Stansbury v. Hannigan
| Decision Date | 05 June 1998 |
| Docket Number | No. 79384,79384 |
| Citation | 265 Kan. 404,960 P.2d 227 |
| Parties | Raymond F. STANSBURY, Appellee/Cross-Appellant, v. Robert D. HANNIGAN, et al., Appellants/Cross-Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The United States Constitution's ex post facto prohibition forbids legislative enactment of any law which imposes a punishment for an act which was not punishable at the time it was committed or imposes additional punishment to that then prescribed.
2. Two critical elements must be present for a criminal or penal law to be ex post facto. It must be retrospective, that is, it must apply to events occurring before its enactment, and it must alter the definition of criminal conduct or increase the penalty by which a crime is punishable.
3. Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was committed. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the clause if it is both retrospective and more onerous than the law in effect on the date of the offense.
4. Kansas Administrative Regulations, when adopted, have the force and effect of a statute. The Kansas Department of Corrections, in adopting regulations governing inmate conduct in the penal institutions of this state, acts as a quasi-legislative instrumentality exercising delegated legislative power. Thus, the regulations adopted are within the ambit of the Ex Post Facto Clause of the United States Constitution.
5. When an inmate is afforded the opportunity to possess personal property, he or she enjoys a protected interest in the ownership of that property that cannot be infringed without due process. However, the inmate has no protected right to possession of the property while in prison.
6. While states may under certain circumstances create liberty interests on behalf of inmates, these interests will be generally limited to freedom from restraint which imposes an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.
7. The record is examined in this case involving good time credits for prisoners, and it is held: (1) The 1993 amendment to K.A.R. 44-6-124 constitutes an ex post facto application of law to the petitioner and those similarly situated; and (2) the incentive level system established by Internal Management Policies and Procedures 11-101 does not violate due process.
Jeff Cowger, Special Assistant Attorney General, and Carla J. Stovall, Attorney General, were on the briefs, for appellants/cross-appellees.
Raymond F. Stansbury, appellee/cross-appellant, was on the briefs pro se.
This appeal by the Department of Corrections and cross-appeal by the petitioner inmate involve two questions. The first question is whether the withholding of good time credits from the petitioner under regulations amended after the petitioner's crime was committed violated the Ex Post Facto Clause of the United States Constitution. The second question is whether internal management policies adopted after the petitioner's sentence, resulting in his loss of privileges, violates the petitioner's due process rights under the United States Constitution. Both matters are questions of first impression before this court. We transferred this case from the Court of Appeals. Our jurisdiction is based upon K.S.A. 20-3017 and K.S.A. 60-2101(b).
The petitioner was tried by jury and convicted on May 10, 1991, of the charge of rape, which arose out of circumstances occurring on September 9, 1990. He was sentenced to the Secretary of Corrections for a term of 10 to 20 years. He began serving his indeterminate sentence on May 18, 1991.
Prior to April 1994, the petitioner earned 100% of his authorized good time credits by remaining free of any prison offenses and by the discretionary grant of good time credits by the unit team manager. See K.A.R. 44-6-124 (1989). After April 1994, based upon the 1993 amendment to K.A.R. 44-6-124, 100% of the petitioner's potential good time credits (120 days) were withheld for his failure to sign an amended Sex Abuse Treatment Program (SATP) agreement. In August 1994, another 120 days of good time credits were withheld. Sixty days of good time credits were withheld in April 1995, and 120 days more were withheld in October 1995. In January 1996, 120 days of good time credits were again withheld.
Before the adoption of Internal Management Policies and Procedures (IMPP) 11-101 in 1996, the petitioner was entitled and had certain privileges during his incarceration, including but not limited to, the following: ownership and possession of a personal television and handicrafts, use of outside funds, canteen expenditures up to $140 a month, approved visitors, and incentive pay. After the adoption of IMPP 11-101, inmates were required to earn these privileges by generally remaining free of offenses and demonstrating a willingness to participate in recommended programs including, in the petitioner's case, the SATP. Based upon the petitioner's refusal to participate in SATP, he was placed at IMPP 11-101 Level I. At this level he was no longer allowed a personal television but did have access to general television, canteen expenditures were limited to $20 per month, incentive pay was reduced, and visitors were limited to immediate family.
After exhausting his administrative remedies, the petitioner filed a petition for writ of habeas corpus. He contended that the application of the 1993 amendment to K.A.R. 44-6-124 to him constituted an ex post facto violation and violated due process and that the withholding of good time credits based on his failure to comply with the SATP violated his Fifth Amendment rights. He also contended that the change in his prison conditions and loss of privileges as the result of his classification under IMPP 11-101, constituted a violation of the Ex Post Facto Clause of the United States Constitution.
The trial court narrowed the issues in pretrial conference to the following: the alleged Fifth Amendment violation, the ex post facto nature of the 1993 amendment to K.A.R. 44-6-124, the ex post facto nature of the application of the IMPP 11-101 system, and a claim that the actions of the respondents violated the Eighth Amendment.
The trial court held that the 1993 amendment to K.A.R. 44-6-124(g)(6), as applied to the petitioner who was sentenced in 1991, was an ex post facto law and void under the United States Constitution. The trial court denied any further relief. The Department of Corrections with other named respondents appeal, and the petitioner cross-appeals. For the reasons set forth below, we affirm the trial court.
There are two aspects of this appeal. The first aspect involves good time credits under state statutes and the Kansas Administrative Regulations. The Department of Corrections appeals the trial court's determination that the 1993 amendment to K.A.R. 44-6-124(g)(6), as applied to the petitioner, is an ex post facto law. The petitioner cross-appeals, contending that the 1993 amendment violated his due process rights and that the trial court erred in determining that the withholding of good time credits for the petitioner's failure to participate in the SATP did not violate his rights under the Fifth Amendment to the United States Constitution.
The second aspect of this appeal involves IMPP 11-101, adopted by the Department of Corrections in 1996 and applied to the petitioner, who was convicted and sentenced in 1991. The petitioner contended before the trial court that such application was ex post facto, although he has abandoned this claim on appeal. For the first time on appeal, he contends that application of the IMPP violates his due process rights. We consider this an important constitutional issue and elect to treat his contention even though he failed to address the matter before the trial court. See State v. Bell, 258 Kan. 123, 126, 899 P.2d 1000 (1995).
In Kansas, the award of good time credits is authorized by law. See K.S.A. 21-4722; K.S.A. 22-3725. The manner in which such credits are earned, awarded, forfeited, withheld, and accumulated by individual inmates is governed by duly authorized regulations adopted by the Department of Corrections. Good time credits serve a useful purpose within our penal system by providing incentives for good behavior and inmate participation in remedial and rehabilitation programs, as well as sanctions for lack of performance and disobedience.
Two important dates are affected by the awarding, forfeiting, and withholding of good time credits. The first date is the date on which an inmate becomes eligible to be considered for parole. See K.S.A. 22-3717. The second date is the conditional release date which is the date upon which an inmate is entitled to be released from incarceration. See K.S.A. 22-3718; Beck v. Kansas Adult Authority, 241 Kan. 13, 29-30, 735 P.2d 222 (1987).
K.A.R. 44-6-124 (1989), in effect when the petitioner was convicted, provided in pertinent part:
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