LINCOLN — A sex offender convicted of raping a 3-year-old girl in 1979 has successfully challenged a law that would delay his prison release for refusing to submit to a DNA test.
The law revoked the good time credits earned by George Shepard, 60, of Omaha after he refused to provide officials with a DNA sample. In an opinion released Friday, the Supreme Court said taking away his good time violated the U.S. Constitution, which prohibits new punishment under a law enacted after a person was convicted and sentenced.
Shepard was sentenced to 41 to 50 years in prison in 1990 for first-degree sexual assault on a child and manufacturing child pornography. At the time, no requirement for DNA testing existed.
In 1997, the Legislature adopted a law requiring the DNA testing of imprisoned sex offenders, including those incarcerated for offenses committed prior to the law’s passage. The DNA was to be put a bank for use by law enforcement in the investigation of other crimes.
A subsequent change in the law provided for the loss of good time for inmates who refused the test.
Under the state’s good time law, which cuts sentences in half for inmates who follow prison rules, Shepard was scheduled for release in 2015 after serving 25 years.
Shepard refused, however, when asked to submit a DNA sample in 2010, a decision that meant he would have to spend an additional 25 years locked up. Representing himself, he challenged the law, arguing it violated the Constitution’s “ex post facto” clause.
Lancaster County District Judge Andrew Jacobsen ruled last November in Shepard’s favor. Attorney General Jon Bruning appealed, arguing the loss of good time amounted to a civil regulation intended to assist law enforcement efforts. The punishment was not for the crime, but for refusing to follow a prison regulation.
A unanimous Supreme Court sided with Shepard because at the time he was convicted, the only way for him to lose good time was through flagrant misconduct. Therefore, the DNA law violated the Constitution because it increased Shepard’s punishment retroactively.
“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,” Judge Michael McCormack wrote for the court. ..Source.. by Joe Duggan
No comments:
Post a Comment
We use the Disqus Commenting system, please wait for it to load. Also, comments are moderated, please stick to the issue of the post, as we are trying to have an intelligent, relevant discussion which develops the post. Comments deviating from topic of post will not be posted. Thanks