IN THE SUPREME COURT OF IOWA No. 07–1226
Filed January 23, 2009
STATE OF IOWA,
Plaintiff,
vs.
IOWA DISTRICT COURT FOR HENRY COUNTY,
Defendant.
Certiorari to the Iowa District Court for Henry County, John G.
Linn, Judge.
Original certiorari action brought by State to challenge legality of
district court’s decision in postconviction relief proceeding, holding
application of Iowa Code section 903A.2 (2001) to inmate violated
Ex Post Facto Clause. WRIT ANNULLED.
Thomas J. Miller, Attorney General, and Mark Hunacek and
Forrest Guddall, Assistant Attorneys General, for plaintiff.
Philip B. Mears of Mears Law Office, Iowa City, for defendant. 2
TERNUS, Chief Justice.
Inmate Denny Propp brought a postconviction relief action
challenging a determination by the department of corrections (DOC) that
he was ineligible to receive earned-time credits after he was removed
from a sex offender treatment program for misconduct. See generally
Iowa Code § 903A.2 (2005) (providing for reduction in sentence for good
conduct and satisfactory participation in specified programs). Propp
claimed this application of the governing statute, as amended in 2001
and 2005, violated the Ex Post Facto Clause because the offense for
which Propp was incarcerated was committed prior to the amendments.
The district court held the DOC’s application of amended section 903A.2
to Propp violated the Ex Post Facto Clauses of the United States and
Iowa Constitutions. The State brought this original certiorari action to
challenge the legality of the district court’s decision. Because we
conclude the district court’s ruling was correct, we annul the writ of
certiorari.
I. Background Facts and Proceedings.
Propp is currently incarcerated at the Mount Pleasant Correctional
Facility on a twenty-five-year sentence for his 1997 conviction of third-
degree sexual abuse.1 At the time of his sentencing, section 903A.2
allowed Propp to reduce his sentence through good-time credits. See
Iowa Code § 903A.2 (Supp. 1997).2 Pursuant to the 1997 statute, Propp
1The record does not reveal the date of Propp’s offense that resulted in this sentence. 2In pertinent part, the 1997 version of section 903A.2 provided: 903A.2 Good time. 1. Each inmate committed to the custody of the director of the department of corrections is eligible for a reduction of sentence for good behavior in the manner provided in this section. For purposes of calculating the amount of time by which an inmate’s sentence may be 3
was 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 a variety of activities and
programs, including treatment programs established by the director of
the DOC. Id. The director of the DOC was authorized to establish rules
specifying what constituted “satisfactory participation” in employment,
treatment, and other programs for purposes of sentence reduction. Id.
§ 903A.4 (1997).
In 2000, while Propp was still serving his sentence, the legislature
amended section 903A.2. 2000 Iowa Acts ch. 1173, § 4. Under the new
statute, “[a]n inmate . . . serving a category “A” sentence is 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). Thus,
effective January 1, 2001, inmates like Propp with category “A” sentences
were eligible to earn a reduction in their sentence only by demonstrating
reduced, inmates shall be grouped into the following two sentencing categories: a. . . . An inmate of an institution under the control of the department of corrections who is serving a category “A” sentence is eligible for a reduction of sentence equal to one day for each day of good conduct while committed to one of the department’s institutions. In addition, each inmate who is serving a category “A” sentence is eligible for an additional reduction of up to five days per month if the inmate participates satisfactorily in any of the following activities: (1) Employment in the institution. (2) Iowa state industries. (3) An employment program established by the director. (4) A treatment program established by the director. (5) An inmate educational program approved by the director. Iowa Code § 903A.2 (Supp. 1997) (emphasis added). Propp had a category “A” sentence. 4
good conduct and satisfactorily participating in any program identified by
the director. Id. In other words, good conduct alone was no longer
enough to qualify an inmate for a reduction in sentence under amended
section 903A.2; earned-time credits, as they were now labeled, were also
contingent on satisfactory participation in programming.
In 2005, the statute was amended once again, this time with
respect to sex offenders. See 2005 Iowa Acts ch. 158, § 32. This
amendment, effective July 1, 2005, added the following provision to
section 903A.2: “However, 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.”3 Iowa Code § 903A.2
(Supp. 2005). To implement this legislation, the DOC adopted a policy
providing that inmates required to participate in sex offender treatment
programs (SOTP) who refused treatment, were removed from treatment,
or failed program completion criteria would not be eligible for earned-
time credits.
Based upon his conviction for third-degree sexual abuse, Propp
was required to participate in the SOTP. Propp began the treatment program, but was removed from the SOTP for misconduct in April 2006.
Although Propp did not lose credits he had already earned, he was
deemed ineligible to receive further earned-time credits until he was
reinstated to the program. Prior to his removal from the SOTP, his
tentative date of discharge was January 27, 2009; after his removal, his
3The practice of the DOC is to allow an inmate required to participate in a sex
offender treatment program to earn credits while awaiting placement in the program rather than being deemed ineligible until completion of the program. This interpretation of the statute is not challenged in this case. 5
new tentative discharge date was June 12, 2012. In October 2006,
Propp was reinstated to the SOTP, resulting in a new tentative date for
discharge of May 20, 2009. Thus, Propp’s time in prison was extended
by approximately four months due to his temporary ineligibility to
accumulate earned-time credits.
After exhausting his administrative remedies, Propp filed a
postconviction relief action, claiming his loss of earned-time eligibility
violated the Ex Post Facto and Due Process Clauses of the United States
and Iowa Constitutions.4 Propp requested that his original tentative
discharge date of January 27, 2009, be reinstated. After hearing, the
district court ruled application of the amended version of section 903A.2
to Propp violated the prohibition against ex post facto laws. The court
ordered the DOC to reinstate Propp’s original tentative discharge date.
The court rejected Propp’s contention that his due process rights had
been violated.
The State then filed this certiorari action. Because we agree with
the well-reasoned decision of the district court, we annul the writ of
II. Scope of Review.
The issue in this case involves a constitutional provision, the
Ex Post Facto Clause. Therefore, “we review the case de novo in light of
4Propp does not claim that requiring him to participate in the SOTP is itself a violation of the Ex Post Facto Clause. Cf. Schreiber v. State, 666 N.W.2d 127, 130 (Iowa 2003) (holding statute requiring inmates to submit blood specimens for DNA profiling did not violate the prohibition against ex post facto laws). Nor does he claim he could not be disciplined in some manner for unsatisfactory participation. Cf. id. (holding imposition of discipline for refusal to supply blood specimen did not violate Ex Post Facto Clause). Propp only claims his unsatisfactory performance cannot, consistent with the Constitution, lengthen his sentence by reducing his ability to earn credits that he could have earned under the statutory scheme in effect at the time he committed his offense. This claim was not asserted in Schreiber. 6
the totality of the circumstances and record upon which the
postconviction court ruling was made.” Rushing v. State, 382 N.W.2d
141, 143 (Iowa 1986). Because neither party suggests a basis to
distinguish the Federal Ex Post Facto Clause from the Iowa ex post facto
clause, we will limit our discussion to the federal provision with the
understanding that our analysis applies equally to the state provision.
III. Governing Legal Principles.
The United States Constitution provides: “No State shall . . . pass
any . . . ex post facto Law . . . .” U.S. Const. art. I, § 10. For
constitutional purposes, an ex post facto law is
any statute which 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 crime of any defense available according to law at the time when the act was committed . . . .
Beazell v. Ohio, 269 U.S. 167, 169, 46 S. Ct. 68, 68, 70 L. Ed. 216, 217
(1925); accord Schreiber v. State, 666 N.W.2d 127, 129 (Iowa 2003). It is
the second type of law––one that makes the punishment for a crime more
burdensome after its commitment––that is of concern here.
The purpose of the prohibition against ex post facto laws is “to
assure legislative Acts give fair warning of their effect and permit
individuals to rely on their meaning until explicitly changed.” Weaver v.
Graham, 450 U.S. 24, 28–29, 101 S. Ct. 960, 964, 67 L. Ed. 2d 17, 23
(1981). This prohibition also “restricts governmental power by
restraining arbitrary and potentially vindictive legislation.” Id. at 29, 101
S. Ct. at 964, 67 L. Ed. 2d at 23. In Weaver, the Court stated that “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 disadvantage the offender affected by 7
it.” Id. An offender is disadvantaged when the law “makes more onerous
the punishment for crimes committed before its enactment.”5 Id. at 36,
101 S. Ct. at 968, 67 L. Ed. 2d at 27.
In Weaver, the issue was “whether a Florida statute altering the
availability of . . . ‘gain time for good conduct’ [was] unconstitutional as
an ex post facto law when applied to [Weaver], whose crime was
committed before the statute’s enactment.” Id. at 25, 101 S. Ct. at 962,
67 L. Ed. 2d at 20–21. The state statute in place at the time of Weaver’s
offense and sentencing provided a formula for deducting gain-time
credits from the sentences of prisoners who had no disciplinary
infractions and who satisfactorily performed “ ‘the work, duties and tasks
assigned to him.’ ” Id. at 26, 101 S. Ct. at 962–63, 67 L. Ed. 2d at 21
(quoting Fla. Stat. § 944.27(1) (1975)). Gain-time credits were calculated
every month and at an increasing rate: five days per month for the first
two years of sentence, ten days per month for the third and fourth years,
and fifteen days per month for the fifth and subsequent years of
sentence. Id. at 26, 101 S. Ct. at 963, 67 L. Ed. 2d at 21.
In 1978, after Weaver’s crime and sentencing, the Florida
legislature enacted a new formula for monthly gain-time credits: three
days per month for the first two years, six days per month for the third
5Subsequent to its decision in Weaver, the Court clarified that not any disadvantage to the offender satisfies the second element of the ex post facto analysis: After Collins [v. Youngblood, 497 U.S. 37, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990)], the focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of “disadvantage,” nor . . . on whether an amendment affects a prisoner’s “opportunity to take advantage of provisions for early release,” . . . but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable. Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 506 n.3, 115 S. Ct. 1597, 1602 n.3, 131 L. Ed. 2d 588, 595 n.3 (1995). 8
and fourth years, and nine days per month for the fifth and subsequent
years. Id. at 26, 101 S. Ct. at 963, 67 L. Ed. 2d at 21. Weaver objected
to the application of the new formula to him, claiming the reduced
accumulation of monthly gain-time credits under the new statute
extended his time in prison by over two years in violation of the
prohibition against ex post facto laws. Id. at 27, 101 S. Ct. at 963, 67
L. Ed. 2d at 22.
In determining whether the new statute was retrospective, the
Court stated “[t]he critical question is whether the law changes the legal
consequences of acts completed before its effective date.” Id. at 31, 101
S. Ct. at 965, 67 L. Ed. 2d at 24. For purposes of Weaver’s claim, the
Court recast this question to ask whether the Florida statute “applies to
prisoners convicted for acts committed before the provision’s effective
date.” Id. Because the State conceded it was using the new statute to
calculate gain time available to Weaver, whose crime was committed
before the new statute was enacted, the Court concluded the law
changed the legal consequences attached to Weaver’s crime. Id. The
Court rejected the State’s argument the statute was not retrospective
because gain time was not part of Weaver’s original sentence. Id. at 31–
32, 101 S. Ct. at 965–66, 67 L. Ed. 2d at 24–25. Regardless of whether
gain time is technically part of a sentence, the Court noted, “it is in fact
one determinant of [Weaver’s] prison term,” and therefore, “his effective
sentence is altered once this determinant is changed.” Id. at 32, 101
S. Ct. at 966, 67 L. Ed. 2d at 25. The Court pointed out “a prisoner’s
eligibility for reduced imprisonment is a significant factor entering into
both the defendant’s decision to plea bargain and the judge’s calculation
of the sentence to be imposed.” Id. See generally Meier v. State, 337
N.W.2d 204, 206–07 (Iowa 1983) (reversing defendant’s conviction based 9
on counsel’s failure to advise defendant prior to guilty plea to reduced
charge that sentence for charged offense could be shortened through
good-conduct time). The Court concluded the statute “substantially
alters the consequences attached to a crime already completed,” and
therefore was a retrospective law. Weaver, 450 U.S. at 33, 101 S. Ct. at
966, 67 L. Ed. 2d at 25.
The Court then considered whether the statute made “more
onerous the punishment for crimes committed before its enactment.” Id.
at 33–36, 101 S. Ct. at 966–68, 67 L. Ed. 2d at 25–27. The Court
observed:
On its face, the 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.
Id. at 33, 101 S. Ct. at 967, 67 L. Ed. 2d at 26. The Court concluded,
because “the new provision constricts the inmate’s opportunity to earn
early release,” it violates the prohibition against ex post facto laws. Id. at
35–36, 101 S. Ct. at 968, 67 L. Ed. 2d at 27.
The Weaver case is helpfully contrasted with the Court’s decision
in California Department of Corrections v. Morales, 514 U.S. 499, 115
S. Ct. 1597, 131 L. Ed. 2d 588 (1995). In the latter case, an inmate,
Morales, claimed a statute changing parole hearing procedures violated
the Ex Post Facto Clause. Morales, 514 U.S. at 503–04, 115 S. Ct. at
1600, 131 L. Ed. 2d at 593. At the time of Morales’s crime and
sentencing, inmates eligible for parole were entitled to annual hearings
before the board of parole on their suitability for release. Id. at 503, 115
S. Ct. at 1600, 131 L. Ed. 2d at 593. After his sentencing, however, the
statute was changed to authorize the board to defer hearings after the 10
initial one for a period of up to three years under specified conditions.
Id. Morales had a hearing before the board and was found unsuitable for
parole. Id. The board then deferred a subsequent hearing for three years
pursuant to the new statute. Id.
Morales claimed the new law effectively increased his sentence in
violation of the Ex Post Facto Clause. Id. at 504, 115 S. Ct. at 1600, 131
L. Ed. 2d at 593. The Court disagreed, distinguishing Weaver and other
similar cases. It noted these cases “held that the Ex Post Facto Clause
forbids the States to enhance the measure of punishment by altering the
substantive ‘formula’ used to calculate the applicable sentencing range.”
Id. at 505, 115 S. Ct. at 1601, 131 L. Ed. 2d at 594. In Morales, by
contrast, the statute had no effect on the standards for fixing a prisoner’s
eligibility for parole and did not change the substantive formula for
securing any reductions in sentence. Id. at 507, 115 S. Ct. at 1602, 131
L. Ed. 2d at 595.
In a subsequent case, Lynce v. Mathis, 519 U.S. 433, 117 S. Ct.
891, 137 L. Ed. 2d 63 (1997), the Court considered whether a statute
that retroactively canceled an inmate’s provisional early release credits
violated the Ex Post Facto Clause. 519 U.S. at 436, 117 S. Ct. at 893,
137 L. Ed. 2d at 69. Relying on its decision in Weaver, the Court
determined the application of the statute, which had been enacted after
the inmate was sentenced, violated the prohibition against ex post facto
laws. Id. at 442–45, 117 S. Ct. at 896–98, 137 L. Ed. 2d at 73–75. The
Court distinguished Morales, noting that in Morales it was speculative
whether the change in parole hearing policy would have any effect on any
prisoner’s actual term of confinement. Id. at 443–44, 117 S. Ct. at 897,
137 L. Ed. 2d at 73–74. The Court concluded it was unnecessary to 11
speculate in the case before it whether the new statute had a detrimental
effect on the inmate:
Unlike the California amendment at issue in Morales, the [amended] statute [here] did more than simply remove a mechanism that created an opportunity for early release for a class of prisoners whose release was unlikely; rather, it made ineligible for early release a class of prisoners who were previously eligible––including some like petitioner, who had actually been released.
Id. at 447, 117 S. Ct. at 898, 137 L. Ed. 2d at 75–76. We turn now to the
case before us.
IV. Discussion.
A. Retrospective Application. Our first task in determining
whether amended section 903A.2 violates the Ex Post Facto Clause is to
ascertain whether the law has retrospective effect. In the context of the
present case, the question is whether the amended statute applies to
prisoners convicted for offenses committed before the provision’s effective
date. See Weaver, 450 U.S. at 31, 101 S. Ct. at 965, 67 L. Ed. 2d at 24.
Clearly, it does. The DOC has implemented a policy making any inmate
required to participate in the SOTP who refuses treatment, is removed
from treatment, or fails to meet program completion criteria ineligible for
earned time. Therefore, the amended statute applies to prisoners such
as Propp who were convicted for an offense committed before the
amendment’s effective date. The amendment is, therefore, retrospective.
See Stansbury v. Hannigan, 960 P.2d 227, 235–36 (Kan. 1998) (holding
similar statutory amendment was retrospective when applied to inmate
who committed his crime before amendment’s enactment).
The State argues this conclusion is inconsistent with the purpose
of the ex post facto prohibition, which is to give fair warning of the effect
of statutory provisions and permit individuals to rely on those provisions 12
until they are changed. See Weaver, 450 U.S. at 28–29, 101 S. Ct. at
964, 67 L. Ed. 2d at 23. It argues, “Propp was on notice since July 1,
2005 that he had to stay in the SOTP to collect his good time credits.”
But the focus of the State’s analysis is misplaced. The question is not
whether Propp was on notice when he committed the misconduct that
resulted in his dismissal from the SOTP that he would lose his eligibility
to earn a reduction in his sentence. The question, as the Court made
clear in Weaver, is whether Propp knew when he committed his crime and
was sentenced that he would not be eligible for a reduction in his
sentence by merely following prison rules, but would also have to
successfully participate in sex offender treatment.
B. Impact on Punishment. We next consider whether the
amended statute increases the penalty by which Propp’s crime is
punishable or, stated differently, whether it makes the punishment for
his crime more onerous. Lynce, 519 U.S. at 442, 117 S. Ct. at 896, 137
L. Ed. 2d at 72; Morales, 514 U.S. at 506 n.3, 115 S. Ct. at 1602 n.3,
131 L. Ed. 2d at 595 n.3. We think the statute at issue here has the
same prohibited effect as did the statute in Weaver. At the time Propp
was sentenced,6 he could earn a one-day reduction in his sentence for
each day of good conduct, and he could earn an additional reduction of
up to five days per month for participation in various programs. See
Iowa Code § 903A.2 (Supp. 1997). Thus, if Propp behaved, he received
good-time credits. If he refused to participate in available programs, he
did not receive any additional credits, but he still earned his one day of
credit for each day of good conduct.
6We focus on the date of Propp’s sentencing because the record does not reveal the date of his crime. 13
In contrast, by virtue of the subsequent amendments in 2001 and
2005, Propp can no longer earn credits merely by following institutional
rules. Now he must follow the rules and satisfactorily participate in any
programs required by the director. Thus, if Propp does not participate in
the SOTP, but behaves in every other way, he will have a longer period of
incarceration under the amended statute than he would have had under
the statute in effect at the time of his sentencing.
The State argues the amended statute did not make Propp’s
punishment for his crime more onerous, however, because “[t]he formula
that is used to compute earned time has been changed only in a way that
actually benefits him.” While it is true that an inmate can now earn 1.2
days of earned-time credits per day rather than one day of good-time
credits as under the old formula, as we have already explained, the
requirements to qualify for this credit have changed considerably. The
United States Supreme Court was unpersuaded by a similar argument in
Weaver. In Weaver, the state argued the net effect of the new statute
was to increase availability of gain-time reductions because the new
statute provided for discretionary grants of additional gain time that were
unavailable under the former statute. 450 U.S. at 34–36 & n.18, 101
S. Ct. at 967–68 & n.18, 67 L. Ed. 2d at 26–27 & n.18. The Court was
not convinced by this argument:
[N]one of these provisions for extra gain time compensates for the reduction of gain time available solely for good conduct. The fact remains that an inmate who performs satisfactory work and avoids disciplinary violations could obtain more gain time per month under the repealed provision . . . than he could for the same conduct under the new provision . . . . To make up the difference, the inmate has to satisfy the extra conditions specified by the discretionary gain-time provisions. . . . In contrast, under both the new and old statutes, an inmate is automatically entitled to the monthly gain time simply for avoiding disciplinary infractions and performing his assigned tasks. 14
Id. at 35, 101 S. Ct. at 967–68, 67 L. Ed. 2d at 27.
This passage aptly describes the situation presented by Propp’s
challenge to amended section 903A.2. Under the old statute, Propp was
automatically entitled to one day of good-conduct time for each day he
avoided a disciplinary violation. Now, he has to satisfy extra conditions––
satisfactory participation in programming––to receive any earned-time
credits. Stated differently, under the original statute, Propp lost
eligibility for five days of good-time credit each month he did not
satisfactorily participate in a treatment program, but he remained eligible
for thirty days of good-conduct credit, assuming a thirty-day month,
notwithstanding his unsatisfactory participation. Under the new statute,
his failure to satisfactorily participate renders him ineligible to earn any
reduction in his sentence, even if he has no disciplinary infractions. We
are convinced this difference is a substantive change in the formula used
to calculate a reduction in sentence because, as in Weaver, it
“retroactively decreas[ed] the amount of [earned]-time awarded for an
inmate’s good behavior.” Lynce, 519 U.S. at 441, 117 S. Ct. at 896, 137
L. Ed. 2d at 72 (characterizing issue in Weaver). Therefore, application
of the amended statute to Propp violates the Ex Post Facto Clause. See
Stansbury, 960 P.2d at 236 (holding similar statutory amendment
violated Ex Post Facto Clause when applied to inmate who committed his
crime before enactment of amendment).7
7The facts of Stansbury are remarkably similar to this case. Under the statutory scheme in effect when Stansbury committed his crime, inmates could earn eighty percent of the available good-time credits by avoiding any disciplinary violations. Stansbury, 960 P.2d at 231–33. The remaining twenty percent was awarded on a discretionary basis based on several factors, including the inmate’s participation in programs. Id. at 231. An amendment enacted after Stansbury’s crime provided that an inmate’s refusal to participate in assigned programs would result in the withholding of 100% of the available good-time credits. Id. at 232. Stansbury refused to sign a sex abuse treatment program (SATP) agreement, and as a result, his good-time credits were 15
For the same reasons, we reject the State’s argument that the
statute merely changed the conduct that was required to earn credits.
As the State correctly points out, prison officials have the ability to
change institutional rules without violating the prohibition against
ex post facto laws. See Gilbert v. Peters, 55 F.3d 237, 239 (7th Cir.
1995); Jones v. Murray, 962 F.2d 302, 309 (4th Cir. 1992). In Jones, the
court rejected a challenge to a statute requiring inmates to give blood
specimens for DNA analysis, stating:
The Ex Post Facto Clause does not prevent prison administrators from adopting and enforcing reasonable regulations that are consistent with good prison administration, safety and efficiency. . . . It is precisely because reasonable prison regulations, and subsequent punishment for infractions thereof, are contemplated as part of the sentence of every prisoner, that they do not constitute additional punishment and are not classified as ex post facto. Moreover, since a prisoner’s original sentence does not embrace a right to one set of regulations over another, reasonable amendments, too, fall within the anticipated sentence of every inmate.
962 F.2d at 309–10.
The flaw in the State’s attempt to categorize the amendment at
issue here as a mere change in prison regulations is that the statutory
scheme in effect in 1997 clearly treated compliance with institutional
rules and participation in treatment programs distinctly: an inmate was
rewarded for good behavior separately from the good-time credits he
received for participating in programming. Analyzing the present
withheld. Id. at 230. The Kansas Supreme Court concluded the effect of the amendment upon Stansbury “was to extend his conditional release date based upon his failure to earn good time credits because of his refusal to participate in the SATP.” Id. at 235. The court held the application of the amended statute to Stansbury violated the prohibition against ex post facto laws. Id. at 236. We acknowledge there are decisions from other states that are contrary to Stansbury and our holding in this case. These cases are either factually distinguishable, are not consistent with Supreme Court precedent, or are simply unpersuasive. 16
situation from the aspect of notice, we think a person in Propp’s position
who was sentenced under the earlier version of section 903A.2 would
have been on notice that institutional rules change over time.
Accordingly, someone in Propp’s position would also have been on notice
that the precise conduct required to qualify for good-conduct credits may
also vary over time. Nevertheless, a person in Propp’s position would
have had the expectation that, if he simply complied with institutional
rules, he could cut his sentence in half. That is not the case under the
current statutory scheme for earned-time credits. Even if Propp complies
with institutional rules, he will not earn any reduction in his sentence
unless he also satisfactorily participates in the SOTP. We think this case
is indistinguishable from Weaver, in which the Court found an
ex post facto violation because “an inmate who performs satisfactory
work and avoids disciplinary violations could obtain more gain time per
month under the repealed provision . . . than he could for the same
conduct under the new provision.” 450 U.S. at 35, 101 S. Ct. at 967, 67
L. Ed. 2d at 27. Because this description is equally true for Propp, we
conclude the punishment for his crime has been made more onerous in
violation of the Ex Post Facto Clause.
V. Disposition.
The district court correctly determined the DOC’s application of
amended section 903A.2 to inmates whose crimes predated the
amendments violates the constitutional prohibition of ex post facto laws.
Therefore, the court did not act illegally in ordering the State to reinstate
Propp’s original tentative discharge date of January 27, 2009. We annul
the writ of certiorari.
WRIT ANNULLED.