# Petition for Writ of Certiorari — Taylor v. Rhode Island Department of Corrections > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0609%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1997 - **Citation:** 521 U.S. 1104 ## Text 96167 0 are | 7 1997. No. @Wieé QE Li? CLERK sek om we IN THE Supreme Court of the United States October Term, 1996 WILLIAM L. TAYLOR, MARYANNE SILVA, RAYMOND W. CHRISTIANSEN, LIONEL L. BOURGET anp DAVID A. WEBB, " Petitioners, STATE OF RHODE ISLAND, DEPARTMENT OF CORRECTIONS AND GEORGE A. VOSE, JR.., INDIVIDUALLY AND IN HIs OFFICIAL Capacity AS DIRECTOR OF THE RHODE ISLAND DEPARTMENT OF CORRECTIONS, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT PETITION FOR A WRIT OF CERTIORARI RICHARD A. SINAPI AMERICAN CIVIL LIBERTIES UNION Rhode Island Affiliate Counsel of Record V. EDWARD FORMISANO SINAPI LAW ASSOCIATES, LTD. 100 Midway Place, Suite | Cranston, Rhode Island 02920 (401) 944-9690 April 17, 1997 BATEMAN & SLADE, INC BOSTON, MASSACHUSETTS QUESTIONS PRESENTED |. Whether the retroactive assessment of offender supervi- sion fees solely and automatically as a consequence of a crim- inal conviction and the sentence of probation imposed consti- tutes the imposition of a greater punishment proscribed by the Ex Post Facto Clause. 2. Whether the decision of the court of appeals should be vacated and remanded for reconsideration in light of this Court’s recent decision in Lynce v. Mathis, 117 S.Ct. 891 (1997), which rejected the subjective motivation test relied upon by the court below in denying an ex post facto challenge to the retroactive imposition of offender supervision fees. TABLE OF CONTENTS QUESTIONS PREBONIOD 6. ice e eee enue i FABLE GE AURORE in 6 8 0b e we 6G eee iil CGE NOT 6 645s Sib does eee es I PS SE a ee Tee RE eee 2 CONSTITUTIONAL AND STATUTORY PRU Vises INVOLVED... te cae ee 2 PE TOE Ste alk eee ee a ee 2 Ki a RES eee 3 B. Offender supervision fee statutory scheme ..... 4 C. Retroactive implementation .............. 5 a. Sees GE Gs a 8 ee ee ee 6 cS. Cout of sppens Gecwaeh wk ee ce 7 REASONS FOR GRANTING THE PETITION ...... 8 I. The court of appeals decision conflicts with con- controlling precedents of this Court, the result reached by the only other court of appeals to ad- dress the issue, and numerous state and lower federal court decisions which have uniformly held that retroactive imposition of monetary exactions solely and automatically as a conse- quence of a criminal conviction violates the Ex Peat Facts Ca oo i ss eae ee 12 A. The decision conflicts with authoritative precedents of this Court defining “punish- ment” in the Ex Post Facto context ....... 13 B. The decision conflicts with the holdings of Ler Se a a SK ea 16 C. The decision conflicts with the result reached by the Fifth Circuit in Sheppard ......... 17 D. The decision conflicts with recent decisions of numerous state and lower federal courts upholding Ex Post Facto challenges in simi- i SS 5. oo eS a ae 17 ill TABLE OF CONTENTS (CONT ’D) Il. The decision of the court of appeals is erroneous and cannot be reconciled with this Court’s recent decision in Lynce v. Mathis and therefore must I ie a sg en be Se eee ee A. Characterization of supervision fees as a “civil charge” is erroneous ..........-. B. Application of the Halper test is erroneous . . C. Lynce v. Mathis compels reversal ....... III. This case involves the scope of protection afford- ed by a fundamental constitutional safeguard against arbitrary laws and its disposition by this Court will have a profound effect nationally on criminal offenders retroactively subjected to SEA ae ee ee a ee ae oa gd, yaw wa ew be ew pl Appendix A Opinion of the Court of Appeals ...........-. Appendix B Memorandum and Order of the District Court Appendix C Pes oF tee Treeirict Cott... 6 ww ee ees Appendix D Order of the Court Denying Petition for Rehearing . Appendix E RRS re ae ee ee ee Appendix F Amended Judgment .... 2... 0s eee eeee Appendix G § 42-56-38. Assessment of costs ........... Appendix H Agreed Statement of Facts .........-...-..-.- Appendix I States Which Have Enacted Offender Fee Statutes . iV TABLE OF AUTHORITIES CITED CASES. Artway v. Attorney General of New Jersey, 81 F.3d 1235 CONE Rae; PE os vee ae) baa aaa a 22, 23n Bae v. Shalala, 44 F.3d 489 (7th Cir. 1995) ...... 23n Beazell v. Ohio, 269 U.S. 167 (1925) . 9n, 13, 14, 15, 20n Burgess v. Salmon, 97 U.S. 381 (1878) ...... 9n, 20n Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) ... 9n, 13, 14 California Dept. of Corrections v. Morales, \15 S.Ct. POET LIPO eR ee l6n, 24, 26 Collins v. Youngblood, 497 U.S. 37 (1990) ..... CNP fee hom ain GAD Mere 9n, 13, 14, 15n, 20n Corcoran v. State, No. 96-CV-004360 (Wis. Cir. Ct. RENCE iy PER 6 ob ee eR hes oe 26n Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1867) co gee holies ea wee eee ee 9n, 13n, 20 Department of Revenue v. Kurth Ranch, 1148.Ct. 1937 RSE 246 3 Le a eee ee ee 20, 21 DeVeau v. Braisted, 363 U.S. 144 (1960) ...... ia. 22 DiCola v. Food and Drug Administration, 77 F.3d 504 hc GO Se Se Ee ROE ee eee ees 23n Dobbert v. Florida, 432 U.S. 282 (1977) ........ 15n Flemming v. Nestor, 363 U.S. 603 (1960) ......... 23 Government of Virgin Islands v. D.W., 3 F.3d 697 Ce as SOE Oe a eRe ee eee 9n Harisiades v. Shaughnessy, 342 U.S. 580 (1952) .... 23 In re Medley, 134 U.S. 160 (1890) ............. On Landgraf v. USI Film Products, 114 §.Ct. 1483 (1994) . 25 Lindsey v. Washington, 301 U.S. 397 (1937) . 9n, 13n, 15n Loomer v. State, 768 P.2d 1042 (Wyo. 1989) ....... 9n Lynce v. Mathis, 117 S.Ct. 891 (1997) ........ passim inanimate iii Vv TABLE OF AUTHORITIES CITED (CONT’D) Matheson v. Gorczyk, No. 2:97-CV-85 (D. Vt. filed WE STD 6A HES EE OE 26n Matter of Appeal in Maricopa Cty. Juv. Action, 139 Ariz. 170, 677 P.2d 943 (Ariz. App. 1984) ...... 9n Miller v. Florida, 482 U.S. 423 (1987) .... 9n, 13, 15n People v. Rayburn, 258 Ull.App.3d 331, 630 N.E.2d Dae RENT i ae Oe ae ss ee ees 9n People v. Slocum, 213 Mich. App. 239, 539 N.W.2d SER MTTOOD i x 6k Se ee Oe ee ee eee 9n People v. Stead, 845 P.2d 1156 (Colo. 1993) ....... 9n People v. Valdelamar, 122 A.D.2d 289, 505 N.Y.S.2d Pe (A. 2 a AOE kk os SS sea ee ee 9n People v. Zinke, 147 A.D.2d 106, 541 N.Y.S.2d 986 [Ae FAs SEE kak KS ee ee eee 9n Petition of State, 603 A 2d 814 (Del. 1992) . 9n, 15, 19, 22n Sheppard v. Louisiana Bd. of Parole, 873 F.2d 761 (Sth Ge PEE Aldi eee ane eos Oe ee 9, 12, 17, 18, 20n United States v. Atkinson, 788 F.2d 900 (2nd Cir. 1986) . 19n United States v. Anglian, 784 F.2d 765 (6th Cir. 1986) . 19n United States v. Halper, 490 U.S. 435 (1989) CS CN ee Oe Boe 3, t 6. FO, 11, 21 United States v. Ursery, 116 S.Ct. 2135 (1996) energy en ee eon ey he S, 2, 33528 United States v. Gilberg, 75 F.3d 15 (1st Cir. 1996) oR aS ead ee ee ea 9n, 19n, 20n United States v. DeSalvo, 41 F.3d 505 (9th Cir. 1994) RE ee One OMe erg Se See Ae ree 9n, 19n, 20n United States v. Corral, 964 F.2d 83 (1st Cir. 1992) Se eke ae Gr ee She ee et 15n, 20n United States v. Labat, 915 F.2d 603 (10th Cir. 1990) . 15n State v. Short, 177 W.Va. 1, 350 S.E.2d 1 (1986) .... 9n vi TABLE OF AUTHORITIES CITED (CONT'D) State v. Yost, 507 So.2d 1099 (Fla. 1987) ......... 9n Weaver v. Graham, 450 U.S. 24 (1981) ....... passim STATUTES AND RULES. United States Constitution ES Be Me ns Gia ts 9 Ke ie ei we ean 13n I Se Sek ee he ne ae ne ree 2, 13n United States Code ee ae ee REE oS oe ee aes Rie ete 2 cect, ee Go ok geld ea ee ee ee or ee 2 Federal Rules of Civil Procedure RG RY ang Ga eo ee oa ae ee ee ee 7n BG NS ek eg ete aa arg rae ae eens Og 7n Rhode Island General Laws i a og Seog eae ae ae ee 2, 4, 5, 19n, 26n Rhode Island Department of Corrections puementaen PHO, FOG GS 5 5 i ee we p ae a No. 97- IN THE Supreme Court of the Anited States October Term, 1996 WILLIAM L. TAYLOR, MARYANNE SILVA, RAYMOND W. CHRISTIANSEN, LIONEL L. BOURGET anpb DAVID A. WEBB, Petitioners, STATE OF RHODE ISLAND, DEPARTMENT OF CORRECTIONS AND GEORGE A. VOSE, JR., INDIVIDUALLY AND IN HIS OFFICIAL Capacity AS DiRECTOR OF THE RHODE ISLAND DEPARTMENT OF CORRECTIONS, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT PETITION FOR A WRIT OF CERTIORARI William L. Taylor, Maryanne Silva, Raymond W. Christian- sen, Lionel L. Bourget and David A. Webb (“Petitioners’’) re- spectfully petition for a writ of certiorari to review the judgment of the United States Court of Appeals for the First Circuit in this case. OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-10a) is reported at 101 F.3d 780. The opinion of the district court (App., infra, \\a-37a) is reported at 908 F. Supp. 92. 2 JURISDICTION The court of appeals entered judgement on December 4, 1996 (App., infra, 42a) and an amended judgement on De- cember 16, 1996 (App., infra, 43a). A petition for rehearing and suggestion of rehearing en banc was denied by the court of appeals on January 17, 1997 (App., infra, 40a). The juris- diction of this Court is invoked under 28 U.S.C. § 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED Article I, § 10 of the United States Constitution provides, in pertinent part, that “[nJjo State shall... pass any . . . ex post facto Law.” This case also involves R.I. Gen. Laws § 42-56-38 and regulations promulgated pursuant thereto, Rhode Island Department of Corrections Regulation No. 10.07.03, which are reprinted in the appendix, infra, at 44a- 50a. STATEMENT The Petitioners are all convicted offenders who committed their respective offenses and were sentenced to probation under the care and custody of the Rhode Island Department of Correc- tions prior to July 1, 1994. On the basis of a Rhode Island law effective on and after this date, the Respondents subse- quently imposed a monthly supervision fee on the Petitioners as an additional condition of their sentences of probation. The Petitioners thereafter filed an action pursuant to 42 U.S.C. § 1983 seeking relief on the ground that, inter alia, imposition of the fee violated the Ex Post Facto Clause. Jurisdiction of the district court was invoked under 28 U.S.C. § 1331. The district court declared the imposition of the supervision fee on Petitioners to be unconstitutional in violation of the Ex Post Facto Clause. On appeal, the court of appeals reversed, based in part on its conclusion that the supervisory fee “comprises no part of the sentence imposed,” even though the fee was 3 assessed solely and automatically as a consequence of a crim- inal conviction and the sentence of probation imposed. This finding conflicts with this Court’s decision in Weaver v. Graham, 450 U.S. 24 (1981), recently reaffirmed in pertinent part in Lynce v. Mathis, 117 $.Ct. 891 (1997), which held that an increase in punitive conditions outside the original sentence imposed implicates the Ex Post Facto Clause. By erroneously applying the double jeopardy test announced in United States v. Halper, 490 U.S. 435 (1989), the court of appeals held that imposition of the supervisory fee did not violate the Ex Post Facto Clause since there was no subjective intent to punish and the amount of the assessment was not so extreme as to constitute “punishment.” The court of appeals’ opinion predates this Court’s decision in Lynce, which rejected the relevance of subjective motivation and reiterated that the focus of an ex post facto inquiry is the effect on a criminal offender. The case below was also briefed and argued before this Court’s decision in United States v. Ursery, 116 S.Ct. 2135 (1996), which cautioned that the Halper test applies only in double jeopardy analysis and even then is narrowly restricted to situations where a fixed monetary penalty is sought in a subsequent civil proceeding. A. Summary To the Petitioners’ knowledge, this case marks the first time in the history of American jurisprudence where a monetary exaction retroactively imposed as a direct and automatic con- sequence of a criminal conviction and the sentence imposed has survived an ex post facto challenge. By redefining what constitutes “punishment” based on an erroneous double jeopardy analysis and contrary to nearly 200 years of ex post facto case law, the decision below is an invitation to states to raise revenues through the retroactive imposition of monetary payments on criminal offenders, which are carefully labeled as “fees for services” in order to exploit the ex post facto loophole created by this case. If left undisturbed, it will inevit- ie 4 ably precipitate a flood of litigation — which has already started — wherein courts will be forced to adjudicate under what circumstances, to what extent, and in what amounts states may retroactively impose “fees for services” on criminal offen- ders. The court of appeals decision effectively authorizes states to do by indirection that which they could not do directly — retroactively increase the monetary penalty imposed on sen- tenced criminal offenders. To restate the issue another way, the question presented is whether, by merely asserting a non- punitive purpose for monetary exactions which do not exceed the cost of “services” provided, a state may impose fees on criminal offenders which have the effect of retroactively inflict- ing a greater punishment, and thereby escape the constraints of the Ex Post Facto Clause. Although the precise issue before the Court is one of first impression, the court of appeals’ decision conflicts with well- settled precedents of this Court, in particular its recent unani- mous decision in Lynce which was announced subsequent to the decision of the court of appeals. The decision is also con- trary to the result reached by the only other court of appeals to rule on this issue, and it conflicts with recent decisions of numerous state and lower federal courts which have uniformly held in similar contexts that the retroactive imposition of a monetary exaction solely and automatically as a consequence of a criminal conviction violates the Ex Post Facto Clause. The decision of the court below is clearly erroneous and in- volves a serious encroachment on the important constitutional right to be free from the retroactive imposition of a greater punishment. Moreover, this case is deserving of heightened scrutiny by this Court insofar as the challenged statute seeks to retroactively impose a greater burden on perhaps the most unpopular and powerless of groups — criminal offenders. B. Offender Supervision Fee Statutory Scheme Rhode Island General Laws § 42-56-38, as enacted by P.L. 1992, c. 133, art. 97, § 2 (App., infra, 44a), provides, inier 5 alia, that every sentenced criminal offender committed to the care, custody and control of the Rhode Island Department of Corrections (“Department”), including but not limited to those on probation or parole, “chall reimburse the state for the costs or the reasonable portion thereof incurred by the state relating to such commitment.” Individuals incarcerated while awaiting trial are exempted from this reimbursement obligation if they are not subsequently convicted. Id. The statute specifically provides that it shall not be effective until the date rules and regulations implementing its provisions are filed with the Rhode Island Secretary of State. /d. On June 17, 1994, the Respondents filed rules and regulations with the secretary of state implementing § 42-56-38 entitled “Adult Probation and Parole Offender Supervision Fees,” effective as of July }, 1994, providing for the imposition of sentenced offender super- vision fees, designated as Regulation No. 10.07.03 (“Regula- tion”) (App., infra, 45a-50a). The Regulation provides that a monthly supervision fee of $15.00 shall be assessed og proba- tioners and parolees effective July 1, 1994. Jd. Although an offender’s probation may not be violated solely for non-pay- ment of the fees, the Regulation does provide that in the context of a probation revocation hearing “non-payment of offender fees may be brought to the attention of the court, formally or informally, as indicative of a lack of cooperation, failure to fulfill lawful obligations or other pattern of non-compliance.” Regulation § 10.07.03 (I1)(D)(3), App., infra, 48a. C. Retroactive Implementation The Petitioners all committed their respective offenses and were convicted, sentenced and placed on probation under the care and custody of the Department prior to July 1, 1994. App., infra, 56a. Accordingly, neither at the time the Petitioners’ underlying offenses were committed nor at the time the Peti- tioners were sentenced to probation was an offender supervi- sion fee imposed by law as a condition of such probation or otherwise. Jd. Nevertheless, on June 16, 1994, Respondent ' 6 George A. Vose, Jr., Director of the Department, sent a letter addressed to all individuals who were on probation or parole in Rhode Island, including Petitioners, notifying them that a monthly offender supervision fee would be imposed commenc- ing July 1, 1994. /d. at 54a. The imposition of the fee amounts to an additional monetary penalty on the Petitioners which ranges between $135.00 and $3,405.00 through the terms of the Petitioners’ respective periods of probation. /d. at 5la-52a. D. District Court Decision The Petitioners thereafter commenced suit in the district court claiming that the offender fee statute, as applied, violated the Ex Post Facto and Due Process Clauses of the United States and Rhode Island Constitutions. The case was decided in the district court on cross-motions for summary judgment on an agreed statement of facts. The district court granted Petitioners’ motion for summary judgment on the ground that the challenged provision violated state and federal ex post facto prohibitions and also on the ground that retrospective applica- tion of the provision to the Petitioners violated statutory author- ity. 908 F. Supp. at 95-96, 107, App., infra, 12a, 37a. The district court rejected Petitioners’ substantive due process claim, and granted Respondents’ cross-motion for summary judgment thereon. /d. The district court did not reach and there- fore denied both the Petitioners’ and Respondents’ requests for relief on the procedural due process claim. /d. Finally, the district court granted summary judgment to Respondent George A. Vose, Jr. in his individual capacity on the ground of quali- fied immunity. /d. The net effect of the district court’s decision was to declare the application of the challenged provision imposing offender supervision fees to be unconstitutional in violation of the Ex Post Facto Clauses of both the state and federal constitutions, but only as to individuals whose offenses were committed prior to the effective date of the statute.' The ‘In its Memorandum and Order dated November 21, 1995, the district court originally declared the challenged provision unconstitutional as to offenders sen- 7 district court found that imposition of the fee solely and auto- matically as a consequence of a criminal conviction and the sentence of probation imposed inextricably linked the fee to Petitioners’ criminal convictions and therefore was part of the “law annexed to the crime.” /d. at 101, App., infra, , 24a-25a. Since imposition of the fee had the effect of “make[ing} more burdensome the punishment for a crime,” on the basis of Weaver v. Graham, 450 U.S. at 24, and well-settled ex post facto doctrine, the district court found the fee to be unconstitu- tional in violation of the Ex Post Facto Clause as applied to the Petitioners. E. Court of Appeals Decision The court of appeals reversed the district court and remanded the case for further proceedings on the Petitioners’ procedural due process claims under state and federal law. Although the court of appeals acknowledged that the offender fee statute, as applied to the Petitioners, was retrospective, the. court nevertheless rejected Petitioners’ ex post facto challenge on the ground that imposition of the fee did not constitute pros- cribed “punishment.” The court of appeals reached this result by applying a subjective test for defining “punishment” coupled with an objective standard derived from this Court’s decision in Halper, 490 U.S. at 435. 101 F.3d at 782-784, App., infra, 6a-10a. Accordingly, the court of appeals determined that “under the current regime governing civil provisions the relev- ant inquiry was not only whether the legislative intent was punitive in nature, but whether the challenged civil provision is ‘so extreme as to constitute punishment.’ ” 101 F.3d at 783 (emphasis in original) (quoting Halper, 490 U.S. at 442.), App., infra, 7a. In applying the foregoing test, the court of tenced to probation prior to its effective date. 908 F. Supp. at 107, App., infra, 37a. In response to a motion filed by Petitioners seeking additional findings and to alter or amend the judgment pursuant to Fed. R. Civ. P. 52(b) and 5%e), the district court issued a subsequent order dated January 10, 1996 (App.. infra, 38a) clarifying that it was the date of the offense, not the date of sentencing which was the relevant date for applying the ex post facto prohibition. 8 appeals found, as a preliminary matter, that the offender fee statute imposed a “civil charge” which “comprises no part of any sentence imposed for the crimes committed by offenders.” 101 F.3d at 783, App., infra, 7a-8a. In reaching this conclu- sion, the court of appeals ignored the teaching of Weaver, which held that the retrospective imposition of a greater punish- ment violates the Ex Post Facto Clause even if it alters punitive conditions outside the sentence itself. 450 U.S. at 32; accord, Lynce, 117 S.Ct. at 898. Because the fee was designed to “reimburse” the Department for costs reasonably incurred in providing supervisory services to probationers and parolees, the court of appeals concluded that the statute neither in its purpose nor by application of the Halper objective test consti- tuted “punishment” proscribed by the Ex Post Facto Clause. 101 F.3d at 783-784, App., infra, 7a-10a. REASONS FOR GRANTING THE PETITION The Petitioners’ claim in this case is relatively simple and the material facts are not in dispute. The Respondents imposed offender supervision fees on Petitioner probationers, which average $972.00 each and range as high as $3,405.00 as to one Petitioner, even though the state law authorizing such fees was not in effect at the time the Petitioners’ underlying offenses were committed, at the time they were sentenced, or at the time they were placed on probation. As a consequence, in addition to now having to pay punitive fines disguised as “offender supervision fees,” Petitioners face possible revoca- tion of their probation due, at least in part, to non-payment of the fees. According to well-settled law and controlling Supreme Court precedent, where, as here, an increased monetary penalty is imposed either at the time of sentencing or automatically as a result of the imposition of a criminal sentence, it is part of the “law annexed to the crime” and constitutes punishment as a matter of law which is proscribed by the Ex Post Facto Clause. See Lynce, 117 S.Ct. at 891; Weaver, 450 U.S. at 24. The foregoing conclusion urged on this Court is not a novel one, but flows inexorably from the broad application accorded — | ON eer ne nmr 9 the Clause under an unbroken line of Supreme Court precedent’ and is the same result reached by the Fifth Circuit in a recent case in deciding a similar issue, Sheppard v. Louisiana Bd. of Parole, 873 F.2d 761 (Sth Cir. 1989). Moreover, the Petitioners’ position is also consistent with recent decisions of numerous state and lower federal courts which, in similar contexts, have unanimously held that the retroactive applica- tion of provisions imposing additional costs, civil assessments or restitution violates the ex post facto proscription, including a recent decision of the First Circuit.’ In the face of the foregoing well-settled law, the court of appeals nevertheless reversed the district court’s grant of sum- >See Lynce, 117 S.Ct. at 891 (cancellation of provisional early release credits awarded to alleviate prison overcrowding); Miller v. Florida, 482 U.S. 423 (1987) (increase in presumptive sentence range under sentencing guidelines); Weaver, 450 U.S. at 24 (loss of mandatory gain time credited to reduce prison term due to good conduct); Lindsey v. Washington, 301 U.S. 397 (1937) (changing maximum sen- tence from discretionary to mandatory); /n re Medley, 134 U.S. 160 (1890) (requir- ing solitary confinement prior to execution); Burgess v. Salmon, 97 US. 381 (1878) (increasing commodities tax and imposing criminal penalties for failure to collect additional duty); Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1867) (requiring ministers, priests and lawyers to take loyalty oath failing which they must either cease engaging in their profession or become subject to criminal penal- ties); see also Collins v. Youngblood, 497 U.S. 37 (1990); Beazell v. Ohio, 269 U.S. 167 (1925); Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798). ‘United States v. Gilberg, 75 F.3d 15 (ist Cir. 1996) and United States v. DeSalvo, 41 F.3d S505 (9th Cir. 1994) (restitution ordered under amended Victim and Witness Protection Act); Government of Virgin Islands v. D.W., 3 F.3d 697 (3rd Cir. 1993) (monetary fine imposed on juvenile); Sheppard v. Louisiana Bd. of Parole, 873 F.2d 761 (Sth Cir. 1989)(parole supervision fees); Matter of Appeal in Maricopa Cty. Juv. Action, 139 Ariz. 170, 677 P.2d 943 (Ariz. App. 1984) (imposition of $100.00 assessment and $100.00 in restitution); People v. Stead, 845 P.2d 1156 (Colo. 1993)(en banc ($1,000.00 payment to drug offender surcharge fund); Petition of State, 603 A.2d 814 (Del. 1992) (percentage assessments to be paid to victim compensation and drug rehabilitation funds); State v. Yost, 507 So. 2d 1099 (Fla. 1987) (monetary penalties for nonpayment of assessed fees and court costs); People v. Rayburn, 258 lll. App.3d 331, 630 N.E.2d 533 (1994) ($100.00 fine to be paid to family abuse fund); People v. Slocum, 213 Mich. App. 239, 539 N.W.2d 572 (1995) (payment of cost of extradition as part of court-ordered restitution); People v. Zinke, 147 A.D.2d 106, 541 N.Y.S.2d 986 (A.D. | Dept. 1989) (5% surcharge on sentence of restitution); People v. Valdelamar, 122 A.D.2d 289, 505 N.Y.S.2d 192 (A.D. 2 Dept. 1986) (mandatory penalty assessment of $75.00 per indictment); State v. Short, 177 W.Va. 1, 350 S.E.2d | (1986) (payment of restitution beyond period of probation); Loomer v. State, 768 P.2d 1042 (Wyo. 1989) (costs of prosecution). 10 mary judgment in favor of Petitioners. The court of appeals’ decision in this case has thus effectively overruled and turned on its head nearly 200 years of ex post facto decisional law, by redefining the term “punishment” so as not to include a monetary exaction imposed as a direct and automatic conse- quence of the imposition of a criminal sentence, contrary to authoritative Supreme Court precedent. See cases cited supra note 2. In reaching this result, the court of appeals ignores the teaching of Weaver and this Court’s recent decision in Lynce, which hold that an increase in punitive conditions outside the sentence itself violates the Ex Post Facto Clause. Indeed, the foregoing holding of these cases applies with particular force where, as here, the increase in punishment is not triggered by any conduct, activity or proceeding other than the sentence imposed. The court of appeals decision also misconstrues and/ or misapplies precedent delineating the scope of constitutional protection available in the double jeopardy context, which is ‘inapposite to this case according to this Court’s recent decision in Ursery, 116 S.Ct. at 2135, decided after this case was briefed and argued before the court of appeals. The court of appeals erroneously applied what it perceived to be the coupling of an objective and subjective “purpose” test espoused in Halper, 490 U.S. at 435, outside the narrow, monetary civil penalty/double jeopardy context to which that standard applies according to the holding in Ursery. 101 F.3d at 783, App., infra, 6a-7a. In doing so, the court of appeals ignored the fact that the supervision fee imposed in this case has the effect of retroactively imposing a monetary penalty on the Petitioners as the sole and direct consequence of a criminal conviction, contrary to authoritative Supreme Court precedent, including this Court’s recent decision in Lynce, and the weight of legal authority. See cases cited supra notes 2-3. By errone- ously, inter alia, applying a double jeopardy definition of “punishment,” the court of appeals stripped the Petitioners of the fundamental protections guaranteed by the Ex Post Facto Clause: fair notice of the penalties applicable to criminal con- duct and an injunction forbidding the legislature from arbitrarily Laine” i 1] imposing a greater punishment after the fact. Weaver, 450 U.S. at 28-30. Indeed, such an after the fact “changing of the rules of the game” which seeks to impose an additional monet- ary penalty on perhaps the most unpopular and powerless of groups — criminal offenders — for the politically expedient purpose of raising revenues without increasing taxes on the general public, implicates the very type of lack of notice and legislative restraint against which the Ex Post Facto Clause is designed to safeguard. /d. Finally, in contrast to the plethora of Supreme Court and state and lower federal court precedents which support Petition- ers’ contention in this case, the court below relies on three court of appeals decisions that are inapposite both as to the law and facts of this case, and which were otherwise erroneously decided insofar as they improperly apply the Halper test to non-monetary, civil penalties contrary to the holding in Ursery. 101 F.3d at 783, App., infra, 6a-7a. The net effect of the court of appeals’ decision is to validate retroactive impesition of monetary exactions in any amount on any probationer or parolee as long as it does not exceed the cost of supervision or services provided, and is therefore considered “remedial.” Id. at 784 and n.7, App., infra, 9a-10a. Aside from the fact that neither the court of appeals nor Respondents have cited a single case supporting this proposition in the ex post facto context, as noted by the district court, “this type of conclusory analysis leads to a ‘slippery slope,’ where a state could, by simply designating funds for a particular cost or by careful labeling, impose almost any new fine without being subject to the constraints of the Ex Post Facto Clause.” 908 F. Supp. at 102, App., infra, 26a. In short, the First Circuit has issued an unprecedented ruling, contrary to the definition of what constitutes an ex post facto law, by holding for the first time that a monetary penalty imposed as a direct and automatic consequence of a criminal conviction does not constitute a prohibited, retroactive imposition of a “greater punishment.” Thus, the court of appeals decision conflicts with previous precedents of this Court defining what constitutes proscribed 12 punishment in the ex post facto context, in particular, this Court’s recent opinions in Lynce and Weaver, the result reached by the only other court of appeals to address the issue, and recent decisions of numerous state and lower federal courts which have unanimously held that the retroactive imposition of a monetary penalty solely and automatically as a conse- quence of a criminal conviction violates the Ex Post Facto Clause. Moreover, the decision of the court of appeals is clearly erroneous and is based on a misconstruction and misapplication of case law applicable only in the double jeopardy context. Finally, the court of appeals’ decision violates one of the fundamental protections against arbitrary changes in the law embodied in the Constitution — the presumption against the retroactive application of new laws. I. THE CouRT OF APPEALS’ DECISION CONFLICTS WITH CON- TROLLING PRECEDENTS OF THIS COURT, THE RESULT REACHED By THE ONLY OTHER CouRT OF APPEALS TO AD- DRESS THE ISSUE, AND NUMEROUS STATE AND LOWER FED- ERAL CouRT DECISIONS WHICH HAVE UNIFORMLY HELD THAT RETROACTIVE IMPOSITION OF MONETARY EXACTIONS SOLELY AND AUTOMATICALLY AS A CONSEQUENCE OF A CRIMINAL CONVICTION VIOLATES THE Ex Post Facto CLAUSE. The court of appeals’ decision is clearly contrary to control- ling ex post facto precedents of this Court, including Lynce and Weaver, and also conflicts with the result reached in Shep- pard v. Louisiana Bd. of Parole, 873 F.2d at 761, by the Fifth Circuit, the only other court of appeals to address the issue of the retroactive imposition of supervision fees. The decision is also contrary to recent decisions of numerous state and lower federal courts unanimously upholding ex post facto challenges in similar contexts. The fundamental error pervading the deci- sion of the court of appeals is a misconstruction and misun- derstanding of what constitutes punishment in the ex post facto context according to well-settled law. ¥ & 3 13 A. The Decision Conflicts With Authoritative Precedents Of This Court Defining “Punishment” In The Ex Post Facto Context. The Ex Post Facto Clause,‘ inter alia, prohibits any retroac- tive increase in the punishment imposed for criminal acts.° Such laws implicate the central concern of the ex post facto prohibition: “the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.” Weaver, 450 U.S. at 30. To fall within the ex post facto prohibition, two essential elements must be present: first, the law “ ‘must be retrospective, that is, it must apply to events which occurred before its enactment;’” and second, “ ‘it must disadvantage the offender affected by it,’” Miller v. Florida, 482 U.S. 423, 430 (1987) (quoting Weaver, 450 U.S. at 29), by altering the definition of criminal conduct or increasing the punishment for a crime, Collins v. Youngblood, 497 U.S. 37, 43, 49-50 (1990). Accord, Lynce, 117 S.Ct at 896. Accordingly, a law violates the ex post facto prohibition where it assigns more disadvantageous criminal or penal consequences to an act than the law did when the act occurred. Weaver 450 U.S. at 29-30. As the Calder Court put it, a law violates the ex post facto provision when it “inflicts a greater punishment, than the law annexed to the crime, when committed.” Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798) (emphasis in original). To use the Beazell formulation, any law “ ‘which makes more burden- some the punishment for a crime, after its commission . . . is ‘Article | of the United States Constitution provides that neither Congress nor any State shall pass any “ex post facto Law.” U.S. Const. art. 1, § 9, cl. 3 and art. I, § 10, cl. 1. ‘Lynce, 117 S.Ct. at 895; Collins v. Youngblood, 497 U.S. at 43-44, Weaver, 450 U.S. at 28 (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) at 325-326; see also Lindsey v. Washington, 301 U.S. at 401 (“The Constitution forbids the application of any new punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrongdoer.”)(emphasis added); Calder v. Buli, 3 U.S. (3 Dall.) at 397 (Patterson, J.) (‘The enhancement of a crime or penalty, seems to come within the same mischief as the creation of a crime or a penalty” after the fact.). 14 prohibited as ex post facto.” Collins, 497 U.S. at 42 (quoting Beazell v. Ohio, 269 U.S. 167, 169-170 (1925)). Insofar as the challenged statute was not in effect at the time the Petitioners’ underlying crimes were committed, it is clear that imposition of the fee was retrospective as to the Petitioners. Nevertheless, the court of appeals found that the Ex Post Facto Clause was not violated based on its conclusion that the fee was not punitive. 101 F.3d at 783-784, App., infra, 8a-10a. Thus, the narrow issue before this Court is whether the imposition of supervision fees on Petitioners con- stitutes a “greater punishment” proscribed by the Ex Post Facto Clause as that term has historically been defined by controlling precedents of this Court. In the case at bar, the challenged provision imposes monthly offender supervision fees on Petitioners solely as a result of their having been sentenced to a term of probation for the commission of one or more criminal offenses. There is no conduct, activity, or proceeding which triggered the Petition- ers’ obligation to pay the fee other than the sentence of prob- ation previously imposed on each of them. Neither at the time the Petitioners underlying offenses were committed nor at the time they were sentenced to probation was an offender super- vision fee imposed by law as a condition of such probation or otherwise. It is beyond peradventure that the payment of this additional fee as a consequence of having been sentenced to a term of probation following the commission of a crime changes the “quantum of punishment” and is disadvantageous to the Petitioners. Weaver, 450 U.S. at 33; see also Collins, 497 U.S. at 41-43 (ex post facto prohibition applies to any increase in penalty by which crime is punishable). As noted by the district court below, under both state and federal law, probation is clearly considered to be punishment. 908 F. Supp. at 100, App., infra, 22a. Moreover, where, as here, an additional penalty is inflicted automatically upon imposition of a criminal sentence, it is part of the “law annexed to the crime,” Calder, 3 U.S. (3 Dall.) at 390, and thereby implicates the Ex Post i 15 Facto Clause. 908 F. Supp. at 101 (citing Petition of State, 603 A.2d 814, 817-18 (Del. 1992)), App., infra, 24a-25a. By any reasonable construction, imposition of the fee by operation of the challenged provision has “ma[de] more burdensome the punishment” of Petitioners’ probation. Beazell, 269 U.S. at 169. Such an additional penalty imposed automatically as a result of a criminal conviction constitutes “punishment” as a matter of law forbidden by the Ex Post Facto Clause in accord- ance with well-settled precedents of this Court.* See cases cited supra note 2. Moreover, Petitioners in the case at bar face far more than merely the imposition of an additional fine. Although the Petitioners’ probation may not be violated solely for non-pay- ment of offender supervision fees, the Regulation does provide that in the context of a probation revocation hearing “non-pay- ment of offender fees may be brought to the attention of the court, formally or informally, as indicative of a lack of coop- eration, failure to fulfill lawful obligations or other pattern of non-compliance.” Regulation § 10.07.03(II)(D)(3), App., infra, 48a. Thus, based on the plain wording of the Regulation, Petitioners’ probation could possibly be revoked at least in part due to non-payment of the fees.’ Nor does the fact that the The foregoing conclusion is inescapable insofar as the ex post facto prohibition applies to any retroactive imposition of or increase in a monetary sanction — whether labeled as payment of supervision costs, restitution or a fine — that flows from the commission of an underlying crime. See cases cited supra note 3; see also Collins, 497 U.S. at 51 (Ex Post Facto Clause is concerned “with anything to do with the definition of crimes, defenses, or punishments.”), Weaver, 450 U.S. at 30 (ex post facto prohibition forbids imposition of any punishment more severe than that assigned at time offense was committed). Indeed, the First Circuit has recognized this very fact in the context of interpreting the application of § SEI.2 of the United States Sentencing Guidelines dealing with the imposition of an “additional fine” to pay for an offender's costs of incarceration or supervised release. United States v. Corral, 964 F.2d 83, 84 (Ist Cir. 1992). In comparing the punitive fine provided in § 5 E1.2(a) to the additional fine to pay for the costs of incarceration or supervised release provided under §5 E1.2(1), the First Circuit noted that “‘a fine is a fine,’ notwithstanding how it is designated. /d. at 84 ° (quoting United States v. Labat, 915 F.2d 603, 607 (10th Cir. 1990)). See Weaver, 450 U.S. at 24 (reduction in mandatory gain time which was likely, but not certain, to increase effective term of confinement); Miller, 482 U.S at 423 (increase in presumptive sentencing range for certain sexual offenses); Lindsey, 301 U.S. at 397 (maximum sentence changed from discretionary to man- datory); see also Dobbert v. Florida, 432 U.S. 282, 298-299 (1977). Only retroac- tive changes which create “the most speculative and attenuated possibility of . 16 supervision fee is imposed by way of a statute separate from the sentence of probation imposed save the challenged provi- sion from ex post facto scrutiny in light of this Court’s decisions in Lynce and Weaver. B. The Decision Conflicts With The Holdings of Lynce And Weaver. This Court's recent unanimous ruling in Lynce and its 1981 unanimous ruling in Weaver both involve the retroactive en- hancement of punitive conditions outside the specific sentence imposed similar to the case at bar. In Weaver, this Court found that the retroactive reduction in the amount of gain-time awarded for an inmate’s good behavior violated the Ex Post Facto Clause. Although the statute in Weaver did not withdraw any credits already awarded, or curtail the availability of future credits, this Court found that it effectively postponed the date when an inmate would become eligible for early release. 450 U.S. at 33. The Weaver Court therefore concluded that the change in the law made more onerous punishment for crimes committed before its enactment contrary to the ex post facto prohibition. /d. at 35-36. In Lynce, this Court held that the retroactive cancellation of early release credits awarded to alleviate prison overcrowding and the consequent reincarcera- tion of the petitioner violated the Ex Post Facto Clause. The Lynce Court reached this conclusion based on its finding that cancellation of the credits had the effect of lengthening the petitioner’s period of incarceration. 117 S.Ct. at 896. In re- liance on its earlier decision in Weaver, the Lynce Court re- jected the respondents’ argument that the challenged statute was not technically part of the sentence and reiterated that provisions which retroactively alter parole and early release terms and thereby increase the punishment imposed violate the Ex Post Facto Clause. Id. at 898; see also discussion infra part II.C. increasing the measure of punishment for covered crimes” survive ex post facto scrutiny. California Dept. of Corrections v. Morales, \15 S.Ct. 1597, 1603 (1995). A 17 C. The Decision Conflicts With The Result Reached By The Fifth Circuit in Sheppard. The same result was reached in a similar case by the Fifth Circuit, the only other court of appeals to address the issue of supervision fees. In Sheppard v. Louisiana Bd. of Parole, 873 F.2d at 761,* the plaintiff sought relief from the imposition of “supervision fees” as a condition of his parole pursuant to a Louisiana statute enacted five (5) years after he committed the underlying offense for which he was placed on parole. In reversing the decision of the district court, the Fifth Circuit found that the plaintiff had raised a colorable constitutional claim for, inter alia, violation of the ex post facto prohibition. Id. at 764. The court further noted that the facts of the case appeared to closely resemble those in Weaver. Id. at 765. The Sheppard court reasoned that a condition of parole consisting of the payment of a supervision fee could be construed as a “punitive condition,” the retroactive imposition of which could be found to constitute a violation of the Ex Post F acto Clause. Id. at 764. The court found that application of the challenged statute to an offender whose crime was committed prior to the statute’s enactment, “ ‘changes the legal consequence of acts completed before [the] effective date’” of the new provision. Id. (quoting Weaver, 450 U.S. at 31.) Accordingly, the Shep- pard court reversed and remanded the case to the district court for further proceedings. D. The Decision Conflicts With Recent Decisions of Num- erous State And Lower Federal Courts Upholding Ex Post Facto Challenges In Similar Contexts. The court of appeals’ decision also conflicts with recent decisions of numerous state and lower federal courts which have uniformly held that the retroactive application of provi- sions imposing additional costs, civil assessments and restitu- “In deciding Sheppard, the Fifth Circuit adopted the reasoning set forth in a previously unpublished opinion, Murray v. Phelps, No. 88-3302 (Sth Cir. Feb. 3, 1989), 867 F.2d 1426 (table), which was appended to and incorporated in the Sheppard decision. For the sake of brevity and clarity, all references to the Sheppard case in the text will be to the facts, reasoning and law as applied by the Fifth Circuit in the unpublished Murray v. Phelps decision. 18 tion violates the Ex Post Facto Clause. See cases cited supra note 3. Although with the exception of Sheppard, these cases do not involve the precise issue of supervision fees, the reason- ing and result reached by the courts in these cases cannot be reconciled with the decision of the court of appeals below. Applying the well-settled ex post facto precedents of this Court cited above, these courts had no difficulty holding that the retroactive exactions involved in those cases violated the ex post facto proscription. Accordingly, the decision of the court of appeals conflicts with the foregoing controlling ex post facto precedents and must be reversed. Il. THE DECISION OF THE COURT OF APPEALS Is ERRONEOUS AND CANNOT BE RECONCILED WITH THIS CourT’s RE- CENT DECISION IN LYNCE V. MATHIS AND THEREFORE MUST Be REVERSED. A. Characterization of Supervision Fees as a “Civil Charge” is Erroneous. The court of appeals, as a preliminary matter, found that imposition of the fees constituted a “civil charge” designed to reimburse the Department for costs directly incurred in super- vising probationers and parolees and therefore “comprise{d] no part of any sentence imposed for the crimes committed by [Petitioners]. 101 F.3d at 783, App., infra., 7a-8a. This con- clusion by the court of appeals is erroneous as a matter of law and fact and contrary to well-settled precedents of this Court. In this Court’s decision in Weaver, and again in its recent decision in Lynce, this Court rejected argunients that retroactive imposition of a greater punishment was saved from ex post facto scrutiny because the challenged provision was not “ ‘in some technical sense part of the sentence.’ Lynce, 117 S.Ct. at 898 (quoting Weaver, 450 U.S. at 32). This Court noted in Weaver and reiterated in Lynce that “retroactive alteration of parole or early release provisions . . . implicates the Ex Post Facio Clause because such credits are ‘one determinant of petitioner’s prison term . . . and [the petitioner’s] effective 19 sentence is altered once this determinant is changed.’” /d. In the case at bar, offender fees were imposed on Petitioners solely and automatically as a consequence of a criminal con- viction and the sentence of probation imposed. Moreover, the fees may only be imposed as a result of a criminal conviction.” Accordingly, as noted by the district court, the imposition of the fees on Petitioners is inextricably linked to their criminal convictions. 908 F. Supp. at 101, App., infra, 24a-25a; see also Petition of State, 603 A.2d at 817-818 (where penalties imposed are “annexed to a criminal conviction and cannot be the subject of a separate civil proceeding . . . they are subject to an ex post facto restriction”). Accordingly, characterization of the fees by the court of appeals and Respondents as a “remedial” or “civil” charge imposed to defray the expenses of supervision, rather than as a penalty or punishment, does not save these fees from ex post facto scrutiny .'” Where, as here, historically punitive sanctions are involved — monetary payments as well as the possibility of incarceration due to nonpayment — ex post facto analysis focuses on the effect of the challenged provision, not the pur- ported purpose. Indeed, this Court has looked with disfavor at efforts to disguise criminal punishment under the guise of “legitimate revenue raising purpose[s which] . . . could be equally well served by increasing the fine imposed upon con- ’ Although the enabling statute provides that each sentenced offender committed to the Department shall reimburse the state for the cost or reasonable portion thereof incurred by the Department as the result of such commitment, the statute contains a specific exclusion which provides that “a person so committed, awaiting trial and not convicted, shall not be liable for the reimbursement.” R.I. Gen. Laws § 42-56-38, App., infra, 44a. As noted by the district court below, this exclusion makes it clear that the law is not designed solely to provide reimbursement for costs expended by the state, but also to impose an additional burden on those convicted of criminal offenses. 908 F. Supp. at 101, App., infra., 23a-24a. “In the same way the First Circuit concluded that a “fine is a fine,” see supra note 6, Petitioners submit that “punishment is punishment” when monetary penalties are imposed upon an offender arising out of the commission of an underlying crime, however described. Indeed, the First Circuit in Gilberg, 75 F.3d at 15, and the Ninth Circuit in DeSalvo, 41 F.3d at 505, both found that the retroactive increase in restitution imposed in those cases violated the ex post facto prohibition, notwithstanding the fact that restitution serves the undisputably remedial purpose of compensating the victim of a crime. See United States v. Atkinson, 788 F.2d 900, 903 (2nd Cir. 1986); United States v. Anglian, 784 F.2d 765, 767 (6th Cir. 1986). 20 viction.” Department of Revenue v. Kurth Ranch, 114 S. Ct. 1937, 1947 (1994). Moreover, it is well-settled law that the ex post facto prohibition protects “against deprivation for past conduct by legislative enactment, under any form, however disguised.” Cummings vy. Missouri, 71 U.S. (4 Wall.) at 325 (emphasis added).'' It is clear that the imposition of a “greater punishment” may violate the Ex Post Facto Clause even if it alters punitive conditions outside the sentence, at least where, as here, the additional penalty flows from the commission of the underlying crime. Lynce, 117 S.Ct. at 898; Weaver, 450 U.S. at 32. Accordingly, the legislature may not escape the restraints of the Ex Post Facto Clause merely by imposing supervision fees by way of a separate statute, outside the un- derlying criminal law violated, and describing the conse- quences imposed as a civil rather than a criminal penalty." See cases cited supra note 3. '' See, e.g., Collins, 497 U.S. at 46 (“Subtle ex post facto violations are no more permissible than overt ones.”); Weaver, 450 U.S. at 31 (“[I]t is the effect, not the form, of the law that determines whether it is ex post facto.”), Beazell, 269 U.S. at 170 (ex post facto prohibition applies to laws “whatever their form” which “after the fact,” increase “the nature or amount of punishment imposed”); Burgess v. Salmon, 97 U.S. at 385 (ex post facto prohibition may not be avoided by giving civil form to criminal legislation). Respondents clearly could not have retroactively imposed a monetary fine on the Petitioners without violating the Ex Post Facto Clause. Merely by imposing this exaction on a monthly basis and describing it as an “offender supervision fee” does not somehow exempt this monetary penalty from the proscriptions of the Clause. Moreover, this is the precise result reached by the courts in Gilberg, 75 F.3d at 15, and DeSalvo, 41 F.3d at 505, under a similar set of facts and formed the basis of the court's conclusion in Corral, 964 F.2d at 84, that a “fine is a fine.” It is also the same result reached in Sheppard and by numerous state and lower federal courts in holding the ex post facto prohibition applicable to similar, arguably “remedial” or “civil” penalties. Moreover, payment of the costs of incar- ceration or supervised release under federal law is clearly considered punishment implicating the ex post facto prohibition. See United States Sentencing Guidelines § SE1.2(i). Indeed, the only difference between the supervision fees in this case and the “additional fine” to cover the costs of incarceration or supervised release under § SE1.2(i) is that the latter fee is imposed at the time of sentencing, while offender fees are automatically assessed as a consequence of an offender being sentenced to a term of probation. Since, in either case, the fees are imposed solely aS a consequence of a criminal conviction and the sentence imposed, the foregoing distincticn does not immunize offender supervision fees from proscription by the Ex Post Facto Clause. nn mee ne 21 B. Application of the Halper test is erroneous. In concluding that the imposition of the challenged fees on Petitioners did not constitute “punishment” prohibited by the Ex Facto Clause, the court of appeals applied a subjective test for defining “punishment” coupled with an objective standard derived from this Court’s decision in Halper, 490 U.S. at 435. 101 F.3d at 783, App., infra, 7a. The court of appeals’ appli- cation of the foregoing test is erroneous both because this Court’s subsequent decision in United States v. Ursery, 116 S.Ct. at 2135, narrowly restricts application of the Halper test to the double jeopardy context, and because the proper test to be applied in the ex post facto context focuses on the effect, not the purpose, of a challenged provision in accordance with well-settled precedents of this Court. In Ursery, this Court held that in rem civil forfeitures do not fall within the proscription of the Double Jeopardy Clause. In doing so, this Court engaged in a detailed analysis and cautioned that very different considerations, and presumably “tests,” apply when considering whether “punishment” violates the Excessive Fines as opposed to the Double Jeopardy Clause. This Court further pointed out that even within the context of the Double Jeopardy Clause, different considerations apply in determining whether a particular sanction constitutes a pros- cribed “punishment,” and drew distinctions between in rem civil forfeiture, civil monetary penalties, and other forms of civil sanctions, such as the marijuana tax in Kurth Ranch, 114 S.Ct. at 1937. The Ursery Court took pains to point out that Halper involved the determination of “whether and under what circumstances a civil penalty may constitute ‘punishment’ for the purposes of double jeopardy analysis.” | 16 S.Ct. at 2143 (emphasis added). On more than one occasion in its decision, the Ursery Court went out of its way to point out that Halper was limited to the context of a fixed monetary penalty sought in a subsequent civil proceeding, and that the Court did not intend to make a “sweeping change in the law.” 116 S.Ct. at 2142-47 and n.2. The Court noted that it had emphasized repeatedly in Halper the “narrow scope” of that decision. /d. at 2146 n.2. The Ursery Court specifically noted that it had never 22 understood the Excessive Fines Clause of the Eighth Amend- ment to be “parallel to, or even related to the Double Jeopardy Clause of the Fifth Amendment.” 116 S.Ct. at 2146. Similarly, in the case at bar, to the Petitioners’ knowledge, this Court has never held that the Ex Post Facto Clause was parallel to or related to the Double Jeopardy Clause. This is so because the lack of notice and legislative restraint, which form the underpinnings of the ex post facto prohibition, are fundamentally different than the protection afforded by the Double Jeopardy Clause, which is designed to avoid multiple punishments. See, e.g., Artway v. Attorney General of New Jersey, 81 F.3d 1235, 1253 n.15 (3rd Cir. 1996). Ursery clearly and narrowly restricts application of the Halper test to the double jeopardy context, and even then only to situations involving imposition of a fixed monetary penalty. Accordingly, as urged by the Petitioners before the court of appeals and now confirmed by this Court in Ursery, the Halper test does not apply to the offender supervision fees retroactively imposed on Petitioners in the case at bar, and therefor the court of appeals’ reliance thereon is clearly erroneous.'' The court of appeals’ reliance on the “subjective” test em- ployed in DeVeau v. Braisted, 363 U.S. 144 (1960), is also misplaced. While DeVeau, unlike Halper, involved an ex post facto challenge, the plaintiff in that case was challenging the retroactive application of a non-monetary sanction, specifically a law which barred convicted felons from working on the New York and New Jersey waterfront. Since such a civil disability is not proscribed by the Ex Post Facto Clause absent “unmistak- '‘The precise argument urged by the Respondents and accepted by the court of appeals below that imposition of the fees constituted a “civil charge” and therefore is not subject to the ex post facto proscription, wes rejected by the court in Petition of State, 603 A.2d at 814. In that case, the court noted that Halper is inapplicable to a situation, where, as here, the additional penalty is imposed solely as a conse- quence of a criminal conviction. /d. at 817-18. The court further noted that in all cases where the penalties imposed are “annexed to a criminal conviction and cannot be the subject of a separate civil proceeding . . . they are subject to an ex post facto restriction.” /d. at 817. Accordingly, the Halper analysis as to whether a nominally civil penalty imposed in a separate civil proceeding constitutes “punish- ment,” is inapplicable where, as here, the offender fees “are connected to, and activated only by, a criminal conviction.” /d. at 817-818. This is so because such penalties “are part of the ‘law annexed to the crime’, and limited by the law in effect when the offenses were committed.” /d. at 818 (citation omitted). 23 able evidence of punitive intent,” Flemming v. Nestor, 363 U.S. 603, 619 (1960), the test employed by the DeVeau court was “whether the legislative aim was to punish the individual for past activity, or whether the restriction of the individual {came] about as a relevant incident to a regulation of a present situation, such as qualifications of a profession.” 363 U.S. at 160 (emphasis added). DeVeau merely supports the well-set- tled proposition that where a civil disability is imposed as a result of legitimate regulatory action by the state, it does not constitute an ex post facto violation, absent a showing of puni- tive intent. See Harisiades v. Shaughnessy, 342 U.S. 580, 595 (1952). Nowhere in DeVeau or subsequent decisions has this Court even suggested that the retroactive application of a monetary exaction as a direct and automatic consequence of a criminal conviction would not constitute an ex post facto violation merely because it was not the intent of the legislature to punish. Just as this Court cautioned in Ursery that different tests apply in the double jeopardy context dependipg on whether a monetary or non-monetary sanction is involved, the same rule applies in the ex post facto context, with the “sub- jective purpose” test narrowly restricted to situations involving the retroactive imposition of a civil disability as an incidental result of governmental regulation in a non-penal context." Where punitive sanctions are imposed — in particular monetary exactions or incarceration — solely and automatically as a consequence of a criminal conviction, the proper test to be applied is whether the “effect” is such as to inflict a “greater punishment” on the offender than the law in existence at the time the subject crime was committed."” ‘Similarly, the court of appeals’ reliance on three recent court of appeals’ decisions, Bae v. Shalala, 44 F.3d 489 (7th Cir. 1995), DiCola v. Food and Drug Administration, 77 F.3d 504 (D.C. Cir. 1996), and Artway, 81 F.3d at 1235, is also misplaced. Like DeVeau, each of these cases involved the imposition of a civil disability, debarment in Bae and DiCola and registration as a sex offender in Artway, and are therefore inapposite to the case at bar. Moreover, contrary to the teaching of Ursery, each of these cases erroneously applies the Halper test in considering ex post facto challenges to the civil disabilities imposed in those cases. '’ See Weaver, 450 U.S. at 31 (effect of law determines whether it is ex post factoy, accord, Lynce, 117 §.Ct. at 896-97; see also cases cited supra notes 2-3 This is so for the obvious reason that, as noted by the district court below, “by simply designating funds for a particular cost or by careful labeling,” a state could impose almost any new fine by establishing a nonpunitive or remedial intent, 24 C. Lynce v. Mathis Compels Reversal If there was any question previously as to whether the pos- ition urged by the Petitioners is correct and the decision of the court of appeals below erroneous, this Court’s recent decision in Lynce v. Mathis, 117 S.Ct. at 891, removes any doubt. In Lynce, this Court was called upon to decide whether the retroac- tive cancellation of early release credits awarded to alleviate prison overcrowding violated the Ex Post Facto Clause. The respondents in that case argued that Weaver was not controlling because it was the overcrowded condition of the prison system, rather than the character of a prisoner’s conduct that triggered the early release credits. /d. at 896. In applying the two-part ex post facto test, the Lynce Court observed that the effect of the challenged provision on the petitioner was clearly retrospec- tive, and that therefore the narrow issue before it was whether the law “disadvantaged the petitioner by increasing his punish- ment.” /d. In analyzing whether revocation of the credits con- stituted “punishment” prohibited by the Ex Post Facto Clause, the Lynce Court revisited its decisions in Weaver and California Dept. of Corrections v. Morales, 115 §.Ct. 1597 (1995), and concluded that the subjective motivation of the state in enacting the challenged provision was “not relevant to the essential inquiry demanded by the Ex Post Facto Clause.” 117 S.Ct. at 896. Instead, this Court held the focus must be on the “effect” of the law on a convicted criminal’s sentence. /d. at 896-97. Lynce reaffirmed this Court’s previously announced rule in Weaver that “retroactive alteration of parole or early release provisions . . . implicates the Ex Post Facto Clause.” Id. at 898 (quoting Weaver, 450 U.S. at 32). Accordingly, where, as here, a monetary exaction is imposed solely and automatically as a consequence of a criminal conviction and the sentence imposed, which has the effect of imposing a “greater punishment” on a criminal offender, retroactive appli- cation of the exaction is proscribed by the Ex Post Facto Clause. Thus, the court of appeals’ decision is clearly erroneous and reversal is compelled by this Court’s decision in Lynce. notwithstanding that the impact on a criminal offender is no different than if a higher “punitive fine” had been retroactively imposed. 908 F. Supp. at 102, App., infra, 26a. 2 4 25 III. THis CASE INVOLVES THE SCOPE OF PROTECTION AFFORD- ep By A FUNDAMENTAL CONSTITUTIONAL SAFEGUARD AGAINST ARBITRARY LAWS AND ITs DISPOSITION By THIS Court WILL HAVE A PROFOUND EFFECT NATIONALLY ON CRIMINAL OFFENDERS RETROACTIVELY SUBJECTED TO SIMILAR FEES. In this Court’s recent decision in Lynce, the Court reiterated that “t]he presumption against the retroactive anplication of new laws is an essential thread in the mantle of protection that the law affords the individual citizen.” 117 S.Ct. at 895. This presumption is “deeply rooted in our jurisprudence, and em- bodies a legal doctrine centuries older than our Republic.” Landgraf v. USI Film Products, 114 S.Ct. 1483, 1497 (1994). As noted by Justice Stevens in his dissent in Morales, 115 S. Ct. at 1597, the Framers viewed the prohibition against ex post facto laws as “one of the fundamental protections against arbitrary and oppressive government.” '® /d. at 1606 (footnote omitted) Moreover, the danger of legislative overreaching against which the Ex Post Facto Clause was designed to protect is particularly acute where, as here, the target of the legislation is a narrow and unpopular group composed of criminal offen- ders. Id. at 1609. Indeed, this Court has expressed concern that “{t]he Legislature’s unmatched powers . . . [and ijts re- sponsivity to political pressures pose[] a risk that . . . retroac- tive legislation . . . [may be used] as a means of retribution against unpopular groups or individuals.” Landgraf, 114 S.Ct. at 1499. This is precisely what happened in the case at bar: fueled by political expediency, the Rhode Island General As- sembly has attempted to generate additional revenues to fund the operations of the Department — without raising taxes on the general public — by retroactively imposing a monetary exaction on perhaps the most unpopular of groups — criminal offenders. This is the very type of arbitrary and vindictive, '* As noted by Madison, “ex post facto laws . . . are contrary to the first principles of the social compact and to every principle of sound legislation.” The Federalist No. 44, p. 282 (C. Rossiter ed. 1961). Similarly, Hamilton regarded the prohibition as among the three protections which provide “greater security for liberty and republicanism than any [the Constitution] contains.” The Federalist No. 84, p. 511 (C. Rossiter ed. 1961). 26 retrospective legislation against which the Ex Post Facto Clause was designed to safeguard. In such cases, the “concerns that animate the Ex Post Facto Clause demand enhanced. . . judicial scrutiny.” Morales, 115 S.Ct. at 1609 (Stevens, J., dissenting). Moreover, it is clear that however this Court disposes of the Petitioners’ within entreaty, this case will have a profound impact which transcends the lives of the five Petitioners or the administration of the Rhode Island Department of Corrections. At least 42 states, many of them recently, have enacted some form of offender fee statute similar to the one at issue (App., infra, 65a-67a), which some states have attempted to imple- ment and others may try to implement retroactively in reliance on the court of appeals’ decision.'’ Indeed, the court of appeals’ decision is an invitation to states to raise revenues through the retroact. imposition of monetary payments on criminal offen- ders, which are carefully labeled as “fees for services” in order to exploit the ex post facto loophole created by this case. Accordingly, the court of appeals’ decision, if left undisturbed, will inevitably precipitate a flood of litigation involving liter- ally tens of thousands of criminal offenders nationally, wherein courts will be forced to adjudicate under what circumstances and in what amounts states may retroactively impose “fees for services” on criminal offenders." This Court should decline Respondents’ invitation to engage in the unprecedented and the arbitrary for the politically expe- dient purpose of enabling the Department to raise additional revenues to support its operations by retroactively imposing a "See, e.g., Matheson v. Gorczyvk, No. 2:97-CV-85 (D. Vt. filed March 9, 1997 ex post facto challenge to $30.00 per month probation and parole supervision fees); Corcoran v. State, No. 96-CV-004360 (Wis. Cir. Ct. March 4, 1997) (sum- mary judgment granted denying ex post facto challenge to probation and parole supervision fees of not less than $1.00 per day in reliance on court of appeals’ decision below). ‘Moreover, there is far more at stake here than merely a $15.00 per month supervision fee. The challenged statute also provides for reimbursement of the costs of incarceration. R.1. Gen. Laws § 42-56-38, App., infra, 44a. If the arbit- rariness and unfairness of the punishment imposed by the retroactive application of the challenged statute is not readily apparent now, its impact will certainly be driven home when the Department attempts to retroactively assess criminal offenders in Rhode Island tens of thousands of dollars for reimbursement of the costs of incarceration. 27 monetary penalty on perhaps the most unpopular and powerless of groups. Instead, this Court should summarily reverse the court of appeals and reinstate the district court’s grant of sum- mary judgment in favor of Petitioners based on well-settled, authoritative decisional law which supports the district court's ruling that imposition of offender supervision fees on Petition- ers as an additional condition of probation inflicts a greater penalty than that which was legally provided for at the time Petitioners’ crimes were committed, and therefore violates the Ex Post Facto Clause. CONCLUSION For the foregoing reasons, the petition for writ of certiorari should be granted. In the alternative, Petitioners pray that the writ be granted and that the decision below be vacated and the case remanded for reconsideration in light of this Court's decision in Lynce v. Mathis. Respectfully submitted, RICHARD A. SINAPI AMERICAN CIVIL LIBERTIES UNION RHODE ISLAND AFFILIATE Counsel of Record V. EDWARD FORMISANO SINAPI LAW ASSOCIATES, LTD. 100 Midway Place, Suite | Cranston, Rhode Island 02920 (401) 944-9690 April 17, 1997 APPENDIX APPENDIX A United States Court of Appeals For the First Circuit No. 96-1002 WILLIAM L. TAYLOR, ET AL., Plaintiffs, Appellees, V. STATE OF RHODE ISLAND, ET AL., Defendants, Appellants. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [HON. RAYMOND J. PETTINE, SENIOR U.S. District JUDGE] Betore Torruella, Chief Judge, Cyr, Circuit Judge, and Cummings,* Circuit Judge. Thomas A. Palombo, Special Assistant Attorney General, with whom Jeffrey B. Pine, Attorney General, Rebecca Ted- ford Partington, Special Assistant Attorney General, and Ellen Evans Alexander, Deputy Chief Legal Counsel, were on brief for appellants. Richard A. Sinapi, with whom Sinapi Law Associates, Ltd.. and American Civil Liberties Union, were on brief for appellees. December 4, 1996 *Of the Seventh Circuit, sitting by designation | 2A Cyr, Circuit Judge. The Rhode Island Department of Cor- rections (“Department”) appeals from a district court judgment declaring u/tra vires and unconstitutional the Department's application of a Rhode Island statute which would impose a monthly offender fee upon the appellees, all of whom were sentenced to probationary terms under Department supervision for criminal offenses committed prior to the effective date of the statute as implemented by regulations promulgated by the Department. The district court held that the Department’s inter- pretation of the statute exceeded its authority under the enabling statute and that the statute, as applied to appellees, violated the ex post facto clauses in the United States and Rhode Island Constitutions. We vacate the district court judgment and re- mand for the entry of summary judgment for appellants on the ultra vires and ex post facto claims, and for further proceedings on appellees’ procedural due process claims. I BACKGROUND Rhode Island General Laws § 42-56-38, P.L. 1992, c. 133, art. 97, § 2, directs that “[e]ach sentenced offender committed to the care, custody, or control of the [Department] shall reim- burse the state for the cost or the reasonable portion thereof incurred by the state relating to such commitment.” (Emphasis added.) The offender fee statute itself expressly delegates to the Department the power to determine its effective date by declaring that its provisions “shall not be effective until the date rules and regulations implementing its provisions are filed with the office of the Secretary of State.” /d. The Department responded by promulgating, inter alia, Reg- ulation 10.07.03, designating July /, 1994 as the effective date of the “offender fee” program, foilowing its filing of the implementing regulations with the Sec.etary of State on June eee _reeee.. ee eee een ee 3A 17, 1994. See also R.I. Gen. Laws § 42-56-10(v) (Powers of the director); R.I. Gen. Laws § 42-56-38 (Assessment of costs). The Regulation further provides for “offender fee” waivers based on inability to pay, see Regulation § 10.07.03(II)(E), and, in cases of nonpayment, authorizes notification of the appropriate crim- inal court at any parole or probation revocation hearing, id. § 10.07.03(II)(D), as well as civil actions to collect unpaid offender fees, id. Mere nonpayment does not constitute a parole or probation violation, however. Id. § 10.07.03(11)(D)(3). Nor are offenders in “banked” status (i.e., either residing outside Rhode Island or not on supervised status) liable for the fee, id. § 10.07.03(11I)(C)(3). Appellees, all convicted offenders sentenced to probation prior to July 1, 1994, each received advance written notice that the $15.00 offender fee would become effective July |, 1994, and subsequently received monthly bills. Appellees thereafter commenced suit in federal district court claiming that the offender fee statute, as applied, violates the Ex Post Facto and Due Process clauses of the United States and Rhode Island Constitutions. In due course, the parties submitted cross- motions for summary judgment on a stipulated record and the district court ruled that (i) the Department had exceeded its authority under the enabling statute by interpreting the statute so as to render the offender fee retroactive as to appellees and (ii) the statute violated the Ex Post Facto Clause since it retro- actively increased the “punishment” for their preenactment crimes. See Taylor v. State of Rhode Island Dept. of Correc- tions, 908 F. Supp. 92 (D.R.I. 1995). 4A il DISCUSSION ' A. The Ultra Vires Claim The district court concluded that the statutory interpretation adopted by the Department exceeded the scope of its delegated authority because it (1) results in an unauthorized “retroactive” application and (ii) would not be accorded deference by the Rhode Island Supreme Court. As the plain language of the Statute demonstrates that the Department did not exceed its mandate, we demur. Under Rhode Island law, it “ts well established . . . that statutes and their amendments are presumed to apply prospec- tively.” Hydro-Manufacturing v. Kayser-Roth, 640 A.2d 950, 954 (R.I. 1994). See also VanMarter v. Royal Indem. Co., 556 A.2d 41, 44 (R.1. 1989); Lawrence v. Anheuser-Busch, Inc., 523 A.2d 864, 869 (R.I. 1987). It is only in the event that “it appears by strong, clear language or necessary impli- cation that the Legislature intended the statute or amendment to have a retroactive effect,” id.; see also Pion v. Bess Eaton Donuts Flour Co., Inc., 637 A.2d 367, 371 (R.1. 1994), that the new enactment “will be interpreted to operate retrospec- tively.” Avanzo v. Rhode Island Dept. of Human Servs., 625 A.2d 208, 211 (R.1. 1993). The statute itself explicitly states that the offender fee “shall not be effective until the date the rules and regulations are filed.” R.I. Gen. Laws § 42-56-38. Thus, its plain language requires no interpretation, see Whitehouse v. Rumford Liability & Ins. Co., 658 A.2d 506, 508 (R.I. 1995), as it mandates ‘We review summary judgment rulings de nove, and must uphold them if the record, “viewed in the light most favorable to the nonmoving party, reveals no trial- worthy issue of material fact and the moving party is entitled to judgment as a matter of law.” Velez-Gomez v. SMA Life Assur. Co., 8 F.3d 873, 874-75 (ist Cir. 1993). 5A prospective application. See, ¢.g.., Hydro-Manufacturing , 640 A_2d at 955 (statute which states that it “shall take effect upon passage” evinces plain legislative intent that it be given only prospective application), Avanzo, 625 A.2d at 211 (holding that phrase “shall take effect” indicates legislative intent that statute be given prospective effect). As the Rhode Island Legis- lature explicitly delegated to the Department the responsibility for promulgating and filing the required implementing rules and regulations with the Secretary of State before the offender fee program could take effect, R.I. Gen. Laws § 42-56-38, and there is no claim that the Department failed to comply with the legislative mandate, its designation of a later (July |, 1994) effective date could not render its interpretation either ultra vires or retroactive.’ B. The Ex Post Facto Claim The district court awarded appellees summary judgment on their claims that the offender fee statute violates the Ex Post Facto Clause under both the United States Constitution and the It appears that the district court may have been misled by an ambiguity in the statutory language, which states that the offender fee shall apply to “each sentenced offender committed to the care, custody or control of the [Department]. R.1. Gen. Laws § 42-56-38 (emphasis added). The court correctly noted that “[t}he word ‘committed’ could mean either “who has been committed,’ which would include existing probationers, or ‘who ts committed,’ which would implicate only new probationers.” Taylor, 908 F.Supp. at 104. However that may be, we suggest, the Department's interpretation cannot be considered ultra vires. As the agency respon- sible for implementing and enforcing the statute, it was entirely appropriate that the Department disambiguate the statutory language. See Gallison v Bristol Sch Comm., 493 A.2d 164, 166 (R.1. 1985). We need not decide at this time , however, whether the Department's interpretation of the term “committed” would be material under a due process analysis. See Avanzo. 625 A.2d at 208 (retroactive application violates due process), Lawrence, $23 A.2d at 864 (due process chalienge to explicitly-retroactive legislation); bus see Rhode Island Depositors Economic Protection Corp. v. Brown, 659 A.2d 95, 103 (R.1.), cert. denied, 116 S.Ct. 476 (1995) (retrospectively alone does not render statute violative of due process). 6A Rhode Island Constitution.’ As the Rhode Island Supreme Court has held that Federal Ex Post Facto Clause jurisprudence likewise guides the required analysis under the Rhode Island Constitution, Lerner v. Gill, 463 A.2d 1352, 1356(R.1. 1983), cert. denied, 472 U.S. 1010 (1985), these claims merge. The Ex Post Facto Clause effectively prohibits laws “ ‘retro- actively alter[ing] the definition of crimes or increas[ing]} the punishment for criminal acts.’ California Dept. of Correc- tions Vv. Morales, 11S S.Ct. 1597, 1601 (1995) (quoting Collins Vv. Youngblood, 497 U.S. 37, 43 (1990)). See also Hamm v. Latessa, 72 F.3d 947, 956 (Ist Cir. 1995), cert. denied, 117 S.Ct. 154 (1996). Thus, ex post facto laws operate retroactively either to redefine a crime or increase its “punishment.” Morales, 115 S.Ct. at 1602 n.3. See also Dominique v. Weld, 73 F.3d 1156, 1162 (Ist Cir. 1996), It would appear that the parties failed to call the district court's attention to significant precedents governing the pivotal determination whether civil fees constitute “punishment.” See Taylor, 908 F.Supp. at 98. Although it involved a “double jeopardy” claim, United States v. Halper, 490 U.S. 435 (1989), applies as well in the ex post facto context. See Martel v. Fridovich, 14 F.3d 1, 3 (ist Cir. 1993) (citing Halper for the view that a civil sanction is “punishment” only when it serves the aims of retribution or deterrence).* As we explained recently, the Halper “punishment” test applies to “fines, for- feitures, and other monetary penalties designed to make the sovereign whole for harm or loss that is quantifiable in mone- tary terms.” United States v. Stoller, 78 F.3d 710, 717 (Ist ‘Article 1, § 10, of the United States Constitution provides: “No State shall . . . pass any . . . ex post facto Law.” Article 1, § 12, of the Constitution of the State of Rhode Island reads: “No ex post facto law . . . shall be passed.” * Subsequent to the district court decision in this case, the Rhode Island Supreme Court adopted the Halper test for determining whether a civil fee constitutes “punish- ment” under the Double Jeopardy Clause. See State vy. One Lot of $8,560, 670 A.2d 772 (R.1. 1996). TA Cir.), cert. dismissed, _— S.Ct. _— (1996). Since it is clear that the challenged offender fee fits the Stoller mold, the Halper “punishment” test applies. See also Artway v. Attorney General of State of New Jersey, 81 F.3d 1235, 1256 0.18 (3d Cir. 1996) (noting that Halper test applies because Ex Post Facto Clause serves aims similar to Double Jeopardy Clause), DiCola v. Food & Drug. Admin., 77 F.3d 504, 506-07 (D.C. Cir. 1996) (applying Halper test to both ex post facto and double jeopardy claims), Bae v. Shalala, 44 F.3d 489, 492-93 (7th Cir. 1995) (employing Halper standard to determine whether civil sanction implicates ex post facto concerns). Halper adapted the Supreme Court's longstanding subjective test for defining “punishment,” see DeVeau v. Braisted, 363 U.S. 144, 160 (1960) (“The question ts. . . whether the legis- lative aim was to punish that individual for past activity.”’), by coupling it with an objective standard. Accordingly, under the current regime governing civil provisions, we inquire not only whether the legislative intent was punitive in nature, but whether the challenged civil provision is “so extreme . . . as to constitute punishment.” Halper, 490 U.S. at 442. For purposes of determining whether a law is penal in nature, “the labels ‘criminal’ and ‘civil’ are not of paramount impor- tance.” /d. at 447. Rather, the court must “assess[] . . . the {sanction) imposed and the purposes [it] may fairly be said to serve. Simply put, acivil . . . sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment{,]” id. at 448; see Martel, 14 F.3d at 3; that is to say, retribution and deterrence. Halper, 490 U.S. at 448. On its face, the offender fee statute, suitably located among other Rhode Island civil statutes, imposes a civil charge.* The modest fee authorized by the statute comprises no part of any : ‘Our research discloses no relevant legislative history. 8A sentence imposed for the crimes committed by offenders. Rather, it is expressly designed to “reimburse” the Department for costs directly associated with providing goods and services required to supervise probationers and parolees living in the community. R.I. Gen. Laws § 42-56-38. Moreover, all offen- der fee revenues are dedicated to such use, Regulation |.12.01 (IV)(K), and waivers are available to offenders unable to pay, Regulation 10.07.03(11)(E). Finally, the same monthly fee is assessed against all offenders released into the community who are currently under Department supervision, without regard to the nature or severity of their respective offenses.* In our judg- ment, so modest a cost-based supervisory fee reasonably cannot be deemed punitive in purpose, especially since any conceiv- able retributive or deterrent effect could only be inconsequen- tial. See Martel, 14 F.3d at 3. “In determining that the offender fee constituted “punishment,” the district court ruled that it was part of “the law annexed to the crime,” Calder v. Bull, 3 US 386, 390 (1798), since probation ts punishment and the offender fee ts linked to appellees’ probationary sentences. In our view, this analysis overlooks several determinative distinctions First, though a probationary sentence ts “punishment,” the supervisory services for probationers released into the community are largely rehabilitative, both in nature and purpose. See R.1. Gen. Laws § 42-56-4(c) (Organization of department) (“Rehabilitative services shall include imermediary sanctions (including but not limited to . probation, parole, restitution, and community service)... .”). See also United States v. Cardona, 903 F.2d 60, 62 (ist Cir, 1990) (noting that probation serves goals of rehabilitation and public safety), cert, denied, 498 U.S 1049 (1991): Tillinghast v. Howard, 287 A.2d 749, 752 (RA. 1972) ("Nt ts for the purpose of giving a convicted accused the opportunity for rehabilitation that he retains his liberty and 1s placed on p obation.”). Second, the monthly fee is not imposed on all offenders sentenced to probation, but only those actually receiving the supervisory services whose costs are defrayed by the fee. Regulation 10.07 O33 CK). Thus, the offender fee differs materially from the fees at issue in a case relied upon by appellees and cited by the district court, see In re Petition of Delaware for a Writ of Mandamus, 603 A.2d 814 (Del. 1992), in which monetary sanctions were imposed on the offenders at sentencing. The fees involved in that case were blanket surcharges, calculated as percentages of the criminal penalty, fine, or forfeiture imposed at sentencing, rather than reimbursements for the costs of pro- viding services to the offenders. As the Halper Court explained, “it is the purposes actually served by the sanction in question, not the underlying nature of the proceed- ing giving rise to the sanction, that must be evaluated.” Halper, 490 U_S. at 447.7. 9A Finally, we inquire whether the fee nonetheless runs afoul of the objective test announced in Halper: a monetary assess- ment “that cannot be said solely to serve a remedial purpose, but rather can only be explained as also serving either retribu- tive or deterrent purposes, is punishment as we have come to understand the term.” Halper, 490 U.S. at 448. Under this standard, the offender fee must be deemed “punitive” if it “bears no rational relation to the goal of compensating the [State] for its loss.” Id. at 449.’ To state the question in this case is to answer It. The offender fee statute mandates that “{mJonies received under this section will accrue first to the department of correc- tions for use to offset costs of the specific care or service.” RI. Gen. Laws § 42-56-38. The implementing regulations in turn make clear that the offender fee was rationally designed to promote its legislative objective; viz., reimbursement of the Department for its costs in providing the required supervisory services to its probationers and parolees. Regulation | 12.010.V)(K). Furthermore, the implementing regulations explicitly state that the offender fees collected from probation- ers and parolees must be deposited in a restricted account, exclusively available for defraying Department costs in afford- ing offenders the required community supervision." Thus, the legislative intent actuating the offender fee program is entirely We note no contention, and no evidence, that the $15.00 monthly fee exceeds the costs associated with providing Department supervision of offenders released into the community. See Halper, 490 U.S. at 4582. "Moreover, as already noted, see supra p. 3, the offender fee is imposed only on probationers and parolees currently under Department supervision in the com- munity, not upon probationers in “banked” status. Regulation 10.07.03(1(C)(3). Thus, rather than a blanket fee assessed at sentencing without regard to the com- mencement or duration of any term of community supervision, the Rhode Island offender fee is directly and rationally related to recouping the State's costs in providing supervision to the individual offenders for whose benefit the services are rendered. Cf. In re Petition of Delaware for a Writ of Mandamus, 603 A.2d $14 (Del. 1992); note 4 supra. 10OA remedial and its practical effect is neither retributive nor deter- rent in nature. Under the Ha/per test, therefore, the offender fee is not punitive.” iT CONCLUSION For the foregoing reasons, the district court judgment is reversed and the case is remanded for further proceedings on appellees’ procedural due process claims under state and fed- eral law. The parties shall bear their own costs. SO ORDERED. *The fact that nonpayment of the fee can be brought to the attention of the court at a parole/probation revocation hearing, see supra p. 3, does not transform the fee into punishment. While revocation of parole/probation might constitute punish- ment, the Supreme Court explained in Morales that courts must determine whether a legislative change “produces a sufficient risk of increasing the measure of punish- ment.” Morales, 115 S.Ct. at 1603. A legislative change which creates only a “speculative and attenuated possibility of producing the prohibited effect of increas- ing the measure of punishment” is insufficient to raise the ex post facto specter. Id. As the district court recognized, any possible link between nonpayment of the offender fee and the revocation of parole/probation is too attenuated to render the offender fee violative of the Ex Post Facto Clause, Taylor, 908 F.Supp. at 101, especially since inability to pay constitutes grounds for waiver. Sn tee eee a ee Lem Tee eae Pe ae, ee 1A APPENDIX B UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND WILLIAM L. TAYLOR, MARY- ANNE SILVA, RAYMOND W. CHRISTIANSEN, LIONEL L. BOURGET, and DAVID A. WEBB v. C.A. No. 94-0596-P STATE OF RHODE ISLAND DEPARTMENT OF CORREC- TIONS, and GEORGE A. VOSE, JR., Individually and in his official capacity as Director of the Rhode Island Department of Corrections MEMORANDUM AND ORDER PETTINE, Senior Judge. Now before this Court are the plaintiffs’ and defendants’ cross Motions for Summary Judg- ment. This case concerns Rhode Island Department of Correc- tions Regulation 10.07.03 (“the Regulation”), which imposes a monthly supervision fee on criminal offenders sentenced to probation or parole. The plaintiffs challenge the constitution- ality and statutory authority for the application of the Regula- tion to offenders who were sentenced to probation prior to the Regulation’s effective date. All of the plaintiffs in this case are probationers who were so sentenced. They contend that this imposition of supervision fees violates the prohibition against ex post facto laws under Article I § 10 of the United States Constitution and Article I § 12 of the Rhode Island Con- icant a i 12A stitution, as well as the plaintiffs’ substantive and procedural due process rights under the Fourteenth Amendment to the United States Constitution and Article | § 2 of the Rhode Island Constitution. The plaintiffs bring their federal constitu- tional claims pursuant to 42° U.S.C. § 1983 and their state constitutional claims directly under the Rhode Island Constitu- tion. The plaintiffs also allege that Regulation 10.07.03, as applied retrospectively to previously sentenced probationers, exceeds the authority granted to the Department of Corrections by R.I. Gen. Laws § 42-56-38. The plaintiffs move for declara- tory judgment, injunctive relief, and compensatory damages. The defendants object and further argue that the defendant George Vose, Jr. is entitled to immunity from suit in his indi vidual capacity. For the reasons which follow, this Court grants the plaintiffs’ Motion for Summary Judgment on the ex post facto and statu- tory authority issues, grants the defendants’ Motion for Sum- mary Judgment on the substantive due process claim, denies both the plaintiffs’ and the defendants’ Motions for Summary Judgment on the procedural due process claim, and grants the defendant George Vose, Jr.’s Motion for Summary Judgment as to his qualified immunity. Because the Regulation’s appli- cation to the plaintiffs is held invalid on ex post facto and statutory authority grounds, the merits of the plaintiffs’ pro- cedural due process claim need not be resolved. I. STATEMENT OF FACTS Rhode Island General Laws § 42-56-38, as enacted by P.L. 1992, c. 133, art. 97, § 2, provides that each sentenced criminal offender committed to the care, custody, or control of the Department of Corrections, including but not limited to those on probation or parole, is required to reimburse the State for the a BS LOE SR OEE ee ee se FE ae MP ATS Eee whe MERE OU. Sao vere f rane Ti + ocala tetas Sig fasta aA ok BONA SCS Mai che eh SD esate Ka erie wes 13A costs of services provided, or a reasonable portion thereof. This statute specifically provides that its provisions shall not be effective until the date that rules and regulations implement- ing its provisions are filed with the Secretary of State. On June 17, 1994, subsequent to a public hearing, the Department of Corrections filed Regulation No. 10.07.03, entitled “Adult Probation and Parole Offender Supervision Fees,” with the Secretary of State. The Regulation states that a monthly fifteen dollar supervision fee will be assessed on probationer and parolees, effective July 1, 1994. The Regulation also provides for a waiver of the supervision fee if the offender demonstrates financial hardship to probation or parole staff. The plaintiffs, William L. Taylor, Maryanne Silva, Ray- mond W. Christiansen, Lionel Bourget, and David A. Webb, were all convicted and sentenced to probation with the Depart- ment of Corrections before July 1, 1994. On June 19, 1994, George Vose, Jr., Director of the Department of Corrections, sent a letter to all probationers and parolees notifying them that the fifteen dollar fee would be imposed beginning July |, 1994. The letter made no mention of available waivers for financial hardship. Each plaintiff was assessed offender super- vision fees after July 1, 1994. All the plaintiffs have alleged that they contacted their probation offices inquiring about the obligations to pay the fee and that they were not informed about the available waiver procedure. The defendants assert that the plaintiffs never requested waivers. Those plaintiffs who have been delinquent in paying their supervision fees have received monthly notices containing the words “FINAL NOTICE” and advising that a civil action would follow if the fees were not paid in full. The agency collecting the supervision fees may sue for any delinquent payments, even after the term of probation has ended. The regulations provide that probation shall not be violated solely for nonpay- ment of fees, but that if other violations occur, the court, in 1l4A deciding to revoke probation, may consider nonpayment as indicating a pattern of non-compliance. The plaintiffs claim that the imposition of supervision fees on those who were sentenced to probation prior to the effective date of the Regulation violates the Ex Post Facto Clause and the Due Process Clause, as well as exceeding the statutory authority of R.I. Gen. Laws § 42-56-38. The plaintiffs seek a declaratory judgment that the regulation as imposed is invalid, an injunction prohibiting the defendants from collecting super- vision fees from the plaintiffs, and an order requiring reim- bursement of fees previously collected from the plaintiffs. Based on the Agreed Statement of Facts, the plaintiffs and the defendants have filed cross Motions for Summary Judgment, which are now before this Court. II. SUMMARY JUDGMENT A federal court may grant summary judgment in a civil action “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). A fact is “material” if it could be legally relevant to the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). To prevent summary judgment, the evidence, viewed in the light most favorable to the non-moving party, must be sufficient to permit a rational factfinder to resolve the issue in favor of either side. Id.; Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (Ist Cir. 1989). In this case, the parties have stipulated to an Agreed Statement of Facts for the purposes of summary judg- ment. Given this stipulation, no genuine issue of material fact exists relating to the dispositive ex post facto and statutory ISA authority claims. As discussed below, several material facts relating to the procedural due process claim are disputed or absent. However, since the regulation as applied to the plain- tiffs is now held invalid on other grounds, the merits of the plaintiffs’ procedural due process claim need not be resolved. I. QUALIFIED IMMUNITY Qualified immunity shields government officials who are exercising discretionary powers “from [personal] liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reason- able person should have known.” Harlow v. Fitzgerald, 475 U.S. 800, 818 (1982); Hegarty v. Somerset County, 53 F.3d 1367 (Ist Cir. 1995). The focus of this standard is the “objective reasonableness of an official’s conduct as measured by refer- ence to clearly established law.” Harlow, 475 U.S. at 818. In Anderson v. Creighton, 483 U.S. 635, 640 (1987), the Su- preme Court explained that qualified immunity shields such government officials from civil damages liability “as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.” Anderson, 483 U.S. at 638 (citation omitted). The government official's belief need not, however, be correct; qualified immunity doc- trine “allows for the inevitable reality that ‘law enforcement officials will in some cases reasonably but mistakenly conclude that [their conduct] is [constitutional], and. . . that. . . those officials — like other officials who act in ways they reasonably believe to be lawful — should not be held personally liable.’ ” Hegarty, 53 F.3d at 1373 (quoting Anderson, 483 U.S. at 641) (emphasis omitted). The plaintiffs contend that the defendant George Vose, Jr., Director of the Department of Corrections, deprived the plain- 16A tiffs of their constitutional rights by implementing an ex post facto \aw and by denying procedural and substantive due proc- ess to the plaintiffs. These constitutional guarantees stand in- violate, and I can safety conclude that Mr. Vose knew or should have known of these protections. I need not discuss here Mr. Vose’s immunity with regard to the procedural and substantive due process claims, as I find, infra, that the plaintiffs’ substantive due process rights were not violated and that I cannot and need not resolve the merits of the plaintiffs’ procedural due process claims. With regard to the application of the Ex Post Facto Clause, however, | find that Mr. Vose reasonably could have concluded, even if mistakenly, that his conduct was lawful, and therefore he is entitled to qualified immunity. Although the ex post facto guarantee is certainly “clearly established,” the question of whether an offender supervision fee such as the one imposed upon the plaintiffs falls under the scope of the Ex Post Facto Clause is not so clear cut. Even though I ultimately find that the Regulation did violate the Ex Post Facto Clause, I note that this is a difficult case to which no binding case law applies. The question before this Court is a complex one, involving close and careful consideration of constitutional issues in a factual situation which has never been considered by the First Circuit or the Supreme Court. This Court cannot, under the generous qualified immunity standard discussed above, charge Mr. Vose with the legal refinements involved in reaching such a conclusion. Thus I find that he is entitled to qualified immun- ity. IV. EX POST FACTO A critical question in this case is whether the defendants’ imposition of the probation supervision fee upon the plaintiffs Rk ati Meine =e RO. ba eb: Rie aa Ber Sete tants! hee ahs 52 PG tae oe ae Socks Wc aL ce a See ee ae Sa CAT REAM. Ath WER ALR SERED BA HE i 17A was in violation of the Ex Post Facto Clause of the United States Constitution and the Rhode Island Constitution.' Since the Rhode Island Constitution’s Ex Post Facto Clause is essentially identical and has been interpreted as requiring the same standard as under the United States Constitution, Lerner v. Gill, 463 A.2d 1352, 1356 (R.I. 1983), I address these claims together. In Collins v. Youngblood, 497 U.S. 37 (1990), the United States Supreme Court discussed in some detail the current scope of the Ex Post Facto Clause. The Collins Court further reaffirmed the Court’s summary of the meaning of the Ex Post Facto Clause in Beazell v. Ohio, 269 U.S. 167 (1925): It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited ex post facto. Collins, 497 U.S. at 42 (quoting Beazell, 269 U.S. at 169-70) (emphasis added). Collins confirmed that these three Beazell categories define the scope of the Ex Post Facto clause, stating that “[t]he Beazell formulation is faithful to our best knowledge of the original understanding of the Ex Post Facto Clause.” Id. at 43. ‘Art. | § 10 of the Constitution provides in part: “No State shall . . . pass any . ex post facto Law... .” ’The Collins Court also looked to Justice Chase's opinion in Calder v. Bull, 3 U.S. 386. 390 (1798) for an early explanation of the “core concern” of the Ex Post Facto Clause: ist. Every law that makes an action done before the passing of the law. and which was innocent when done, criminal; and punishes such I8A In the present case, the plaintiffs do not attack the validity of their convictions or punishments as originally imposed. Therefore, the legal issue here is whether the challenged pro- vision imposing the monthly offender supervision fee on the plainfiffs “makes more burdensome the punishment for a crime, after its commission.” /d. at 42 (quoting Beazell, 269 U.S. at 169-70). The plaintiffs argue that the supervision fee flows from the commission of the underlying crime and that the fee is punitive, as an additional requirement or condition of probation. The defendants assert that the fee is not criminal punishment but rather a civil surcharge. I note, at first, that no binding case law comes to bear directly upon this issue. Although the Supreme Court has recently discussed the scope of the Ex Post Facto Clause in Collins and the even more recent California Dep't of Corrections v. Morales, __ U.S. —__, 115 S.Ct. 1597 (1995), neither of these opinions sheds light on the question of when an additional fee which is related to an already-imposed punishment makes that punishment “more burdensome.” In Collins, a trial court jury had imposed upon respondent Youngblood a punishment of life imprisonment and a fine of $10,000. Collins, 497 U.S. at 40. However, the fine was not authorized by law; thus, | under Texas law at the time, the judgment and sentence were | void and Youngblood was entitled to a new trial. Subsequent to Youngblood’s conviction, however, a new state statute be- came effective, allowing an appellate court to reform an im- proper jury verdict rather than grant a new trial. The appellate action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punish- ment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” Collins, 497 U.S. at 42 (quoting Calder, 3 U.S. at 390) (emphasis in original). enihiiiee teams aia 19A court to which Youngblood had applied for a new trial thus reformed Youngblood’s conviction by deleting the $10,000 fine and, correspondingly, denied his request for anew trial. /d. Youngblood challenged the new statute as a violation of the Ex Post Facto Clause. The Supreme Court’s discussion focused on whether a legislative change violates the Ex Post Facto Clause even if it does not actually change the amount of the punishment. For, the Court in Collins distinctly pointed out that the challenged legislation was simply a “procedural change” which did not “alter the definition of the crime of aggravated sexual abuse, of which Youngblood was convicted, nor [did] it increase the punishment for which he [was] eligible as a result of that conviction.” Collins, 497 U.S. at 44. The point of Collins was that a legislative change does not violate the Ex Post Facto Clause unless it meets one of the three categories outlined in Beazell. In C ollins, the appellate court's decision of the fine and corresponding denial of a new trial clearly did not fall within any of these three categories; it simply changed the procedure for correcting an improper punishment, which in no way increased (and, in fact, de- creased) the burden of Youngblood’s punishment. In coming to this conclusion, Collins rejected the notion that a legislative change violates the Ex Post Facto Clause if it merely “in relation to the offence [sic] or its consequences, alters the situation of a party to his disadvantage.” Collins, 497 U.S. at 48-49 (quoting Kring v. Missouri, 107 U.S. 221, 228-29 (1883) (emphasis omitted)). Collins explicitly over- ruled Kring, stating: The holding in Kring can only be justified if the Ex Post Facto Clause is thought to include not merely the Calder categories, but any change which “alters the situation of a party to his disadvantage.” We think such a reading of the Clause departs from the 20A meaning of the Clause as it was understood at the time of the adoption of the Constitution, and is not supported by later cases. Id. at S50. The Collins Court also overruled Thompson v. Utah, 170 U.S. 343 (1898), which involved the Sixth Amendment right to trial by jury and the question of whether the state of Utah could retrospectively take away the Sixth Amendment right to a 12-person jury when it became a State rather than a Territory and was therefore “no longer bound by Sixth Amendment as then interpreted.” Collins, 497 U.S. at 51. In overruling Thompson, the Court stated that, to violate the Ex Post Facto Clause, it was not enough that a “substantial right” be taken away as a result of the legislative change. /d. The Collins Court noted, “The right to a jury trial provided by the Sixth Amendment is obviously a ‘substantial’ one, but it is not a right that has anything to do with the definition of crimes, - defenses, or punishments, which is the concern of the Ex Post Facto Clause.” Jd. In the present case, the plaintiffs have not merely been placed at a procedural disadvantage or been denied a substantial right unrelated to their punishment. Instead, the probation supervision fee at issue directly relates to and con- cretely affects the plaintiffs’ punishment. Collins, therefore, did not address the question presented in the instant case, which is whether imposing supervision fees on probationers already sentenced falls within the categories laid out in Beazell. The holding of Collins is simply that, to be a violation of the Ex Post Facto Clause, a statute must come within “the finite Beazell categories.” 497 U.S. at 44. The Texas statute at issue in Collins clearly did not; thus, the Court did not address the nuances of the particular Beazell categories, as is necessary in the instant case in order to deter- mine whether the supervision fee “makes more burdensome the punishment for [the plaintiffs’ crimes], after [their] com- mission.” | 21A Morales also involved an Ex Post Facto Clause issue but fails to shed light on the present case. The facts of Morales involved a change in parole hearing procedure, a legislative amendment had retrospectively changed the frequency of parole suitably proceedings available to the respondent. Morales, 115 §.Ct. at 1600. Unlike Collins, the Morales Court did address the question of whether this change increased the measure of the prisoner’s punishment. However, in holding that the change did not violate the Ex Post Facto Clause, the Court focused entirely on the fact that the change created only a “speculative and attenuated possibility of producing the pro- hibited effect of increasing the measure of punishment for covered crimes.” Morales, 115 S.Ct. at 1603 (emphasis added). This focus was based upon the Court’s holding in Beazell that “the question of what legislative adjustments ‘will be held to be of sufficient moment to transgress the constitu- tional prohibition’ must be a matter of ‘degree.’ ... [I]n evaluating the constitutionality [of the amendment at issue], we must determine whether it produces a sufficient risk of increasing the measure of punishment attached to the covered crimes.” Morales, 115 S.Ct. at 1603 (quoting Beazell, 269 U.S. at 171) (emphasis added). The subsequent discussion made clear that Morales’ holding that the change in parole hearing procedure was not of “sufficient moment” was a result of the uncertainty of its effect upon the prisoner’s punishment, rather than the inadequacy of its burdens. In the present case, the defendants argue that under Morales, the fifteen dollar monthly fee, with its liberal waiver criteria and provisions for retroactive waivers, does not transgress any of the plaintiffs’ constitutional rights. However, this argument mischaracterizes the nature of Morales‘ admonition regarding the necessary “matter of ‘degree.’” It turns the issue into one of the heaviness of the burden, rather than the certainty of the burden, as discussed in Morales. Morales in no way indicates 22A that the “matter of ‘degree’ is one of quantity rather than one of certainty. It presents none of the discussion that one would expect from the establishment of a new threshold standard. It does not discuss how courts might decide when the burden is sufficiently heavy to amount to a constitutional violation or present any factors to consider in making such a determination. Even if an ex post facto punishment must meet a minimum threshold of onerousness in order to be constitutional, the supervision fee at issue in this case would clearly meet any such threshold. As the plaintiffs point out, they face total super- vision fees ranging from $180.00 to $1,620.00, even without any increases in the monthly fee amount. These are not insignif- icant amounts of money. While these amounts may not be onerous to all, they are certainly not insignificant. Furthermore, the fact that the fee can be waived for those who cannot afford it does not lessen the certainty of the fee’s burden on those who do not meet the waiver criteria. Even those who can afford to have their rights violated are entitled to constitutional protections. Thus, I return to the critical question in this case: does the fee “make more burdensome the punishment for the crime?” A logical analysis of the nature of the supervision fee leads inexor- ably to the conclusion that it does actually increase the burdens of the punishment. The plaintiffs in this case were placed on probation as a result of convictions for either felonies or mis- demeanors. Thus the probation was, for each plaintiff, part of his or her punishment for the offense. Under both state and federal law, probation is clearly considered to be punishment. See, e.g., R.I. Gen. Laws § 12-19-23.2 (1994 Reenactment) (listing various “intermediate punishments,” including proba- tion); United States v. Bynoe, 562 F.2d 126 (ist Cir. 1977) (“[P]robation is . . . a punishment imposed on the defendant, albeit a mild one. . . .”) (citing Korematsu v: United States, 319 U.S. 432 (1943)). At the time the plaintiffs were convicted | 23A in all cases, before July 1, 1994, when the supervision fee went into effect), they received sentences, including probation, which did not include any imposition of a monetary payment. Thus, each plaintiff's punishment was made significantly more burdensome than it was at the time of sentencing as a result of the imposition of the fee. That is, the punishment include the probation, and the fee makes the probation more burden- some. Logically, therefore, the retrospective fee “makes more burdensome the punishment.” Looking at this another way, probation inherently involves the imposition of a series of conditions which impose con- straints upon and restrict the behavior of probationers. The expectation of such conditions accompanied the plaintiffs’ orig- inal sentences. The supervision fee, however, is a condition of probation different from ordinary probation conditions. It is not merely a change in supervision policies or procedures but is rather a direct imposition of a substantial monetary obligation. This obligation is thus clearly an additional impos- ition far beyond the scope of the already-existing supervisory and conduct-oriented conditions of probation. Added after plaintiffs were already convicted and sentenced, it increases the burdens of the punishment in a very direct and concrete way. The defendants argue that the supervision fee is not actually “punishment” but instead merely a civil fee which offsets the costs of services. This argument is severely undermined by an exclusion contained within the law itself. The law states, “Each sentenced offender committed to the care, custody, or control of the department of corrections shall reimburse the state for the cost or the reasonable portion thereof incurred by the state relating to such commitment.” R.I. Gen. Laws § 42-56-38. However, the statute explicitly states, “provided however that a person so committed, awaiting trial and not convicted, shall not be liable for the reimbursement.” /d. This exclusion makes 24A clear that the law is not intended solely to provide reimburse- ment for costs expended by the state; if it were, then all persons upon whom those costs were expended would be liable, regard- less of whether they ultimately were convicted. Such a result would, of course, be inappropriate. Instead, the law makes a clear distinction, as it must, between those who have been convicted and those who have not. This distinction makes the fee, at least in part, punitive in its intent and purpose. Furthermore, the law makes clear that nonpayment of the supervision fee could be a factor taken into account in revoking the plaintiffs’ probation, even though it could not be the sole cause. The Regulation states: The offender’s probation or parole shall not be vio- lated solely for non-payment of offender fees. How- ever, in the event of other violations of the conditions of probation/parole, non-payment of the offender fees may be brought to the attention of the court, formally or informally, as indicative of a lack of cooperation, failure to fulfill lawful obligation, or other patterns of non-compliance. Department of Corrections Regulation 10.07.03(I1)(D)(3). Under the holding of Morales discussed, supra, this possible link between non-payment of the fee and revocation of pro- bation is too speculative and attenuated, in and of itself, to make the fee a violation of the Ex Post Facto Clause. However, the role of the fee in probationers’ on-going interactions with the criminal justice system belies its alleged purely civil nature. I note further that the probation supervision fee, even if it does serve the non-punitive goal of offsetting financial costs to the State, is inextricably linked to the plaintiffs’ criminal convictions. The fact that these fees do not and could not be applied independent of a criminal conviction points strongly to 25A the conclusion that they cannot be viewed as civil fees. They are part of the “law annexed to the crime,” Calder v. Bull, 3 U.S. 386, 390 (1798), and therefore are limited by law in effect when the offenses were committed under the Ex Post Facto Clause. See, e.g., In the Matter of the Petition of Dela- ware for a Writ of Mandamus, 603 A.2d 814, 817-18 (Del. 1992) (holding that imposition of assessment to be paid to Drug Rehabilitation Fund and increase in assessment to be paid to Victim Compensation Fund were penal in nature and violated Ex Post Facto Clause). The defendants also present case law indicating that such supervision fees are, in general, legal. For instance, the defend- ants cite Turner v. Nevada Bd. of State Prison Comm'rs, 624 F.Supp. 318 (D. Nev. 1985), for the proposition that the costs of supervision or imprisonment may be imposed on prisoners. However, in the present case, the plaintiffs do not dispute the constitutionality of these fees in general but only when applied ex post facto. Thus the case law the defendants cite regarding the propriety of the fees, independent of an ex post facto analysis, is immaterial. The defendants also rely heavily on the unappealed, unpub- lished magistrate’s recommendation in Murray v. Phelps,C.A. No. 88-0129-A (M.D. La. 1993), in which the plaintiffs were represented pro se. Murray held that a statutory authorization for the payment of parole supervision fees was not a violation of the Ex Post Facto Clause. Id. | note, first, that this decision is in no way binding precedent for the present case. Further- more, the Murray court discussed extensively the significance of the fact that the parole was not part of the plaintiffs’ original sentences but was instead a reduction in the plaintiffs’ original sentences. It pointed out that “[a] prisoner has no constitution- ally protected liberty interest in diminution of or release prior to the expiration of a valid sentence,” id. at 10 (citing Green- hoitz v. Inmates of Nebraska Penal & Correctional Complex, 26A 442 U.S. | (1979)), and that “[s]ince a prisoner has no right to diminution of sentence, the State is free to fashion the manner under which it may be granted,” id. (quoting McGhee v. Belisle, 501 F.Supp. 189 (E.D.La. 1980)). The present case, on the other hand, involvers probation, which was part of the plaintiffs’ original sentences. Thus, the probation super- vision fee is an increase in the burdens of the original punish- ment, rather than a condition upon the plaintiffs’ receipt of a decrease in punishment, as in Murray. The Murray court states in a conclusory manner that the fee is not punitive because it is “imposed for the purpose of defray- ing the expense of supervising the parolee.” /d. at 10. The court presents no substantiation for this assertion, and I there- fore fail to find it persuasive. This type of conclusory analysis lead to a “slippery slope,” where a state could, by simply designating funds for a particular cost or by careful labeling, impose almost any new fine without being subject to the con- straints of the Ex Post Facto Clause. The defendants also argue that the offender supervision fees are not retrospective and that they “are applied prospectively to persons receiving probation and parole services.” However, this assertion obfuscates the true nature of the fees. All the plaintiffs in this case indisputably committed their crimes be- fore the law went into effect. The law thus imposes an addi- tional burden upon the plaintiffs that did not exist at the time of their actions which led to the convictions. In Weaver v. Graham, 452 U.S. 24 (1981), the Supreme Court noted that a statute may be considered retrospective “even if it alters punitive conditions outside the sentence itself.” /d. at 32. It is immaterial [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0609%3A1. Public record. Not legal advice.