Bankes v. Simmons

• Decision Date: 05 June 1998
• Docket Number: No. 78722,78722
• Citation: 265 Kan. 341,963 P.2d 412
• Parties: Michael A. BANKES, Appellant, v. Charles SIMMONS, et al., Appellees.
• Court: Kansas Supreme Court

Page 412

963 P.2d 412

265 Kan. 341

Michael A. BANKES, Appellant, v. Charles SIMMONS, et al., Appellees.

No. 78722.

Supreme Court of Kansas.

June 5, 1998.

Syllabus by the Court

1. Proceedings on a petition for writ of habeas corpus filed pursuant to K.S.A. 60-1501 are not subject to ordinary rules of civil procedure. To avoid summary dismissal of a K.S.A. 60-1501 petition, allegations must be made of shocking and intolerable conduct or continuing mistreatment of a constitutional stature.

2. The Fifth Amendment to the United States Constitution not only permits a person to refuse to testify against himself or herself at a criminal trial in which he or she is the defendant, but also gives the person the privilege not to answer official questions in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate that person in future criminal proceedings.

3. A witness protected by the privilege against self-incrimination may rightfully refuse to answer questions that would incriminate the witness unless and until he or she is protected at least against the use of his or her compelled answers and evidence derived therefrom in any subsequent criminal case in which he or she is a defendant. Absent such protection, if the witness is nevertheless compelled to answer, the witness' answers are inadmissible against him or her in a later criminal prosecution.

Michael K. Lehr, Wichita, argued the cause and was on the brief, for Appellant.

Timothy G. Madden, Chief Legal Counsel, Kansas Department of Corrections, argued the cause and was on the brief, for Appellees.

ABBOTT, Justice:

This is a habeas corpus action brought by Michael A. Bankes, a prisoner in the Hutchinson Correctional Facility (HCF). Bankes was convicted of indecent liberties with a child and sentenced to 4 to 15 years in prison in 1990. Some time after his sentencing, Bankes' unit team at the HCF recommended that he participate in the Sexual Abuse Treatment Program (SATP). In order to be admitted into SATP, Bankes was required to admit guilt for the crime of which he was convicted. This admission of guilt, along with any other information which Bankes conveyed to SATP counselors, could be turned over to authorities and used against Bankes in future proceedings. Due to this required admission of guilt, Bankes refused to participate in SATP. As a result of his refusal to participate in SATP, Bankes' privilege incentive level was reduced from a level 2 to a level 1, pursuant to the Kansas Department of Corrections Internal Management Policies and Procedures (IMPP) Rule 11-101 (1998). Because of this reduction in his privilege incentive level, Bankes lost his personal TV and certain canteen privileges. Moreover, for each program review period in which Bankes refused to participate in the recommended SATP, he did not receive any good time credits pursuant to K.A.R. 44-6-124. This denial of good time credits resulted in an extension of Bankes' parole eligibility date and his conditional release date. Both IMPP 11-101 and K.A.R. 44-6-124 were amended to create this outcome after Bankes had been sentenced and served part of his sentence. Based on these consequences for his refusal to participate in SATP, Bankes filed a petition for habeas corpus in Reno County District Court, alleging that K.A.R. 44-6-124 violated his privilege not to incriminate himself and constituted an ex post facto law. The Reno County District Court dismissed Bankes' habeas corpus petition for failure to state a claim. Bankes appealed this ruling to the Court of Appeals. The case was transferred to this court pursuant to K.S.A. 20-3018(c).

Bankes' 4- to 15-year sentence did not include any order for Bankes to participate in any kind of psychological or psychiatric treatment for sexual offenders. The Kansas Department of Corrections (KDOC) placed Bankes in the HCF. At the time of his placement with the HCF, Bankes was not ordered to participate in any kind of psychological or psychiatric counseling for sexual offenders.

Further, at the time Bankes was sentenced to prison, KDOC had set out regulations in K.A.R. 44-5-104 and K.A.R. 44-5-105. K.A.R. 44-5-105 required that all inmates incarcerated in a KDOC facility be subject to a program plan conducted by a unit team within 1 month of an inmate's admission into prison. The plan could assign an inmate to participate in a certain program, but "the inmate [could] not be penalized for refusal to participate in a formal program plan." K.A.R. 44-5-104 classified the security level of the inmate. The inmate's security level determined his supervision requirements and his allowable privileges and freedoms. The factors necessary to determine an inmate's security level, pursuant to K.A.R. 44-5-104, and the supervision and privileges associated with each level were set out in the Secretary of Corrections' Internal Management Policies and Procedures manual (IMPP).

On February 9, 1993, and July 11, 1994, Bankes' program plan was reviewed by his unit team. These reviews did not order Bankes to attend a program for sexual offenders, and it classified Bankes as a medium security inmate pursuant to K.A.R. 44-5-104.

Good time credits are applied to an inmate's minimum sentence to determine his or her parole eligibility date and are applied to the inmate's maximum sentence to determine his conditional release date. K.A.R. 44-6-101(g), (m); K.A.R. 44-6-108. Upon reaching the conditional release date, an inmate is entitled to be released. See K.S.A. 22-3718; Beck v. Kansas Adult Authority, 241 Kan. 13, 29, 735 P.2d 222 (1987).

K.A.R. 44-6-108(c) (1989), which was in effect when Bankes committed his crime, stated, in pertinent part, that "[t]o establish the conditional release date, good time credits, not forfeited, shall be presumed earned and shall be applied to the maximum sentence term when first computed." (Emphasis added.) Thus, it was presumed for the purpose of conditional release that the inmate earned all available good time credits, and his or her conditional release date was predicated on that presumption. For parole eligibility, on the other hand, no such presumption applied, and the credits were tallied as earned to establish parole eligibility. See K.A.R. 44-6-108(b) (1989).

K.A.R. 44-6-124 (1989) provided guidelines for awarding good time credits for parole eligibility. No guidelines for the award of good time credits for conditional release were necessary, as 100% was presumed. The regulation stated:

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

"(2) Inmates with no class I or II offenses during the review period shall receive at least 60% of the good time credits allocated for that period.

"(3) Inmates with no class I, II, or III offenses during the review period shall receive at least 70% of the good time credits allocated for that period.

"(4) Inmates with no class I, II, III or IV offenses during the review period shall receive at least 80% of the good time credits allocated for that period.

"(5) The balance of the credits above the percentages listed in paragraphs (a)(1) to (a)(4) shall be awarded by the unit team based on factors of good work, behavior, and on other performance factors related to effective rehabilitation of the inmate." K.A.R. 44-6-124(a) (1989).

The regulation went on to further provide that the unit team had the discretion to refuse to award all or part of the portion of credits for which it had discretion based on an inmate's refusal to participate in recommended programs. K.A.R. 44-6-124(b) (1989).

K.A.R. 44-6-125(b) provided for the forfeiture of those good time credits "earned" for parole eligibility as well as those used to "create the conditional release date." It stated:

"Forfeit only on minimum until parole eligibility. Prior to parole eligibility, forfeited good time credits shall be subtracted from the amount of good time credits earned toward the parole eligibility only, and not from those credits used to create the conditional release date. After parole eligibility is established, forfeited credits shall be subtracted from the credits used to form the conditional release date." K.A.R. 44-6-125(b)(1989).

Thus, for purposes of parole eligibility, an inmate under the system as it existed at the time of Bankes' conviction was forced to earn his or her good time credits toward parole eligibility, while good time credits for a conditional release date were awarded at the outset. For the purposes of earning parole eligibility, an inmate with no class I offenses during the review period would receive at least 50% of the good time credits for that period. An inmate with no class I, II, III, or IV offenses was guaranteed to receive at least 80% of the allocated good time credits. The balance of the credits were discretionary and could be awarded or not awarded for failure to participate in a program.

In January 1995, KDOC amended K.A.R. 44-6-124 to its present form. In pertinent part, it provided that "[a] refusal by an inmate to constructively work or participate in assigned programs shall result in the withholding of 100% of the good time credits for that program classification review period, unless the inmate is determined by the facility health authority to be physically or mentally incapable of working or participating in a particular program or detail." K.A.R. 44-6-124(g)(6). K.A.R. 44-6-142 was also amended and now provides that, rather than all available good time credits being presumed earned for purposes of conditional release, such credits were now subject to being earned as the sentence progressed, in the same manner as used for the calculation of parole eligibility.

In addition to these regulatory amendments, the Secretary of Corrections also revised the Department's internal management policies and procedures. Under IMPP 11-101, KDOC defined a new...