11 F.

3d 482
62 USLW 2435

Stacy L. EWELL, Plaintiff-Appellant,

and
Michael D. Corley; Daniel James; Shawn Pender; John Doe,
Plaintiffs,
v.
Edward W. MURRAY; E.C. Morris, Defendants-Appellees.
Stacy L. EWELL; Michael D. Corley; Daniel James; Shawn
Pender, Plaintiffs-Appellants,
and
John Doe, Plaintiff,
v.
Edward W. MURRAY; E.C. Morris, Defendants-Appellees.
Nos. 92-6169, 93-6269.

United States Court of Appeals,

Fourth Circuit.
Argued June 9, 1993.
Decided Dec. 10, 1993.

Gretal J. Toker, Third-Year Law Student and Harold Jonathan Krent,

Professor, argued (James T. McLaughlin, Third-Year Law Student, Sara
K. Stadler, on brief), Post-Conviction Assistance Project, University of
Virginia School of Law, Charlottesville, VA, for appellants.
Mark Ralph Davis, Asst. Atty. Gen., argued (Stephen D. Rosenthal, Atty.
Gen., on brief), Office of the Atty. Gen., Richmond, VA, for defendantsappellees.
Before HALL and NIEMEYER, Circuit Judges, and BRITT, United
States District Judge for the Eastern District of North Carolina, sitting by
designation.
OPINION

NIEMEYER, Circuit Judge:

The Commonwealth of Virginia enacted a statute in 1990 for the establishment

of a DNA data bank which provides that every inmate in the custody of its
Department of Corrections "shall provide a blood sample prior to his release."
Va.Code Sec. 19.2-310.2. Implementing the legislative directive, the Virginia
Department of Corrections issued regulations, first in March 1991 and again in
April 1992, which provide for punishment, by loss of good conduct credits, of
an inmate who refuses to provide a blood sample. Four inmates, Stacy L. Ewell,
Michael D. Corley, Daniel James and Shawn Pender, who are in the custody of
the Department of Corrections for offenses committed between July 1986 and
November 1987 and who had elected to participate in the good conduct
allowance system, filed a class action against Virginia Department of
Correction officials under 42 U.S.C. Sec. 1983 for injunctive relief, contending
that the Department of Corrections' regulations constitute a change to the good
conduct allowance system which violates the Ex Post Facto Clause of the
United States Constitution. They also contended that the changes implicate
liberty interests protected by the Fourteenth Amendment.

On defendants' motion for summary judgment, the district court rejected both
contentions and entered judgment for the defendants. The inmates now contend
that the district court erred in making those rulings. For the reasons that follow,
we affirm.

* With the expectation of improving criminal law enforcement with improved

methods of identification through DNA (deoxyribonucleic acid) analysis, the
Commonwealth of Virginia established a DNA data bank in 1990 by enacting
Va.Code Sec. 19.2-310.2 which provides for the collection, analysis, and
exchange of DNA information about convicted felons. The law directs that a
felon already in custody on the effective date of the statute "shall provide a
blood sample prior to his release." Va.Code Sec. 19.2-310.2.

Shortly after the effective date of the statute, six Virginia inmates challenged
the constitutionality of the statute, contending that it violated the inmates'
Fourth Amendment rights, violated the Constitution's Ex Post Facto Clause,
and interfered with the inmates' vested liberty interests in violation of the
Fourteenth Amendment's Due Process Clause. In Jones v. Murray, 962 F.2d
302 (4th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 472, 121 L.Ed.2d 378
(1992), we rejected most of those inmates' claims, holding that the statute does
not violate the Fourth and Fourteenth Amendments. With respect to the
contention that the statute violates the Ex Post Facto Clause, we concluded that

it was a reasonable prison regulation which did not constitute additional

punishment. We stated:
5

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.

6* * * * * *
7 is precisely because reasonable prison regulations, and subsequent punishment for
It
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.
8

During the period of time that Jones v. Murray was being prosecuted through
the courts, the Virginia Department of Corrections adopted regulations that
punished an inmate's refusal to provide blood samples pursuant to the statute
establishing the DNA data bank. In a March 1991 amendment, the Department
of Corrections treated the refusal of an inmate to provide blood samples as a
refusal to comply with a direct order, exposing the inmate to loss of good
conduct credits of up to 30 days. See Department of Corrections Operating
Procedure ("DOP") 806-7.14.6 (March 1, 1991) (providing that "DNA refusals"
constitute an infraction)1 ; Department of Corrections Guideline ("DGL") 861
VIII.A.201; B.7; & C.1 (January 1, 1984) (providing for a loss of good conduct
time of up to 30 days for violation of a direct order). In April 1992 the
Department of Corrections amended DGL 861, renaming it DOP 861, and
increased the penalty for an inmate's failure to give a blood sample. Under the
scheme as amended in April 1992, an inmate's first refusal to provide a blood
sample is punishable by loss of 90 days good conduct time; a second refusal is
punishable by loss of 180 days good conduct time; and subsequent refusals are
punishable by the loss of all accumulated good conduct time. In addition, an
inmate may be subject to placement in isolation for up to 15 days for each
infraction. See DOP 861-7.1.116-118; 7.2; 7.3; and 7.4.6 (April 1, 1992). When
an inmate complies and provides a blood sample, good time lost as a result of
an earlier refusal may be administratively restored. See DOP 861-7.4.6.

The inmates contend that the March 1991 amendment to DOP 806, imposing
the loss of good-time credits for an inmate's refusal to provide a blood sample,
and the April 1992 amendment to DOP 861, increasing the punishment for
such a refusal by increasing the amount of good conduct credits that may be
lost, impermissibly changes the good conduct allowance system to their
disadvantage after their sentences were imposed, in violation of the Ex Post
Facto Clause of the United States Constitution. They rely principally on

Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (holding
that a state's revision to administrative rules of its good-time credit system that
disadvantages all previously sentenced inmates violates Ex Post Facto Clause),
and Fender v. Thompson, 883 F.2d 303 (4th Cir.1989) (holding that
punishment for escape that includes the inmate's loss of parole eligibility for
the offense for which he was originally incarcerated violates the Ex Post Facto
Clause).
10

The Constitution provides that "No State shall ... pass any ... ex post facto
Law." U.S. Const. art. 1, Sec. 10, cl. 1. The prohibition against ex post facto
laws was included in the Constitution to restrain state legislatures from
"enacting arbitrary or vindictive legislation" and to assure that legislative
enactments give "fair warning of their effect," thus permitting the public to rely
on them. See Miller v. Florida, 482 U.S. 423, 429-30, 107 S.Ct. 2446, 2450-51,
96 L.Ed.2d 351 (1987). The prohibition, which "applies only to penal statutes
which disadvantage the offender affected by them", see Collins v. Youngblood,
497 U.S. 37, 41, 110 S.Ct. 2715, 2718, 111 L.Ed.2d 30 (1990), assures that
innocent conduct not be made criminal after the fact and that greater
punishment not be imposed after the fact. See Weaver, 450 U.S. at 28, 101
S.Ct. at 963. The settled definition describes as ex post facto,

11 statute which punishes as a crime an act previously committed, which was

any
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 that the act was committed....
12

Collins, 497 U.S. at 42, 110 S.Ct. at 2719 (quoting Beazell v. Ohio, 269 U.S.
167, 169-70, 46 S.Ct. 68, 68, 70 L.Ed. 216 (1925). Although some early
Supreme Court cases had suggested a broader definition of an ex post facto law
which includes any law which, "in relation to the offence or its consequences,
alters the situation of a party to his disadvantage," see Kring v. Missouri, 107
U.S. 221, 228-29, 2 S.Ct. 443, 449, 27 L.Ed. 506 (1883) (emphasis added), the
Supreme Court in Collins noted that this definition was too broad, and it
expressly overruled Kring. Collins, 497 U.S. at 50, 110 S.Ct. at 2723. In
Collins, the Court also noted that not all post-conduct changes to the rights of a
defendant, even though substantial, implicate the Ex Post Facto Clause--only
those that change the definition of a crime, or a defense to a crime, or alter its
punishment. Id at 51, 110 S.Ct. at 2723.

13

In Jones v. Murray, we considered these principles in reviewing the

constitutionality of Virginia Code Sec. 19.2-310.2 which established the DNA
bank and required inmates to provide blood samples. We concluded that the

statute constituted a reasonable regulation which was not penal in nature, and
that the punishment of inmates for failure to comply with directives to provide
a blood sample was contemplated as part of the sentence of every prisoner. 962
F.2d at 309. Reasonable prison regulations are not frozen at the time of each
inmate's conduct, but rather, they may be subject to reasonable amendments as
necessary for good prison administration, safety and efficiency, without
implicating ex post facto concerns. See Gaston v. Taylor, 946 F.2d 340, 343
(4th Cir.1991) (en banc). Thus, we held that Virginia's enactment of a
requirement that inmates provide blood samples or suffer punishment for their
refusal did not constitute an ex post facto law. Jones, 962 F.2d at 310.
14

Jones specifically addresses the inmates' argument here that the March 1, 1991
amendment, classifying inmates' refusal to give a blood sample as an infraction,
and mandates the conclusion that the amendment does not violate the Ex Post
Facto Clause. We are therefore left only with the question of whether the April
1992 amendment, which increases the penalty for the infraction, is ex post
facto.

15

It might be helpful in addressing this question to refine the issue and determine
what is not involved here. First, we have already determined that the Virginia
statute establishing the DNA bank is not penal in nature and therefore, as a
reasonable prison regulation, may be applied to all inmates. We also must note
that the good conduct allowance system itself, established by Virginia Code
Sec. 53.1-198 et. seq., was not amended during the applicable periods here. The
rate of good conduct time allowed and the structure of the system have
remained constant. Therefore, if the inmates have complied with all prison
regulations and requirements, the time they will spend in prison remains the
same as it would have, had the DNA requirements not been adopted. We are
thus presented with the narrow question of whether prison officials may,
consistent with the Ex Post Facto Clause, reasonably increase the penalties for
prospective violations by inmates of reasonable prison regulations when the
penalties may involve the loss of good conduct time credits. We hold that they
may.

16

There is no dispute that the requirement of providing blood samples and the
nature and extent of the penalties for refusal were announced before any
refusals occurred. Each inmate was given ample notice and was presented with
the clear choice of whether to comply with the order of prison officials to
provide a blood sample or to refuse, knowing of the nature and extent of the
penalty in advance.

17

We might ask if this situation is any different in principle from the situation

where prison officials, confronted with increased problems within the prison
population of fighting or drug usage, meet the problem with the adoption of
additional punishment for prospective violations. The punishment does not add
punishment for the original crime for which the inmate was incarcerated. Just
as good conduct allowances may be earned by compliance with reasonable
prison regulations, they may be lost by subsequent noncomplying conduct.
While an inmate has the right, as of the time of his sentence, to expect the good
conduct credits then defined for good behavior, he has no right to a particular
set of prison regulations adopted to maintain the order, safety, and efficiency of
the prison. Accordingly, we conclude that the April 1992 amendment to DOP
861, which operates prospectively to increase penalties for the refusal to
provide a blood sample, is constitutional.
18

The inmates' reliance on Weaver v. Graham and Fender v. Thompson does not
advance their cause. In Weaver, the state of Florida adopted a statute that
reduced the number of monthly "gain-time" credits available to every inmate in
its correctional system, even though the inmate had "committed no infraction of
the rules and regulations of the division, or laws of the state, and ... has
performed in a faithful, diligent, industrious, orderly and peaceful manner, the
work, duties and tasks assigned to him." 450 U.S. at 26, 101 S.Ct. at 962
(quoting Fla.Stat. Sec. 944.27(1) (1975)). By its terms the provision applied to
all inmates, including those sentenced before the effective date of the statute.
Observing that the punishment of those inmates, who were sentenced under the
scheme with more generous gain-time opportunities, was increased, the
Supreme Court held that the enactment violated the Ex Post Facto Clause. The
Court said, "The new provision constricts the inmate's opportunity to earn early
release, and thereby makes more onerous the punishment for crimes committed
before its enactment." Id. at 35-36, 101 S.Ct. at 967-68. The Court's holding,
however, carefully noted that the statutory reduction in gain-time opportunities
was not related to infractions or prison behavior but applied to an inmate who
complied fully with prison rules and regulations, leading to the conclusion that
the reductions of gain-time opportunities necessarily amounted to an alteration
of the sentence originally imposed. As the court observed,

19 its face, the statute reduces the number of monthly gain-time credits available to
On
an inmate who abides by prison rules and adequately performs his assigned tasks.
******
20
21 fact remains that an inmate who performs satisfactory work and avoids
The
disciplinary violations could obtain more gain time per month under the repealed
provision, Sec. 944.27(1) (1975) than he could for the same conduct under the new
provision, Sec. 944.275(1) (1979).

22

Id. at 33, 35, 101 S.Ct. at 966, 967 (emphasis added). In contrast, in the case
before us, the opportunity for good conduct allowances of a well-behaving
inmate is not altered. An inmate who complies with rules and regulations
receives the same credit for good behavior before and after the amendments to
DOP 806 and 861. A loss of good conduct credits is meted out only for
infractions, and then only prospectively.

23

In Fender, the Commonwealth of Virginia adopted a statute that increased the

punishment for the crime of escape by denying the escaping inmate all
eligibility for parole for the offense for which he was originally incarcerated.
The loss of parole eligibility was an additional punishment for the sentence
imposed for the original crime as well as for the crime of escape. We concluded
that the Ex Post Facto Clause prohibited Virginia from applying that statute
retroactively "to revoke the [inmate's] preexisting eligibility for parole." 883
F.2d at 307. In the case before us, in contrast, the DNA provision is not penal,
but administrative, and the prison regulation ordering inmate compliance with
an administrative regulation is reasonably within the administrative structure of
prison authority that attends every sentence. Only when the inmate chooses to
violate the order of prison officials is he punished, and then only for the new
conduct constituting a violation of a reasonable prison regulation and not as
additional punishment for the original crime.

24

In summary, the good conduct credit system in this case has remained constant,
unlike the circumstances in Weaver, and prison punishment was adopted to
apply to existing inmates prospectively for infractions of reasonable prison
regulations. Accordingly, we hold that the regulations adopted by the Virginia
Department of Corrections with its amendments of March 1991 to DOP 806
and April 1992 to DOP 861 do not violate the Ex Post Facto Clause of the
United States Constitution.2

II
25

The inmates also contend that the changes in Department of Corrections

regulations imposing an additional loss of good-time credits for failure to
provide blood samples violates the Due Process Clause because it deprives the
inmates "of a vested liberty interest in the terms and conditions of the goodtime credit policy they entered." They argue that because they "joined the
[good conduct allowance] program prior to the effective date of the revisions of
DOP 806," they have a valid liberty interest in receiving good conduct credits
under the terms specified before the amendments.

26

Although the range of protected liberty interests is particularly narrow for

persons who are lawfully incarcerated, confinement to prison does not strip a
prisoner of all liberty interests. See Gaston, 946 F.2d at 343. Thus, a state may
create for an inmate a protected liberty interest by enacting procedures that
sufficiently channel the discretion exercised by prison officials. See Hewitt v.
Helms, 459 U.S. 460, 469, 103 S.Ct. 864, 870, 74 L.Ed.2d 675 (1983). To do
so, however, the statutory or regulatory measures at issue must "go[ ] beyond
simple procedural guidelines" by using language "of an unmistakably
mandatory character requiring that certain procedures 'shall,' 'will' or 'must' be
employed...." Id. at 471, 103 S.Ct. at 871; see also, Kentucky Department of
Corrections v. Thompson, 490 U.S. 454, 462, 109 S.Ct. 1904, 1909, 104
L.Ed.2d 506 (1989) (noting that a state may create a liberty interest by
"establishing 'substantive predicates' to govern official decision-making ... and,
further, by mandating the outcome to be reached upon a finding that the
relevant criteria have been met"). But the inmates do not have a protected
liberty interest in the procedures themselves, only in the subject matter to which
they are directed. The procedures may be changed at the will of prison officials
so long as they afford that process which is due under the Due Process Clause
of the Fourteenth Amendment. See Wolff v. McDonnell, 418 U.S. 539, 557, 94
S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974) (when a state creates protected liberty
interests in good-time credits, the inmate is entitled "to those minimum
procedures appropriate under the circumstances and required by the Due
Process Clause to ensure that the state-created right is not arbitrarily
abrogated"); Riccio v. County of Fairfax, 907 F.2d 1459, 1469 (4th Cir.1990)
(same). The holding of Wolff teaches that before prisoners may be punished for
misconduct by being deprived of good-time credits, they must be given
advance written notice of the charges against them, they must be allowed to call
witnesses (if prison safety so allows), and the factfinders must issue a written
statement as to the evidence relied upon and the reasons for the disciplinary
action. 418 U.S. at 563-67, 94 S.Ct. at 2978-80.
27

Accepting the inmates' claim that Virginia's system of awarding good conduct
credit created a liberty interest protected by the Fourteenth Amendment, see
Wolff, 418 U.S. at 557, 94 S.Ct. at 2975, we are nevertheless satisfied that the
amended version of DOP 861 provides due process and more when credits are
withdrawn. See DOP 861 7.6-1 (procedures for filing disciplinary report of an
offense and giving notice to inmate of change); 7.7-1 (requiring prison official
to meet with inmate to discuss change and inform him of his rights); 7.7-2
(requiring the recordation of the inmate's election of rights, including the right
to an advisor during the hearing on the charge, and the right to call witnesses,
and requiring that the inmate be given a written copy of the charge); 7.17-1
(requiring that disciplinary report contain summary of evidence presented, and
written findings of basis for decision and penalty); 7.19 (requiring that inmate

be given two copies of disciplinary report as soon after institutional review is

completed as possible). Therefore, the regulations adopted to establish penalties
for the refusal by an inmate to provide blood samples do not violate the
Fourteenth Amendment.
III
28

For the reasons that we have stated in Jones v. Murray, 962 F.2d 302 (1992),
and that we give here, we affirm the judgment of the district court.

29

AFFIRMED.

DOP 806-7.14.6 (March 1, 1991) provides:

DNA Refusals. An inmate who fails to comply with [Virginia Code] Section
19.2-310.2 and refuses to provide a blood sample for DNA testing should be
charged under DOP 861 and, upon conviction by the Adjustment Committee,
will be afforded a due process hearing by the Institutional Classification
Committee. The inmate will be reduced to GCA Class IV retroactive to the date
of the infraction and will not be eligible to earn good time until such time as he
provides the blood sample.

The defendants have also argued that prison regulations are not legislative
enactments that implicate the Ex Post Facto Clause, but only interpretive rules.
See United States v. Ellen, 961 F.2d 462 (4th Cir.) (distinguishing for ex post
facto purposes between administrative rules that are an extension of a
legislative enactment and agency interpretive rules), cert. denied, --- U.S. ----,
113 S.Ct. 217, 121 L.Ed.2d 155 (1992); also compare Bailey v. Gardebring,
940 F.2d 1150 (8th Cir.1991), cert. denied sub nom., Bailey v. Noot, --- U.S. ---, 112 S.Ct. 1516, 117 L.Ed.2d 652 (1992), with Flemming v. Oregon Bd. of
Parole, 998 F.2d 721 (9th Cir.1993). Although our discussion about whether
Virginia's regulations violate the Ex Post Facto Clause assumes that they are
laws for purposes of an ex post facto analysis, because of our ruling we do not
reach and therefore do not decide that question here