Shepard v. Houston
| Decision Date | 07 November 2014 |
| Docket Number | No. S–13–1032,S–13–1032 |
| Citation | 855 N.W.2d 559 |
| Parties | George Shepard, and all other inmates in a similar situation, appellees, v. Robert P. Houston, director, Nebraska Department of Correctional Services, in his official and individual capacities, appellant. |
| Court | Nebraska Supreme Court |
Jon Bruning, Attorney General, and Jessica M. Forch for appellant.
George Shepard, pro se.
Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.
1. Constitutional Law.Constitutional interpretation presents a question of law.
2. Courts: Justiciable Issues.Ripeness is a justiciability doctrine that courts consider in determining whether they may properly decide a controversy.
3. Courts.The fundamental principle of ripeness is that courts should avoid entangling themselves, through premature adjudication, in abstract disagreements based on contingent future events that may not occur at all or may not occur as anticipated.
4. Courts: Jurisdiction.A determination of ripeness depends upon the circumstances in a given case and is a question of degree.
5. Courts: Jurisdiction: Appeal and Error.With regard to the jurisdictional aspect of ripeness, an appellate court employs a two-part test in which it considers (1) the fitness of the issues for judicial decision and (2) the hardship of the parties of withholding court consideration.
6. Actions.Generally, a case is ripe when no further factual development is necessary to clarify a concrete legal dispute susceptible to specific judicial relief, as distinguished from an advisory opinion regarding contingent future events.
7. Constitutional Law: Criminal Law.The Ex Post Facto Clauses forbid the application of any new punitive measure to a crime already consummated.
8. Constitutional Law: Statutes: Legislature.The Ex Post Facto Clauses ensure that individuals have fair warning of applicable laws, and they guard against vindictive legislative action.
9. Constitutional Law: Criminal Law: Statutes.To fall within the ex post facto prohibition, a law must be retrospective or retroactive—that is, it must apply to events occurring before its enactment—and it must disadvantage the offender affected by it either by altering the definition of criminal conduct or by increasing the punishment for the crime.
10. Constitutional Law: Criminal Law: Statutes.Any statute that 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 a crime of any defense available according to law at the time when the act was committed is prohibited as ex post facto.
11. Constitutional Law.Subtle ex post facto violations are no more permissible than overt ones.
12. Criminal Law: DNA Testing.When a law requiring a DNA sample punishes refusal to provide a sample as an offense separate from the offense that made the person subject to DNA sampling, such law does not violate ex post facto prohibitions.
13. DNA Testing: Statutes: Sentences.Regardless of whether the requirement of a DNA sample is itself considered civil, Neb.Rev.Stat. § 29–4106(2) (Cum.Supp. 2012) is punitive in mandating forfeiture of all good time and thereby increasing the period of a defendant's incarceration.
Neb.Rev.Stat. § 29–4106(2) (Cum.Supp. 2012) provides for retroactive application of its requirement that all inmates convicted of a felony sex offense or other specified offense submit a DNA sample before being discharged from confinement. Section 29–4106(2) also specifically provides that those inmates convicted before the passage of § 29–4106 “shall not be released prior to the expiration of his or her maximum term of confinement or revocation or discharge from his or her probation unless and until a DNA sample has been collected.” In effect, § 29–4106(2) provides that an inmate will forfeit his or her past and future good time credit if the inmate refuses to submit a DNA sample. The issue is whether § 29–4106(2), as applied to an inmate who was convicted before its passage, violated the Ex Post Facto Clauses of U.S. Const. art. I, § 10, and Neb. Const. art. I, § 16.
George Shepard was sentenced on July 11, 1990, to a combined term of up to 50 years' imprisonment. He was sentenced to 40 years' imprisonment for sexual assault in the first degree
and 10 years' imprisonment for manufacturing child pornography, the sentences to run consecutively.1
Under the good time law in effect at the time of Shepard's crimes, Shepard's projected mandatory discharge date was May 4, 2015. Neb.Rev.Stat. § 83–1,107 (Reissue 1987) provided:
Neb.Rev.Stat. § 83–1,107.01 (Reissue 1987) further provided:
Disciplinary procedures for the Nebraska Department of Correctional Services (Department) are governed by Neb.Rev.Stat. §§ 83–4,109 to 83–4,123 (Reissue 2008). Under § 83–4,111(3), which continues to be in essentially the same form as it was at the time of Shepard's crimes, the Department has broad powers to adopt and promulgate rules and regulations, including criteria concerning good time credit, but such rules and regulations “shall in no manner deprive an inmate of any rights and privileges to which he or she is entitled under other provisions of law.” Under § 83–4,114.01(2), previously located at Neb.Rev.Stat. § 83–185(2) (Reissue 1987), good time may be forfeited only in cases involving “flagrant or
serious misconduct.” Further, pursuant to § 83–4,122, in disciplinary cases involving the loss of good time, forfeiture must be done through disciplinary procedures adopted by the director of the Department that are consistent with various requirements of the statute.
Various factors could be considered before making a determination regarding a committed offender's actual release on parole upon the date of eligibility.2 As for the mandatory discharge date, however, the Board of Parole was required to discharge a parolee from parole and the Department was required to discharge a legal offender from the custody of the Department “when the time served ... equals the maximum term less all good time reductions.”3
In 1997, the Legislature passed provisions under the DNA Detection of Sexual and Violent Offenders Act, now known as the DNA Identification Information Act (the Act),4 for collecting DNA samples from any person convicted of a felony sex offense or other specified offense, in order to place such sample for use in the State DNA Sample Bank. Since 1997, § 29–4106(2) has provided for the retroactive application of the Act to persons convicted before the effective date of the Act but still serving a term of confinement on the effective date of the Act.
Under § 29–4106(2), such person shall not be released prior to the expiration of his or her maximum term of confinement unless and until a DNA sample has been drawn. Section 29–4106(2) currently states:
A person who has been convicted of a felony offense or other specified offense before July 15, 2010, who does not have a DNA sample available for use in the State DNA Sample Bank, and who is still serving a term of confinement or probation for such felony offense or other specified offense on July 15, 2010, shall not be released prior to the expiration of his...
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Caton v. State
... ... Lantz, 290 Neb. 757, 861 N.W.2d 728 (2015).2 Id.3 State v. Armagost, 291 Neb. 117, 864 N.W.2d 417 (2015).4 Anderson v. Houston, 274 Neb. 916, 744 N.W.2d 410 (2008) ; Tyler v. Houston, 273 Neb. 100, 728 N.W.2d 549 (2007). See, also, Neb.Rev.Stat. 292801 (Reissue 2008).5 State ... Huston, 285 Neb. 11, 824 N.W.2d 724 (2013) ; State v. Paul, 256 Neb. 669, 592 N.W.2d 148 (1999).12 U.S. Const. art. I, 10, cl. 1.13 Shepard v. Houston, 289 Neb. 399, 410, 855 N.W.2d 559, 568 (2014), quoting Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981).14 Id. quoting ... ...
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... ... A determination of ripeness depends upon the circumstances in a given case and is a question of degree. Shepard v. Houston , 289 Neb. 399, 855 N.W.2d 559 (2014). An appellate court uses a two-part inquiry to determine ripeness: (1) the jurisdictional question ... ...
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Great Plains Livestock Consulting, Inc. v. Midwest Ins. Exch., Inc., S-21-722.
... ... 18 Similarly, in Shepard v. Houston , 19 we found that a declaratory judgment action challenging the constitutionality of a statute 979 N.W.2d 120 which required that an ... ...