                   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

certiorari.

       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.
