Petition for Writ of Certiorari — Taylor v. Rhode Island Department of Corrections
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96167 0 are | 7 1997.
No. @Wieé QE Li? CLERK
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IN THE
Supreme Court of the United States
October Term, 1996
WILLIAM L. TAYLOR, MARYANNE SILVA,
RAYMOND W. CHRISTIANSEN,
LIONEL L. BOURGET anp DAVID A. WEBB,
" Petitioners,
STATE OF RHODE ISLAND, DEPARTMENT OF
CORRECTIONS AND GEORGE A. VOSE, JR..,
INDIVIDUALLY AND IN HIs OFFICIAL
Capacity AS DIRECTOR OF THE RHODE ISLAND
DEPARTMENT OF CORRECTIONS,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
RICHARD A. SINAPI
AMERICAN CIVIL LIBERTIES UNION
Rhode Island Affiliate
Counsel of Record
V. EDWARD FORMISANO
SINAPI LAW ASSOCIATES, LTD.
100 Midway Place, Suite |
Cranston, Rhode Island 02920
(401) 944-9690
April 17, 1997
BATEMAN & SLADE, INC BOSTON, MASSACHUSETTS
QUESTIONS PRESENTED
|. Whether the retroactive assessment of offender supervi-
sion fees solely and automatically as a consequence of a crim-
inal conviction and the sentence of probation imposed consti-
tutes the imposition of a greater punishment proscribed by the
Ex Post Facto Clause.
2. Whether the decision of the court of appeals should be
vacated and remanded for reconsideration in light of this
Court’s recent decision in Lynce v. Mathis, 117 S.Ct. 891
(1997), which rejected the subjective motivation test relied
upon by the court below in denying an ex post facto challenge
to the retroactive imposition of offender supervision fees.
TABLE OF CONTENTS
QUESTIONS PREBONIOD 6. ice e eee enue i
FABLE GE AURORE in 6 8 0b e we 6G eee iil
CGE NOT 6 645s Sib does eee es I
PS SE a ee Tee RE eee 2
CONSTITUTIONAL AND STATUTORY
PRU Vises INVOLVED... te cae ee 2
PE TOE Ste alk eee ee a ee 2
Ki a RES eee 3
B. Offender supervision fee statutory scheme ..... 4
C. Retroactive implementation .............. 5
a. Sees GE Gs a 8 ee ee ee 6
cS. Cout of sppens Gecwaeh wk ee ce 7
REASONS FOR GRANTING THE PETITION ...... 8
I. The court of appeals decision conflicts with con-
controlling precedents of this Court, the result
reached by the only other court of appeals to ad-
dress the issue, and numerous state and lower
federal court decisions which have uniformly
held that retroactive imposition of monetary
exactions solely and automatically as a conse-
quence of a criminal conviction violates the Ex
Peat Facts Ca oo i ss eae ee 12
A. The decision conflicts with authoritative
precedents of this Court defining “punish-
ment” in the Ex Post Facto context ....... 13
B. The decision conflicts with the holdings of
Ler Se a a SK ea 16
C. The decision conflicts with the result reached
by the Fifth Circuit in Sheppard ......... 17
D. The decision conflicts with recent decisions
of numerous state and lower federal courts
upholding Ex Post Facto challenges in simi-
i SS 5. oo eS a ae 17
ill
TABLE OF CONTENTS (CONT ’D)
Il. The decision of the court of appeals is erroneous
and cannot be reconciled with this Court’s recent
decision in Lynce v. Mathis and therefore must
I ie a sg en be Se eee ee
A. Characterization of supervision fees as a
“civil charge” is erroneous ..........-.
B. Application of the Halper test is erroneous . .
C. Lynce v. Mathis compels reversal .......
III. This case involves the scope of protection afford-
ed by a fundamental constitutional safeguard
against arbitrary laws and its disposition by this
Court will have a profound effect nationally on
criminal offenders retroactively subjected to
SEA ae ee ee a ee ae
oa gd, yaw wa ew be ew pl
Appendix A
Opinion of the Court of Appeals ...........-.
Appendix B
Memorandum and Order of the District Court
Appendix C
Pes oF tee Treeirict Cott... 6 ww ee ees
Appendix D
Order of the Court Denying Petition for Rehearing .
Appendix E
RRS re ae ee ee ee
Appendix F
Amended Judgment .... 2... 0s eee eeee
Appendix G
§ 42-56-38. Assessment of costs ...........
Appendix H
Agreed Statement of Facts .........-...-..-.-
Appendix I
States Which Have Enacted Offender Fee Statutes .
iV
TABLE OF AUTHORITIES CITED
CASES.
Artway v. Attorney General of New Jersey, 81 F.3d 1235
CONE Rae; PE os vee ae) baa aaa a 22, 23n
Bae v. Shalala, 44 F.3d 489 (7th Cir. 1995) ...... 23n
Beazell v. Ohio, 269 U.S. 167 (1925) . 9n, 13, 14, 15, 20n
Burgess v. Salmon, 97 U.S. 381 (1878) ...... 9n, 20n
Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) ... 9n, 13, 14
California Dept. of Corrections v. Morales, \15 S.Ct.
POET LIPO eR ee l6n, 24, 26
Collins v. Youngblood, 497 U.S. 37 (1990) .....
CNP fee hom ain GAD Mere 9n, 13, 14, 15n, 20n
Corcoran v. State, No. 96-CV-004360 (Wis. Cir. Ct.
RENCE iy PER 6 ob ee eR hes oe 26n
Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1867)
co gee holies ea wee eee ee 9n, 13n, 20
Department of Revenue v. Kurth Ranch, 1148.Ct. 1937
RSE 246 3 Le a eee ee ee 20, 21
DeVeau v. Braisted, 363 U.S. 144 (1960) ...... ia. 22
DiCola v. Food and Drug Administration, 77 F.3d 504
hc GO Se Se Ee ROE ee eee ees 23n
Dobbert v. Florida, 432 U.S. 282 (1977) ........ 15n
Flemming v. Nestor, 363 U.S. 603 (1960) ......... 23
Government of Virgin Islands v. D.W., 3 F.3d 697
Ce as SOE Oe a eRe ee eee 9n
Harisiades v. Shaughnessy, 342 U.S. 580 (1952) .... 23
In re Medley, 134 U.S. 160 (1890) ............. On
Landgraf v. USI Film Products, 114 §.Ct. 1483 (1994) . 25
Lindsey v. Washington, 301 U.S. 397 (1937) . 9n, 13n, 15n
Loomer v. State, 768 P.2d 1042 (Wyo. 1989) ....... 9n
Lynce v. Mathis, 117 S.Ct. 891 (1997) ........ passim
inanimate iii
Vv
TABLE OF AUTHORITIES CITED (CONT’D)
Matheson v. Gorczyk, No. 2:97-CV-85 (D. Vt. filed
WE STD 6A HES EE OE 26n
Matter of Appeal in Maricopa Cty. Juv. Action, 139
Ariz. 170, 677 P.2d 943 (Ariz. App. 1984) ...... 9n
Miller v. Florida, 482 U.S. 423 (1987) .... 9n, 13, 15n
People v. Rayburn, 258 Ull.App.3d 331, 630 N.E.2d
Dae RENT i ae Oe ae ss ee ees 9n
People v. Slocum, 213 Mich. App. 239, 539 N.W.2d
SER MTTOOD i x 6k Se ee Oe ee ee eee 9n
People v. Stead, 845 P.2d 1156 (Colo. 1993) ....... 9n
People v. Valdelamar, 122 A.D.2d 289, 505 N.Y.S.2d
Pe (A. 2 a AOE kk os SS sea ee ee 9n
People v. Zinke, 147 A.D.2d 106, 541 N.Y.S.2d 986
[Ae FAs SEE kak KS ee ee eee 9n
Petition of State, 603 A 2d 814 (Del. 1992) . 9n, 15, 19, 22n
Sheppard v. Louisiana Bd. of Parole, 873 F.2d 761 (Sth
Ge PEE Aldi eee ane eos Oe ee 9, 12, 17, 18, 20n
United States v. Atkinson, 788 F.2d 900 (2nd Cir. 1986) . 19n
United States v. Anglian, 784 F.2d 765 (6th Cir. 1986) . 19n
United States v. Halper, 490 U.S. 435 (1989)
CS CN ee Oe Boe 3, t 6. FO, 11, 21
United States v. Ursery, 116 S.Ct. 2135 (1996)
energy en ee eon ey he S, 2, 33528
United States v. Gilberg, 75 F.3d 15 (1st Cir. 1996)
oR aS ead ee ee ea 9n, 19n, 20n
United States v. DeSalvo, 41 F.3d 505 (9th Cir. 1994)
RE ee One OMe erg Se See Ae ree 9n, 19n, 20n
United States v. Corral, 964 F.2d 83 (1st Cir. 1992)
Se eke ae Gr ee She ee et 15n, 20n
United States v. Labat, 915 F.2d 603 (10th Cir. 1990) . 15n
State v. Short, 177 W.Va. 1, 350 S.E.2d 1 (1986) .... 9n
vi
TABLE OF AUTHORITIES CITED (CONT'D)
State v. Yost, 507 So.2d 1099 (Fla. 1987) ......... 9n
Weaver v. Graham, 450 U.S. 24 (1981) ....... passim
STATUTES AND RULES.
United States Constitution
ES Be Me ns Gia ts 9 Ke ie ei we ean 13n
I Se Sek ee he ne ae ne ree 2, 13n
United States Code
ee ae ee REE oS oe ee aes Rie ete 2
cect, ee Go ok geld ea ee ee ee or ee 2
Federal Rules of Civil Procedure
RG RY ang Ga eo ee oa ae ee ee ee 7n
BG NS ek eg ete aa arg rae ae eens Og 7n
Rhode Island General Laws
i a og Seog eae ae ae ee 2, 4, 5, 19n, 26n
Rhode Island Department of Corrections
puementaen PHO, FOG GS 5 5 i ee we p ae a
No. 97-
IN THE
Supreme Court of the Anited States
October Term, 1996
WILLIAM L. TAYLOR, MARYANNE SILVA,
RAYMOND W. CHRISTIANSEN,
LIONEL L. BOURGET anpb DAVID A. WEBB,
Petitioners,
STATE OF RHODE ISLAND, DEPARTMENT OF
CORRECTIONS AND GEORGE A. VOSE, JR.,
INDIVIDUALLY AND IN HIS OFFICIAL
Capacity AS DiRECTOR OF THE RHODE ISLAND
DEPARTMENT OF CORRECTIONS,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
William L. Taylor, Maryanne Silva, Raymond W. Christian-
sen, Lionel L. Bourget and David A. Webb (“Petitioners’’) re-
spectfully petition for a writ of certiorari to review the judgment of
the United States Court of Appeals for the First Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a-10a) is
reported at 101 F.3d 780. The opinion of the district court (App.,
infra, \\a-37a) is reported at 908 F. Supp. 92.
2
JURISDICTION
The court of appeals entered judgement on December 4,
1996 (App., infra, 42a) and an amended judgement on De-
cember 16, 1996 (App., infra, 43a). A petition for rehearing
and suggestion of rehearing en banc was denied by the court
of appeals on January 17, 1997 (App., infra, 40a). The juris-
diction of this Court is invoked under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
Article I, § 10 of the United States Constitution provides,
in pertinent part, that “[nJjo State shall... pass any . . . ex
post facto Law.” This case also involves R.I. Gen. Laws
§ 42-56-38 and regulations promulgated pursuant thereto,
Rhode Island Department of Corrections Regulation No.
10.07.03, which are reprinted in the appendix, infra, at 44a-
50a.
STATEMENT
The Petitioners are all convicted offenders who committed
their respective offenses and were sentenced to probation under
the care and custody of the Rhode Island Department of Correc-
tions prior to July 1, 1994. On the basis of a Rhode Island
law effective on and after this date, the Respondents subse-
quently imposed a monthly supervision fee on the Petitioners
as an additional condition of their sentences of probation. The
Petitioners thereafter filed an action pursuant to 42 U.S.C.
§ 1983 seeking relief on the ground that, inter alia, imposition
of the fee violated the Ex Post Facto Clause. Jurisdiction of
the district court was invoked under 28 U.S.C. § 1331. The
district court declared the imposition of the supervision fee on
Petitioners to be unconstitutional in violation of the Ex Post
Facto Clause. On appeal, the court of appeals reversed, based
in part on its conclusion that the supervisory fee “comprises
no part of the sentence imposed,” even though the fee was
3
assessed solely and automatically as a consequence of a crim-
inal conviction and the sentence of probation imposed. This
finding conflicts with this Court’s decision in Weaver v.
Graham, 450 U.S. 24 (1981), recently reaffirmed in pertinent
part in Lynce v. Mathis, 117 $.Ct. 891 (1997), which held
that an increase in punitive conditions outside the original
sentence imposed implicates the Ex Post Facto Clause. By
erroneously applying the double jeopardy test announced in
United States v. Halper, 490 U.S. 435 (1989), the court of
appeals held that imposition of the supervisory fee did not
violate the Ex Post Facto Clause since there was no subjective
intent to punish and the amount of the assessment was not so
extreme as to constitute “punishment.” The court of appeals’
opinion predates this Court’s decision in Lynce, which rejected
the relevance of subjective motivation and reiterated that the
focus of an ex post facto inquiry is the effect on a criminal
offender. The case below was also briefed and argued before
this Court’s decision in United States v. Ursery, 116 S.Ct.
2135 (1996), which cautioned that the Halper test applies only
in double jeopardy analysis and even then is narrowly restricted
to situations where a fixed monetary penalty is sought in a
subsequent civil proceeding.
A. Summary
To the Petitioners’ knowledge, this case marks the first time
in the history of American jurisprudence where a monetary
exaction retroactively imposed as a direct and automatic con-
sequence of a criminal conviction and the sentence imposed
has survived an ex post facto challenge. By redefining what
constitutes “punishment” based on an erroneous double
jeopardy analysis and contrary to nearly 200 years of ex post
facto case law, the decision below is an invitation to states to
raise revenues through the retroactive imposition of monetary
payments on criminal offenders, which are carefully labeled
as “fees for services” in order to exploit the ex post facto
loophole created by this case. If left undisturbed, it will inevit-
ie
4
ably precipitate a flood of litigation — which has already
started — wherein courts will be forced to adjudicate under
what circumstances, to what extent, and in what amounts states
may retroactively impose “fees for services” on criminal offen-
ders. The court of appeals decision effectively authorizes states
to do by indirection that which they could not do directly —
retroactively increase the monetary penalty imposed on sen-
tenced criminal offenders. To restate the issue another way,
the question presented is whether, by merely asserting a non-
punitive purpose for monetary exactions which do not exceed
the cost of “services” provided, a state may impose fees on
criminal offenders which have the effect of retroactively inflict-
ing a greater punishment, and thereby escape the constraints
of the Ex Post Facto Clause.
Although the precise issue before the Court is one of first
impression, the court of appeals’ decision conflicts with well-
settled precedents of this Court, in particular its recent unani-
mous decision in Lynce which was announced subsequent to
the decision of the court of appeals. The decision is also con-
trary to the result reached by the only other court of appeals
to rule on this issue, and it conflicts with recent decisions of
numerous state and lower federal courts which have uniformly
held in similar contexts that the retroactive imposition of a
monetary exaction solely and automatically as a consequence
of a criminal conviction violates the Ex Post Facto Clause.
The decision of the court below is clearly erroneous and in-
volves a serious encroachment on the important constitutional
right to be free from the retroactive imposition of a greater
punishment. Moreover, this case is deserving of heightened
scrutiny by this Court insofar as the challenged statute seeks
to retroactively impose a greater burden on perhaps the most
unpopular and powerless of groups — criminal offenders.
B. Offender Supervision Fee Statutory Scheme
Rhode Island General Laws § 42-56-38, as enacted by P.L.
1992, c. 133, art. 97, § 2 (App., infra, 44a), provides, inier
5
alia, that every sentenced criminal offender committed to the
care, custody and control of the Rhode Island Department of
Corrections (“Department”), including but not limited to those
on probation or parole, “chall reimburse the state for the costs
or the reasonable portion thereof incurred by the state relating
to such commitment.” Individuals incarcerated while awaiting
trial are exempted from this reimbursement obligation if they
are not subsequently convicted. Id. The statute specifically
provides that it shall not be effective until the date rules and
regulations implementing its provisions are filed with the
Rhode Island Secretary of State. /d. On June 17, 1994, the
Respondents filed rules and regulations with the secretary of
state implementing § 42-56-38 entitled “Adult Probation and
Parole Offender Supervision Fees,” effective as of July },
1994, providing for the imposition of sentenced offender super-
vision fees, designated as Regulation No. 10.07.03 (“Regula-
tion”) (App., infra, 45a-50a). The Regulation provides that a
monthly supervision fee of $15.00 shall be assessed og proba-
tioners and parolees effective July 1, 1994. Jd. Although an
offender’s probation may not be violated solely for non-pay-
ment of the fees, the Regulation does provide that in the context
of a probation revocation hearing “non-payment of offender
fees may be brought to the attention of the court, formally or
informally, as indicative of a lack of cooperation, failure to
fulfill lawful obligations or other pattern of non-compliance.”
Regulation § 10.07.03 (I1)(D)(3), App., infra, 48a.
C. Retroactive Implementation
The Petitioners all committed their respective offenses and
were convicted, sentenced and placed on probation under the
care and custody of the Department prior to July 1, 1994. App.,
infra, 56a. Accordingly, neither at the time the Petitioners’
underlying offenses were committed nor at the time the Peti-
tioners were sentenced to probation was an offender supervi-
sion fee imposed by law as a condition of such probation or
otherwise. Jd. Nevertheless, on June 16, 1994, Respondent
'
6
George A. Vose, Jr., Director of the Department, sent a letter
addressed to all individuals who were on probation or parole
in Rhode Island, including Petitioners, notifying them that a
monthly offender supervision fee would be imposed commenc-
ing July 1, 1994. /d. at 54a. The imposition of the fee amounts
to an additional monetary penalty on the Petitioners which
ranges between $135.00 and $3,405.00 through the terms of
the Petitioners’ respective periods of probation. /d. at 5la-52a.
D. District Court Decision
The Petitioners thereafter commenced suit in the district
court claiming that the offender fee statute, as applied, violated
the Ex Post Facto and Due Process Clauses of the United
States and Rhode Island Constitutions. The case was decided
in the district court on cross-motions for summary judgment
on an agreed statement of facts. The district court granted
Petitioners’ motion for summary judgment on the ground that
the challenged provision violated state and federal ex post facto
prohibitions and also on the ground that retrospective applica-
tion of the provision to the Petitioners violated statutory author-
ity. 908 F. Supp. at 95-96, 107, App., infra, 12a, 37a. The
district court rejected Petitioners’ substantive due process
claim, and granted Respondents’ cross-motion for summary
judgment thereon. /d. The district court did not reach and there-
fore denied both the Petitioners’ and Respondents’ requests for
relief on the procedural due process claim. /d. Finally, the
district court granted summary judgment to Respondent George
A. Vose, Jr. in his individual capacity on the ground of quali-
fied immunity. /d. The net effect of the district court’s decision
was to declare the application of the challenged provision
imposing offender supervision fees to be unconstitutional in
violation of the Ex Post Facto Clauses of both the state and
federal constitutions, but only as to individuals whose offenses
were committed prior to the effective date of the statute.' The
‘In its Memorandum and Order dated November 21, 1995, the district court
originally declared the challenged provision unconstitutional as to offenders sen-
7
district court found that imposition of the fee solely and auto-
matically as a consequence of a criminal conviction and the
sentence of probation imposed inextricably linked the fee to
Petitioners’ criminal convictions and therefore was part of the
“law annexed to the crime.” /d. at 101, App., infra, , 24a-25a.
Since imposition of the fee had the effect of “make[ing} more
burdensome the punishment for a crime,” on the basis of
Weaver v. Graham, 450 U.S. at 24, and well-settled ex post
facto doctrine, the district court found the fee to be unconstitu-
tional in violation of the Ex Post Facto Clause as applied to
the Petitioners.
E. Court of Appeals Decision
The court of appeals reversed the district court and remanded
the case for further proceedings on the Petitioners’ procedural
due process claims under state and federal law. Although the
court of appeals acknowledged that the offender fee statute,
as applied to the Petitioners, was retrospective, the. court
nevertheless rejected Petitioners’ ex post facto challenge on
the ground that imposition of the fee did not constitute pros-
cribed “punishment.” The court of appeals reached this result
by applying a subjective test for defining “punishment” coupled
with an objective standard derived from this Court’s decision
in Halper, 490 U.S. at 435. 101 F.3d at 782-784, App., infra,
6a-10a. Accordingly, the court of appeals determined that
“under the current regime governing civil provisions the relev-
ant inquiry was not only whether the legislative intent was
punitive in nature, but whether the challenged civil provision
is ‘so extreme as to constitute punishment.’ ” 101 F.3d at 783
(emphasis in original) (quoting Halper, 490 U.S. at 442.),
App., infra, 7a. In applying the foregoing test, the court of
tenced to probation prior to its effective date. 908 F. Supp. at 107, App., infra,
37a. In response to a motion filed by Petitioners seeking additional findings and
to alter or amend the judgment pursuant to Fed. R. Civ. P. 52(b) and 5%e), the
district court issued a subsequent order dated January 10, 1996 (App.. infra, 38a)
clarifying that it was the date of the offense, not the date of sentencing which was
the relevant date for applying the ex post facto prohibition.
8
appeals found, as a preliminary matter, that the offender fee
statute imposed a “civil charge” which “comprises no part of
any sentence imposed for the crimes committed by offenders.”
101 F.3d at 783, App., infra, 7a-8a. In reaching this conclu-
sion, the court of appeals ignored the teaching of Weaver,
which held that the retrospective imposition of a greater punish-
ment violates the Ex Post Facto Clause even if it alters punitive
conditions outside the sentence itself. 450 U.S. at 32; accord,
Lynce, 117 S.Ct. at 898. Because the fee was designed to
“reimburse” the Department for costs reasonably incurred in
providing supervisory services to probationers and parolees,
the court of appeals concluded that the statute neither in its
purpose nor by application of the Halper objective test consti-
tuted “punishment” proscribed by the Ex Post Facto Clause.
101 F.3d at 783-784, App., infra, 7a-10a.
REASONS FOR GRANTING THE PETITION
The Petitioners’ claim in this case is relatively simple and
the material facts are not in dispute. The Respondents imposed
offender supervision fees on Petitioner probationers, which
average $972.00 each and range as high as $3,405.00 as to
one Petitioner, even though the state law authorizing such fees
was not in effect at the time the Petitioners’ underlying offenses
were committed, at the time they were sentenced, or at the
time they were placed on probation. As a consequence, in
addition to now having to pay punitive fines disguised as
“offender supervision fees,” Petitioners face possible revoca-
tion of their probation due, at least in part, to non-payment of
the fees. According to well-settled law and controlling Supreme
Court precedent, where, as here, an increased monetary penalty
is imposed either at the time of sentencing or automatically as
a result of the imposition of a criminal sentence, it is part of
the “law annexed to the crime” and constitutes punishment as
a matter of law which is proscribed by the Ex Post Facto
Clause. See Lynce, 117 S.Ct. at 891; Weaver, 450 U.S. at 24.
The foregoing conclusion urged on this Court is not a novel
one, but flows inexorably from the broad application accorded
— |
ON eer ne nmr
9
the Clause under an unbroken line of Supreme Court precedent’
and is the same result reached by the Fifth Circuit in a recent
case in deciding a similar issue, Sheppard v. Louisiana Bd.
of Parole, 873 F.2d 761 (Sth Cir. 1989). Moreover, the
Petitioners’ position is also consistent with recent decisions of
numerous state and lower federal courts which, in similar
contexts, have unanimously held that the retroactive applica-
tion of provisions imposing additional costs, civil assessments
or restitution violates the ex post facto proscription, including
a recent decision of the First Circuit.’
In the face of the foregoing well-settled law, the court of
appeals nevertheless reversed the district court’s grant of sum-
>See Lynce, 117 S.Ct. at 891 (cancellation of provisional early release credits
awarded to alleviate prison overcrowding); Miller v. Florida, 482 U.S. 423 (1987)
(increase in presumptive sentence range under sentencing guidelines); Weaver, 450
U.S. at 24 (loss of mandatory gain time credited to reduce prison term due to good
conduct); Lindsey v. Washington, 301 U.S. 397 (1937) (changing maximum sen-
tence from discretionary to mandatory); /n re Medley, 134 U.S. 160 (1890) (requir-
ing solitary confinement prior to execution); Burgess v. Salmon, 97 US. 381
(1878) (increasing commodities tax and imposing criminal penalties for failure to
collect additional duty); Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1867)
(requiring ministers, priests and lawyers to take loyalty oath failing which they
must either cease engaging in their profession or become subject to criminal penal-
ties); see also Collins v. Youngblood, 497 U.S. 37 (1990); Beazell v. Ohio, 269
U.S. 167 (1925); Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798).
‘United States v. Gilberg, 75 F.3d 15 (ist Cir. 1996) and United States v.
DeSalvo, 41 F.3d S505 (9th Cir. 1994) (restitution ordered under amended Victim
and Witness Protection Act); Government of Virgin Islands v. D.W., 3 F.3d 697
(3rd Cir. 1993) (monetary fine imposed on juvenile); Sheppard v. Louisiana Bd.
of Parole, 873 F.2d 761 (Sth Cir. 1989)(parole supervision fees); Matter of Appeal
in Maricopa Cty. Juv. Action, 139 Ariz. 170, 677 P.2d 943 (Ariz. App. 1984)
(imposition of $100.00 assessment and $100.00 in restitution); People v. Stead,
845 P.2d 1156 (Colo. 1993)(en banc ($1,000.00 payment to drug offender surcharge
fund); Petition of State, 603 A.2d 814 (Del. 1992) (percentage assessments to be
paid to victim compensation and drug rehabilitation funds); State v. Yost, 507 So.
2d 1099 (Fla. 1987) (monetary penalties for nonpayment of assessed fees and court
costs); People v. Rayburn, 258 lll. App.3d 331, 630 N.E.2d 533 (1994) ($100.00
fine to be paid to family abuse fund); People v. Slocum, 213 Mich. App. 239,
539 N.W.2d 572 (1995) (payment of cost of extradition as part of court-ordered
restitution); People v. Zinke, 147 A.D.2d 106, 541 N.Y.S.2d 986 (A.D. | Dept.
1989) (5% surcharge on sentence of restitution); People v. Valdelamar, 122 A.D.2d
289, 505 N.Y.S.2d 192 (A.D. 2 Dept. 1986) (mandatory penalty assessment of
$75.00 per indictment); State v. Short, 177 W.Va. 1, 350 S.E.2d | (1986) (payment
of restitution beyond period of probation); Loomer v. State, 768 P.2d 1042 (Wyo.
1989) (costs of prosecution).
10
mary judgment in favor of Petitioners. The court of appeals’
decision in this case has thus effectively overruled and turned
on its head nearly 200 years of ex post facto decisional law,
by redefining the term “punishment” so as not to include a
monetary exaction imposed as a direct and automatic conse-
quence of the imposition of a criminal sentence, contrary to
authoritative Supreme Court precedent. See cases cited supra
note 2. In reaching this result, the court of appeals ignores the
teaching of Weaver and this Court’s recent decision in Lynce,
which hold that an increase in punitive conditions outside the
sentence itself violates the Ex Post Facto Clause. Indeed, the
foregoing holding of these cases applies with particular force
where, as here, the increase in punishment is not triggered by
any conduct, activity or proceeding other than the sentence
imposed. The court of appeals decision also misconstrues and/
or misapplies precedent delineating the scope of constitutional
protection available in the double jeopardy context, which is
‘inapposite to this case according to this Court’s recent decision
in Ursery, 116 S.Ct. at 2135, decided after this case was
briefed and argued before the court of appeals.
The court of appeals erroneously applied what it perceived
to be the coupling of an objective and subjective “purpose”
test espoused in Halper, 490 U.S. at 435, outside the narrow,
monetary civil penalty/double jeopardy context to which that
standard applies according to the holding in Ursery. 101 F.3d
at 783, App., infra, 6a-7a. In doing so, the court of appeals
ignored the fact that the supervision fee imposed in this case
has the effect of retroactively imposing a monetary penalty on
the Petitioners as the sole and direct consequence of a criminal
conviction, contrary to authoritative Supreme Court precedent,
including this Court’s recent decision in Lynce, and the weight
of legal authority. See cases cited supra notes 2-3. By errone-
ously, inter alia, applying a double jeopardy definition of
“punishment,” the court of appeals stripped the Petitioners of
the fundamental protections guaranteed by the Ex Post Facto
Clause: fair notice of the penalties applicable to criminal con-
duct and an injunction forbidding the legislature from arbitrarily
Laine”
i
1]
imposing a greater punishment after the fact. Weaver, 450
U.S. at 28-30. Indeed, such an after the fact “changing of the
rules of the game” which seeks to impose an additional monet-
ary penalty on perhaps the most unpopular and powerless of
groups — criminal offenders — for the politically expedient
purpose of raising revenues without increasing taxes on the
general public, implicates the very type of lack of notice and
legislative restraint against which the Ex Post Facto Clause is
designed to safeguard. /d.
Finally, in contrast to the plethora of Supreme Court and
state and lower federal court precedents which support Petition-
ers’ contention in this case, the court below relies on three
court of appeals decisions that are inapposite both as to the law
and facts of this case, and which were otherwise erroneously
decided insofar as they improperly apply the Halper test to
non-monetary, civil penalties contrary to the holding in Ursery.
101 F.3d at 783, App., infra, 6a-7a. The net effect of the
court of appeals’ decision is to validate retroactive impesition
of monetary exactions in any amount on any probationer or
parolee as long as it does not exceed the cost of supervision
or services provided, and is therefore considered “remedial.”
Id. at 784 and n.7, App., infra, 9a-10a. Aside from the fact
that neither the court of appeals nor Respondents have cited
a single case supporting this proposition in the ex post facto
context, as noted by the district court, “this type of conclusory
analysis leads to a ‘slippery slope,’ where a state could, by
simply designating funds for a particular cost or by careful
labeling, impose almost any new fine without being subject
to the constraints of the Ex Post Facto Clause.” 908 F. Supp.
at 102, App., infra, 26a. In short, the First Circuit has issued
an unprecedented ruling, contrary to the definition of what
constitutes an ex post facto law, by holding for the first time
that a monetary penalty imposed as a direct and automatic
consequence of a criminal conviction does not constitute a
prohibited, retroactive imposition of a “greater punishment.”
Thus, the court of appeals decision conflicts with previous
precedents of this Court defining what constitutes proscribed
12
punishment in the ex post facto context, in particular, this
Court’s recent opinions in Lynce and Weaver, the result reached
by the only other court of appeals to address the issue, and
recent decisions of numerous state and lower federal courts
which have unanimously held that the retroactive imposition
of a monetary penalty solely and automatically as a conse-
quence of a criminal conviction violates the Ex Post Facto
Clause. Moreover, the decision of the court of appeals is clearly
erroneous and is based on a misconstruction and misapplication
of case law applicable only in the double jeopardy context.
Finally, the court of appeals’ decision violates one of the
fundamental protections against arbitrary changes in the law
embodied in the Constitution — the presumption against the
retroactive application of new laws.
I. THE CouRT OF APPEALS’ DECISION CONFLICTS WITH CON-
TROLLING PRECEDENTS OF THIS COURT, THE RESULT
REACHED By THE ONLY OTHER CouRT OF APPEALS TO AD-
DRESS THE ISSUE, AND NUMEROUS STATE AND LOWER FED-
ERAL CouRT DECISIONS WHICH HAVE UNIFORMLY HELD
THAT RETROACTIVE IMPOSITION OF MONETARY EXACTIONS
SOLELY AND AUTOMATICALLY AS A CONSEQUENCE OF A
CRIMINAL CONVICTION VIOLATES THE Ex Post Facto
CLAUSE.
The court of appeals’ decision is clearly contrary to control-
ling ex post facto precedents of this Court, including Lynce
and Weaver, and also conflicts with the result reached in Shep-
pard v. Louisiana Bd. of Parole, 873 F.2d at 761, by the Fifth
Circuit, the only other court of appeals to address the issue of
the retroactive imposition of supervision fees. The decision is
also contrary to recent decisions of numerous state and lower
federal courts unanimously upholding ex post facto challenges
in similar contexts. The fundamental error pervading the deci-
sion of the court of appeals is a misconstruction and misun-
derstanding of what constitutes punishment in the ex post facto
context according to well-settled law.
¥
&
3
13
A. The Decision Conflicts With Authoritative Precedents Of
This Court Defining “Punishment” In The Ex Post Facto
Context.
The Ex Post Facto Clause,‘ inter alia, prohibits any retroac-
tive increase in the punishment imposed for criminal acts.°
Such laws implicate the central concern of the ex post facto
prohibition: “the lack of fair notice and governmental restraint
when the legislature increases punishment beyond what was
prescribed when the crime was consummated.” Weaver, 450
U.S. at 30. To fall within the ex post facto prohibition, two
essential elements must be present: first, the law “ ‘must be
retrospective, that is, it must apply to events which occurred
before its enactment;’” and second, “ ‘it must disadvantage the
offender affected by it,’” Miller v. Florida, 482 U.S. 423, 430
(1987) (quoting Weaver, 450 U.S. at 29), by altering the
definition of criminal conduct or increasing the punishment
for a crime, Collins v. Youngblood, 497 U.S. 37, 43, 49-50
(1990). Accord, Lynce, 117 S.Ct at 896. Accordingly, a law
violates the ex post facto prohibition where it assigns more
disadvantageous criminal or penal consequences to an act than
the law did when the act occurred. Weaver 450 U.S. at 29-30.
As the Calder Court put it, a law violates the ex post facto
provision when it “inflicts a greater punishment, than the law
annexed to the crime, when committed.” Calder v. Bull, 3
U.S. (3 Dall.) 386, 390 (1798) (emphasis in original). To use
the Beazell formulation, any law “ ‘which makes more burden-
some the punishment for a crime, after its commission . . . is
‘Article | of the United States Constitution provides that neither Congress nor
any State shall pass any “ex post facto Law.” U.S. Const. art. 1, § 9, cl. 3 and
art. I, § 10, cl. 1.
‘Lynce, 117 S.Ct. at 895; Collins v. Youngblood, 497 U.S. at 43-44, Weaver,
450 U.S. at 28 (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) at 325-326;
see also Lindsey v. Washington, 301 U.S. at 401 (“The Constitution forbids the
application of any new punitive measure to a crime already consummated, to the
detriment or material disadvantage of the wrongdoer.”)(emphasis added); Calder
v. Buli, 3 U.S. (3 Dall.) at 397 (Patterson, J.) (‘The enhancement of a crime or
penalty, seems to come within the same mischief as the creation of a crime or a
penalty” after the fact.).
14
prohibited as ex post facto.” Collins, 497 U.S. at 42 (quoting
Beazell v. Ohio, 269 U.S. 167, 169-170 (1925)).
Insofar as the challenged statute was not in effect at the
time the Petitioners’ underlying crimes were committed, it is
clear that imposition of the fee was retrospective as to the
Petitioners. Nevertheless, the court of appeals found that the
Ex Post Facto Clause was not violated based on its conclusion
that the fee was not punitive. 101 F.3d at 783-784, App.,
infra, 8a-10a. Thus, the narrow issue before this Court is
whether the imposition of supervision fees on Petitioners con-
stitutes a “greater punishment” proscribed by the Ex Post Facto
Clause as that term has historically been defined by controlling
precedents of this Court.
In the case at bar, the challenged provision imposes monthly
offender supervision fees on Petitioners solely as a result of
their having been sentenced to a term of probation for the
commission of one or more criminal offenses. There is no
conduct, activity, or proceeding which triggered the Petition-
ers’ obligation to pay the fee other than the sentence of prob-
ation previously imposed on each of them. Neither at the time
the Petitioners underlying offenses were committed nor at the
time they were sentenced to probation was an offender super-
vision fee imposed by law as a condition of such probation or
otherwise.
It is beyond peradventure that the payment of this additional
fee as a consequence of having been sentenced to a term of
probation following the commission of a crime changes the
“quantum of punishment” and is disadvantageous to the
Petitioners. Weaver, 450 U.S. at 33; see also Collins, 497
U.S. at 41-43 (ex post facto prohibition applies to any increase
in penalty by which crime is punishable). As noted by the
district court below, under both state and federal law, probation
is clearly considered to be punishment. 908 F. Supp. at 100,
App., infra, 22a. Moreover, where, as here, an additional
penalty is inflicted automatically upon imposition of a criminal
sentence, it is part of the “law annexed to the crime,” Calder,
3 U.S. (3 Dall.) at 390, and thereby implicates the Ex Post
i
15
Facto Clause. 908 F. Supp. at 101 (citing Petition of State,
603 A.2d 814, 817-18 (Del. 1992)), App., infra, 24a-25a. By
any reasonable construction, imposition of the fee by operation
of the challenged provision has “ma[de] more burdensome the
punishment” of Petitioners’ probation. Beazell, 269 U.S. at
169. Such an additional penalty imposed automatically as a
result of a criminal conviction constitutes “punishment” as a
matter of law forbidden by the Ex Post Facto Clause in accord-
ance with well-settled precedents of this Court.* See cases cited
supra note 2.
Moreover, Petitioners in the case at bar face far more than
merely the imposition of an additional fine. Although the
Petitioners’ probation may not be violated solely for non-pay-
ment of offender supervision fees, the Regulation does provide
that in the context of a probation revocation hearing “non-pay-
ment of offender fees may be brought to the attention of the
court, formally or informally, as indicative of a lack of coop-
eration, failure to fulfill lawful obligations or other pattern of
non-compliance.” Regulation § 10.07.03(II)(D)(3), App.,
infra, 48a. Thus, based on the plain wording of the Regulation,
Petitioners’ probation could possibly be revoked at least in
part due to non-payment of the fees.’ Nor does the fact that the
The foregoing conclusion is inescapable insofar as the ex post facto prohibition
applies to any retroactive imposition of or increase in a monetary sanction —
whether labeled as payment of supervision costs, restitution or a fine — that flows
from the commission of an underlying crime. See cases cited supra note 3; see
also Collins, 497 U.S. at 51 (Ex Post Facto Clause is concerned “with anything
to do with the definition of crimes, defenses, or punishments.”), Weaver, 450 U.S.
at 30 (ex post facto prohibition forbids imposition of any punishment more severe
than that assigned at time offense was committed). Indeed, the First Circuit has
recognized this very fact in the context of interpreting the application of § SEI.2
of the United States Sentencing Guidelines dealing with the imposition of an
“additional fine” to pay for an offender's costs of incarceration or supervised
release. United States v. Corral, 964 F.2d 83, 84 (Ist Cir. 1992). In comparing
the punitive fine provided in § 5 E1.2(a) to the additional fine to pay for the costs
of incarceration or supervised release provided under §5 E1.2(1), the First Circuit
noted that “‘a fine is a fine,’ notwithstanding how it is designated. /d. at 84 °
(quoting United States v. Labat, 915 F.2d 603, 607 (10th Cir. 1990)).
See Weaver, 450 U.S. at 24 (reduction in mandatory gain time which was
likely, but not certain, to increase effective term of confinement); Miller, 482 U.S
at 423 (increase in presumptive sentencing range for certain sexual offenses);
Lindsey, 301 U.S. at 397 (maximum sentence changed from discretionary to man-
datory); see also Dobbert v. Florida, 432 U.S. 282, 298-299 (1977). Only retroac-
tive changes which create “the most speculative and attenuated possibility of .
16
supervision fee is imposed by way of a statute separate from
the sentence of probation imposed save the challenged provi-
sion from ex post facto scrutiny in light of this Court’s decisions
in Lynce and Weaver.
B. The Decision Conflicts With The Holdings of Lynce And
Weaver.
This Court's recent unanimous ruling in Lynce and its 1981
unanimous ruling in Weaver both involve the retroactive en-
hancement of punitive conditions outside the specific sentence
imposed similar to the case at bar. In Weaver, this Court found
that the retroactive reduction in the amount of gain-time
awarded for an inmate’s good behavior violated the Ex Post
Facto Clause. Although the statute in Weaver did not withdraw
any credits already awarded, or curtail the availability of future
credits, this Court found that it effectively postponed the date
when an inmate would become eligible for early release. 450
U.S. at 33. The Weaver Court therefore concluded that the
change in the law made more onerous punishment for crimes
committed before its enactment contrary to the ex post facto
prohibition. /d. at 35-36. In Lynce, this Court held that the
retroactive cancellation of early release credits awarded to
alleviate prison overcrowding and the consequent reincarcera-
tion of the petitioner violated the Ex Post Facto Clause. The
Lynce Court reached this conclusion based on its finding that
cancellation of the credits had the effect of lengthening the
petitioner’s period of incarceration. 117 S.Ct. at 896. In re-
liance on its earlier decision in Weaver, the Lynce Court re-
jected the respondents’ argument that the challenged statute
was not technically part of the sentence and reiterated that
provisions which retroactively alter parole and early release
terms and thereby increase the punishment imposed violate
the Ex Post Facto Clause. Id. at 898; see also discussion infra
part II.C.
increasing the measure of punishment for covered crimes” survive ex post facto
scrutiny. California Dept. of Corrections v. Morales, \15 S.Ct. 1597, 1603 (1995).
A
17
C. The Decision Conflicts With The Result Reached By The
Fifth Circuit in Sheppard.
The same result was reached in a similar case by the Fifth
Circuit, the only other court of appeals to address the issue of
supervision fees. In Sheppard v. Louisiana Bd. of Parole, 873
F.2d at 761,* the plaintiff sought relief from the imposition of
“supervision fees” as a condition of his parole pursuant to a
Louisiana statute enacted five (5) years after he committed the
underlying offense for which he was placed on parole. In
reversing the decision of the district court, the Fifth Circuit
found that the plaintiff had raised a colorable constitutional
claim for, inter alia, violation of the ex post facto prohibition.
Id. at 764. The court further noted that the facts of the case
appeared to closely resemble those in Weaver. Id. at 765. The
Sheppard court reasoned that a condition of parole consisting
of the payment of a supervision fee could be construed as a
“punitive condition,” the retroactive imposition of which could
be found to constitute a violation of the Ex Post F acto Clause.
Id. at 764. The court found that application of the challenged
statute to an offender whose crime was committed prior to the
statute’s enactment, “ ‘changes the legal consequence of acts
completed before [the] effective date’” of the new provision.
Id. (quoting Weaver, 450 U.S. at 31.) Accordingly, the Shep-
pard court reversed and remanded the case to the district court
for further proceedings.
D. The Decision Conflicts With Recent Decisions of Num-
erous State And Lower Federal Courts Upholding Ex
Post Facto Challenges In Similar Contexts.
The court of appeals’ decision also conflicts with recent
decisions of numerous state and lower federal courts which
have uniformly held that the retroactive application of provi-
sions imposing additional costs, civil assessments and restitu-
“In deciding Sheppard, the Fifth Circuit adopted the reasoning set forth in a
previously unpublished opinion, Murray v. Phelps, No. 88-3302 (Sth Cir. Feb. 3,
1989), 867 F.2d 1426 (table), which was appended to and incorporated in the
Sheppard decision. For the sake of brevity and clarity, all references to the Sheppard
case in the text will be to the facts, reasoning and law as applied by the Fifth
Circuit in the unpublished Murray v. Phelps decision.
18
tion violates the Ex Post Facto Clause. See cases cited supra
note 3. Although with the exception of Sheppard, these cases
do not involve the precise issue of supervision fees, the reason-
ing and result reached by the courts in these cases cannot be
reconciled with the decision of the court of appeals below.
Applying the well-settled ex post facto precedents of this Court
cited above, these courts had no difficulty holding that the
retroactive exactions involved in those cases violated the ex
post facto proscription.
Accordingly, the decision of the court of appeals conflicts
with the foregoing controlling ex post facto precedents and
must be reversed.
Il. THE DECISION OF THE COURT OF APPEALS Is ERRONEOUS
AND CANNOT BE RECONCILED WITH THIS CourT’s RE-
CENT DECISION IN LYNCE V. MATHIS AND THEREFORE MUST
Be REVERSED.
A. Characterization of Supervision Fees as a “Civil Charge”
is Erroneous.
The court of appeals, as a preliminary matter, found that
imposition of the fees constituted a “civil charge” designed to
reimburse the Department for costs directly incurred in super-
vising probationers and parolees and therefore “comprise{d]
no part of any sentence imposed for the crimes committed by
[Petitioners]. 101 F.3d at 783, App., infra., 7a-8a. This con-
clusion by the court of appeals is erroneous as a matter of law
and fact and contrary to well-settled precedents of this Court.
In this Court’s decision in Weaver, and again in its recent
decision in Lynce, this Court rejected argunients that retroactive
imposition of a greater punishment was saved from ex post
facto scrutiny because the challenged provision was not “ ‘in
some technical sense part of the sentence.’ Lynce, 117 S.Ct.
at 898 (quoting Weaver, 450 U.S. at 32). This Court noted in
Weaver and reiterated in Lynce that “retroactive alteration of
parole or early release provisions . . . implicates the Ex Post
Facio Clause because such credits are ‘one determinant of
petitioner’s prison term . . . and [the petitioner’s] effective
19
sentence is altered once this determinant is changed.’” /d. In
the case at bar, offender fees were imposed on Petitioners
solely and automatically as a consequence of a criminal con-
viction and the sentence of probation imposed. Moreover, the
fees may only be imposed as a result of a criminal conviction.”
Accordingly, as noted by the district court, the imposition of
the fees on Petitioners is inextricably linked to their criminal
convictions. 908 F. Supp. at 101, App., infra, 24a-25a; see
also Petition of State, 603 A.2d at 817-818 (where penalties
imposed are “annexed to a criminal conviction and cannot be
the subject of a separate civil proceeding . . . they are subject
to an ex post facto restriction”).
Accordingly, characterization of the fees by the court of
appeals and Respondents as a “remedial” or “civil” charge
imposed to defray the expenses of supervision, rather than as
a penalty or punishment, does not save these fees from ex post
facto scrutiny .'” Where, as here, historically punitive sanctions
are involved — monetary payments as well as the possibility
of incarceration due to nonpayment — ex post facto analysis
focuses on the effect of the challenged provision, not the pur-
ported purpose. Indeed, this Court has looked with disfavor
at efforts to disguise criminal punishment under the guise of
“legitimate revenue raising purpose[s which] . . . could be
equally well served by increasing the fine imposed upon con-
’ Although the enabling statute provides that each sentenced offender committed
to the Department shall reimburse the state for the cost or reasonable portion thereof
incurred by the Department as the result of such commitment, the statute contains
a specific exclusion which provides that “a person so committed, awaiting trial
and not convicted, shall not be liable for the reimbursement.” R.I. Gen. Laws
§ 42-56-38, App., infra, 44a. As noted by the district court below, this exclusion
makes it clear that the law is not designed solely to provide reimbursement for
costs expended by the state, but also to impose an additional burden on those
convicted of criminal offenses. 908 F. Supp. at 101, App., infra., 23a-24a.
“In the same way the First Circuit concluded that a “fine is a fine,” see supra
note 6, Petitioners submit that “punishment is punishment” when monetary penalties
are imposed upon an offender arising out of the commission of an underlying
crime, however described. Indeed, the First Circuit in Gilberg, 75 F.3d at 15, and
the Ninth Circuit in DeSalvo, 41 F.3d at 505, both found that the retroactive
increase in restitution imposed in those cases violated the ex post facto prohibition,
notwithstanding the fact that restitution serves the undisputably remedial purpose
of compensating the victim of a crime. See United States v. Atkinson, 788 F.2d
900, 903 (2nd Cir. 1986); United States v. Anglian, 784 F.2d 765, 767 (6th Cir.
1986).
20
viction.” Department of Revenue v. Kurth Ranch, 114 S. Ct.
1937, 1947 (1994). Moreover, it is well-settled law that the
ex post facto prohibition protects “against deprivation for past
conduct by legislative enactment, under any form, however
disguised.” Cummings vy. Missouri, 71 U.S. (4 Wall.) at 325
(emphasis added).'' It is clear that the imposition of a “greater
punishment” may violate the Ex Post Facto Clause even if it
alters punitive conditions outside the sentence, at least where,
as here, the additional penalty flows from the commission of
the underlying crime. Lynce, 117 S.Ct. at 898; Weaver, 450
U.S. at 32. Accordingly, the legislature may not escape the
restraints of the Ex Post Facto Clause merely by imposing
supervision fees by way of a separate statute, outside the un-
derlying criminal law violated, and describing the conse-
quences imposed as a civil rather than a criminal penalty."
See cases cited supra note 3.
'' See, e.g., Collins, 497 U.S. at 46 (“Subtle ex post facto violations are no more
permissible than overt ones.”); Weaver, 450 U.S. at 31 (“[I]t is the effect, not the
form, of the law that determines whether it is ex post facto.”), Beazell, 269 U.S.
at 170 (ex post facto prohibition applies to laws “whatever their form” which “after
the fact,” increase “the nature or amount of punishment imposed”); Burgess v.
Salmon, 97 U.S. at 385 (ex post facto prohibition may not be avoided by giving
civil form to criminal legislation).
Respondents clearly could not have retroactively imposed a monetary fine on
the Petitioners without violating the Ex Post Facto Clause. Merely by imposing
this exaction on a monthly basis and describing it as an “offender supervision fee”
does not somehow exempt this monetary penalty from the proscriptions of the
Clause. Moreover, this is the precise result reached by the courts in Gilberg, 75
F.3d at 15, and DeSalvo, 41 F.3d at 505, under a similar set of facts and formed
the basis of the court's conclusion in Corral, 964 F.2d at 84, that a “fine is a
fine.” It is also the same result reached in Sheppard and by numerous state and
lower federal courts in holding the ex post facto prohibition applicable to similar,
arguably “remedial” or “civil” penalties. Moreover, payment of the costs of incar-
ceration or supervised release under federal law is clearly considered punishment
implicating the ex post facto prohibition. See United States Sentencing Guidelines
§ SE1.2(i). Indeed, the only difference between the supervision fees in this case
and the “additional fine” to cover the costs of incarceration or supervised release
under § SE1.2(i) is that the latter fee is imposed at the time of sentencing, while
offender fees are automatically assessed as a consequence of an offender being
sentenced to a term of probation. Since, in either case, the fees are imposed solely
aS a consequence of a criminal conviction and the sentence imposed, the foregoing
distincticn does not immunize offender supervision fees from proscription by the
Ex Post Facto Clause.
nn mee ne
21
B. Application of the Halper test is erroneous.
In concluding that the imposition of the challenged fees on
Petitioners did not constitute “punishment” prohibited by the
Ex Facto Clause, the court of appeals applied a subjective test
for defining “punishment” coupled with an objective standard
derived from this Court’s decision in Halper, 490 U.S. at 435.
101 F.3d at 783, App., infra, 7a. The court of appeals’ appli-
cation of the foregoing test is erroneous both because this
Court’s subsequent decision in United States v. Ursery, 116
S.Ct. at 2135, narrowly restricts application of the Halper test
to the double jeopardy context, and because the proper test to
be applied in the ex post facto context focuses on the effect,
not the purpose, of a challenged provision in accordance with
well-settled precedents of this Court.
In Ursery, this Court held that in rem civil forfeitures do
not fall within the proscription of the Double Jeopardy Clause.
In doing so, this Court engaged in a detailed analysis and
cautioned that very different considerations, and presumably
“tests,” apply when considering whether “punishment” violates
the Excessive Fines as opposed to the Double Jeopardy Clause.
This Court further pointed out that even within the context of
the Double Jeopardy Clause, different considerations apply in
determining whether a particular sanction constitutes a pros-
cribed “punishment,” and drew distinctions between in rem
civil forfeiture, civil monetary penalties, and other forms of
civil sanctions, such as the marijuana tax in Kurth Ranch, 114
S.Ct. at 1937. The Ursery Court took pains to point out that
Halper involved the determination of “whether and under what
circumstances a civil penalty may constitute ‘punishment’ for
the purposes of double jeopardy analysis.” | 16 S.Ct. at 2143
(emphasis added). On more than one occasion in its decision,
the Ursery Court went out of its way to point out that Halper
was limited to the context of a fixed monetary penalty sought
in a subsequent civil proceeding, and that the Court did not
intend to make a “sweeping change in the law.” 116 S.Ct. at
2142-47 and n.2. The Court noted that it had emphasized
repeatedly in Halper the “narrow scope” of that decision. /d. at
2146 n.2. The Ursery Court specifically noted that it had never
22
understood the Excessive Fines Clause of the Eighth Amend-
ment to be “parallel to, or even related to the Double Jeopardy
Clause of the Fifth Amendment.” 116 S.Ct. at 2146.
Similarly, in the case at bar, to the Petitioners’ knowledge,
this Court has never held that the Ex Post Facto Clause was
parallel to or related to the Double Jeopardy Clause. This is
so because the lack of notice and legislative restraint, which
form the underpinnings of the ex post facto prohibition, are
fundamentally different than the protection afforded by the
Double Jeopardy Clause, which is designed to avoid multiple
punishments. See, e.g., Artway v. Attorney General of New
Jersey, 81 F.3d 1235, 1253 n.15 (3rd Cir. 1996). Ursery
clearly and narrowly restricts application of the Halper test to
the double jeopardy context, and even then only to situations
involving imposition of a fixed monetary penalty. Accordingly,
as urged by the Petitioners before the court of appeals and
now confirmed by this Court in Ursery, the Halper test does
not apply to the offender supervision fees retroactively imposed
on Petitioners in the case at bar, and therefor the court of
appeals’ reliance thereon is clearly erroneous.''
The court of appeals’ reliance on the “subjective” test em-
ployed in DeVeau v. Braisted, 363 U.S. 144 (1960), is also
misplaced. While DeVeau, unlike Halper, involved an ex post
facto challenge, the plaintiff in that case was challenging the
retroactive application of a non-monetary sanction, specifically
a law which barred convicted felons from working on the New
York and New Jersey waterfront. Since such a civil disability
is not proscribed by the Ex Post Facto Clause absent “unmistak-
'‘The precise argument urged by the Respondents and accepted by the court of
appeals below that imposition of the fees constituted a “civil charge” and therefore
is not subject to the ex post facto proscription, wes rejected by the court in Petition
of State, 603 A.2d at 814. In that case, the court noted that Halper is inapplicable
to a situation, where, as here, the additional penalty is imposed solely as a conse-
quence of a criminal conviction. /d. at 817-18. The court further noted that in all
cases where the penalties imposed are “annexed to a criminal conviction and cannot
be the subject of a separate civil proceeding . . . they are subject to an ex post
facto restriction.” /d. at 817. Accordingly, the Halper analysis as to whether a
nominally civil penalty imposed in a separate civil proceeding constitutes “punish-
ment,” is inapplicable where, as here, the offender fees “are connected to, and
activated only by, a criminal conviction.” /d. at 817-818. This is so because such
penalties “are part of the ‘law annexed to the crime’, and limited by the law in
effect when the offenses were committed.” /d. at 818 (citation omitted).
23
able evidence of punitive intent,” Flemming v. Nestor, 363
U.S. 603, 619 (1960), the test employed by the DeVeau court
was “whether the legislative aim was to punish the individual
for past activity, or whether the restriction of the individual
{came] about as a relevant incident to a regulation of a present
situation, such as qualifications of a profession.” 363 U.S. at
160 (emphasis added). DeVeau merely supports the well-set-
tled proposition that where a civil disability is imposed as a
result of legitimate regulatory action by the state, it does not
constitute an ex post facto violation, absent a showing of puni-
tive intent. See Harisiades v. Shaughnessy, 342 U.S. 580,
595 (1952). Nowhere in DeVeau or subsequent decisions has
this Court even suggested that the retroactive application of a
monetary exaction as a direct and automatic consequence of
a criminal conviction would not constitute an ex post facto
violation merely because it was not the intent of the legislature
to punish. Just as this Court cautioned in Ursery that different
tests apply in the double jeopardy context dependipg on
whether a monetary or non-monetary sanction is involved, the
same rule applies in the ex post facto context, with the “sub-
jective purpose” test narrowly restricted to situations involving
the retroactive imposition of a civil disability as an incidental
result of governmental regulation in a non-penal context."
Where punitive sanctions are imposed — in particular monetary
exactions or incarceration — solely and automatically as a
consequence of a criminal conviction, the proper test to be
applied is whether the “effect” is such as to inflict a “greater
punishment” on the offender than the law in existence at the
time the subject crime was committed."”
‘Similarly, the court of appeals’ reliance on three recent court of appeals’
decisions, Bae v. Shalala, 44 F.3d 489 (7th Cir. 1995), DiCola v. Food and Drug
Administration, 77 F.3d 504 (D.C. Cir. 1996), and Artway, 81 F.3d at 1235, is
also misplaced. Like DeVeau, each of these cases involved the imposition of a
civil disability, debarment in Bae and DiCola and registration as a sex offender in
Artway, and are therefore inapposite to the case at bar. Moreover, contrary to the
teaching of Ursery, each of these cases erroneously applies the Halper test in
considering ex post facto challenges to the civil disabilities imposed in those cases.
'’ See Weaver, 450 U.S. at 31 (effect of law determines whether it is ex post
factoy, accord, Lynce, 117 §.Ct. at 896-97; see also cases cited supra notes 2-3
This is so for the obvious reason that, as noted by the district court below, “by
simply designating funds for a particular cost or by careful labeling,” a state could
impose almost any new fine by establishing a nonpunitive or remedial intent,
24
C. Lynce v. Mathis Compels Reversal
If there was any question previously as to whether the pos-
ition urged by the Petitioners is correct and the decision of the
court of appeals below erroneous, this Court’s recent decision
in Lynce v. Mathis, 117 S.Ct. at 891, removes any doubt. In
Lynce, this Court was called upon to decide whether the retroac-
tive cancellation of early release credits awarded to alleviate
prison overcrowding violated the Ex Post Facto Clause. The
respondents in that case argued that Weaver was not controlling
because it was the overcrowded condition of the prison system,
rather than the character of a prisoner’s conduct that triggered
the early release credits. /d. at 896. In applying the two-part
ex post facto test, the Lynce Court observed that the effect of
the challenged provision on the petitioner was clearly retrospec-
tive, and that therefore the narrow issue before it was whether
the law “disadvantaged the petitioner by increasing his punish-
ment.” /d. In analyzing whether revocation of the credits con-
stituted “punishment” prohibited by the Ex Post Facto Clause,
the Lynce Court revisited its decisions in Weaver and California
Dept. of Corrections v. Morales, 115 §.Ct. 1597 (1995), and
concluded that the subjective motivation of the state in enacting
the challenged provision was “not relevant to the essential
inquiry demanded by the Ex Post Facto Clause.” 117 S.Ct.
at 896. Instead, this Court held the focus must be on the
“effect” of the law on a convicted criminal’s sentence. /d. at
896-97. Lynce reaffirmed this Court’s previously announced
rule in Weaver that “retroactive alteration of parole or early
release provisions . . . implicates the Ex Post Facto Clause.”
Id. at 898 (quoting Weaver, 450 U.S. at 32). Accordingly,
where, as here, a monetary exaction is imposed solely and
automatically as a consequence of a criminal conviction and
the sentence imposed, which has the effect of imposing a
“greater punishment” on a criminal offender, retroactive appli-
cation of the exaction is proscribed by the Ex Post Facto
Clause. Thus, the court of appeals’ decision is clearly erroneous
and reversal is compelled by this Court’s decision in Lynce.
notwithstanding that the impact on a criminal offender is no different than if a
higher “punitive fine” had been retroactively imposed. 908 F. Supp. at 102, App.,
infra, 26a.
2 4
25
III. THis CASE INVOLVES THE SCOPE OF PROTECTION AFFORD-
ep By A FUNDAMENTAL CONSTITUTIONAL SAFEGUARD
AGAINST ARBITRARY LAWS AND ITs DISPOSITION By THIS
Court WILL HAVE A PROFOUND EFFECT NATIONALLY ON
CRIMINAL OFFENDERS RETROACTIVELY SUBJECTED TO
SIMILAR FEES.
In this Court’s recent decision in Lynce, the Court reiterated
that “t]he presumption against the retroactive anplication of
new laws is an essential thread in the mantle of protection that
the law affords the individual citizen.” 117 S.Ct. at 895. This
presumption is “deeply rooted in our jurisprudence, and em-
bodies a legal doctrine centuries older than our Republic.”
Landgraf v. USI Film Products, 114 S.Ct. 1483, 1497 (1994).
As noted by Justice Stevens in his dissent in Morales, 115 S.
Ct. at 1597, the Framers viewed the prohibition against ex
post facto laws as “one of the fundamental protections against
arbitrary and oppressive government.” '® /d. at 1606 (footnote
omitted) Moreover, the danger of legislative overreaching
against which the Ex Post Facto Clause was designed to protect
is particularly acute where, as here, the target of the legislation
is a narrow and unpopular group composed of criminal offen-
ders. Id. at 1609. Indeed, this Court has expressed concern
that “{t]he Legislature’s unmatched powers . . . [and ijts re-
sponsivity to political pressures pose[] a risk that . . . retroac-
tive legislation . . . [may be used] as a means of retribution
against unpopular groups or individuals.” Landgraf, 114 S.Ct.
at 1499. This is precisely what happened in the case at bar:
fueled by political expediency, the Rhode Island General As-
sembly has attempted to generate additional revenues to fund
the operations of the Department — without raising taxes on
the general public — by retroactively imposing a monetary
exaction on perhaps the most unpopular of groups — criminal
offenders. This is the very type of arbitrary and vindictive,
'* As noted by Madison, “ex post facto laws . . . are contrary to the first principles
of the social compact and to every principle of sound legislation.” The Federalist
No. 44, p. 282 (C. Rossiter ed. 1961). Similarly, Hamilton regarded the prohibition
as among the three protections which provide “greater security for liberty and
republicanism than any [the Constitution] contains.” The Federalist No. 84, p. 511
(C. Rossiter ed. 1961).
26
retrospective legislation against which the Ex Post Facto
Clause was designed to safeguard. In such cases, the “concerns
that animate the Ex Post Facto Clause demand enhanced. . .
judicial scrutiny.” Morales, 115 S.Ct. at 1609 (Stevens, J.,
dissenting).
Moreover, it is clear that however this Court disposes of
the Petitioners’ within entreaty, this case will have a profound
impact which transcends the lives of the five Petitioners or the
administration of the Rhode Island Department of Corrections.
At least 42 states, many of them recently, have enacted some
form of offender fee statute similar to the one at issue (App.,
infra, 65a-67a), which some states have attempted to imple-
ment and others may try to implement retroactively in reliance
on the court of appeals’ decision.'’ Indeed, the court of appeals’
decision is an invitation to states to raise revenues through the
retroact. imposition of monetary payments on criminal offen-
ders, which are carefully labeled as “fees for services” in order
to exploit the ex post facto loophole created by this case.
Accordingly, the court of appeals’ decision, if left undisturbed,
will inevitably precipitate a flood of litigation involving liter-
ally tens of thousands of criminal offenders nationally, wherein
courts will be forced to adjudicate under what circumstances
and in what amounts states may retroactively impose “fees for
services” on criminal offenders."
This Court should decline Respondents’ invitation to engage
in the unprecedented and the arbitrary for the politically expe-
dient purpose of enabling the Department to raise additional
revenues to support its operations by retroactively imposing a
"See, e.g., Matheson v. Gorczyvk, No. 2:97-CV-85 (D. Vt. filed March 9,
1997 ex post facto challenge to $30.00 per month probation and parole supervision
fees); Corcoran v. State, No. 96-CV-004360 (Wis. Cir. Ct. March 4, 1997) (sum-
mary judgment granted denying ex post facto challenge to probation and parole
supervision fees of not less than $1.00 per day in reliance on court of appeals’
decision below).
‘Moreover, there is far more at stake here than merely a $15.00 per month
supervision fee. The challenged statute also provides for reimbursement of the
costs of incarceration. R.1. Gen. Laws § 42-56-38, App., infra, 44a. If the arbit-
rariness and unfairness of the punishment imposed by the retroactive application
of the challenged statute is not readily apparent now, its impact will certainly be
driven home when the Department attempts to retroactively assess criminal offenders
in Rhode Island tens of thousands of dollars for reimbursement of the costs of
incarceration.
27
monetary penalty on perhaps the most unpopular and powerless
of groups. Instead, this Court should summarily reverse the
court of appeals and reinstate the district court’s grant of sum-
mary judgment in favor of Petitioners based on well-settled,
authoritative decisional law which supports the district court's
ruling that imposition of offender supervision fees on Petition-
ers as an additional condition of probation inflicts a greater
penalty than that which was legally provided for at the time
Petitioners’ crimes were committed, and therefore violates the
Ex Post Facto Clause.
CONCLUSION
For the foregoing reasons, the petition for writ of certiorari
should be granted. In the alternative, Petitioners pray that the
writ be granted and that the decision below be vacated and
the case remanded for reconsideration in light of this Court's
decision in Lynce v. Mathis.
Respectfully submitted,
RICHARD A. SINAPI
AMERICAN CIVIL LIBERTIES UNION
RHODE ISLAND AFFILIATE
Counsel of Record
V. EDWARD FORMISANO
SINAPI LAW ASSOCIATES, LTD.
100 Midway Place, Suite |
Cranston, Rhode Island 02920
(401) 944-9690
April 17, 1997
APPENDIX
APPENDIX A
United States Court of Appeals
For the First Circuit
No. 96-1002
WILLIAM L. TAYLOR, ET AL.,
Plaintiffs, Appellees,
V.
STATE OF RHODE ISLAND, ET AL.,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[HON. RAYMOND J. PETTINE, SENIOR U.S. District JUDGE]
Betore
Torruella, Chief Judge,
Cyr, Circuit Judge,
and Cummings,* Circuit Judge.
Thomas A. Palombo, Special Assistant Attorney General,
with whom Jeffrey B. Pine, Attorney General, Rebecca Ted-
ford Partington, Special Assistant Attorney General, and Ellen
Evans Alexander, Deputy Chief Legal Counsel, were on brief
for appellants.
Richard A. Sinapi, with whom Sinapi Law Associates, Ltd..
and American Civil Liberties Union, were on brief for appellees.
December 4, 1996
*Of the Seventh Circuit, sitting by designation
|
2A
Cyr, Circuit Judge. The Rhode Island Department of Cor-
rections (“Department”) appeals from a district court judgment
declaring u/tra vires and unconstitutional the Department's
application of a Rhode Island statute which would impose a
monthly offender fee upon the appellees, all of whom were
sentenced to probationary terms under Department supervision
for criminal offenses committed prior to the effective date of
the statute as implemented by regulations promulgated by the
Department. The district court held that the Department’s inter-
pretation of the statute exceeded its authority under the enabling
statute and that the statute, as applied to appellees, violated
the ex post facto clauses in the United States and Rhode Island
Constitutions. We vacate the district court judgment and re-
mand for the entry of summary judgment for appellants on the
ultra vires and ex post facto claims, and for further proceedings
on appellees’ procedural due process claims.
I
BACKGROUND
Rhode Island General Laws § 42-56-38, P.L. 1992, c. 133,
art. 97, § 2, directs that “[e]ach sentenced offender committed
to the care, custody, or control of the [Department] shall reim-
burse the state for the cost or the reasonable portion thereof
incurred by the state relating to such commitment.” (Emphasis
added.) The offender fee statute itself expressly delegates to
the Department the power to determine its effective date by
declaring that its provisions “shall not be effective until the
date rules and regulations implementing its provisions are filed
with the office of the Secretary of State.” /d.
The Department responded by promulgating, inter alia, Reg-
ulation 10.07.03, designating July /, 1994 as the effective
date of the “offender fee” program, foilowing its filing of the
implementing regulations with the Sec.etary of State on June
eee _reeee.. ee eee een
ee
3A
17, 1994. See also R.I. Gen. Laws § 42-56-10(v) (Powers of the
director); R.I. Gen. Laws § 42-56-38 (Assessment of costs). The
Regulation further provides for “offender fee” waivers based on
inability to pay, see Regulation § 10.07.03(II)(E), and, in cases
of nonpayment, authorizes notification of the appropriate crim-
inal court at any parole or probation revocation hearing, id.
§ 10.07.03(II)(D), as well as civil actions to collect unpaid
offender fees, id. Mere nonpayment does not constitute a parole
or probation violation, however. Id. § 10.07.03(11)(D)(3). Nor
are offenders in “banked” status (i.e., either residing outside
Rhode Island or not on supervised status) liable for the fee,
id. § 10.07.03(11I)(C)(3).
Appellees, all convicted offenders sentenced to probation
prior to July 1, 1994, each received advance written notice
that the $15.00 offender fee would become effective July |,
1994, and subsequently received monthly bills. Appellees
thereafter commenced suit in federal district court claiming
that the offender fee statute, as applied, violates the Ex Post
Facto and Due Process clauses of the United States and Rhode
Island Constitutions. In due course, the parties submitted cross-
motions for summary judgment on a stipulated record and the
district court ruled that (i) the Department had exceeded its
authority under the enabling statute by interpreting the statute
so as to render the offender fee retroactive as to appellees and
(ii) the statute violated the Ex Post Facto Clause since it retro-
actively increased the “punishment” for their preenactment
crimes. See Taylor v. State of Rhode Island Dept. of Correc-
tions, 908 F. Supp. 92 (D.R.I. 1995).
4A
il
DISCUSSION '
A. The Ultra Vires Claim
The district court concluded that the statutory interpretation
adopted by the Department exceeded the scope of its delegated
authority because it (1) results in an unauthorized “retroactive”
application and (ii) would not be accorded deference by the
Rhode Island Supreme Court. As the plain language of the
Statute demonstrates that the Department did not exceed its
mandate, we demur.
Under Rhode Island law, it “ts well established . . . that
statutes and their amendments are presumed to apply prospec-
tively.” Hydro-Manufacturing v. Kayser-Roth, 640 A.2d 950,
954 (R.I. 1994). See also VanMarter v. Royal Indem. Co.,
556 A.2d 41, 44 (R.1. 1989); Lawrence v. Anheuser-Busch,
Inc., 523 A.2d 864, 869 (R.I. 1987). It is only in the event
that “it appears by strong, clear language or necessary impli-
cation that the Legislature intended the statute or amendment
to have a retroactive effect,” id.; see also Pion v. Bess Eaton
Donuts Flour Co., Inc., 637 A.2d 367, 371 (R.1. 1994), that
the new enactment “will be interpreted to operate retrospec-
tively.” Avanzo v. Rhode Island Dept. of Human Servs., 625
A.2d 208, 211 (R.1. 1993).
The statute itself explicitly states that the offender fee “shall
not be effective until the date the rules and regulations are
filed.” R.I. Gen. Laws § 42-56-38. Thus, its plain language
requires no interpretation, see Whitehouse v. Rumford Liability
& Ins. Co., 658 A.2d 506, 508 (R.I. 1995), as it mandates
‘We review summary judgment rulings de nove, and must uphold them if the
record, “viewed in the light most favorable to the nonmoving party, reveals no trial-
worthy issue of material fact and the moving party is entitled to judgment as a
matter of law.” Velez-Gomez v. SMA Life Assur. Co., 8 F.3d 873, 874-75 (ist
Cir. 1993).
5A
prospective application. See, ¢.g.., Hydro-Manufacturing , 640
A_2d at 955 (statute which states that it “shall take effect upon
passage” evinces plain legislative intent that it be given only
prospective application), Avanzo, 625 A.2d at 211 (holding
that phrase “shall take effect” indicates legislative intent that
statute be given prospective effect). As the Rhode Island Legis-
lature explicitly delegated to the Department the responsibility
for promulgating and filing the required implementing rules
and regulations with the Secretary of State before the offender
fee program could take effect, R.I. Gen. Laws § 42-56-38,
and there is no claim that the Department failed to comply
with the legislative mandate, its designation of a later (July |,
1994) effective date could not render its interpretation either
ultra vires or retroactive.’
B. The Ex Post Facto Claim
The district court awarded appellees summary judgment on
their claims that the offender fee statute violates the Ex Post
Facto Clause under both the United States Constitution and the
It appears that the district court may have been misled by an ambiguity in the
statutory language, which states that the offender fee shall apply to “each sentenced
offender committed to the care, custody or control of the [Department]. R.1. Gen.
Laws § 42-56-38 (emphasis added). The court correctly noted that “[t}he word
‘committed’ could mean either “who has been committed,’ which would include
existing probationers, or ‘who ts committed,’ which would implicate only new
probationers.” Taylor, 908 F.Supp. at 104. However that may be, we suggest, the
Department's interpretation cannot be considered ultra vires. As the agency respon-
sible for implementing and enforcing the statute, it was entirely appropriate that
the Department disambiguate the statutory language. See Gallison v Bristol Sch
Comm., 493 A.2d 164, 166 (R.1. 1985).
We need not decide at this time , however, whether the Department's interpretation
of the term “committed” would be material under a due process analysis. See
Avanzo. 625 A.2d at 208 (retroactive application violates due process), Lawrence,
$23 A.2d at 864 (due process chalienge to explicitly-retroactive legislation); bus
see Rhode Island Depositors Economic Protection Corp. v. Brown, 659 A.2d 95,
103 (R.1.), cert. denied, 116 S.Ct. 476 (1995) (retrospectively alone does not
render statute violative of due process).
6A
Rhode Island Constitution.’ As the Rhode Island Supreme
Court has held that Federal Ex Post Facto Clause jurisprudence
likewise guides the required analysis under the Rhode Island
Constitution, Lerner v. Gill, 463 A.2d 1352, 1356(R.1. 1983),
cert. denied, 472 U.S. 1010 (1985), these claims merge.
The Ex Post Facto Clause effectively prohibits laws “ ‘retro-
actively alter[ing] the definition of crimes or increas[ing]} the
punishment for criminal acts.’ California Dept. of Correc-
tions Vv. Morales, 11S S.Ct. 1597, 1601 (1995) (quoting Collins
Vv. Youngblood, 497 U.S. 37, 43 (1990)). See also Hamm v.
Latessa, 72 F.3d 947, 956 (Ist Cir. 1995), cert. denied, 117
S.Ct. 154 (1996). Thus, ex post facto laws operate retroactively
either to redefine a crime or increase its “punishment.” Morales,
115 S.Ct. at 1602 n.3. See also Dominique v. Weld, 73 F.3d
1156, 1162 (Ist Cir. 1996),
It would appear that the parties failed to call the district
court's attention to significant precedents governing the pivotal
determination whether civil fees constitute “punishment.” See
Taylor, 908 F.Supp. at 98. Although it involved a “double
jeopardy” claim, United States v. Halper, 490 U.S. 435
(1989), applies as well in the ex post facto context. See Martel
v. Fridovich, 14 F.3d 1, 3 (ist Cir. 1993) (citing Halper for
the view that a civil sanction is “punishment” only when it
serves the aims of retribution or deterrence).* As we explained
recently, the Halper “punishment” test applies to “fines, for-
feitures, and other monetary penalties designed to make the
sovereign whole for harm or loss that is quantifiable in mone-
tary terms.” United States v. Stoller, 78 F.3d 710, 717 (Ist
‘Article 1, § 10, of the United States Constitution provides: “No State shall . . .
pass any . . . ex post facto Law.” Article 1, § 12, of the Constitution of the State
of Rhode Island reads: “No ex post facto law . . . shall be passed.”
* Subsequent to the district court decision in this case, the Rhode Island Supreme
Court adopted the Halper test for determining whether a civil fee constitutes “punish-
ment” under the Double Jeopardy Clause. See State vy. One Lot of $8,560, 670
A.2d 772 (R.1. 1996).
TA
Cir.), cert. dismissed, _— S.Ct. _— (1996). Since it is clear
that the challenged offender fee fits the Stoller mold, the Halper
“punishment” test applies. See also Artway v. Attorney General
of State of New Jersey, 81 F.3d 1235, 1256 0.18 (3d Cir.
1996) (noting that Halper test applies because Ex Post Facto
Clause serves aims similar to Double Jeopardy Clause), DiCola
v. Food & Drug. Admin., 77 F.3d 504, 506-07 (D.C. Cir.
1996) (applying Halper test to both ex post facto and double
jeopardy claims), Bae v. Shalala, 44 F.3d 489, 492-93 (7th
Cir. 1995) (employing Halper standard to determine whether
civil sanction implicates ex post facto concerns).
Halper adapted the Supreme Court's longstanding subjective
test for defining “punishment,” see DeVeau v. Braisted, 363
U.S. 144, 160 (1960) (“The question ts. . . whether the legis-
lative aim was to punish that individual for past activity.”’),
by coupling it with an objective standard. Accordingly, under
the current regime governing civil provisions, we inquire not
only whether the legislative intent was punitive in nature, but
whether the challenged civil provision is “so extreme . . . as
to constitute punishment.” Halper, 490 U.S. at 442.
For purposes of determining whether a law is penal in nature,
“the labels ‘criminal’ and ‘civil’ are not of paramount impor-
tance.” /d. at 447. Rather, the court must “assess[] . . . the
{sanction) imposed and the purposes [it] may fairly be said to
serve. Simply put, acivil . . . sanction constitutes punishment
when the sanction as applied in the individual case serves the
goals of punishment{,]” id. at 448; see Martel, 14 F.3d at 3;
that is to say, retribution and deterrence. Halper, 490 U.S. at
448.
On its face, the offender fee statute, suitably located among
other Rhode Island civil statutes, imposes a civil charge.* The
modest fee authorized by the statute comprises no part of any
: ‘Our research discloses no relevant legislative history.
8A
sentence imposed for the crimes committed by offenders.
Rather, it is expressly designed to “reimburse” the Department
for costs directly associated with providing goods and services
required to supervise probationers and parolees living in the
community. R.I. Gen. Laws § 42-56-38. Moreover, all offen-
der fee revenues are dedicated to such use, Regulation |.12.01
(IV)(K), and waivers are available to offenders unable to pay,
Regulation 10.07.03(11)(E). Finally, the same monthly fee is
assessed against all offenders released into the community who
are currently under Department supervision, without regard to
the nature or severity of their respective offenses.* In our judg-
ment, so modest a cost-based supervisory fee reasonably cannot
be deemed punitive in purpose, especially since any conceiv-
able retributive or deterrent effect could only be inconsequen-
tial. See Martel, 14 F.3d at 3.
“In determining that the offender fee constituted “punishment,” the district court
ruled that it was part of “the law annexed to the crime,” Calder v. Bull, 3 US
386, 390 (1798), since probation ts punishment and the offender fee ts linked to
appellees’ probationary sentences. In our view, this analysis overlooks several
determinative distinctions
First, though a probationary sentence ts “punishment,” the supervisory services
for probationers released into the community are largely rehabilitative, both in
nature and purpose. See R.1. Gen. Laws § 42-56-4(c) (Organization of department)
(“Rehabilitative services shall include imermediary sanctions (including but
not limited to . probation, parole, restitution, and community service)... .”).
See also United States v. Cardona, 903 F.2d 60, 62 (ist Cir, 1990) (noting that
probation serves goals of rehabilitation and public safety), cert, denied, 498 U.S
1049 (1991): Tillinghast v. Howard, 287 A.2d 749, 752 (RA. 1972) ("Nt ts for
the purpose of giving a convicted accused the opportunity for rehabilitation that
he retains his liberty and 1s placed on p obation.”). Second, the monthly fee is not
imposed on all offenders sentenced to probation, but only those actually receiving
the supervisory services whose costs are defrayed by the fee. Regulation
10.07 O33 CK).
Thus, the offender fee differs materially from the fees at issue in a case relied
upon by appellees and cited by the district court, see In re Petition of Delaware
for a Writ of Mandamus, 603 A.2d 814 (Del. 1992), in which monetary sanctions
were imposed on the offenders at sentencing. The fees involved in that case were
blanket surcharges, calculated as percentages of the criminal penalty, fine, or
forfeiture imposed at sentencing, rather than reimbursements for the costs of pro-
viding services to the offenders. As the Halper Court explained, “it is the purposes
actually served by the sanction in question, not the underlying nature of the proceed-
ing giving rise to the sanction, that must be evaluated.” Halper, 490 U_S. at 447.7.
9A
Finally, we inquire whether the fee nonetheless runs afoul
of the objective test announced in Halper: a monetary assess-
ment “that cannot be said solely to serve a remedial purpose,
but rather can only be explained as also serving either retribu-
tive or deterrent purposes, is punishment as we have come to
understand the term.” Halper, 490 U.S. at 448. Under this
standard, the offender fee must be deemed “punitive” if it
“bears no rational relation to the goal of compensating the
[State] for its loss.” Id. at 449.’ To state the question in this
case is to answer It.
The offender fee statute mandates that “{mJonies received
under this section will accrue first to the department of correc-
tions for use to offset costs of the specific care or service.”
RI. Gen. Laws § 42-56-38. The implementing regulations in
turn make clear that the offender fee was rationally designed
to promote its legislative objective; viz., reimbursement of the
Department for its costs in providing the required supervisory
services to its probationers and parolees. Regulation
| 12.010.V)(K). Furthermore, the implementing regulations
explicitly state that the offender fees collected from probation-
ers and parolees must be deposited in a restricted account,
exclusively available for defraying Department costs in afford-
ing offenders the required community supervision." Thus, the
legislative intent actuating the offender fee program is entirely
We note no contention, and no evidence, that the $15.00 monthly fee exceeds
the costs associated with providing Department supervision of offenders released
into the community. See Halper, 490 U.S. at 4582.
"Moreover, as already noted, see supra p. 3, the offender fee is imposed only
on probationers and parolees currently under Department supervision in the com-
munity, not upon probationers in “banked” status. Regulation 10.07.03(1(C)(3).
Thus, rather than a blanket fee assessed at sentencing without regard to the com-
mencement or duration of any term of community supervision, the Rhode Island
offender fee is directly and rationally related to recouping the State's costs in
providing supervision to the individual offenders for whose benefit the services
are rendered. Cf. In re Petition of Delaware for a Writ of Mandamus, 603 A.2d
$14 (Del. 1992); note 4 supra.
10OA
remedial and its practical effect is neither retributive nor deter-
rent in nature. Under the Ha/per test, therefore, the offender
fee is not punitive.”
iT
CONCLUSION
For the foregoing reasons, the district court judgment is
reversed and the case is remanded for further proceedings on
appellees’ procedural due process claims under state and fed-
eral law. The parties shall bear their own costs.
SO ORDERED.
*The fact that nonpayment of the fee can be brought to the attention of the court
at a parole/probation revocation hearing, see supra p. 3, does not transform the
fee into punishment. While revocation of parole/probation might constitute punish-
ment, the Supreme Court explained in Morales that courts must determine whether
a legislative change “produces a sufficient risk of increasing the measure of punish-
ment.” Morales, 115 S.Ct. at 1603. A legislative change which creates only a
“speculative and attenuated possibility of producing the prohibited effect of increas-
ing the measure of punishment” is insufficient to raise the ex post facto specter.
Id. As the district court recognized, any possible link between nonpayment of the
offender fee and the revocation of parole/probation is too attenuated to render the
offender fee violative of the Ex Post Facto Clause, Taylor, 908 F.Supp. at 101,
especially since inability to pay constitutes grounds for waiver.
Sn tee eee a ee Lem Tee eae Pe ae, ee
1A
APPENDIX B
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
WILLIAM L. TAYLOR, MARY-
ANNE SILVA, RAYMOND W.
CHRISTIANSEN, LIONEL L.
BOURGET, and DAVID A. WEBB
v. C.A. No. 94-0596-P
STATE OF RHODE ISLAND
DEPARTMENT OF CORREC-
TIONS, and GEORGE A. VOSE,
JR., Individually and in his official
capacity as Director of the Rhode
Island Department of Corrections
MEMORANDUM AND ORDER
PETTINE, Senior Judge. Now before this Court are the
plaintiffs’ and defendants’ cross Motions for Summary Judg-
ment. This case concerns Rhode Island Department of Correc-
tions Regulation 10.07.03 (“the Regulation”), which imposes
a monthly supervision fee on criminal offenders sentenced to
probation or parole. The plaintiffs challenge the constitution-
ality and statutory authority for the application of the Regula-
tion to offenders who were sentenced to probation prior to the
Regulation’s effective date. All of the plaintiffs in this case
are probationers who were so sentenced. They contend that
this imposition of supervision fees violates the prohibition
against ex post facto laws under Article I § 10 of the United
States Constitution and Article I § 12 of the Rhode Island Con-
icant a i
12A
stitution, as well as the plaintiffs’ substantive and procedural
due process rights under the Fourteenth Amendment to the
United States Constitution and Article | § 2 of the Rhode
Island Constitution. The plaintiffs bring their federal constitu-
tional claims pursuant to 42° U.S.C. § 1983 and their state
constitutional claims directly under the Rhode Island Constitu-
tion. The plaintiffs also allege that Regulation 10.07.03, as
applied retrospectively to previously sentenced probationers,
exceeds the authority granted to the Department of Corrections
by R.I. Gen. Laws § 42-56-38. The plaintiffs move for declara-
tory judgment, injunctive relief, and compensatory damages.
The defendants object and further argue that the defendant
George Vose, Jr. is entitled to immunity from suit in his indi
vidual capacity.
For the reasons which follow, this Court grants the plaintiffs’
Motion for Summary Judgment on the ex post facto and statu-
tory authority issues, grants the defendants’ Motion for Sum-
mary Judgment on the substantive due process claim, denies
both the plaintiffs’ and the defendants’ Motions for Summary
Judgment on the procedural due process claim, and grants the
defendant George Vose, Jr.’s Motion for Summary Judgment
as to his qualified immunity. Because the Regulation’s appli-
cation to the plaintiffs is held invalid on ex post facto and
statutory authority grounds, the merits of the plaintiffs’ pro-
cedural due process claim need not be resolved.
I.
STATEMENT OF FACTS
Rhode Island General Laws § 42-56-38, as enacted by P.L.
1992, c. 133, art. 97, § 2, provides that each sentenced criminal
offender committed to the care, custody, or control of the
Department of Corrections, including but not limited to those
on probation or parole, is required to reimburse the State for the
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costs of services provided, or a reasonable portion thereof.
This statute specifically provides that its provisions shall not
be effective until the date that rules and regulations implement-
ing its provisions are filed with the Secretary of State. On June
17, 1994, subsequent to a public hearing, the Department of
Corrections filed Regulation No. 10.07.03, entitled “Adult
Probation and Parole Offender Supervision Fees,” with the
Secretary of State. The Regulation states that a monthly fifteen
dollar supervision fee will be assessed on probationer and
parolees, effective July 1, 1994. The Regulation also provides
for a waiver of the supervision fee if the offender demonstrates
financial hardship to probation or parole staff.
The plaintiffs, William L. Taylor, Maryanne Silva, Ray-
mond W. Christiansen, Lionel Bourget, and David A. Webb,
were all convicted and sentenced to probation with the Depart-
ment of Corrections before July 1, 1994. On June 19, 1994,
George Vose, Jr., Director of the Department of Corrections,
sent a letter to all probationers and parolees notifying them
that the fifteen dollar fee would be imposed beginning July |,
1994. The letter made no mention of available waivers for
financial hardship. Each plaintiff was assessed offender super-
vision fees after July 1, 1994. All the plaintiffs have alleged
that they contacted their probation offices inquiring about the
obligations to pay the fee and that they were not informed
about the available waiver procedure. The defendants assert
that the plaintiffs never requested waivers.
Those plaintiffs who have been delinquent in paying their
supervision fees have received monthly notices containing the
words “FINAL NOTICE” and advising that a civil action would
follow if the fees were not paid in full. The agency collecting
the supervision fees may sue for any delinquent payments,
even after the term of probation has ended. The regulations
provide that probation shall not be violated solely for nonpay-
ment of fees, but that if other violations occur, the court, in
1l4A
deciding to revoke probation, may consider nonpayment as
indicating a pattern of non-compliance.
The plaintiffs claim that the imposition of supervision fees
on those who were sentenced to probation prior to the effective
date of the Regulation violates the Ex Post Facto Clause and
the Due Process Clause, as well as exceeding the statutory
authority of R.I. Gen. Laws § 42-56-38. The plaintiffs seek
a declaratory judgment that the regulation as imposed is invalid,
an injunction prohibiting the defendants from collecting super-
vision fees from the plaintiffs, and an order requiring reim-
bursement of fees previously collected from the plaintiffs.
Based on the Agreed Statement of Facts, the plaintiffs and the
defendants have filed cross Motions for Summary Judgment,
which are now before this Court.
II.
SUMMARY JUDGMENT
A federal court may grant summary judgment in a civil
action “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c). A fact is “material” if it could
be legally relevant to the outcome of the case. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). To prevent
summary judgment, the evidence, viewed in the light most
favorable to the non-moving party, must be sufficient to permit
a rational factfinder to resolve the issue in favor of either side.
Id.; Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181
(Ist Cir. 1989). In this case, the parties have stipulated to an
Agreed Statement of Facts for the purposes of summary judg-
ment. Given this stipulation, no genuine issue of material fact
exists relating to the dispositive ex post facto and statutory
ISA
authority claims. As discussed below, several material facts
relating to the procedural due process claim are disputed or
absent. However, since the regulation as applied to the plain-
tiffs is now held invalid on other grounds, the merits of the
plaintiffs’ procedural due process claim need not be resolved.
I.
QUALIFIED IMMUNITY
Qualified immunity shields government officials who are
exercising discretionary powers “from [personal] liability for
civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reason-
able person should have known.” Harlow v. Fitzgerald, 475
U.S. 800, 818 (1982); Hegarty v. Somerset County, 53 F.3d
1367 (Ist Cir. 1995). The focus of this standard is the “objective
reasonableness of an official’s conduct as measured by refer-
ence to clearly established law.” Harlow, 475 U.S. at 818. In
Anderson v. Creighton, 483 U.S. 635, 640 (1987), the Su-
preme Court explained that qualified immunity shields such
government officials from civil damages liability “as long as
their actions could reasonably have been thought consistent
with the rights they are alleged to have violated.” Anderson,
483 U.S. at 638 (citation omitted). The government official's
belief need not, however, be correct; qualified immunity doc-
trine “allows for the inevitable reality that ‘law enforcement
officials will in some cases reasonably but mistakenly conclude
that [their conduct] is [constitutional], and. . . that. . . those
officials — like other officials who act in ways they reasonably
believe to be lawful — should not be held personally liable.’ ”
Hegarty, 53 F.3d at 1373 (quoting Anderson, 483 U.S. at 641)
(emphasis omitted).
The plaintiffs contend that the defendant George Vose, Jr.,
Director of the Department of Corrections, deprived the plain-
16A
tiffs of their constitutional rights by implementing an ex post
facto \aw and by denying procedural and substantive due proc-
ess to the plaintiffs. These constitutional guarantees stand in-
violate, and I can safety conclude that Mr. Vose knew or
should have known of these protections.
I need not discuss here Mr. Vose’s immunity with regard
to the procedural and substantive due process claims, as I find,
infra, that the plaintiffs’ substantive due process rights were
not violated and that I cannot and need not resolve the merits
of the plaintiffs’ procedural due process claims. With regard
to the application of the Ex Post Facto Clause, however, |
find that Mr. Vose reasonably could have concluded, even if
mistakenly, that his conduct was lawful, and therefore he is
entitled to qualified immunity. Although the ex post facto
guarantee is certainly “clearly established,” the question of
whether an offender supervision fee such as the one imposed
upon the plaintiffs falls under the scope of the Ex Post Facto
Clause is not so clear cut. Even though I ultimately find that
the Regulation did violate the Ex Post Facto Clause, I note
that this is a difficult case to which no binding case law applies.
The question before this Court is a complex one, involving
close and careful consideration of constitutional issues in a
factual situation which has never been considered by the First
Circuit or the Supreme Court. This Court cannot, under the
generous qualified immunity standard discussed above, charge
Mr. Vose with the legal refinements involved in reaching such
a conclusion. Thus I find that he is entitled to qualified immun-
ity.
IV.
EX POST FACTO
A critical question in this case is whether the defendants’
imposition of the probation supervision fee upon the plaintiffs
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17A
was in violation of the Ex Post Facto Clause of the United States
Constitution and the Rhode Island Constitution.' Since the
Rhode Island Constitution’s Ex Post Facto Clause is essentially
identical and has been interpreted as requiring the same standard
as under the United States Constitution, Lerner v. Gill, 463 A.2d
1352, 1356 (R.I. 1983), I address these claims together.
In Collins v. Youngblood, 497 U.S. 37 (1990), the United
States Supreme Court discussed in some detail the current
scope of the Ex Post Facto Clause. The Collins Court further
reaffirmed the Court’s summary of the meaning of the Ex Post
Facto Clause in Beazell v. Ohio, 269 U.S. 167 (1925):
It is settled, by decisions of this Court so well known
that their citation may be dispensed with, that any
statute which punishes as a crime an act previously
committed, which was innocent when done; which
makes more burdensome the punishment for a crime,
after its commission, or which deprives one charged
with crime of any defense available according to law
at the time when the act was committed, is prohibited
ex post facto.
Collins, 497 U.S. at 42 (quoting Beazell, 269 U.S. at 169-70)
(emphasis added). Collins confirmed that these three Beazell
categories define the scope of the Ex Post Facto clause, stating
that “[t]he Beazell formulation is faithful to our best knowledge
of the original understanding of the Ex Post Facto Clause.”
Id. at 43.
‘Art. | § 10 of the Constitution provides in part: “No State shall . . . pass any
. ex post facto Law... .”
’The Collins Court also looked to Justice Chase's opinion in Calder v. Bull, 3
U.S. 386. 390 (1798) for an early explanation of the “core concern” of the Ex
Post Facto Clause:
ist. Every law that makes an action done before the passing of the
law. and which was innocent when done, criminal; and punishes such
I8A
In the present case, the plaintiffs do not attack the validity
of their convictions or punishments as originally imposed.
Therefore, the legal issue here is whether the challenged pro-
vision imposing the monthly offender supervision fee on the
plainfiffs “makes more burdensome the punishment for a
crime, after its commission.” /d. at 42 (quoting Beazell, 269
U.S. at 169-70). The plaintiffs argue that the supervision fee
flows from the commission of the underlying crime and that
the fee is punitive, as an additional requirement or condition
of probation. The defendants assert that the fee is not criminal
punishment but rather a civil surcharge.
I note, at first, that no binding case law comes to bear directly
upon this issue. Although the Supreme Court has recently
discussed the scope of the Ex Post Facto Clause in Collins
and the even more recent California Dep't of Corrections v.
Morales, __ U.S. —__, 115 S.Ct. 1597 (1995), neither of
these opinions sheds light on the question of when an additional
fee which is related to an already-imposed punishment makes
that punishment “more burdensome.” In Collins, a trial court
jury had imposed upon respondent Youngblood a punishment
of life imprisonment and a fine of $10,000. Collins, 497 U.S.
at 40. However, the fine was not authorized by law; thus, |
under Texas law at the time, the judgment and sentence were |
void and Youngblood was entitled to a new trial. Subsequent
to Youngblood’s conviction, however, a new state statute be-
came effective, allowing an appellate court to reform an im-
proper jury verdict rather than grant a new trial. The appellate
action. 2d. Every law that aggravates a crime, or makes it greater
than it was, when committed. 3d. Every law that changes the punish-
ment, and inflicts a greater punishment, than the law annexed to the
crime, when committed. 4th. Every law that alters the legal rules of
evidence, and receives less, or different, testimony, than the law
required at the time of the commission of the offence, in order to
convict the offender.”
Collins, 497 U.S. at 42 (quoting Calder, 3 U.S. at 390) (emphasis in original).
enihiiiee teams aia
19A
court to which Youngblood had applied for a new trial thus
reformed Youngblood’s conviction by deleting the $10,000
fine and, correspondingly, denied his request for anew trial. /d.
Youngblood challenged the new statute as a violation of the
Ex Post Facto Clause. The Supreme Court’s discussion focused
on whether a legislative change violates the Ex Post Facto
Clause even if it does not actually change the amount of the
punishment. For, the Court in Collins distinctly pointed out
that the challenged legislation was simply a “procedural
change” which did not “alter the definition of the crime of
aggravated sexual abuse, of which Youngblood was convicted,
nor [did] it increase the punishment for which he [was] eligible
as a result of that conviction.” Collins, 497 U.S. at 44. The
point of Collins was that a legislative change does not violate
the Ex Post Facto Clause unless it meets one of the three
categories outlined in Beazell. In C ollins, the appellate court's
decision of the fine and corresponding denial of a new trial
clearly did not fall within any of these three categories; it
simply changed the procedure for correcting an improper
punishment, which in no way increased (and, in fact, de-
creased) the burden of Youngblood’s punishment.
In coming to this conclusion, Collins rejected the notion
that a legislative change violates the Ex Post Facto Clause if
it merely “in relation to the offence [sic] or its consequences,
alters the situation of a party to his disadvantage.” Collins,
497 U.S. at 48-49 (quoting Kring v. Missouri, 107 U.S. 221,
228-29 (1883) (emphasis omitted)). Collins explicitly over-
ruled Kring, stating:
The holding in Kring can only be justified if the Ex
Post Facto Clause is thought to include not merely
the Calder categories, but any change which “alters
the situation of a party to his disadvantage.” We
think such a reading of the Clause departs from the
20A
meaning of the Clause as it was understood at the
time of the adoption of the Constitution, and is not
supported by later cases.
Id. at S50. The Collins Court also overruled Thompson v. Utah,
170 U.S. 343 (1898), which involved the Sixth Amendment
right to trial by jury and the question of whether the state of
Utah could retrospectively take away the Sixth Amendment
right to a 12-person jury when it became a State rather than
a Territory and was therefore “no longer bound by Sixth
Amendment as then interpreted.” Collins, 497 U.S. at 51. In
overruling Thompson, the Court stated that, to violate the Ex
Post Facto Clause, it was not enough that a “substantial right”
be taken away as a result of the legislative change. /d. The
Collins Court noted, “The right to a jury trial provided by the
Sixth Amendment is obviously a ‘substantial’ one, but it is
not a right that has anything to do with the definition of crimes, -
defenses, or punishments, which is the concern of the Ex Post
Facto Clause.” Jd. In the present case, the plaintiffs have not
merely been placed at a procedural disadvantage or been denied
a substantial right unrelated to their punishment. Instead, the
probation supervision fee at issue directly relates to and con-
cretely affects the plaintiffs’ punishment.
Collins, therefore, did not address the question presented
in the instant case, which is whether imposing supervision fees
on probationers already sentenced falls within the categories
laid out in Beazell. The holding of Collins is simply that, to
be a violation of the Ex Post Facto Clause, a statute must
come within “the finite Beazell categories.” 497 U.S. at 44.
The Texas statute at issue in Collins clearly did not; thus, the
Court did not address the nuances of the particular Beazell
categories, as is necessary in the instant case in order to deter-
mine whether the supervision fee “makes more burdensome
the punishment for [the plaintiffs’ crimes], after [their] com-
mission.”
|
21A
Morales also involved an Ex Post Facto Clause issue but
fails to shed light on the present case. The facts of Morales
involved a change in parole hearing procedure, a legislative
amendment had retrospectively changed the frequency of
parole suitably proceedings available to the respondent.
Morales, 115 §.Ct. at 1600. Unlike Collins, the Morales Court
did address the question of whether this change increased the
measure of the prisoner’s punishment. However, in holding
that the change did not violate the Ex Post Facto Clause, the
Court focused entirely on the fact that the change created only
a “speculative and attenuated possibility of producing the pro-
hibited effect of increasing the measure of punishment for
covered crimes.” Morales, 115 S.Ct. at 1603 (emphasis
added). This focus was based upon the Court’s holding in
Beazell that “the question of what legislative adjustments ‘will
be held to be of sufficient moment to transgress the constitu-
tional prohibition’ must be a matter of ‘degree.’ ... [I]n
evaluating the constitutionality [of the amendment at issue],
we must determine whether it produces a sufficient risk of
increasing the measure of punishment attached to the covered
crimes.” Morales, 115 S.Ct. at 1603 (quoting Beazell, 269
U.S. at 171) (emphasis added). The subsequent discussion
made clear that Morales’ holding that the change in parole
hearing procedure was not of “sufficient moment” was a result
of the uncertainty of its effect upon the prisoner’s punishment,
rather than the inadequacy of its burdens.
In the present case, the defendants argue that under Morales,
the fifteen dollar monthly fee, with its liberal waiver criteria
and provisions for retroactive waivers, does not transgress any
of the plaintiffs’ constitutional rights. However, this argument
mischaracterizes the nature of Morales‘ admonition regarding
the necessary “matter of ‘degree.’” It turns the issue into one
of the heaviness of the burden, rather than the certainty of the
burden, as discussed in Morales. Morales in no way indicates
22A
that the “matter of ‘degree’ is one of quantity rather than one
of certainty. It presents none of the discussion that one would
expect from the establishment of a new threshold standard. It
does not discuss how courts might decide when the burden is
sufficiently heavy to amount to a constitutional violation or
present any factors to consider in making such a determination.
Even if an ex post facto punishment must meet a minimum
threshold of onerousness in order to be constitutional, the
supervision fee at issue in this case would clearly meet any
such threshold. As the plaintiffs point out, they face total super-
vision fees ranging from $180.00 to $1,620.00, even without
any increases in the monthly fee amount. These are not insignif-
icant amounts of money. While these amounts may not be
onerous to all, they are certainly not insignificant. Furthermore,
the fact that the fee can be waived for those who cannot afford
it does not lessen the certainty of the fee’s burden on those
who do not meet the waiver criteria. Even those who can
afford to have their rights violated are entitled to constitutional
protections.
Thus, I return to the critical question in this case: does the
fee “make more burdensome the punishment for the crime?” A
logical analysis of the nature of the supervision fee leads inexor-
ably to the conclusion that it does actually increase the burdens
of the punishment. The plaintiffs in this case were placed on
probation as a result of convictions for either felonies or mis-
demeanors. Thus the probation was, for each plaintiff, part of
his or her punishment for the offense. Under both state and
federal law, probation is clearly considered to be punishment.
See, e.g., R.I. Gen. Laws § 12-19-23.2 (1994 Reenactment)
(listing various “intermediate punishments,” including proba-
tion); United States v. Bynoe, 562 F.2d 126 (ist Cir. 1977)
(“[P]robation is . . . a punishment imposed on the defendant,
albeit a mild one. . . .”) (citing Korematsu v: United States,
319 U.S. 432 (1943)). At the time the plaintiffs were convicted
|
23A
in all cases, before July 1, 1994, when the supervision fee
went into effect), they received sentences, including probation,
which did not include any imposition of a monetary payment.
Thus, each plaintiff's punishment was made significantly more
burdensome than it was at the time of sentencing as a result
of the imposition of the fee. That is, the punishment include
the probation, and the fee makes the probation more burden-
some. Logically, therefore, the retrospective fee “makes more
burdensome the punishment.”
Looking at this another way, probation inherently involves
the imposition of a series of conditions which impose con-
straints upon and restrict the behavior of probationers. The
expectation of such conditions accompanied the plaintiffs’ orig-
inal sentences. The supervision fee, however, is a condition
of probation different from ordinary probation conditions. It
is not merely a change in supervision policies or procedures
but is rather a direct imposition of a substantial monetary
obligation. This obligation is thus clearly an additional impos-
ition far beyond the scope of the already-existing supervisory
and conduct-oriented conditions of probation. Added after
plaintiffs were already convicted and sentenced, it increases
the burdens of the punishment in a very direct and concrete
way.
The defendants argue that the supervision fee is not actually
“punishment” but instead merely a civil fee which offsets the
costs of services. This argument is severely undermined by an
exclusion contained within the law itself. The law states, “Each
sentenced offender committed to the care, custody, or control
of the department of corrections shall reimburse the state for
the cost or the reasonable portion thereof incurred by the state
relating to such commitment.” R.I. Gen. Laws § 42-56-38.
However, the statute explicitly states, “provided however that
a person so committed, awaiting trial and not convicted, shall
not be liable for the reimbursement.” /d. This exclusion makes
24A
clear that the law is not intended solely to provide reimburse-
ment for costs expended by the state; if it were, then all persons
upon whom those costs were expended would be liable, regard-
less of whether they ultimately were convicted. Such a result
would, of course, be inappropriate. Instead, the law makes a
clear distinction, as it must, between those who have been
convicted and those who have not. This distinction makes the
fee, at least in part, punitive in its intent and purpose.
Furthermore, the law makes clear that nonpayment of the
supervision fee could be a factor taken into account in revoking
the plaintiffs’ probation, even though it could not be the sole
cause. The Regulation states:
The offender’s probation or parole shall not be vio-
lated solely for non-payment of offender fees. How-
ever, in the event of other violations of the conditions
of probation/parole, non-payment of the offender
fees may be brought to the attention of the court,
formally or informally, as indicative of a lack of
cooperation, failure to fulfill lawful obligation, or
other patterns of non-compliance.
Department of Corrections Regulation 10.07.03(I1)(D)(3).
Under the holding of Morales discussed, supra, this possible
link between non-payment of the fee and revocation of pro-
bation is too speculative and attenuated, in and of itself, to
make the fee a violation of the Ex Post Facto Clause. However,
the role of the fee in probationers’ on-going interactions with
the criminal justice system belies its alleged purely civil nature.
I note further that the probation supervision fee, even if it
does serve the non-punitive goal of offsetting financial costs
to the State, is inextricably linked to the plaintiffs’ criminal
convictions. The fact that these fees do not and could not be
applied independent of a criminal conviction points strongly to
25A
the conclusion that they cannot be viewed as civil fees. They
are part of the “law annexed to the crime,” Calder v. Bull, 3
U.S. 386, 390 (1798), and therefore are limited by law in
effect when the offenses were committed under the Ex Post
Facto Clause. See, e.g., In the Matter of the Petition of Dela-
ware for a Writ of Mandamus, 603 A.2d 814, 817-18 (Del.
1992) (holding that imposition of assessment to be paid to
Drug Rehabilitation Fund and increase in assessment to be
paid to Victim Compensation Fund were penal in nature and
violated Ex Post Facto Clause).
The defendants also present case law indicating that such
supervision fees are, in general, legal. For instance, the defend-
ants cite Turner v. Nevada Bd. of State Prison Comm'rs, 624
F.Supp. 318 (D. Nev. 1985), for the proposition that the costs
of supervision or imprisonment may be imposed on prisoners.
However, in the present case, the plaintiffs do not dispute the
constitutionality of these fees in general but only when applied
ex post facto. Thus the case law the defendants cite regarding
the propriety of the fees, independent of an ex post facto
analysis, is immaterial.
The defendants also rely heavily on the unappealed, unpub-
lished magistrate’s recommendation in Murray v. Phelps,C.A.
No. 88-0129-A (M.D. La. 1993), in which the plaintiffs were
represented pro se. Murray held that a statutory authorization
for the payment of parole supervision fees was not a violation
of the Ex Post Facto Clause. Id. | note, first, that this decision
is in no way binding precedent for the present case. Further-
more, the Murray court discussed extensively the significance
of the fact that the parole was not part of the plaintiffs’ original
sentences but was instead a reduction in the plaintiffs’ original
sentences. It pointed out that “[a] prisoner has no constitution-
ally protected liberty interest in diminution of or release prior
to the expiration of a valid sentence,” id. at 10 (citing Green-
hoitz v. Inmates of Nebraska Penal & Correctional Complex,
26A
442 U.S. | (1979)), and that “[s]ince a prisoner has no right
to diminution of sentence, the State is free to fashion the
manner under which it may be granted,” id. (quoting McGhee
v. Belisle, 501 F.Supp. 189 (E.D.La. 1980)). The present
case, on the other hand, involvers probation, which was part
of the plaintiffs’ original sentences. Thus, the probation super-
vision fee is an increase in the burdens of the original punish-
ment, rather than a condition upon the plaintiffs’ receipt of a
decrease in punishment, as in Murray.
The Murray court states in a conclusory manner that the fee
is not punitive because it is “imposed for the purpose of defray-
ing the expense of supervising the parolee.” /d. at 10. The
court presents no substantiation for this assertion, and I there-
fore fail to find it persuasive. This type of conclusory analysis
lead to a “slippery slope,” where a state could, by simply
designating funds for a particular cost or by careful labeling,
impose almost any new fine without being subject to the con-
straints of the Ex Post Facto Clause.
The defendants also argue that the offender supervision fees
are not retrospective and that they “are applied prospectively
to persons receiving probation and parole services.” However,
this assertion obfuscates the true nature of the fees. All the
plaintiffs in this case indisputably committed their crimes be-
fore the law went into effect. The law thus imposes an addi-
tional burden upon the plaintiffs that did not exist at the time
of their actions which led to the convictions. In Weaver v.
Graham, 452 U.S. 24 (1981), the Supreme Court noted that
a statute may be considered retrospective “even if it alters
punitive conditions outside the sentence itself.” /d. at 32. It
is immaterial that the supervision fee is not a direct increase
in the term or burdens of the original sentence itself. Instead,
the fee is a collateral enhancement of the burdens of the sen-
tence, and it clearly “attaches legal consequences to a crime
committed before the law took effect,” Weaver, 450 U.S. at
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27A
31. Thus, it is retrospective for the purposes of the Ex Post
Facto Clause.
Finally, basic constitutional considerations dictate that I find
that the offender supervision fee violates the Ex Post Facto
Clause. Through the Ex Post Facto Clause, “the Framers
sought to assure that legislative Acts give fair warning of their
effect and permit individuals to rely on their meaning until
explicitly changed.” Weaver, 450 U.S. at 28-29 (citing Dob-
bert v. Florida, 432 U.S. 282, 298 (1977)). This fundamental
consideration bears heavily on the present case. When the
plaintiffs in this case committed their offenses and were sen-
tenced to punishment which included probation, they had
neither warning nor expectation that the probation would in-
volve paying out sums of money. Traditionally, probation
conditions are those of supervision, of being monitored for
good behavior and subjected to potentially greater penalties
for misconduct. In the present case, plaintiffs simply could
not have known that they would have monetary payments
imposed upon them as a direct legal consequence of their
probation. Thus they had neither fair warning of the monetary
imposition nor the ability to rely upon the expectation of tradi-
tional probation conditions. Instead, the plaintiffs were taken
by surprise when the supervision fee was imposed upon them,
after they already had been convicted and sentenced for their
offenses. This results undermines the fundamental tenets of
the Ex Post Facto Clause. | note again that I am not finding
the fee unconstitutional when applied prospectively but only
as applied to those offenders sentenced to probation before the
effective date of the Regulation.
For the foregoing reasons, the defendants’ Motion for Sum-
mary Judgment is denied and the plaintiffs’ Motion for Sum-
mary Judgment is granted on the ex post facto question.
28A
V.
STATUTORY AUTHORITY
The plaintiffs allege that the Department of Corrections’
imposition of probation supervision fees exceeds the statutory
authority of R.I Gen. Laws § 42-56-38. They argue that the
Statute does not provide any authority for levying supervision
fees on people sentenced to probation prior to its effective
date. The statute itself states only that its provisions “shall not
be effective until the date the rules and regulations are filed
with the office of the secretary of state.” R.I. Gen. Laws
§ 42-56-38. Yet, the Department of Corrections has applied
the supervision fee to all probationers, including those sen-
tenced to probation prior to the statute's effective date.
According to Rhode Island courts’ interpretation of their
own laws, “[a]s a general rule statutes operate prospectively
from and after the effective date of the statute. It is only in
the event that a statute contains clear and explicit language
requiring retroactive application that a statute wili be inter-
preted to operate retrospectively.” Avanzo v. Rhode Island
Dep't of Human Serv., 625 A.2d 208, 211 (R.1. 1993); see
Walsh v. Rhode Island Dep’t of Transp., 637 A.2d 774, 775
(R.I. 1994); Lawrence v. Anheuser-Busch, Inc., 523 A.2d
864, 869 (R.I. 1987). According to one court case, an excep-
tion to this presumption of prospective application exists for
Statutes deemed “procedural in nature.” Norton v. Paolino,
113 R.I. 728, 733, 327 A.2d 275, 278 (1974). In Norton, the
court found that a statute authorizing the substitution of a
deceased motorist’s insurer as defendant was substantive in
nature because it affected the insurer’s liability. /d. at 733-34.
In the present case, the imposition of probation supervision
fees is substantive in nature, since the law affects the plaintiffs’
property rights. As in Norton, the statute creates new suscep-
tibility to suit and potential liability by allowing a probationer to
29A
be sued civilly for nonpayment of the fee. Thus, under Rhode
Island statutory interpretation, the ambiguity of the statute
regarding retroactive application requires that the statute apply
only prospectively.
The defendants argue, however, that the statute's interpre-
tation by the Department of Corrections, as the governmental
agency charged with enforcing this statute, must be given
deference. Under Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., when the meaning of a statute is unclear,
a federal agency’s interpretation of the statute should be given
deference if its interpretation is reasonable. 467 U.S. 837,
843-45 (1984). The defendants argue, correctly, that the statute
in this case is ambiguous as to whether it applies to probationers
who were sentenced prior to its effective date. The Chevron
doctrine was discussed by the Rhode Island Supreme Court in
only one case, Pawtucket Power Assoc. Ltd. Part. v. City of
Pawtucket, 622 A.2d 452, 456 (R.I. 1993), in which the court
deferred to a declaratory judgment of the Public Utilities Com-
mission finding that the appellant was not a “public utility.”
The one Supreme Court case that has addressed agency
interpretation of retroactivity did not give that interpretation
deference. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204
(1988). Bowen involved the Department of Health and Human
Services’ retroactive application of a Medicare administrative
rule. The Court held that retroactive application was disfavored
and that statutes would be presumed to apply prospectively
unless expressly werded otherwise. /d. at 208. The Court also
stated,
a statutory grant of legislative rulemaking authority
will not, as a general matter, be understood to encom-
pass the power to promulgate retroactive rules unless
that power is conveyed by the Congress in express
terms. . . . Even where some substantial justification
for retroactive rulemaking is presented, court should
5
;
. 30A
be reluctant to find such authority absent an express
statutory grant.
Id. at 208-09.* The Court refused to grant the agency deference
because its interpretation was unsubstantiated and inconsistent.
Id. at 212-13. The Supreme Court’s disapproval of retroactive
statutory interpretation was made even more evident in Land-
graf v. U.S.1. Film Products, which held that the Civil Rights
Act of 1991 could not be applied retroactively. ___ U.S. —__.,
114 S.Ct. 1483 (1994). The Court held that a statute would
not be applied retroactively unless the legislation makes that
intent clear, stating: “the presumption against retroactive legis-
lation is deeply rooted in our jurisprudence, and embodies a
legal doctrine centuries older than our Republic. Elementary |
consideration of fairness dictate that individuals should have |
an Opportunity to know that what the law is and to conform |
their conduct accordingly; settled expectations should not be
lightly disrupted.” /d. at 1497. The Court expressed concern
with the result of retroactive legislation: “The Legislature’s
unmatched powers allow it to sweep away settled expectations
suddenly and without individualized consideration. Its respon-
Sivity to political pressures poses a risk that it may be tempted
to use retroactive legislation as a means of retribution against
unpopular groups or individuals.” /d. Because the Supreme
Court has expressed strong disapproval of retroactive laws
generally and has not deferred to agency interpretation of retro-
activity, no deference need be accorded the Department of
Corrections in its interpretation of R.1. Gen. Laws § 42-56-38.
‘The Bowen decision appears to be in tension with Bradley v. School Bd. of Rich-
mond, 416 U.S. 696 (1974), which held that changes in the law should be applied to
pending appellate cases. The Supreme Court has explained subsequently that Brad-
ley is limited to laws relating to prospective relief, jurisdiction, or procedure. Land-
graf v. U.S1. Film Products, __ U.S. —_, 114 S.Ct. 1483, 1501-04 (1994).
Since, as discussed earlier, R.1. Gen. Laws § 42-56-38 is not a procedural law,
the Bradley holding is inapplicable.
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31A
Moreover, the First Circuit has expressly recognized the
limitations of Chevron deference:
In this realm of judicial expertise, the courts, not
the agency, have the last word . . . At any rate, the
true measure of a court’s willingness to defer to an
agency’s interpretation of a statute “depends, in the
last analysis, on the persuasiveness of the interpreta-
tion, given all the attendant circumstances.” Massa-
chusetts Dep’t of Educ. v. United States Dep’t of
Educ., 837 F.2d 536, 541 (Ist Cir. 1988). “The
simple fact that the agency has a position, in and of
itself, is of only marginal significance.” Mayburg
v. Secretary of HHS, 740 F.2d 100, 106 (Ist Cir.
1984).
United States v. 29 Cartons of an Article of Food, 987 F.2d
33, 38 (ist Cir. 1993). Because the Rhode Island Supreme
Court has mentioned Chevron in only one case, Pawtucket
Power, 622 A.2d at 456, it is unclear that Rhode Island law
requires such deference. In Avanzo, the case involving the
Rhode Island Department of Human Services’ implementation
of a retroactive welfare regulation, the court never discussed
or granted Chevron deference to the agency’s statutory interpre-
tation. Therefore, I believe that if this issue were before the
Rhode Island Supreme Court, it would evaluate the reasonable-
ness of the Department of Corrections’ interpretation of R.I.
Gen. Laws § 42-56-38 without granting the Department defer-
ence.
The statute in question applies to “each sentenced offender
committed to the care, custody of control of the department of
corrections.” The word “committed” could mean either “who
has been committed,” which would include existing probation-
ers, or “who is committed,” which would implicate only new
32A
probationers. No legislative history has been submitted to this
Court regarding the legislators’ intent. Because both Rhode
Island law and federal law clearly require that statutes not be
applied retroactively unless so stated expressly, this Court
finds that interpreting the statute retroactively would be unrea-
sonable. Interestingly, the Department of Corrections’ own
regulations appear to indicate that the fees are to be collected
from new probationers. The regulations provide that the first
step of fee assessment is completion of the Supervision Fee
form and a review of assessment with the offender. This takes
place “[uJpon intake of an adjudicated offender placed under
probation/parole supervision.” Department of Corrections Reg-
ulation 10.07.03(I1I)(A)(1) (emphasis added).
The defendants argue that charging probation supervision
fees to people who were sentenced to probation prior to July
1, 1994 is not retroactive application of the statute. They argue
that retroactivity would be implicated only of probationers
were charged fees for months on probation prior to that date.
However, the Supreme Court has stated that “every statute,
which takes away or impairs vested rights acquired under exist-
ing laws, or creates a new obligation, imposes a new duty, or
attaches a new disability, in respect to transactions or consid-
erations already past, must be deemed retrospective. .. .
Landgraf, 114 S.Ct. at 1499 (quoting with approval Society
for Propagation of the Gospel v. Wheeler, 22 F. Cas. 756
(C.C.D.N.H. 1814) (No. 13,156)); see also Sturges v. Carter,
114 U.S. 511, 519 (1885). In the present case, the plaintiffs’
sentence to probation was the past transaction, on which R.I.
Gen. Laws § 42-56-38 imposes a new obligation to pay super-
vision fees.
Case law indicates that retroactivity occurs when new laws
are applied to processes that began before the law was enacted.
For example, the Supreme Court held that a new law establish-
ing the interest rate for judgments while appeals are pending
33A
was improperly retroactive when applied to judgments that
had been awarded prior to the new law. Kaiser Aluminum &
Chem., Corp. v. Bonjorno, 494 U.S. 827, 838-39 (1990).
Thus, even when the interest on the judgments was still accum-
ulating at the time of the law’s passage, the key factor was
when the interest accumulation began. This is parallel to the
instant case, where the plaintiffs’ probation period began before
the law was effective but continued after its implementation.
Likewise, the Rhode Island Supreme Court found that a new
law establishing a different court for motor vehicle violation
appeals was improperly retroactive when applied to cases
where the initial violation determination was prior to the law’s
enactment, even though the appeals at issue were initiated after
the enactment. Walsh, 637 A.2d at 775. In Avanzo, a law was
passed which made general assistance recipients ineligible for
benefits once they received six months of benefits within a
year period. 625 A.2¢ at 209. The Rhode Island Supreme
Court found that the law was retroactively applied because the
| agency counted months of benefits received prior to the law's
enactment in determining recipients’ ineligibility after the law’s
| enactment. /d. at 211. These cases demonstrate that retroactiv-
; ity includes changing the legal consequences of processes that
| began prior to the laws enactment. See also Landgraf, \14
| S.Ct. at 1499. In the present case, charging supervision fees
to people who were sentenced to probation prior to the statute's
effective date is thus a retroactive application of the law.
Because both Rhode Island and federal courts have repeated-
ly disfavored retroactive application of statutes without clear
evidence of the legislators’ intent, this Court finds that the
defendants have exceeded the statutory authority of R.I. Gen.
Laws § 42-56-38 in assessing supervision fees to probationers
sentenced prior to the date went into effect. For the foregoing
reasons, the plaintiffs’ Motion for Summary Judgment on the
j issue of statutory authority is granted and the defendants’ Mo-
| tion for Summary Judgment on this issue is denied.
MES CAVALIER EO me a Ow oe a eS
34A
VI.
PROCEDURAL DUE PROCESS
The plaintiffs also claim that the defendants, acting under
R.I. Gen. Laws § 42-56-38, have violated their rights to proce-
dural due process under the Fourteenth Amendment of the
United States Constitution and under Art. 1 § 2 of the Rhode
Island Constitution.* A governmental action which deprives
an individual of a liberty or property interest requires the proc-
ess of law. In this case, the Department of Corrections, a
governmental body, has charged the plaintiffs a fifteen dollar
offender supervision fee for each month they are on probation.
The plaintiffs have a property interest in this supervision fee
because they must turn over part of their monetary property
to the state or else face civil suit. See, e.g., In re Nineteen
Appeals Arising out of the San Juan Dupont Plaza Hotel Fire
Litigation, 982 F.2d 603 (ist Cir. 1992) (property interest in
distribution of attorneys’ fees from fund); Eash v. Riggins
Trucking Inc., 757 F.2d 557, 570 (3d Cir. 1985) (en banc)
(property interest in monetary court sanction); Walter v. City
of Chicago, 1992 WL 88457, *3 (N.E. Ill.) (property interest
in $50 traffic ticket); Hann v. Carson, 462 F.Supp. 854, 861
(M.D. Fla. 1978) (property interest in being free from unjus-
tified payments of charges and fees).°
In Mathews v. Eldridge, 424 U.S. 319 (1976), the Supreme
Court set out a balancing test for determining when procedural
“As the drafters of the Rhode Island Constitution intended the Due Process
Clause of the Rhode Island Constitution to parallel the Due Process Clause of the
Fourteenth Amendment of the United States Constitution, Jones v. Rhode Island,
724 F.Supp. 25, 34-35 (D.R.I. 1989), I will address these claims together.
*This case is clearly distinguishable from Lee v. Life Insur. Co. of No. Amer.,
where imposition of a university health insurance fee was found to be a voluntary
purchase of services, not a state deprivation of a property or liberty interest. 23
F.3d 14, 20-21 (1st Cir. 1994). In this case, probation is a mandatory punishment
and the supervision fees are involuntary.
35A
due process has been violated. The court must weigh “[flirst,
the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any,
of additional or substitute procedural safeguards; and finally,
the Government’s interest, including the function involved and
the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.” /d. at 335.
The question in the instant case is whether the procedures
involved in imposing probation supervision fees and granting
waivers for financial hardship constituted due process of law
for the plaintiffs. Unfortunately, the parties’ Agreed Statement
of Facts does not include any details of the waiver procedure,
either as designed or as implemented. In order to weigh accu-
rately the Mathews factors, this Court needs additional informa-
tion, such as if and how probationers may submit evidence of
their financial hardship, who evaluates this evidence and by
what criteria, and whether probationers can request a second
review if denied waives. Goldberg v. Kelly, 397 U.S. 254,-
268-71 (1970); see also Amsden v. Moran, 904 F.2d 748, 753
(Ist Cir. 1990), cert. denied, 498 U.S. 1041 (1991) (“[T]he
proper focus must be on the manner in which the state has
acted: ‘how and when’ the alleged deprivation was effected.”’).
The plaintiffs here claim that the Due Process Clause requires
that the Department of Corrections provide individualized pre-
assessment waiver determinations. In order to evaluate the
necessity of additional procedures, the Court must weigh the
reduction of error which these procedures would effect against
the cost to the state of establishing them. Mathews, 424 U.S.
at 346-48. However, neither party has alleged the error rate
or cost associated with current or proposed procedures.
The plaintiffs also allege that due process was violated because
they were never notified of the availability of waivers. See
Goldberg, 397 U.S. at 267-68 (“[T]hese [due process] princi-
36A
ples require that a recipient have timely and adequate notice
detailing the reasons for a proposed termination. . . .”). De-
pending on the circumstances, due process may require notice
of the right to appeal or, in this case, of the right to a waiver.
Raper v. Lucey, 488 F.2d 748 (ist Cir. 1973). According to
the Agreed Statement of Facts, the parties disagree as to
whether the plaintiffs inquired about their obligation to pay
the fee and as to what information the probation offices gave
them. Clearly, the availability of information about waiver
procedures is highly relevant in determining whether the Due
Process Clause was satisfied in this case.
Because material issues of fact remain unclear and disputed,
the plaintiff's procedural due process claim cannot be decided
on summary judgment. Given the facts before the Court, both
the plaintiffs’ and the defendants’ Motions for Summary Judg-
ment are denied. However, since the regulation as applied to
the plaintiffs is now found invalid on ex post facto and statutory
authority grounds, the merits of the plaintiffs” procedural due
process claim need not be resolved.
Vil.
SUBSTANTIVE DUE PROCESS
Substantive due process focuses on the result of the gov-
ernmental action, not its procedures. Amsden, 904 F.2d at
754. The First Circuit has stated that a violation of substantive
due process occurs when state action is “egregiously unaccept-
able, outrageous, or conscience-shocking.” /d. In this case,
the Department of Corrections has imposed a fifteen dollar
monthly supervision fee on probationers retrospectively. Re-
gardless of the waiver procedures used, this monetary policy
cannot be considered egregious or conscience-shocking. Cf.
Anyon v. Mach., 14 F.3d 44 (ist Cir. 1993) (withdrawing
inmate from short-term release program did not violate substan-
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tive due process violations are unsupported, and the defend-
ants’ motion for summary judgment on this claim is granted.
VIL.
CONCLUSION.
For the reasons discussed above, the plaintiffs’ Motion for
Summary Judgment is granted as to their ex post facto claim
and as to their statutory authority claim. The defendants’ Mo-
tion for Summary Judgment is granted as to the substantive
due process claim. Both the plaintiffs’ and the defendants’
Motions for Summary Judgment on the procedural due process
claim are denied. The defendant George Vose, Jr., is granted
qualified immunity and is therefore liable only in his official
capacity. Again, I clarify that the Regulation is not held uncon-
stitutional as applied to offenders sentenced to probation after
July 1, 1994.
WHEREFORE this Court declares that the implementation
of Regulation 10.07.03 with regard to offenders sentenced to
probation prior to the Regulation’s effective date is unconstitu-
tional as violating the Ex Post Facto clause and exceeds the
statutory authority granted by R.I. Gen. Laws § 42-56-38.
FURTHER this Court awards reasonable attorney's fees and
costs of litigation to the plaintiffs, pursuant to 42 U.S.C.
§ 1988(b).
/s/
Raymond J. Pettine
Senior U.S. District Judge
November 21, 1995
Entered as an Order of this Court November 22, 1995.
/s/
Deputy Clerk
38A
APPENDIX C
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
WILLIAM L. TAYLOR, MARY-
ANNE SILVA, RAYMOND W.
CHRISTIANSEN, LIONEL L.
BOURGET, and DAVID A. WEBB
Vv. C.A. No. 94-0596-P
STATE OF RHODE ISLAND
DEPARTMENT OF CORREC-
TIONS, and GEORGE A. VOSE,
JR., Individually and in his official
capacity as Director of the Rhode
Island Department of Corrections
ORDER
PETTINE, Senior Judge. The plaintiffs in the above-cap-
tioned matter have made a Motion to Make Additional Findings
and Alter or Amend Judgment requesting |) an Order requiring
that the defendants reimburse offender supervision fees previ-
ously collected from the plaintiffs and awarding compensatory
damages, and 2) clarification that the date of offense, not the
date of sentencing, is the relevant event in applying the Ex
Post Facto Clause. After considering these requests, this Court
comes to the following conclusions.
First, this Court regards such specific relief as requested by
the plaintiffs as unnecessary, in light of the fact that the plaintiffs
have apparently not requested such relief from the defendants
directly. My earlier ruling clearly concluded that the offender
aii
:
| 39A
i supervision fees were unconstitutional. In light of that ruling,
the plaintiffs should make a direct demand to the defendants
that they reimburse the fees already paid by the tenants. Only
iq if the defendants refuse to comply with this request should the
| 4 plaintiffs find it necessary to request a specific order from this
Court.
Second, this Court clarifies that the date of the offense is
the relevant date for applying the Ex Post Facto Clause. As
the Supreme Court declared in Beazell v. Ohio, 269 U.S. 167
(1925), a statute is prohibited as ex post facto if it “makes
more burdensome the punishment for a crime, after its commis-
sion. .. .” Beazell, 269 U.S. at 169 (emphasis added). The
date of the offense is therefore the basis for determining
whether the punishment is retroactive and, thus, unconstitu-
17 tional under the Ex Post Facto Clause. 3
SO ORDERED:
/s/
Raymond J. Pettine
Senior U.S. District Judge
January 10, 1996
Entered as an Order of this Court January 10, 1996.
/s/
Deputy Clerk
40A
APPENDIX D
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1002
WILLIAM L. TAYLOR, ET AL.,
Plaintiffs, Appellees,
Vv.
STATE OF RHODE ISLAND, ET AL.,
Defendants, Appellants
Before
Torruella, Chief Judge
Selya, Cyr, Boudin, Stahl and Lynch, Circuit Judges
*Cummings, Circuit Judge
ORDER OF THE COURT
Entered: January 17, 1997
The panel of judges that rendered the decision in this case
having voted to deny the petition for rehearing and the sugges-
tion for the holding of a rehearing en banc having been carefully
considerd by the judges of the Court in regular active service
and a majority of said judges not having voted to order that
the appeal be heard or reheard by the Court en banc,
. 41A
Se
It is ordered that the petition for rehearing and the suggestion
for rehearing en banc be denied.
By the Court
py
Chief Deputy Clerk
*Of the Seventh Circuit, sitting by designation
(cc: Messrs. Sinapi, Palombo, Woolley and Alexander]
42A
APPENDIX E
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1002
WILLIAM L. TAYLOR, ET AL.,
Plaintiffs, Appellees,
Vv.
STATE OF RHODE ISLAND, ET AL.,
Defendants, Appellants.
JUDGMENT
Entered: December 4, 1996 :
This cause came on to be heard on appeal from the United
States District Court for the District of Rhode Island, and was
argued by counsel.
Upon consideration whereof, it is now here ordered, ad-
judged and decreed as follows: The judgment of the district
court is affirmed.
The parties shall bear their own costs.
By The Court
/s/
Clerk.
[cc: Messrs. Palombo and Sinapi]
43A
APPENDIX F
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
——
No. 96-1002
WILLIAM L. TAYLOR, ET AL.,
Plaintiffs, Appellees,
¥.
STATE OF RHODE ISLAND, ET AL.,
Defendants, Appellants.
AMENDED JUDGMENT
Entered: December 16, 1996
On further consideration of the judgment entered on De-
cember 4, 1996,
It is ordered that the second paragraph of the judgment
entered on December 4, 1996 is vacated and amended as fol-
lows: Upon consideration whereof, the district court’s judg-
ment is reversed and the cause is remanded for further proceed-
ings on appellees’ procedural due process claims under state
and federal law. The remaineder of the judgment entered on
December 4, 1996 shall not be affected or altered by this
amended. judgment.
By The Court
| Clerk
[cc: Messrs. Palombo and Sinapi]
44A
APPENDIX G
42-56-38. Assessment of costs. [Contingently effective;
see Contingent Effective Date note.] — Each sentenced of-
fender committed to the care, custody or control of the depart-
ment of corrections shall reimburse the state for the cost or
the reasonable portion thereof incurred by the state relating to
such commitment, provided however that a person so commit-
ted, awaiting trial and not convicted, shall not be liable for
the reimbursement. Items of cost shall include physical services
and commodities such as food, medical, clothing and special-
ized housing, as well as social services such as specialized
supervision and counseling. Costs shall be assessed by the
director of corrections or his or her designee based upon each
person’s ability to pay, following a public hearing of proposed
fee schedules. Each offender’s family income and number of
dependents shall be among the factors taken into consideration
when determining ability to pay. Monies received under this
section will accrue first to the department of corrections for
use to offset costs of the specific care or service, and thereafter
to the general fund. A separate restricted receipt account shall
be established for deposit of each type of receipt. The director
shall promulgate rules and regulations necessary to carry out
the provisions of this section. The rules and regulations shall
provide that the financial situation of persons, financially de-
pendent on the person, be considered prior to the determifiation
of the amount of reimbursement. This section shall not be
effective until the date the rules and regulations are filed with
the office of the secretary of state.
History of Section.
P.L. 1992, c. 133, art. 97, § 2.
Contingent Effective Dates. As of the date of publication
of the 1993 Reenactment, the rules and regulations referred
to in the last sentence had not been filed with the office of the
secretary of state.
45A
RHODE ISLAND NUMBER 10.07.03
DEPARTMENT OF
CORRECTIONS EFFECTIVE DATE:
July 1, 1994
POLICY AND PROCEDURE
SECTION:
ADULT PROBATION AND
PAROLE OFFENDER
SUPERVISION FEES
AUTHORITY:
Rhode Island General Laws (“RIGL”) section 42-56-10(v), Pow-
ers of the Director and section 42-56-38 Assessment of Costs.
I. POLICY
It is the policy of the Rhode Island Department of Corrections
(RIDOC) to assess and collect fees from offenders who are
placed under the supervision of probation pursuant to convic-
tion in the District and Superior Courts of Rhode Island or
paroled by Rhode Island Parole Board.
The fees described herein are a monthly assessment for the
duration of the period of probation/parole supervision for the
purposes of service provision.
The Director of Department of Corrections, following conduct
of a public hearing, will issue a schedule of fees to be assessed
offenders on probation or parole.
Il. PROCEDURE
A. Fee Assessment
1. Upon intake of an adjudicated offender placed
under probation/parole supervision, the assigned
46A
probation/parole staff will complete a Supervision
Fee form, review with the offender that the fee
assessment is in accordance with RIGL, and review
the amount of the assessment. _
The supervision fee shall be paid throughout the
period of supervised probation/parole.
A payment schedule is established, and the method
of payment is carefully reviewed with the offender.
It shall be the responsibility of the offender to make
known and demonstrate to the full probation/parole
staff any inability to pay the full monthly fee.
Potential causes for waiver must be in accordance
with established criteria in Section E.
B. Payment of fees
The completed Supervision Fee form is to be for-
warded by probation/parole staff to the agency con-
tracted by Department of Corrections (“contract
agency’’). One copy is to be given to the offender
and one copy placed in the probation/parole record.
The offender is to pay the fee directly to the contract
agency as indicated on the payment schedule.
It shall be the responsibility of the contract agency
to collect, record, and report all offender fee pay-
ments, in accordance with terms estlablished.
47A
Reporting Responsibilities
1.
The contract agency shall provide regular notifica-
tion to the department regarding enrolled offenders,
payments made, and payments due.
The contract agency shall forward such payments
as are due to the department on a regular basis, with
full accounting and itemization, as provided in the
contract between RIDOC and the agency.
It shall be the responsibility of the probation/parole
staff to notify the offender and the contract agency
if there is a change in offender status such that the
offender is no longer subject to the monthly assess-
ment. Such changes include transfer to banked
status, case closing, approved move out of state, or
other change to unsupervised status.
It shall be the responsibility of the prebation/parole
staff to notify the contract agency if any temporary
or permanent waiver of fees is granted for cause
after the Supervision Fee form and payment sched-
ule have been registered with the contract agency.
It shall be the responsibility of the offender to notify
both probation/parole and the contract agency of
any change of address.
Non-compliance
a
In the event an offender does not maintain the
schedule of payments, and has not applied for or
been granted a waiver, probation/parole shall rein-
force with the offender the importance of making
regular payments.
48A
The offender shall be reminded as necessary of the
lawful obligation to pay all assessed fees, and shall
be made aware that the contract agency can legally
pursue payment owed, even beyond the term of
probation/parole.
The offender’s probation or parole shall not be vio-
lated solely for non-payment of offender fees.
However, in the event of other violations of the
conditions of probation/parole, non-payment of
offender fees may be brought to the attention of the
court, formally or informally, as indicative of a lack
of cooperation, failure to fulfill lawful obligations,
or other pattern of non-compliance.
E. Offender Fee Waiver Criteria
There is a presumption that supervised offenders
have the ability and the obligation to pay the full
monthly assessment unless and until the offender
demonstrates otherwise to probation/parole staff.
Supervisory consultation and approval are required
for any grant of temporary or permanent waiver of
some or all of the monthly assessment.
Criteria to be considered include evidence of one or
more of the following situations, a review of the
offender’s total family income, along with evi-
dence of undue hardship caused by payment of full
offender fees:
a. Recovery from an accident or significant ill-
ness.
Pe NT ES ee, Se Ee re
pe oe OF
49A
Lack of employment while also actively seek-
ing work or receiving state income assistance.
Physical or mental disability which precludes
earning sufficient income.
Temporary financial difficulty or crisis due to
extraordinary circumstances.
Responsibility for support of dependents which
could be jeopardized by payment of offender
fees.
Full time student status in recognized academ-
ic or vocational training program.
Retired and on limited fixed income.
Participation in inpatient treatment program.
Pre-trial incarceration.
Other extenuating circumstances, as deter-
mined by probation/parole staff and super-
visor.
S50A
RHODE ISLAND DEPARTMENT OF CORRECTIONS
ADULT PROBATION AND PAROLE
OFFENDER FEE SCHEDULE
(Public Hearing on Fee Schedule held on May 4, 1994)
Monthly Payment — $15.00
APPROVED:
George A. Vose, Jr.
Director
S51A
APPENDIX H
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
WILLIAM L. TAYLOR, MARY-
ANNE SILVA, RAYMOND W.
CHRISTIANSEN, LIONEL L.
BOURGET, and DAVID A. WEBB
Vv. C.A. No. 94-0596-P
STATE OF RHODE ISLAND
DEPARTMENT OF CORREC-
TIONS, and GEORGE A. VOSE,
JR. Individually and in his official
capacity as Director of the Rhode
Island Department of Corrections
AGREED STATEMENT OF FACTS
Now come ihe parties in the above-cited matter pursuant to
this Court’s order dated July 3, 1995, and do hereby submit
the following Agreed Statement of Facts on the basis of which
the parties submit this case for consideration and decision by
the Court:
1. Plaintiff William L. Taylor (“Taylor”) is a resident of
the Town of Coventry, County of Kent, State of Rhode Island.
Plaintiff Taylor was placed on probation from on or about
Marci 9, [994 through March 8, 1995 as a result of convictions
on or about November and December of 1993 for misdemeanor
offenses committed in July and November of 1993.
2. Plaintiff Maryanne Silva (“Silva”) is a resident of the
Town of Coventry, County of Kent, State of Rhode Island.
52A
Plaintiff Silva was placed on probation from on or about April
7, 1994 through April 6, 1996 as a result of a felony committed
on or about November 10, 1993.
3. Plaintiff Raymond W. Christiansen (“Christiansen”) is
a resident of the City of Warwick, County of Kent, State of
Rhode Island. Plaintiff Christiansen was placed on probation
from on or about October, 1983 to January 22, 1999 as a result
of a conviction on or about October, 1983 for several felonies
committed in April of 1983.
4. Plaintiff Lionel L. Bourget (“Bourget’’) is a resident of
the City of Woonsocket, County of Providence, State of Rhode
Island. Plaintiff Bourget was placed on probation from on or
about May 23, 1994 through May 23, 1995 as a result of a
conviction on or about June 20, 1994 for a misdemeanor com-
mitted in August, 1992.
5. Plaintiff David A. Webb (“Webb”) is a resident of the
City of Providence, County of Providence, State of Rhode
Island. Plaintiff Webb was placed on probation from on or
about May, 1993 through May, 2013 as a result of a conviction
on or about sometime in 1978 for a felony committed in De-
cember, 1977.
6. Defendant State of Rhode Island (“State”) is sued on
the basis of official acts and/or omissions committed by em-
ployees and agents of the Department of Corrections (“DOC”),
a department created pursuant to R.I.G.L. § 42-56-1, et seq.,
within the executive department of the State of Rhode Island,
which said State is a sovereign state of the United States.
7. Defendant George A. Vose, Jr. (“Vose”) is the Director
of the DOC and is sued in his individual and official Capacities.
Defendant Vose is responsible for promulgating and imple-
menting DOC policies and procedures, including but not li-
mited to those relating to the imposition and assessment of the
adult probation and parole offender supervision fees at issue
herein. As Director of the DOC, Defendant Vose’s acts per-
RRS Se Nh. ooo
53A
formed in said capacity may fairly be said to represent official
policy of the DOC.
8. That Rhode Island General Law § 42-56-38, as enacted
by P.L. 1992, ch. 133, art. 97, sec. 2, provides that each
sentenced criminal offender committed to the care, custody or
control of the DOC, including but not limited to those on
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