People v. Earl

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.

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 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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