In re Forbis

Decision Date21 August 2003
Docket NumberNo. 73381-3.,73381-3.
Citation74 P.3d 1189,150 Wash.2d 91
CourtWashington Supreme Court
PartiesIn the Matter of the Personal Restraint Petition of Steven A. FORBIS, Respondent.

Christine Gregoire, Attorney General, John Samson, Assistant Attorney General, Aileen B. Miller, Olympia, for Petitioner/Appellant.

Kitteridge Oldham, Nielsen, Broman & Assoc., Christopher Gibson, Seattle, for Appellee/Respondent.


Steven Forbis was convicted of first degree murder and is currently serving his sentence of 320 months in the Washington State Penitentiary. During his sentence, the Department of Corrections (DOC) implemented a policy in which inmates are screened to determine whether they would benefit from stress and anger management classes. Forbis was signed up for classes on three occasions. He refused to attend and was sanctioned by loss of earned release credits and privileges. He filed a personal restraint petition (PRP) alleging an ex post facto violation, which was granted by the Court of Appeals, Division One. We now reverse the Court of Appeals. Requiring Forbis to complete stress and anger management classes and sanctioning him for refusing did not violate the ex post facto clauses of the Washington and United States constitutions.


Forbis began serving his sentence on May 11, 1988. In 1993, the DOC instituted policy 320.400, a case management program aimed at "clearly articulat[ing] expectations for offenders while under the [DOC's] jurisdiction." Resp. of the DOC Ex. 9, at 1. The statutory grant of authority cited in the policy is the general authority of the secretary of corrections to direct the DOC, enacted in 1981 as RCW 72.09.050. In addition, a statute enacted in the 1994 special session authorized the DOC to determine which offenders would benefit from stress and anger management training. Laws of 1994, 1st Spec. Sess., ch. 7, § 533. Forbis's counselor assessed him and determined that he needed stress and anger management classes to assist him with "recognizing and effectively coping with his stress and anger in the correctional environment and in the community upon release." Resp. of the DOC Ex. 2, at 1, 3.

Forbis claims he was first enrolled in a stress and anger management class scheduled for May 2000. He refused to attend the class because it was not ordered by the court in his judgment and sentence. Forbis did not earn five days of his earned release credits. His administrative appeal was denied.

He was enrolled in a second class set for March 2001. When he again refused to attend, the DOC sanctioned him for an "infraction # 557," which is "[r]efusing to participate in an available education or work program or other mandatory programming assignment" under WAC 137-28-260(557). Pursuant to the April 6 hearing, he lost ten days of good time credits, his earned release credits for March 2001, and 30 days of dayroom privileges. His administrative appeal was denied, referencing DOC policy directive 320.400.

The third class Forbis refused to attend was scheduled for April 2001. Following his April 13 hearing, he lost 30 days of good time credits, his earned release credits for April 2001, and 90 days of dayroom privileges. Again, his administrative appeal was denied, with a reference to the policy directive. This was the last class for which he was scheduled. He was "unnassigned [sic] from the course" at that time. Resp. of the DOC Ex. 5.

In May 2001, Forbis filed his PRP, objecting to the requirement that he participate in stress and anger management classes. The Court of Appeals granted his PRP, prohibiting the DOC from applying the policy to Forbis. In re Pers. Restraint of Forbis, 113 Wash.App. 822, 838, 57 P.3d 630 (2002). The DOC filed a Motion for Discretionary Review with this court, which we granted on April 2, 2003.


Is it a violation of the ex post facto clauses of the Washington and United States Constitutions to require an inmate to attend stress and anger management classes, at the risk of losing earned release credits, under a policy enacted after the inmate was sentenced?


The constitutions of both the United States and Washington contain a prohibition against ex post facto laws. U.S. Const. art. I § 10; Wash. Const. art. I, § 23.1 This prohibition applies to "penal statutes which disadvantage the offender affected by them." Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). The ex post facto prohibition forbids three categories of laws:

any statute [1] which punishes as a crime an act previously committed, which was innocent when done; [2] which makes more burdensome the punishment for a crime, after its commission, or [3] which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.

Beazell v. Ohio, 269 U.S. 167, 169-170, 46 S.Ct. 68, 70 L.Ed. 216 (1925). A law falls into the second category if it (1) disadvantages the person affected by the law by increasing the punishment and (2) is retrospectively applied to acts that occurred before the law was enacted. Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981).2

In 1994, the legislature passed a statute authorizing the DOC to assess inmates to identify those who would benefit from specialized training and education. It states:

The department is authorized to determine whether any person subject to the confines of a correctional facility would substantially benefit from successful participation in: (1) Literacy training, (2) employment skills training, or (3) educational efforts to identify and control sources of anger and, upon a determination that the person would, may require such successful participation as a condition for eligibility to obtain early release from the confines of a correctional facility.
The department shall adopt rules and procedures to administer this section.

Laws of 1994, 1st Spec. Sess., ch. 7, § 5333 (emphasis added). The DOC implemented policy 320.400, which calls for an inmate to be evaluated and assessed to develop an intervention plan, identifying what programming would be necessary. The policy states that "[i]nmates who refuse to participate in programming to address identified risk/need factors will be subject to loss of earned time." Resp. of the DOC Ex. 2, Att. 1.

Relying heavily on Weaver v. Graham, Forbis argues that subjecting him to policy 320.400 violates the prohibition against ex post facto laws. A change in the rate at which an inmate could earn credit for good conduct was held ex post facto in Weaver. 450 U.S. at 35-36, 101 S.Ct. 960. In that case, the Florida defendant pleaded guilty and was sentenced when the operative statute allowed inmates to earn "gain time" at the rate of five days per month in the first two years, ten days per month in the third and fourth years, and fifteen days per month in all subsequent years. Later, the Florida legislature enacted a new formula using three, six, and nine days.

The Court held that the new law lengthened the amount of time that inmates must remain in prison, even if they abided by the rules and performed assigned tasks as before. Weaver, 450 U.S. at 33, 101 S.Ct. 960. Although the statutory scheme did allow inmates to make up the difference by performing additional tasks, including taking part in educational programs, the Court stated:

[T]he statute reduces the number of monthly gain-time credits available to an inmate who abides by prison rules and adequately performs his assigned tasks. By definition, this reduction in gain-time accumulation lengthens the period that someone in petitioner's position must spend in prison.

Weaver, 450 U.S. at 33, 101 S.Ct. 960 (emphasis added). See also In re Ramirez, 39 Cal.3d 931, 936, 705 P.2d 897, 218 Cal.Rptr. 324 (1985)

(changes to statute that increased amount of credits that could be lost met this portion of ex post facto test from Weaver). The change in the law increased the inmate's punishment.

The Weaver court also held that the statute was impermissibly retrospective when applied to inmates who had committed their crimes before the amendment because it "substantially alter[ed] the consequences attached to a crime already completed." Weaver, 450 U.S. at 33, 101 S.Ct. 960. Under Weaver, a law cannot "enhance the measure of punishment by altering the `formula' used to calculate the applicable [date for early release]." Calif. Dep't of Corr. v. Morales, 514 U.S. 499, 505, 518, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995) (interpreting Weaver). Weaver is distinguishable from this case because the formula for calculating the date for Forbis's early release remains the same.

The DOC may reduce the term of an offender's sentence by "earned release time" for "good behavior and good performance[] as determined by the correctional agency having jurisdiction." RCW 9.94A.728(1). The statutory maximum for earned release time is "one-third of the total sentence." Id. Under DOC procedures, "earned release time" is made up of "good time" and "earned time."

The record did not elucidate the differences between "good time" and "earned time," both of which were affected in Forbis's case. Counsel for the DOC stated at oral argument that "good time" is calculated at the beginning of the sentence and will be lost only if an inmate does not follow prison rules and regulations. "Good time" credit rewards "good behavior." "Earned time," on the other hand, is determined on a monthly basis depending upon whether an inmate completes assigned programming. "Earned time" rewards "good performance." An inmate's "good time" may be reduced if he fails to follow rules and regulations, and he may not be able to receive his "earned time" if he fails to successfully participate in assignments.

In Weaver, the statutory amendment completely altered the formula so that an inmate who met all prison requirements still...

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