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Retroactive application of the law repealing the 2009 Act 28 early release statutes violates ex post facto clauses

State ex rel. Aman Singh v. Paul Kemper, 2014 WI App 43, petitions for review and cross review granted 11/4/15, affirmed in part and reversed in part, 2016 WI 67; case activity

When Singh committed, or was convicted and sentenced for, his offenses, he was eligible for early release under statutes enacted by 2009 Wisconsin Act 28. But by the time he arrived at prison, the early release statutes had been repealed by 2011 Wisconsin Act 38, so DOC told him he wasn’t eligible for early release. The court of appeals holds that the retroactive application of Act 38 violates the ex post facto clauses of the state and federal constitutions.

The early release provisions of 2009 Act 28 took effect on October 1, 2009. (¶3). Singh was convicted and sentenced for the first offense in 2010 and was given an imposed and stayed prison sentence and placed on probation. In July 2011 he committed a new offense; as a result, in December 2011 his probation was revoked and received a consecutive sentence for the new offense. (¶2). In the meantime, on August 4, 2011, Act 38 had taken effect. (¶¶3, 7).

A law violates the ex post facto clauses if it makes more burdensome the punishment for a crime after the crime has been committed or after conviction and sentencing, State v. Thiel, 188 Wis. 2d 695, 703, 524 N.W.2d 641 (1994), with the ultimate question being whether the change in the law “creates a significant risk of prolonging [a prisoner’s] incarceration” beyond what it would have been under the law in effect at the time the prisoner committed or was convicted and sentenced on the offense, Garner v. Jones, 529 U.S. 244, 250 (2000). (¶9). Applying this standard here, and relying on State ex rel. Mueller v. Powers, 64 Wis. 2d 643, 221 N.W.2d 692 (1974) (invalidating retroactive application of statutory change increasing from 2 years to 5 years the prison time inmate had to serve before parole), and Lindsey v. Washington, 301 U.S. 397 (1937) (invalidating retroactive application of statute that made the previous maximum sentence the mandatory sentence), the court holds that applying 2011 Act 38 to Singh results in a significant risk he would serve more time in prison than under 2009 Act 28:

¶10      Singh was convicted and sentenced on his first offense and committed his second offense when the early release provisions of the 2009 act were in effect. Kemper does not dispute Singh’s contention that he has reached his early release eligibility dates related to these offenses under Wis. Stat. §§ 302.113(2)(b) and (9h) and 304.06(1)(bg)1. & 3. (2009-10), nor that the 2011 act eliminated his eligibility for early release under these provisions. The enactment of the 2011 act has resulted in Singh being required to serve the full term of the initial confinement portion of his sentence for these two offenses while the law in effect when he committed or was convicted and sentenced on them afforded him the opportunity to be released earlier. Because we conclude that eliminating this opportunity results in a significant risk of prolonging Singh’s incarceration, the portions of the 2011 act which eliminate Singh’s eligibility for early release under these 2009 act provisions violate the ex post facto clauses when applied to these offenses.

The state relies on California Dep’t of Corrections v. Morales, 514 U.S. 499 (1995), to no avail. (¶¶14-17). The statutory changes there were “markedly different” because they merely adjusted the date the prisoner might become eligible for early release and did not, as here, “altogether eliminate the early release opportunities the law previously afforded….” (¶18).

However, the court validates application of one change made by 2011 Act 38. One of the early release provisions allowed a prisoner to earn positive adjustment time (PAT). Adjustment of a sentence based on PAT was done administratively, though the sentencing court was given notice so it could, if it wanted, hold a hearing on whether to approve, reject, or modify the early release. Under 2011 Act 38, an inmate who earned PAT while the 2009 law was in effect (that is, between October 1, 2009, and August 3, 2011) must petition the sentencing court to get the sentence adjusted. (¶21). This procedural change does not violate the ex post facto clauses:

¶23      Singh correctly points out that under the old law, if a sentencing court was notified of an inmate’s pending release based upon PAT and declined to hold a hearing on the matter, early release to extended supervision could proceed, while under the new law, an inmate will not secure release unless the court holds a hearing and determines that release is appropriate. Ultimately, however, under the old and new law, the sentencing court is notified of the potential release based upon PAT and makes a discretionary decision to grant or deny early release. Under the old law, release could be effectuated by the court either declining to hold a hearing or holding a hearing and granting release, and could be denied by the court holding a hearing and ordering the inmate to remain in prison. Wis. Stat. §§ 302.113(2)(c), 304.06(1)(bk) (2009-10). Under the new law, the court can grant release after holding a hearing, or deny release, either with or without a hearing. See Wis. Stat. § 973.198(3), (5).

Finally, the court rejects Singh’s argument that he should earn PAT for the time credited to his sentence based on his custody in jail before being taken to prison. The plain language of §§ 302.113(2)(b) and 304.06(1)(bg)1. makes it clear that PAT is earned based on following the regulations of the prison, not the county jail. (¶¶28-29).

A benefit for a finite (but not insignificant) number of prisoners who committed offenses or were sentenced during the 22 months the early release provisions were in effect. Besides PAT–which varied from one day for every two, three, or 5.7 days served, based on the class of felony involved–the other release provisions allowed early release for certain nonviolent felons who were within 12 months of their release date. And, persons whose offense was committed before October 1, 2009, could petition the Earned Release Review Commission for release after serving 75% or 85% of their confinement, if they hadn’t petitioned the sentencing court under the pre-early release regime. (Go here and  here for links to documents with lots more information.)

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{ 3 comments… add one }
  • Randy March 31, 2014, 1:43 pm

    Could this decision not also be of benefit again as well, to certain individuals who were sentenced to prison between the Act 28 and Act 38 effective dates, and have since been released to ES, by reinstituting the ability to be discharged (administratively) from what might now be an unnecessarily lengthy period of Extended Supervision? And might it not also transfer authority for early discharge of probation terms assigned during this time period back to the Department of Corrections again, rather than with the Courts?

  • admin April 6, 2014, 3:38 pm

    As to the first question, the answer is arguably “yes,” citing the holding of this decision. As to the second, the answer might be “no,” for similar reasons to those given in this decision for finding no ex post facto violation in changing the PAT decision-maker from the Earned Release Review Committee to the sentencing judge. Of course, we won’t know for sure till someone makes the arguments.

  • Randy April 7, 2014, 2:12 pm

    Could not a number of other early release options be reopened with this then too, for clients who fell within that 22 month window, including possibile early release following completion of Non-AODA Earned Release and Challenge Incarceration Programs, release for those with Extraordinary Health Condiditions and the Aged, Certain Earned Release, and earlier release eligibility too, for those who had previously been eligible under Act 28, to enter into a contract with the Courts for a Risk Reduction Sentence? In light of this decision, will it now be necessary, for those who fall in that latter category, to be returned to their respective Courts for resentencing?

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