State’s slashing of early release options violated ex post facto law prohibition

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Prohibitions against ex post facto laws are supposed to protect defendants from changes in the laws that increase punishment after a crime has been committed or sentencing has occurred, according to pro se defendant Aman D. Singh.

In State of Wisconsin ex rel. Aman Singh v. Paul Kemper, 2013 AP 1724, Wisconsin’s 2nd District Court of Appeals agreed with Singh that the state legislature and governor had violated the prohibition against such laws in 2011, ruling that portions of the new law entirely eliminated Singh’s ability to get early release and were thus unlawful.

But the court refused to extend this rule to possible sentence reduction for “good time served” in jail, saying that the law in place only allowed positive-adjustment time reduction for time spent in prison.

The background

In 2010, Singh was convicted of obtaining a controlled substance by fraud and sentenced to 18 months incarceration and 18 months extended supervision with a three-year conditional probation beginning immediately, based upon an act committed in 2008.

Singh later was twice convicted of a similar crime and sentenced in 2011 to a five-year bifurcated sentence to be served consecutively with the terms of the first offense.

In December 2011, probation for his 2008 offense was revoked and Singh began serving time in prison in January 2012. Singh soon requested consideration for early release based upon the 2009 Wis. Act 28 laws that were in place when he was convicted and sentenced.

When Singh’s earlier jail time on his first offense was added to the time served in prison, he should have been eligible to have his sentence reduced after serving 28 to 30 months of his 42-month term, according to Singh.

In 2009, then-Gov. Jim Doyle signed Wis. Act. 28, legislation intended to allow prisoners who had committed nonviolent crimes the chance for early release based upon good behavior. But two years later, Gov. Scott Walker repealed most of the early release provisions of Act 28 and passed Wis. Act 38, including Section 973.198(2011-12). The new law altered the procedure necessary to obtain early release and did away with most other provisions designed to provide avenues of early release and credit for PAT time.

Singh asserted that a state and federal constitutional ex post facto violation occurred because he was not able to take advantage of the early release system that was in place in 2010 when he was convicted and sentenced.

Under certain provisions of the 2009 act, some prisoners, such as Singh, that were sentenced for a first offense could apply for early release after serving at least 75 percent of their confinement term of a bifurcated sentence.

Other prisoners who were not considered assault risks also were given consideration for early release if they were within one year of their extended supervision eligibility date.

Some prisoners could get their sentenced reduced one day for each two- to three-day period of good behavior, or PAT time. Under the 2011 legislation, PAT time could not be earned after Aug. 3, 2011.

The courts weigh in

When his request for consideration for early release was not processed by the Department of Corrections, Singh in June 2013 filed a writ of habeas corpus in Racine County Circuit Court.

The writ was quashed after a hearing by Judge Gerald Ptacek. Singh appealed the decision pro se to the appellate court.

The state contended that Singh had no claim because the 2009 legislative act by its own language was intended to benefit prisoners that had spent time in prison, not jail. Also, the 2011 act repealing 2009 early release provisions had been replaced by Section 973.198, the state asserted, which still allowed prisoners who had served good time in 2009 through 2011 to be eligible for early release, but changed the process.

In its March 26 opinion, the appellate court acknowledged the legislature’s 2011 act did retroactively reduce the ability of some prisoners to be considered for early release based upon the law at the time they were convicted between 2009 and 2011.

In order for a law to violate state and federal ex post facto provisions, the appellate court said it must “make more burdensome the punishment for a crime” either after the crime was committed or after the defendant is convicted and sentenced, quoting State v. Thiel, 188 Wis. 2d 695, 699, 524 N.W.2d 641 (1994).

The court referenced the U.S. Supreme Court decision in Garner v. Jones, 529 U.S. 244, (2000), which stated that a change in the law must have “created a significant risk of prolonging a prisoner’s incarceration” beyond what it would have been under the law when the act was committed or the defendant was sentenced.

According to the appellate court, Garner further indicated that whether such a “significant risk” exists is a matter of degrees, and “mere speculation” or expectation that such an effect could occur may not be enough to show a violation of ex post facto law prohibition.

But in Singh’s case, the court found the result was more than just speculative. Eliminating any opportunity for Singh to obtain an early release resulted in a “significant risk” of prolonged incarceration,” according to the court, and did violate ex post facto law prohibitions.

Accordingly, the appellate court required that those provisions of the 2009 Act 28 that could reduce Singh’s sentence through good behavior or early release should apply, and that the 2011 law had wrongly denied Singh early release consideration. The court also ordered that Singh be permitted to earn PAT time to be credited towards his early release for time in prison he was serving.

The court disagreed with Singh that changing the process to apply for early release also constituted an ex post facto law. Although the new process under Wis. Stat. 973.198 may have created a greater burden on the prisoner to petition the court, “simply altering the method employed” in determining punishment to be imposed and not changing the duration of punishment was not sufficient to suggest ex post facto protections should apply.

Singh attempted to suggest the law and its new process led to fewer prisoners being released based upon PAT time served, but, lacking hard evidence, the court indicated that was speculative.

The appellate court also found the precise language of the earlier PAT statute showed time spent in prison was only intended to be calculated toward PAT time.

Because tabulation of good days served was to be kept by the “Superintendent” or the “Warden,” according to the court, it was apparent that the legislature was further confirming that only time in prison, and not jail time, would apply towards PAT reduction.