Opposition Brief — Taylor v. Rhode Island Department of Corrections

No. 96-1670 WAY 21 1997

CLERK

In The wal

Supreme Court of the United States

October Term, 1996

&

WILLIAM L. TAYLOR, MARYANNE SILVA,

RAYMOND W. CHRISTIANSEN,

LIONEL BOURGET and 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 Writ Of Ceriorari

To The United States Court Of Appeals

For The First Circuit

¢

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

+

JerrreyY B. Pine ELtteN Evans ALEXANDER

Attorney General Deputy Chief Legal

THomas A. PALomMsBo* Counsel

Special Assistant Attorney Department of Corrections

General 40 Howard Avenue

150 South Main Street Cranston, RI 02920

Providence, RI 02903 (401) 464-2622

(401) 274-4400 Ext. 2296

Attorneys for Respondent

State of Rhode Island

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

eaten eit emt a ea a en Per eer mrt a a NR en - a

ee ee

QUESTIONS PRESENTED

1. Whether this Court should grant certiorari

although the First Circuit’s opinion does not conflict with

any decision of this Court, or of any other circuit.

2. Whether the $15.00 offender fee, which is applied

each month to a diminishing number of probationers and

parolees for services rendered during that month, with its

liberal waiver provisions, is a violation of the Ex Post

Facto Clause.

ii

TABLE OF CONTENTS

Page

CUSRETIOMS. PRUE oo os en ccarscaveestveveani i

84 8 8 Fs) RP rrr yy ore er 1

DEAE GPRD bev incnssdidds cd secesesivisameenoene 1

STATEREENE OF THEE CAGE «oc dc cnsvaestedveanonens 1

SUMMARY OF ARGUMENT................ece00-. 4

PAGATIGE occcccecceevecsssssssse nae 4

I. THE FIRST CIRCUIT’S OPINION IS CONSIS-

TENT WITH THE DECISIONS OF THIS COURT

AND THE OTHER CIRCUITS................. 4

A. This Court’s Recent Decision In Lynce v.

Mathis Is Entirely Consistent With The First

Clee ® RE a kk sib Kkddtasubuneeeneens +

1. The Facts In Lynce Are me gh sel To

The Underlying Facts In This Case. 4

2. The Finding That The Offender Fee Is

Not Punishment Is Consistent With the

Poa. GR EME... « csncecssccecaseens 5

B. The First Circuit’s Opinion Does Not Con-

flict With The Fifth Circuit’s Decision In

SONG «oss ci nese dae (ab ave eken aoeeesawes 7

C. Petitioner Misconstrues The Recent Holding

PPE OT CU ET Te re ee 8

Il. THE FIRST CIRCUIT CORRECTLY HELD THAT |

THE MODEST $15.00 MONTHLY FEE, |

ASSESSED PROSPECTIVELY TO ONLY THOSE

PROBATIONERS AND PAROLEES ACTUALLY |

RECEIVING SPECIALIZED SUPERVISION |

AND COUNSELING SERVICES, IS NOT PUN- |

ROE LIS ELEN 10

iii

TABLE OF CONTENTS - Continued

RE Rone GE ar epi AT ce IG Rae 10

B. The Appellate Court Properly Applied

piseper's Sumpective Fest ...... 0... cece recs 1]

C. The Appellate Court Properly Applied

pipers Oppective Test .... 22... cece ccesss 13

lil. AS THE EX POST FACTO CLAUSE IS NOT

IMPLICATED BY RHODE ISLAND’S

OFFENDER FEE STATUTE, THE FIRST CIR-

CUIT’S DECISION HAS NO NATIONAL

EL eas KAd awh Ce ee dns cokes seach se 15

NE ike ha 4 Fa < 5X bbb ead bead kk w we 17

TABLE OF AUTHORITIES

Page

CASES

Artway v. Attorney General of the State of New Jersey,

OE BG TASS TOE Ce FOGG ici nen cist sab eas acanas 9

Auditor General v. Hall, 1 N.W. 2d 516 (Mich. 1943) .... 16

Auditor General v. Olezniczak, 302 Mich. 336 (1942) .... 16

Austin v. United States, 509 U.S. 602 (1993)........... 8

Bae v. Shalala, 44 F.3d 489 (7th Cir. 1989)............. 9

Catder ©. Bull, 3 UD. SD CEFIS) .0 oe vcees ns ieascenss 12

California Department of Corrections v. Morales, 514

Jk Ab.) Prenat ne oF epee rns eee 6, 8

Collins v. Youngblood, 497 U.S. 37 (1990) .............. 6

Department of Revenue of Montana v. Kurth Ranch,

he eg: Serer ey me rE Spey re 8

DiCola v. Food and Drug Administration, 77 F.3d 504

ad... SE BO cian sc winacd pee bbe eanecheeeagesiad 9

In re Petition of Delaware for a Writ of Mandamus,

Gd Aude BAS CPR. FOUR ov olivia ad cece scuessncs 13

Lindsey v. Washington, 301 U.S. 397 (1937)............ 6

Lynce v. Mathis, 117 S.Ct. 891 (1997)....... 4, 5, 6, 9, 10

Martel v. Fridovich, 14 F.3d 1 (1st Cir. 1993) .......... 5

Mellinger v. Idaho Department of Corrections, 757

Ponta S259 CARO ADD. BUGS coins cpce ce koryascess 15

Mitier v. Florida, 462 U.S. 423 (1987). ....... 0.000000. 6

Murray v. Phelps, No. 88-3302 (5th Cir. Feb. 3,

1989) 867 F.2d 1426 (table) (unpublished) .......... 7

Vv

TABLE OF AUTHORITIES - Continued

Page

Murray v. Phelps, C.A. No. 88-0129-A (M.D. La.

SUPE i 05006246 ede b¥ Re Oye eRe OS Oe 7

Sheppard v. Louisiana Board of Parole, 873 F.2d 761

So Re Pe Ee Poet ree ey ey ee 7

Sheppard v. Louisiana Board of Parole, C.A. No.

GP-GRs7 GES. 50. TORE es iwi ccs handceece nieces 7

State of Arizona v. Mears, 134 Ariz. 95, 654 P.2d 29

Fe ae Rs eee ery re re eT eel 15

State of Idaho v. Walker, 887 P.2d 53 (Idaho App.

ROPES 6 ash 03580 cdvavetkeas sawn ene 15

State of Rhode Island v. One Lot of $8,560, 670 A.2d

FEE Sk: ROPONS sos Cady S05 thieebeeA ee ee 15

State Treasurer v. Wilson, 388 N.W. 2d 312 (Mich.

i OEE Pee ee er ree rT errs meio ee ee 15

Taylor v. State of Rhode Island, 908 F.Supp. 92 (D.R.1.

SIPURA 40S CU SORES SIRE ORES ERR eh 3, 8

Taylor v. State of Rhode Island, 101 F.3d 780 (1st Cir.

> | See mre e crete aes sy rat 4, 3 7, ee 24, 33,

Tillinghast v. Howard, 109 R.I. 497, 287 A.2d 749

Dh cy: PERE OR o germs fp ey Prine rales homer yn 12

Turner v. Nevada Board of State Prison Commission-

ers, 624 F.Supp. 318 (D.Nev. 1965) ...... 2.26.60 15

United States v. Cardona, 902 F.2d 60 (ist Cir. 1990) .... 12

Uinited States v. Halper, 490 U.S. 435 (1989)

AOE Chik Eas eek 6 eee Lek BS, 9, 3G, 34, 13.

v1

TABLE OF AUTHORITIES — Continued

Page

United States v. Stoller, 78 F.3d 710 (1st Cir. 1996),

cove. Giowtisedd, 117 SCV. S7O CGPS). 0 cscs ccceewenns 10

United States v. Ursery, 116 S.Ct. 2135 (1996) ...8, 9, 10

Weaver v. Graham, 450 U.S. 24 (1981) ............0.08. 6

CONSTITUTIONS

io. “commtiiution Articie & § BD... 00sec isa ksaveins ae

ee nes Axticet ES Es ces ces en scatyaews 2

STATUTES AND RULES

en es ER: EG cig nee pas euhweveweeaneens 12

oe Se. LGwe © Q2-5G-58. ois ik casi rn ses ecus A.

Rhode Island Department of Corrections

GS Rt ror eT errr re re 11

pemereaeets P40, FO.G7 IS. . 5 x v0 cca ss ti ou divet ens ee

OPINION BELOW

Taylor v. State of Rhode Island, 101 F.3d 780 (1st Cir.

1996)

STATUTES

U.S. Const. Art. I, § 10

R.I. Const. Art. I, § 12

R.I. Gen. Laws § 42-56-38

Regulation 10.07.03, Rhode Island Department of

Corrections

STATEMENT OF THE CASE

In 1992, the General Assembly of Rhode Island

directed that “[e]ach sentenced offender committed to the

care, custody and 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 — Assess-

ment of Costs, P.L. 1992, c. 333, art. 97, § 2 (the “offender

fee” statute). Petitioners’ Appendix at 44A.! Among the

items of cost assessed under the statute are “social ser-

vices such as specialized supervision and counseling”

that are provided prospectively to offenders on probation

and parole. Id.

! References to Petitioners’ Appendix are hereinafter

designated as “Pet.App.”.

The offender fee statute became effective on March

22, 1993, when its general implementing regulation was

filed with the Secretary of State. A public hearing was

then held on the proposed $15.00 monthly offender

supervision fee on May 14, 1994. Each offender on super-

vised probation or parole was notified of the $15.00 per

month fee by a letter dated June 16, 1994 from George A.

Vose, Jr., Director of the Department of Corrections.

Pet.App. 61A-62A. By regulation filed with the Secretary

of State on June 17, 1994, this fee became effective on July

1, 1994. Pet.App. 45A-50A. As of that date, all proba-

tioners and parolees actively receiving specialized super-

vision and counseling, who did not obtain financial

hardship waivers, became responsible for the $15.00

monthly fee.

In November 1994, Petitioners brought a civil action

in the United States District Court for the District of

Rhode Island. They alleged that the regulation imposing

the $15.00 monthly fee was unconstitutional and in excess

of statutory authority. Petitioners complained that the fee

was unconstitutional as applied to offenders, such as

they, who committed their crimes prior to July 1, 1994.

Specifically, Petitioners alleged that the regulation

violated the prohibition against ex post facto laws found in

Article I, § 10 of the United States Constitution and

Article I, § 12 of the Rhode Island Constitution. They

further complained the regulation deprived them of their

rights to equal protection and their substantive and pro-

cedural due process rights under both the United States

and Rhode Island Constitutions. Finally, Petitioners

claimed that the regulation exceeded the statutory

authority granted the Department of Corrections by the

General Assembly in R.I. Gen. Laws § 42-56-38.

The matter was submitted to the district court on

cross motions for summary judgment, supported by an

agreed statement of facts. Pet.App. 51A-58A. Petitioners’

motion was granted as to ex post facto and that the

Department of Corrections exceeded its statutory author-

ity. Pet.App. 11A-37A.? Respondent George A. Vose, Jr.

was dismissed on the basis of qualified immunity and

Respondents were granted summary judgment on the

substantive due process issue. The court did not reach the

procedural due process issue. The court issued a second

opinion clarifying the effective date for imposing the fees.

Pet.App. 38A-39A. Judgment entered on January 16, 1996.

On December 4, 1996, the Court of Appeals for the

First Circuit reversed. Taylor v. State of Rhode Island, 101

F.3d 780 (1st Cir. 1996). Pet.App. 1A-10A. In upholding

the $15.00 monthly fee, the First Circuit reasoned that the

legislature imposed a modest, civil charge which is

entirely remedial and that its practical effect is neither

retributive nor deterrent in nature. Pet.App. 7A-10A. The

First Circuit remanded for further proceedings on Peti-

tioners’ procedural due process claims under federal and

state law.

* The district court’s decision is reported at 908 F. Supp. 92

(D.R.I. 1995).

SUMMARY OF ARGUMENT

There is no reason for this Court to grant Petitioners’

application for a writ of certiorari, as the First Circuit’s

decision does not conflict with any decision of this Court

or with any decision of any other circuit. The touchstone

of the ex post facto analysis is whether the challenged state

action is punishment; if not, the inquiry ends. The Peti-

tion should be denied as the offender fee is not punish-

ment and the Ex Post Facto Clause does not apply.

¢

ARGUMENT

I. THE FIRST CIRCUIT’S OPINION IS CONSISTENT

WITH THE DECISIONS OF THIS COURT AND

THE OTHER CIRCUITS.

A. This Court’s Recent Decision In Lynce v. Mathis

Is Entirely Consistent With The First Circuit’s

Ruling.

1. The Facts In Lynce Are Inapposite To The

Underlying Facts In This Case.

This Court’s recent decision in Lynce v. Mathis, 117

S.Ct. 891 (1997), involved a statutory change which retro-

actively canceled provisional release credits awarded to

inmates. In 1986, petitioner received a 22-year prison

sentence for attempted murder. He was released from

prison in 1992 after earning early release credits totaling

5,668 days, including 1,860 days of “provisional credits”

awarded as a result of prison overcrowding. Thereafter,

the state attorney general issued an opinion canceling all

provisional credits retroactively awarded to prisoners

convicted of murder or attempted murder. Petitioner was

arrested and returned to prison. 117 S.Ct. at 893.

This petition involves R.I. Gen. Laws § 42-56-38,

which directs sentenced offenders to reimburse the state

for, inter alia, the cost of social services such as spe-

cialized supervision and counseling. The offender fee

statute, which authorizes the Department of Corrections

to assess a fee to reimburse the state for costs, bears no

resemblance to the plight of the petitioner in Lynce, who

had previously received over five (5) years of gain time,

was released from prison after the statutory change, and

was then rearrested and reimprisoned.

2. The Finding That The Offender Fee Is Not

Punishment Is Consistent With The Holding

In Lynce.

The “narrow issue” in Lynce was whether the amend-

ments disadvantaged petitioner by increasing his punish-

ment. Id. at 896. The Ex Post Facto Clause prohibits

legislatures from enacting statutes, such as the amend-

ment in Lynce, which retroactively cancelled gain time

actually awarded to prisoners. In other words, while the

Ex Post Facto Clause prohibits a statutory amendment

which retroactively increases punishment for criminal

acts, the clause does not apply to the civil prospective

$15.00 monthly assessment. See Martel v. Fridovich, 14 F.3d

1, 3 (1st Cir. 1993) (the Ex Post Facto Clause does not

apply to revised rules which are not punitive).

In Lynce, this Court reviewed the major Supreme

Court ex post facto cases and clarified that the appropriate

focus is whether the statutory change increased the

“quantum of punishment”. 117 S.Ct. at 897.5 The Court

focused on the decision in Morales, supra, that ex post facto

protections do not apply when the frequency of parole

hearings were decreased for certain offenders, because

there was no reason to conclude that a prisoner would

spend more time in prison. Id. at 897.4 As the offender fee

is a civil charge, rather than punishment, the ex post facto

protections do not apply. Id. at 896.

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

amendment that retroactively reduced the amount of gain time

credits available to prisoners, in effect eliminating the lower end

of the possible range of prison terms, violated the Ex Post Facto

Clause); Miller v. Florida, 482 U.S. 423 (1987) (statutory change

was an ex post facto law because prisoner’s presumptive

sentencing range increased); Lindsey v. Washington, 301 U.S. 397

(1937) (new statute requiring petitioners to be sentenced to a

maximum term of imprisonment violated ex post facto

proscription). Conversely, where punishment is not increased,

the Ex Post Facto Clause is not implicated. Thus, Collins v.

Youngblood, 497 U.S. 37 (1990), held that a new Texas statute

allowing reformation of an improper jury verdict assessing

unauthorized punishment to a person previously convicted was

not an ex post facto law. In addition, California Department of

Corrections v. Morales, 514 U.S. 499 (1995), reasoned that

amending the law governing parole suitability hearings, to

defer subsequent parole hearings for up to three years, did not

violate the Ex Post Facto Clause.

4 The First Circuit noted that the teachings of Morales

applied to the offender fee, stating “that courts must determine

whether a legislative change ‘produces a sufficient risk of

increasing the measure of punishment’ . . . [and] [a] legislative

change which creates only a ‘speculative and attenuated

possibility of producing the prohibited effect of increasing the

measure of punishment’ is insufficient to raise the ex post facto

specter.” 101 F.3d at 784, n. 9, Pet.App. at 10A.

B. The First Circuit’s Opinion Does Not Conflict

With The Fifth Circuit’s Decision In Sheppard.

Petitioners disingenuously claim that Sheppard v. Lou-

isiana Board of Parole, 873 F.2d 761 (5th Cir. 1989), conflicts

with the decision by the First Circuit.5 In fact, the Fifth

Circuit remanded Sheppard and the appended Murray

without any opinion on the merits. Id. at 762, 764-65.

Ultimately, Sheppard was dismissed without prejudice by

the district court. Sheppard v. Louisiana Board of Parole,

C.A. No. 88-0639 (M.D. La. 1990). Murray concluded

with a district court decision that Louisiana’s parole

supervision fee was not an ex post facto law, because it

was not punishment and did not flow from the commis-

sion of a crime and was, instead, an administrative fee for

the purpose of defraying the cost of parole supervision.

Murray v. Phelps, C.A. No. 88-0129-A (M.D. La. 1993). This

is the identical conclusion reached by the First Circuit;

that Rhode Island’s modest, cost-based supervisory fee is

remedial and not punitive. Taylor, 101 F.3d at 783-84,

Pet.App. 8A.7

> Sheppard appended Murray v. Phelps, No. 88-3302 (5th Cir.

Feb. 3, 1989) 867 F.2d 1426 (table) (unpublished). The cases are

factually similar and both were remanded to the district court

for further proceedings.

© Since the Sheppard and Murray district court decisions are

unreported, Respondents submitted an Appendix in the district

court of Rhode Island containing a certified copy of the docket

and order in Sheppard and a certified copy of the docket and the

court’s opinion and judgment in Murray.

? Noteworthy is the fact that the First Circuit neither cited

nor discussed Sheppard and Murray, although both parties cited

the cases.

Moreover, in both Sheppard and Murray, parole was

either revoked or subject to revocation for nonpayment of

the parole fee. Such is simply not the case here. The

appellate court noted, “[a]s the district court recognized,

any possible link between nonpayment of the offender

fee and the revocation of parole/probation is too attenu-

ated 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.” 101 F.3d

at 784, n. 9.8 Thus, given the outcome of both Sheppard

and Murray, there is no basis for Petitioners to pretend a

conflict exists between circuits.

C. Petitioner Misconstrues The Recent Holding In

Ursery.

The majority in United States v. Ursery, 116 S.Ct. 2135

(1996), held that civil forfeitures do not constitute “pun-

ishment” for the purposes of the Double Jeopardy Clause.

The Ursery Court analyzed a line of “punishment” cases

including United States v. Halper, 490 U.S. 435 (1989),

Austin v. United States, 509 U.S. 602 (1993) and Department

of Revenue of Montana v. Kurth Ranch, 511 U.S. 767 (1994),

to address the lower court's finding that these cases had

disturbed a long line of cases holding that in rem civil

forfeitures are not punishment.

Petitioners misconstrue the majority discussion in

Ursery, which simply distinguishes civil forfeiture from

civil fines. They erroneously conclude that this Court

specifically held that Halper’s definitional framework is

8 See discussion of Morales, supra at n. 4.

irrelevant for defining punishment. Petitioners employ

statements by the Ursery majority such as “[i]n Halper, we

emphasized that our decision was limited to the context

of civil penalties”, 116 S.Ct. at 2144 or that Halper empha-

sizes “the case-specific nature of our inquiry,” 116 S.Ct. at

2143, to argue that Halper only applies to double jeopardy

and can never be used in an ex post facto case.

After neglecting to mention that the Ursery language

simply distinguishes an in rem case from a penalty case,

Petitioners compound this error by declaring that the

First Circuit improperly used the Halper test to determine

whether the offender fee is penal or remedial. See Ursery,

116 S.Ct. at 2142-43. It is axiomatic that an initial inquiry

be made as to whether a statutory amendment constitutes

punishment before utilizing the objective test in Lynce to

assess the quantum of punishment. See Lynce, 117 S.Ct. at

897.

Despite Petitioners’ protests, the First Circuit’s use of

Halper to determine whether the statutory change consti-

tutes punishment, before entering the myriad of other ex

post facto considerations, is consistent with the practice of

other circuits. See Artway v. Attorney General of State of

New Jersey, 81 F.3d 1235 (3rd Cir. 1996); DiCola v. Food and

Drug Administration, 77 F.3d 504 (D.C. Cir. 1996); Bae v.

Shalala, 44 F.3d 489 (7th Cir. 1989) (noting that Halper

applies because the threshold question under the Ex Post

Facto and Double Jeopardy Clauses is whether the statu-

tory change constitutes punishment).? Accordingly, the

° The Double Jeopardy Clause serves the function of

preventing “successive punishments and . . . successive

10

First Circuit in this case, as well as in United States v.

Stoller, 78 F.3d 710 (1st Cir. 1996), cert. dismissed 117 S.Ct.

378 (1996), properly used the Halper touchstone to deter-

mine whether a statutory amendment is punishment.

Finding no punishment, the inquiry properly ended.

Il. THE FIRST CIRCUIT CORRECTLY HELD THAT

THE MODEST $15.00 MONTHLY FEE, ASSESSED

PROSPECTIVELY TO ONLY THOSE PROBA-

TIONERS AND PAROLEES ACTUALLY RECEIV-

ING SPECIALIZED SUPERVISION AND

COUNSELING SERVICES, IS NOT PUNISHMENT.

A. Introduction.

To analyze Rhode Island’s offender fee program, the

First Circuit considered both “whether the legislative

intent was punitive in nature” and “whether the chal-

lenged civil provision is ‘so extreme . . . as to constitute

punishment’ ” 101 F.3d at 783, Pet.App. 7A, applying

Halper, 490 U.S. at 442. Halper affords two levels of pro-

tective inquiry: a subjective test to determine whether the

purpose of a statute is to punish and an objective test to

evaluate whether a statute’s extreme effect is punitive. 490

U.S. at 447-49.

prosecutions,” Ursery, 116 S.Ct. at 2139, while the Ex Post Facto

Clause prevents the passage of laws which retroactively

increase “punishment”. Lynce, 117 S.Ct. at 895.

11

B. The Appellate Court Properly Applied Halper's

Subjective Test.

The First Circuit initially noted that, facially, “the

offender fee statute, suitably located among other Rhode

Island civil statutes, imposes a civil charge.” 101 F.3d at

783, Pet.App. 7A.!° Next, the court below stated that

“{t]he modest fee authorized by the statute comprises no

part of any sentence imposed for the crime committed by

offenders.” Id. Further, the appellate court reasoned that

the fee “is expressly designed to ‘reimburse’ the Depart-

ment 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.” Id. In addition, the court of appeals recog-

nized that “all offender fee revenues are dedicated to

such use, Regulation 1.12.01([1V)(K), and waivers are

available to offenders unable to pay. Regulation

10.07.03(11)(E).” Id.'! Lastly, the First Circuit found that

10 The lower court was mindful of Halper’s admonition that

“[flor purposes of determining whether a law is penal in nature,

‘the labels “criminal” and “civil” are not of paramount

importance.’ ” 101 F.3d at 783 citing Halper, 490 U.S. at 447.

11 Approximately 2,547 offenders, almost 20% of the total

number, were granted waivers due to financial hardship,

Pet.App. 55A-56A, 19, and, as discussed in n. 13, infra, “banked”

probationers are not required to pay the fee. Regulation

10.07.03(II)(C)(3), Pet.App. 47A.

While Petitioner claims the “fee amounts to a monetary

penalty on the Petitioners which ranges between $135.00 and

$3405.00”, Petition at 6 and the fee also “average[s] $972 each

and range as high as $3405.00”, Petition at 8, Department of

Corrections records reveal that Petitioners Bourget, Silva and

Christiansen have zero balances, Petitioner Taylor, who is off

12

“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.” Id.}?

Grounded on this analysis, the appellate court pro-

nounced: “In our judgment, so modest a cost-based

supervisory fee reasonably cannot be deemed punitive in

purpose, especially since any conceivable retributive or

deterrent effect could only be inconsequential.” 101 F.3d

probation, has an outstanding balance of $60.00 and Petitioner

Webb, who would potentially qualify for waiver if he would

request one as he is a workers’ compensation recipient, has an

outstanding balance of $225.00.

12 The appellate court refuted the district court’s

determination that the offender fee was “punishment” because

it was part of “the law annexed to the crime,” Calder v. Bull, 3

U.S. 386, 390 (1798), thus linking the offender fee with

Petitioners’ sentences of probation. Id. at n. 6. The court below

instead found that “the supervisory services for probationers

released into the community are largely rehabilitative, both in

nature and purpose.” Id. citing R.I. Gen. Laws § 42-56-4(c)

(“Rehabilitative services shall include . . . intermediary

sanctions (including but not limited to . . . probation [and]

parole). ...”); United States v. Cardona, 903 F.2d 60, 62 (1st Cir.

1990) (probation serves goals of rehabilitation and public

safety), cert. denied, 498 U.S. 1049 (1991); Tillinghast v. Howard,

109 R.I. 497, 501, 287 A.2d 749, 752 (1972) (“[I]t is for the purpose

of giving a convicted accused the opportunity for rehabilitation

that he retains his liberty and is placed on probation.”)

Moreover, the court of appeals highlighted the fact that “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

10.07.03(II)(C)(3).” Id. at n. 6.

13

at 783-84, Pet.App. 8A. The First Circuit correctly deter-

mined that the modest $15.00 monthly fee, assessed only

to offenders actively receiving services, bears no punitive

purpose whatsoever.!*

C. The Appellate Court Properly Applied Halper's

Objective Test.

The court of appeals next “inquire[d] whether the fee

nonetheless runs afoul of the objective test announced in

Halper: a monetary assessment ‘that cannot be said solely

to serve a remedial purpose, but rather can only be

explained as also serving either retributive or deterrent

purposes, is punishment as we have come to understand

13 “(T]he 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 10.07.03(II)(C)(3).” 101 F.3d at 784, n. 6, Pet.App. 8A.

“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(II)(C)(3).” 101 F.3d at 781, Pet.App. at 3A.

The First Circuit distinguished In re Petition of Delaware for a

Writ of Mandamus, 603 A.2d 814 (Del. 1992), in which the

monetary sanctions were “blanket surcharges . . . imposed on

the offenders at sentencing, rather than reimbursements for the

costs of providing services to offenders.” 101 F.3d at 784, n. 6,

Pet.App. at 8A. “Thus, rather than a blanket fee assessed at

sentencing without regard to the commencement 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.” Id. at n. 8, Pet.App. at

9A.

14

the term.’ ” 101 F.3d at 784, Pet.App. 9A, citing Halper, 490

U.S. at 448.14

“To state the question in this case is to answer it” — is

the First Circuit’s clear and concise application of Halper’s

objective prong. Id. The appellate court quotes the stat-

ute’s mandatory language that “ ‘[m]Jonies received under

this section will accrue first to the department of correc-

tions for use to offset costs of the specific care or service.’

R.I. Gen. Laws § 42-56-38.” Id. Further, the court below

states that “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 super-

visory services to its probationers and parolees. Regula-

tion 1.12.01(1V)(K).” Id. Finally, the circuit notes that

“implementing regulations explicitly state that the

offender fees collected from probationers and parolees

must be depusited in a restricted account, exclusively

available for defraying Department costs in affording

offenders the required community supervision.” Id.

Accordingly, Respondents respectfully submit that

the First Circuit correctly applied Halper's objective test

by holding that “the offender fee program is entirely

remedial and its practical effect is neither retributive nor

deterrent in nature.” Id. “Under the Halper test, therefore,

the offender fee is not punitive.” Id. Thus, the Petition

presently before the Court should be denied.

14 The court below reasoned that “[u]nder 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. citing Halper, 490 U.S. at 449.

15

Ill. AS THE EX POST FACTO CLAUSE IS NOT IMPLI-

CATED BY RHODE ISLAND’S OFFENDER FEE

STATUTE, THE FIRST CIRCUIT’S DECISION

HAS NO NATIONAL IMPORTANCE.

As set forth above, the $15.00 monthly offender fee,

applied only to probationers and parolees actively receiv-

ing services from the Department of Corrections, is not

punishment. The First Circuit correctly reasoned that the

statute has no ex post facto implications. Such civil fees,

assessed to recover the costs of goods and services, have

existed for many decades and have been uniformly

upheld.'> Rather than supporting Petitioners’ ex post facto

1S See State of Rhode Island v. One Lot of $8,560, 670 A.2d 772,

776 (R.1. 1996) (“In considering the amount that might be within

the remedial limit, the Superior Court may consider . . . the cost

in these cases of probationary supervision during the terms of

probation imposed.”); Turner v. Nevada Board of State Prison

Commissioners, 624 F.Supp. 318, 321 (D.Nev. 1985) (upheld “the

prospective application of deductions to offset the cost of

maintaining an offender”); Mellinger v. Idaho Department of

Corrections, 757 P.2d 1213, 1220 (Idaho App. 1988) (“Parole

conditions are not additional punishment or penalties . . . [a]nd

[r]equiring the payment of fees to defray costs of supervision is

reasonable and has a rehabilitative effect.”); State of Idaho v.

Walker, 887 P.2d 53 (Idaho App. 1994) (held probation

supervision fees not refundable despite reversal of conviction;

reasoning that defendant had received intangible benefit from

probation supervision services); State of Arizona v. Mears, 134

Ariz. 95, 654 P.2d 29 (Ariz.App. 1982) (to require a probationer

to help defray the State’s costs of supervising his probation is

beneficial in the rehabilitation of the defendant, and such

reimbursement into the probation fund will strengthen the

criminal justice system’s ability to finance its probation

services); State Treasurer v. Wilson, 388 N.W. 2d 312 (Mich. 1986)

(upheld constitutionality of statute requiring reimbursement for

16

claim, the fact that the vast majority of states have

enacted offender fee statutes, Pet.App. at 65A-67A,'® but-

tresses Respondent’s central point — that legislatures

nationwide recognize modest civil assessments to defray

costs directly associated with offenders as both lawful

and proper. Moreover, as discussed above, the courts are

in agreement. Accordingly, Petitioners’ bald assertion

that this case has profound national importance lacks

credence.

costs of maintaining inmates in prison); Auditor General v. Hall, 1

N.W. 2d 516 (Mich. 1943) (prisoner’s statutory obligation to pay

for upkeep and maintenance if he has sufficient estate is “civil”

rather than “criminal” and is not violative of double jeopardy,

equal protection or due process.); Auditor General v. Olezniczak,

302 Mich. 336 (1942) (all able prisoners required to pay for

maintenance expenses in prisen, whether they were sentenced

before or after the effective date of the Prison Reimbursement

Act). See also Sheppard and Murray, both supra.

16 This issue was not raised in the appellate or district

court.

17

CONCLUSION

It is clear from the facts and law discussed above that

the decision of the First Circuit is not in conflict with any

decision of this Court or with any other Circuit. No

intercession by this Court is necessary. Therefore, this

Petition should be denied, and the judgment of the Court

of Appeals should be affirmed.

Respectfully submitted,

Jerrrey B. Pine

Attorney General

THomMaS A. PALOMBO*

Special Assistant Attorney General

Department of the Attorney General

150 South Main Street

Providence, RI 02903

(401) 274-4400 Extension 2296

Eten Evans ALEXANDER

Deputy Chief Legal Counsel

Department of Corrections

40 Howard Avenue

Cranston, RI 02920

(401) 464-2622

Attorneys for Respondent

State of Rhode Island

*Counsel of Record