Shepard v. Houston
289 Neb. 399
| Neb. | 2014Background
- George Shepard was convicted in 1990 of sexual assault and related offenses and sentenced to a combined term with a projected mandatory discharge date based on Nebraska’s good-time statutes in effect at that time.
- Nebraska’s DNA Identification Information Act (§ 29-4106(2)), enacted after Shepard’s conviction, requires DNA samples from certain felons and provides that inmates convicted before the Act’s effective date shall not be released before the maximum term unless a DNA sample has been collected.
- Department regulation A.R. 116.04 implements § 29-4106(2) by withholding all good time and recalculating sentences to maximum terms when inmates refuse to provide DNA, effectuating forfeiture of past and future good time rather than disciplinary forfeiture under prior procedures.
- Shepard refused to give a DNA sample when asked in 2010 and challenged the retroactive application of § 29-4106(2) as an ex post facto violation; the district court found the claim ripe and ruled for Shepard, enjoining the Department from withholding his good time.
- The State (Houston) appealed, arguing the claim was not ripe and that the statute/regulation is civil, not punitive, so it does not violate ex post facto prohibitions.
Issues
| Issue | Plaintiff's Argument (Shepard) | Defendant's Argument (Houston) | Held |
|---|---|---|---|
| Ripeness: Whether the court may decide before reclassification/forfeiture occurs | Claim is ripe because Shepard already refused sampling, Department has no discretion and intends to withhold good time, and delay would cause irreparable harm (continued incarceration past mandatory date) | Not ripe: harm is speculative; reclassification may not occur | Court: Ripe — legal issue is fit for decision, factual record sufficient, withholding review would cause hardship |
| Ex post facto: Whether retroactive application of § 29-4106(2) to pre‑Act convictions increases punishment | Retroactive forfeiture of all past and future good time increases incarceration beyond punishment in effect at time of conviction; Shepard had no fair notice | DNA sampling requirement is civil; any punishment relates to later refusal and is not punishment for original crime | Court: § 29-4106(2) as applied is ex post facto — forfeiture of all good time increases punishment and was retroactive without fair notice |
| Nature of DNA requirement: Is requiring DNA alone punitive? | (Implicit) Even if sampling is civil, the statutory consequence (all good‑time forfeiture) is punitive | Sampling itself is nonpunitive; punishment, if any, is for separate later misconduct (refusal) | Court: Sampling nonpunitive, but the mandated forfeiture that lengthens incarceration is punitive and unconstitutional as applied to Shepard |
| Scope of remedy: Whether regulation A.R. 116.04 could be treated as disciplinary (within anticipated sentence) | Forfeiture here is not via disciplinary code and exceeds the statutory disciplinary framework in place at the time of conviction | State contends administrative enforcement is permissible | Court: The scheme here effectively expands forfeiture beyond prior statutory limits and traditional disciplinary procedures, so it violates ex post facto protections |
Key Cases Cited
- Weaver v. Graham, 450 U.S. 24 (U.S. 1981) (retroactive reduction in good-time formula that increases incarceration violates Ex Post Facto Clause)
- California Dept. of Corrections v. Morales, 514 U.S. 499 (U.S. 1995) (distinguishing changes to parole procedure from substantive punitive changes; analyzes ‘‘significant risk’’ of increased punishment)
- Jones v. Murray, 962 F.2d 302 (4th Cir. 1992) (statute denying mandatory parole reduction for refusing DNA violated ex post facto where it altered mandatory release entitlement)
- Scafati v. Greenfield, 390 U.S. 713 (U.S. 1968) (retroactive law increasing opportunities to forfeit good time held ex post facto)
- Johnson v. United States, 529 U.S. 694 (U.S. 2000) (postrevocation penalties attributed to original conviction; retroactive application can implicate ex post facto principles)