Seventh Circuit Upholds Disciplinary Sanction Revoking Over 15 Years of Indiana Prisoner’s Good Time
by Douglas Ankney
When Indiana state prisoner Tony Love participated in a brawl, he was apparently unaware of the severity of the consequences he faced. But the U.S. Court of Appeals for the Seventh Circuit made sure he knew, ruling on July 7, 2023, that the loss of more than 15 years of “good-time” sentence credit was not “unconstitutionally arbitrary or irrational.”
The August 2018 incident began with an argument between prisoner Antwan Webb and a guard, Sgt. Hubbard; after Hubbard deployed pepper spray, he was attacked by three other prisoners, including Love, who punched him in the head several times.
At the time Love had served over 16 years of a 55-year sentence for homicide, earning 5,700 days of good time credits under Ind. Code§ 35-50-6-3(a)-(b). After the fight with Sgt. Hubbard, Love was sentenced to 52 months on three felony battery counts, and he was convicted of the disciplinary offense of assault/battery, since there is no double jeopardy for prisoners charged both criminally and with disciplinary sanctions for the same incident.
According to Policy 02-04-101 of the state Department of Corrections (DOC), prisoners can lose up to one year of earned good time for a single disciplinary offense. However, Executive Directive #17-09, issued in February 2017, specified that battery resulting in bodily injury of a staff member is sanctioned with “loss of the entire balance of the offender’s accumulated earned credit time.” Following his disciplinary conviction, Love lost all 5,700 days—over 15 years and seven months—of his sentence credits.
After exhausting his disciplinary appeals, Love filed a pro se federal habeas corpus petition under 28 U.S.C. § 2254. The federal court for the Southern District of Indiana denied relief, and Love appealed. The Seventh Circuit appointed counsel, to address whether due process was violated when DOC deprived Love “of so much earned time,” but in its ruling the dismissal of Love’s habeas petition was affirmed.
Love argued on appeal that the mandatory nature of Directive #17-90 did not afford an additional hearing to present mitigating evidence. He also contended the Directive was not consistently applied to all prisoners and offered no adjustment to reflect the severity of the underlying offense—making it “so arbitrary and irrational that it was unconstitutional.”
The Court initially found Love had procedurally defaulted his constitutional claims by failing to raise them in his administrative appeals. But Love successfully argued that good cause existed for the default, since prison officials had misled him “as to which policies applied to his disciplinary rehearing and what potential penalties he faced.” The notice of his disciplinary hearing had mentioned only sanctions available under Policy 02-04-101; it did not mention Executive Directive # 17-90, which would have informed Love that all his good time could be revoked. The Seventh Circuit agreed this constituted good cause to excuse the default.
However, the Court held that Directive #17-90 was constitutional, which meant Love failed to show prejudice—the second necessary prong to excuse default. The Court wrote that “the Constitution does not require the [due process] procedure Love suggests, and [DOC’s] sanction decision was not arbitrary.” In addition, Love’s claims were forfeited because he did not raise them in his habeas petition before the district court after he became aware that Directive #17-90 was the basis for the loss of all his good time.
“The bottom line is that Love identifies no constitutional flaw with the Directive,” the Court concluded. “It does not deprive him of procedural due process, and it is not arbitrary on its face or as applied.” The Court added that “[c]ontrary to Love’s position, neither the Supreme Court nor our court have (sic) held that due process requires prison administrators to hear mitigating arguments before determining whether to revoke good time credit, and if so, how much to revoke.” Citing Crawford v. Littlejohn, 963 F.3d 681 (7th Cir. 2020), the Court further noted that it could not impose additional requirements in prison disciplinary hearings.
Circuit Judge Thomas L. Kirsch II issued a separate opinion concurring in the judgment, but he argued Love had waived—rather than forfeited—his constitutional claims by failing to raise them before the district court. Judge David F. Hamilton, in a well-reasoned dissenting opinion, wrote that Love deserved more due process when prison officials revoked over 15 years of his earned good time with only the minimal safeguards afforded during a disciplinary hearing. See: Love v. Vanihel, 73 F.4th 439 (7th Cir. 2023).
A request for rehearing before the entire Seventh Circuit en banc was denied on October 17, 2023. Love was represented at the Court by attorneys from the national firm Skadden, Arps, Slate, Meagher & Flom LLP. See: Love v. Neal, 2023 U.S. App. LEXIS 27727 (7th Cir.).
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Related legal case
Love v. Vanihel
| Year | 2023 |
|---|---|
| Cite | 73 F.4th 439 (7th Cir. 2023) |
| Level | Court of Appeals |
| Appeals Court Edition | F.4th |