concurs in part/dissents in part.
¶ 1 I can concur only in the result reached in this case and must dissent to the Court’s aberrant reasoning.
¶ 2 In its attempt to find a way to apply Hudson v. United States, 522 U.S. -, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), to a situation to which it does not apply the Court has attempted to fit the proverbial square peg into a round hole. In doing so, the Court becomes the first court in the history of the United States to find there are any double jeopardy implications related to prison disciplinary proceedings.
¶ 3 Upon review of applicable caselaw, I find the reasoning in this opinion inherently wrong for two reasons: (1) double jeopardy does not apply to prison disciplinary proceedings; and (2) even if Hudson implicates application of its holding to prison disciplinary proceedings, the opinion wrongly applies it and disregards facts of Hudson, i.e. the administrative proceedings by the office of the comptroller of the currency were deemed by the Court to be civil in nature, even if a fine was imposed.
¶4 It is recognized within the federal circuit courts that double jeopardy does not apply to prison disciplinary proceedings. See United States v. Galan, 82 F.3d 639 (5th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 179, 136 L.Ed.2d 119 (1996). In arriving at this consensus, the courts have determined that the “bar against double jeopardy does not preclude criminal prosecution for conduct for which prison authorities have already imposed administrative discipline”. United States v. Brown, 59 F.3d 102, 103 (9th Cir.1995), citing to United States v. Apker, 419 F.2d 388 (9th Cir.1969). In discussing the Halper argument, which was addressed in Hudson, the Court in Brown stated:
we conclude that these problems do not arise, because the prohibition against double jeopardy does not bar criminal prosecution for conduct that has been the subject of prison disciplinary sanctions for two independent reasons: 1) even if the sanctions were ‘punishment,’ they were integral parts of Brown’s single punishment for armed robbery; and 2) the sanctions are not punishment for purposes of double jeopardy because they are solely remedial.
The court in Brown focused on the remedial nature of prison disciplinary proceedings and stated further, “in the prison context, such sanctions can still be explained solely as serving the government’s remedial purpose of maintaining institutional order — they are designed to punish only insofar as such sanctions enable the government to fulfill its remedial goals”. Brown, 59 F.3d at 105. As referenced in Brown, the Court in Garrity v. Fiedler, 41 F.3d 1150 (7th Cir.1994), cert. denied, 514 U.S. 1044, 115 S.Ct. 1420, 131 L.Ed.2d 303 (1995), addressed the impracticalities of prison disciplinary proceedings implicating double jeopardy concerns. The Court stated:
Prison administrators must have the ability to discipline a prisoner for violating institutional regulations, and the State must have the ability to prosecute the prisoner for the same conduct at a later date; combining the two proceedings would not be feasible. The prison disciplinary process determines whether the defendant has violated the conditions of his incarceration and is designed to maintain institutional security and order. A criminal prosecution is designed to punish the defendant for a violation of the criminal laws.
Id. at 1153. See also United States v. Newby, 11 F.3d 1143 (3rd Cir.1993), cert. denied, 513 U.S. 834, 115 S.Ct. 111, 130 L.Ed.2d 58 (1994). Another insight into the reasons for this exemption from the double jeopardy clause as to prison disciplinary proceedings was set out in United States v. Hernandez-Fundora, 58 F.3d 802 (2nd Cir.1995), cert. denied, 515 U.S. 1127, 115 S.Ct. 2288, 132 *909L.Ed.2d 290 (1995), when the Court recognized:
Punitive interests and remedial interests, however, are nowhere so tightly intertwined as in the prison setting, where the government’s remedial interest is to maintain order and to prevent violent altercations among a population of criminals. Accordingly, the mere fact that a sanction imposed by prison officials has a punitive component does not mean that the sanction constitutes ‘punishment’ for double jeopardy purposes.
Id. at 806. The Court then held “[ajceord-ingly, subsequent prosecutions will be barred only in those exceedingly rare circumstances where the disciplinary sanction imposed is grossly disproportionate to the government’s interest in maintaining prison order and discipline.” Id. at 807.
¶ 5 The Tenth Circuit Court of Appeals has dealt with the issue in a more direct fashion. See Lucero v. Gunter, 17 F.3d 1347, 1351 (10th Cir.1994). The Court stated:
Prison disciplinary hearings are not part of a criminal prosécution, Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974), and therefore do not implicate double jeopardy concerns, see Breed v. Jones, 421 U.S. 519, 528, 95 S.Ct. 1779, 1785, 44 L.Ed.2d 346 (1975) (application of the double-jeopardy clause is limited to proceedings which are “essentially criminal”).
¶ 6 In discussing what is a criminal punishment, the Court in Hiidson recognized the previous holding in Wong Wing v. United States, 163 U.S. 228, 235, 16 S.Ct. 977, 980, 41 L.Ed. 140 (1896), that quintessential criminal punishments may be imposed only “by a judicial trial”. Thus, double jeopardy concerns are not applicable in this context due to the remedial nature of the prison disciplinary proceedings and the fact that the punishment which may be imposed through those proceedings is of an administrative nature and is not “imposed only by a judicial trial”. The safeguards to this type of administrative punishment have been provided by the Oklahoma Legislature in 21 O.S.1991, § 443a. The Legislature has stated:
in addition, all prisoners who escape from either of the aforesaid prisons either while confined therein, or while at large as a trusty, when apprehended and returned to the prison, shall be punishable by the prison authorities in such manner as may be prescribed by the rules and regulations of the prison provided that such punishment shall not be cruel or unusual.
The “in addition” in this statute refers to the substantive criminal provisions set out in Section 443 which provides for the crime and punishment of escape from a penal institution. While due process concerns may be implicated in that process, double jeopardy concerns are not. The Legislature has unequivocally set out its intent that prisoners can both be prosecuted for the criminal act and be disciplined by prison authorities. See e.g. Ellis v. State, 834 P.2d 985, 990 (Okl.Cr. 1992). See also Hale v. State, 888 P.2d 1027, 1030 (Lumpkin, J. Concur in Results) (Okl. Cr.1995).
¶ 7 The second reason the Court’s analysis is incorrect is that it fails to recognize, as did the Hudson court, the holding in Wong Wing, supra, that “quintessential criminal punishments may be imposed only ‘by a judicial trial’.” 118 S.Ct. at 495. The unarticu-lated common thread of the United States Supreme Court discussions in United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994); and United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996), is a concern that civil sanctions may rise to the level of a criminal punishment without affording the individual against whom the sanction is applied all of the due process safeguards afforded to a criminal defendant.
¶ 8 Legislatures, both federal and state, over the years have added civil sanctions as a part of legislative enactments together with granting administrative agencies the authority to assess sanctions as a part of their regulatory authority. The plethora of these type of enactments does create concern that utilization by government entities will,, in substance, amount to a. criminal prosecution with a lesser burden of proof and lesser *910procedural safeguards unless there is some method of checking the application of those enactments. In an effort to address that inferred underlying concern, the U.S. Supreme Court has engaged in various means of linguistic gymnastics without directly articulating the reason for the verbal contortion which had to be addressed in Hudson. If I am correct in my perception of this underlying problem, it drives home the fact even more strongly that Hudson does not apply in a prison disciplinary proceeding.
¶ 9 However, assuming for the purpose of discussion that Hudson in some way implicates an application to the prison disciplinary proceeding, a look at the facts in Hudson will itself explain why the Court’s analysis in this case is inappropriate. In Hudson, the office of the comptroller of the currency (OCC) initiated administrative proceedings against the petitioners. As a result of those administrative proceedings, OCC entered into a consent order with each of the petitioners which would require them to pay monetary assessments and preclude them from participating in any manner in the affairs of any banking institution without the written authorization of the OCC and all other relevant regulatory agencies. The final holding in Hudson was “there simply is very little showing to say nothing of the ‘clearest proof required by Ward, that OCC money penalties and debarment sanctions are criminal. The double jeopardy clause is therefore no obstacle to them trial on the pending indictments, and it may proceed.” Id. at 496.
¶ 10 In the context of Hudson, these administrative proceedings were deemed “civil”. The actions were by a regulatory agency in an administrative forum. It was not, as the Court noted by its citation to Wong Wing, a criminal punishment imposed by a judicial trial. 118 S.Ct. at 495. If the Court applied that consistent analysis to the scenario presented in this ease, even under Hudson we would not find an implication of the double jeopardy clause. The sanctions rendered against the Appellant in this case were rendered in an administrative disciplinary procedure. The sanctions were not imparted by a prosecution in a court of law, thereby meaning a criminal punishment imposed “by a judicial trial”. The sanctions imposed were remedial in nature and have to do with the withdrawal of earned credits. The awarding of earned credits to prisoners is set out in the provisions of 57 O.S.1991, § 138. There is no doubt that these earned credits can be rescinded as a part of inmate discipline after the inmate has been afforded due process for any infraction which is the basis for removing earned credits. The issue of earned credits is directed by the statutes to be made in accordance with the rules and regulations established by the Board of Corrections. The Board of Corrections also establishes procedures for disciplinary proceedings. It in no way increases the punishment for the crime for which the sentence is being served. Therefore, the Court’s attempt to in some way make the analysis in Hudson apply to this non-germane issue is even more unsubstantiated.
¶ 11 . The futility of this attempt to make Hudson apply is also found in the Court’s own language. The Court begins its analysis by stating the decision in Hudson recently restated the “appropriate” double jeopardy analysis, however, then, the Court turns around and says Hudson does “not apply”. Then, the Court seeks to take an analysis which may be appropriate but does not apply to prison disciplinary proceedings and use it as the analysis to arrive at its decision. This convoluted method of analysis seems to imply a justification for the Court’s rush for an excuse to discuss Hudson rather than a reason for it.
¶ 12 I would urge the Court to reconsider its attempt to reformat this non-germane decision regarding “civil” sanctions and continue to adhere to the stare decisis enunciated by the federal courts regarding the application of the double jeopardy clause to prison disciplinary proceedings.