The Wisconsin Attorney General/DOJ Response and Opposition Brief: Summary.
- "The retroactive benefit of 2009 Wis. Stat. §973.01 (4m) Act 28 §9311 applied to Lee."
- "However, that retroactive benefit, and its subsequent repeal, poses no ex post facto issue."
- "A law that did not exist until 2009 did not impact "fair warning" when Lee "committed his felony", which is what an ex post facto claim addresses."
- "The Ex Post Facto Clause bars only a particular type of retroactivity: It addresses whether an offender had notice of the consequences when committing the crime."
- "There is no ex post facto issue with repealing a benefit created after a crime already was committed. The scenario, presented here, has no bearing on "fair warning" at the relevant time."
- Lee's claim fails under established ex post facto principles because repealing a law enacted after a crime has no impact on the offender's expectations when committing that crime."
- "A sentence could pose an ex post facto problem if the law provided a retroactive benefit and later was repealed - it does not matter because no other Justice joined that view."
Now, we wait for the Milwaukee Circuit Courts decision as to the State's position regarding the Ex Post Facto Laws. There is a difference on the constitutional prohibition against Ex Post Facto laws enacted by legislation and fair warning embodied in the Due Process Clause.
