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Nebraska Law Unconstitutionally Forfeits Good Time for Refusal to Submit DNA Sample

Nebraska Law Unconstitutionally Forfeits Good Time for Refusal to Submit DNA Sample

by David M. Reutter

The Nebraska Supreme Court has held that a retroactive state law which requires prisoners to submit DNA samples violates the Ex Post Facto Clause for increasing “the quantum of punishment” when a prisoner refuses to submit a sample and suffers loss of good time credit.

State prisoner George Shepard was sentenced on July 11, 1990 to a combined term of 50 years for sexual assault in the first degree and manufacturing child porn­ography. In 1997, the Nebraska legislature enacted what is now known as the DNA Identification Information Act (the Act), Neb. Rev. Stat. § 29-4106(2) (2012).

The Act applies retroactively to prisoners “still serving a term of confinement or probation” for a “felony offense or other specified offense” before July 15, 2010. It provides that a prisoner “shall not be released prior to the expiration of his or her maximum term of confinement or revocation or discharge from his or her probation unless and until a DNA sample has been collected.”

The Nebraska Department of Correctional Services (NDCS) applies the penalty to prisoners who refuse to provide a DNA sample by taking away their good time credit “through a reclassification process rather than through a disciplinary procedure.” The reclassification results in a forfeiture of good time, and the trial court found the forfeiture violated the Ex Post Facto Clause. Thus, the court declared the Act unconstitutional as applied to Shepard and barred the NDCS from withholding any good time credit due to his refusal to provide a DNA sample. The state appealed.

In a November 7, 2014 decision, the Nebraska Supreme Court found the issue ripe for review; holding otherwise, the Court wrote, would subject Shepard to “potentially illegal incarceration.” It then held that as applied to Shepard, the Act is retroactive.

Turning to the Ex Post Facto Clause, which “forbids the application of any new punitive measure to a crime already consummated,” the state Supreme Court discussed legal precedent. In the end, it boiled down to the questions, “Is there fair notice, and is the punishment for the original conduct being imposed or increased?”

At issue was not punishment for refusal to submit a DNA sample as a separate offense. Rather, the issue was “the mandatory forfeiture of all good time, and the forfeiture result[ing] in an increased period of incarceration for the original offense, which was committed before the statute’s enactment.” That, the Court held, violates Ex Post Facto principles. On the other hand, the Court noted that it was “not presented with the question of punishment for the refusal to submit a DNA sample as a separate crime,” which would have resulted in a different analysis.

The forfeiture of good time for refusing to submit a DNA sample, the Supreme Court found, is an unconstitutional sanction that increases the period of incarceration for the original offense. In conclusion, the Court wrote that it agreed “with the district court that insomuch as § 29-4106(2) forfeits Shepard’s past and future good time and recalculates his parole eligibility and mandatory discharge dates without regard to any good time, it violates the constitutional prohibitions against ex post facto laws.” The lower court’s order was therefore affirmed. See: Shepard v. Houston, 289 Neb. 399, 855 N.W.2d 559 (Neb. 2014).


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Related legal case

Shepard v. Houston