WisBar News: Prison Inmate Right on Ex Post Facto Issue, State Appeals Court Says:

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  • Prison Inmate Right on Ex Post Facto Issue, State Appeals Court Says

    Joe Forward

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    courtroom sentencingMarch 28, 2014 – A state appeals court recently agreed that retroactive application of harsher sentencing laws enacted after the defendant committed his crimes violated his constitutional right to be free of prolonged sentences for his particular crimes.

    In 2010, Aman Singh was convicted and sentenced on a drug-related Class H Felony. He received three years’ probation, with three-year bifurcated sentence. The court stayed his prison sentence pending successful completion of probation.

    In July 2011, Singh committed the same crime and was convicted in November 2011. The court revoked his prior probation, and imposed the three-year sentence. It also imposed a five-year sentence on the second offense, to be served consecutively.

    In the midst of Sigh’s criminal activity and convictions, the Wisconsin Legislature had repealed a 2009 law that gave prisoners early release opportunities for good behavior. The law, 2011 Wisconsin Act 38, applied to crimes committed after Aug. 4, 2011.

    Singh sought early release under the 2009 law, arguing the 2009 early release provisions for “positive adjustment time” applied when he committed his crimes in 2010 and 2011. He also wanted credit for time served while in jail before prison.

    Applying the provisions of Act 38 to Singh, he argued, violated the Ex Post Facto clauses of the U.S. and Wisconsin constitutions. Those clauses prevent the government from prolonging a person’s sentence beyond the law that applied to his or her crimes.

    In Singh v. Kemper, 2013AP1724 (March 26, 2014), a three-judge panel for the District II Court of Appeals agreed with Singh.

    “[T]he portions of the 2011 act which eliminate Singh’s eligibility for early release under these 2009 act provisions violate ex post facto clauses when applied to these offenses,” wrote Judge Mark Gundrum, noting the 2009 law allowed him to be released earlier.

    Joe Forwardorg jforward wisbar Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by org jforward wisbar email or by phone at (608) 250-6161.

    “The changes do not merely adjust the date at which Singh might first become eligible for early release, they altogether eliminate the early release opportunities the law previously afforded him,” Judge Gundrum wrote.

    However, the court noted that a change to court procedures in reviewing or granting early release petitions for applicable time served did not violate his rights.

    “Unlike the loss of eligibility for early release discussed above, Singh has failed to establish that the procedural changes set for in [Wis. Stat] § 973.198 create a significant risk of prolonging his confinement,” Judge Gundrum explained.

    Finally, the court rejected Singh’s claim for positive adjustment time credit while in jail before arriving at prison, noting such credit can only be earned while in prison.