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  • WisBar News
    July 15, 2016

    Ex Post Facto Laws: Supreme Court Grapples with Early Prison Release

    Joe Forward

    Supreme Court chamber in Wisconsin State Capitol

    July 14, 2016 – Aman Singh committed three nonviolent crimes between 2008 and 2011, a period in which the Wisconsin Legislature twice shifted its stance on whether to allow prison inmates to be released early from prison for good behavior.

    Recently, in Singh v. Kemper, 2016 WI 67 (July 13, 2016), a Wisconsin Supreme Court majority (5-2) ruled that a 2011 law retroactively repealing inmates’ ability to obtain early release was an unconstitutional ex post facto law as applied to one of Singh’s crimes.

    A 5-2 majority also ruled that new 2011 procedures worked to delay early release for those entitled to it and thus violated the ex post facto clauses of the U.S. and Wisconsin constitutions. But justices disagreed on other points through four separate writings.

    Law Changes

    In 2009, the state enacted a law that allowed prison inmates to obtain one day of “positive adjustment time” (PAT) for every two days of good behavior. Nonviolent offenders who were not at high risk of reoffending could be released early from prison, but their PAT was tacked on to the extended supervision aspect of the sentence.

    The law retroactively applied to inmates who were sentenced on or after Dec. 31, 1999. So many prison inmates in Wisconsin started accruing PAT in 2009.

    In addition, the 2009 law required the Department of Corrections to send a notice to the sentencing court 90 days before an inmate was eligible to be released with PAT. The court could choose to hold a hearing, or simply allow the inmate to be released early.

    But the law was repealed in 2011. Inmates can no longer accrue PAT for early release. However, inmates can petition for PAT earned between the time the PAT law was enacted (Oct. 1, 2009) and the time it was repealed (Aug. 3, 2011).

    Under the 2009 law, inmates could petition the court 90 days before the release eligibility date with PAT. Under the 2011 law, they cannot petition the sentencing court until the day they are actually eligible, the court cannot order release without holding a hearing, and it could take up to 90 days from filing for a decision to be made.

    In the Web

    Singh committed a crime in 2008, before the PAT law was enacted, but wasn’t sentenced until after it was enacted in 2010. He committed a second crime in 2011, a week before the PAT law was repealed, but wasn’t sentenced until after it was repealed.

    Further complicating the matter was the fact that Singh received probation for his 2008 crime and it was revoked for committing the second crime in 2011. He did not start serving a prison sentence on his crimes until 2012, when PAT was no longer available.

    Singh was caught in a web of policy changes on early release. He found out when the DOC rejected his request for early release, claiming he was not entitled to it.

    Singh believed that he was still eligible for PAT because he was first sentenced in 2010, when the PAT law applied. And he committed his second crime before it was repealed.

    So he filed a petition for writ of habeas corpus, arguing that he was entitled to PAT, and the 2011 law that repealed PAT violated the ex post facto clauses of the U.S. and Wisconsin constitutions, which prohibit retroactive punishment increases.

    Lead Opinion

    Justice Ann Walsh Bradley wrote the lead opinion, announcing the decision of the court to affirm in part and reverse in part the lower appeals court decision.

    The appeals court had ruled that retroactive repeal of PAT violated ex post facto clauses since Singh either committed or was sentenced when PAT was available.

    But the appeals court also ruled that the new procedures delaying an inmate's ability to seek early release for creditable PAT did not violate ex post facto clauses.

    Through the lead opinion, Justice A.W. Bradley argued that the 2011 law violated ex post facto clauses, which prohibit retroactive increase on penalties, because Singh either committed the crime or was sentenced during a time when PAT was available.

    That is, the 2011 law’s retroactive repeal was unconstitutional as to Singh’s 2008 crime, sentenced under the 2009 law, and his 2011 crime, committed a week before the 2011 law repealed PAT eligibility. Both crimes were subject to ex post facto protection.

    The warden, Paul Kemper, had argued that Singh could not receive PAT because he was serving time on a crime committed before the PAT law was enacted in 2009. But Singh was convicted and sentenced on his first crime after the PAT law took effect.

    “[D]ue to the retroactive application of positive adjustment time, Singh was convicted and sentenced while 2009 Wis. Act 28 was in effect,” Justice A.W. Bradley wrote.

    “Both Wisconsin and United States Supreme Court precedent supports assessing the ex post facto effect of a law in reference to the time the defendant committed the offense, was convicted, or was sentenced,” she wrote.

    The lead opinion also concluded that section 973.198, which requires inmates to wait until the day of eligibility to petition the sentencing court, violates ex post facto clauses by making the punishment more burdensome after the crime was committed.

    “[Section] 973.198 increases the length of incarceration for every inmate who is eligible for early release based on positive adjustment,” A.W. Bradley wrote. “This arbitrary increase in punishment violates the ex post facto clauses. …”

    Prosser Concurs

    Justice David Prosser went further in a concurrence. He argued that the 2011 law violates ex post facto clauses unless Singh receives PAT throughout his confinement period, since he committed the crime or was sentenced while PAT was available.

    “D]enying him PAT would unconstitutionally lengthen the term of his confinement,” Justice Prosser wrote. “He is eligible to earn PAT during any time confined in prison under sentence for that offense – including any time confined after Aug. 3, 2011.”

    Ziegler Concurs, Dissents

    Justice Annette Ziegler, joined by Justice Michael Gableman, concurred with the court’s decision to affirm and reverse the appeals court. She agreed that ex post facto clauses were violated by retroactively repealing PAT as applied to the July 2011 crime.

    But Ziegler ruled that Singh was not entitled to relief through a habeas corpus petition. She noted that Singh is no longer in prison.

    Roggensack, R. Bradley Dissent

    Chief Justice Roggensack dissented. She argued that one of Singh’s crimes had potential for an ex post facto violation under a correct analysis, but did not agree with the lead opinion’s analysis. She also concluded that new procedures causing delays for those with PAT credit “did not contravene ex post facto prohibitions.”

    Justice Rebecca Bradley wrote a separate dissent, joined in part by Chief Justice Roggensack. She said Singh “has not proven an ex post facto violation in this case.”



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