State Ex Rel. Singh v. Kemper
883 N.W.2d 74
Wis.2016Background
- 2009 Wis. Act 28 created "positive adjustment time" (PAT), allowing certain nonviolent misdemeanants and Class F–I felons to earn early release (one day PAT per two days served) and set procedures for DOC notification and court review before eligibility date. The statute applied retroactively to sentences imposed on or after Dec. 31, 1999.
- 2011 Wis. Act 38 repealed PAT effective August 3, 2011 but preserved PAT already earned between Oct. 1, 2009 and Aug. 3, 2011 and replaced the prior process with Wis. Stat. § 973.198, which requires inmates to petition the sentencing court on the date they become eligible and permits up to a 60-day court response and up to 30 days reduction discretion—creating up to a 90-day delay relative to the old process.
- Aman Singh committed offenses in 2008, July 25, 2011, and August 10, 2011; he was sentenced for the 2008 offense in 2010 (when PAT was in effect) and for the 2011 offenses in December 2011. He first entered DOC custody on January 4, 2012 (after PAT repeal).
- Singh petitioned for habeas corpus after DOC denied PAT processing; the circuit court dismissed, the court of appeals reversed in part (holding retroactive repeal unconstitutional) and affirmed in part (holding § 973.198 not ex post facto), and the Wisconsin Supreme Court reviewed both petition and cross-petition.
- The core legal questions: (1) whether 2011 Wis. Act 38’s retroactive repeal of PAT violates the federal and state ex post facto clauses as applied to Singh, and (2) whether § 973.198—by changing the petition/review timing—violates ex post facto by effectively adding up to 90 days of incarceration.
Issues
| Issue | Plaintiff's Argument (Singh) | Defendant's Argument (Kemper/State) | Held |
|---|---|---|---|
| Whether retroactive repeal of PAT in 2011 Act 38 violates the ex post facto clauses | Repeal made punishment more burdensome because PAT was in effect at sentencing (and for the July 2011 offense at commission), so removing PAT increased confinement relative to the law in effect when Singh was convicted/sentenced | Repeal should be measured by law at time of commission; Singh committed his 2008 crime before PAT existed, so repeal did not increase punishment for that offense | Affirmed court of appeals that retroactive repeal violated ex post facto as applied to Singh (majority agreement at least as to July 2011 offense and for those sentenced while PAT in effect) |
| Whether § 973.198 (new petition/review procedure) violates ex post facto by adding up to 90 days of incarceration | § 973.198 forces inmates to wait until eligibility to file and then undergo a process that can take up to 90 days, so it lengthens confinement compared to prior law and thus is ex post facto | Change is procedural; any effect on confinement is speculative/attenuated and courts retained discretion, so no ex post facto violation | Court held § 973.198 does violate the ex post facto clauses because it unavoidably adds up to 90 days of confinement compared with the prior process (majority) |
| Proper temporal reference for ex post facto analysis (time of commission v. conviction/sentencing) | Ex post facto analysis may consider the law as it existed at commission, conviction, or sentencing because fair warning and reliance at plea/sentencing matter; retroactive Patrick application meant Singh relied on PAT at sentencing | Focus should be on law at time of commission; comparing to law at sentencing improperly expands ex post facto protection | Court majority (lead) rejected a narrow commission-only approach, relying on U.S. Supreme Court and Wisconsin precedent that consider effects measured at commission, conviction, or sentencing; some justices dissented preferring commission-only focus |
Key Cases Cited
- Collins v. Youngblood, 497 U.S. 37 (1990) (ex post facto prohibition defined: laws that punish previously lawful acts, aggravate crimes, increase punishment, or alter evidence rules)
- Weaver v. Graham, 450 U.S. 24 (1981) (retroactive changes to gain-time that lengthen incarceration can violate ex post facto; importance of fair warning and plea/sentencing reliance)
- Lynce v. Mathis, 519 U.S. 433 (1997) (invalidated retroactive cancellation of already awarded good-time credits; protection of entitlements conferred at conviction/sentencing)
- Peugh v. United States, 569 U.S. 530 (2013) (ex post facto inquiry asks whether a change presents a sufficient risk of increasing punishment; mere speculation is insufficient)
- California Dept. of Corrections v. Morales, 514 U.S. 499 (1995) (procedural parole changes that create only speculative risk of increased confinement do not necessarily violate ex post facto)
- Dobbert v. Florida, 432 U.S. 282 (1977) (procedural changes are not per se ex post facto where they do not change the quantum of punishment)
- State v. Thiel, 188 Wis. 2d 695 (1994) (Wisconsin adoption of Collins/Beazell standard for ex post facto analysis)
- State ex rel. Mueller v. Powers, 64 Wis. 2d 643 (1974) (parole-eligibility shifts that increase time before eligibility can constitute ex post facto violations; relied on historically but qualified by later Wisconsin precedent)