Criminal Procedure — ex post facto clause

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United States Court of Appeals For the Seventh Circuit

Criminal

Criminal Procedure — ex post facto clause

Wisconsin’s annual $100 assessment on registered sex offenders does not violate the ex post facto clause with regard to defendants convicted prior to enactment of the assessment.

“The district judge thought it a fine because it is intended ‘to offset the cost of providing a service that is intended solely for the benefit of the general public. The fact that the assessments are used to offset the costs of monitoring the offenders does not eliminate the penal aspect of the assessment. … To be sure, the State has a non-punitive purpose for wanting to collect money for such a purpose, but to single out only individuals who have prior convictions for sexual assaults as the sole source of such funds can only be seen as punitive.’ 895 F. Supp. 2d at 909. We disagree. The fee is intended to compensate the state for the expense of maintaining the sex offender registry. The offenders are responsible for the expense, so there is nothing ‘punitive’ about making them pay for it, any more than it is ‘punitive’ to charge a fee for a passport. If there were no passports, there would be no passport office, and no expenses of operating such an office. The state provides a service to the law-abiding public by maintaining a sex offender registry, but there would be no service and hence no expense were there no sex offenders. As they are responsible for the expense, there is nothing punitive about requiring them to defray it. See In re DNA Ex Post Facto Issues, 561 F.3d 294, 299–300 (4th Cir. 2009); Taylor v. Rhode Island, supra, 101 F.3d at 782–84; cf. Slade v. Hampton Roads Regional Jail, 407 F.3d 243, 251–52 (4th Cir. 2005); Tillman v. Lebanon County Correctional Facility, 221 F.3d 410, 420– 21 (3d Cir. 2000).”

Reversed in part, and Affirmed in part.

13-1225 & 13-1233 Mueller v. Raemisch

Appeals from the United States District Court for the Eastern District of Wisconsin, Griesbach, J., Posner, J.