ex post facto clause in Wisconsin

2016A regulatory civil statute nonetheless may violate the ex post facto clause if it is "'so punitive either in purpose or effect' 30 State v. Thiel, 188 Wis. 2d 695, 703 , 524 N.W.2d 641 (1994) (internal quotation marks and alterations omitted) (quoting Collins v. Youngblood, 497 U.S. 37, 42 (1990)). 14 No. 2012AP2578.ssa as to 'transfor[m] what was clearly intended as a civil remedy into a criminal penalty.'"31 ¶106 For several reasons, the permanent bar on obtaining a childcare certification set forth in Wis. Stat. § 48.685 (5)(br)5. may be so punitive in purpose and effect that the otherwise

2016A regulatory civil statute nonetheless may violate the ex post facto clause if it is "'so punitive either in purpose or effect' 30 State v. Thiel, 188 Wis. 2d 695, 703 , 524 N.W.2d 641 (1994) (internal quotation marks and alterations omitted) (quoting Collins v. Youngblood, 497 U.S. 37, 42 (1990)). 14 No. 2012AP2578.ssa as to 'transfor[m] what was clearly intended as a civil remedy into a criminal penalty.'"31 ¶106 For several reasons, the permanent bar on obtaining a childcare certification set forth in Wis. Stat. § 48.685 (5)(br)5. may be so punitive in purpose and effect that the otherwise

2016A regulatory civil statute nonetheless may violate the ex post facto clause if it is "'so punitive either in purpose or effect' 30 State v. Thiel, 188 Wis. 2d 695, 703 , 524 N.W.2d 641 (1994) (internal quotation marks and alterations omitted) (quoting Collins v. Youngblood, 497 U.S. 37, 42 (1990)). 14 No. 2012AP2578.ssa as to 'transfor[m] what was clearly intended as a civil remedy into a criminal penalty.'"31 ¶106 For several reasons, the permanent bar on obtaining a childcare certification set forth in Wis. Stat. § 48.685 (5)(br)5. may be so punitive in purpose and effect that the otherwise

2016Rather, the ex post facto clause provides that "[l]egislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts." Collins, 497 U.S. at 43 . ¶156 It is the question of whether the repeal of PAT "increased the punishment" for Singh's 2008 Waukesha crime that 10 No. 2013AP1724.akz has divided this court.

2016Accordingly, Weaver concluded that for prisoners who committed crimes before the statute was enacted, it substantially altered the consequences attached to a crime already completed and therefore "change[d] the quantum of punishment." Id. at 33 . ¶42 Likewise, in Lynce v. Mathis, 519 U.S. 433, 446-47 (1997), the Supreme Court concluded that it was an ex post facto violation to cancel good-time credits that had been awarded pursuant to statutes enacted after the date the defendant committed his offense.

2016State v. Thiel, 188 Wis. 2d 695, 699 , 524 N.W.2d 641 (1994). ¶153 The Supreme Court of the United States has stated that the purpose of the ex post facto clause is to ensure "that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed." Weaver v. Graham, 450 U.S. 24, 28-29 (1981).

2017See Lindsey v. Washington, 301 U.S. 397, 400 (1937) (concluding it is an ex post facto violation to apply a new criminal penalty where "[t]he effect of the new statute is to make mandatory what was before only the maximum sentence."). ¶ 16.

2017See Lindsey v. Washington, 301 U.S. 397, 400 (1937) (concluding it is an ex post facto violation to apply a new criminal penalty where "[t]he effect of the new statute is to make mandatory what was before only the maximum sentence.").

2016He argues that the repeal of 2009 Wis. Act 28 cannot be an ex post facto violation as applied to Singh's 2008 offense because it did not increase the punishment beyond what it was at the time of the 2008 offense. ¶30 Relying on State v. Kurzawa, 180 Wis. 2d 502, 511 , 509 N.W.2d 712 (1994), Kemper advances that one of the fundamental aspects of ex post facto analysis is its focus on changes in the law relative to the time of the defendant's allegedly illegal behavior.

2016He argues that the repeal of 2009 Wis. Act 28 cannot be an ex post facto violation as applied to Singh's 2008 offense because it did not increase the punishment beyond what it was at the time of the 2008 offense. ¶30 Relying on State v. Kurzawa, 180 Wis. 2d 502, 511 , 509 N.W.2d 712 (1994), Kemper advances that one of the fundamental aspects of ex post facto analysis is its focus on changes in the law relative to the time of the defendant's allegedly illegal behavior.

2018The United States Supreme Court applied the intent-effects test to determine whether Alaska's sex offender registry was punishment for purposes of the ex post facto clause, Smith , 538 U.S. 84 , 123 S.Ct. 1140 ; whether monetary penalties and revocation of occupational licenses were punishment such that a subsequent criminal prosecution based on the same conduct violated the Fifth Amendment's double jeopardy clause, Hudson v. United States , 522 U.S. 93 , 118 S.Ct. 488 , 139 L.Ed.2d 450 (1997) ; and whether monetary penalties assessed against those who discharged hazardous substances into navi

2018The United States Supreme Court applied the intent-effects test to determine whether Alaska's sex offender registry was punishment for purposes of the ex post facto clause, Smith , 538 U.S. 84 , 123 S.Ct. 1140 ; whether monetary penalties and revocation of occupational licenses were punishment such that a subsequent criminal prosecution based on the same conduct violated the Fifth Amendment's double jeopardy clause, Hudson v. United States , 522 U.S. 93 , 118 S.Ct. 488 , 139 L.Ed.2d 450 (1997) ; and whether monetary penalties assessed against those who discharged hazardous substances into navi

2017The question of whether an ex post facto violation has occurred similarly looks to whether a statute is "punishment." State v. Radaj, 2015 WI App 50, ¶ 13 , 363 Wis. 2d 633 , 866 N.W.2d 758 .

2017The question of whether an ex post facto violation has occurred similarly looks to whether a statute is "punishment." State v. Radaj, 2015 WI App 50, ¶ 13 , 363 Wis. 2d 633 , 866 N.W.2d 758 .

2010In determining whether a violation of the ex post facto clause has occurred, we look to see whether "the application [of an ex post facto law] violates one or more of that clause's recognized protections." State v. Haines, 2002 WI App 139, ¶ 6 , 256 Wis. 2d 226 , 647 N .W.2d 311, aff'd, 2003 WI 39 , 261 Wis. 2d 139 , 661 N.W.2d 72 .

2010In determining whether a violation of the ex post facto clause has occurred, we look to see whether "the application [of an ex post facto law] violates one or more of that clause's recognized protections." State v. Haines, 2002 WI App 139, ¶ 6 , 256 Wis. 2d 226 , 647 N .W.2d 311, aff'd, 2003 WI 39 , 261 Wis. 2d 139 , 661 N.W.2d 72 .

2017The proper approach is to determine whether the mandatory DNA surcharge statute is an unconstitutional ex post facto violation on its face.8 ¶67 The text of the statutory mandatory DNA surcharge demonstrates that the DNA surcharge is punitive in effect and not merely a reasonable civil charge to fund the estimated costs of state DNA programs: Compare People v. Stead, 845 P.2d 1156, 1160 (Colo. 1993) (resting its conclusion that a drug offender surcharge had a punitive intent in part on the ground that "[t]he surcharge at issue is part of Colorado's criminal code" and in part on "[t]he amount o

2015See People v. Stead, 845 P.2d 1156, 1157, 1160 (Colo. 1993). ¶ 29.

2016Unlike in Dobbert, Wis. Stat. § 973.198 may increase an inmate's incarceration by up to 90 days. ¶59 In Morales, the United States Supreme Court addressed the issue of when a claim of increased confinement is too speculative and attenuated to constitute an ex post facto violation. 514 U.S. 499 .

2016In Morales , the United States Supreme Court addressed the issue of when a claim of increased confinement is too speculative and attenuated to constitute an ex post facto violation. 514 U.S. 499 .

2016See also Peugh, 133 S. Ct. at 2084 ("A retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation."); Lynce v. Mathis, 519 U.S. 433, 443 (1997) (explaining that in "post- Weaver cases, [the Court has] . . . considered whether the legislature's action lengthened the sentence without examining the purposes behind the original sentencing scheme," and noting that in Miller, the Court's conclusion that the sentencing guidelines made the punishment more burdensome "rested entirely on an objective ap

2016Id. at 510-14. ¶240 In Peugh, 133 S. Ct. 2072 , the Supreme Court again analyzed the ex post facto clause.

2016Rather, it eliminated the opportunity to earn PAT days, which 13 No. 2013AP1724-CR.rgb possibly could have led to converting some confinement days to extended supervision time.4 ¶242 Under the original meaning of the ex post facto clause, courts should "draw a distinction between the penalty that a person can anticipate for the commission of a particular crime, and opportunities for mercy or clemency that may go to the reduction of the penalty." Garner, 529 U.S. at 258 (Scalia, J., concurring). ¶243 The PAT statutes at issue here were very different from the mandatory parole cases where courts

2016Under the original meaning of the ex post facto clause, courts should "draw a distinction between the penalty that a person can anticipate for the commission of a particular crime, and opportunities for mercy or clemency that may go to the reduction of the penalty." Garner, 529 U.S. at 258 (Scalia, J., concurring). ¶ 243.

2016It is also meant to protect fundamental fairness by making the government "abide by the rules of law it establishes," Carmell v. Texas, 529 U.S. 513, 532 (2000), and to "restrict governmental power by restraining arbitrary and potentially vindictive legislation." Weaver, 450 U.S. at 29 . 14 See U.S. Const. art.

2015As such, this case is not like Carmell v. Texas, 529 U.S. 513 (2000), cited by Hull, in which the United States Supreme Court determined that a Texas law relieving the State of an evidentiary requirement previously necessary to obtain a conviction at trial constituted an ex post facto violation.

2018The United States Supreme Court applied the intent-effects test to determine whether Alaska's sex offender registry was punishment for purposes of the ex post facto clause, Smith , 538 U.S. 84 , 123 S.Ct. 1140 ; whether monetary penalties and revocation of occupational licenses were punishment such that a subsequent criminal prosecution based on the same conduct violated the Fifth Amendment's double jeopardy clause, Hudson v. United States , 522 U.S. 93 , 118 S.Ct. 488 , 139 L.Ed.2d 450 (1997) ; and whether monetary penalties assessed against those who discharged hazardous substances into navi

2018The United States Supreme Court applied the intent-effects test to determine whether Alaska's sex offender registry was punishment for purposes of the ex post facto clause, Smith , 538 U.S. 84 , 123 S.Ct. 1140 ; whether monetary penalties and revocation of occupational licenses were punishment such that a subsequent criminal prosecution based on the same conduct violated the Fifth Amendment's double jeopardy clause, Hudson v. United States , 522 U.S. 93 , 118 S.Ct. 488 , 139 L.Ed.2d 450 (1997) ; and whether monetary penalties assessed against those who discharged hazardous substances into navi

2018We also note, although the Wisconsin Supreme Court's Muldrow decision did not address an ex post facto issue, Belleau v. Wall , 811 F.3d 929 , 937-38 (7th Cir. 2016) examined the Wisconsin lifetime GPS tracking scheme for an ex post facto violation and determined that it was not punitive under the intent-effects test and, therefore, did not violate the Ex Post Facto Clause.

2017Belleau v. Wall, 811 F.3d 929, 937-38 (7th Cir. 2016).

2018For example, Wisconsin courts have applied it to determine whether civil commitment pursuant to Wis. Stat. ch. 980 is punishment such that it violates either the ex post facto clause or double jeopardy clause, State v. Rachel , 2002 WI 81 , 254 Wis. 2d 215 , 647 N.W.2d 762 ; whether the mandatory DNA surcharge is punishment such that it violates the ex post facto clause, Scruggs , 373 Wis. 2d 312 , 891 N.W.2d 786 ; and whether monetary penalties for those who do not comply with a county ordinance regulating large gatherings are punishment such that they may be imposed only after a criminal tri

2018For example, Wisconsin courts have applied it to determine whether civil commitment pursuant to Wis. Stat. ch. 980 is punishment such that it violates either the ex post facto clause or double jeopardy clause, State v. Rachel , 2002 WI 81 , 254 Wis. 2d 215 , 647 N.W.2d 762 ; whether the mandatory DNA surcharge is punishment such that it violates the ex post facto clause, Scruggs , 373 Wis. 2d 312 , 891 N.W.2d 786 ; and whether monetary penalties for those who do not comply with a county ordinance regulating large gatherings are punishment such that they may be imposed only after a criminal tri

2017The proper approach is to determine whether the mandatory DNA surcharge statute is an unconstitutional ex post facto violation on its face.8 ¶67 The text of the statutory mandatory DNA surcharge demonstrates that the DNA surcharge is punitive in effect and not merely a reasonable civil charge to fund the estimated costs of state DNA programs: Compare People v. Stead, 845 P.2d 1156, 1160 (Colo. 1993) (resting its conclusion that a drug offender surcharge had a punitive intent in part on the ground that "[t]he surcharge at issue is part of Colorado's criminal code" and in part on "[t]he amount o

2015Id. at 300 .

2012Likewise, in State v. Carpenter, 197 Wis. 2d 252, 274 , 541 N.W.2d 105 (1995), this court explained that Chapter 980 survived an ex post facto challenge because "[t]he legislative aim is not punishment but regulation of a present situation." The Carpenter court's determination relied on Chapter 980's focus on "the offender's current mental condition and the present danger to the public, not punishment." Id. ¶ 77.

2012Likewise, in State v. Carpenter, 197 Wis. 2d 252, 274 , 541 N.W.2d 105 (1995), this court explained that Chapter 980 survived an ex post facto challenge because "[t]he legislative aim is not punishment but regulation of a present situation." The Carpenter court's determination relied on Chapter 980's focus on "the offender's current mental condition and the present danger to the public, not punishment." Id. ¶ 77.

2021See State v. Brereton, 2013 WI 17, ¶19 , 345 Wis. 2d 563 , 826 N.W.2d 369 . 9 No. 2019AP1447 ¶24 Second, Maday argues that the supreme court’s opinion in his direct appeal changed the law relating to testimony by expert witnesses in a way unfavorable to him, and therefore his conviction should be reversed as an ex post facto violation.

2021See State v. Brereton, 2013 WI 17, ¶19 , 345 Wis. 2d 563 , 826 N.W.2d 369 . 9 No. 2019AP1447 ¶24 Second, Maday argues that the supreme court’s opinion in his direct appeal changed the law relating to testimony by expert witnesses in a way unfavorable to him, and therefore his conviction should be reversed as an ex post facto violation.