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Splintered SCOW finds ex post facto violation in repeal of some early release statutes

State ex re. Aman Singh v. Paul Kemper, 2016 WI 67, 7/13/16, affirming in part and reversing in part a published court of appeals decision, 2014 WI App 43, 353 Wis. 2d 520, 846 N.W.2d 820; case activity (including briefs)

This habeas case involves three discrete ex post facto claims regarding multiple offenses committed and disposed of over a short time span during which there were three versions of Truth-in-Sentencing. A fractured court issues five separate opinions, resulting in holdings that find some ex post facto violations but apparently provide no relief to Singh, the petitioner.

To understand this case you need to know the following timeline:

  • Singh committed Case #1 in 2008.
  • In October 2009, the positive adjustment time (PAT) early release provisions of 2009 Wisconsin Act 28 took effect. Act 28 expressly provided that its early release provisions applied to people sentenced under TIS even before the Act’s effective date.
  • In April 2010 Singh was sentenced in Case #1; he was given an imposed and stayed prison sentence and placed on probation.
  • In July 2011 Singh committed Case #2.
  • In August 2011 the early release provisions from Act 28 were repealed by 2011 Wisconsin Act 38. The Act did, however, create § 973.198, which preserved PAT that had been earned between October 2009 and August 2011 and established a procedure for an inmate to have DOC apply that PAT to his sentence.
  • In December 2011 Singh’s probation in Case #1 was revoked because of Case #2 and he was sentenced in Case #2. He arrived in prison in early 2012 to serve the sentences in both cases.

(¶¶10-20, 80-89).

By the time Singh arrived at prison, then, the PAT statutes had been repealed, so DOC told him he wasn’t eligible for early release. He filed a habeas petition arguing that applying the repeal of PAT to him violated the ex post facto clause because PAT was available when he was sentenced in Case #1 and when he committed Case #2. The court of appeals agreed with this argument. He also claimed that the way § 973.198 worked violated ex post facto because it delayed release past the date that PAT as originally enacted would have required release to occur. The court of appeals rejected this claim. (More detail is at our post on the court of appeals decision.) Singh and Kemper both filed petitions for review.

That brings us to the supreme court’s 118-page opinion. Given the length of the opinion and the fact that its impact is limited to a finite group of inmates who committed crimes, were sentenced, or were serving sentences during the short life of 2009 Wis. Act 28’s early release laws, this post will limit itself to working through the three ex post facto claims one by one and giving a bare-bones summary of the various holdings. If you’re advising a client who might be affected by this decision, then needless (and sorry) to say you will have to study the entire bulk of the decision carefully to see whether it helps or hurts your cause.

The first ex post facto claim is the denial of PAT in Case #1, which was committed before PAT took effect, but for which Singh was sentenced while PAT was in effect. Three justices (Abrahamson, A.W. Bradley, Prosser) hold that denying PAT on that case violates ex post facto because by the express terms of Act 28, PAT was available to anyone sentenced to prison before the Act’s effective date. (¶¶27-48, 102-27). Two justices (Roggensack and R.G. Bradley) hold there is no violation because ex post facto consequences can be gauged only based on the law at the time the offense was committed. (¶¶205-17, 229-34). Two justices (Ziegler and Gableman) don’t decide the issue. (¶¶152-75). Thus, there is no majority on whether that denial of PAT on Case #1 violates ex post facto and the court of appeals determination there was a violation stands.

The second ex post facto claim is the denial of PAT in Case #2, which was committed while PAT was in effect but for which Singh was sentenced after PAT was repealed. Five justices (Abrahamson, A.W. Bradley, Prosser, Ziegler, Gableman) agree that denying PAT on Case #2 violates ex post facto by making the punishment more onerous, so the court of appeals decision on this point is affirmed. (¶¶27-48, 152-75). Roggensack concludes there’s a “potential” for an ex post facto violation, but that it’s not clear the repeal had an effect on how long Singh and in any event Singh is not (for reasons described below) eligible for relief. (¶¶218-21). R.G. Bradley alone concludes there’s no ex post facto violation on Case #2. (¶¶235-47).

The third ex post facto claim is that § 973.198 operates to delay release beyond the date that would have applied under the original PAT regime. Again, five justices (Abrahamson, A.W. Bradley, Prosser, Ziegler, Gableman) agree that the statute violates ex post facto by making the punishment more onerous, so the court of appeals decision on this point is reversed. (¶¶49-68, 128-33). Roggensack and R.G. Bradley agree with the court of appeals that the statute doesn’t violate ex post facto because it involves a procedural rather than substantive change. (¶¶189 n.2, 248-49)

We would be remiss if we didn’t note the disputes between the justices about whether ex post facto determinations are to be based solely on the law at the time of the commission of the offense (e.g., ¶¶107-16, 205-15), but lack of a majority vote on any of the methodologies means that at the end of the day the opinion articulates no new ex post facto standard, rendering the discussion academic.

We also noted above that despite winning a couple of the battles Singh apparently loses the war, in the sense that he appears to gets no relief. The basic reason for this is that PAT results in early release from confinement by reducing the period of confinement component of a bifurcated sentence; the extended supervision component is increased by the same amount, so the sentence doesn’t change in length. Singh is already on extended supervision, so it’s no longer possible or meaningful to apply PAT to his sentence. (¶¶181-84). It also appears one of his sentences was modified to a jail sentence, which isn’t even subject to PAT (¶180) (though that fact is not in the record, which generates some question about relying on that fact (¶75 n.10)). While it would make sense to remand the case to the circuit court to sort out whether Singh can garner any relief from these rulings (¶¶69-75), there’s no majority for that. And so the case is apparently over, with more of a whimper than a bang, partially unresolved and without clear reasoning on the issues it does resolve. And you thought the supreme court’s job was to clarify the law!

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