How a Change in a Maryland Health Statute Gave One Man a Winning Ex Post Facto Violation Argument

“Ex post facto” is a phrase that often gets overused… and misused. Many people may recall learning about ex post facto laws in junior high or high school civics and government classes, but may not really understand what the phrase truly means. Unskilled “jailhouse lawyers” often apply it incorrectly in appeals they file. On the other hand, a valid ex post facto argument, when in the hands of a skillful Maryland criminal defense attorney, can be a powerful constitutional claim in your criminal case.

To get an idea what a valid ex post facto situation looks like, there’s the case of E.H. from Prince George’s County. In 2011, E.H. was convicted of first-degree assault and weapons charges. He received a sentence of 25 years.

Under Section 8-507 of Maryland’s Health General Article, the inmate had, at that time, an “essentially unrestricted right” to seek commitment to the Department of Health for substance abuse treatment. In December 2017, E.H. applied for such a commitment. The judge denied the man’s request, but told him to try back in about a year. “I fully intend to grant this petition at some point,” the judge said from the bench.

So, in early 2019, E.H. tried again. The judge granted the request this time. There was, however, a problem. The state legislature had amended the terms of Section 8-507 in 2018, making prisoners convicted of crimes of violence ineligible for commitment until they become parole eligible. All of that meant that E.H. was ineligible to be accepted into Department of Health commitment until May 2024.

This, according to the Court of Special Appeals, was an example of a legitimate ex post facto violation. The state tried to argue – without success – that because the acceptance or denial of E.H.’s commitment petition would have no impact on the overall length of his entire sentence, there was no ex post facto violation. The court, however, concluded that this was not the correct criteria for deciding whether or not an ex post facto violation had occurred.

The court explained that, if a change creates a “significant risk” of increasing the prisoner’s punishment “by prolonging his term of incarceration,” then an ex post facto violation had occurred, even if the convict’s total sentence remained the same.

In this case, E.H.’s sentence was going to run 25 years regardless of whether his commitment application was accepted or denied. However, the amendments to Section 8-507 had the effect of prolonging E.H.’s time of imprisonment by five years, as he would remain in jail from 2019 to 2024 instead of in the custody of the Department of Health. This, according to the Court of Special Appeals, made E.H.’s circumstance “the quintessential ex post facto violation.”

Whether the arguments that you need to make in your defense are procedural, factual or constitutional, make sure you’re advancing those arguments in the most effective way possible. Count on the skillful criminal defense attorneys at Anthony A. Fatemi, LLC for the effective advocacy you need. Our attorneys have been helping people accused of assault in Maryland for many years and are ready to put the power of this office work for you. To learn more, contact us at 301-519-2801 or via our online form.

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