, 3, 5, 7, 8, 22
es ee bly alee t's eb dN ee babe dy by Oe Oee ER 19
a ces VP ebb ek caeh eh dashes 3, 16, 19
Pes aE B. EUUT SUNDER fons cer mecvesedereaaeepensewsles passim
K.A.R. 44-6-124 (September 13, 1993 amendment) ................0.0.0 0c e ues passim
ie re sod oo b-% og ake Kad OK ete UA 6, 20, 24
ss wis'y wb 9 sd ne Oh 2 bcd Oe pTadbibeks (4p eee Ree 6
i eet peda eGe a kes SUL CER 1 ba eun Meera ne 16, 19
en sb ca PWR CAML e nk bx be tibet hae 7
I ren ee ee nn ales Cilwe hb 60.5 Oe Nae whee wa eee 7
K.AR. 44-6-142(a) (May 1, 1984 amendment) ............ cece cece cece eee eere 7, 16
K.A.R. 44-6-125(b), (c)...... Mea atta aoe bs COR ka ae is Rs 7,19
K.A.R. 44-6-142(a) (January 3, 1995 amendment)............... cece e eee cee eeeeees 8

® id
vi
QUESTIONS PRESENTED

1. If the Kansas Legislature has delegated to the DOC the authority to promulgate
regulations instead of doing so itself (for the express purpose of implementing its statutes), are the
resulting regulations extensions of the statutes, and are they subject to scrutiny under the Ex Post
Facto Clause?

2. Can the petitioners legally and constitutionally ignore the directives of controlling
administrative regulations that ordered them to compute the respondent’s initial parole eligibility date
and conditional release date using the regulations in effect on the date of his alleged crime?

3. Can the petitioners legally and constitutionally disregard the directive of an
administrative regulations that ordered them not to penalize an inmate for refusing to participate in
a program?

4. Is procedural due process violated when the petitioners willfully and wantonly refuse
to follow their own administrative regulations?

5. Is it constitutionally permissible to permanently withhold years’ worth of the
respondent’s earned good time credits and confiscate his personal property in response to his refusal
to abdicate the statutory and constitutional right to collaterally challenge his conviction?

6. Are the principles of due process and equal protection violated when only certain
individuals who have been convicted of an alleged sex-related offense are severely punished by
retrospectively rescinding parole eligibility and conditional release for maintaining a trial plea of
innocence, for refusing to succumb to the inexorable demands of prison officials for an official
admission of guilt, and for seeking habeas relief, while all other types of offenders are free to contest
their convictions without being punished and are accorded the full ambit of provisions for reduced
imprisonment without submitting a confession?

7. Is a habeas corpus proceeding considered to be a “criminal case” for purposes of the
Fifth Amendment privilege against compelled self incrimination?

8. Can the Kansas provisions for conditional release—which, pursuant to K.S.A. 22-
3718, is “mandatory” once the maximum term of imprisonment, less good time credits, has been
served—be constitutionally conditioned on obtaining a coerced admission of guilt?

9. Is the respondent (who ardently maintains that he is innocent and is currently seeking
post conviction relief) under any legal or constitutional obligation to provide the petitioners with a
coerced confession that could serve as the basis for lifelong confinement in the state’s mental
institution once the prison term has been served, and can the petitioners constitutionally revoke
conditional release for the respondent's refusal to falsely admit to guilt?

vii

10. Does an accused, even after conviction, have a constitutional right to maintain his
innocence, or do the petitioners have the power to coerce (through severe, ongoing punitive
measures) changes in the pleas of those who have exercised the right to trial by jury?

11. Can the petitioners constitutionally subject the respondent to only the punitive features
of presumptive sentencing provisions enacted two years after his indeterminate sentence was imposed
without converting his sentence to flat time?

The Ex Post Facto Clauses of the United States Constitution (Art. I, § 9, cl. 3; Art. 1, § 10,

cl. 1) provide that no state shall pass any ex post facto law.

Section | of the 14th Amendment to the United States Constitution states in pertinent
part: “. . . nor shall any State deprive any person of life, liberty, or property, without due
process of law, nor deny any person within its jurisdiction the equal protection of the laws.”

The Suspension Clause of the United States Constitution (Art. I, § 9, cl. 2) provides
that “The privilege of the Writ of Habeas Corpus shall not be suspended. . . .”

Section 8 of the Kansas Constitution Bill of Rights provides that “The right to the writ

of habeas corpus shall not be suspended. . . .”

The state statute authorizing an inmate to apply for a writ of habeas corpus, Kansas Statute
Annotated (K.S.A.) § 60-1507, provides in relevant part:

Motion attacking sentence. A prisoner in custody under sentence of a court of general
jurisdiction claiming the right to be released upon the ground that the sentence was imposed
in violation of the constitution or laws of the United States, or the constitution or laws of the
state of Kansas, or that the court was without jurisdiction to impose such sentence, or that
the sentence was in excess of the maximum authorized by law, or is otherwise subject to
collateral attack, may at any time move the court which imposed the sentence to vacate, set
aside or correct the sentence.

K.S.A. § 22-3717, the statute governing parole eligibility, provides in pertinent part:

(a) [A]}n inmate . . . shall be eligible for parole after serving the entire minimum
sentence imposed by the court, less good time credits, |
(n) An inmate shall be eligible for parole on the date provided by statute at the time
the inmate committed the crime for which imprisoned unless subsequent amendment of the
statute provides an earlier parole eligibility date.

2

K.S.A. § 22-3718 provides in part that an inmate is entitled to be released from prison once
he has “served [his] maximum term or terms, less such work and good behavior credits as he ve been
earned... .”

K.S.A. § 22-3725 simply creates a pool of good time credits for reducing the sentencing
ranges of indeterminate sentence inmates but does not establish any criteria for determining how
credits are earned (only pertinent to parole eligibility) or how many to award; K.A.R. 44-6-124 (set
out further below) does both, thereby making it indispensable in the computation of initial parole
eligibility and conditional release. Since it implements the statutes that provide for reduced
imprisonment, it is a direct extension of them and is easily the most significant set of provisions to
this case. Moreover, contrary to what the petitioners have stated in their application for certiorari,
K.S.A. § 22-3725 is not the “controlling” statute of the particular version of K.A.R. 44-6-124 that
applies to this case: ironically, K.S.A. 75-5251 (which addresses the government and discipline of
correctional institutions) and K.S.A. 1983 Supp. 75-5210 (which addresses inmate programs and
program agreements) are. In any event, § 22-3725 provides in pertinent part:

(a) For the purpose of determining an inmate's eligibility for parole or conditional
release, regardless of when the inmate was sentenced or committed the crime for which
sentenced, good time credits shall be allocated as follows: [A lengthy table follows providing
for awards of maximum good time credits in the amounts of one-half of the sentenced
imposed for sentences of two years or greater. |

(d) Good time credits shall be awarded on an earned basis pursuant to the rules and
regulations adopted by the secretary of corrections.

K.AR. 44-6-107, conveniently omitted from the petition for certiorari at issue, is a pivotal
administrative regulation to the instant case because of the governing effect it exerts over which
version of K.A.R. 44-6-124 must be used in computing initial parole eligibility and conditional

release. As it appears below, 44-6-107 has been continuously in effect from 1984 to the present time,

providing in pertinent part:

‘hanes Chath in statute sonsthuthie substantive law which benefit the i inmate may be
applied to compute the inmate’s sentence term and the release dates, but shall not be required

to be applied except in cp sige of oe eligibility. graeme ner wiper

unless aheeneian Hearty in the statute provide an callie nartte date. If
the amendment re ay an earlier Capaae savored date, that eee shall be ee

(Authorized by K.S.A. 75-5251, K.S.A. 1983 Supp. 75-5210; implementing K.S.A.
22-3427, 75-5251, K.S.A. 1983 Supp. 21-4608, 22-3717, 75-5210, (Emphasis added )

K.AR. 44-6-145 is another critical Article 6 regulation that was left out of the petition before
this Court. It too has a definite bearing on which version of 44-6-124 applies to the case sub judice.

Reinforcing the nondiscretionary provisions of 44-6-107 set out above, it has been continuously in

force from 1984 to the present time, materially providing: “Incentive good time credits which were

inmate’s sentence and applied to the record.” (Authorized by K.S.A. 75-5251, K.S.A. 1983 Supp.

75-5210; implementing K.S.A. 22-3427, 75-5251, K.S.A. 1983 Supp. 21-4608, 22-3717, 75-5210.

(Emphasis added.)

Since parole eligibility and conditional release dates cannot be determined without using
K.AR_ 44-6-124, it is implicit to such statutes as K.S.A. 22-3717 and 22-3718 and is an essential part
of the “substantive law” providing for reductions in the sentencing ranges of prisoners. Even though
the plain and unambiguous terms of K.A.R. 44-6-107 and 44-6-145 ordered the petitioners to
compute the respondent’s parole eligibility and conditional release dates using the law and associated
regulations in effect on the date of his alleged crime, they applied the radically amended September

4

13, 1993 version of 44-6-124 in order to severely punish him for refusing to relinquish the statutory
and constitutional night to ak habeas relief. The particular version of 44-6-124 that must be applied
in the case at bar is the May 1, 1984 amendment, since it was in effect on September 9, 1990—the
date of the respondent’s alleged crime.

Placed side-by-side for ease of comparison, the May 1, 1984 version appears on the left, with
the more onerous September 13, 1993 provisions (invalidated by the Kansas Supreme Court)
appearing on the nght. One point the reader should be aware of is that prior to the publication of the
radically amended September 13 version in the Kansas Register on July 29, 1993, the term
“withholding” and its variations were nonexistent in the Article 6 regulations governing good time;
however, with the term’s introduction on the aforementioned date (before then the only way good
time credits could be lost was through “forfeiture” by the disciplinary board for having been found
guilty of various infractions set out in the inmate rule book, among which program refusal still isn’t
listed), a second, and far more punitive, method for deferring parole eligibility and conditional release

was created.

5

The relevant portions of each version of 44-6-124 provide:

shall be limited as follows:

(1) Inmates with no class | offenses during
the review period shall receive at least 50% of good
time credits allocated for that period.

(2) Inmates with no class I or I] 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 J, I, Il or IV
offenses during the review period shall receive at

(f) The following factors shall be
considered in determining whether an inmate has
earned good time credits:

(1) the inmate’s performance in a work
assignment;

(2) the inmate’s performance in a program
assignment;

(3) the immate’s maintenance of an
appropriate personal and group living environment;

(4) the inmate’s participation in release
planning activities;

(5) the inmate’s disciplinary record; and

(6) other factors related to the inmate’s

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, and on other performance
factors related to effective rehabilitation of the
inmate.

(b) Award at discretion of unit team and
based on merit. The unit team shall refuse to award

all or part of that portion of the credits over which
they have discretion for poor behavior or work, for
malingering in educational programs, or for other
relevant reasons determined, explained and
documented by the unit team. Inability to work or
participate in programs due to legitimate health
problems, or for other reasons beyond the inmate’s
control shall not be considered grounds, standing
alone, for refusing to award good time credits.
(Authorized by K.S.A. 75-5251, K.S.A. 1983 Supp.
75-5210; implementing K.S.A. 22-3427, 75-5251,
K.S.A. 1983 Supp. 21-4608, 22-3717, 75-5210.)
(Emphasis added.)

(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 minimum
of 50% of the good time credits available for that

program classification review period.
(2) A guilty finding of a class II disciplinary

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 Il
disciplinary 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

authority to be physically or mentally incapable of
working or participating in a particular program or
detail. (Authorized by and implementing K.S.A.
1993 Supp. 22-3725.) (Emphasis added.)

6

K.AR. 44-5-105(c)(1) is another material regulation to the instant case: one the petitioners
found expedient to leave out of their application for certiorari for obvious reasons. Note that in
addition to proscribing punitive measures for inmates who elect not to participate in programs, it is
ironically authorized by, and implements, K.S.A. 75-5210—the statute that pertains to inmate

programs and program agreements. It has been continuously in effect from 1984 to the present time,
providing:

event, that inmate shall not i prohibited from narticipating in any programs as are available,

but the inmate shall first obtain the recommendation and approval of the unit team. The unit
team may recommend the inmate for parole eligibility based on the inmate’s rehabilitation
progress accomplished by the inmate’s own initiative. The inmate shall not be penalized for
refusal to participate in a formal program plan. The inmate shall nevertheless be subject to
all the regulations of the secretary and the orders of the principal administrator, and shall be
required to participate in any work assignments which are made by the unit team.
(Authorized by K.S.A. 1983 Supp. 75-5210; implementing K.S.A. 1983 Supp. 75-5210, 75-
5220, 75-5229.) (Emphasis added.)

K.AR. 45-4-6(c) was also annexed to the respondent’s alleged crime, providing that “Inmates

or deliberations. The board may, however, continue the parole hearing for a reasonable time for the

purpose of clarifying the status of the appeal to assure that the board is considering the applicant on
the proper sentence.” (Authorized by and implementing K.S.A. 1984 Supp. 22-3717.) (Emphasis
added.)

The 1990 version of 44-6-108 reinforces the fact posited above that prior to the first
appearance of the term “withholding” in the radically altered version of 44-6-124 in the Kansas
Register on July 29, 1993, all good time credits not “forfeited” were presumed “earned” and applied
to the sentence. 44-6-108 provides in relevant part:

(b) To establish eligibility for parole in certain cases amenable to reduction by good
time credits, good time credits, as earned, shall be awarded to reduce the time required to be

7

served on the minimum term of those sentences as described in these regulations and
applicable law.

(Authorized by K.S.A. 75-5251, KS.A, 1983 Supp. 75-5210; implementing K.S.A. 22-3427
75-5251, K.S.A. 1983 Supp. 21-4608, 22-3717, 75-5210.) (Emphasis added.)

K.A.R 44-6-101, a regulation defining various terms used in the Article 6 regulations, defines
“[florfeiture of good time credits” as “the removal of the credits and consequent reinstatement of a
term of actual imprisonment by the disciplinary board pursuant to K.A.R. articles 44-12 and 44-13
as published in the inmate rule book” and “[c]onditional release date” as “the maximum sentence
ending date minus total authorized [by the legislature, not the DOC] good time credits not forfeited.” _
Once again, none of the Article 6 regulations annexed to the respondent’s alleged crime provided for
“withholding” good time credits.

K.A.R. 44-6-113 provides:

In determining parole eligibility . . . good time credits shall not be awarded in advance
of earning or on a projected basis. Good time credits shall be awarded only after the inmate
has been deemed, by the unit team, to have earned them. However, an auxiliary accounting
record, separate from the official inmate record and for informational purposes only, may be
used to show the maximum total authorized credits that the inmate may earn. This record
may show the parole eligibility date which would occur if all good time credits were earned.
(Emphasis added.)

In contrast to 44-6-113 quoted above, the 1990 version of K.A.R. 44-6-142(a) provides in

(Authorized by K.S.A. 75-5251, K.S.A. 1983 Supp. 75-5210; implementing K.S.A. 22-3427, 75-

5251, K.S.A. 1983 Supp. 21-4608, 22-3717, 75-5210.) (Emphasis added.)
The 1990 version of K.A.R. 44-6-125 also drew a distinction between the good time credits

applied toward parole eligibility versus those credits presumptively awarded at the outset to establish

: |

8

conditional release, by descnbing the former in terms of being earned, while the latter as simply those
credits “used to create the conditional release date.” Moreover, when the more burdensome and
punishing version of 44-6-124 was introduced in 1993, “withholding” joined “forfeiture” as a second
and far easier method of denying credits (no disciplinary hearing is required), and the unit team joined
the disciplinary board or hearing officer as an additional individual vested with the power to deny
them. The relevant portions of 44-6-125 provide:

(b) Forfeit only on minimum until parole eligibility. 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.

(e) Forfeiture made by disciplinary process. Forfeiture of good time credits may be
ordered by the disciplinary board or hearing officer as a penalty for the inmate’s commission
of certain offenses as set out in K.A.R. 44-12-1 ef seq. and 44-13-1 et seq. (Authorized by
K.S.A. 75-5251, K.S.A. 1983 Supp. 75-5210; implementing K.S.A. 22-3427, 75-5251,
K.S.A. 1983 Supp. 21-4608, 22-3717, 75-5210.)

On January 3, 1995, the DOC radically changed the language of K.A.R. 44-6-142 pertaining
to fixing conditional release dates. Prior to that time, standards for awarding good time toward
conditional release were not provided in any of the Article 6 regulations because they weren’t
needed—all available credits were awarded from the outset for purposes of conditional release and
could only be lost if forfeited. Instead of providing that 100% of the available good time credits
applicable to the conditional release date shall be presumed earned and applied on a projected basis,
the regulation now provides in relevant 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. oe
When all of the above regulations are read together, it becomes clear that (1) the Article 6

regulations to be applied to an inmate for the duration of his incarceration were those that were in

9
effect on the date of his alleged crime; (2) even if they were repealed or revoked, they were to
continue being used in calculating reductions to his sentence; (3) prior to January 3, 1995, his
conditional release date was initially set based on the presumption that all credits authorized by the
legislature had been earned; (4) unlike the credits automatically awarded to establish the conditional
release date, those credits for parole eligibility actually had to be earned pursuant to the appropriate
version of K.A.R. 44-6-124; (5) he was not to be penalized for choosing not to participate in
programs; and (6) all of the Article 6 regulations—via implementation—are intimately related to the

statutes providing for reduced imprisonment.

I, STATEMENT OF THE CASE

Due to a questionable rape conviction in case no. 90-CR-2168, the respondent began serving
an indeterminate sentence of 10 to 20 years on May 18, 1991, at the age of 39. Prior to the date of
his alleged crime, September 9, 1990, he had never been arrested for criminal activity of any kind.
He categorically pled “not guilty” at his trial and has ardently maintained his innocence ever since.

Having conducted a detailed psychological evaluation of the respondent and a thorough
review of his alleged crime, the State Reception and Diagnostic Center (SRDC) psychologist assigned
to his case explicitly told him that he would not be required to participate in the Sexual Abuse
Treatment Program (SATP)—a stipulation that is clearly recorded in the KDOC program agreement
he was urged to sign, She undoubtedly took the following facts into consideration in making her
determination: (1) the prosecutrix admitted that she had engaged in unreported sexual activity with

the accused before the date of the alleged rape; (2) she conceded that during a visit immediately
preceding the incident in question, he had asked for her permission to bring a condom on his next visit i
(the day of the alleged rape) for the purpose of having intercourse with her; (3) on the day of the

10

reputed crime, the accused phoned first to ask if he could come over, and instead of leaving or calling
the police, she chose to dunes into more presentable clothing and wait for his arrival; (4) there were
no physical signs of force; (S) she admitted that she was never physically harmed and that no threats
were ever made; (6) a thorough medical examination produced no evidence of injury; and (7) a police
report disclosed that she had discovered before the filing of her complaint that the accused had asked
her younger girlfriend for a date. All of the above points represent uncontested facts recorded in the
respondent’s trial record.

Well after he had begun to serve his sentence, the respondent’s unit team counselor, an
individual possessing no more than a high school education and completely untrained in making
psychological or diagnostic assessments, arbitrarily decided to override the SRDC psychologist’s
program recommendations and amended his program agreement to reflect the addition of SATP.
Because it would violate his religious beliefs and personal ethics to assume guilt for an alleged crime
of which he was actually innocent, and because he was planning on pursuing post conviction relief,
the respondent refused to sign the amended agreement. Moreover, in order to complete the DOC’s
mental health program, he was required to provide a detailed account of his reputed offense in the
presence of his instructor and all the other members of his group, which he did with the utmost degree
of honesty and sincerity. The facts surrounding his alleged crime were also thoroughly explored at
his trial, and there is absolutely nothing he could divulge in SATP that hasn’t been fully discussed in
the past.

One of the first things demanded of SATP enrollees is an official, written admission of guilt.
In fact, the formal admission is an integral part of the agreement inmates must sign in order to be
accepted into the program. Inmates who sign the agreement are not provided with a copy, and they
are not given a Miranda warning. The program administrator and staff categorically refuse to

EEE ES ES |

11

consider vehement claims of innocence and questionable evidence or circumstances; they
unwaveringly demand that all new participants proffer an admission of guilt, regardless of whether
it results in a false statement manufactured under conditions of duress. Inmates are threatened that
if they refuse to stipulate to guilt, they will be expelled from the program, all their good time credits
will be withheld, and they will be placed on the level system (IMPP 11-101). The admissions of guilt
and any other information obtained in the program are not privileged or confidential; they can, and
are, used against individuals in subsequent legal proceedings, including those associated with the

Sexual Predator Act.

Ironically, SATP has always been touted as a “voluntary program” by prison officials and the
implementing staff. On April 18, 1995, Barbara Owens, the SATP coordinator at Lansing
Correctional Facility (LCF), stated in writing that the program is voluntary, with no consequences
imposed for refusals (see exhibit A). In fact, even Mr. McKune, LCF’s warden, stated in an
interrogatory pertaining to another suit that SATP participation is voluntary and not required by the
KDOC (see exhibit B). However, such claims couldn’t be further from the truth, as the following
scheme of severe punitive measures for refusal attests:

l. Pursuant to IMPP 11-101, an intransigent inmate who refuses to acquiesce is immediately
placed on level one, which results in the confiscation of his television, radio, headphones, and
other personal property, all of which were sold to him at a substantial profit by the KDOC.
And for those who continue to refuse, their personal property is peremptorily shipped out of
the institution and never allowed back into the prison system.

2. Visitation by family members, friends, and relatives is severely restricted.
3. Library use, religious function attendance, and participation in arts and crafts and other
activities are either rescinded entirely or severely restricted.

12

4. The inmate’s access to his own money in his institutional account is severely restricted.

:. He is barred from buying books or subscribing to magazines.

6. He is arbitrarily given a higher custody classification and moved to the maximum security area
of the prison.

7. His good time credits are permanently withheld at the rate of 100%.

8. Parole eligibility and conditional release are severely retarded or rescinded entirely.

Therefore, given the extreme nature of the consequences for refusal, SATP participation is, de facto,

mandatory.

With the advent of presumptive sentencing in Kansas, DOC officials realized that individuals
sentenced under the new law would be far more likely to refuse programs because of their fixed
release dates. Accordingly, they chose to radically amend K.A.R. 44-6-124 in order to create a
deterrent for refusals, since it literally controls the award of good time and is therefore pivotal in
determining the ultimate length of time an individual is imprisoned. Even though the amended version
was originally intended for Pesaran sentence inmates—a contention strongly supported by the
fact that it was published in the Kansas Register contiguously with K.A.R. 44-6-146 (identical to the
new version of 44-6-124, but addressed to individuals sentenced under flat time) in the same month
and year (July of 1993) the new sentencing guidelines became effective—prison officials couldn't
resist applying its punitive features to inmates sentenced under the old, indeterminate system.
However, its retrospective application to individuals sentenced under the old law makes it far more
punishing to them as compared to those sentenced under the new, due to the major differences in the
sentencing techniques and the amount of good time credits available to each group. (The respondent
respectfully contends that if he is to be expected to bear the punitive ee of the new law, he
should be converted to flat time so he can experience its benefits as well.)

13

The provisions of 44-6-124 in effect before the September 13, 1993 amendment made it
mandatory for an indeterminate sentence inmate who had not been found guilty of any disciplinary
offenses during the 120 day review period to be awarded at least 80% of the good time credits (96
of the 120 available) for each review period he was found to be free of offenses. The award of the
| remaining 20% of the credits was subject to the discretion of the unit team counselor, based on
factors other than disciplinary infractions. Prior to 44-6-124's amendment, there were no provisions
in any of the Article 6 regulations that allowed for the withholding of credits for refusal to participate
in a program, afterwards, prison officials assumed total discretionary control over all the credits,
inmates were no longer automatically awarded good time for avoiding disciplinary violations, and
pursuant to subsection (g)\(6), program refusal became punishable by withholding the entire range of
available credits.

Even though the petitioners were fully aware that the respondent had challenged his
conviction in an application for habeas relief on November 19, 1996 (presently under consideration
by the Kansas Court of Appeals), they continued to withhold the good time credits he had earned
during each 120 day review period for refusing to proffer an official admission of guilt pursuant to
the terms of SATP. By the time the state courts ruled auspiciously in the instant matter, the
petitioners’ refusal to abide by the directives of their own administrative regulations had resulted in
the loss of 1,120 days’ worth of the respondent’s earned good time credits, a wrongful deferment of
his initial eligibility for parole for one-and-a-half years, and a conditional release date that had been
moved from its rightful place several years into the future. The respondent has been irreparably

harmed by the severe postponement of his first parole hearing, as he can never regain the 18 month

period it was deferred. Thus, each subsequent hearing will be held a year-and-a-half later than it
should have been.

14

Because of the inexorable pressure applied by the petitioners’ interminable penalties and the
overt vindictiveness they have displayed against the respondent for having initiated litigation—he has
no doubt that if he were ever to enroll in any version of the program conducted by DOC personnel,
every effort would be made to gratuitously fill his file with unfavorable reports and assessments—he
attempted to reach a compromise with them by offering to participate in a comparable program
conducted by an outside agency, as long as he would not be-required to submit an admission of guilt.
His offer wasn’t made out of any culpability with respect to the purported crime, but out of a genuine
willingness to cooperate and to learn. He also offered to take a plethysmographic examination, since
it is the primary indicator SATP personnel consider in determining whether an individual has a
tendency to reoffend. Not only would an outside program provider with no ties to the DOC be
neutral and unbiased with respect to both parties, but the treatment provided would also be of a
superior quality, conducted by specialists who are typically far better trained and educated for such
atask. Both proposals were categorically rejected by DOC officials, which leads the respondent to
believe what he has always suspected—that the prison program’s putative goal of treatment or
rehabilitation belies its true goal of finalizing convictions and generating additional evidence for civil

commitment, even when it does not actually exist.

Il. REASONS FOR DENYING THE PETITION
A. The September 13, 1993 Version Of K.A.R. 44-6-124 Is Inherently More Punitive
Than The Old Version, Withholding Good Time For Program Refusal
Notwithstanding.
Concerning page 7 of their application, the petitioners’ portrayal of the May 1, 1984 version

of 44-6-124 as a system of “minimum awards” and the supplanting September 13, 1993 version as

15
a system of “minimum withholding,” implying that the new version is more lenient than the old, is
false and designed to mislead this Court. As a matter of fact, it was common practice under the old
version of the regulation for an inmate who had been found guilty of a class infraction not to lose any
good time whatsoever.

Indeed, when the provisions of the old version of 44-6-124 are examined, it <r readily
apparent that an inmate could be found guilty of a class I offense—or any combination of class
offenses I through IV during the review period for that matter—and still receive all of the available
credits, because loss of good time wasn’t mandated for a finding of guilt on a class offense under the
old regulction. Subsection (a)(1), for example, simply made it mandatory for inmates with no class
I offenses during the review period to be given a minimum of 50% of the credits; in actual practice
under the old regulation, the unit team had the discretion to award all of the credits, and often did so,
even though an inmate had been found guilty of a class I or II offense. In such instances, if the inmate
were willing to plead guilty to the offense and forgo the disciplinary hearing, segregation time and/or
monetary fines were often imposed in lieu of good time loss. If the petitioners attempt to deny these
facts, the respondent can produce sworn affidavits from disciplinary coordinators and inmates alike
to the contrary.

With the advent of the September 13, 1993 version, good time loss became mandatory for
disciplinary infractions. A finding of guilt on a class I offense mandates that a minimum of 50% of
the available credits be permanently withheld, but in actual practice under the new system, it is not
uncommon for all of them to be withheld. A finding of guilt on a class II offense mandates the
withholding of 25 to 50% of the credits, and a finding of guilt on a class III offense mandates the loss
of 10 to 25% of the credits. But the most radical feature of the new regulaticn is that, for the first

time, program refusal is punishable and results in the loss of 100% of the available credits.

e ©
16

Therefore, bearing the requirements of SATP in mind, it becomes obvious when the two
versions of the “sailtcis are compared that Kansas has gone (1) from a system where an inmate
could still receive all of the available good time credits if he had been found guilty of a disciplinary
offense to one where a finding of guilt mandates the loss of good time; (2) from a system where the
unit team was forced to award at least 80% of the credits for an offense-free record to one where,
for the same performance, he is mandated to withhold all of them in response to program refusal; (3)
from a system where parole eligibility and conditional release could be reached in the normal course
of time solely through good behavior to one where both are substantially deferred or rescinded
altogether in response to refusal to participate in a voluntary program, (4) from a system where an
inmate could exercise constitutionally and statutorily conferred rights without fear of losing his
personal property to one where invoking those rights results in permanent property loss without due
process; and (5) from a system where an inmate could collaterally attack his conviction and refuse
to falsely incriminate himself without fear of reprisals to one where invoking those rights results in
the loss of statutorily conferred opportunities for reduced imprisonment.

Another misleading representation appears on page 6 of the petitioners’ application. The
portrayal of the old version of K.A.R. 44-6-142 thereon as simply serving as a means to tentatively
establish an inmate’s conditional release date when he enters the prison system and nothing more can
be quickly dispelled with K.A.R. 44-6-108(c), which states that “To establish the conditional release
date, good time credits not forfeited shall be presumed earned and shal! be applied to the maximum
sentence term when first computed.” In fact, under the good time regulations annexed to the
respondent’s alleged crime, all credits not “forfeited” were considered “earned” because as previously
explained, provisions for “withholding” good time didn’t exist: they didn’t enter the Article 6

regulations until the new version of 44-6-124 was introduced in 1993.

17

B. The Provisions Of K.A.R. 44-6-145; 44-6-107(a), (b); And 44-5-105(c)(1) Are

Dispositive Of The Petitioners’ Application For A Writ of Certiorari.

The respondent respectfully contends that the triumvirate of pivotal regulations listed above
are material to the disposition of the application before this Court. Striking a fatal blow to the
petitioners’ claims, K.A.R. 44-6-145 provides that “[iJncentive good time credits which were
authorized and applied under previous policies and regulations shall continue to be credited to the

inmate’s sentence and applied to the record,” and 44-6-107(a) and (b) ordered the petitioners to

compute the respondent’s parole eligibility and release dates using the provisions in effect on the date
of his alleged crime, even if they had been repealed or revoked. Moreover, the third member of the
group, 44-5-105(c)(1), provides that an inmate “shall not be penalized” for choosing not to
participate in programs. Even though all three regulations are still in effect, and even though the first
two dictate which version of 44-6-124 must be applied in computing the aforementioned dates, all
three have met with pretermission at the hands of the petitioners. The respondent contends that this
group of regulations renders the petitioners’ application gratuitous, a waste of this Court’s precious
time, and one that should be denied with celerity.

Additionally, it should be noted that unlike other states, Kansas chose to place the substantive
provisions governing how good time credits are earned and awarded in administrative regulations
rather than in statutes. In fact, contrary to the claim made on page 5 of the petitioners’ application,
a perusal of K.S.A. 22-3717, 22-3718, and 22-3725 will show that they provide no detail whatsoever
of “how such credits are earned, awarded, forfeited, withheld, and accumulated”: only the regulations
provide such essential information. K.S.A. 22-3717 and 22-3718 make generalized statements about
parole eligibility and conditional release, but neither provides any criteria for achieving them.

Therefore, when the above-noted facts are taken into consideration, along with the fact that the

-_

CC

18

regulations at issue are direct extensions of the statutes they implement,’ no weight should be
accorded the claim that the statutes have remained unchanged.
od Upon Examination, Many Of The Cases Cited By The Petitioners As Being Contrary
To The Kansas Supreme Court’s Decisions Ironically Offer Support, While Others
Are Distinguishable Or Irrelevant.
In their application for certiorari, the petitioners relied heavily on the holdings in California
Dept. of Corrections v. Morales, 514 U.S.__, 115 S. Ct. 1597, 131 L.Ed.2d 588 (1995); however,
they have distorted the facts of the instant case in an attempt to bring it under the control of Morales
and have ignored the most critical points made by this Court in that case: (1) the amendment allowing
for the decrease in the frequency of subsequent suitability hearings left unchanged the substantive
formula for securing any reductions to the sentencing range (115 S. Ct., at 1602); and (2) the
amendment iiad no effect on the standards for fixing a prisoner’s “initial” date of parole eligibility (id.,
at 1502 and 1504). The second point—one which was repeatedly stressed in this Court’s
opinion—was no doubt crucial to the determination that the level of punishment had not been
increased. (The respondent interpreted those statements to mean that if the amendment had adversely
affected the provisions for establishing initial parol eligibility or for securing reductions to the
sentencing range, the outcome would have been different.) Moreover, this Court held that the
amendment only applied to a class of prisoners (those convicted of more than one murder) whose

likelihood for release on parole was remote, and simply extended the time between subsequent

' The respondent ironically relies on one of the petitioners’ cases—U.S. v. Ellen, 961
F.2d 462, 465 (4th Cir. 1992)—for the proposition that the regulations at issue are extensions of
the above-noted statutes and are subject to scrutiny under the Ex Post Facto Clause. On page
465, the Fourth Circuit Court of Appeals in Ellen appositely quoted a Seventh Circuit Court of
Appeals’ case by stating: “ ‘[W]hen Congress has delegated to an agency the authority to make a
rule instead of making the rule itself, the resulting administrative regulation is an extension of the
statute for purposes of the Clause.’ ”

19

hearings, provided the Board had made specific findings of unsuitability at the initial hearing. /d., at
1603.

The case at bar is not one where changes have been made to parole guidelines; it is not one
where the time between subsequent parole hearings has been increased; it is not one where the criteria
for determining eligibility for work release have been changed; it is not one where the amendments
pertain to the safety, order, or efficiency of the prison system; it is not one where a simple
“refinement” has been made to the “definition of good behavior”; it is not one where the punishment
for future disciplinary infractions has been slightly increased; and it is not one where the changes have
no relationship to the alleged crime for which the respondent is imprisoned. Unlike the circumstances
in Morales, the radically amended regulations in the instant case have had a profound effect on the
standards for fixing the respondent’s initial parole eligibility date and his conditional release date.
Moreover, the fact that Morales pled “nolo contendere” notwithstanding, the amendment in his case
did not conflict with the fundamental right to seek habeas relief as the amendments and the terms of
SATP do in the immediate case.

As previously noted, K.A.R. 44-6-107(a), (b) and 44-6-145 ordered the petitioners to use the
versions of 44-6-124, 44-6-108, and 44-6-142 in effect on the date of the respondent’s alleged crime
in computing his eligibility for parole and his conditional release date. Significantly, the sentence
introducing the criteria for earning and awarding good time credits in the May 1, 1984 version of 44-
6-124 set out above explicitly states that “For parole eligibility, award of good time shall be limited
as follows,” thus allowing no room for amendments or substitutions. And under the old version of
44-6-124, it was “mandatory” for the unit team counselor to award at least 80% of the available good
time credits for each review period an inmate remained free of class offenses. K.A.R. 44-6-108(c)
stated that in setting the conditional release date, all good time credits not “forfeited” were considered

20

“earned” and were to be applied to the maximum sentence term when first computed, and 44-6-
142(a) directed that it was to be “presumed” in computing conditional release that 100% of the
available credits were “earned” and that they were to be applied on a “projected basis.” “Conditional
release is mandatory, not discretionary, once the maximum term of imprisonment, less earned good
time credits, has been served.” Beck v. Kansas Adult Authority, 735 P.2d 222, Syl. | 18, 241 Kan.
13 (1987).

With respect to indeterminate sentences before the amendments, the initial parole eligibility
date was determined by adding the time served to the good time credits earned on a day-for-day basis,
and when the total reached the inmate’s minimum sentence, he became parole eligible. And as
previously noted, the conditional release date was set from the outset by presuming that all available
credits had been earned. Critical to the compution of both is K.A.R. 44-6-125(b), which provides
that the only way either date can be adjusted to the inmate’s detriment is through the “forfeiture” of
credits. However, with the introduction of the radical amendments to 44-6-124 and 44-6-142, prison
officials seized absolute discretionary control over all the credits; inmates were no longer
automatically awarded good time for avoiding disciplinary infractions; they were no longer
presumptively awarded a conditional release date from the outset; and for inmates like the respondent,
who are unwilling to give up the statutory and the constitutional right to seek post conviction relief,
the new amendments provide for the withdrawal of all statutorily conferred opportunities for reduced
imprisonment that were annexed to the alleged crime. The amendments to 44-6-124 have also
rendered the punishment prohibition of K.A.R. 44-5-105(c)(1) emasculate, even though the
regulation has never been revoked. Moreover, pursuant to subsection (f)(6) of the new version of
44-6-124, prison officials can arbitrarily withhold all of the available good time credits for virtually

any whim or reason that comes to mind, not just for program refusal.

21

Since the supplantation of the old forms of 44-6-124 and 44-6-142 with the radically amended
ones resulted in the loss of 1,120 earned good time credits, the postponement of an initial parole
hearing for one-and-a-half years, and a conditional release date that was virtually nonexistent, it
cannot be said, as it was in Morales, that the amendments at issue have left the substantive formula
for securing any reductions to the respondent’s sentencing range unchanged.

Through the Ex Post Facto Clause, it was intended that legislative acts and amendments give
fair warning of their effect. Dobbert v. Florida, 432 U.S. 282, 298, 53 L.Ed.2d 344, 97 S, Ct. 2290
(1977). And the federal courts have repeatedly held that provisions for initial parole eligibility are
part of the law annexed to the crime for ex post facto purposes. See, e.g., Warden v. Marrero, 417
U.S. 653, 663, 94 S. Ct 2532, 2539, 41 L.Ed.2d 383 (1974); Rodriguez v. United States Parole
Com'n, 594 F.2d 170, 175 (7th Cir. 1979); Learner v. Gill, 751 F.2d 450, 454 (1st Cir. 1985). The
respondent in the instant case was never given any prior warning that he would be severely punished
for his refusal to submit a false admission of guilt and for exercising the constitutionally and
statutorily conferred right to seek habeas relief. In fact, his program agreement features the
stipulation that he would not be required to participate in SATP. Had he known the petitioners
would renege on their stipulation, eradicate all possibility for reduced imprisonment, and confiscate
his personal property for his refusal to give up the aforementioned rights, he never would have signed
the agreement.

The case at bar is further distinguishable from Morales in that the respondent has no prior
record, and his alleged victim admitted that she was never threatened or physically harmed in any
manner. But even without taking the distinctions between the two cases into consideration, the
respondent asseverates that the intimations made by this Court that it would have been a different
matter if the amended statute had disadvantageously changed the provisions for securing reductions

22
to the sentencing range render Morales a case that imparts validity and merit to the Kansas Supreme
Court’s opinion in the sesiliete case.

Contrary to the petitioners’ claims, the instant case is similar in effect to Lynce v. Mathis, 519
U.S. __, 117 S. Ct. 891, 137 L.Ed.2d 63 (1997), where (for certain classes of inmates) a new
Florida statute served to retroactively cancel release credits formerly awarded to alleviate prison
overcrowding. In both cases, the new provisions allowed prison officials to reach back in time and
take away what had already been awarded (in the case at bar, a mandatory conditional release based
on the presumption that all credits not forfeited were earned) under the provisions in effect at the time
of the offense for which imprisoned.

In regard to the petitioners’ recurring argument that the regulations in question merely
effectuate the controlling statute’s directive that good time credits shall be awarded on an earned
basis is fallacious because, as previously noted in the section of regulatory provisions relevant to this
case, K.S.A. 22-3725 was never designated as the controlling statute over any of the regulations
annexed to the respondent’s reputed crime—surprisingly, K.S.A. 75-5210 (providing for inmate
programs) and 75-5251 (providing for discipline in correctional institutions) control over all of them!
Moreover, the respondent asseverates that he did earn the credits in dispute by satisfying the criteria
set out in the old versions of K.A.R. 44-6-124(a)(4) and 44-6-108(c), both of which were “adopted
by the secretary of corrections” and in effect for over two years after his sentence was imposed. But
in spite of the foregoing points, the petitioners should take note of the fact that in Lynce, the Court
scolded the parties for placing undue emphasis on the lawmakers’ subjective “intent” rather than
focusing on the “effect” of the disputed changes. (For the reasons noted above, the respondent
submits that the holdings in Lynce lend authority and support to the Kansas Appellate Courts’

opinions in the Ex Post Facto Cases presently before this Court.)

nat. et

23

In Collins v. Youngblood, 497 U.S. 37, 110 §. Ct. 2175, 111 L.Ed.2d 30 (1990), the prisoner
applied for a writ of habeas corpus, contending that the Ex Post Facto Clause was violated by the
retroactive application of a new statute allowing for a Texas appellate court to reform his
unauthorized sentence (imposing both life imprisonment and a $10,000 fine) without the necessity
of remanding for a retrial. This Court held, inter alia, that since the statute in question did not make
more burdensome the punishment for a crime after its commission—indeed, as the District Court
noted, the punishment was actually decreased by the withdrawal of the fine—its application to the
petitioner was not prohibited by the Clause. 110 S. Ct., at 2724. For all the reasons previously noted
in this brief, the respondent respectfully contends that unlike the circumstances in Youngblood, the
punishment has been retrospectively increased in the present case, and that the petitioners’ claims to
the contrary are preposterous.

Chauvin v. Erickson, 998 F.2d 617 (8th Cir. 1993), was an ill-suited case selection for the
propositions posed on pages 14 and 18 of the petitioners’ application, as one of its key holdings
actually supports their adversary’s cause. In similar fashion to the instant case, the statutory
provisions in force at the time of the petitioner’s crime provided that he receive good time credit
against his sentence according to a formula based on the number of days he did not violate any prison
disciplinary rule. /d., at 618. A year later, Minnesota added the requirement that prisoners perform
work assignments when available to earn good time credit under the formula for that day. /bid.
Claiming that the new requirement violated the Ex Post Facto Clause by burdening his opportunity
to earn good time under the formula, the prisoner filed a civil rights action.

In dispensing with his claims, the Eighth Circuit Court of Appeals noted that (1) before the
work requirement was enacted, prison regulations required prisoners to perform work assignments,
and refusing to work or disobeying a direct order to work was a disciplinary infraction; (2) a prisoner

24

who incurred a disciplinary infraction for refusing to work or disobeying a direct order could not earn
good time credit for that day; and (3) since the new statutory work requirement did not change the
conditions for earning good time credit, it did not operate to the petitioner’s detriment. /d., at 619.
In other words, if the new requirement had detrimentally changed the conditions for earning good
time credits (as the regulatory amendments have obviously done in the case sub judice), it would have
been a violation of the Clause.

Claiming the circumstances to be “essentially identical” to those in the instant case, the
petitioners cite Jn re Ramirez, 705 P.2d 897 (Cal. 1985), as an example where the Clause was held
not to be violated. Notwithstanding the respondent’s sincere belief that Ramirez was wrongfully
decided—in fact, the case features an outstanding dissenting opinion to that effect—there are
substantial distinctions between the two cases.

In its analysis of the case, the California Supreme Court readily conceded that the new
sentence reduction credits system disadvantaged the petitioner (id., at 900), but held that since the
forfeiture of 48 days’ credits wes for a disciplinary offense (altering the paperwork relating to a
television set) committed while in prison and had no connection to the original crime that resulted in
Ramirez’s imprisonment, it was not retrospective (id., at 901). The foregoing claim cannot be made
in the immediate case, as it is irrefragable that the withholding of years’ worth of the respondent's
earned good time is intimately related to the alleged crime that imprisoned him.

Fraudently altering a television’s paperwork would have also, no doubt, been a punishable
infraction under the old California system; the petitioners have readily admitted in their application
that program refusal was not punishable [it still isn’t according to K.A.R. 44-5-105(c)(1)] prior to
the amendments in the ~ase at bar. Nor can it be said that the new system in Ramirez would conflict

with California’s statutory and constitutional provisions for prisoners seeking habeas relief. And

—

25
finally, Ramirez is obviously not a case where the standards for fixing initial parole eligibility or a
mandatory release date were altered to his disadvantage, or one where prison officials reached back
in time to withdraw a statutory release date that had already been awarded.

With respect to the dissenting opinion in Ramirez, the sagacious justice noted, relying in part
on Weaver v. Graham, that (1) regarding the issue of retrospectivity, the question should be recast
as asking whether the new statute applies to prisoners convicted of acts committed before its effective
date (id., at 902); (2) sanctions are one determinant of a petitioner’s total prison term, and the term
is effectively altered once that determinant has been changed (id., at 903); (3) contrary to the
majority’s reasoning, the holdings in Greenfield v. Scafati definitely apply (ibid.); and (4) despite the
claims of inconsistent disciplinary rules and immunity from punishment for some prisoners, a uniform
disciplinary system can be maintained by prison officials (ibid.).

Denying good time credits for refusing to submit a blood sample to prison officials for a DNA
information bank, the point of controversy in Ewell v. Murray, 11 F.3d 482 (4th Cir. 1993), is
obviously a disparate situation from the one in the present case as well, where the credits were
withheld in response to a refusal to sacrifice the constitutional right to seek habeas relief with a
coerced admission of guilt. And unlike the petitioners in Ewell, the respondent freely submitted a
blood sample for the same purposes when asked to do so by Kansas prison officials. Although the
Fourth Circuit Court of Appeals approved the denial of the credits for the aforementioned reason,
it issued other holdings during the course of its analysis that are far more pertinent to the immediate
case.

First, the Court significantly held that an inmate does have the right, as of the time of his

sentence, to expect the good conduct credits then defined for good behavior. /d., at 486. Second,

and more importanily, the Court noted that it unequivocally held a retrospective Virginia statute

26

denying an inmate who had escaped from custody parole eligibility on his original offense to violate
- the Ex Post Facto Clause,’ and then drew the distinction that unlike the penal nature of provisions
governing parole eligibility, the DNA provision is administrative in nature. Jd., at 487. Third, it
noted that an inmate’s credits are restored if he subsequently decides to submit a blood sample. /d.,
at 485. Fourth, the Court conceded that changes to good time regulations can violate the Due
Process Clause by depriving inmates of liberty interests, but seemed to imply that the prior Virginia
good time provisions did not limit official discretion by using language of an “unmistakably
mandatory character,” i.e., “shall,” “will,” or “must.” /d., at 488. And last of all, the Court stressed
that inmates who had lost good time for refusing to submit a blood sample were accorded the full
ambit of due process, i.e., the right to a hearing, the right to an advisor, the right to call witnesses,
etc. lbid.

Unlike the circumstances in Ewell, credits are never restored in the instant case, and no due
process attends their taking. Moreover, a review of the regulations before this Court shows,
incontrovertibly, that virtually all of them are written in such a manner as to create definite liberty
interests in good time, parole eligibility, and conditional release. Furthermore, the petitioners in the
current case are attempting to do what the Court of Appeals deprecated in the example case it cited
in Ewell, i.e., to retrospectively rescind the provisions for parole eligibility and conditional release
annexed to the imprisoning offense. For all the reasons stated above, the respondent submits that
Ewell can be viewed as another case that supports his contentions and the Kansas Supreme Court’s
opinions.

In Dominique v. Weld, 73 F.3d 1156 (1st Cir. 1996), the prisoner simply contested the

retroactive application of revised criteria for work release eligibility on due process and ex post facto

2 See Fender v. Thompson, 883 F.2d 303 (4th Cir. 1989).

27

grounds. Because the involved regulations and the work release agreement contained no explicitly
mandatory language (unlike the regulations in the present case) and preserved the broad ieiliton
making authority of state officials, the First Circuit Court of Appeals found no liberty interest
violations and denied relief on the due process claims. /d., at 1161. The petitioner’s ex post facto
claim met with a similar fate, because the Court found that the regulatory changes affected neither
the length of the petitioner’s sentence nor his parole options. /d., at 1163. Because the instant
regulations abound in explicitly mandatory language, and because their amendments have adversely
affected the respondent’s parole options, he finds support in the holdings of Dominique.

The petitioners also cited a number of cases as acknowledging a “split of authority” over
whether prison regulations and parole guidelines are “laws” for ex post facto purposes, and other
cases as standing for the proposition that since they are not laws, they are not cognizable under the
Clause, including such cases as Kansas v. Hendricks, 117 §. Ct. 2072, 2086 (1997); Morales, supra;
and Youngblood, supra. Although the respondent could be mistaken, he does not believe the
statements made in the foregoing precedents were intended to exclude from ex post facto scrutiny
regulations of the type that are the focal point of the immediate case. Moreover, because the highly
emphasized “split of authority” pertains to “parole guidelines” and not to substantive regulations that
set out standards for determining initial parole eligibility and mandatory release dates, the petitioners’
reliance on the cases cited is malapropos.

Using Francis v. Fox, 838 F.2d 1147 (11th Cir. 1988), another case involving altered criteria
for work release eligibility challenged on due process and ex post facto grounds, to reinforce the
aforementioned contention, the Eleventh Circuit Court of Appeals held in part that (1) parole

guidelines are not “laws” within the meaning of the Ex Post Facto Clause (id., at 1150); (2) they are

stated policy rules showing how agency discretion is likely to be exercised (ibid.); and (3) a change

28

in guidelines does not affect the point at which a prisoner becomes eligible for parole or his
mandatory release date (ibid ) Although the factual circumstances in Bailey v. Gardebring, 940 F.2d
1150 (8th Cir. 1991), and U.S. v. Ellen, 961 F.2d 462 (4th Cir. 1992) are different, the respective
Courts issued holdings of a similar nature—holdings that lead the respondent to the ineluctable
conclusion that the regulations in the case sub judice are subject to ex post facto scrutiny.

D. Virtually All Of The Petitioners’ Administrative Regulations Create Constitutionally

Enforceable Liberty Interests.

In Wolff v. McDonnell, 418 U.S. 539, 555, 94 S. Ct. 2963, 2974, 41 L.Ed.2d 935 (1984), it
was established that in comparison to an ordinary citizen, a prisoner assumes diminished rights, but
he is not entirely divested of constitutional protections once he has been convicted of a crime.
Prisoners maintain protection under the due process clause and may not be deprived of life, liberty,
or property without due process of law. 94 S. Ct., at 2974. In fact, it has recognized that various
states have created constitutionally enforceable liberty interests in the prison setting through such
means as statutes, administrative regulations, and published prison policy. See, e.g., Greenholiz v.
Nebraska Penal Inmates, 442 U.S. 1, 12, 60 L.Ed.2d 668, 99 S. Ct. 2100 (1979) and Board of
Pardons vy, Allen, 482 U.S. 369, 377-78, 96 L.Ed.2d 303, 107 S. Ct. 2415 (1987).

This Court explained in Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 104
L.Ed.2d 506, 109 S. Ct. 1904 (1989), that in determining whether a protectible liberty interest has
been created in a prison context, it closely examines the language of the relevant statute or regulation
and looks for the presence of the following features, which are critical to its analysis:

Simply stated, “ ‘a State creates a protected liberty interest by placing substantive

limitations on official discretion.’ ” Olim v. Wakinekona, 461 U.S., at 249, 75 L.Ed.2d, 813,

103 S. Ct. 1741. A State may do this in a number of ways. Neither the drafting of
regulations nor their interpretation can be reduced to an exact science. Our past decisions

_

29

suggest, however, that the most common manner in which a State creates a liberty interest
is by establishing

“ “substantive predicates’ ” to govern official decision making, Hewitt v. Helms, 459 U.S., at
472, 74 L.Ed.2d 675, 103 S. Ct. 864, and, further, by mandating the outcome to be reached
upon a finding that the relevant criteria have been met. . . .

We have also articulated a requirement, implicit to our earlier decisions, that the
regulations contain “ ‘explicitly mandatory language,’ ” i.e., specific directives to the decision
maker that if the regulations’ substantive predicates are present, a particular outcome must
follow, in order to create a liberty interest... . In sum, the use of “ ‘explicitly mandatory
language,’ ” in connection with the establishment of “ ‘specified substantive predicates’ ” to
limit discretion, forces a conclusion that the State has created a liberty interest. Kentucky
Dept. of Corrections v. Thompson, 490 U.S., at 462 and 463, 104 L.Ed.2d, at 516 and 517.
In the context of awarding good time credits toward parole eligibility, subsection (a)(4) of the

old version of K.A.R. 44-6-124 explicitly states that “Inmates with no class I, I, Il, or IV offenses
during the review period shail receive at least 80% of the good time credits allocated for that period.”
Subsections (a)(5) and (b) plainly state that the unit team has discretion for the remaining 20% only,
if the foregoing condition has been met. Applying this Court’s method of analysis quoted above, it
can readily be seen that the regulation features “explicitly mandatory language,” i.e., “shall receive,”
in connection with a “specified substantive predicate,” i.e., subsection (a)(4), which plainly sets out
the requirement that must be satisfied in order to receive the credits. These straightforward features
combine to limit official discretion and, upon a finding that the specific criterion has been met, direct
that an outcome be effected—the award of at least 80% of the credits. Moreover, when all of the
other administrative regulations set out above are placed under liberty interest scrutiny, it becomes

quite clear that the majority, if not all, of them test in the affirmative as well.
E. The Circumstances In Weaver v. Graham, 450 U.S. 24, 101 S. Ct. 960, 67 L.Ed.2d

17 (1981), Were Mild Compared To What The Petitioners Have Imposed In The

Instant Case.

30

Because the facts of this landmark case are so well known, the respondent will dispense with
its background Sar ae and proceed directly to a comparison of the two cases. In Weaver, the
original nondiscretionary good time provisions were never entirely revoked as they were in the
immediate case; the amounts of gain time automatically awarded were simply reduced. And even
though the reductions had no effect on the total number of gain time credits available to an inmate
when all means of acquiring them were considered—in fact, the overall amount was increased—this
Court held that the new statute substantially altered the consequences attached to a crime committed
before its enactment, and therefore changed “ ‘the quantum of punishment.’ ” 450 U.S., at 33. (If
the quantum of punishment was increased in Weaver, when much of the nondiscretionary system was
retained in the new law and alternate ways were provided for acquiring even more gain time than had
been available before, a fortiori the quantum of punishment has been increased in the instant case, due
to the fact that none of the old nondiscretionary awards for avoiding disciplinary infractions were

retained in the new version of K.A.R. 44-6-124.) This Court also noted that “[t]he inquiry [to

determine whether a prisoner has been disadvantaged] looks only to the challenged provision, and
not to any special circumstances that may mitigate its effect on the particular inc’vidual.” /bid.
Under the mandatory provisions of the old Florida law, Weaver had the opportunity to reduce
his 15 year sentence by approximately 73 months; after the new law became effective, his calculated
sentence reduction was lowered to approximately 48 months, thus amounting to a 25 month increase
in his estimated length of incarceration. /d., at 28, n.6. With respect to the instant case, the
provisions mandating the award of good time credits for good behavior in the old version of 44-6-124
were obviated entirely, and were replaced by a system that accorded absolute discretionary control

to prison officials over all the credits. Moreover, a review of the new form of the regulation shows

that all the credits can be arbitrarily withheld for virtually any reason imaginable [see, e.g., (f)(6)].

i =
31

Since subsection (a)(4) of the old regulation mandated the award of at least 96 of the 120 available
credits to those inmates with no class I, II, III, or IV offenses for each review period that such a
record was maintained, the respondent has de facto earned at least 288 credits against his 10-20 year
sentence for each year he has remained free of offenses. However, due to the fact that the petitioners
have been permanently withholding all of the credits he has earned since April of 1994 with the new
provisions, and will continue to do so unless they are permanently stopped, he will lose 84 months’
worth of good time compared to Weaver’s 25 (almost a five year difference!) and will be relegated
to serve most of his maximum sentence of 20 years. Moreover, no previously awarded release date
was reneged on in Weaver, his right to apply for a writ of habeas corpus was unencumbered, i.e., had
he chosen to do so; and he was never punished with the loss of several hundred dollars’ worth of
personal property and years’ worth of earned good time for refusing to relinquish that right.

The petitioners have posed the specious argument that unlike the present case, the actual
number of available good time credits was reduced in Weaver, and that the respondent hasn’t been
disadvantaged by the amendment to 44-6-124 because he has the same amount of potential good time
credit available as he had under the old version of the regulation. In Weaver, the actual numbers of
credits automatically awarded solely for avoiding disciplinary offenses were reduced; in the instant
case, they were extirpated! Notwithstanding the petitioners’ attempt to obscure the facts of the
Florida case, the overall number of good Pa credits available to Weaver was actually increased
under the provisions of the new legislation. In fact, the respondent argued that due to the enactment
of attendant provisions, the net effect was increased availability of gain time deductions. /d., at 34.
And with an ironic view towards the present case, one of the ways those credits could be “earned”

in Weaver was through diligent performance in an educational program. /d., at 35. In response to

32

the respondent’s argument, this Court appositely noted in its opinion that none of the new provisions
compensated for the reduction of gain time available solely for good conduct. Ibid.

Obviously, the petitioners have posed the same argument the respondent posed in Weaver.,
i.e., no disadvantage has occurred because the amendment hasn’t reduced the overall amount of
available good time credits. This argument was soundly foreclosed by this Court when it stated, “The
fact remains that an inmate who performs satisfactory work and avoids disciplinary violations could
obtain more gain time per month under the repealed provision than he could for the same conduct
under the new provision. To make up the difference, the inmate has to satisfy the extra conditions
specified by the discretionary provisions.” Jbid. Concluding the opinion, this Court found that the
new law “made more onerous the punishment” for Weaver’s crime. (For all the reasons noted above,
the respondent asseverates that, with the exception of the difference in the degree of increased
punishment, the facts in Weaver are substantially the same as those in the instant case, thus warranting
the denial of the petitioners’ application.)

Serving as further support for the respondent’s ex post facto claim, a trilogy of cases from
the Tenth Circuit—Spaulding v. Maynard, 527 F. Supp. 398, 399, Syl. 1 (D. Okla. 1981); Ekstrand
v. Oklahoma, 791 P.2d 92, 95 (Okla. Crim. App. 1990); and Arnold v. Cody, 951 F.2d 280, 283
(10th Cir. 1991)—has held that a prisoner who is disadvantaged by an amended time reduction credits
statute is entitled to have his credits computed under the statute in effect on the date his crime was
committed. Moreover, many of the holdings established in Weaver v. Graham were recently
reaffirmed by this Court in Lynce v. Mathis, supra.

F. Because Their Interminable Punitive Measures For Refusing To Officially Assume

Guilt Suppress The State Statutory And Federal Constitutional Rights of Those Who

Wish To Challenge Their Convictions, The Petitioners’ Application For Certiorari

33
Should Be Summarily Denied (U.S. Const. Art. 1, § 9, Cl. 2; K.S.A. 60-1507; 28
U.S.C. § 2254). |
- The Petitioners’ Coercive Tactics Are Designed To Override The Fifth
Amendment Privilege Against Compelled Self-Incrimination.

Designed to discourage appeals, finalize convictions, and generate additional evidence, SATP
is predicated on an official admission of guilt (see exhibit C). Shortly after the respondent filed his
application for a writ of habeas corpus in 1996, he invoked the Fifth Amendment privilege, not
because he is concealing incriminating evidence, but because of the petitioners’ inexorable demands
for a relief-quashing confession. Conceding that an admission of guilt, even if it were false, would
invalidate any attempt to obtain post conviction relief and possibly result in the filing of changes for
perjury, the petitioners nevertheless continued to withhold exorbitant amounts of the respondent’s
earned good time and indefinitely postponed his initial parole eligibility. Even if he hadn’t collaterally
challenged his conviction, the respondent would still be unwilling to concoct a false admission of guilt
just to assuage the petitioners. Since the privilege against compelled seif-incrimination applies to
questioning an individual while his appeal from conviction is pending, Taylor v. Best, 746 F.2d 220,
222 (4th Cir. 1984), cert. denied, 474 U.S. 982 (1985), the respondent assumes that it would apply
to pending habeas proceedings as well.

In State v. Imlay, 813 P.2d 979 (Mont. 1991), the defendant’s suspended sentence for a
conviction of sexual assault was revoked because of his refusal to admit to guilt in a sexual therapy
program. His participation in the program was ordered by the sentencing court as a condition of his
suspended sentence. The Montana Supreme Court reversed the district court’s revocation order

because the requisite admission of guilt would foreclose Imlay’s Fifth Amendment right not to be a

eo - 2
34
witness against himself, and would bar any effort on his part to challenge his conviction through
newly discovered siden or collateral attack. /d., at 985.

Acknowledging that the aforementioned avenues of redress are important rights guaranteed
to every defendant under the American system of criminal justice, the court reasoned that they would
be rendered meaningless under the conditions the state was attempting to impose, i.e., a compelled
admission of guilt as a condition of continued freedom. /bid. The court further reasoned that the
reliability of an admission of guilt under such circumstances would be highly suspect. /bid.
Moreover, the court recognized that since Imlay testified at his trial that he was innocent, a forced
admission of guilt would result in the dereliction of his Fifth Amendment nght not only as to the crime
for which he had been convicted, but also to the crime of perjury. /bid. The court concluded its
opinion by stating its belief that the better reasoned decisions are those that protect the defendant's
constitutional right against self-incrimination and that prohibit augmenting a sentence for refusing to
confess. /bid

Regarding the matter of augmenting punishment because a defendant refuses to admit guilt,
most federal courts of appeals that have addressed the issue have followed the Fifth Circuit Court of
Appeals’ rationale in Thomas v. United States, 368 F.2d 941 (Sth Cir. 1966), which was also relied
on by the Montana Supreme Court in State v. Imlay, supra. The sentencing court in 7homas told the
accused, who had been convicted of bank robbery, that if he would “come clean,” it would be taken
into account in the length of sentence to be imposed, but that if he persisted in denying
culpability—Thomas’ two accomplices had pled guilty to the crime—the Court would take that into
account as well. When the defendant remained adamant in proclaiming his innocence, he was
sentenced to the maximum term permitted by law. Concluding that the alternatives presented to the
accused violated his Fifth Amendment right not to be a witness against himself, the Court of Appeals

35

vacated the sentence imposed by the trial court. /d., at 946-47. Notwithstanding the fact that the
defendant had already been convicted, the Court based its decision on the following ratiocination:

It must be remembered that, at the time of his allocution, Thomas had not been finally
and irrevocably adjudged guilty. Still open to him were the processes of motion for a new
trial (including opportunity to discover new evidence), appeal, petition for certiorari, and
collateral attack. [Emphasis added.] Indeed, appeal is now an integral part of the trial system
for finally adjudicating the guilt or innocence of a defendant.

The two “ifs” which the district court presented to Thomas placed him in a terrible
dilemma. If he chose the first “if,” he would elect to forego all of the above-noted post
conviction remedies and confess to the crime of perjury. ... Moreover, he would abandon
the right guaranteed by the Fifth Amendment to choose not to be a witness against himself,
not only as to the crime of which he had been convicted, but also as to the crime of perjury.
His choice of the second “if’ was made after the warning that the sentence to be imposed
would be for a longer term than would be imposed if he confessed. From the record, it is
clear that an ultimatum of the type which we cannot ignore or approve confronted Thomas.
... Id, at 945.

With respect to the instant case, the respondent’s contention that the punishment for his reputed
crime has been augmented is supported by this Court in Weaver v. Graham, 450 U.S., at 32, wherein
it-was held that the method of awarding time reduction credits is, in fact, one determinant of an
individual’s prison term, and that his effective sentence is altered once this determinant has been
changed.

The petitioners in the instant case have even | romised the infliction of punishment years from
now should the respondent prevail. Shortly after this case had been filed in the Kansas Supreme
Court, he was informed that if he continues to resist, his conditional release (held to be “mandatory”
in Beck, supra) will be made contingent on an admission of guilt and the completion of SATP, and
that if he hasn’t acquiesced by the time his conditional release date arrives in 2001, they will release
him just long enough to sign his parole revocation papers for failure to comply with the

aforementioned conditions. The Fifth Amendment protects a prisoner’s refusal to admit to a crime

where he is threatened with the loss of benefits, including the withholding of parole. ... McMorrow

36

v. Little, 109 F.3d 432 (1997). And in Minnesota v. Murphy, 465 U.S. 420, 444, 104 S. Ct. 1136,
79 L.Ed.2d 409 (1984), this statement was made in the dissenting opinion: “First, many—probably
most—of the persons threatened with sanctions if they refuse to answer official questions lack
sufficient knowledge of this Court’s decisions to be aware that the State’s threat is idle.” However,
thus far the petitioners’ threats in the case at bar have been anything but idle!

Possessed by all citizens of the United States, no matter who they are or how they are
situated, the Fifth Amendment privilege against self-incrimination extends beyond trial or custodial
situations, because “the privilege does not turn upon the type of proceeding in which its protection
is invoked, but upon the nature of the statement or admission and the exposure which it invites.”
Estelle v. Smith, 451 U.S. 454, 462, 101 S. Ct. 1866, 1873, 68 L.Ed.2d 359 (1981). Therefore, the
privilege extends to those already convicted of a crime. Minnesota v. Murphy, 465 U.S., at 426, 104
S. Ct., at 1141-42, citing Baxter v. Palmigiano, 425 U.S. 308, 96 S. Ct. 1551, 47 L.Ed.2d 810
(1976). “The general rule that the privilege must be claimed when self-incrimination is threatened
has also been deemed inawelicibe in cases where the assertion of the privilege is penalized so as to
‘foreclos[e] a free choice to remain silent, and . . . compe[l] . . . incriminating testimony.’ ” Murphy,
465 U.S. at 434, 104 S. Ct. at 1145-46, citing Garner v. United States, 424 U.S. 648, 661, 96 S. Ct.
1178, 47 L.Ed.2d 370 (1976). Access to the privilege is foreclosed when an individual is penalized
for invoking it, and has been termed as the “classic penalty situation” by this Court. Under such
conditions, the privilege is said to be “self-executing.” Murphy, 465 U.S. at 435, 104 S. Ct. at 1146.

Since juries are by no means infallible, innocent individuals are sometimes convicted of crime.
As noted above, the respondent didn’t invoke the privilege because he is concealing incriminating
evidence, he invoked it in response to the petitioners’ unremitting attempts to force him to lie about

this innocence. If he were truly guilty of rape, he never would have left his condom behind as

SEE OO Se

37

evidence for the authorities. Severely punished and irreparably harmed for exercising constitutional
rights, the respondent prays that this Court will deny the petitioners’ application for a writ of
certiorari.
2. Denying Parole Eligibility And Conditional Release To Only Certain
Individuals Who Have Been Convicted of An Alleged Sex-Related Offense
Because They Refuse To Abdicate The Statutory And Constitutional Right
To Seek Habeas Relief, While All Other Offenders Are Free To Challenge
Their Convictions Unfettered, Violates The Precepts Of Due Process And
Equal Protection Of The Law.

The Suspension Clause of the Constitution, Art. 1, § 9, cl 2, states: “The privilege of the Writ
of Habeas Corpus shall not be suspended. . . .” In solemn defense of the Great Writ, this Court has
stated that “there is no higher duty than to maintain it unimpaired.” Bowen v. Johnston, 306 U.S. 19,
26, 83 L.Ed. 455, 461, 59 S. Ct. 442 (1939). And in Johnson v. Avery, 393 U.S. 483, 486, 21
L.Ed.2d 718, 722, 89 S. Ct. 747 (1969), this Court made it clear that in instances where state
regulations applicable to inmates conflict with federal constitutional or statutory rights, the
regulations may be invalidated. Moreover, this Court held in Ex parte Hull, 312 U.S. 546, 549, 85
L.Ed. 1034, 1036, 61 S. Ct. 640 (1941) that a state’s agents cannot abridge or impair a petitioner's
right to apply for a writ of habeas corpus.

Notwithstanding the fact that habeas corpus ad subjiciendum was an integral part of this
nation’s common law heritage and has been a fundamental clause of the Constitution ever since it was

signed by our founding fathers in 1787, Preiser v. Rodriguez, 411 U.S. 475, 484-85, 93 S. Ct. 1827,

36 L.Ed.2d 439 (1973), the petitioners are, in effect, brazenly attempting to punish the respondent
to the point where he abdicates not only the privilege against self-incrimination, but also the privilege

38

of applying for the Writ. As previously noted, the petitioners were informed well before the
respondent filed his Licibecints pursuant to K.S.A. 60-1507 that he would be collaterally attacking
his conviction; however, they responded with additional reprisals for his invocation of the
aforementioned rights.

“(Flor an agent of the State to pursue a course of action whose objective is to penalize a
person’s reliance on his legal rights is ‘patently unconstitutional.’ ” Bordenkircher v. Hayes, 434 U.S.
357, 363, 54 L_Ed.2d 604, 98 S. Ct. 663 (1978), quoting Chaffin v. Stynchcombe, 412 U.S. 17, 32-
33, no. 20, 36 L_Ed.2d 714, 93 S. Ct. 1977 (1973). “For while an individual certainly may be
penalized for violating the law, he just as certainly may not be punished for exercising a protected
statutory or constitutional right.” United States v. Goodwin, 457 U.S. 368, 372, 73 L.Ed.2d 74, 80,
102 S. Ct. 2485 (1982). Due process of law is violated when the government vindictively attempts
to penalize a person for exercising a protected statutory or constitutional nght. United States v.
Conkins, 987 F.2d 564, 565, Syl. 9 6 (9th Cir. 1993). The respondent asseverates that the
petitioners’ acts are in direct violation of the above-cited case law and are patently designed to
preclude him from petitioning the courts for redress.

Through their reprisals the petitioners have established the discriminatory precedent that only
certain individuals who have been convicted of an alleged sex-related offense will be punished for
pleading “not guilty” at trial, for maintaining their innocence, and for seeking post conviction relief.
The respondent submits that if such bias is countenanced by the courts, K.S.A. 60-1507 should be
amended to provide a caveat to such individuals, notifying them of the consequences for invoking the
statute. An equal protection violation occurs when the government treats someone differently than

another who is similarly situated. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105

IPA a a a st i i el camel

39
S. Ct. 3249, 87 L.Ed.2d 313 (1985); Jacobs, Visconsi & Jacobs, Co. v. City of Lawrence, Kan., 927

F.2d 1111, Syl. 9 7 (10th Cir. 1991).

The respondent respectfully contends that punishing certain individuals so severely and in such
a protracted manner for refusing to give up the aforementioned fundamental rights with an official
admission of guilt while all other offenders, no matter how serious the crime, are free to challenge
their convictions and are accorded the full ambit of provisions for reduced imprisonment without any
adverse consequences is highly discriminatory and a patent due process and equal protection
violation. Moreover, the petitioners are fully aware of the fact that their tactics act as a strong
deterrent to invoking the statutory and constitutional process that is supposed to be made equally
available to everyone, and can result in overwhelming an innocent individual to the point where he

abandons the only means available for attempting to establish his innocence.

Ill. CONCLUSION

The petitioners have attempted to prepossess this Court’s decision by posing the trite
conditional that if their application for certiorari is denied, it will result in a flood of violent criminals
being released on the streets of Kansas. But the truth of the matter is that many of the inmates in this
state are not a threat to the public, are not predisposed to commit violent crimes, and would assume
the role of a law abiding citizen if released. Albeit heinous crimes have been committed from time-to-
time by rare individuals, but it is highly unfair to greatly enhance an inmate’s punishment and attempt
to deprive him of statutory and constitutional rights in response to the egregious acts committed by
another.

Ideally, the petitioners would have this Court reverse the Kansas Supreme Court’s decisions,
overrule Weaver v. Graham, and accord them plenary power to adversely change the terms of an

i" “

40

inmate’s sentence at will—the exact situation our founding fathers strove to prevent when they
penned the Ex Post Facto tii of the Constitution. If Weaver were ever overruled, one of the few
remaining impediments would be lifted that prevent prison officials from becoming unjust and
tyrannical. For all the reasons stated in this brief, the respondent beseeches this Highest of all Courts
to deny the petitioners’ application for a writ of certiorari.

Respectfully submitted,

Rasy monet eae

Raymiond F. Stansbury

g exhibit A a,

SEXUAL ABUSE TREATMENT PROGRAM

SATP Telephone (913) 727-3235 ext. 7257
DCCCA, Inc. Fax (913) 727-2675
c/o Lansing Correctional Facility

P.O. Box 2

Lansing, Kansas 66043

April 18, 1995

David A. Reed

Attorney at Law

5121 Parallel Parkway
Suite 3

Kansas City, Kansas 66104

RE: Patnck Shaw
Dear Mr. Reed:

This is in response to your letter of February 24, 1995 regarding concerns of $A.T?

Darucipation as a voluntary program. Participation mn SATP is voluntary and
celta criteria must be met for acceptance. SATP imposes no consequences ‘cz

Sincerely,
“) ’
Lik “M. E5i (ee,
Barbara Owens, LSCSW

SATP Coordinator

D”n.1
LJ we.

@ = Exhibit B

IN TSE OLTSTRICT COURT OF LEAVENWORTH COUNTY,

KANSAS

Jerry R.C. Cooper,
Plaintiff

Vv. Case No. 9303CV00111

DECCA, Inc., et al.,
Defendants

. DEFENDANT MCKUNE’S ANSWERS TO PLAINTIFF‘S lst SET OF
INTERROGATORIES
COMES NOW the defendant, David McKune, and answers
the plaintiff’s lst Set of Interrogatories as follows:
he Lansing Correctional Facility
P.O. BOx 2

Lansing, KS 66043

Hutchinson Correctional Facility
P.O. Box 1568

Hutchinson, KS 67504

~ 2a. Approximate current number of participants is @

for every 9 month period. -
b. Participation is voluntary, not required by ¢t

Kansas Department of Corrections. -
c. Between September 1, 1989 and April l, 1993, |

men Successfully completed the SOTP through either

program provided by Weldy and Weldy or DCCCA.

‘

- |
@ Exhibit c SB

° S.A.T.P.
ADMISSION OF GUILT

* This is to confirm that | understand the criteria for being accepted into the S.A.T.P. (Sexual Abuse
Treatment Program) at Lansing Correctional Faci®ty, which includes an admission of Guilt for my sex |
crime.

| realize that | am being allowed to participate in an evaluation for acceptance into S.A.T.P. with the
understanding that | followed through with an Admission of Guilt.

This document will serve as my official Admission of Guilt to the following:

Signature ( Date |

Witness Date

i | P-183¢

No. 98-367

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

ROBERT D. HANNIGAN, WARDEN, ET AL., PETITIONERS
V.

RAYMOND F. STANSBURY, RESPONDENT

PROOF OF SERVICE

Pursuant to Supreme Court Ruie 29, I, Raymond F. Stansbury, hereby declare that I
served a true and correct copy of the enclosed Motion For Leave to Proceed Jn Forma Pauperis
and Brief In Opposition to the Petition For Wnt of Certiorari on each party to the above-
captioned case by depositing them in the United States Mail, first class postage prepaid, on this
9th day of November, addressed to the following individuals:

Mr. Michael K. Lehr Mr. Stephen R. McAllister
940 North Main Asst. Attorney General REC E | V E D
Wichita, KS 67203 301 S.W. 10th Ave.
Atty. for Michael Bankes Topeka, KS 66612-1597 nov 1 6 1998
(316) 264-8181 Counsel of Record
OFFICE OF THE CLERK
(785) 296-2215 SUPREME COURT, U.S.

I hereby declare under penalty of perjury that the foregoing is true and correct.

Executed on this 9th day of November, 1998.

Rasymoncl F Saati

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1516%3A3. Public record. Not legal advice.