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George Shepard, and all other inmat

a similar situation, appellees, v. Robert 

Houston, director, Nebraska Depart

of Correctional Services, in his offi

and individual capacities, appella

___ N.W.2d ___

Filed November 7, 2014. No. S-13-1032.

1. Constitutional Law. Constitutional interpretation presents a question of law.

2. Courts: Justiciable Issues. Ripeness is a justiciability doctrine that courts consider in determining whether they may properly decide a controversy.

3. Courts. The fundamental principle of ripeness is that courts should avoid entangling themselves, through premature adjudication, in abstract disagreements 

based on contingent future events that may not occur at all or may not occur 

as anticipated.

4. Courts: Jurisdiction. A determination of ripeness depends upon the circumstances in a given case and is a question of degree.

5. Courts: Jurisdiction: Appeal and Error. With regard to the jurisdictional aspect 

of ripeness, an appellate court employs a two-part test in which it considers (1) 

the fitness of the issues for judicial decision and (2) the hardship of the parties of 

withholding court consideration.

6. Actions. Generally, a case is ripe when no further factual development is necessary to clarify a concrete legal dispute susceptible to specific judicial relief, as 

distinguished from an advisory opinion regarding contingent future events.

7. Constitutional Law: Criminal Law. The Ex Post Facto Clauses forbid the application of any new punitive measure to a crime already consummated.

8. Constitutional Law: Statutes: Legislature. The Ex Post Facto Clauses ensure 

that individuals have fair warning of applicable laws, and they guard against 

vindictive legislative action.

9. Constitutional Law: Criminal Law: Statutes. To fall within the ex post facto 

prohibition, a law must be retrospective or retroactive—that is, it must apply to 

events occurring before its enactment—and it must disadvantage the offender 

affected by it either by altering the definition of criminal conduct or by increasing 

the punishment for the crime.

10. ____: ____: ____. Any statute that 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 

a crime of any defense available according to law at the time when the act was 

committed is prohibited as ex post facto.

11. Constitutional Law. Subtle ex post facto violations are no more permissible than 

overt ones.

12. Criminal Law: DNA Testing. When a law requiring a DNA sample punishes refusal to provide a sample as an offense separate from the offense that 

made the person subject to DNA sampling, such law does not violate ex post 

facto prohibitions.
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13. DNA Testing: Statutes: Sentences. Regardless of whether the requirement of 

a DNA sample is itself considered civil, Neb. Rev. Stat. § 29-4106(2) (Cum. 

Supp. 2012) is punitive in mandating forfeiture of all good time and thereby 

increasing the period of a defendant’s incarceration.

Appeal from the District Court for Lancaster County: 

Andrew R. Jacobsen, Judge. Affir

Jon Bruning, Attorney General, and Jessica M. Forch for 

appellant.

George Shepard, pro se.

Heavican, C.J., Wright, Connolly, Stephan,

Miller-Lerman, and Cassel,

McCormack, 

I. NATURE OF CASE

Neb. Rev. Stat. § 29-4106(2) (Cum. Supp. 2012) provides 

for retroactive application of its requirement that all inmates 

convicted of a felony sex offense or other specified offense 

submit a DNA sample before being discharged from confinement. Section 29-4106(2) also specifically provides that those 

inmates convicted before the passage of § 29-4106 “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.” 

In effect, § 29-4106(2) provides that an inmate will forfeit his 

or her past and future good time credit if the inmate refuses 

to submit a DNA sample. The issue is whether § 29-4106(2), 

as applied to an inmate who was convicted before its passage, 

violated the Ex Post Facto Clauses of U.S. Const. art. I, § 10, 

and Neb. Const. art. I, § 16.

II. BACKGROUND

George Shepard was sentenced on July 11, 1990, to a combined term of up to 50 years’ imprisonment. He was sentenced 

to 40 years’ imprisonment for sexual assault in the first degree 
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and 10 years’ imprisonment for manufacturing child pornography, the sentences to run consecutively.1

Under the good time law in effect at the time of Shepard’s 

crimes, Shepard’s projected mandatory discharge date was May 

4, 2015. Neb. Rev. Stat. § 83-1,107 (Reissue 1987) provided:

(1) The chief executive officer of a facility shall reduce 

for good behavior the term of a committed offender as 

follows: Two months on the first year, two months on the 

second year, three months on the third year, four months 

for each succeeding year of his term and pro rata for any 

part thereof which is less than a year. The total of all such 

reductions shall be credited from the date of sentence, 

which shall include any term of confinement prior to 

sentence and commitment as provided pursuant to section 

83-1,106, and shall be deducted:

(a) From his minimum term, to determine the date of 

his eligibility for release on parole; and

(b) From his maximum term, to determine the date 

when his discharge from the custody of the state becomes 

mandatory.

(2) While the offender is in the custody of the 

Department of Correctional Services, reductions of such 

terms may be forfeited, withheld and restored by the chief 

executive officer of the facility, with the approval of the 

director after the offender has been consulted regarding 

the charges of misconduct.

(3) While the offender is in the custody of the Board 

of Parole, reductions of such terms may be forfeited, 

withheld, and restored by the Parole Administrator with 

the approval of the director after the offender has been 

consulted regarding the charges of misconduct or breach 

of the conditions of his parole. In addition, the Board of 

Parole may recommend such forfeitures of good time to 

the director.

1 See State v. Shepard, 239 Neb. 639, 477 N.W.2d 567 (1991).
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(4) Good time or other reductions of sentence granted 

under the provisions of any law prior to August 24, 1975, 

may be forfeited, withheld, or restored in accordance with 

the terms of the act.

Neb. Rev. Stat. § 83-1,107.01 (Reissue 1987) further 

provided:

(1) In addition to the reductions provided in section 

83-1,107, an offender shall receive, for faithful performance of his assigned duties, a further reduction of five 

days for each month of his term. The total of all such 

reductions shall be deducted from his maximum term to 

determine the date when his discharge from the custody 

of the state becomes mandatory.

(2) While the offender is in the custody of the 

Department of Correctional Services, reductions of such 

terms may be forfeited, withheld, and restored by the 

chief executive officer of the facility, with the approval of 

the director after the offender has been consulted regarding any charges of misconduct.

(3) While the offender is in the custody of the Board 

of Parole, reductions of such terms may be forfeited, 

withheld, and restored by the Parole Administrator with 

the approval of the director after the offender has been 

consulted regarding the charges of misconduct or breach 

of the conditions of his parole. In addition, the Board of 

Parole may recommend such forfeitures of good time to 

the director.

Disciplinary procedures for the Nebraska Department of 

Correctional Services (Department) are governed by Neb. 

Rev. Stat. §§ 83-4,109 to 83-4,123 (Reissue 2008). Under 

§ 83-4,111(3), which continues to be in essentially the same 

form as it was at the time of Shepard’s crimes, the Department 

has broad powers to adopt and promulgate rules and regulations, including criteria concerning good time credit, but such 

rules and regulations “shall in no manner deprive an inmate of 

any rights and privileges to which he or she is entitled under 

other provisions of law.” Under § 83-4,114.01(2), previously 

located at Neb. Rev. Stat. § 83-185(2) (Reissue 1987), good 

time may be forfeited only in cases involving “flagrant or 
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serious misconduct.” Further, pursuant to § 83-4,122, in disciplinary cases involving the loss of good time, forfeiture must 

be done through disciplinary procedures adopted by the director of the Department that are consistent with various requirements of the statute.

Various factors could be considered before making a determination regarding a committed offender’s actual release on 

parole upon the date of eligibility.2 As for the mandatory 

discharge date, however, the Board of Parole was required 

to discharge a parolee from parole and the Department was 

required to discharge a legal offender from the custody of the 

Department “when the time served . . . equals the maximum 

term less all good time reductions.”3

In 1997, the Legislature passed provisions under the DNA 

Detection of Sexual and Violent Offenders Act, now known 

as the DNA Identification Information Act (the Act),4 for collecting DNA samples from any person convicted of a felony 

sex offense or other specified offense, in order to place such 

sample for use in the State DNA Sample Bank. Since 1997, 

§ 29-4106(2) has provided for the retroactive application of the 

Act to persons convicted before the effective date of the Act 

but still serving a term of confinement on the effective date of 

the Act.

Under § 29-4106(2), such person shall not be released prior 

to the expiration of his or her maximum term of confinement unless and until a DNA sample has been drawn. Section 

29-4106(2) currently states:

A person who has been convicted of a felony offense 

or other specified offense before July 15, 2010, who 

does not have a DNA sample available for use in the 

State DNA Sample Bank, and who is still serving a term 

of confinement or probation for such felony offense or 

other specified offense on July 15, 2010, shall not be 

released prior to the expiration of his or her maximum 

2 See Neb. Rev. Stat. § 83-1,115 (Reissue 1999).

3 Neb. Rev. Stat. § 83-1,118(3) and (4) (Reissue 1987).

4 See Neb. Rev. Stat. §§ 29-4101 to 29-4115.01 (Reissue 2008 & Cum. 

Supp. 2012).
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term of confinement or revocation or discharge from 

his or her probation unless and until a DNA sample has 

been collected.

(Emphasis supplied.)

Department administrative regulation (A.R.) 116.04 implements this statute and provides that an inmate’s refusal to 

provide a DNA sample will result in administrative withholding of all good time and that the inmate’s sentence will 

be recalculated to the maximum prison term. Department 

employees testified that under A.R. 116.04, the Department 

gives inmates until 7 days prior to their release date, as calculated with good time credit, to submit their DNA sample. 

If an inmate does not submit a sample by that time, the 

inmate is given notice of a classification hearing. The deputy 

director over institutions for the Department explained that 

under A.R. 116.04, good time credit is taken away through a 

reclassification process rather than through a disciplinary procedure. The reclassification results in forfeiture of the good 

time. The deputy director explained, “That’s what our policy 

allows for and that’s carrying out what we believe state law 

says.” The deputy director was aware of no other behaviors 

for which good time credits would be forfeited through a 

reclassification process.

The crimes for which Shepard was sentenced in 1990 are 

subject to DNA testing under § 29-4106. Section 29-4106 was 

not in effect when the crimes were committed. On August 18, 

2010, Shepard was asked by the Department staff to provide 

a DNA sample. He declined to do so, and he has not given 

a DNA sample since that time. The deputy director testified 

that if Shepard continued to refuse to submit to DNA testing, 

his good time credit would be forfeited through reclassification under A.R. 116.04. Although in 2011, Shepard apparently 

would have been parole eligible based on good time, the record 

does not clearly reflect the reason why Shepard has not been 

released on parole.

After dismissing a prior complaint as not yet ripe for review, 

on April 7, 2011, the district court granted Shepard leave to file 

an amended complaint challenging the impending forfeiture 
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of his good time credit. After sustaining various motions to 

dismiss and for summary judgment, the only remaining claim 

of Shepard’s amended complaint was for declaratory judgment challenging the application of § 29-4106 as violative of 

the prohibition against ex post facto laws. The only remaining 

defendant was Robert P. Houston in his official capacity as 

director of the Department.

The court noted that Shepard had failed to make the agency 

promulgating the challenged rule a party to the action, as 

required by the Uniform Declaratory Judgments Act, but the 

court found that the action challenging the validity of § 29-4106 

was not so barred. The court further found Shepard’s declaratory judgment claim was ripe for review. The court reasoned 

that although § 29-4106(2) and A.R. 116.04 would not potentially be applied to Shepard until his May 4, 2015, release date, 

declaratory judgment is appropriate under the circumstances 

to prevent future harm. The court did not address Shepard’s 

parole eligibility.

The district court declared § 29-4106(2) unconstitutional 

under the Ex Post Facto Clauses of U.S. Const. art. I, § 10, 

and Neb. Const. art. I, § 16, as applied to Shepard, an inmate 

sentenced prior to the statute’s enactment. Houston was accordingly enjoined from withholding from Shepard any good time 

under the provisions of § 29-4106(2).

The court reasoned that the effect of § 29-4106(2) was 

to retroactively repeal the good time statutes as to Shepard 

if he did not provide a DNA sample. The court noted that 

Shepard had not been found guilty of any misconduct while 

incarcerated. The court stated that while merely requiring a 

DNA sample would not impose any additional penalty on an 

inmate, the language of the statute eliminating good time credit 

does impose an additional penalty not present at the time of 

Shepard’s convictions.

The court rejected the argument that the forfeiture of good 

time for refusing to submit to DNA testing is a result of a violation of valid administrative prison regulations rather than the 

imposition of the penalty imposed by statute. The court said 

that A.R. 116.04 is facially a mere enforcement of the statute 
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and that Neb. Rev. Stat. § 83-173(6) (Reissue 2008) does not 

grant the Department director authority to impose penalties 

for failure to comply with a statutory requirement. And, under 

§ 83-4,111, discipline may be imposed only for conduct outlined in the “Code of Offenses” adopted by the Department and 

appearing in title 68, chapter 5, of the Nebraska Administrative 

Code. Failure to submit a DNA sample, the court noted, is 

not listed as an offense within the code of offenses. While 

“[d]isobeying an [o]rder” and “[v]iolation of [r]egulations” are 

listed as offenses, loss of good time may be imposed only for 

such violations if they are “serious or flagrant,” and no more 

than 1 month of good time can be lost for such serious and 

flagrant violations.5

Houston appeals. Shepard does not cross-appeal.

III. ASSIGNMENTS OF ERROR

Houston assigns that the district court erred in (1) determining Shepard’s action was ripe for review and (2) determining 

that § 29-4106(2) violates the constitutional prohibition against 

ex post facto laws, “as this statute is a Constitutional civil 

regulatory scheme which does not impose punishment.”

IV. STANDARD OF REVIEW

[1] Constitutional interpretation presents a question of law.6

V. ANALYSIS

The only issues presented by the parties in this appeal are 

whether the district court erred in determining that Shepard’s 

claim was ripe for review and whether it erred in concluding that the retroactive application of § 29-4106(2) was 

unconstitutional.

1. Ripene

We first address the question of ripeness. According to 

Houston, Shepard’s claim is not ripe, because “[t]here is merely 

a possible threat of harm, sometime in the future, and we 

5 See 68 Neb. Admin. Code, ch. 5, § 005, and ch. 6, § 011 (2008).

6 Krings v. Garfield Cty. Bd. of Equal., 286 Neb. 352, 835 N.W.2d 750 

(2013).
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have no idea whether that harm will even come to fruition.”7

We disagree.

[2,3] Ripeness is a justiciability doctrine that courts consider in determining whether they may properly decide a 

controversy.8 The fundamental principle of ripeness is that 

courts should avoid entangling themselves, through premature 

adjudication, in abstract disagreements based on contingent 

future events that may not occur at all or may not occur 

as anticipated.9

[4-6] A determination of ripeness depends upon the circumstances in a given case and is a question of degree.10

With regard to the jurisdictional aspect of ripeness, we 

employ a two-part test in which we consider (1) the fitness 

of the issues for judicial decision and (2) the hardship of the 

parties of withholding court consideration. Because ripeness 

is peculiarly a question of timing, it is the situation now 

rather than the situation at the time of the district court’s 

decision that must govern.11 Generally, a case is ripe when 

no further factual development is necessary to clarify a concrete legal dispute susceptible to specific judicial relief, as 

distinguished from an advisory opinion regarding contingent 

future events.12

First, this appeal presents a constitutional question that is 

essentially legal in nature and may be resolved without further 

factual development.13

Second, this appeal presents a concrete controversy and 

does not present merely abstract disagreements based on contingent future events that may not occur at all or may not 

7 Brief for appellant at 11.

8 Pennfield Oil Co. v. Winstrom, 276 Neb. 123, 752 N.W.2d 588 (2008).

9 Id.

10 See Harleysville Ins. Group v. Omaha Gas Appliance Co., 278 Neb. 547, 

772 N.W.2d 88 (2009).

11 Regional Rail Reorganization Act Cases, 419 U.S. 102, 95 S. Ct. 335, 42 

L. Ed. 2d 320 (1974).

12 Pennfield Oil Co. v. Winstrom, supra note 8.

13 See City of Omaha v. City of Elkhorn, 276 Neb. 70, 752 N.W.2d 137 

(2008).
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occur as anticipated. Shepard has already declined to submit 

a DNA sample and professes that he will continue to do so. 

The deputy director of the Department testified that Shepard’s 

good time will be forfeited if he continues to refuse to submit 

a DNA sample. The deputy director, indeed, has no discretion 

under § 29-4106(2) to do otherwise. While it is possible that 

Shepard will change his mind, thereby making the controversy 

moot, that possibility is more speculative than the present reality. The hypothetical possibility of future mootness does not 

render the present appeal unripe.

Finally, addressing the underlying merits in the present 

appeal will avoid significant hardship. The Department does 

not conduct the reclassification proceedings that result in good 

time forfeiture until 7 days before the mandatory release date. 

If we decline to address the merits in this appeal and demand 

that the process of reclassification be complete before we consider the matter ripe, then it will not be possible for Shepard’s 

action to be determined before Shepard would be subjected 

to potentially illegal incarceration. Deciding the case now 

avoids the possibility of the irreparable harm to Shepard of 

being imprisoned past the mandatory discharge date (without 

forfeiture) of May 4, 2015. In addition, by deciding the case 

now, we avoid the needless waste of judicial resources through 

future relitigation of the issues.14

Having found the matter ripe for review, we turn to the 

underlying merits of Shepard’s ex post facto claim.

2. Ex Post Fa

Under the laws in effect at the time Shepard committed 

his crimes, he was entitled to mandatory “regular” good time, 

automatically earned under the formula stated above, as well 

as “meritorious” good time, if earned though good conduct.15

His parole eligibility date was calculated by deducting good 

time from his minimum sentence, and his mandatory discharge date was calculated by deducting good time from his 

14 See id.

15 See Johnson v. Bartee, 228 Neb. 111, 421 N.W.2d 439 (1988).
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maximum sentence.16 This appeal, however, concerns only 

Shepard’s mandatory discharge date.

Good time earned could be forfeited under the scheme 

in effect at the time of Shepard’s crimes, but only pursuant to specified procedures and regulations and only, under 

§ 83-4,114.01(2), for “flagrant or serious misconduct.” There 

were no statutory provisions allowing for the forfeiture of 

future mandatory good time or for general ineligibility for participation in the good time scheme as a result of misconduct. 

There were no provisions mandating that inmates provide a 

DNA sample.

By changing the release date to the maximum term of 

confinement or revocation or discharge from probation, 

§ 29-4106(2) effectively provides for mandatory forfeiture of 

participation in the good time credit system upon the act of 

refusing to submit a DNA sample under the requirements first 

passed in 1997. The State does not claim that the refusal to 

provide a DNA sample is an act of “flagrant or serious misconduct,” and it is clear from the record that when a convicted 

person refuses to provide a DNA sample, the Department does 

not change the mandatory discharge date pursuant to procedures provided for disciplinary forfeiture of good time.

Facially, § 29-4106(2) applies retroactively to any person 

who has been convicted of a felony offense or other specified 

offense before July 15, 2010. It thus facially encompasses both 

inmates whose crimes occurred before the passage of the Act in 

1997 and those whose crimes occurred after the passage of the 

Act. As applied to Shepard, however, § 29-4106(2) is retroactive. Section 29-4106(2) plainly expanded the scope of potential forfeiture of good time beyond the limitations to flagrant 

or serious misconduct in existence at the time of his crimes. 

Further, by mandating that the inmate 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, 

§ 29-4106(2) increased the amount of good time that could be 

lost for any singular act.

16 See § 83-1,107.
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Nevertheless, the State argues that providing a DNA sample 

is not in itself punitive. And to the extent that Shepard is 

punished for refusing to provide a DNA sample, the State 

argues he was given fair notice of the consequences before 

he refused.

For the reasons that follow, we agree with Shepard and the 

district court that the retroactive expansion of the scope of 

good time forfeiture violated the prohibitions against ex post 

facto laws, found in the Ex Post Facto Clauses of U.S. Const. 

art. I, § 10, and Neb. Const. art. I, § 16. While the requirement 

of DNA sampling, in itself, may be civil, the attendant forfeiture of good time increases the quantum of punishment for 

Shepard’s original crimes beyond the measure of punishment 

legally stated at the time they were committed.

(a) Ex Post Facto Prohibitions

[7] The ex post facto prohibitions found in the Ex Post Facto 

Clauses of U.S. Const. art. I, § 10, and Neb. Const. art. I, 

§ 16, forbid Congress and the states to enact any law “‘which 

imposes a punishment for an act which was not punishable at 

the time it was committed; or imposes additional punishment to 

that then prescribed.’”17 Stated another way, the Ex Post Facto 

Clauses “‘forbid[] the application of any new punitive measure 

to a crime already consummated.’”18

[8] The Ex Post Facto Clauses ensure that individuals have 

fair warning of applicable laws, and they guard against vindictive legislative action.19 Even where these concerns are not 

directly implicated, the clauses also safeguard “‘a fundamental 

fairness interest . . . in having the government abide by the 

rules of law it establishes to govern the circumstances under 

which it can deprive a person of his or her liberty or life.’”20

17 Weaver v. Graham, 450 U.S. 24, 28, 101 S. Ct. 960, 67 L. Ed. 2d 17 

(1981).

18 California Dept. of Corrections v. Morales, 514 U.S. 499, 505, 115 S. Ct. 

1597, 131 L. Ed. 2d 588 (1995).

19 See Peugh v. U.S., ___ U.S. ___, 133 S. Ct. 2072, 186 L. Ed. 2d 84 

(2013).

20 Id., 133 S. Ct. at 2085.
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[9] To fall within the ex post facto prohibition, a law must 

be retrospective or retroactive21—that is, it must apply to 

events occurring before its enactment—and it must disadvantage the offender affected by it either by altering the definition of criminal conduct or by increasing the punishment for 

the crime.22

[10,11] Only retroactive criminal punishment for past acts 

is prohibited.23 The retroactive application of civil disabilities 

and sanctions is permitted.24 But any statute that 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 

a crime of any defense available according to law at the time 

when the act was committed is prohibited as ex post facto.25

Subtle ex post facto violations are no more permissible than 

overt ones.26

(b) Retrospective Increases in Quantum 

of Punishment Through Changes in 

Good Time Scheme Violate Ex 

Post Facto Principles

In Weaver v. Graham,

27 the U.S. Supreme Court held that 

it is a violation of the prohibition against ex post facto laws 

to apply a new formula for calculating future good time credits to a person incarcerated for a crime committed before the 

new law was passed. The new law reduced the amount of 

good time automatically available through performance of 

satisfactory work and avoidance of disciplinary violations, but 

21 See 16A C.J.S. Constitutional Law § 559 (2005).

22 See Lynce v. Mathis, 519 U.S. 433, 117 S. Ct. 891, 137 L. Ed. 2d 63 

(1997).

23 State v. Worm, 268 Neb. 74, 680 N.W.2d 151 (2004).

24 Id.

25 State v. Kibbee, 284 Neb. 72, 815 N.W.2d 872 (2012). See, also, Carmell 

v. Texas, 529 U.S. 513, 120 S. Ct. 1620, 146 L. Ed. 2d 577 (2000); Collins 

v. Youngblood, 497 U.S. 37, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990).

26 Collins v. Youngblood, supra note 25.

27 Weaver v. Graham, supra note 17.
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increased the amount of discretionary good time available for 

specific productive conduct.28 The Court reasoned that regardless of whether the good time was a vested right, there was 

a lack of fair notice and governmental restraint because the 

legislature increased the inmate’s punishment beyond what 

was prescribed when the crime was consummated.29 “[E]ven if 

a statute merely alters penal provisions accorded by the grace 

of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of 

the offense.”30

The Court in Weaver v. Graham rejected the state’s argument that the law altering the availability of good time was 

prospective, and not retrospective, because it operated only 

upon the accumulation of good time after its effective date. The 

Court explained:

This argument fails to acknowledge that it is the effect, 

not the form, of the law that determines whether it 

is ex post facto. The critical question is whether the 

law changes the legal consequences of acts completed 

before its effective date. In the context of this case, this 

question can be recast as asking whether [the statute] 

applies to prisoners convicted for acts committed before 

the provision’s effective date. Clearly, the answer is in 

the affirmative.31

The Court in Weaver v. Graham also rejected the state’s 

argument that the new good time statute was not retrospective, 

because good time is not part of the punishment annexed to the 

crime. The Court explained:

First, we need not determine whether the prospect of 

the gain time was in some technical sense part of the 

sentence to conclude that it in fact is one determinant of 

petitioner’s prison term—and that his effective sentence 

is altered once this determinant is changed. . . . Second, 

28 Id. See, also, Lynce v. Mathis, supra note 22.

29 Weaver v. Graham, supra note 17.

30 Id., 450 U.S. at 30-31.

31 Id., 450 U.S. at 31.
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we have held that a statute may be retrospective even if it 

alters punitive conditions outside the sentence.32

The Court concluded that the new good time statute “substantially alters the consequences attached to a crime already completed, and therefore changes ‘the quantum of punishment.’”33

Finally, the Court rejected the state’s argument that the net 

effect of all the new good time provisions was to increase 

availability of good time deduction and, thus, that the change 

was not to the defendant’s disadvantage. The Court held that 

the alteration in the quantum of punishment was to the inmate’s 

disadvantage because there was a reduced opportunity to 

shorten time in prison “simply through good conduct.”34 The 

Court explained:

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. Even then, the award 

of the extra gain time is purely discretionary, contingent 

on both the wishes of the correctional authorities and 

special behavior by the inmate, such as saving a life or 

diligent performance in an academic program. . . . 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.35

Because the new good time scheme made more onerous the 

punishment for the crimes committed before its enactment, the 

Court in Weaver v. Graham held that it violated the prohibition 

against ex post facto laws.36

32 Id., 450 U.S. at 32.

33 Id., 450 U.S. at 33.

34 Id., 450 U.S. at 34.

35 Id., 450 U.S. at 35.

36 Weaver v. Graham, supra note 17.
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(c) Retroactive Application of Changes to 

Discretionary Elements of Parole Only 

Ex Post Facto if Significant Risk of 

Lengthening Time Incarcerated

Such alteration of the substantive formula for good time 

is treated distinctly from the retrospective application of 

changes to discretionary elements of the parole process. The 

U.S. Supreme Court has observed that “[w]hether retroactive 

application of a particular change in parole law respects the 

prohibition on ex post facto legislation is often a question of 

particular difficulty when the discretion vested in a parole 

board is taken into account.”37 The question in such cases 

is a “matter of degree” and depends on whether the retroactive application of the change creates “‘a sufficient risk of 

increasing the measure of punishment attached to the covered crimes.’”38

In two cases, the U.S. Supreme Court held that retroactive changes that decreased the frequency of parole hearings 

did not create a sufficient risk of increasing the likelihood 

of longer incarceration that would violate the ex post facto 

prohibition.39 In Garner v. Jones40 and California Dept. of 

Corrections v. Morales,

41 the Court reasoned that the changes 

to the parole laws in question (1) did not change the substantive formula for securing any reductions to sentence ranges, 

(2) did not affect the standards for determining a prisoner’s 

suitability for parole and setting a release date, and (3) did not 

37 Garner v. Jones, 529 U.S. 244, 250, 120 S. Ct. 1362, 146 L. Ed. 2d 236 

(2000).

38 Id.

39 See, Garner v. Jones, supra note 37; California Dept. of Corrections v. 

Morales, supra note 18. See, also, Moore v. Nebraska Bd. of Parole, 12 

Neb. App. 525, 679 N.W.2d 427 (2004).

40 Garner v. Jones, supra note 37.

41 California Dept. of Corrections v. Morales, supra note 18.
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present any “significant risk”42 of lengthening the time spent 

in prison.43

The Court explained that “the Ex Post Facto Clause should 

not be employed for ‘the micromanagement of an endless array 

of legislative adjustments to parole and sentencing procedures.’ 

. . . The States must have due flexibility in formulating parole 

procedures and addressing problems associated with confinement and release.”44 And, while

[t]he presence of discretion does not displace the 

protections of the Ex Post Facto Clause, . . . to the 

extent there inheres in ex post facto doctrine some idea 

of actual or constructive notice[,] . . . where parole is 

concerned discretion, by its very definition, is subject to 

changes in the manner in which it is informed and then 

exercised.45

The concurring opinion in Garner v. Jones advocated for a 

distinction between the penalties that a person can anticipate 

for the commission of a particular crime and the opportunities for mercy or clemency that may go to the reduction of the 

penalty. The concurrence admitted, “At the margins, to be sure, 

it may be difficult to distinguish between justice and mercy.”46

It illustrated then: “A statutory parole system that reduces a 

prisoner’s sentence by fixed amounts of time for good behavior during incarceration can realistically be viewed as an 

entitlement—a reduction of the prescribed penalty—rather than 

a discretionary grant of leniency. But that is immeasurably far 

removed from the present case.”47

42 Garner v. Jones, supra note 37, 529 U.S. at 255.

43 See, id.; California Dept. of Corrections v. Morales, supra note 18.

44 Garner v. Jones, supra note 37, 529 U.S. at 252.

45 Id., 529 U.S. at 253.

46 Id., 529 U.S. at 258 (Scalia, J., concurring in part in judgment).

47 Id.
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(d) Requiring DNA Sample 

Is Not Punitive

The State is correct that, standing alone, requiring DNA 

sampling is not punishment at all. Courts have consistently 

held that requiring a convicted person to submit a DNA sample 

does not violate the prohibition against ex post facto laws, 

because such a requirement is not punitive.48

[12] Further, courts consistently hold that when a law requiring a DNA sample punishes refusal to provide a sample as an 

offense separate from the offense that made the person subject 

to DNA sampling, such law does not violate ex post facto 

prohibitions.49 Rather, the punishment is solely for the new 

offense of refusing to provide the DNA sample—even though 

the original offense may have been the “but for” reason for the 

DNA sample requirement. Such punishment is not a new punitive measure of the original offense.

This is similar to our Sex Offender Registration Act (SORA). 

The requirement of registration, in itself, is not punitive.50

Further, we have held that although Neb. Rev. Stat. § 29-4011 

(Cum. Supp. 2012) imposes a criminal penalty for those found 

guilty of failing to register under SORA, such punishment is 

not for behavior that occurred before the statute’s enactment.51

48 See, e.g., U.S. v. Coccia, 598 F.3d 293 (6th Cir. 2010); Johnson v. 

Quander, 440 F.3d 489 (D.C. Cir. 2006); Shaffer v. Saffle, 148 F.3d 1180 

(10th Cir. 1998); People v. Espana, 137 Cal. App. 4th 549, 40 Cal. Rptr. 

3d 258 (2006); State v. Raines, 383 Md. 1, 857 A.2d 19 (2004); State v. 

Norman, 660 N.W.2d 549 (N.D. 2003); Doe v. Gainer, 162 Ill. 2d 15, 642 

N.E.2d 114, 204 Ill. Dec. 652 (1994).

49 See, e.g., U.S. v. Hook, 471 F.3d 766 (7th Cir. 2006); Word v. U.S. 

Probation Dept., 439 F. Supp. 2d 497 (D.S.C. 2006); Vore v. U.S. Dept. of 

Justice, 281 F. Supp. 2d 1129 (D. Ariz. 2003); In re D.L.C., 124 S.W.3d 

354 (Tex. App. 2003).

50 In re Interest of J.R., 277 Neb. 362, 762 N.W.2d 305 (2009); Welvaert v. 

Nebraska State Patrol, 268 Neb. 400, 683 N.W.2d 357 (2004); Slansky 

v. Nebraska State Patrol, 268 Neb. 360, 685 N.W.2d 335 (2004); State 

v. Worm, supra note 23. See, also, Smith v. Doe, 538 U.S. 84, 123 S. Ct. 

1140, 155 L. Ed. 2d 164 (2003).

51 See State v. Harris, 284 Neb. 214, 817 N.W.2d 258 (2012).
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It is “not additional punishment for the crimes that resulted in 

a person’s being subject to SORA; instead, it punishes the act 

of failing to comply with SORA once a person is subject to 

its requirements.”52

At issue here, however, is not punishment of refusal to 

submit a DNA sample as a separate offense. At issue here is 

the mandatory forfeiture of all good time, and this forfeiture 

results in an increased period of incarceration for the original 

offense, which was committed before the statute’s enactment.

(e) Changes to Consequences of Original 

Crime as Result of Failure to 

Abide by New Rules

Section 29-4106(2) arguably falls under a class of “close 

cases” wherein courts have traditionally had more difficulty 

determining if the consequence for failure to adhere to new 

prescriptions should be considered the continuing legal consequence of the original crimes or the independent legal consequence of later misconduct.53

The Sixth Circuit, in U.S. v. Reese,

54 opined that if the 

new punishment applies to everyone who has committed the 

predicate offense without regard to any subsequent offense, 

there is clearly an ex post facto violation. In contrast, an 

increased punishment of the new crime, but based on recidivism, has uniformly been upheld as constitutional.55 In such 

cases, the punishment is not “‘for the earlier offense,’” even 

though the punishment was a “but for” consequence of that 

earlier offense.56

Changes to the consequences attendant to the original 

crime, but based on new conduct subsequent to those changes, 

52 Id. at 224, 817 N.W.2d at 269.

53 U.S. v. Reese, 71 F.3d 582, 588 (6th Cir. 1995).

54 Id.

55 See, e.g., Taylor v. State, 114 Neb. 257, 207 N.W. 207 (1926); Smith v. 

State, 199 P.3d 1052 (Wyo. 2009); State v. Everett, 816 So. 2d 1272 (La. 

2002); State v. Jones, 344 S.C. 48, 543 S.E.2d 541 (2001).

56 U.S. v. Reese, supra note 53, 71 F.3d at 589.
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however, create more confusion. The Sixth Circuit framed the 

relevant ex post facto question for these situations as: “Is there 

fair notice, and is the punishment for the original conduct 

being imposed or increased?”57

In the context of changes to release eligibility based on the 

failure to provide a DNA sample, courts illustrate that the ex 

post facto question is more specifically whether the subsequently established requirement lengthens the time incarcerated under the original sentence and, if so, whether the inmate 

was on fair notice at the time the crime was committed that 

the requirement in question could change. Where the length 

of incarceration is increased by virtue of the new law, the 

distinction of whether the new law is ex post facto hinges 

on whether the change involved matters of discretion—or 

other changes clearly contemplated by the original statutory 

scheme—or whether instead the change involved the standards 

for determining a prisoner’s suitability for parole or for setting 

a release date.

(i) Jones v. Murray—Forfeiture of Mandatory 

Good Time for Refusing DNA Sample 

Violated Ex Post Facto Principles

Thus, in Jones v. Murray,

58 the Fourth Circuit held that a 

statute that required a DNA sample from convicted felons and 

sex offenders violated the prohibition against ex post facto 

laws to the extent it could be enforced to modify mandatory parole.

The statutory scheme in force when the inmate in question 

committed his crimes provided that every person “‘shall be 

released on parole . . . six months prior to his date of final 

discharge.’”59 The only exception at the time of the inmate’s 

crimes was if new information was provided to the parole 

board giving the board reasonable cause to believe that release 

57 Id. at 590 (emphasis in original).

58 Jones v. Murray, 962 F.2d 302 (4th Cir. 1992).

59 Id. at 309 (emphasis omitted).
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posed a clear and present danger to the life or physical safety 

of any person.60

Subsequent to the inmate’s crimes, a DNA blood testing 

requirement was passed, stating:

“Notwithstanding the provisions [providing for release 

6 months before the date of final discharge with such 

limited exception in the case of being a clear and present danger], any person convicted of a felony who is in 

custody after July 1, 1990, shall provide a blood sample 

prior to his release.”61

The court in Jones v. Murray noted that the DNA testing 

itself was not punitive. Further, the court observed in dicta 

that it would not be contrary to the prohibitions against ex 

post facto laws for violators to be administratively punished 

“within the terms of the prisoners’ original sentence” for the 

failure to provide samples.62 This was because “reasonable 

prison regulations, and subsequent punishment for infractions 

thereof, are contemplated as part of the sentence of every 

prisoner.”63 “[S]ince 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.”64 Accordingly, the statute did not violate 

the prohibition against ex post facto in “its possible effect 

in authorizing prison punishment, the denial of good-time 

credits, or consideration by the parole board in granting discretionary parole to compel the inmate to provide a sample, 

because it does not thereby alter any prisoner’s sentence for 

past conduct.”65

However, the court held that punishing the refusal to 

provide a DNA sample through the denial of the statutory 

60 Id.

61 Id. at 308 (emphasis omitted).

62 Id. at 310.

63 Id. at 309.

64 Id. at 309-10.

65 Id. at 310.
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6-month mandatory parole inherent to the original sentence 

constituted after-the-fact punishment of the original crimes. 

The court elaborated that the prisoner was being denied the 

benefit present at the time of his original crimes of being entitled to a 6-month reduction in sentence unless he constituted 

a clear and present danger to society. There was no indication 

that refusing to provide a DNA sample made the inmate a 

clear and present danger to society.

The court severed that part of the DNA statute which 

referred to modifying mandatory parole upon an inmate’s 

refusal to provide a DNA sample.

(ii) State v. Henry County Dist. Ct.—Changes to 

Laws Specifying New Conduct That Would 

Earn or Forfeit Good Time Violated 

Ex Post Facto Principles

Though not a DNA case, in State v. Henry County Dist. Ct.,

66

the court similarly held that a statute that added requirements 

to the previously automatic accrual of good time for simple 

good conduct violated the prohibition against ex post facto 

laws. The statutory scheme in place at the time the inmate 

committed his crimes allowed an inmate to earn a specified 

amount of good time for simple good conduct and another 

specified amount of good time for participation in listed 

activities. Subsequently, the statute was amended such that 

an inmate who was required to participate in a sex offender 

treatment program was ineligible for any good time reduction 

of his or her sentence unless the inmate participated in and 

completed the sex offender treatment program. An implementing regulation stated that inmates required to participate in 

sex offender treatment programs who refused treatment, were 

removed from treatment, or failed program completion criteria 

would not be eligible for earned time credits. The inmate in 

question had been temporarily removed from a sex offender 

treatment program for misconduct. During his removal, the 

inmate did not earn any good time, thus ultimately extending 

his tentative date for discharge by 4 months.

66 State v. Henry County Dist. Ct., 759 N.W.2d 793 (Iowa 2009).
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The court in State v. Henry County Dist. Ct. reasoned 

that to the extent the inmate could no longer automatically 

earn good time merely by following institutional rules, without participating in programs required by the director, the 

amended statute and its implementing regulation made the 

penalty for the inmate’s original crime more onerous. “[I]f 

[the inmate] does not participate in the [sex offender treatment 

program,] 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.”67 In fact, the inmate’s 

“failure to satisfactorily participate renders him ineligible to 

earn any reduction in his sentence, even if he has no disciplinary infractions.”68

The court rejected the argument that the inmate was given 

fair notice because his failure to participate in the sex offender 

treatment occurred after the passage of the amended statute 

and the pertinent regulation. The court found that the state’s 

analysis was “misplaced.”69 The question, the court reasoned, 

was whether the inmate was on notice when he committed 

his original crime and was sentenced that he would not be 

eligible for a reduction in his sentence by merely following 

prison rules.70

The court also rejected the State’s argument that the 

amended statute and the implementing regulation merely 

changed the institutional rules contemplated as part of the 

sentence of every prisoner. Although an inmate would have 

been on notice that the precise conduct required to qualify for 

good time credit could vary over time, an inmate “would have 

had the expectation that, if he simply complied with institutional rules, he could cut his sentence in half.”71 Furthermore, 

given the wording of the statutes at the time of the inmate’s 

crimes, he would have understood that compliance with 

67 Id. at 800.

68 Id. at 801 (emphasis in original).

69 Id. at 799.

70 State v. Henry County Dist. Ct., supra note 66.

71 Id. at 802.
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institutional rules and participation in treatment programs 

were treated distinctly.

(iii) Courts Distinguish Jones v. Murray and 

Find No Ex Post Facto Violation When 

New Law or Regulation Does Not 

Lengthen Time in Prison

In contrast to the facts presented in Jones v. Murray or State 

v. Henry County Dist. Ct., internal prison sanctions for failure 

to submit a DNA sample that do not affect the prisoner’s parole 

eligibility date or discharge date have uniformly been held not 

to violate the prohibition against ex post facto laws.72 Such 

changes to internal punishments are contemplated as part of the 

sentence of every prisoner.

Thus, in Padgett v. Ferrero,

73 the court held that disciplinary action, followed by taking a sample by force in the event 

of continued refusal, was not an ex post facto law, because 

“no prison sentences will be extended because of the failure to 

cooperate with the statute.”74 Likewise, the court in Cooper v. 

Gammon75 held that it did not violate ex post facto prohibitions 

for the prison to impose solitary confinement for an inmate 

who refused to submit a DNA sample under laws enacted since 

he committed his crimes.

(iv) Courts Distinguish Jones v. Murray and Find 

No Ex Post Facto Violation When Inmate 

Was on Notice at Time of Crimes That 

the Act Was Available and Subject to 

Changing Regulations or Discretion

Furthermore, courts have held that there is no violation 

of the prohibition against ex post facto laws in the denial or 

72 See, Dominique v. Weld, 73 F.3d 1156 (1st Cir. 1996); Padgett v. Ferrero, 

294 F. Supp. 2d 1338 (N.D. Ga. 2003); Schreiber v. State, 666 N.W.2d 127 

(Iowa 2003); Cooper v. Gammon, 943 S.W.2d 699 (Mo. App. 1997).

73 Padgett v. Ferrero, supra note 72.

74 Id. at 1344-45.

75 Cooper v. Gammon, supra note 72. See, also, Dominique v. Weld, supra

note 72.
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revocation of parole or good time for refusing to submit a 

DNA sample when the original statutory scheme made clear 

that actual release, continued release, or the earning of good 

time credits was subject to the discretion of prison officials or 

to changing laws or regulations.76

Thus, where the convicted person was previously subject 

to the generally stated requirement that while on supervised 

release or parole, he or she follow parole agent directives and 

not commit other crimes, then new laws criminalizing refusal 

to submit a DNA sample and allowing for revocation of parole 

or supervised release based on such refusal did not violate 

the prohibition against ex post facto laws.77 Such potential 

revocation of supervised release or parole did not increase 

the plaintiff’s punishment for a prior conviction because, as 

a part of the original sentence, the plaintiff was subject to 

the mandatory conditions that he or she not commit another 

crime (refusal to submit a DNA sample being a separate misdemeanor) and that he or she follow the instructions of the 

probation officer.78 “[I]t is well settled that the conditions of 

parole can be changed at any time.”79

Similarly, courts hold that there is no violation of the prohibition against ex post facto laws when refusal to submit a 

DNA sample is the basis for the discretionary determination 

to deny release on parole.80 For example, in Dial v. Vaughn,

81

the DNA testing statute provided that an inmate shall not be 

76 U.S. v. Hook, supra note 49; Johnson v. Quander, supra note 48; Word 

v. U.S. Probation Dept., supra note 49; Miller v. U.S. Parole Comm’n, 

259 F. Supp. 2d 1166 (D. Kan. 2003); Cannon v. South Carolina Dept. 

of Probation, 361 S.C. 425, 604 S.E.2d 709 (2006), reversed on other 

grounds 371 S.C. 581, 641 S.E.2d 429 (2007).

77 See cases cited supra note 76.

78 Word v. U.S. Probation Dept., supra note 49; Miller v. U.S. Parole 

Comm’n, supra note 76.

79 Miller v. U.S. Parole Comm’n, supra note 76, 259 F. Supp. 2d at 1170.

80 See, Boling v. Romer, 101 F.3d 1336 (10th Cir. 1997); Dial v. Vaughn, 733 

A.2d 1 (Pa. Commw. 1999). See, also, Com. v. Derk, 895 A.2d 622 (Pa. 

Super. 2006).

81 Dial v. Vaughn, supra note 80. See, also, Com. v. Derk, supra note 80.
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released before expiration of the maximum term of confinement unless and until the inmate provided a DNA sample. 

The court interpreted this statute, however, as not changing 

either the mandatory release date or the parole eligibility date. 

Instead, the court focused on the distinction between parole 

eligibility and parole release, and found that the statute governed only parole release. Then, the court explained that the 

inmate was on notice from the time of his crimes that actual 

release on parole depended upon full compliance with a variety 

of prison rules and administrative requirements. Therefore, the 

court concluded that the changes to the specifics of those rules 

and regulations did not increase the measure of punishment 

attached to the original sentence.

In Ewell v. Murray,

82 the court held that where the original law set forth broad categories of good time eligibility, 

and where the inmate was on notice that the details of those 

categories were subject to changing rules and regulations, 

retrospective changes to the criteria for the categories of good 

time eligibility did not violate the prohibition against ex post 

facto laws.

At the time of the inmate’s crimes, the law considered in 

Ewell v. Murray stated that inmates shall be given the opportunity to earn good time, based on a four-level classification 

system. But the law explicitly stated that persons could be 

reclassified according to prison rules and regulations. One of 

those classifications meant that no good time could be earned. 

Subsequently, an amended regulation provided for reclassification to a good-time-ineligible category for refusing to provide 

a DNA sample. Another amended regulation provided for forfeiture of previously earned good time.

Considering some of the same laws at issue in Jones v. 

Murray, the court in Ewell v. Murray explained that the good 

time credits under the four categories were cumulative to 

the mandatory 6-month release period discussed in Jones v. 

82 Ewell v. Murray, 813 F. Supp. 1180 (W.D. Va. 1993). See, also, Smith v. 

Beck, 176 N.C. App. 757, 627 S.E.2d 284 (2006).
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Murray. These laws were distinguishable from changes affecting the mandatory 6-month release date because, under the 

laws controlling at the time of the inmate’s crimes, an inmate 

had no right to be released on either discretionary or mandatory 

parole before that 6-month release date.

(v) U.S. Supreme Court Has Indicated That 

Whether Change to Original Punishment 

Based on New Conduct Implicates Ex 

Post Facto Must Be Determined From 

Notice at Time of Original Crimes, 

Not at Time of New Conduct

Cases finding no ex post facto violation upon such consequences for failing to provide a DNA sample sometimes play 

lipservice to the notion that the punishment was for the refusal 

to provide a sample, which occurred after the amended law or 

regulation, and was not an increase in the quantum of punishment for the original crime occurring before the amended law 

or regulation. But we can find no case wherein a court has 

concluded that the new law was constitutionally applied to the 

convicted person when the consequences were an increase in 

the time incarcerated and the convicted person would not have 

contemplated the underlying change in the law or regulation at 

the time of the crime leading to that incarceration.

Most important, the U.S. Supreme Court has repeatedly 

rejected the notion that a law affecting the period of incarceration for the original crime, but only if the inmate commits or 

fails to commit certain actions after passage of the new law, 

somehow does not relate to the original crime for purposes of 

an ex post facto analysis.

As already discussed, in Weaver v. Graham, the U.S. 

Supreme Court rejected the idea that changes to the good time 

system, because they applied only to the accumulation of good 

time after passage of the changes, were prospective and not 

retrospective.83 The Court explained that the point of time to 

83 Weaver v. Graham, supra note 17.
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be focused on was when the crimes were committed that led 

to the incarceration that is being affected by the good time.84

In Scafati v. Greenfield,

85 the U.S. Supreme Court summarily affirmed a decision by the lower court that a law passed 

after the inmate’s crimes but before his release on parole, 

making a prisoner good time ineligible for 6 months if the 

prisoner committed a violation of parole, was ex post facto. 

In Greenfield v. Scafati,

86 the lower court explained that while 

under the law at the time of the prisoner’s crime, the inmate 

could become good time ineligible through misbehavior during confinement, there was no prior provision for forfeiture 

of future good time eligibility through misbehavior while 

on parole. The court found that insofar as the new law thus 

increased the scope of opportunities to forfeit good time 

eligibility, it was ex post facto. The court observed that the 

availability of good conduct deductions was considered part 

of the sentence for the original crime. Likewise, although a 

prisoner’s entitlement to parole lies in the discretion of the 

parole board, it does “not follow because a prisoner might 

not receive parole that it would not be an unlawful ex post 

facto burden to deprive him altogether of the right to be found 

qualified,” and “hence earn, parole.”87

Subsequently, in Johnson v. United States,

88 the U.S. 

Supreme Court reaffirmed, in dicta, its decision in Scafati v. 

Greenfield. In Johnson v. United States, the Court determined 

that because the district court always had the same powers 

under preexisting law, there was no ex post facto question concerning a statute that allowed for revocation of the supervised 

release of the original offense, including no credit for time 

served under such supervised release, upon violation of the 

conditions of release. Nevertheless, the Court went out of its 

84 Id.

85 Scafati v. Greenfield, 390 U.S. 713, 88 S. Ct. 1409, 20 L. Ed. 2d 250 

(1968).

86 Greenfield v. Scafati, 277 F. Supp. 644 (D.C. Mass. 1967).

87 Id. at 646.

88 Johnson v. United States, 529 U.S. 694, 120 S. Ct. 1795, 146 L. Ed. 2d 

727 (2000).
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way to reject the reasoning of the lower court that there was no 

ex post facto violation, because the law imposed a punishment 

for the new offense of violating the supervised release conditions and did not increase the quantum of punishment for the 

original offense.

The Court said that “[w]hile this understanding of revocation of supervised release has some intuitive appeal, [such 

understanding raises] serious constitutional questions . . . .”89

First, “the violative conduct need not be criminal and need 

only be found by a judge under a preponderance of the evidence standard, not by a jury beyond a reasonable doubt.”90

Second, “[w]here the acts of violation are criminal in their 

own right, they may be the basis for separate prosecution, 

which would raise an issue of double jeopardy if the revocation of supervised release were also punishment for the same 

offense.”91 The Court concluded that “[t]reating postrevocation 

sanction as part of the penalty for the initial offense . . . avoids 

these difficulties.”92 The Court further observed that treating 

such sanctions as part of the penalty for the initial offense 

is “all but entailed by our summary affirmance of Greenfield 

v. Scafati.”93

“We therefore attribute postrevocation penalties to the original conviction,”94 said the Court. The Court explained:

Since postrevocation penalties relate to the original 

offense, to sentence [the defendant] to a further term of 

supervised release [under the law enacted after the original crimes but before the conduct on supervised release] 

would be to apply this [law] retroactively (and to raise the 

remaining ex post facto question, whether that application 

makes him worse off).95

89 Id., 529 U.S. at 700.

90 Id.

91 Id.

92 Id.

93 Id., 529 U.S. at 701.

94 Id.

95 Id.
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(vi) § 29-4106(2) and A.R. 116.04 Are Ex Post 

Facto to Extent They Provide for Forfeiture 

of Good Time for Refusing to 

Submit DNA Sample

Cases such as Weaver v. Graham, Scafati v. Greenfield, and 

Johnson v. United States make clear that we cannot accept the 

State’s argument that the penalties for Shepard’s refusal to provide a DNA sample relate to the prospective act of refusal and 

not to the original crimes for which Shepard was incarcerated. 

The analysis is as simple as observing that § 29-4106(2) affects 

changes to Shepard’s period of incarceration for the original 

crimes committed before its enactment. Section 29-4106(2) 

does not set forth a separate crime with a separate punishment. 

We are not presented with the question of punishment for the 

refusal to submit a DNA sample as a separate crime. Section 

29-4106(2) as applied to Shepard was retrospective because 

it changed the period of incarceration for a crime committed 

before its enactment.

We further conclude that Shepard did not have fair 

notice of the changes to the good time scheme mandated by 

§ 29-4106(2). Section 29-4106(2) did not make changes in the 

kind of discretionary disciplinary measures discussed in cases 

such as California Dept. of Corrections v. Morales or Ewell 

v. Murray. Nor did § 29-4106(2) merely change or elaborate 

upon the category of disciplinary measures considered to be 

gross or serious misconduct.

At the time of Shepard’s crimes, he expected that his mandatory discharge date would be calculated based on a mandatory scheme of good time accumulation. He further expected 

that the only possible forfeiture of this good time would be in 

finite amounts upon the discretion of the prison officials, and 

only upon gross or serious misconduct. Looking at the welldefined parameters of the mandatory good time scheme in 

effect at the time of Shepard’s crimes with a limited scope of 

forfeiture, we find he did not have fair notice that the scheme 

would change to mandating automatic forfeiture of all past 

and future good time upon refusal to submit a DNA sample, 

thereby entailing a much larger amount of forfeiture than 

previously possible, for an act that was not gross or serious 
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misconduct, and outside the traditional discretionary, disciplinary process.

[13] Finally, we conclude that § 29-4106(2), in mandating 

forfeiture of all good time and thereby increasing the period of 

Shepard’s incarceration, is punitive. While the requirement of 

providing a DNA sample is not itself punitive, the provision 

of § 29-4106(2) that increases the period of incarceration by 

mandating recalculation of the release date to the maximum 

term of confinement clearly is. This is not meaningfully different from cases such as California Dept. of Corrections v. 

Morales,

96 State v. Henry County Dist. Ct.,97 Jones v. Murray,98

Scafati v. Greenfield,

99 and Johnson v. United States.100 Those 

cases illustrate that it does not matter if the new requirement 

is especially onerous or could be, in itself, considered “civil.” 

The new requirement considered in State v. Henry County 

Dist. Ct., that the inmate participate in sex offender treatment, 

although not in itself onerous or even punitive, was held to be 

an ex post facto law when the consequence for the failure to 

participate in the treatment was removal from good time eligibility. The new requirement considered in Weaver v. Graham, 

that the inmate demonstrate meritorious behavior, might in 

itself be considered civil, but the court held that when such 

meritorious behavior was not a requirement for good time 

eligibility before, the law adding that requirement was ex 

post facto.

Failure to satisfy the new requirement of providing a DNA 

sample results in an increased period of incarceration. And 

an increased period of incarceration is punitive. Due to the 

expanded scope of good time forfeiture and the imminent 

removal of his good time, Shepard is “worse off” than he was 

before the passage of § 29-4106(2).101

96 California Dept. of Corrections v. Morales, supra note 18.

97 State v. Henry County Dist. Ct., supra note 66.

98 Jones v. Murray, supra note 58.

99 Scafati v. Greenfield, supra note 85.

100 Johnson v. United States, supra note 88.

101 See id.
Nebraska Advance She

430 289 NEBRASKA REPORTS

In conclusion, we agree 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. 

Shepard, at the time of his crimes, expected to automatically incur good time simply through good conduct, and he 

expected to have his mandatory discharge date calculated upon 

his maximum sentence minus good time. Section 29-4106(2), 

by allowing for forfeiture of more good time than could have 

been forfeited before and by allowing for forfeiture based on 

conduct that is something less than flagrant and serious misconduct—indeed, conduct not even contemplated at the time 

of Shepard’s crimes—substantially altered the punitive consequences attached to his crimes.

VI. CONCLUSION

For the foregoing reasons, we affirm the judgment of the 

district court.

Affirmed

In re Interest of Nathaniel M., a

under 18 years of ag

Nebraska Department of Health and Human Ser

appellant, v. State of Nebraska 

Nathaniel M., appellee

___ N.W.2d ___

Filed November 7, 2014. Nos. S-13-1066 through S-13-1068.

1. Moot Question: Jurisdiction: Appeal and Error. Because mootness is a justiciability doctrine that operates to prevent courts from exercising jurisdiction, 

an appellate court reviews mootness determinations under the same standard of 

review as other jurisdictional questions.

2. ____: ____: ____. When a jurisdictional question does not involve a factual 

dispute, its determination is a matter of law, which requires an appellate court to 

reach a conclusion independent of the decisions made by the lower courts.

3. Statutes: Appeal and Error. Statutory interpretation is a question of law that an 

appellate court resolves independently of the trial court.