Supreme Court of the State of Washington

                            Opinion Information Sheet

Docket Number:       73381-3
Title of Case:       Personal Restraint Petition of V Steven A. Forbis
File Date:           08/21/2003
Oral Argument Date:  06/12/2003

                                SOURCE OF APPEAL
Appeal from Superior Court,

Authored by Faith Ireland
Concurring: Barbara A. Madsen
            Bobbe J Bridge
            Charles W. Johnson
            Gerry L Alexander
            Richard B. Sanders
            Susan Owens
            Tom Chambers
            Mary Fairhurst

                                COUNSEL OF RECORD
Counsel for Petitioner(s)
            Aileen B Miller
            Atty Gen of Washington
            PO Box 40116
            Olympia, WA  98504-0116

            John Joseph Samson
            Attorney at Law
            PO Box 40116
            Olympia, WA  98504-0116

Counsel for Respondent(s)
            Christopher Gibson
            Attorney at Law
            1908 E Madison St
            Seattle, WA  98122

            Kitteridge Oldham
            Attorney at Law
            1011 Western Ave Ste 902
            Seattle, WA  98104-1080


In the Matter of the Personal Restraint          )
Petition of:                                     ) No. 73381-3
                                                 ) En Banc
                                                 ) Filed August 21, 2003.
     STEVEN A. FORBIS,                           )
Respondent.                                      )

     IRELAND, J. -- Steven Forbis was convicted of first degree murder and
is currently serving his sentence of 320 months in the Washington State
Penitentiary.  During his sentence, the Department of Corrections (DOC)
implemented a policy in which inmates are screened to determine whether
they would benefit from stress and anger management classes.  Forbis was
signed up for classes on three occasions.  He refused to attend and was
sanctioned by loss of earned release credits and privileges.  He filed a
personal restraint petition (PRP) alleging an ex post facto violation,
which was granted by the Court of Appeals, Division One.  We now reverse
the Court of Appeals.  Requiring Forbis to complete stress and anger
management classes and sanctioning him for refusing did not violate the ex
post facto clauses of the Washington and United States constitutions.
Forbis began serving his sentence on May 11, 1988.  In 1993, the DOC
instituted policy 320.400, a case management program aimed at "clearly
articulat{ing} expectations for offenders while under the {DOC's}
jurisdiction."  Resp. of the DOC Ex. 9, at 1.  The statutory grant of
authority cited in the policy is the general authority of the secretary of
corrections to direct the DOC, enacted in 1981 as RCW 72.09.050.  In
addition, a statute enacted in the 1994 special session authorized the DOC
to determine which offenders would benefit from stress and anger management
training.  Laws of 1994, 1st Spec. Sess., ch. 7, sec. 533.  Forbis's
counselor assessed him and determined that he needed stress and anger
management classes to assist him with "recognizing and effectively coping
with his stress and anger in the correctional environment and in the
community upon release."  Resp. of the DOC Ex. 2, at 1, 3.
Forbis claims he was first enrolled in a stress and anger management class
scheduled for May 2000.  He refused to attend the class because it was not
ordered by the court in his judgment and sentence.  Forbis did not earn
five days of his earned release credits.  His administrative appeal was
He was enrolled in a second class set for March 2001.  When he again
refused to attend, the DOC sanctioned him for an "infraction #557," which
is "{r}efusing to participate in an available education or work program or
other mandatory programming assignment" under WAC 137-28-260(557).
Pursuant to the April 6 hearing, he lost ten days of good time credits, his
earned release credits for March 2001, and 30 days of dayroom privileges.
His administrative appeal was denied, referencing DOC policy directive
The third class Forbis refused to attend was scheduled for April 2001.
Following his April 13 hearing, he lost 30 days of good time credits, his
earned release credits for April 2001, and 90 days of dayroom privileges.
Again, his administrative appeal was denied, with a reference to the policy
directive.  This was the last class for which he was scheduled.  He was
"unnassigned {sic} from the course" at that time.  Resp. of the DOC Ex. 5.
In May 2001, Forbis filed his PRP, objecting to the requirement that he
participate in stress and anger management classes.  The Court of Appeals
granted his PRP, prohibiting the DOC from applying the policy to Forbis.
In re Pers. Restraint of Forbis, 113 Wn. App. 822, 838, 57 P.3d 630 (2002).
The DOC filed a Motion for Discretionary Review with this court, which we
granted on April 2, 2003.

Is it a violation of the ex post facto clauses of the Washington and United

States Constitutions to require an inmate to attend stress and anger

classes, at the risk of losing earned release credits, under a policy
enacted after the

inmate was sentenced?
The constitutions of both the United States and Washington contain a
prohibition against ex post facto laws.  U.S. Const. art. I sec. 10; Wash.
Const. art. I, sec. 23.1  This prohibition applies to "penal statutes which
disadvantage the offender affected by them."  Collins v. Youngblood, 497
U.S. 37, 41, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990).  The ex post facto
prohibition forbids three categories of laws:
any statute {1} which punishes as a crime an act previously committed,
which was innocent when done; {2} which makes more burdensome the
punishment for a crime, after its commission, or
{3} which deprives one charged with crime of any defense available
according to law at the time when the act was committed, is prohibited as
ex post facto.

Beazell v. Ohio, 269 U.S. 167, 169-170, 46 S. Ct. 68, 70 L. Ed. 216 (1925).
A law falls into the second category if it (1) disadvantages the person
affected by the law by increasing the punishment and (2) is retrospectively
applied to acts that occurred before the law was enacted.  Weaver v.
Graham, 450 U.S. 24, 29, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981).2
In 1994, the legislature passed a statute authorizing the DOC to assess
inmates to identify those who would benefit from specialized training and
education.  It states:
     The department is authorized to determine whether any person subject
to the confines of a correctional facility would substantially benefit from
successful participation in: (1) Literacy training, (2) employment skills
training, or (3) educational efforts to identify and control sources of
anger and, upon a determination that the person would, may require such
successful participation as a condition for eligibility to obtain early
release from the confines of a correctional facility.

     The department shall adopt rules and procedures to administer this

Laws of 1994, 1st Spec. Sess., ch. 7, sec. 5333 (emphasis added).  The DOC
implemented policy 320.400, which calls for an inmate to be evaluated and
assessed to develop an intervention plan, identifying what programming
would be necessary.  The policy states that "{i}nmates who refuse to
participate in programming to address identified risk/need factors will be
subject to loss of earned time."  Resp. of the DOC Ex. 2, Att. 1.
Relying heavily on Weaver v. Graham, Forbis argues that subjecting him to
policy 320.400 violates the prohibition against ex post facto laws.  A
change in the rate at which an inmate could earn credit for good conduct
was held ex post facto in Weaver.  450 U.S. at 35-36.  In that case, the
Florida defendant pleaded guilty and was sentenced when the operative
statute allowed inmates to earn "gain time" at the rate of five days per
month in the first two years, ten days per month in the third and fourth
years, and fifteen days per month in all subsequent years.  Later, the
Florida legislature enacted a new formula using three, six, and nine days.
The Court held that the new law lengthened the amount of time that inmates
must remain in prison, even if they abided by the rules and performed
assigned tasks as before.  Weaver, 450 U.S. at 33.  Although the statutory
scheme did allow inmates to make up the difference by performing additional
tasks, including taking part in educational programs, the Court stated:
{T}he 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.

Weaver, 450 U.S. at 33 (emphasis added).  See also In re Ramirez, 39 Cal.
3d 931, 936, 705 P.2d 897, 218 Cal. Rptr. 324 (1985) (changes to statute
that increased amount of credits that could be lost met this portion of ex
post facto test from Weaver).  The change in the law increased the inmate's
The Weaver court also held that the statute was impermissibly retrospective
when applied to inmates who had committed their crimes before the amendment
because it "substantially alter{ed} the consequences attached to a crime
already completed."  Weaver, 450 U.S. at 33.  Under Weaver, a law cannot
"enhance the measure of punishment by altering the 'formula' used to
calculate the applicable {date for early release}."  Calif. Dep't of Corr.
v. Morales, 514 U.S. 499, 505, 518, 115 S. Ct. 1597, 131 L. Ed. 2d 588
(1995) (interpreting Weaver).
Weaver is distinguishable from this case because the formula for
calculating the date for Forbis's early release remains the same.
The DOC may reduce the term of an offender's sentence by "earned release
time" for "good behavior and good performance{} as determined by the
correctional agency having jurisdiction."  RCW 9.94A.728(1).  The statutory
maximum for earned release time is "one-third of the total sentence."  Id.
Under DOC procedures, "earned release time" is made up of "good time" and
"earned time."
The record did not elucidate the differences between "good time" and
"earned time," both of which were affected in Forbis's case.  Counsel for
the DOC stated at oral argument that "good time" is calculated at the
beginning of the sentence and will be lost only if an inmate does not
follow prison rules and regulations.  "Good time" credit rewards "good
behavior."  "Earned time," on the other hand, is determined on a monthly
basis depending upon whether an inmate completes assigned programming.
"Earned time" rewards "good performance."  An inmate's "good time" may be
reduced if he fails to follow rules and regulations, and he may not be able
to receive his "earned time" if he fails to successfully participate in
In Weaver, the statutory amendment completely altered the formula so that
an inmate who met all prison requirements still could not earn credits at
the former rate.  Here the formula remains the same:  an inmate gets the
same amount of "good time" with good conduct and "earned time" with good
performance.  Forbis did not abide by the DOC's rules, for which he lost
good time, or participate in his programming, for which he lost earned
Forbis's further challenge under Weaver is meritless.  He characterizes the
classes as an "additional condition" on earned release time, which he
claims is prohibited by Weaver as a law that "constricts the inmate's
opportunity to earn early release, and thereby makes more onerous the
punishment for crimes committed before its enactment."  Weaver, 450 U.S. at
35-36.  The DOC has long had authority to require an inmate to take part in
programming.  In the Corrections Reform Act of 1981, the legislature
directed the DOC to invest in 'effective rehabilitation programs for
offenders.'  Laws of 1981, ch. 136, sec. 2(5) (codified at RCW
72.09.010(6)).  It also allowed the DOC to create 'incentives for good
conduct and disincentives for poor conduct.' Laws of 1981, ch. 136, sec.
17.  Therefore, the DOC could require participation in rehabilitative
programs by sanctioning the 'poor conduct' of those who refused to take
The legislature also authorized the DOC to structure programs that 'reflect
the values of the community.'  Laws of 1981, ch. 136, sec. 2 (4) (codified
at RCW 72.09.010(5)).  Included in these values are:
(c) Providing opportunities for self improvement.  All individuals should
have opportunities to grow and expand their skills and abilities so as to
fulfill their role in the community.
(d) Linking the receipt or denial of privileges to responsible behavior and
accomplishments.  The individual who works to improve himself or herself
and the community should be rewarded for these efforts.  As a corollary,
there should be no rewards for no effort.

Laws of 1995, 1st Spec. Sess., ch. 19, sec. 2 (codified at RCW
72.09.010(5)(c), (d)) (emphasis added).  These grants of authority clearly
indicate that the DOC can create the programs and reward the inmates for
taking part in them.  Participation in programming is not an "added
condition."  The DOC has required Forbis to participate in programming, in
order to get earned time, since the beginning of his incarceration.
Moreover, requiring Forbis to take part in stress and anger management
classes does not increase his punishment.  Whether a law imposes punishment
is determined by a two-part test.  See Hudson v. United States, 522 U.S.
93, 99, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997).  First, the court asks
whether the legislature intended the law to be civil or criminal.  Id.
(quoting United States v. Ward, 448 U.S. 242, 248, 100 S. Ct. 2636, 65 L.
Ed. 2d 742 (1980)).  Then, if the law was intended to be civil, the burden
shifts to the prisoner to show by clearest proof that the effect of the law
is so punitive that it becomes a criminal penalty.  Id. at 99-100 (quoting
Ward, 448 U.S. at 248-49 and Rex Trailer Co. v. United States, 350 U.S.
148, 154, 76 S. Ct. 219, 100 L. Ed. 149 (1956)).
Here, the stress and anger management classes are meant to be
rehabilitative.  The classes are not scheduled to punish the inmates, but
rather to help them cope in their environment, both in prison and
postconfinement.  This is a civil, rather than criminal, purpose.  Shifting
the burden to Forbis, he fails to show that the effect of requiring the
classes is punitive.  In fact, he acknowledges that training in anger
management is a 'rehabilitative component{}' of a prison sentence.  Suppl.
Br. of Resp't at 13 n.9.
Finally, Forbis asserts that the DOC did not have authority to require his
participation in this type of programming - stress and anger management
classes - until well after his incarceration.  Forbis argues that because
the legislature did not specifically mention stress and anger management in
the 1981 statutes, but in 1994 did pass the statute regarding such
programs, the 1981 statute did not authorize
these programs.5  Citing the principle of statutory construction that the
legislature does not engage in meaningless acts, Forbis argues that the
1994 statute would be superfluous if the 1981 statute already authorized
the DOC to create the classes.  Suppl. Br. of Resp't at 19.  The Court of
Appeals adopted this argument when it held that the DOC was retrospectively
applying the new policy to Forbis.  Forbis, 113 Wn. App. at 834.
We disagree with the Court of Appeals.  The legislative purpose in enacting
a statute which specifically refers to stress and anger management need not
be deemed superfluous or meaningless even if the DOC already had authority
to create such classes beginning in 1981.  For instance, the legislature
may have intended to call attention to this particular concern when it
passed the 1994 statute.  Another possible legislative purpose is to
present the assessment method as the way to determine which inmates need
In addition, as the DOC points out, the 1981 statute also gave the DOC
authority to create 'work training' programs.  Suppl. Br. of Pet'r at 10
(citing RCW 72.09.130).  The 1994 statute referred to 'employment skills
training.'  RCW 9.94A.580.  By Forbis's reasoning, the 1994 reference to
'employment skills training' would also be superfluous unless it were a new
grant of authority.  We do not accept this reasoning with regard to either
employment skills training or stress and anger management training.  The
DOC was authorized to conduct both before Forbis's crime, conviction, and
Although the statute and policy that specifically reference stress and
anger management classes were enacted after Forbis committed his crime,
they do not violate the ex post facto clauses of the constitutions of the
United States and Washington.  Neither the statute nor the policy
retroactively increases Forbis's punishment by altering the formula by
which Forbis can obtain earned release credits under RCW 9.94A.728(1).  He
and others in his position are still required to follow DOC rules and
regulations to retain "good time" and complete mandatory programming to
acquire "earned time."  The stress and anger management programming is not
a new condition that makes Forbis's sentence more onerous.  Instead, it is
simply another type of programming that the DOC has long been authorized to
impose.  Therefore, the Court of Appeals is reversed, and Forbis's personal
restraint petition is dismissed.

1 The text of the United States Constitution's ex post facto clause ("No
state shall . . . pass any . . . ex post facto law . . . .") is comparable
to that of Washington's ("No . . . ex post facto law . . . shall ever be
passed.").  Forbis does not argue that the provision in our state's
constitution is more protective of defendants than the provision in the
United States Constitution.
2 A law may survive an ex post facto challenge if it is merely procedural
(i.e., "changes in the procedures by which a criminal case is adjudicated,
as opposed to changes in the substantive law of crimes," Collins, 497 U.S.
at 45, that have no effect on "matters of substance," Beazell, 269 U.S. at
171).  Collins, 497 U.S. at 44-46.  The Court of Appeals concluded that the
statute and policy did affect Forbis's "substantive right to earn early
release credits."  Forbis, 113 Wn. App. at 833 (emphasis added).  In its
briefs to this court, the DOC does not challenge that conclusion or renew
its argument, made to the Court of Appeals, that the policy is merely
3 Codified as former RCW 9.94A.132 (1994).  Recodified as RCW 9.94A.580 by
Laws of 2001, ch. 10, sec. 6.
4 Likewise, the out-of-jurisdiction cases Forbis cites in his briefs and
Statement of Additional Authority simply follow Weaver.  See, e.g., Britt
v. Chiles, 704 So. 2d 1046 (Fla. 1997) (amendment to statute that made
forfeiture of six months' eligibility to earn gain time mandatory violated
Ex Post Facto Clause); Stansbury v. Hannigan, 265 Kan. 404, 960 P.2d 227
(1998) (amendment to statute that retrospectively altered the method by
which good time credits were gained, lost, or withheld violated Ex Post
Facto Clause).  They are distinguishable on the same grounds:  the laws at
issue in those cases altered the formula used to calculate early release,
but the laws at issue in this case do not.
5 Forbis also suggests that, because the record shows the DOC relied on the
1994 statute and policy 320.400 to require Forbis to take the classes, the
DOC believed it had authority only under the later statute.  Suppl. Br. of
Resp't at 18.  As evidenced not only by the briefs, but also by the text of
the policy, the DOC believes its authority is based on the former statute.