Ex Post Facto Laws: State Powers Examined

Ex post facto laws are expressly forbidden by the United States Constitution, which prohibits both the federal government and state governments from passing such laws. The Constitution's Ex Post Facto Clause prohibits applying a new Act's higher penalties to pre-Act conduct, though it does not prohibit applying lower penalties. The Supreme Court has interpreted the federal Ex Post Facto Clause in challenges to state laws and vice versa, implying that the two clauses have the same scope. This essay will explore the topic of ex post facto laws, specifically focusing on whether a state government can pass such laws, and will reference relevant cases and clauses to provide a comprehensive understanding of this topic.

Federal and state ex post facto laws

The United States Constitution expressly forbids ex post facto laws at the federal and state levels. The federal government is prohibited from passing ex post facto laws by clause 3 of Article I, Section 9, while the states are prohibited from doing so by clause 1 of Article I, Section 10. These provisions are among the few restrictions imposed by the Constitution on both the federal and state governments before the Fourteenth Amendment.

Ex post facto laws are those that impose criminal liability or increase criminal punishment retroactively. In other words, they are laws that retroactively criminalize behaviour or make an already criminal act punishable in a way it was not when committed. For example, in the 1798 case of Calder v. Bull, the Court ruled that a legislature may violate the Ex Post Facto Clauses by:

• Criminalizing an action previously considered lawful
• Increasing the severity of an offence after it was committed
• Increasing the punishment for a crime after it was committed
• Altering the rules of evidence to make it easier to convict an offender

The Supreme Court has held that the prohibitions on ex post facto laws do not apply to crimes committed outside US jurisdiction or in violation of foreign law. The Court has also ruled that the prohibitions apply only to legislative decisions, not judicial ones. In addition, the prohibitions do not apply to civil laws that adversely affect private rights.

While the federal and state Ex Post Facto Clauses are distinct, they are sometimes treated as having the same scope, with the Supreme Court citing cases that interpret one clause in challenges involving the other.

Ex post facto and the Supreme Court

The United States Constitution expressly forbids ex post facto laws at the federal and state levels in Article 1, Section 9, Clause 3, and Article 1, Section 10, respectively. The Supreme Court has interpreted these clauses to prohibit legislatures from enacting laws that impose criminal liability or increase criminal punishment retroactively. This interpretation is supported by cases such as Calder v. Bull (1798), where Justice Samuel Chase established four categories of unconstitutional ex post facto laws.

The Supreme Court has also addressed the distinction between federal and state ex post facto clauses, citing cases that interpret one clause in challenges under the other. For example, in Peugh v. United States (2013), the Court construed the federal clause while referencing Reetz v. Michigan (1903), which interpreted the state clause. This approach suggests that the Court treats the two clauses as having similar scopes, despite their distinct applications to federal and state governments.

The Supreme Court has also clarified that the ex post facto prohibition applies only to legislative decisions and not judicial decisions. This distinction was highlighted in Rogers v. Tennessee (2000), where the Court held that the ex post facto prohibition did not apply to the appellate court's decision, characterizing it as a "routine exercise of common law decision-making." Additionally, the Court referenced Bouie v. City of Columbia (1964), which affirmed that due process prohibits the retroactive application of judicial interpretations of criminal statutes that are unexpected and indefensible.

In addition to federal and state ex post facto laws, the Supreme Court has addressed the applicability of these prohibitions to crimes committed outside the jurisdiction of the United States. In Neely v. Henkel (1901), the Court held that the constitutional prohibitions on ex post facto laws do not extend to crimes committed against the laws of a foreign country. This decision underscores the Court's interpretation of the scope and limitations of ex post facto prohibitions.

The Supreme Court's rulings on ex post facto laws have significant implications for both federal and state legislatures, ensuring that laws are not applied retroactively to criminalize behavior or increase criminal penalties. The Court's interpretations provide clarity and guidance on the constitutional boundaries of legislative power in the United States.

Ex post facto in other nations

Ex post facto laws are expressly forbidden by the United States Constitution. However, the situation differs in other nations. For example, in some nations that follow the Westminster system of government, ex post facto laws may be possible due to the doctrine of parliamentary supremacy. This includes the United Kingdom, where ex post facto laws are permitted by virtue of the doctrine of parliamentary sovereignty.

In France, when the statutory sentence for a crime is reduced or a crime is repealed, this automatically benefits people serving sentences for that crime. This was also the case during the épuration légale trials held after the 1944 liberation of France, which introduced the status of indignité nationale for Nazi collaborators as a way to avoid ex post facto law.

In India, the underlying principle of ex post facto laws has been adopted in the constitution, which states that no person shall be convicted of any offence except for a violation of a law in force at the time of the commission of the act, nor be subjected to a greater penalty than was applicable at the time.

In Sweden, retroactive penal sanctions and other retroactive legal effects of criminal acts due to the State are prohibited by Chapter 2, Section 10 of the Instrument of Government. However, retroactive taxes or charges are not prohibited, but they can have a retroactive effect reaching back to when a new tax bill was proposed by the government.

In South Africa, the Bill of Rights prohibits ex post facto criminal laws, except for acts that violated international law at the time they were committed, which may be prosecuted even if they were not illegal under national law at the time.

Australia has no strong constitutional prohibition on ex post facto laws, although retrospective laws might violate the constitutional separation of powers principle. However, legislation criminalizing certain war crimes retrospectively has been held to be constitutional.

In Spain, Article 9.3 of the Constitution guarantees the principle of non-retroactivity of punitive provisions that are not favourable to or restrictive of individual rights. Therefore, ex post facto criminal laws or any other retroactive punitive provisions are constitutionally prohibited.

Ex post facto and the legislative process

The United States Constitution expressly forbids ex post facto laws at the federal and state levels in Article 1, Section 9, Clause 3, and Article 1, Section 10, respectively. These provisions are among the few restrictions imposed on both the federal and state governments before the Fourteenth Amendment. The Ex Post Facto Clauses ban the enactment of laws that impose criminal liability or increase criminal punishment retroactively. In other words, ex post facto laws criminalize actions that were legal when done or increase the severity of punishment after an offense is committed.

The Supreme Court has interpreted the federal and state Ex Post Facto Clauses similarly, citing cases construing one clause in challenges under the other. For example, in Reetz v. Michigan (1903), the Court cited the federal clause in interpreting the state clause. The Court has also established that the prohibitions on ex post facto laws do not apply to crimes committed outside US jurisdiction against foreign laws.

Despite the constitutional ban, some state laws have been challenged as unconstitutionally ex post facto. In Cummings v. Missouri (1866), the Court held that a post-Civil War amendment to the Missouri Constitution requiring certain professionals to swear they had never been disloyal to the US violated the state Ex Post Facto Clause. The Court interpreted the clause's language, providing that 'no State' should pass any ex post facto law, to mean that the amendment was prohibited.

In another case, California Dep't of Corrections v. Morales (1995), the Court applied the Beazell standard, which states:

> [A]ny statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with a crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.

The Court upheld a California law allowing the deferral of parole hearings for prisoners convicted of multiple homicides, even though the law was enacted after the respondent-defendant Morales was imprisoned. The Court found that the law did not violate the ex post facto prohibition because it served the purpose of providing maximum deterrence and offered fair warning of the state's view on the severity of murder and the desired punishment.

In summary, the legislative process at the state level is restricted by the Ex Post Facto Clause in Article 1, Section 10, of the US Constitution, which has been interpreted by the Supreme Court to prohibit laws that impose or increase criminal liability retroactively.

Ex post facto and criminal liability

In the United States, ex post facto laws are expressly forbidden by the Constitution in Article 1, Section 9, Clause 3 (with respect to federal laws) and Article 1, Section 10 (with respect to state laws). These clauses ban legislatures from enacting laws that impose criminal liability or increase criminal punishment retroactively.

The US Supreme Court has interpreted the Ex Post Facto Clauses to apply only to laws that are criminal or penal in nature, not to civil laws. In Calder v. Bull (1798), the Court enumerated four ways in which a legislature may violate the Ex Post Facto Clauses' prohibition on imposing retroactive criminal liability:

• Making criminal an action taken before enactment of the law that was lawful when it was done
• Increasing the severity of an offense after it was committed
• Increasing the punishment for a crime after it was committed
• Altering the rules of evidence after an offense was committed so that it is easier to convict an offender

The Ex Post Facto Clauses are related to other constitutional provisions that limit retroactive government action, including the federal and state Bill of Attainder Clauses, the Contract Clause, and the Due Process Clause. The Supreme Court has held that the constitutional prohibitions on ex post facto laws do not apply to crimes committed outside the jurisdiction of the United States against the laws of a foreign country.

In some nations that follow the Westminster system of government, ex post facto laws may be possible due to the doctrine of parliamentary supremacy. For example, Australia has no strong constitutional prohibition on ex post facto laws, although narrowly retrospective laws might violate the constitutional separation of powers principle. In India, without using the expression "ex post facto law", the underlying principle has been adopted in the Indian Constitution, which states that no person shall be convicted of any offense except for a violation of a law in force at the time of the commission of the act charged as an offense.

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