Hendricks v. Kansas, 521 U.S. 346 (1997).
Petitioner, convicted of indecent liberties with child and
having served his prison sentence for same, appealed from
an order committing him to custody of the Secretary of
Social and Rehabilitation Services based on a jury finding
that he was a sexually violent predator under Kansas’s
Sexually Violent Predator Act. Petitioner contended that
the Act was a criminal proceeding and therefore violated
the ex post facto clause. Held: There is no violation of the
ex post facto clause since (1) the Act does not establish
criminal proceedings, and (2) involuntary confinement is
not punishment.
Collins v. Youngblood, 497 U.S. 37 (1990).
Defendant was convicted in Texas of aggravated sexual
abuse and received both a life sentence and a fine. On
appeal, he complained that the Texas law under which he
was convicted did not authorize both a fine and a prison
term for his offense. Before his claim was considered, a
new law was passed allowing an appellate court to reform
an improper verdict assessing a punishment not
authorized by law. Defendant subsequently received a
new verdict, whereupon he argued that the application of
the new law was a violation of the ex post facto clause.
Held: The application of the statute to defendant was not
prohibited by the ex post facto clause because (1) it does
not punish a crime which was not a crime when it was
done, (2) it does not make the punishment more
burdensome, and (3) it does not deprive defendant of any
defense that was available to him under the law at the
time he committed the offense.
But see, Miller v. Florida, 482 U.S. 423 (1987).
Petitioner argued that application of sentencing
guidelines, which had been revised after commission of
the offense, violated the ex post facto clause. Held: The
application of revised sentencing guidelines to
defendant, whose crimes occurred before their effective
date, violated the ex post facto clause because they (1)
increased the presumptive sentence and therefore
changed the legal consequences of the acts committed
before the act’s effective date, and (2) made the
punishment for the crime more burdensome than it
would have been prior to the revision.
C. Retroactive Application of New Criminal Rules
State v. Young, 77 N.J. 245 (1978), rev’g, 148 N.J.
Super. 405 (App. Div. 1977). The common law rule that
in order for a killing to be murder, the victim must die
within a year and a day after the attack, is abolished.
Held: Abolition of the rule is not to operate retroactively
to inculpate defendant for murder, where the victim died
one year and 63 days after defendant shot him.State v. Humanik, 199 N.J. Super. 283 (App. Div.),
certif. denied, 101 N.J. 266 (1985). Defendant
contended that an amendment to a statute enacted after
the crime was committed but before trial began, violated
the ex post facto law. The amendment required
defendant to prove mental disease or defect by a
preponderance of the evidence, whereas the prior statute
did not enumerate any standard of proof. Held: The
amendment does not violate the ex post facto clause, since
it does not decrease the nature, amount, or quality of the
evidence that the State must present in order to obtain a
conviction.D. BailUnited States v. Miller, 753 F.2d 19 (3d Cir. 1985).Petitioners contended that the application of an
amended bail statute, which was enacted after all the
offenses in their indictments took place, violated the ex
post facto clause. Held: The availability of bail pending
appeal is a procedural issue, rather than a type of
punishment, so the ex post facto clause does not apply.E. ParoleTrantino v. N.J. State Parole Board, 2000 WL
739311 (N.J. App. Div. 2000), appeal pending.
Petitioner claimed that the 1997 statutory amendment
eliminating requirement of consideration of “new
information” with respect to a subsequent parole
application, after initial denial of parole, violated the ex
post facto clause. The Court found that the amendment
was a procedural modification that did not constitute a
substantive change in parole release criteria. See N.J.S.A.
30:4-123.56c. Therefore, the application of
amendment to petitioner did not violate the ex post facto
clause.Garner v. Jones, 529 U.S. 244, 120 S.Ct. 1362, 146
L.Ed.2d 236 (2000). Petitioner, an inmate, claimed that
the application of an amendment to the Parole Board’s
rule, changing the frequency of required reconsideration
hearings for inmates serving life sentences from every
three years to every eight years, violated the ex post facto
clause. Held: The application of the amended rule did
not necessarily violate the ex post facto clause. This is
because (1) the law is qualified in that it vests with the
Board discretion as to how often to set an inmate’s date
for reconsideration with an 8-year maximum, and (2) the