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State ex rel. Singh v. Kemper, 2013AP1724, petition for review granted 11/4/15

Review of a published court of appeals decision; case activity;  petition for review; response and cross petition; order granting review

Issues (from Singh’s petition and the State’s cross petition)

Whether the retroactive application of provisions of 2011 Wisconsin Act 38, which repealed provisions of 2009 Wisconsin Act 28 that gave inmates the opportunity to apply for early release, increases an offender’s penalty and therefore violates the ex post facto clauses of the federal and state constitutions.

If retroactive application of Act 38 in general violated the ex post facto clauses, did Act 38’s change in the procedure for granting release under one of the early release provisions (positive adjustment time, or PAT) violate the ex post facto clauses.

As described in more detail in our post on the court of appeals decision, the overarching issue here is whether a person who committed an offense while Act 28’s provisions were in effect can be denied the early release opportunities under the law because of the subsequent repeal of the provisions by Act 38. Singh prevailed in the court of appeals on that question; thus the state’s cross petition, which the supreme court now grants. Singh lost on another issue: Whether Act 38’s change in the procedure for granting PAT release violated the ex post facto clauses. Under that procedural change, the inmate must petition for PAT release, and the circuit court makes the release decision by granting or denying the petition; before Act 38, DOC calculated an inmate’s PAT time and then notified the circuit court, who then had the chance to veto the release. The court of appeals found no ex post facto problem with this change because under either scheme the final release decision rested with the circuit court. The court grant’s Singh’s petition to review that issue.

The court of appeals decision provided a real benefit for inmates who committed offenses or were sentenced during the 22 months Act 28’s 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-Act 28 early release regime. We’ll see if that benefit remains after the supreme court reviews the case.

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