Whether the Ex Post Facto Clause protects against the retroactive removal of a substantial sentencing benefit that is conferred after the date of offense, or whether courts are limited to comparing the new law against the law in place at the time of offense

This Court’s decisions establish a two -factor test for determining an ex post facto violation: (1) whether the statute is being retroactively applied to conduct before its enactment, and (2) whether the statute has a substantial punitive effect on the person complaining of the new law. Weaver v. Graham , 450 U.S. 24, 29 (1981). Typically, an analysis of th e second factor involves evaluating the new law against the law in place at the time of the person’s offenses. See id. at 30. This is because, most often, that law was the one actively governing the person’s sentence at the time of the retroactive change . Krug’s case presents a s omewhat different scenario. In 1974, he was given a life sentence for crimes committed in 1973 with a mandatory minimum of 20 years. At the time of Krug’s offenses and sentence, p arole in New Jersey was governed by the 1948 Parole Act. Five years into Krug’s sentence, however, New Jersey enacted the 1979 Parole Act. That act completely repealed the 1948 Act, established an entirely new regime, and was expressly made applicable to all current New Jersey inmates. When Krug had his firs t two parole hearings in 1994 and 199 5, they were evaluated under th e 1979 A ct. In 1997, New Jersey re visited its parole laws once more and enacted substantial changes to make them more severe. The substantive changes were not applied retroactively, except for one: the 1997 Act greatly expanded the record on which the Parole Board could deny parole at a subsequent hearing following an initial denial . After th at change, all inmates, including pre -1997 ii inmates like Krug , began having their subsequent hearings evaluated under that much broader standard. Following his fifth denial in 2023, Krug challenged th is retroactive change to the 1979 Parole Act —the law that ha d been governing his parole for many decades —as violative of the Ex Post Facto Clause, and the matter made its way to the Supreme Court of New Jersey. That court, however, ultimately denied his claim based on a novel holding: because Krug’s offenses predated the 1979 Act, the operative baseline for determining an ex post facto violation was the 1948 Act—a law that had been legally defunct for nearly 50 years , whose precise terms and corresponding regulations are no t fully known today, and which was never meaningfully applied to Krug’s parole eligibility. Because Krug could not establish that the complained -of language in the 1997 Act was substantially worse than the standards of the 1948 Act, he could not establish an ex post facto violation. The question presented for this Court is: Whether the Ex Post Facto Clause protects against the retroactive removal of a substantial sentencing benefit that is conferred after the date of offense, or whether courts are limited to comparing the new law against the law in place at the time of offense.