The Ex Post Facto Clause of the Constitution provides that the government can’t retroactively increase the penalty for criminal conduct. It applies not just to initial sentence length but also to potential “good-time credit” prisoners can earn to reduce their sentences.

In California, prior to 2010, prisoners in the general population got one day of good-time credit for each day served, while prisoners in disciplinary segregation got one day of good-time credit for each three days served. Then, in January 2010, the legislature changed the law so that prisoners sent to disciplinary segregation based on alleged gang affiliation earned no good-time credit whatsoever.

And the new rule change applied retroactively, covering prisoners who’d been convicted and sentenced under the prior good-time credit regime.

It turns out that’s unconstitutional. So said the Ninth Circuit on September 25, 2015 in a case called Hinojosa v. Davey [803 F.3d 412 (9th Cir. 2015), petition for cert. filed]. The court explained that prior to the 2010 amendments, a potential criminal defendant would know that his sentence exposure was the statutory max term, minus one-to-one credit for time in general population, or three-to-one credit for SHU time. And he had a constitutional right to those predictions remaining stable throughout his sentence.

Such predictability is of both constitutional and practical import. The Hinojosa decision quotes from a 1981 Supreme Court case, Weaver v. Graham, that explained that “a prisoner’s eligibility for reduced imprisonment is a significant factor entering into both the defendant’s decision to plea bargain and the judge’s calculation of the sentence to be imposed,” and that a new law that retroactively “constricts the inmate’s opportunity to earn early release ... makes more onerous the punishment for crimes committed before its enactment” – which the Ex Post Facto Clause forbids.

Many prisoners are sent to segregation based on the thinnest and most evanescent allegations of gang affiliation, many of which are little more than racial identification and possession of prison newsletters or photos. The practice of so-called “gang validation” has received widespread criticism, because it was the primary vehicle under which thousands of California prisoners were placed in solitary confinement for years at a time.

So the Hinojosa decision should have been great news – it should have put an end to the retroactive application of the 2010 rule changes, and several hundred prisoners should have regained their wrongfully denied good-time credit and had their release dates recalculated.

I thought last fall that the state had begun that process, because one of my former clients was released soon after the Hinojosa decision and was told that his good-time credit had been re-credited to him. I was pleased that the Department of Corrections and Rehabilitation was following the ruling, and a I wrote a column in The Crime Report saying so.

It turns out that The Crime Report is available in the California prison system, because after my column appeared I started getting letters from prisoners saying they’d read it and gone to their counselors to ask for recalculation of their good-time credit under Hinojosa.

They were told, flatly, no.

Prison officials are telling prisoners that the Department of Corrections is not awarding any back good-time credit to anybody based on Hinojosa, and that the Hinojosa decision does not apply to anyone other than Hinojosa himself. Now, to a lawyer that seems absurd. The point of our common-law system of adjudicating disputes is that an appellate court’s decision is binding on every entity, institution and individual within its jurisdiction. So when the Ninth Circuit says the retroactive application of a statute is unconstitutional, then the state needs to stop retroactively applying that statute.

But here’s the thing: one of the holdovers from the uneasy truce the Framers made in coming up with our constitutional system is the concept of “dual sovereignty” in our courts. Each state’s court system exists side-by-side with the federal system. Now it turns out that back in 2011, a California intermediate appellate court had ruled that the 2010 good-time statute changes were not unconstitutional under the Ex Post Facto Clause.

So what we have now in California is a direct conflict between a state court and the controlling federal court over the meaning of a clause in the federal Constitution.

In a nutshell, state courts do not have to follow the rulings of the lower federal courts. They do have to follow the Supreme Court, but the Supreme Court decides fewer than 100 cases a year (of the 8,000 or so cert petitions filed each year from more than 30,000 federal appellate decisions and hundreds of thousands of state decisions). So in a dispute in state court, a state judge could (and likely would) follow a state appellate decision despite a directly contrary Ninth Circuit decision.

But the dual sovereignty doctrine does not insulate individual state officials from federal law. That’s why, for example, a federal district court in Kentucky could issue an injunction requiring a state official to issue marriage licenses, as in the recent Kim Davis litigation. Couldn’t prisoners in California do the same? Couldn’t they invoke the ancient right of habeas corpus – the Great Writ dating from the barons’ revolt against King John in 1215 – and ask a federal judge to order prison officials (normally the warden is the named defendant in a habeas petition) to give them back their unconstitutionally-denied good-time credit?

The answer is no.

Prisoners – unlike every other category of litigant in the United States who wishes to vindicate his or her constitutional rights – cannot go directly to federal court to challenge the constitutionality of their confinement. They are required by federal law to first litigate all habeas issues in state court. And then, once they’ve exhausted their state litigation, prisoners can still only get relief in federal court if they can show that the state court ruling denying their habeas petition was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”

That means that in order to challenge a state-court denial of a habeas petition in federal court, a prisoner must show that the state-court ruling directly conflicts with a Supreme Court decision; conflict with a federal Circuit Court decision is not enough. In other words, California state courts may safely ignore what the Ninth Circuit says, because prisoners cannot get into federal court to get a hearing despite the fact that there is now a controlling precedent from the Ninth Circuit holding that the denial of good-time credit is unconstitutional.

If a prisoner can get the issue decided in a federal court, then the federal court will follow the Ninth Circuit and order the prisoner’s release. State officials such as prison wardens are bound by federal court orders. That’s why Hinojosa himself was released. (In a procedural quirk in his case, the state court did not decide his habeas petition on the merits, but instead dismissed it on the grounds that he filed it in the wrong place, so the federal courts were able to reach the constitutional issue.)

But prisoners cannot get into federal court, because they first have to litigate the issue in state court, and the state courts can ignore the Ninth Circuit precedent. So state officials are simply ignoring the Ninth Circuit as well, because they know that prisoners can’t get into court to enforce the ruling.

That is an interesting state of affairs, one which I have a hard time explaining to non-lawyer Americans, let alone visitors from other countries who assume that the U.S. has one court system and one decisional hierarchy that applies throughout the entire country. Still more surprising is who we have to blame: President Bill Clinton.

The Catch-22 I just described was created by a 1996 federal statute championed by Bill Clinton after the Oklahoma City bombings, the Anti-terrorism and Effective Death Penalty Act, or AEDPA for short.

Now, as I indicated in my previous column on this case in The Crime Report, the State of California – specifically, Attorney General Kamala Harris – could simply have decided to follow the Ninth Circuit. There is nothing in state law that says that the state must ignore decisions of the Ninth Circuit just because AEDPA prevents prisoners from getting into federal court.

Unfortunately, however, the state has chosen to ignore the Ninth Circuit.

That’s not just what prisoners are saying, either; it is the state’s official response to a public records request I filed with the state Department of Corrections, asking for information regarding the state’s response to the Hinojosa decision.

Here’s the official response: “CDCR states that one inmate has been released by CDCR as of the date of this request based on recalculation of his release date pursuant to Hinojosa: Mr. Hinojosa.... CDCR states that it has recalculated one inmate release date pursuant to Hinojosa: Mr. Hinojosa’s....”

I also asked whether CDCR has any written policies or directives regarding compliance with Hinojosa. The answer: No.

Needless to say, I find this response deeply disappointing and Attorney General Harris needs to rectify the situation. It may be that the matter has not actually percolated up to the Attorney General’s desk. If so, I hope it gets there soon. The buck stops with her. She should make a considered decision about whether to ignore the Ninth Circuit, and publicly explain it.

Alternatively, the state could request that the Supreme Court of California issue an advisory opinion about the constitutionality of retroactive application of the good-time credit system. (The Supreme Court of California, unlike federal courts, is empowered to issue advisory opinions.)

But the current state of affairs is untenable. Our democracy is not well-served when a major state agency decides to ignore a precedential decision of the governing federal Court of Appeals without giving any explanation, and gets away with it because prisoners are barred under AEDPA from getting into federal court to enforce their rights.

Attorney General Harris is a frontrunner in the race for a Senate seat from California. Her candidacy is championed by progressives of all stripes. I myself have been a longtime Harris fan, and I think she will make an excellent senator. But I am deeply troubled by any state official or agency that is simply thumbing its nose at a constitutional ruling issued by the controlling federal Court of Appeals.

The state should not take advantage of the unduly restrictive AEDPA barriers to prisoners accessing the federal courts, in order to hide its head in the sand and pretend that the Hinojosa decision does not exist.

The Ex Post Facto Clause is an important component of the suite of procedural rights the Constitution created to protect all Americans from arbitrary and excessive punishment. Attorney General Harris needs to address this issue publicly and, at a minimum, explain what the state’s position is and how she justifies that position.

Caleb Mason is a partner at Brown White & Osborn in Los Angeles, and a former federal prosecutor. A slightly different version of this article appeared in The Crime Report (www.thecrimereport.org) on March 17, 2016; reprinted with permission.

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