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AGO Opinion 97005

New Good Time Law and Ex Post Facto Clause
Opinion 97005


DATE: January 13, 1997

SUBJECT: New Good Time Law and Ex Post Facto Clause




REQUESTED BY: Harold W. Clarke, Director,

Department of Correctional Services




WRITTEN BY: Don Stenberg, Attorney General

J. Kirk Brown, Assistant Attorney General




QUESTION: Are the changes in the good time credits created by

the passage of LB 371, Laws 1995 to be applied to

the calculation of a criminal sentence based upon

the date that the offense was committed or the date

upon which the sentence was either imposed or

became final?




CONCLUSION: When a change in the credit of statutory good time

is enacted by our Legislature, the general rule,

applicable in this case, is that the good time

provisions of the law in effect at the time the

offense was committed are to be applied to the

calculation of a criminal sentence.




The general rule is that the date upon which a crime was

committed governs the statutory good time credits to be employed in

the calculation of a prisoner's sentence, rather than the date the

sentence was imposed. Weaver v. Graham, 450 U.S. 24, 67 L.Ed.2d

17, 101 S.Ct. 960 (1981). We believe that rule is applicable to

your question.




The principal exception to that general rule is: If the

Legislature increases the amount of statutory good time available

to a prisoner between the date of the offense and the date when

that prisoner's sentence becomes legally "final", then that

prisoner is entitled to the benefit of the more generous statutory

good time credits. State v. Schrein, 247 Neb. 256, 526 N.W.2d 420

(1995). However, for the reason discussed below, we do not believe

that exception to be at issue here.




We understand that you view the changes in Nebraska's

statutory good time scheme wrought by the passage of LB 371 (1995)

to generally result in longer terms of incarceration for Nebraska

prisoners and our review of that legislation leads us to that same

general conclusion. Certainly, that is the case with respect to the

calculation of a prisoner's discharge date which we believe to be

the crucial question.




Therefore, in our opinion, the statutory good time credits

provided by LB 371 are applicable only to sentences imposed for

crimes committed on or after the July 1, 1996 effective date of

that legislation.




Sincerely yours,




DON STENBERG

Attorney General








J. Kirk Brown

Assistant Attorney General




Approved:








______________________________

DON STENBERG, Attorney General