IN THE SUPREME COURT OF IOWA No. 07–1117
Filed June 11, 2010
JOHN DYKSTRA,
Plaintiff,
vs.
IOWA DISTRICT COURT FOR JONES COUNTY,
Defendant.
Certiorari from the Iowa District Court for Jones County,
David Remley, Judge.
Inmate challenges inability to accrue earned time based on refusal
to participate in sex offender treatment program. WRIT SUSTAINED.
Philip B. Mears, Mears Law Office, Iowa City, for plaintiff.
Thomas J. Miller, Attorney General, and Forrest Guddall, Assistant
Attorney General, for defendant. 2
STREIT, Justice.
John Dykstra filed a postconviction action challenging the Iowa
Department of Corrections’ (IDOC) revocation of his ability to accrue
earned time because he refused to participate in a sex offender treatment
program (SOTP). IDOC’s inmate classification requiring an inmate to
participate in SOTP or lose the ability to accrue earned time implicates a
liberty interest, and, therefore, the inmate must receive adequate
procedural protections. Dykstra did not receive due process because
IDOC relied on unadmitted factual allegations without providing
adequate procedural protections.
I. Background Facts and Proceedings.
In 2005, Dykstra pleaded guilty to charges of simple assault, a
simple misdemeanor, in violation of Iowa Code section 708.2(5) (2003)
and dependent adult abuse, a class “D” felony, in violation of Iowa Code
section 235B.20(5). The simple assault charge was pled down from an
original charge of sexual abuse in the third degree. The dependent adult
abuse charge was based on Dykstra’s failure to pay his wife’s nursing
home bill. The district court sentenced Dykstra to thirty days for the
simple assault conviction and to a term not to exceed five years for the
dependent adult abuse conviction, to be served concurrently.
Dykstra completed the thirty day assault sentence while still in
prison on October 9, 2005. On December 15, 2005, while still in the
custody of the IDOC on the dependent adult abuse conviction, Dykstra
had an orientation where he was told he would be required to participate
in SOTP. An IDOC reception report recommended that Dykstra
participate in SOTP based on the alleged circumstances of the simple
assault as well as Dykstra’s previous convictions and his inclusion on
the sex offender registry. Referring to the alleged circumstances of the 3
simple assault, the reception report noted that Dykstra’s wife, who lived
in a nursing home because of multiple sclerosis, reported she was forced
to perform oral sex on Dykstra against her will. IDOC appears to have
based this factual summary on the minutes of testimony attached to the
charging information. 1 The reception report also identified a 1983
indecent exposure conviction, a 1994 indecent exposure charge, a 1995
burglary conviction for stealing a neighbor’s lingerie and sexually explicit
photos, a 2000 prostitution solicitation charge, and Dykstra’s presence
on the sex offender registry when he entered prison.
Dykstra objected to the requirement that he attend SOTP,
maintained that any sexual contact with his wife was consensual, and
argued the simple assault did not contain a sexual element. On January
27, 2006, IDOC administered Dykstra a polygraph exam about the facts
surrounding the simple assault, which Dykstra failed.
On February 16, 2006, Dykstra signed a refusal form for SOTP.
Applying a 2005 amendment to Iowa Code section 903A.2, IDOC
determined Dykstra was no longer eligible for earned time credit. Prior to
Dykstra’s refusal to participate in SOTP, his discharge date for the
dependent adult abuse conviction was January 20, 2008. After Dykstra’s refusal, his discharge date was changed to May 12, 2010 2.
Dykstra appealed to the deputy warden. The appeal was denied,
and Dykstra filed a postconviction petition under Iowa Code section
1No evidence was entered to demonstrate Dykstra admitted the minutes of testimony. Neither the minutes of testimony nor the transcript from the hearing at which Dykstra entered his plea to simple assault are part of the postconviction record. 2 It is unclear from the record whether Dykstra was discharged on May 12, 2010 and his case is therefore moot. Wilson v. Farrier, 372 N.W.2d 499, 501 (Iowa 1985). Regardless, because the underlying question is one of public importance that is likely to reoccur, we reach the merits. Id. 4
822.2(1)(f) 3 or in the alternative section 822.2(1)(e) or Iowa Code chapter
17A. The district court determined the suit was properly considered
under section 822.2(1)(f) and denied relief. Dykstra filed a writ of
certiorari challenging the district court’s ruling denying relief pursuant to
Iowa Code section 822.9.
II. Scope of Review.
Generally, postconviction relief proceedings are reviewed for
correction of errors at law. DeVoss v. State, 648 N.W.2d 56, 60 (Iowa
2002). We review questions of statutory construction, including
Dykstra’s claims as to the proper interpretation of Iowa Code section
903A.2, for errors at law. In re A.W., 741 N.W.2d 793, 806 (Iowa 2007).
Dykstra’s claims alleging violations of his constitutional rights, however,
are reviewed “ ‘in light of the totality of the circumstances and the record
upon which the postconviction court’s ruling was made.’ ” Risdal v.
State, 573 N.W.2d 261, 263 (Iowa 1998) (quoting James v. State, 541
N.W.2d 864, 869 (Iowa 1995)). This is the functional equivalent of de
novo review. Id.
III. Merits.
Prior to 2001, Iowa Code section 903A.2 provided that inmates
serving category “A” sentences were eligible for a sentence reduction of
one day for each day of good conduct and, in addition, could earn a
further reduction of up to five days per month for satisfactory
participation in certain programs, including treatment programs. Iowa
Code § 903A.2(1)(a) (1999). In 2000, the legislature amended section
3The original petition was filed under the 2005 code. Iowa Code section 822.2 was amended effective July 1, 2006 to make nonsubstantive corrections. See 2006 Iowa Acts ch. 1010, § 162. These corrections renumbered section 822.2’s subsections and unnumbered paragraphs. Because this amendment did not make substantive changes and makes the subsections more easily identifiable, we refer to chapter 822 as set forth in the 2009 code. 5
903A.2 to provide that an inmate serving a category “A” sentence was
“eligible for a reduction of sentence equal to one and two-tenths days for
each day the inmate demonstrates good conduct and satisfactorily
participates in any program or placement status identified by the director
to earn the reduction.” Iowa Code § 903A.2(1)(a) (2001) (emphasis
added). This amendment became effective January 1, 2001. 2000 Iowa
Acts ch. 1173, § 10. IDOC applied the 2001 amendment so that refusal
to attend SOTP resulted in a loss of ninety days earned time but did not
affect the inmate’s ability to accrue time in the future. Holm v. Iowa Dist.
Ct., 767 N.W.2d 409, 415 (Iowa 2009).
In 2005, the legislature again amended Iowa Code section
903A.2(1)(a) to state “an inmate required to participate in a sex offender
treatment program shall not be eligible for a reduction of sentence unless
the inmate participates in and completes a sex offender treatment
program established by the director.” Iowa Code § 903A.2(1)(a) (Supp.
2005). Under IDOC policy applying this amendment, an inmate will no
longer accrue any earned time after refusing to attend SOTP, but will not
lose any previously accrued earned time.
Dykstra alleges the stopping of his ability to accrue earned time
credit is improper for five reasons. First, Dykstra asserts application of
the 2005 amendment violated the Ex Post Facto Clause of the Iowa and
United States Constitutions. Second, Dykstra asserts the 2005
amendment to Iowa Code section 903A.2 should not be applied
retroactively as a matter of statutory construction. Third, Dykstra
argues Iowa Code section 903A.2 was improperly applied to him because
he was not serving time for a sex offense. Fourth, Dykstra argues the
prison’s procedures for determining whether he was required to
participate in SOTP violated due process. Finally, Dykstra claims IDOC 6
inappropriately relied on a polygraph examination to make a
classification determination.
A. Ex Post Facto Clause. We recently held IDOC’s application of
Iowa Code section 903A.2, as amended in 2001 and 2005, to inmates
whose crimes occurred prior to January 1, 2001 violates the Ex Post
Facto Clause. State v. Iowa Dist. Ct., 759 N.W.2d 793, 801–02 (Iowa
2009). We also recently held, however, that application of the 2005
amendment to inmates whose crimes occurred after enactment of the
2001 amendment but before enactment of the 2005 amendment does not
violate the Ex Post Facto Clause. Holm, 767 N.W.2d at 416–17. The
2005 amendment was “merely a clarification of the 2001 amendment,”—
and therefore, “did not result in more onerous punishment.” Id. at 416.
Consequently, the 2005 amendment did not violate the Ex Post Facto
Clause when applied to an inmate whose offense occurred before the
effective date of the 2005 amendment but after the effective date of the
2001 amendment. Id. at 417.
Dykstra argues that application of the 2005 amendment violated
the Ex Post Facto Clause because he is serving a sentence for actions
which took place in 2004. Under Holm, IDOC’s application of the 2005
amendment to Dykstra did not violate the Ex Post Facto Clause.
B. Retroactivity. Dykstra argues section 903A.2, as amended in
2005, cannot be construed to apply retroactively to individuals whose
crimes took place after enactment of the 2001 amendment but before
enactment of the 2005 amendment. We have previously rejected this
argument because we determined the amendment did not change the
existing law, but merely clarified and corrected IDOC’s application of
existing law. See Holm, 767 N.W.2d at 416 n.3. Therefore, Dykstra’s
argument has no merit. 7
C. IDOC Statutory Authority To Require SOTP. Dykstra argues
IDOC could not require him to participate in the SOTP because he was
not convicted of a “sex offense” and was not serving a sentence for a sex-
related crime when his ability to accrue earned time was revoked. The
language of the 2005 amendment states: “an inmate required to
participate in a sex offender treatment program shall not be eligible for a
reduction of sentence unless the inmate participates in and completes a
sex offender treatment program established by the director.” Iowa Code
§ 903A.2(1)(a) (emphasis added). The statute does not set criteria for
which inmates will be “required to participate.” Iowa Code section
903A.4 states, however, that the director of IDOC “shall develop policy
and procedural rules to implement sections 903A.1 through 903A.3.”
The broad discretion granted to IDOC does not limit application of
section 903A.2 to inmates serving sentences for particular crimes or
crimes labeled as “sex offenses.” There is no statutory limitation that
would prevent IDOC from recommending SOTP for an inmate convicted
of a crime that is not facially considered a sex offense where the factual
circumstances of the crime are of a sexual nature.
Dykstra responds that even if IDOC has the authority to require
SOTP, it does not have the statutory authority to stop his ability to
accrue earned time on a sentence for a non-sex-related crime. By the
time Dykstra was referred to SOTP, he was only serving a sentence for
the non-sex-offense crime of dependent adult abuse based on a failure to
pay nursing home bills. Iowa Code section 903A.2(1)(a) directs that an
inmate required to participate in SOTP who refuses to do so, shall not be
eligible for a reduction of “sentence.” Section 903A.2 does not require
that the “sentence” be one connected to the reason IDOC has required
the inmate to attend SOTP. Instead, when IDOC requires SOTP and an 8
inmate refuses or is removed from the program, the inmate cannot
accrue earned time toward any sentence the inmate is currently serving.
State v. Valin, 724 N.W.2d 440 (Iowa 2006), cited by Dykstra, does
not provide support for his claims here. In Valin, we held it was an
abuse of discretion for a district court judge to sentence Valin to SOTP as
part of his probation for a 2005 OWI offense based on Valin’s prior 1999
conviction for a sexual offense. 724 N.W.2d at 447–49. The statute at
issue in Valin required that a condition of probation “ ‘promote the
rehabilitation of the defendant or protection of the community.’ ” Id. at
445 n.3 (quoting Iowa Code § 907.6 (2005)). The court recognized that “a
defendant’s background and history is . . . relevant when determining the
conditions of probation.” Id. at 447. However, the court found an
insufficient nexus between Valin’s present conviction and the probation
conditions. Id. Valin had already served his sentence for the prior
conviction and had successfully participated in SOTP. Id. at 442. As the
court explained, “it is axiomatic that [prior conviction] history is
insufficient unless it reveals a problem currently suffered by the
defendant relating to the need to rehabilitate the defendant or protect the
community from the defendant.” Id. at 447.
There may be some limitation on IDOC’s discretion to require
SOTP. This court’s decision in Maghee v. State, 773 N.W.2d 228, 239 n.3
(Iowa 2009) suggests IDOC action may constitute “other agency action”
under section 17A.19. Section 17A.19 allows, for example, judicial
review and reversal of agency action which is unreasonable, arbitrary,
capricious, or an abuse of discretion. Iowa Code § 17A.19(10)(n). We do
not address the potential applicability of section 17A.19 to this case
because the district court held that chapter 17A was not an appropriate 9
mechanism to review Dykstra’s claims and Dykstra does not seek review
of this holding.
Regardless, Dykstra cannot gain support from Valin. IDOC
reached a determination that Dykstra’s simple assault conviction
contained a sexual element and therefore revealed a “problem currently
suffered” in the words of Valin. Although this determination may have
been procedurally flawed based on due process grounds, as discussed
below, IDOC has statutory authority to rely on a current conviction for a
non-sex offense when the underlying facts are of a sexual nature.
D. Due Process. Dykstra argues that regardless of IDOC’s
authority to require participation in SOTP, the procedures employed by
IDOC violate his constitutional right to due process under the United
States and Iowa Constitutions. Although in the past we have interpreted
the United States and Iowa Constitutions “in a similar fashion,” State v.
Seering, 701 N.W.2d 655, 662 (Iowa 2005), we “ ‘jealously guard our right
and duty to differ in appropriate cases.’ ” State v. Cline, 617 N.W.2d 277,
285 (Iowa 2000) (quoting State v. Olsen, 293 N.W.2d 216, 220 (Iowa
1980)), overruled on other grounds by State v. Turner, 630 N.W.2d 601,
606 n.2 (Iowa 2001). Because Dykstra has not advanced a standard for
interpreting the due process clause under the Iowa Constitution different
from its federal constitutional counterpart, we will apply the general
principles as outlined by the United States Supreme Court. See State v.
Bruegger, 773 N.W.2d 862, 883 (Iowa 2009). Even so, we do not
necessarily apply the federal standards in the same way as the Supreme
Court. Id.
“[T]he first step in any procedural due process inquiry is the
determination of ‘whether a protected liberty or property interest is
involved.’ ” Seering, 701 N.W.2d at 665 (quoting Bowers v. Polk County 10
Bd. of Supervisors, 638 N.W.2d 682, 691 (Iowa 2002)). After determining
a liberty interest is involved, we consider three factors in analyzing what
process is due:
“First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.”
Id.
The United States Supreme Court has recognized two instances
when liberty interests of prisoners are implicated. First, when a restraint
imposes “atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life,” and second, when a restraint “will
inevitably affect the duration of [the inmate’s] sentence.” Sandin v.
Conner, 515 U.S. 472, 484, 487, 115 S. Ct. 2293, 2300, 2302, 132 L. Ed.
2d 418, 430–31 (1995).
When determining the existence of a liberty interest here, “[i]t is
important . . . to precisely identify the right that [Dykstra] asserts as the
basis for his liberty interest.” Sanford v. Manternach, 601 N.W.2d 360, 366 (Iowa 1999). This court previously recognized a liberty interest in an
inmate’s ability to accrue earned time. Holm, 767 N.W.2d at 417–18.
Recognition of a liberty interest in this circumstance is consistent
with case law in federal and state courts, which have found a liberty
interest in classification of a prisoner or parolee as a sex offender that
requires participation in SOTP and implicates eligibility for non-
discretionary parole or earned time credits. The Tenth Circuit has held
“it was the loss of the previously granted opportunity to earn good time
credits at a higher level, combined with his classification as a sex 11
offender, that implicated a liberty interest.” Gwinn v. Awmiller, 354 F.3d
1211, 1217 (10th Cir. 2004). Similarly, the Ninth Circuit explained that
the stigmatizing consequences of the attachment of the “sex offender” label coupled with the subjection of the targeted inmate to a mandatory treatment program whose successful completion is a precondition for parole eligibility create the kind of deprivations of liberty that require procedural protections.
Neal v. Shimoda, 131 F.3d 818, 830 (9th Cir. 1997); see also Coleman v.
Dretke, 395 F.3d 216, 223 (5th Cir. 2004) (finding a liberty interest “in
freedom from the stigma and compelled treatment on which his parole
was conditioned”); Thomas v. Warden, 891 A.2d 1016, 1027–28 (Conn.
Super. Ct. 2005) (finding liberty interest where prisoner was classified as
sex offender in prison system despite jury acquittal on sex offense
charge); cf. Gilmore v. Bostic, 636 F. Supp. 2d 496, 511 (S.D. W. Va.
2009) (“Like the Fifth, Ninth, Tenth, and Eleventh Circuits, the court
concludes that a sex offender treatment program could constitute a
change in the conditions of confinement so severe as to essentially
exceed the sentence imposed by the court. Here, although the plaintiff
has no liberty interest in parole under the United States Constitution, he
has been required to undergo treatment for behaviors in which it has not
been proven he has engaged.”).
The liberty interest at stake here compares closely to the liberty
interest identified by the United States Supreme Court in Vitek v. Jones,
445 U.S. 480, 494, 100 S. Ct. 1254, 1264, 63 L. Ed. 2d 552, 565–66
(1980). Vitek held that a Nebraska statute authorizing correctional
officials to classify inmates as mentally ill and transfer them to mental
hospitals for involuntary confinement and mandatory behavior
modification implicated the inmates’ liberty interest. “[T]he stigmatizing
consequences of a transfer to a mental hospital for involuntary 12
psychiatric treatment, coupled with the subjection of the prisoner to
mandatory behavior modification as a treatment for mental illness,
constitute the kind of deprivations of liberty that requires procedural
protections.” Id.
Dykstra’s classification required him to attend mandatory behavior
modification treatment—SOTP. Refusal to participate in SOTP makes
Dykstra completely ineglible for any earned time. The stigmatizing
consequence of being labeled as a sex offender, the mandatory behavior
modification treatment, and the revocation of the inmate’s ability to earn
any time should he refuse to participate in SOTP demonstrate this initial
classification implicates an “interest [that] has real substance.” Wolff v.
McDonnell, 418 U.S. 539, 557, 94 S. Ct. 2963, 2975, 41 L. Ed. 2d 935,
951 (1974). Based on this recognized liberty interest, Dykstra argues IDOC failed to provide due process for the determination that he is required to participate in SOTP. 4 Dykstra argues IDOC relied on factual allegations to which he had never admitted and no court had determined were accurate. In the context of sex offender registration, we have held that where a factual inquiry outside the face of the conviction is necessary to determine sex offender status, “resort to some tribunal must be available to resolve disputes over these issues.” Kruse v. Iowa Dist. Ct., 712 N.W.2d 695, 700–01 (Iowa 2006). Similarly, we previously held an evidentiary hearing was required when IDOC conducted a sex offender risk assessment resulting in a heightened requirement of public notification because the assessment was based on adjudicative facts that
4Dykstra also complains that he did not receive due process for the
determination that he refused to participate in SOTP. Dykstra does not contend, however, that he is or was willing to participate in SOTP and therefore does not put forth any argument for this court to address. 13
were related to the inmate’s sex-offense conviction but were not in the record. Brummer v. Iowa Dep’t of Corr., 661 N.W.2d 167, 173–75 (Iowa 2003). As this court explained in Brummer,
“Generally, a person has a constitutional due process right to an evidentiary hearing in accordance with contested case procedures if the underlying proceeding involves adjudicative facts,” i.e., “individualized facts peculiar to the parties, which ordinarily ‘ “answer the questions of who did what, where, when, how, why, with what motive or intent.” ’ ”
Id. at 172 (quoting Greenwood Manor v. Iowa Dep’t of Pub. Health, 641
N.W.2d 823, 836 (Iowa 2002)).
In Wolff, 418 U.S. at 558, 94 S. Ct. at 2976, 41 L. Ed. 2d at 952,
the United States Supreme Court held inmates were entitled to
procedural due process protections in disciplinary hearings that could
result in the forfeiture of an inmate’s good-time credits. The court
identified minimum requirements of procedural due process that must
be satisfied before forfeiture of good-time credit could be imposed:
(1) advance written notice of the claimed violation, (2) a written statement
of the factfinders as to the evidence relied upon and the reasons for the
disciplinary action taken, (3) a hearing, at which the inmate must be
allowed to call witnesses and present documentary evidence, as long as it
would not be unduly hazardous, and (4) a sufficiently impartial
decisionmaker. Wolff, 418 U.S. at 563–71, 94 S. Ct. at 2978–82, 41 L.
Ed. 2d at 955–59. Although later United States Supreme Court cases
recognized certain instances where lesser procedural protections were
required, the Court explained that the Wolff procedures are necessary for
inquiries “designed to elicit specific facts.” Greenholtz v. Inmates of Neb.
Penal & Corr. Complex, 442 U.S. 1, 14, 99 S. Ct. 2100, 2107, 60 L. Ed.
2d 668, 679 (1979), abrogated on other grounds by Sandin, 515 U.S. at
480–84, 115 S. Ct. at 2298–2300, 132 L. Ed. 2d at 427–30. 14
The Supreme Court has applied the Wolff requirements to a
situation similar to the SOTP classification here. Vitek, 445 U.S. at 494–
97, 100 S. Ct. at 1264–66, 63 L. Ed. 2d at 565–67. In Vitek, the
Supreme Court held unconstitutional a Nebraska statute authorizing
correctional officials to classify inmates as mentally ill and transfer them
to mental hospitals for involuntary confinement and mandatory behavior
modification without a hearing and the protections of Wolff. Id.
Specifically, Vitek required written notice of the proposed transfer to a
mental hospital, a hearing “sufficiently after the notice to permit the
prisoner to prepare” at which the prisoner may be heard, present
documentary evidence, present witnesses, and cross-examine state
witnesses, an independent decisionmaker, a written statement by the
factfinder of the evidence relied upon, and qualified and independent
assistance. 5 Id.
Courts have held that corrections departments violate procedural
due process by classifying prisoners who have no sex-offense convictions
for SOTP if they do not afford the procedural requirements identified by
the Supreme Court in Wolff. See, e.g., Gwinn, 354 F.3d at 1218–19
(holding that classification of inmate who had never been convicted of a sex offense required the procedural requirements set forth in Wolff:
“notice of the charges, an opportunity to present witnesses and evidence
in defense of those charges, and a written statement by the factfinder of
the evidence relied on”); Neal, 131 F.3d at 831 (holding Hawaii prisoner
who was never convicted of a sex offense did not receive due process
because the inmate was not provided a hearing at which he could have
5The court held such assistance was necessary based on the potential mental state of a prisoner who may be mentally ill. Vitek, 445 U.S. at 496–97, 100 S. Ct. at 1266, 63 L. Ed. 2d at 567. 15
called witnesses and presented documentary evidence, and rejecting
argument that ability to write letters protesting classification satisfied
Wolff).
Dykstra was entitled to due process because his liberty interest in
earned time was affected by his classification as required to participate in
SOTP. Dykstra argues his due process rights were violated because he
did not receive the protections of Wolff, specifically advance written
notice, a written statement of reasons and findings by the factfinder, and
a neutral factfinder. Because IDOC relied on unadmitted factual
allegations that did not result in a sex-offense conviction, Dykstra is
correct.
Dykstra had two meetings regarding his classification. First, at a
“classification or orientation” on December 15, 2005, Dykstra was told he
would be required to attend SOTP. On February 16, 2006, Dykstra had
a “classification hearing” at which he was presented with the SOTP
refusal form and informed of the consequences if he refused SOTP.
These two meetings do not meet the standards of Wolff. Dykstra was not
provided with an opportunity to present witnesses or documentary
evidence. Dykstra was not provided with written notice, or even verbal
notice, of either meeting prior to when they took place. Additionally,
Dykstra was provided with a generalized refusal form noting potential
reasons for classification and did not receive a written statement of the
specific evidence relied upon and the reasons for his own classification.
Dykstra also complains that he was not provided a sufficiently
impartial decisionmaker. According to IDOC policy, the classification
hearing takes place before the “Treatment Team” which includes, at a
minimum, “a counselor, the Associate Warden/Security or designee, and
the Associate Warden/Treatment/unit manager or designee.” The record 16
does not indicate whether this treatment team or only one individual was
present at either Dykstra’s December 15, 2005 meeting or the February
16, 2006 meeting. We are unable on this record to determine whether
the decisionmaker was sufficiently impartial. We have previously
explained that within the prison disciplinary system a “sufficiently
impartial” decisionmaker is one who is not “personally involved in the
incident for which discipline is sought or in prior disciplinary actions
against the inmate.” Williams v. State, 421 N.W.2d 890, 895 (Iowa 1988).
Here, the IDOC employee making the SOTP recommendation should not
be one of the decisionmakers determining whether the unadmitted
factual allegations against the inmate are true.
The State argues Dykstra’s classification should be upheld
regardless of whether he was entitled to additional protections regarding
the factual circumstances of the simple assault because IDOC could
have relied solely on Dykstra’s prior sex offense conviction for indecent
exposure, a sex-offense. IDOC may have been entitled to rely on
Dykstra’s prior conviction to determine that he was “required” to
participate in SOTP, without providing any additional process. 6 Dykstra
was afforded constitutionally adequate procedural protections in the form of criminal procedures for his previous sex offense convictions.
Courts have held that inmates currently serving sentences for sex
6Reliance on convictions prior to 2001 to classify an inmate serving a sentence for a crime committed after January 2, 2001 does not violate the . This court has upheld sentence enhancements based on prior crimes committed before enactment of the enhancing statute as long as the offense which is subject to enhancement was committed after enactment. See State v. DeCamp, 622 N.W.2d 290, 294 (Iowa 2001) (“The effective date of the enhanced sentencing provisions gives the offender notice his future acts will be subject to enhanced punishment based on the prior convictions.”). However, as noted above, we decline to address whether there may be limits to IDOC’s discretion where prior history does not demonstrate “a problem currently suffered by the defendant relating to the need to rehabilitate the defendant or protect the community from the defendant.” Valin, 724 N.W.2d at 447. 17
offenses are not entitled to any additional procedures prior to being
classified as required to participate in SOTP. As the Ninth Circuit has
explained,
An inmate who has been convicted of a sex crime in a prior adversarial setting, whether as the result of a bench trial, jury trial, or plea agreement, has received the minimum protections required by due process. Prison officials need do no more than notify such an inmate that he has been classified as a sex offender because of his prior conviction for a sex crime.
Neal, 131 F.3d at 831. In Holm we did not require IDOC to provide the specific procedural protections identified in Wolff for the initial
classification. Holm, 767 N.W.2d at 417–18. Holm was convicted and
currently serving a sentence for a sex offense and therefore received due
process during the criminal process. It was “undisputed that [Holm] was
convicted of third-degree sexual abuse in violation of Iowa Code section
709.4” and was serving a sentence for this offense. Id. at 412, 418. Sex-
offense convictions provide due process and Holm—unlike Dykstra—had
entered prison to serve a sentence for a sex-offense conviction. Id. at
412.
Even if IDOC were entitled to rely solely on Dykstra’s prior sex
offense conviction, IDOC’s actual reliance on the unadmitted factual
allegations surrounding the simple assault cannot be considered
harmless error. Federal courts have applied harmless error analysis to
procedural irregularities in prison disciplinary proceedings. See Howard
v. U.S. Bureau of Prisons, 487 F.3d 808, 813 (10th Cir. 2007); Piggie v.
Cotton, 344 F.3d 674, 678 (7th Cir. 2003); Elkin v. Fauver, 969 F.2d 48,
53 (3d Cir. 1992). As the Second Circuit explained,
If a person may be convicted and obliged to serve a substantial prison sentence notwithstanding a constitutional error determined to be harmless, surely the conditions of 18 confinement of a sentenced prisoner may be made temporarily more severe as discipline for a prison rules infraction despite a harmless error in adjudicating the violation.
Powell v. Coughlin, 953 F.2d 744, 750 (2d Cir. 1991) (citations omitted).
We agree that harmless error analysis applies to procedural due process
errors in the sex offender classification process. Cf. Kelly v. Nix, 329 N.W.2d 287, 293 (Iowa 1983) (holding expungement of disciplinary
infraction unnecessary where procedural irregularity was insubstantial
and nonprejudicial).
Within the context of criminal trials, “[a]n error of constitutional
magnitude does not mandate a new trial if the error was harmless
beyond a reasonable doubt.” State v. Boley, 456 N.W.2d 674, 678 (Iowa
1990); see also Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824,
828, 17 L. Ed. 2d 705, 710–11 (1967). We note, however, that the
standard for prison administrative decisions is “some evidence” as
opposed to the “beyond a reasonable doubt” required in criminal trials.
See Wilson v. Farrier, 372 N.W.2d 499, 501 (Iowa 1985) (“We hold that
the requirements of due process are satisfied if some evidence supports
the decisions by the prison disciplinary board to revoke good time
credits.”). We find guidance from this court’s explaination of the
harmless error analysis in the context of nonconstitutional errors, which
asks: “ ‘ “Does it sufficiently appear that the rights of the complaining
party have been injuriously affected by the error or that he has suffered a
miscarriage of justice?” ’ ” State v. Paredes, 775 N.W.2d 554, 571 (Iowa
2009) (quoting State v. Sullivan, 679 N.W.2d 19, 29 (Iowa 2004)). We
reverse unless the record affirmatively establishes there was no
prejudice. Id. 19
Here, we cannot hold the error was harmless. At argument before
this court, the State conceded that IDOC relied primarily on the factual
allegations regarding Dykstra’s simple assault conviction. The IDOC
reception report does not explain whether Dykstra’s sex offense
conviction for indecent exposure approximately twenty years prior would
alone cause IDOC to require Dykstra to participate in SOTP. Iowa Code
section 903A.2 vests discretion in IDOC to require SOTP and because we
cannot say how IDOC would have exercised its discretion in the absence
of the facts surrounding the simple assault conviction, we hold Dykstra’s
classification violated due process. Cf. State v. Martens, 569 N.W.2d 482,
485 (Iowa 1997) (“[T]he validity of a verdict based upon facts legally
supporting one theory for conviction of a defendant does not negate the
possibility of a wrongful conviction of a defendant under a theory
containing legal error.”). We remand to the district court for
determination of what, if any, remedy is required.
E. Polygraph. Dykstra also argues IDOC’s reliance on a
polygraph examination violated his due process rights. The polygraph
examination focused on the circumstances of the simple assault. We
hold today in Reilly v. Iowa District Court, ___ N.W.2d ___ (Iowa 2010),
that polygraph examinations are permissible when used by IDOC as part
of treatment. However, IDOC cannot substitute polygraph examinations
for the procedural protections required by Wolff. Cf. State v. Conner, 241
N.W.2d 447, 458–59 (Iowa 1976) (holding polygraph examinations
inadmissible at trial based on considerations of fairness and reliability).
We decline to hold the Federal and State Due Process Clauses
require a per se rule excluding polygraph examinations in all prison
classification hearings. Prison proceedings “are sui generis, governed by
neither the evidentiary rules of a civil trial, a criminal trial, nor an 20
administrative hearing. The only limitations appear to be those imposed
by due process, a statute, or administrative regulations.” 2 Michael B.
Mushlin, Rights of Prisoners § 9.20, at 208 (3d ed. 2002). Although we
have exercised our supervisory authority over the rules of procedure and
evidence to prohibit the use of unstipulated polygraph examinations in
Iowa courts, Conner, 241 N.W.2d at 459–60, our holding in Conner does
not automatically extend to all prison hearings because it was not based
on due process grounds. To the extent Bradley v. State, 473 N.W.2d
224, 226 (Iowa Ct. App. 1991), suggests otherwise, it is overruled. 7
Prison classification hearings take place “in a closed, tightly
controlled environment” and we do not automatically apply all procedural
rules “to the very different situation” of prison hearings. Wolff, 418 U.S.
at 560–61, 94 S. Ct. at 2977, 41 L. Ed. 2d at 953–54. In Lenea v. Lane,
882 F.2d 1171 (7th Cir. 1989), the Seventh Circuit declined to hold that
admission of polygraph examinations in disciplinary hearings necessarily
violates an inmate’s due process rights. 882 F.2d at 1174. The court
explained that due process rights are circumscribed by institutional
needs and objectives in the prison context and “polygraphs may
corroborate vital testimony or other evidence” or even provide exculpatory evidence. Id.; see also Varnson v. Satran, 368 N.W.2d 533,
538 (N.D. 1985) (“[W]e are not persuaded that due process under the
Fourteenth Amendment or our State Constitution forbids, under all
circumstances, a prison disciplinary committee or parole board from
considering the results of a polygraph examination.”).
7We do not address or overrule the specific holding of Bradley, which prohibited
a prison disciplinary committee from relying on an inmate’s refusal to submit to a polygraph examination. 473 N.W.2d at 226. Nor do we address the potential implications of the right against self-incrimination. 21
Although due process does not prohibit use of polygraph
examinations in all contexts, there may be circumstances where use of a
polygraph examination would likely violate a prisoner’s due process
rights. In Lenea, the Seventh Circuit agreed with the district court’s
determination that an inmate’s guilt in a disciplinary proceeding could
not be determined based solely on a failed polygraph examination and
that the polygraph examination was relevant only on the question of the
inmate’s credibility. Lenea, 882 F.2d at 1176. The court also noted that
in any particular case, “the threshold question . . . will be the exam’s
reliability, which necessarily will entail a detailed inquiry into polygraph
examinations.” Id. (citation omitted). Similarly, in Varnson, the North
Dakota Supreme Court held admission of the particular polygraph
results did not violate due process, but emphasized that the examination
was administered voluntarily, the inmate had indicated he would rely on
the polygraph results, and the factfinder had relied on other evidence of
the inmate’s guilt. Varnson, 368 N.W.2d at 538 (stating that if prison
officials “were basing disciplinary decisions or parole-release
determinations solely on the results of polygraph examinations, we would
have serious reservations about the propriety of such a procedure”).
We therefore leave the decision to admit polygraph evidence at a
classification hearing to the discretion of IDOC. As discussed above, this
discretion is bounded by the limits of due process. There may be
relevant factors which would influence our decision regarding the
constitutionality of IDOC’s reliance on a polygraph in a particular case,
including reliability, qualifications of the polygraph administrator, the
particular purpose for which the polygraph is admitted, and whether the
inmate submitted to the polygraph voluntarily. IDOC likely cannot 22
replace procedural protections with a polygraph examination or rely
solely on a polygraph examination without violating due process.
IV. Conclusion.
IDOC’s requirement that Dykstra participate in SOTP and the
determination that his ability to accrue earned time be stopped under
Iowa Code section 903A.2 did not violate the Ex Post Facto Clause and
was statutorily authorized. Dykstra was, however, deprived of due
process because the IDOC relied on unadmitted factual allegations in
reaching the decision to require Dykstra’s participation in SOTP but did
not provide the necessary procedural protections of Wolff v. McDonnell.
Because IDOC violated Dykstra’s due process rights, we remand to the
district court for consideration of the appropriate remedy.
WRIT SUSTAINED.