ex post facto violation in Vermont

2015In Morales, however, the Court clarified that “the focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of ‘disadvantage,’ nor . . . on whether an amendment affects a prisoner’s ‘opportunity to take advantage of provisions for early release,’ . . . but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable.” Id. 6 Mr. Chandler has failed to identify any ex post facto violation in this case.

2008See Cal. Dep’t of Corr. v. Morales, 514 U.S. 499 , 506 n.3 (1995) (noting that the focus of an ex post facto inquiry is not on whether a change produces “some ambiguous sort of disadvantage” or “affects a prisoner’s opportunity to take advantage of provisions for early release... but on whether [it] increases the penalty by which a crime is punishable” (quotations omitted)).

2024See Miller v. Ignacio, 921 P.2d 882, 885 (Nev. 1996) (per curiam) (explaining that the ex post facto inquiry is objective in nature); Giroud v. Hofinann, 2009 VT 66, 8 , 186 Vt. 153 (“Whether there is an increase in punishment is based upon an objective evaluation of the effect of the amended legislation on the prisoner’s sentence.”).

2015See Miller v. Ignacio, 921 P.2d 882, 885 (Nev. 1996) (per curiam) (explaining that the ex post facto inquiry is objective in nature); Giroud v. Hofmann, 2009 VT 66, ¶ 8 , 186 Vt. 153 (“Whether there is an increase in punishment is based upon an objective evaluation of the effect of the amended legislation on the prisoner’s sentence.”).

2014See Day, 2012 WL 6633576 ; see also Delisle, 171 Vt. at 133–34 (holding the Vermont Legislature intended to eliminate the savings clause).

2013See State v. Delisle, 171 Vt. 128, 133 (2000).

2013We reversed the trial court’s dismissal of the inmate’s *424 claim, noting that “[i]f in fact the [challenged statute] created a sufficient risk of eliminating [the] plaintiffs eligibility for parole, then [the] plaintiffs. claim of an Ex Post Facto Clause violation may prevail.” Id. ¶ 11; accord Puckett v. Abels, 684 So. 2d 671, 678 (Miss. 1996) (retroactive law requiring inmates to serve eighty-five percent of their sentences before parole eligibility unconstitutionally stiffened punishment by rendering them categorically ineligible for parole). ¶ 13.

2010Marrero, 417 U.S. at 663 ; see generally Puckett v. Abels, 684 So.2d 671 (Miss. 1996) (concluding that the retrospective application of a statute requiring inmates to serve 85% of their maximums and eliminating earlier, previously available opportunities for early release violates the Ex Post Facto Clause).

2024See Miller v. Ignacio, 921 P.2d 882, 885 (Nev. 1996) (per curiam) (explaining that the ex post facto inquiry is objective in nature); Giroud v. Hofinann, 2009 VT 66, 8 , 186 Vt. 153 (“Whether there is an increase in punishment is based upon an objective evaluation of the effect of the amended legislation on the prisoner’s sentence.”).

2024See Miller v. Ignacio, 921 P.2d 882, 885 (Nev. 1996) (per curiam) (explaining that the ex post facto inquiry is objective in nature); Giroud v. Hofinann, 2009 VT 66, 8 , 186 Vt. 153 (“Whether there is an increase in punishment is based upon an objective evaluation of the effect of the amended legislation on the prisoner’s sentence.”).

2024It relies on Tull v. United States, 481 U.S. 412, 423 (1987), which held that a particular civil penalties provision of the federal Clean Water Act—33 U.S.C. § 1319(d)—was punitive in nature for the purposes of deciding whether the Seventh Amendment required a jury trial in such cases.

2016More fundamentally, the specific legal circumstances in this case compounded the prejudice; because defendant’s underlying convictions violated the Ex Post Facto Clause, relying on the sufficiency of the information to find defendant guilty of the statutes in effect at the time of his alleged acts stretches the limits of Rule 7(b).16 In a strikingly similar case, Seaton v. State, the Kansas Court of Appeals concluded that such an attempt to remedy an ex post facto violation was “fruitless.” 998 P.2d 131, 136 (Kan.

2016More fundamentally, the specific legal circumstances in this case compounded the prejudice; because defendant’s underlying convictions violated the Ex Post Facto Clause, relying on the sufficiency of the information to find defendant guilty of the statutes in effect at the time of his alleged acts stretches the limits of Rule 7(b). 16 In a strikingly similar case, Seaton v. State, the Kansas Court of Appeals concluded that such an attempt to remedy an ex post facto violation was “fruitless.” 998 P.2d 131, 136 (Kan.

2016See Peugh v. United States, __ U.S. __, 133 S. Ct. 2072, 2084 (2013) (“A retrospective increase in the [sentencing] range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation.”); see also Lindsey v. Washington, 301 U.S. 397, 400-01 (1937) (holding that statute that makes “mandatory what was before only the maximum sentence” violates rule against ex post facto laws).

2016See Peugh v. United States, 569 U.S. 530, 544 , 133 S. Ct. 2072, 2084 (2013) (“A retrospective increase in the [sentencing] range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation.”); see also Lindsey v. Washington, 301 U.S. 397, 400-01 (1937) (holding that statute that makes “mandatory what was before only the maximum sentence” violates rule against ex post facto laws).

2016See Peugh v. United States, __ U.S. __, 133 S. Ct. 2072, 2084 (2013) (“A retrospective increase in the [sentencing] range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation.”); see also Lindsey v. Washington, 301 U.S. 397, 400-01 (1937) (holding that statute that makes “mandatory what was before only the maximum sentence” violates rule against ex post facto laws).

2016See Peugh, __ U.S. at __, 133 S. Ct. at 2084 (“A retrospective increase in the [sentencing] range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation.”).

2016The question is whether a subsequent law, retroactively implemented by the Department, “increased] the measure of punishment attached to the covered crimes.” Garner, 529 U.S. at 250 (quotation omitted).

2015See California Dep’t of Corrections v. Morales, 514 U.S. 499 , 510 n.6 (1995) (noting “the settled rule that a claimant must bear the risk of nonpersuasion as to the existence of an alleged constitutional violation”); Evans v. Gerry, 647 F.3d 30, 35 (1st Cir. 2011). 5.

2015See Foster v. Booker, 595 F.3d 353 , 361–65 (6th Cir. 2011) (distinguishing legislative enactments that increase punishment, which may show an ex post facto violation; from a parole board’s exercise of its 15 unfettered discretion to offer parole in more limited circumstances, which does not); see also Shabazz v. Gabry, 123 F.3d 909, 916 (6th Cir. 1997) (noting that “internal policy directives and memoranda” that merely guide agency decision-making are not laws within the contemplation of the Clause); Prater, 802 F.2d at 954 (“[A] mere change in enforcement methods, priorities, or policies, wr

2015See Foster v. Booker, 595 F.3d 353 , 361–65 (6th Cir. 2011) (distinguishing legislative enactments that increase punishment, which may show an ex post facto violation; from a parole board’s exercise of its 15 unfettered discretion to offer parole in more limited circumstances, which does not); see also Shabazz v. Gabry, 123 F.3d 909, 916 (6th Cir. 1997) (noting that “internal policy directives and memoranda” that merely guide agency decision-making are not laws within the contemplation of the Clause); Prater, 802 F.2d at 954 (“[A] mere change in enforcement methods, priorities, or policies, wr

2015See Foster v. Booker, 595 F.3d 353 , 361–65 (6th Cir. 2011) (distinguishing legislative enactments that increase punishment, which may show an ex post facto violation; from a parole board’s exercise of its 15 unfettered discretion to offer parole in more limited circumstances, which does not); see also Shabazz v. Gabry, 123 F.3d 909, 916 (6th Cir. 1997) (noting that “internal policy directives and memoranda” that merely guide agency decision-making are not laws within the contemplation of the Clause); Prater, 802 F.2d at 954 (“[A] mere change in enforcement methods, priorities, or policies, wr

2011See United States v. Brennan, 326 F.3d 176, 197 (3d Cir. 2003) (“[W]hen an amendment is a mere clarification, rather than a substantive change ... , its application does not violate the ex post facto clause.”); United States v. Mapp, 990 F.2d 58, 61 (2d Cir. 1993) (“When an amendment serves merely to clarify ... the Ex Post Facto clause is not implicated.”); Holm v. Iowa Dist.

2011See United States v. Brennan, 326 F.3d 176, 197 (3d Cir. 2003) (“[W]hen an amendment is a mere clarification, rather than a substantive change ... , its application does not violate the ex post facto clause.”); United States v. Mapp, 990 F.2d 58, 61 (2d Cir. 1993) (“When an amendment serves merely to clarify ... the Ex Post Facto clause is not implicated.”); Holm v. Iowa Dist.

2011See United States v. Brennan, 326 F.3d 176, 197 (3d Cir. 2003) (“[W]hen an amendment is a mere clarification, rather than a substantive change ... , its application does not violate the ex post facto clause.”); United States v. Mapp, 990 F.2d 58, 61 (2d Cir. 1993) (“When an amendment serves merely to clarify ... the Ex Post Facto clause is not implicated.”); Holm v. Iowa Dist.

2011See United States v. Brennan, 326 F.3d 176, 197 (3d Cir. 2003) (“[W]hen an amendment is a mere clarification, rather than a substantive change ... , its application does not violate the ex post facto clause.”); United States v. Mapp, 990 F.2d 58, 61 (2d Cir. 1993) (“When an amendment serves merely to clarify ... the Ex Post Facto clause is not implicated.”); Holm v. Iowa Dist.

2011Ct., 767 N.W.2d 409, 416 (Iowa 2009) (“There is no ex post facto violation where a court merely clarifies the law without making substantive changes.”). 3 Summaries of all bills passed by the General Assembly are prepared by staff of the Legislative Council.

2009Id. at 758 ; see also Elmore v. State, 409 S.E.2d 397, 399-400 (S.C. 1991) (stating that the retrospective reduction in work credits that affect the date on which a prisoner would be entitled to consideration for parole is an Ex Post Facto Clause violation), overruled on other grounds by Al-Shabazz v. State, 527 S.E.2d 742 (S.C. 2000).

2009Id. at 758 ; see also Elmore v. State, 409 S.E.2d 397, 399-400 (S.C. 1991) (stating that the retrospective reduction in work credits that affect the date on which a prisoner would be entitled to consideration for parole is an Ex Post Facto Clause violation), overruled on other grounds by Al-Shabazz v. State, 527 S.E.2d 742 (S.C. 2000).