IN THE SUPREME COURT OF IOWA No. 07–1456
Filed June 11, 2010
RORY REILLY,
Plaintiff,
vs.
IOWA DISTRICT COURT FOR HENRY COUNTY,
Defendant.
Certiorari from the Iowa District Court for Henry County, John G.
Linn, Judge.
Inmate challenges inability to accrue earned-time credits based on
removal from sex offender treatment program because of a failed
polygraph examination. 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.
Rory Reilly filed a postconviction action challenging the Iowa
Department of Corrections’ (IDOC) revocation of his ability to accrue
earned time because he was removed from a sex offender treatment
program (SOTP). While serving his sentence for a lascivious acts
conviction, IDOC required Reilly to participate in SOTP. While
participating in the program, Reilly failed a polygraph examination and
was removed from SOTP, leading to a determination that he was
ineligible to accrue further earned time. We hold IDOC’s removal of
Reilly from SOTP violated his due process rights. We also hold IDOC is
not prohibited from using polygraph examinations within SOTP. We
sustain the writ of certiorari.
I. Background Facts and Proceedings.
Rory Reilly was convicted of lascivious acts with a child under Iowa
Code section 709.8 (1999) based on an offense that took place in March,
2001. He began serving his sentence in December, 2005. IDOC
determined Reilly was required to participate in SOTP. As part of the
treatment, IDOC administered a specific issue polygraph examination to
Reilly because Reilly’s account of his sexual offense differed in some way
from his victim’s account. Reilly failed the polygraph examination, and
IDOC removed him from SOTP because of the failed polygraph test.
Once removed from SOTP, IDOC stopped Reilly’s ability to earn
time to reduce his sentence pursuant to Iowa Code section 903A.2
(Supp. 2005). Prior to his removal, Reilly’s tentative discharge date was
March 20, 2008. After his removal, Reilly’s tentative discharge date was
June 13, 2010. Reilly was later reinstated into SOTP, and his discharge 3
date was changed to May 27, 2008. Therefore, his temporary removal
from SOTP added approximately two months to Reilly’s sentence. 1
Reilly appealed his removal from SOTP to the deputy warden, and
his appeal was denied. He then filed a postconviction petition under
Iowa Code section 822.2(1)(f), 2 or in the alternative section 822.2(1)(e) or
Iowa Code chapter 17A. The district court determined review was
appropriate under Iowa Code section 822.2(1)(f) and denied Reilly’s
petition on the merits. Reilly appealed.
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 issues of statutory construction for errors at law.” In
re A.W., 741 N.W.2d 793, 806 (Iowa 2007). However, Reilly’s claims
alleging violations of his constitutional rights 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.
As set forth in the companion case, Dykstra v. Iowa District Court,
___ N.W.2d ___, ___ (Iowa 2010), section 903A.2, which establishes
1It is unclear from the record whether Reilly was discharged on May 27, 2008
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. 2The 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. 4
inmates’ ability to earn time, was amended in 2000, effective January 1,
2001, and in 2005. IDOC applied the 2005 amendment to Reilly, which
states:
[A]n 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). IDOC therefore stopped Reilly’s
ability to accrue earned time when he was removed from SOTP.
Reilly raises four arguments in his postconviction petition. First, Reilly argues IDOC’s application of the 2005 amendment to him violated
the Ex Post Facto Clauses of the Iowa and United States Constitutions
because he committed the crime prior to the effective date of the 2005
amendment. Second, Reilly argues the 2005 amendment cannot be read
retroactively to apply to his sentence. Third, Reilly argues his due
process rights were violated. Finally, Reilly argues it was improper for
IDOC to remove him from SOTP and also stop his ability to earn time
based on a failed polygraph examination.
A. Ex Post Facto Clause. This court has previously held that
IDOC’s application of amended Iowa Code section 903A.2 to inmates
whose crimes occurred prior to January 1, 2001, the effective date of the
2001 amendment to section 903A.2, violates the Ex Post Facto Clause.
State v. Iowa Dist. Ct., 759 N.W.2d 793, 802 (Iowa 2009). This court held
in Holm v. Iowa District Court, 767 N.W.2d 409, 416 (Iowa 2009), 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 because the
2005 amendment was a clarification of the 2001 amendment. Because
Reilly was convicted for acts that took place in 2001, IDOC’s application 5
of the 2005 amendment to Reilly did not violate the Ex Post Facto
Clause.
B. Retroactivity. Reilly 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 reject this argument, as we did
in Holm, because the 2005 amendment did not change the existing law,
but merely clarified existing law. See Holm, 767 N.W.2d at 416 n.3.
Therefore, there is no basis to claim the 2005 amendment is applied
retroactively to persons whose crimes were committed after the 2001
amendment.
C. Due Process. Reilly argues he was denied due process under
the Iowa and United States Constitutions when he was removed from
SOTP and his ability to accrue earned time was stopped. 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 Reilly 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.
Reilly was removed from SOTP because his account of his sexual
crime differed from that of the victim, and he failed a polygraph 6
examination on the specifics of that crime. Reilly contends that because
he has a liberty interest in his ability to accrue earned time, see Holm,
767 N.W.2d at 417–18, the decision to remove him from SOTP and
therefore stop his ability to earn time requires greater protections than
those afforded by IDOC. Specifically, Reilly contends that IDOC must
comply with the requirements set forth by the United States Supreme
Court in Wolff v. McDonnell, 418 U.S. 539, 563–71, 94 S. Ct. 2963, 2978–
82, 41 L. Ed. 2d 935, 955–59 (1974): advance written notice, a written
statement of the reasons relied upon for his removal, and a hearing
before a neutral fact finder.
“[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
Bd. of Supervisors, 638 N.W.2d 682, 691 (Iowa 2002)). The 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).
We previously recognized a liberty interest in an inmate’s ability to
accrue earned time. See Holm, 767 N.W.2d at 417–18. “It is important .
. . to precisely identify the right that [Reilly] asserts as the basis for his
liberty interest.” Sanford v. Manternach, 601 N.W.2d 360, 366 (Iowa
1999). Holm challenged IDOC’s initial classification decision that he be
required to participate in SOTP. As we explained in Dykstra, this
decision affects a liberty interest because the classification as a sex
offender implicates the inmate’s ability to accrue earned time and 7
imposes mandatory behavior modification treatment. Dykstra, ___
N.W.2d at ___. In contrast, Reilly’s due process concerns surround IDOC
actions after he had been classified as required to participate in SOTP.
Reilly challenges the procedures used to remove him from SOTP.
Although the context of IDOC’s action towards Reilly differs from the
classification decisions regarding Holm and Dykstra, the loss is
essentially the same—ineligibility to accrue earned time. Upon Reilly’s
removal from SOTP, his ability to accrue earned time was stopped
pursuant to the requirement of Iowa Code section 903A.2(1)(a).
Therefore, removal inevitably affected the duration of Reilly’s sentence.
See Wilson v. Jones, 430 F.3d 1113, 1120–21 (10th Cir. 2005) (finding a
liberty interest where reduction in credit earning class was a statutory
requirement of a misconduct conviction and therefore “inevitably affected
the duration of [the inmate’s] sentence” (quoting Sandin, 515 U.S. at 487,
115 S. Ct. at 2293, 132 L. Ed. 2d at 431)). We hold Reilly has a liberty
interest in his ability to earn time as implicated by his removal from
SOTP.
When an inmate’s liberty interest is affected, the court must
analyze what procedures are necessary to protect that right. While some
circumstances, such as the initial classification of prisoners at issue in
Dykstra, may require that the protections identified in Wolff be
implemented, not all IDOC decisions which implicate a liberty interest
require such protections. The United States Supreme Court has
recognized that
[b]ecause of the broad spectrum of concerns to which the term [due process] must apply, flexibility is necessary to gear the process to the particular need; the quantum and quality of the process due in a particular situation depend upon the need to serve the purpose of minimizing the risk of error. 8
Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 13, 99
S. Ct. 2100, 2106, 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.
The Greenholtz court held that procedures employed by the
Nebraska parole board for initial parole determinations did not violate
due process even though they did not meet the requirements of Wolff.3
Id. at 14–16, 99 S. Ct. at 2107–08, 60 L. Ed. 2d at 680–81. The
Greenholtz court held the following procedures employed by Nebraska
satisfied due process for the initial parole classification: (1) the inmate
received advance notice of the parole hearing, thereby allowing time to
secure letters or statements; (2) the inmate was permitted to appear
before the parole board and present letters or statements on his own
behalf; and (3) the parole board communicates the reason for denial of
parole to the inmate as a guide for future behavior. Id; see also Hewitt v.
Helms, 459 U.S. 460, 473–76, 103 S. Ct. 864, 872–74, 74 L. Ed. 2d 675,
689–91 (1983) (holding the level of process due for inmates being
considered for transfer to administrative segregation requires some
notice of charges and an opportunity to be heard), abrogated on other grounds by Sandin, 515 U.S. 480–84, 115 S. Ct. at 2298–2300, 132 L.
Generally, to determine what process is due, this court analyzes:
“ ‘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
3The United States Supreme Court has noted that “[a]lthough Sandin abrogated Greenholtz’s and Hewitt’s methodology for establishing the liberty interest, these cases remain instructive for their discussion of the appropriate level of procedural safeguards.” Wilkinson v. Austin, 545 U.S. 209, 229, 125 S. Ct. 2384, 2397, 162 L. Ed. 2d 174, 194 (2005). 9 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.’ ”
Seering, 701 N.W.2d at 665 (quoting Bowers v. Polk County Bd. of
Supervisors, 638 N.W.2d 682, 691 (Iowa 2002)); accord Holm, 767
N.W.2d at 417. As one federal district court explained, within the prison context “the court must evaluate the competing institutional and
individual interests, with due regard to the broad discretion that is
necessarily reposed in prison administrators and to the ‘nature’ of the
liberty interest at issue.” Lavine v. Wright, 423 F. Supp. 357, 362 (D.
Utah 1976)
Although removal from SOTP implicates a liberty interest, it is a
lesser interest than the initial classification decision requiring an inmate
to participate in SOTP. The removal decision is a discretionary decision
by prison officials based on any number of considerations whereas the
initial inmate classification addressed in Dykstra amounts to a specific
factual determination that the inmate has engaged in sexually
inappropriate behavior. The United States Supreme Court has identified
attempts to remove an inmate from free society based on a “specific
parole violation” or a decision to revoke good-time credits for “specific,
serious misbehavior” as situations where “more formal, adversary-type
procedures might be useful.” Wilkinson v. Austin, 545 U.S. 209, 228,
125 S. Ct. 2384, 2397, 162 L. Ed. 2d 174, 193 (2005). Where an inmate
has not been convicted of a sex offense or admitted to facts of a sexual
nature, the necessity for specific procedural protections in SOTP
classification is based on the search for specific facts. Cf. Greenholtz,
442 U.S. at 14, 99 S. Ct. at 2107, 60 L. Ed. 2d at 679 (“Procedures 10
designed to elicit specific facts, such as those required in . . . Wolff, are
not necessarily appropriate to a Nebraska parole decision.”)
With regard to a decision to remove an inmate from SOTP, Iowa
Code section 903A.4 grants IDOC the authority to “establish rules as to
what constitutes ‘satisfactory participation’ for purposes of a reduction of
sentence under section 903A.2, for programs that are available or
unavailable.” The discretion to determine what constitutes “satisfactory
participation” in a treatment program necessarily includes the discretion
to remove those who do not satisfactorily participate. Removal from
SOTP occurs after an inmate’s initial classification and is based on an
assessment of the inmate’s participation by the professionals
administering the SOTP program. This determination is more closely
aligned with the parole release decisions addressed in Greenholtz, where
the decisions are affected by “analysis of psychological factors combined
with fact evaluation guided by the practical experience of the . . .
decisionmakers.” 442 U.S. at 13, 99 S. Ct. at 2107, 60 L. Ed. 2d at 679.
Where, as here, “the inquiry draws more on the experience of prison
administrators . . . the informal, nonadversary procedures set forth in
Greenholtz and Hewitt provide the appropriate model.” Wilkinson, 545
U.S. at 228–29, 125 S. Ct. at 2397, 162 L. Ed. 2d at 193–94; see also
Lavine, 423 F. Supp. at 363 (holding oral notice, opportunity to present
evidence, and oral advisement of the decision satisfied due process where
“prison officials have the discretion to transfer prisoners for any number
of reasons” and their “discretion is not limited to instances of serious
misconduct”).
The exercise of IDOC’s discretion is evident in the factual
circumstances surrounding Reilly’s removal. After removing Reilly from
SOTP, IDOC employees worked with Reilly to remedy the problem and 11
Reilly was readmitted to SOTP. Reilly’s removal could have affected the
duration of his prison sentence by over two years, but only affected it by
approximately two months because he was shortly readmitted to SOTP.
Cf. Montgomery v. Anderson, 262 F.3d 641, 645–46 (7th Cir. 2001)
(noting Wolff procedures are not necessarily required in circumstances
where “the stakes and correspondingly the required procedures are
diminished.”)
The full panoply of protections that would accompany a formal
hearing are unnecessary for removal from SOTP because of the nature of
the liberty interest at stake, the discretion granted to IDOC employees,
and the professional judgment behind any removal decision. Regardless,
the minimum protections of due process, noted in Greenholtz, must be
met. We hold IDOC must provide (1) advance notice allowing the inmate
time to secure documents or prepare a statement, (2) an opportunity to
present documentary evidence, letters, or make statements before the
decision-maker, and (3) an explanation for the reasons behind any
removal decision. Additionally, although not contested in Greenholtz, it
is a fundamental element of due process that the decisionmakers be
“sufficiently impartial.” See Wolff, 418 U.S. at 570–71, 94 S. Ct. at 2982,
41 L. Ed. 2d at 959.
The process employed by IDOC to remove Reilly from SOTP failed
to comply with three of the four procedures we hold due process
requires. First, Reilly was not given advance notice that he would have
an opportunity to address the removal decision before the
decisionmakers. Second, the record demonstrates that during the
meeting at which Reilly was presented with a refusal form explaining the
consequences of removal from SOTP, which he refused to sign, Reilly was
not allowed to present documentary evidence or make a statement to the 12
decisionmakers on his own behalf. Third, although IDOC notes indicate
Reilly was removed from SOTP because he failed a polygraph, had no
new admissions, and was uncooperative, Reilly’s handwritten appeal
suggests IDOC did not fully explain these reasons for his removal and
would only tell him he failed a polygraph examination. Reilly was,
however, eventually informed of the reasons for his removal from SOTP
and IDOC worked to help Reilly adjust those problems that led to his
removal, allowing Reilly to successfully rejoin SOTP within four months.
IDOC’s work with Reilly after his removal does not cure the initial failure
to provide him with the reasons for his removal.
When Reilly was informed of the decision to remove him from
SOTP, he met with three prison officials, including the treatment
director. Reilly complains that these officials were not “sufficiently
impartial.” We have explained within the prison disciplinary context that
“[t]he independence required of the hearing officer is that the officer not
be 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). There is no indication in the record that
any of the officials who met with Reilly also administered the polygraph
examination or were involved in any relevant incidents with Reilly.
Based on the record before the court, the professionals administering
SOTP are sufficiently impartial. As in Wolff, there is no evidence in the
record that these three individuals “present[] such a hazard of arbitrary
decisionmaking that it should be held violative of due process of law.”
418 U.S. at 571, 94 S. Ct. at 2982, 41 L. Ed. 2d at 959–60. Further,
Reilly is provided the opportunity to appeal the decision to the deputy
warden, who was not at the original hearing. 13
In summary, IDOC complied with only one of the four basic
requirements—an impartial decisionmaker—and therefore, Reilly’s due
process rights were violated. We remand to the district court for
determination of what, if any, remedy is required.
D. Polygraph Examination. IDOC required Reilly to take a
specific issue polygraph examination as part of the SOTP because Reilly’s
account of his crime differed from his victim’s account. After Reilly failed
the polygraph examination, IDOC removed him from the SOTP and
stopped his ability to earn additional time off his sentence. IDOC based
this decision on the polygraph, a lack of “new admissions” and on Reilly’s
“uncooperative” behavior. Reilly argues it was improper for IDOC to rely
on a polygraph examination to make the removal decision which led to
Reilly’s ineligibility to earn time. Reilly cites to this court’s general
distrust of polygraph examinations, see State v. Conner, 241 N.W.2d 447,
458–59 (Iowa 1976), their inadmissibility in court unless stipulated to by
both parties, id., and an Iowa court of appeals decision holding that
unstipulated polygraph examinations could not be relied upon in IDOC
disciplinary proceedings, see Bradley v. State, 473 N.W.2d 224, 226
(Iowa Ct. App. 1991).
As noted above, section 903A.4 authorizes IDOC to develop policy
and procedural rules to implement section 903A.2 and determine what
constitutes “satisfactory participation” in a treatment program. It is not
improper for IDOC to consider polygraph examinations administered as
part of treatment to make decisions regarding whether an inmate’s
participation was satisfactory and whether the inmate should be
removed. Although unstipulated polygraph examinations are not
typically admissible in court proceedings and the court of appeals has
held they are inadmissible in IDOC disciplinary proceedings, IDOC used 14
the polygraph examination here for a different purpose. The examination
was not used for general discipline or adjudicative fact-finding but was
instead used as part of a treatment program. We have previously noted
the use of polygraphs in sex offender treatment programs. Swanson v.
Civil Commitment Unit for Sex Offenders (CCUSO), 737 N.W.2d 300, 303
(Iowa 2007). Other jurisdictions have held use of polygraph
examinations permissible to serve therapeutic values. See United States
v. Johnson, 446 F.3d 272, 278 (2d Cir. 2006) (“The polygraph can help
penetrate deception and encourage an offender to confront his own
motivations and behaviors. These outcomes further sentencing
objectives such as rehabilitation and deterrence, with reasonably small
incremental deprivations of liberty.”); United States v. Dotson, 324 F.3d
256, 261 (4th Cir. 2003) (“[E]videntiary cases do not govern our
evaluation of the use of polygraphs in connection with the treatment of
an offender. The use of a polygraph test here is not aimed at gathering
evidence to inculpate or exculpate [the offender]. Rather, the test is
contemplated as a potential treatment tool . . . .”).
We held in Dykstra, that use of a polygraph as a substitute for
procedural protections or as the sole evidence for deprivation of a liberty
interest may implicate constitutional concerns. Dykstra, ___ N.W.2d at
___. However, decisions or hearings regarding removal from SOTP may
consider polygraph examinations as a factor influencing the removal
decision because polygraph examinations serve a rehabilitative purpose
within treatment.
IV. Conclusion.
IDOC’s application of Iowa Code section 903A.2 to Reilly did not
violate the ex post facto clause. The procedures employed by IDOC to
remove Reilly from SOTP did violate his procedural due process rights, 15
although IDOC is entitled to consider polygraph examinations in making
SOTP removal decisions. We remand to the district court for
consideration of the appropriate remedy.
WRIT SUSTAINED.