People v. Earl , 495 Mich. 33 ( 2014 )

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Syllabus Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Corbin R. Davis
PEOPLE v EARL
Docket No. 145677. Argued October 8, 2013 (Calendar No. 3). Decided March 26, 2014.
Ronald L. Earl was convicted by a jury in the Oakland Circuit Court of bank robbery and
two counts of possession of less than 25 grams of a controlled substance. At the time defendant
committed the offenses, MCL 780.905 required that all defendants convicted of a felony pay a
$60 crime victim’s rights assessment. The statute was amended effective December 16, 2010, to
raise the assessment for convicted felons to $130. At defendant’s sentencing on February 15,
2011, the court, Leo Bowman, J., ordered defendant to pay the $130 crime victim’s rights
assessment under MCL 780.905(1)(a). Defendant appealed. The Court of Appeals, K. F. KELLY,
P.J., and SAWYER and RONAYNE KRAUSE, JJ., affirmed. 297 Mich App 104 (2012). The
Supreme Court granted defendant’s application for leave to appeal. 493 Mich 945 (2013).
In a unanimous opinion by Justice CAVANAGH, the Supreme Court held:
The Ex Post Facto Clauses of the United States and Michigan Constitutions bar
retroactive application of a law if the law (1) punishes an act that was innocent when the act was
committed, (2) makes an act a more serious criminal offense, (3) increases the punishment for a
crime, or (4) allows the prosecution to convict on less evidence. Determining whether
application of a law violates the Ex Post Facto Clauses by increasing the punishment for a crime
is a two-step inquiry. The court must begin by determining whether the Legislature intended the
statute as a criminal punishment or a civil remedy. If the Legislature’s intent was to impose a
criminal punishment, retroactive application of the law violates the Ex Post Facto Clauses and
the analysis is over. If the Legislature intended to enact a civil remedy, the court must ascertain
whether the statutory scheme is so punitive in purpose or effect as to negate the Legislature’s
intent to deem it civil. The crime victim’s rights assessment is a civil remedy. The Legislature’s
use of the term “assess” in MCL 780.905 indicates a nonpunitive intent. That intent is
underscored by the fact that the statute imposes a flat fee that is not dependent on the facts of the
case. The fee also has a nonpunitive purpose: funding crime victim’s services, thereby
promoting public safety and welfare. Nor is the assessment so punitive in purpose or effect as to
negate the Legislature’s intent to deem it a civil remedy: the sanction does not impose an
affirmative disability or restraint, imposition of the assessment has not historically been deemed
a form of criminal punishment, imposition of the assessment does not promote the traditional
aims of punishment, the assessment has a rational connection to a nonpunitive purpose, and the
assessment is not excessive with respect to that purpose. Accordingly, imposition of the
increased crime victim’s rights assessment did not violate the Ex Post Facto Clauses of the
United States and Michigan Constitutions.
Affirmed.
©2014 State of Michigan
Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
FILED MARCH 26, 2014
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 145677
RONALD LEE EARL,
Defendant-Appellant.
BEFORE THE ENTIRE BENCH
CAVANAGH, J.
This case requires us to determine whether the imposition of an increased Crime
Victim’s Rights Fund assessment violates the Ex Post Facto Clauses of the Michigan and
United States Constitutions. US Const, art I, § 10; Const 1963, art 1, § 10. We hold that
it does not. Specifically, we hold that the trial court’s order requiring defendant to pay a
$130 crime victim’s rights assessment does not violate the bar on ex post facto laws.
Accordingly, we affirm the judgment of the Court of Appeals.
I. FACTS AND PROCEDURAL HISTORY
On March 18, 2010, defendant robbed a bank in Southfield, Michigan. He was
arrested six days later, and heroin and crack cocaine were found on his person at the time
of the arrest. Defendant was charged with and convicted of bank robbery and two counts
of possessing less than 25 grams of a controlled substance. At the time defendant
committed the offenses, MCL 780.905 required that all defendants found guilty of a
felony pay a $60 crime victim’s rights assessment. 1996 PA 344. The statute was
amended effective December 16, 2010, however, to raise the crime victim’s rights
assessment for convicted felons to $130. 2010 PA 281. Defendant was sentenced on
February 15, 2011, and was ordered to pay $130 for the crime victim’s rights assessment.
Defendant appealed and claimed, among other things, that the increased assessment was
an increased punishment in violation of the Ex Post Facto Clauses of the Michigan and
United States Constitutions. The Court of Appeals affirmed the $130 assessment,
holding that it is not punitive, and, therefore, does not violate the bar on ex post facto
laws. People v Earl, 297 Mich App 104, 114; 822 NW2d 271 (2012). Defendant sought
leave to appeal in this Court, which we granted. People v Earl, 493 Mich 945 (2013).
II. STANDARD OF REVIEW
“Whether a statutory scheme is civil or criminal is . . . a question of statutory
construction.” Smith v Doe, 538 US 84, 92; 123 S Ct 1140; 155 L Ed 2d 164 (2003)
(citation and quotation marks omitted). The interpretation of a statute is a question of law
that this Court reviews de novo. Herman v Berrien Co, 481 Mich 352, 358; 750 NW2d
570 (2008).
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III. ANALYSIS
A. THE CRIME VICTIM’S RIGHTS FUND
The Crime Victim’s Rights Fund is contained within the Crime Victim’s Rights
Act, MCL 780.751 et seq. The Crime Victim’s Rights Act was enacted in response to the
growing recognition of the concerns regarding disproportionate treatment of crime
victims and a perceived insensitivity to their plight. People v Grant, 455 Mich 221, 239-
240; 565 NW2d 389 (1997). In 1989, the Crime Victim Services Commission was
established as part of the Crime Victim’s Rights Act and was given the following duties:
(a) Investigate and determine the amount of revenue needed to pay
for crime victim’s rights services.
(b) Investigate and determine an appropriate assessment amount to
be imposed against convicted criminal defendants and juveniles for whom
the probate court or the family division of circuit court enters orders of
disposition for juvenile offenses to pay for crime victim’s rights services.
(c) By December 31 of each year, report to the governor, the
secretary of the senate, the clerk of the house of representatives, and the
department the commission’s findings and recommendations under this
section. [MCL 780.903.]
The Legislature established the Crime Victim’s Rights Fund to pay for crime victim’s
rights services. MCL 780.904(1). The Crime Victim’s Rights Fund is funded by the
crime victim’s rights assessment. MCL 780.904. Currently, a convicted felon is assessed
$130, those convicted of misdemeanors are assessed $75, and juveniles are assessed $25
when the court enters an order of disposition for a juvenile offense. MCL 780.905(1) and
(3). Money remaining in the Crime Victim’s Rights Fund after victim’s services have
been paid for may be used for crime victim compensation. MCL 780.904(2). See, also,
MCL 18.351 to MCL 18.368. Excess revenue that has not been used for crime victim
3
compensation may be used to establish and maintain a statewide trauma system. MCL
780.904(2).
B. EX POST FACTO CLAUSE1
The Ex Post Facto Clauses of the United States and Michigan Constitutions bar
the retroactive application of a law if the law: (1) punishes an act that was innocent when
the act was committed; (2) makes an act a more serious criminal offense; (3) increases
the punishment for a crime; or (4) allows the prosecution to convict on less evidence.
Calder v Bull, 3 US (3 Dall) 386, 390; 1 L Ed 648 (1798). At issue in this case is
whether an increase in the crime victim’s rights assessment increases the punishment for
a crime.
Determining whether a law violates the Ex Post Facto Clause is a two-step inquiry.
Smith, 538 US at 92. The court must begin by determining whether the Legislature
intended the statute as a criminal punishment or a civil remedy. Id. If the Legislature’s
intention was to impose a criminal punishment, retroactive application of the law violates
the Ex Post Facto Clause and the analysis is over. Id. However, if the Legislature
intended to enact a civil remedy, the court must also ascertain whether “the statutory
1
The language contained in the Michigan Constitution’s Ex Post Facto Clause, Const
1963, art 1, § 10, is nearly identical to the language contained in the federal constitution,
US Const, art I, § 10. Neither party addressed whether our Ex Post Facto Clause
provides greater protections than its federal counterpart. See Wortman v R L Coolsaet
Constr Co, 305 Mich 176, 179; 9 NW2d 50 (1943) (stating that if an issue is not briefed,
it is generally considered abandoned). In any event, decisions of our Court of Appeals
indicate that “Michigan’s Ex Post Facto Clause is not interpreted more expansively than
its federal counterpart,” In re Contempt of Henry, 282 Mich App 656, 682; 765 NW2d 44
(2009), citing People v Callon, 256 Mich App 312, 317; 662 NW2d 501 (2003), and,
thus, for purposes of this case, we treat the two provisions as coextensive.
4
scheme is so punitive either in purpose or effect as to negate [the State’s] intention to
deem it civil.” Id. (citations and quotation marks omitted). Stated another way, even if
the text of the statute indicates the Legislature’s intent to impose a civil remedy, we must
determine whether the statute nevertheless functions as a criminal punishment in
application. Because we conclude that the Legislature did not intend the crime victim’s
rights assessment to be a criminal punishment, we will address both issues.
C. WHETHER THE LEGISLATURE INTENDED THE CRIME VICTIM’S
RIGHTS ASSESSMENT TO BE PUNITIVE
When determining whether the Legislature intended for a statutory scheme to
impose a civil remedy or a criminal punishment, a court must first consider the statute’s
text and its structure. Smith, 538 US at 92. Specifically, a court must ask whether the
Legislature, “indicated either expressly or impliedly a preference for one label or the
other.” Hudson v United States, 522 US 93, 99; 118 S Ct 488; 139 L Ed 2d 450 (1997)
(citation and quotation marks omitted). In considering whether a law is a criminal
punishment, a court “generally bases its determination on the purpose of the statute.”
Trop v Dulles, 356 US 86, 96; 78 S Ct 590; 2 L Ed 2d 630 (1958). “If the statute imposes
a disability for the purposes of punishment—that is, to reprimand the wrongdoer, to deter
others, etc., it has been considered penal.” Id. However, a statute is intended as a civil
remedy if it imposes a disability to further a legitimate governmental purpose. Id. “The
Court has recognized that any statute decreeing some adversity as a consequence of
certain conduct may have both a penal and a nonpenal effect. The controlling nature of
such statutes normally depends on the evident purpose of the legislature.” Id. When
giving effect to the Legislature’s intent, we first focus on the statute’s plain language.
5
People v Cole, 491 Mich 324, 330; 817 NW2d 497 (2012) (citations and quotation marks
omitted).
Cole, 491 Mich at 336-337, concluded that imposing lifetime electronic
monitoring for a conviction of first or second-degree criminal sexual conduct constituted
a criminal punishment.2 In support of that conclusion, Cole noted that the Legislature
included monitoring as part of the sentence. Id. at 336 (“The use of the directive ‘shall
sentence’ indicated that the Legislature intended to make lifetime electronic monitoring
part of the sentence itself.”) (emphasis added). While the crime victim’s rights
assessment is imposed at the time of sentencing, MCL 769.1k(1)(iv), in contrast to Cole,
the Legislature did not expressly manifest an explicit intent to make the assessment part
of the sentence itself. Rather, the Crime Victim’s Rights Act statutory scheme leads to
the opposite conclusion—that the crime victim’s rights assessment does not have a label,
function, or purpose that is consistent with a criminal sentence or penalty.
Specifically, nothing on the face of the Crime Victim’s Rights Act expressly
indicates that the Legislature intended the crime victim’s rights assessment to be a
criminal punishment. However, the use of the label “assessment,” as opposed to “fine”
or “penalty,” is instructive. The Legislature is aware that a fine is generally a criminal
punishment. Indeed, the Michigan Penal Code defines “crime” as an act or omission
2
While Cole was not an ex post facto case, and instead considered whether due process
mandates that a criminal defendant is informed of the lifetime electronic monitoring
requirement before pleading guilty or no contest for criminal sexual conduct, Cole, 491
Mich at 327, Cole’s analysis is relevant to this case because the analysis used to
determine whether the law imposes a criminal penalty is the same. Id. at 334, citing
Smith, 538 US at 92.
6
forbidden by law that is punishable upon conviction by a “[f]ine not designated a civil
fine.” MCL 750.5. Accordingly the Legislature’s decision to use the term “assess” as
opposed to “fine” or another similar term within the Crime Victim’s Rights Act implies a
nonpunitive intent.
While labels alone do not determine whether a statutory provision is a criminal
punishment or civil remedy, Smith, 538 US at 94 (“[t]he location and labels of a statutory
provision do not by themselves transform a civil remedy into a criminal one”), the
function of the crime victim’s rights assessment is true to its label as an assessment.
“Assessment” is defined as “the action or instance of assessing,” and “assess” is defined
as “to impose according to an established rate.” Merriam-Webster’s Collegiate
Dictionary (8th ed). On the other hand, a criminal fine is generally imposed as a
punishment in response to criminal conduct. See Southern Union Co v United States, 567
US ___, ___; 132 S Ct 2344, 2350; 183 L Ed 2d 318 (2012) (explaining that “[c]riminal
fines . . . are penalties inflicted by the sovereign for the commission of offenses”)
(emphasis added). Therefore, the terms “fine” and “assessment” have different and
distinct meanings: criminal fines are generally responsive to the conduct which they
intend to punish, while assessments are imposed in accordance with a predetermined flat
rate.
Specifically, the crime victim’s rights assessment levies a flat fee against a
convicted criminal defendant, irrespective of the number or severity of the charges. The
monetary value of the assessment depends only on whether the crimes constituted a
misdemeanor or a felony, and whether the defendant is a juvenile. MCL 780.905.
Moreover, MCL 780.905(2) imposes only one assessment per criminal case, contrary to
7
the manner in which punitive fines are usually imposed, i.e., where the amount of the fine
generally depends on the specific facts of the case. Southern Union Co, 567 US at ___;
132 S Ct at 2350. Therefore the crime victim’s rights assessment does not have the label
of, nor does it function like, a criminal punishment.
Additionally, the crime victim’s rights assessment has a nonpunitive purpose: to
provide funding for crime victim’s services. The Legislature made it clear that funding
crime victim’s services is the primary goal of the Crime Victim’s Rights Act.
Specifically, MCL 780.907(2), which governs the disbursement of the Crime Victim’s
Rights Fund monies, states that the Department of Community Health “shall make the
implementation of crime victim’s rights” a priority. Further, MCL 780.908, which
governs the use of disbursed funds, requires a court, department, or local agency
receiving a distribution under the act to use the distribution to “maintain or enhance crime
victim’s rights services.” Only after the crime victim’s rights services have been paid for
may money from the fund be used for other purposes under the Crime Victim’s Rights
Act. See MCL 780.904(2) (implying that the fund first must disburse the amount that the
Crime Victims’ Services Commission determined was necessary to fund crime victim’s
services).
Although the crime victim’s rights assessment places a burden on convicted
criminal defendants, the assessment’s purpose is not to punish but to fund programs that
support crime victims. See Trop, 356 US at 96 (explaining that while a statute may have
both penal and nonpenal attributes, the “controlling nature” depends on the Legislature’s
purpose). As the Legislature envisioned, the crime victim’s rights assessment primarily
provides funding for crime victim’s services. Included among the services supported by
8
the fund are “comprehensive mandatory rights of crime victims to participate in and be
notified of all pertinent proceedings in the criminal justice process, compensation for
crime related losses, and training of advocates to better assist victims.” Michigan
Department of Community Health, Crime Victims Services Commission Annual Report
FY 2012 (2012), p 5. The crime victim’s rights assessment, therefore, funds a variety of
programs that benefit the health and safety of crime victims and other community
members.
Finally, more generally, the crime victim’s rights assessment is an exercise of the
Legislature’s power to protect the health and safety of Michigan citizens, indicating that
it is a civil remedy. In this regard we find the facts of Smith instructive. Smith, 538 US
at 93, considered whether the Alaskan Sex Offender Registry Act imposes a criminal
punishment or a civil remedy. The United States Supreme Court held that the Alaskan
Legislature expressed a civil objective in the act itself, explaining that “ ‘[n]othing on the
face of the statute suggests that the legislature sought to create anything other than a
civil . . . scheme designed to protect the public from harm.’ ” Id., citing Kansas v
Hendricks, 521 US 346, 361; 117 S Ct 2072; 138 L Ed 2d 501 (1997). The Court further
explained that “where a legislative restriction ‘is an incident of the State’s power to
protect the health and safety of its citizens,’ it will be considered as ‘evidencing an intent
to exercise that regulatory power, and not a purpose to add to the punishment.’ ” Smith,
538 US at 93-94, quoting Flemming v Nestor, 363 US 603, 616; 80 S Ct 1367; 4 L Ed 2d
1435 (1960). The Court also determined that the goal was “plainly more remedial than
punitive” and “even if the objective of the Act is consistent with the purposes of the
Alaska criminal justice system, the State’s pursuit of it in a regulatory scheme does not
9
make the objective punitive.” Smith, 538 US at 94 (citations and quotation marks
omitted).
Like Smith’s consideration of the Alaskan Legislature’s purpose, we conclude that
the Michigan Legislature’s goal in crafting the Crime Victim’s Rights Act was to
promote public safety and welfare by providing notification and support services to crime
victims. And, even if the assessment in some ways resembles a criminal fine, as Smith
explained, the Crime Victim’s Rights Act’s regulatory purpose to protect the health and
safety of Michigan crime victims controls over any punitive effect the act may otherwise
have. Therefore, we hold that the Legislature intended the crime victim’s rights
assessment to be a civil remedy.
D. WHETHER THE CRIME VICTIM’S RIGHTS ASSESSMENT IS PUNITIVE IN
PURPOSE OR EFFECT
Because we conclude that the Legislature intended that the crime victim’s rights
assessment be civil in nature, we must determine whether it is nevertheless “so punitive
either in purpose or effect as to negate the State’s intention to deem it civil.” Smith, 538
US at 92 (citations and quotation marks omitted). When analyzing whether an act has the
purpose or effect of being punitive, courts consider seven factors noted in Kennedy v
Mendoza-Martinez, 372 US 144, 168-169; 83 S Ct 554; 9 L Ed 2d 664 (1963). Smith,
538 US at 97. The factors as considered in Mendoza-Martinez are:
[1] Whether the sanction involves an affirmative disability or
restraint, [2] whether it has historically been regarded as a punishment, [3]
whether it comes into play only on a finding of scienter, [4] whether its
operation will promote the traditional aims of punishment—retribution and
deterrence, [5] whether the behavior to which it applies is already a crime,
[6] whether an alternative purpose to which it may rationally be connected
10
is assignable for it, and [7] whether it appears excessive in relation to the
alternative purpose assigned. [Mendoza-Martinez, 372 US at 168-169.]
The factors are “neither exhaustive nor dispositive . . . but useful guideposts.” Id.(citations and quotation marks omitted). Further, courts will “reject the legislature’s
manifest intent [to impose a civil remedy] only where a party challenging the statute
provides the clearest proof that the statutory scheme is so punitive either in purpose or
effect to negate the . . . intention to deem it civil.” Hendricks, 521 US at 361 (citations
and quotation marks omitted). See, also, Smith, 538 US at 105.
Turning to the Mendoza-Martinez factors, the first factor weighs against finding a
punitive purpose or effect because the crime victim’s rights assessment does not impose
an affirmative disability or restraint. The relevant inquiry when determining whether a
law imposes an affirmative disability or restraint is “how the effects of the [a]ct are felt
by those subject to it.” Smith, 538 US at 99-100. “If the disability or restraint is minor
and indirect, its effects are unlikely to be punitive.” Id. at 100. The assessment—a
maximum of $130—is “ ‘certainly nothing approaching the “infamous punishment” of
imprisonment.’ ” Hudson, 522 US at 104, quoting Flemming, 363 US at 617. See, also,
Smith, 538 US at 100 (“The act imposes no physical restraint, and so does not resemble
the punishment of imprisonment, which is the paradigmatic affirmative disability or
restraint.”) (citation omitted). Although the crime victim’s rights assessment might have
some punitive effects on defendants, to hold that any governmental regulation that has
indirect punitive effects constitutes a punishment would undermine the government’s
ability to engage in effective regulation. Smith, 538 US at 102, quoting Hudson, 522 US
at 105 (stating that “[t]o hold that the mere presence of a deterrent purpose renders such
11
sanctions ‘criminal’ . . . would severely undermine the Government’s ability to engage in
effective regulation,” and explaining that many government programs may deter crimes
without imposing a punishment).
Likewise, the second factor does not weigh in favor of the crime victim’s rights
assessment being punitive in purpose or effect because the crime victim’s rights
assessment has not been regarded in our history and traditions as a form of criminal
punishment. While, as explained earlier, criminal fines have been regarded as
punishment, the crime victim’s rights assessment does not share the characteristics of
punitive fines because it imposes a flat fee irrespective of the underlying criminal
conduct. Additionally, charging convicted criminal defendants a fee in order to pay for
victim’s services is a relatively new concept that was first introduced by 1989 PA 196,
which created the Criminal Assessments Commission, the predecessor of the Crime
Victim Services Commission, MCL 780.901 to MCL 780.911. The general nature of the
assessment’s legislative scheme has not changed and the aim of the assessment has
always been to provide crime victim’s services. Therefore, the assessment is not now,
nor has it ever been, regarded as a punishment.
The fourth factor also fails to indicate a punitive purpose or effect because the
crime victim’s rights assessment does not promote the traditional aims of punishment:
retribution and deterrence. Hendricks, 521 US at 361-362. The assessment is not
retributive because it does not consider the underlying factual nature of the crimes
committed nor the number of convictions in determining the fee assessed. And, while the
fees assessed under the act depend on the type of conviction or adjudication—i.e., felony,
misdemeanor, or juvenile—that distinction is reasonably related to the goal of requiring
12
convicted criminal defendants to bear the cost of crime victim’s services. Cf. Smith, 538
US at 102 (explaining that “[t]he broad categories [used to distinguish classes of
offenders in Alaska’s Sex Offender Registration Act] and the corresponding length of the
reporting requirement, are reasonably related to the danger of recidivism, and this is
consistent with the regulatory objective”). Nor can the act be said to promote the aims of
deterrence, given that any deterrent effect is minimal. The small fee imposed by the
assessment is unlikely to have a significant deterrent effect in light of the other potential
consequences of criminal punishment, such as additional and greater fines and costs and
incarceration.
The sixth factor also does not imply a punitive purpose or effect because the crime
victim’s rights assessment has a rational connection to a nonpunitive purpose. It is “most
significant” that while the assessment might have some punitive aspects, it serves
“important nonpunitive goals.” United States v Ursery, 518 US 267, 290; 116 S Ct 2135;
135 L Ed 2d 549 (1996). The notion of crime victim’s rights is of such importance that it
is mandated by the Michigan Constitution. Const 1963, art 1, § 24. As previously
discussed, the goal of the Crime Victim’s Rights Fund, and, therefore, of the crime
victim’s rights assessment, is to fund crime victim’s services to help protect crime
victim’s rights. Indeed, the Crime Victim’s Rights Fund provides funding for mandatory
services required by art 1, § 24 of the Michigan Constitution and other services mandated
by crime victim’s rights legislation.3 Any punitive effects are incidental to the goal of
3
The Crime Victim’s Rights Fund provides funding to implement and support services
required by the Crime Victim’s Rights Act, 1985 PA 87, for costs associated with
supporting the Michigan Crime Victim Notification Network and its automated victim
13
funding crime victim’s services, which is rationally connected to the assessment itself.
The decision to place the burden of funding the Crime Victim’s Rights Fund on those
who are convicted of a crime or adjudicated and on those juveniles who are responsible
for a crime is simply a rational policy decision.
Finally, the seventh factor also fails to show a punitive purpose or effect because
the crime victim’s rights assessment is not excessive with respect to its purpose. As
noted, each criminal defendant is subject to the assessment, irrespective of the number of
convictions, and the cost imposed is relatively low in relation to other fines imposed
within the criminal process. Although the increase in the assessment amount may impose
a hardship on some, the assessment is set at the rate that the Crime Victims’ Services
Commission determines is necessary to adequately fund the crime victim’s services
programs. MCL 780.903(b). Because of the operation of inflation and other unavoidable
cost increases, it is necessary that the amount of the crime victim’s rights assessment be
periodically increased in order to fund the same level of services. The increased
assessment, therefore, was not the result of a policy choice to impose a harsher
punishment on defendants for their conduct, but instead was necessary in order to provide
the services mandated under the Crime Victim’s Rights Act. The amount imposed
ensures that there is adequate funding to provide the services required by law. There is
no evidence that the assessment is excessive in relation to its purpose.
notification system, fulfilling the notification requirements of Const 1963, art 1, § 24, and
crime victim compensation pursuant to 1976 PA 223. See Crime Victims Services
Commission Annual Report FY 2012, pp 3-8.
14
Smith found the remaining two Mendoza-Martinez factors—the third, whether the
crime victim’s rights assessment only comes into play on a finding of scienter and the
fifth, whether the behavior the crime victim’s rights fund applies to is already a crime—
generally unhelpful in its ex post facto analysis, and we agree.4 The underlying conduct
of the defendant will always constitute a crime, but, as explained, the assessment is not
responsive to that specific conduct. Instead, the assessment only applies a flat fee
determined by the level of criminal conduct—i.e., whether the underlying conviction
constitutes a misdemeanor or felony. Likewise, a finding of scienter is unhelpful because
regardless whether the underlying conduct constitutes a strict liability felony (requiring
no criminal intent) or a crime requiring the most depraved criminal intent (such as
premeditated murder) the assessment treats the conduct exactly the same by imposing a
flat fee. Therefore, both of these factors carry little weight in our analysis.
Overall, when considering the Mendoza-Martinez factors as analyzed in Smith,
there is not the “clearest proof” that the crime victim’s rights assessment is “so punitive
either in purpose or effect as to negate [the State’s] intention to deem it civil.” Smith, 538
US at 92 (citations and quotation marks omitted).5
4
Smith found the factors unhelpful because Alaska’s Sex Offender Registration Act was
designed to address criminal recidivism, and, therefore, the underlying conduct must
always be a crime and involve scienter. Smith, 538 US at 94.
5
We acknowledge that several federal courts of appeal have concluded that a retroactive
assessment of an increased “special assessment” similar to the crime victim’s rights
assessment at issue in this case constitutes a violation of the Ex Post Facto Clause. See,
e.g., United States v Prather, 205 F3d 1265, 1272 (CA 11, 2000); United States v
Labeille-Soto, 163 F3d 93, 101-102 (CA 2, 1998). We decline to follow those cases
because the parties in those cases agreed that imposition of the increased assessment
violated the Ex Post Facto Clause. Prather, 205 F3d at 1272 (stating that both parties
15
IV. CONCLUSION
We conclude that an increase in the crime victim’s rights assessment does not
violate the bar on ex post facto laws because the Legislature’s intent in enacting the
assessment was civil in nature. Additionally, the purpose and effect of the assessment is
not so punitive as to negate the Legislature’s civil intent. Therefore, we affirm the
judgment of the Court of Appeals that the increase in the crime victim’s rights assessment
does not violate the Ex Post Facto Clauses of the Michigan and United States
Constitutions.
Michael F. Cavanagh
Robert P. Young, Jr.
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
agreed that the district court had erred by levying a special assessment of $100 per count
against Prather because the Ex Post Facto Clause of the Constitution forbids retroactive
application of criminal sanctions); Labeille-Soto, 163 F3d at 101-102 (“The government,
which sat mute when the court imposed the $100 assessment at the sentencing hearing,
concedes the correctness of this [Ex Post Facto] challenge.”).
Later cases reaching the same conclusion simply cite Prather and Labeille-Soto
for the proposition that retroactively applying the increased assessment would violate the
Ex Post Facto Clause without engaging in any analysis. See, e.g., United States v Jones,
489 F3d 243, 254 n 5 (CA 6, 2007). Likewise, state courts addressing similar issues as
those presented in this case that have found ex post facto violations have relied on
concessions or simply stated that conclusion with little supporting analysis. See, e.g.,
People v Sullivan, 6 AD3d 1175, 1175-1176; 775 NYS2d 696 (2004); Taylor v State, 586
So 2d 964, 965 (Ala Crim App, 1991). Accordingly, we find these cases unpersuasive
and unhelpful.
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