Ex Post Facto Laws

Are statutes that make an act punishable as a crime when such an act was not an offense when committed. Article I, section 10, clause 1 of the Constitution provides that no state shall pass any ex post facto law; Article I, section 9, clause 3 imposes the same prohibition upon the federal government. The Supreme Court early determined that these clauses prohibit laws with retroactive effect only in the field of criminal law and do not apply to statutes dealing with civil matters. Nonetheless, retroactive laws in the civil area may under certain circumstances violate the Contract or Due Process Clauses of the Constitution. The ban on ex post facto laws operates solely as a restraint on legislative power and has no application to changes in the law made by judicial decision.

Besides preventing the enactment of laws making acts criminal that were not criminal when committed, the Ex Post Facto Clauses also render invalid the retroactive application of laws that, while not creating new offenses, aggravate the seriousness of a crime. Moreover, a statute that prescribes a greater punishment for a crime already committed violates the clauses. A law that alters the rules of evidence so as to make it substantially easier to convict a defendant is likewise prohibited by the Constitution.

— Edgar Bodenheimer

Ex post facto is a Latin term meaning “after the fact.” Article 1, Section 9, of the Constitution prohibits the federal government from passing an ex post facto law, which is one that makes an action a crime even though it was not a crime when it was committed, or increases the penalty for a crime after it was committed, or changes the rules of evidence to make it easier to convict someone. Similarly, Article 1, Section 10, provides that no state shall pass an ex post facto law. The Constitution protects individuals by denying to the Congress or state legislatures the power to punish people by passing ex post facto laws.

[Latin, "After-the-fact" laws.] Laws that provide for the infliction of punishment upon a person for some prior act that, at the time it was committed, was not illegal.

Ex post facto laws retroactively change the rules of evidence in a criminal case, retroactively alter the definition of a crime, retroactively increase the punishment for a criminal act, or punish conduct that was legal when committed. They are prohibited by Article I, Section 10, Clause 1, of the U.S. Constitution. An ex post facto law is considered a hallmark of tyranny because it deprives people of a sense of what behavior will or will not be punished and allows for random punishment at the whim of those in power.

The prohibition of ex post facto laws was an imperative in colonial America. The Framers of the Constitution understood the importance of such a prohibition, considering the historical tendency of government leaders to abuse power. As Alexander Hamilton observed, "[I]t is easy for men … to be zealous advocates for the rights of the citizens when they are invaded by others, and as soon as they have it in their power, to become the invaders themselves." The desire to thwart abuses of power also inspired the Framers of the Constitution to prohibit bills of attainder, which are laws that inflict punishment on named individuals or on easily ascertainable members of a group without the benefit of a trial. Both ex post facto laws and bills of attainder deprive those subject to them of due process of law — that is, of notice and an opportunity to be heard before being deprived of life, liberty, or property.

The Constitution did not provide a definition for ex post facto laws, so the courts have been forced to attach meaning to the concept. In Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L. Ed. 648 (1798), the U.S. Supreme Court provided a first and lasting interpretation of the Ex Post Facto Clause. The focus of the Calder case was a May 1795 resolution of the Connecticut legislature that specifically set aside a March 1793 probate court decree. The resolution allowed the defeated party in the probate contest a new hearing on the matter of the will. The Court in Calder ruled that the Connecticut resolution did not constitute an ex post facto law because it did not affect a vested property right. In other words, no one had complete ownership of the property in the will, so depriving persons of the property did not violate the ex post facto clause. The Court went on to list situations that it believed the clause did address. It opined that an ex post facto law was one that rendered new or additional criminal punishment for a prior act or changed the rules of evidence in a criminal case.

In Calder, the Court's emphasis on criminal laws seemed to exclude civil laws from a definition of ex post facto — that is, it implied that if a statute did not inflict criminal punishment, it did not violate the Ex Post Facto Clause. Twelve years later, the U.S. Supreme Court held that a civil statute that revoked land grants to purchasers violated the Ex Post Facto Clause (Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 3 L. Ed. 162 [1810]). However, in 1854, faced with another opportunity to define ex post facto, the Court retreated from Fletcher and limited the prohibition to retroactively applied criminal laws (Carpenter v. Pennsylvania, 58 U.S. (17 How.) 456, 15 L. Ed. 127 [1854]).

In Carpenter, the Court noted that the esteemed legal theorist Sir William Blackstone (1723-80) had described ex post facto in criminal terms. According to Blackstone, an ex post facto law has been created when, "after an action (indifferent in itself) is committed, the legislature then for the first time declares it to have been a crime, and inflicts punishment upon the person who has committed it," 1 Sir William Blackstone, Commentaries on the Laws of England 45-46 (1765). Using this as the understanding of ex post facto in 1789, the Court reasoned that it must have been the Framers' intent to limit the clause to criminal laws. However, notes from the Constitutional Convention indicate that the clause should cover the retroactive application of all laws, including civil laws. The only exception for ex post facto laws discussed at the Constitutional Convention was in case of "necessity and public safety" (Farrand, 1937).

Since the Carpenter ruling, the Supreme Court has struck down some retroactive civil laws, but only those intended to have a punitive intent. This construction of the Ex Post Facto Clause has done little more than raise another question: What is punitive intent? The answer lies, invariably, with the U.S. Supreme Court.

The Court has at times agreed unanimously on ex post facto arguments, but it has also split over the issue. In California Department of Corrections v. Morales, 514 U.S. 499, 115 S. Ct. 1597, 131 L. Ed. 2d 588 (1995), Jose Ramon Morales challenged a 1981 amendment (Cal. Penal Code Ann. Sec. 3041 [West 1982]) to California's parole statute that allowed the California Board of Prison Terms to defer for three years the parole hearings of multiple murderers (1977 Cal. Stats. ch. 165, sec. 46). Before the amendment, California law stated that a prisoner eligible for parole was entitled to a parole hearing every year. Morales had two convictions for murder, his second conviction coming in 1980, one year before passage of the amendment.

In 1989, the board denied parole to Morales and scheduled Morales's next hearing for 1992. Morales filed suit, arguing that the amendment was retroactive punishment and therefore unconstitutional. The district court disagreed. However, on appeal, the U.S. Court of Appeals for the Ninth Circuit reversed that decision, holding that the law effectively increased punishment for Morales, thus offending the Ex Post Facto Clause.

By a vote of 7-2, the U.S. Supreme Court reversed the Ninth Circuit. Justice Clarence Thomas, writing for the majority, noted that the law only "introduced the possibility" that a convict would receive fewer parole hearings and serve more prison time than he or she expected. The board was required to formally find "no reasonable probability … for parole in the interim period" before it could defer a parole hearing for three years. According to the majority in Morales, the evident focus of the California law was " ‘to relieve the [board] from the costly and time consuming responsibility of scheduling parole hearings' " (quoting In re Jackson, 39 Cal. 3d at 473, 216 Cal. Rptr. at 765, 703 P.2d at 106 [quoting legislative history]). The majority noted further that any assertion that the law might actually increase incarceration for those affected by it was largely "speculative."

Justices John Paul Stevens and David H. Souter dissented. The dissent warned of legislative overreaching, arguing that "the concerns that animate the Ex Post Facto Clause demand enhanced, and not (as the majority seems to believe) reduced, judicial scrutiny." To Stevens and Souter, the majority's own opinion was speculative, and "not only unpersuasive, but actually perverse."

The debate over ex post facto interpretation continues. Critics of contemporary ex post facto interpretation argue that legislatures circumvent the ex post facto prohibition by casting in civil terms laws that provide additional punishment for convicted criminals. For example, they have passed laws that require certain convicted sex offenders to register with local authorities and thus make public their continued presence in a community. By virtue of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C.A. § 14071(a)(1)(A)), such laws are required of states that wish to receive certain antidrug funds.

Sex offender registration laws, or community notification laws, do not provide for retroactive additional incarceration. They do, however, provide additional consequences for a sex offender who was not, at the time the offense was committed, subject to such a constraint. Courts have held that such laws do not run afoul of the Ex Post Facto Clause, because, in part, the requirement is defined as civil regulation; that is, the law does not require extra prison time or exact an excessive fine. Also, such statutes are enacted for the protection of the public, which is an exception to ex post facto prohibition. Dissenters maintain that sex offender registration laws inflict additional punishment and therefore violate the Ex Post Facto Clause. Only one state, Alaska, has found such a law unconstitutional (Rowe v. Burton, 884 F. Supp. 1372 [D. Alaska 1994]).

The line between punitive measure and civil regulation can be thin. So long as legislatures pass laws that provide extra punishment for, or regulation of, conduct already committed, there will be arguments that the government is abusing its power in violation of the Ex Post Facto Clause.

See: Fletcher v. Peck.

A law that makes illegal an act that was legal when committed, increases the penalties for an infraction after it has been committed, or changes the rules of evidence to make conviction easier. The Constitution prohibits the making of ex post facto law. (See ex post facto.)

"Ex post facto" redirects here. For the episode of Star Trek: Voyager, see Ex Post Facto (Voyager episode).

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An ex post facto law (from the Latin for "from something done afterward") or retrospective law, is a law that retrospectively changes the legal consequences of acts committed or the legal status of facts and relationships that existed prior to the enactment of the law. In reference to criminal law, it may criminalize actions that were legal when committed; or it may aggravate a crime by bringing it into a more severe category than it was in at the time it was committed; or it may change or increase the punishment prescribed for a crime, such as by adding new penalties or extending terms; or it may alter the rules of evidence in order to make conviction for a crime more likely than it would have been at the time of the action for which a defendant is prosecuted. Conversely, a form of ex post facto law commonly known as an amnesty law may decriminalize certain acts or alleviate possible punishments (for example by replacing the death sentence with life-long imprisonment) retrospectively.

A law may have an ex post facto effect without being technically ex post facto. For example, when a law repeals a previous law, the repealed legislation no longer applies to the situations it once did, even if such situations arose before the law was repealed. The principle of prohibiting the continued application of these kinds of laws is also known as Nullum crimen, nulla poena sine praevia lege poenali.

Generally speaking, ex post facto laws are seen as a violation of the rule of law as it applies in a free and democratic society. Most common law jurisdictions do not permit retrospective legislation, though some have suggested that judge-made law is retrospective as a new precedent applies to events that occurred prior to the judicial decision. In some nations that follow the Westminster system of government, such as the United Kingdom, ex post facto laws are technically possible as the doctrine of parliamentary supremacy allows parliament to pass any law it wishes. However, in a nation with an entrenched bill of rights or a written constitution, ex post facto legislation may be prohibited.

Ex post facto is the uncomplimentary characterization of law and legislation that applies retrospectively (i.e. "from a thing done afterward").

Ex post facto laws around the world

Australia

Australia has no strong constitutional prohibition on ex post facto laws, although narrowly retrospective laws might violate the constitutional separation of powers principle. Australian courts normally interpret statutes with a strong presumption that they do not apply retrospectively.

Retrospective laws designed to prosecute what was perceived to have been a blatantly unethical means of tax avoidance were passed in the early 1980s by the Fraser government (see Bottom of the harbour tax avoidance).

Canada

Ex post facto criminal laws are constitutionally prohibited by section 11(g) of the Charter of Rights and Freedoms. However, it is possible that the Parliament of Canada could create such a law by using the authority found in section 33 of the Charter (commonly referred to as the notwithstanding clause) as this permits legislation to override certain provisions of the Charter, including section 11. Also, if the punishment for a crime has varied between the time the crime was committed and the time of a conviction, the convicted person is entitled to the lesser punishment.

Finland

Finland has used ex post facto legislature in 1945, after the World War Two on the trial of the war responsibilities in Finland. A law which made the pre-war politics criminal was passed in order to get the leaders nominated by Stalin sentenced. Generally ex post facto jurisprudence is considered violating the Romano-German judicial system, and are banned by the Constitution of Finland.

France

Any ex post facto criminal law may only be applied if it benefits the accused person (for instance, if weaker sentences are now applicable but weren't previously applicable); otherwise, prohibited by the Declaration of the Rights of Man and of the Citizen.

Germany

Article 103 of the German basic law requires that an act may only be punished if it has already been punishable by law at the time it was committed (specifically: by written law, Germany following civil law). The Nuremberg Trials and other post-World War II laws that prosecuted former members of the Nazi party are often accused of being ex post facto laws.

Indonesia

Article 28I of the Indonesian constitution prohibits trying citizens under retrospective laws in any circumstance. This was tested in 2004 when the conviction of one of the Bali bombers under retrospective anti-terrorist legislation was quashed.

Iran

Ex post facto laws, in all contexts, are prohibited by Article 169 (Chapter 11) of the Constitution of Iran.

Italy

Article 25, paragraph 2, of the Italian Constitution establishing that "nobody can be punished but according to a law come into force before the deed was committed" prohibits indictment pursuant a retrospective laws. Article 11 of preliminary provisions to the Italian Civil Code and Article 3, paragraph 1, of the Statute of taxpayer's rights prohibit retrospective laws on principle, but such provisions can be derogated by acts having force of the ordinary law.

Ireland

The imposition of retrospective criminal sanctions is prohibited by Article 15.5.1° of the Constitution of Ireland. Retrospective changes of the civil law have also been found to violate the constitution when they would have resulted in the loss in a right to damages before the courts, the Irish Supreme Court having found that such a right is a constitutionally protected property right.

Japan

Article 39 of the Constitution of Japan prohibits the retrospective application of laws. Article 6 of Criminal Code of Japan further state that if a new law comes into force after the deed was committed, the lighter punishment must be given.

Norway

Article 97 of the Norwegian constitution prohibits any law to be given retrospective effect.

Philippines

The 1987 Philippine Constitution categorically prohibits the passing of any ex post facto law. Article III (Bill of Rights), Section 22 specifically states that:

• No ex post facto law or bill of attainder shall be enacted.

South Africa

Prohibited in criminal law by clause 35.(3)(l) of the Constitution of the Republic of South Africa; an exception exists for offenses which were illegal under international law at the time of commission.

Sweden

Retrospective penal sanctions and other retrospective legal effects of criminal acts due the State are prohibited by chapter 2, article 22, point 5 of the Instrument of Government (Regeringsformen). Retrospective taxes or charges aren't prohibited but can only have retrospective effect reaching back to when a new tax bill was proposed by the government, the retrospective effect thus reaches from that time until the bill is passed by the parliament.

Turkey

Ex post facto punishment is prohibited by Article 38 of the Constitution of Turkey.

United Kingdom

Ex post facto laws are strictly frowned upon, but are permitted by virtue of the doctrine of parliamentary sovereignty. Historically, all acts of Parliament before 1793 were ex postfacto legislation, inasmuch as their date of effect was the first day of the session in which they were passed. This situation was rectified by the Acts of Parliament (Commencement) Act 1793.

Ex post facto criminal laws are prohibited by Article 7 of the European Convention on Human Rights, to which the United Kingdom is a signatory, but parliamentary sovereignty takes priority even over this.

United States

Ex post facto laws are prohibited in federal law by Article I, section 9 of the U.S. Constitution and in state law by section 10. Over the years, when deciding ex post facto cases, the United States Supreme Court has referred repeatedly to its ruling in the Calder v. Bull case of 1798, in which Justice Chase established four categories of unconstitutional ex post facto laws.

However, not all laws with ex post facto effects have been found to be unconstitutional. One current U.S. law that has an ex post facto effect is the Adam Walsh Child Protection and Safety Act of 2006. This law, which imposes new registration requirements on convicted sex offenders, gives the U.S. Attorney General the authority to apply the law retrospectively.^[1] The U.S. Supreme Court ruled in Smith v. Doe (2003) that forcing sex offenders to register their whereabouts at regular intervals and the posting of personal information about them on the Internet does not violate the constitutional prohibition against ex post facto laws, because compulsory registration of offenders who completed their sentences before new laws requiring compliance went into effect does not constitute a punishment.^[2]

Another example is the so-called Lautenburg law where firearms prohibitions were imposed on those convicted of misdemeanor domestic violence offenses and subjects of restraining orders (which do not require a criminal conviction). These individuals can now be sentenced to up to 10 years in a federal prison for possession of a firearm, regardless of whether or not the weapon was legally possessed at the time the law was passed. Among those that it is claimed the law has affected is a father who was convicted of a misdemeanor of child abuse despite claims that he had only spanked his child, since anyone convicted of child abuse now faces a lifetime firearms prohibition. The law has been legally upheld because it is considered regulatory, not punitive - it is a status offense.

See also: Fourteenth Amendment to the United States Constitution, Fourteenth Amendment, Bouie v. City of Columbia, and Rogers v. Tennessee

European Convention on Human Rights

Most European nations, and all European Union nations, are bound by the European Convention on Human Rights. Article 7 of the convention prohibits ex post facto criminal laws subject to two exceptions. It also prohibits a heavier penalty being imposed than was applicable at the time when an act was committed. The exceptions are:

• Acts illegal under international law at the time of their commission.
• Acts criminal according to "the general principles of law recognized by civilized nations".

Quotations

• "The sentiment that ex post facto laws are against natural right, is so strong in the United States, that few, if any, of the State constitutions have failed to proscribe them. The federal constitution indeed interdicts them in criminal cases only; but they are equally unjust in civil as in criminal cases, and the omission of a caution which would have been right, does not justify the doing what is wrong. Nor ought it to be presumed that the legislature meant to use a phrase in an unjustifiable sense, if by rules of construction it can be ever strained to what is just." (Thomas Jefferson, Letter to Isaac McPherson, August 13th, 1813)

Grammatical form and usage

To students of Latin, this phrase doesn't appear to make sense, as it consists of the preposition ex, the preposition post, and a noun with the wrong grammatical case to agree with post. Indeed, the Latin for this phrase is actually two words, ex postfacto, literally, out of a postfactum (an after-deed), or more naturally, from a law passed afterward.

Therefore, ex post facto or ex postfacto is natively an adverbial phrase, a usage demonstrated by the sentence He was convicted ex post facto (i.e., from a law passed after his crime). The law itself would rightfully be a postfactum law (lex postfacta); nevertheless, despite its redundant or circular nature, the phrase an ex post facto law is used.

References

1. ^ Library of Congress text of H.R.4472.
2. ^ Ex Post Facto Laws.

For link number four, please click on "Text of Administration's Proposed Intelligence Authorization Act for FY 2008" and scroll down to page 195 in the PDF.

See also

• Nulla poena sine lege - the principle that no one may be punished for an act which isn't against the law.

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