OMAHA, Neb. (AP) - The Nebraska Supreme Court on Friday upheld a prisoner’s challenge of a 2010 state law requiring inmates who refuse to provide DNA samples to serve the maximum sentence for which they are eligible.
The decision, which could affect other prisoners sentenced before 2010, comes in the case of inmate George Shepard. He was sentenced in 1990 to a combined prison term of up to 50 years for first-degree sexual assault and the manufacturing of child pornography.
Serving as his own lawyer, Shepard argued that under the laws at the time he was sentenced, he would be eligible for parole in 2015. But because he refused to give a DNA sample, the 2010 law required that he serve all 50 years.
Shepard, 60, said that violates his constitutional rights, because the law effectively retroactively increased the punishment for the crime for which he’d already been sentenced.
A Lancaster County District judge agreed last year, and the Nebraska Attorney General’s Office appealed. State prosecutors argued, among other things, that the law doesn’t impose punishment and, therefore, couldn’t violate Shepard’s constitutional rights.
The state Supreme Court disagreed, upholding the lower court’s ruling that the law revoking good time violates constitutional prohibitions against ex post facto, or after-the-fact, punishments.
“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 … (the 2010 law) substantially altered the punitive consequences attached to his crimes,” Justice Michael McCormack wrote for the high court.
The ruling declared the 2010 law unconstitutional only as it applies to Shepard. It could, however, serve as a precedent in other challenges by inmates sentenced before the 2010 law.
Nebraska Attorney General’s Office spokeswoman Liz Eberle said the office is reviewing the opinion and its options for asking the high court to reconsider its decision.
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