LINCOLN — A 2010 Nebraska law that requires a prisoner to serve his maximum sentence if he refuses to provide a DNA sample to the state violates the constitutional rights of an inmate who sued, a state judge has ruled.
Lancaster County District Judge Andrew Jacobsen sided last month with inmate George Shepard, the Lincoln Journal Star reported.
Since 2010, Nebraska prison inmates starting sentences on any felony conviction have been required to provide DNA samples to authorities.
The law requires inmates already in prison to provide DNA samples, too, and requires them to serve their maximum term of confinement if they don't.
Shepard, who is serving a 40- to 50-year sentence for first-degree sexual assault, sued. Shepard, 59, argued that he was sentenced before the 2010 law took effect, and that he would have been eligible for parole after serving 20 years. But because he refused to give a DNA sample, the new law says he must serve all 50 years.
Shepard said that violates his constitutional rights, because the law effectively retroactively increased the punishment for the crime for which he'd already been sentenced.
The Nebraska Attorney General's Office argued the law wasn't unconstitutional but rather was a nonpunitive civil regulation enacted to assist law enforcement efforts.
Corrections Department attorneys argued that any loss of “good time” credit was the result of an inmate violating a prison regulation and not a penalty. “Good time” is a system that gives prisoners one day of credit toward their sentences for each day spent behind bars without violating prison rules.
Jacobsen said the prison director doesn't have the authority to impose penalties for failing to comply with state law, and good time can be lost only through disciplinary proceedings.
With no charges of misconduct against him, Shepard is entitled to the sentence as given, Jacobsen said.
Corrections spokeswoman Dawn-Renee Smith said she did not know whether the department will make any changes.
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