Gavin Howe
Ex post facto laws are prohibited by the United States Constitution, which forbids Congress and the states from enacting any such legislation. This prohibition applies only to criminal laws and is not a general restriction on retroactive legislation. An ex post facto law is one that retroactively criminalises behaviour, increases the punishment for a crime after it has been committed, or changes the rules of procedure in a way that is detrimental to the accused. The policies underlying ex post facto laws are recognised in most developed legal systems, and the 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. The Constitution's ban on ex post facto laws is found in Article I, Sections 9 and 10, which prohibit the federal government and the states, respectively, from enacting such laws.
| Characteristics | Values |
|---|---|
| Definition | A law that imposes criminal liability or increases criminal punishment retroactively |
| Scope | Only to penal and criminal legislation and not to civil laws that affect private rights adversely |
| Applicability | Applicable to both Congress and the states |
| Prohibition | Prohibits legislatures from passing laws that retroactively criminalize behavior |
| Judicial decisions | Does not apply as strictly to judicial decisions |
| Supreme Court interpretation | Applies only to laws that are criminal or penal in nature |
| Purpose | To reprimand the wrongdoer, to deter others, etc. |
| Examples | California amended a law to defer parole hearings for prisoners convicted of multiple homicide offenses; Alaska's "Megan's Law" requires released sex offenders to register with local police and provides for public notification |
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What You'll Learn
Ex post facto laws are prohibited by the US Constitution
The US Constitution's Article I, Sections 9 and 10, ban the enactment of ex post facto laws by the Federal Government and the states, respectively. The state Ex Post Facto Clause also applies to state constitutional amendments. The 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. The Court has held that the ex post facto effect of a law cannot be evaded by giving a civil form to what is essentially criminal.
The policies underlying ex post facto laws are recognized in most developed legal systems, reflected in the civil law maxim nulla poena sine lege (“no punishment without law”), a principle rooted in Roman law. While the US Constitution prohibits ex post facto laws, it is worth noting that in England, Parliament is not prohibited from passing such laws. However, following the common-law tradition, judges in England have refused to interpret legislation retroactively unless Parliament has clearly expressed such an intention.
The prohibition on ex post facto laws serves as a safeguard against the historic practice of passing laws to punish particular individuals because of their political beliefs. It upholds the notion that individuals can only be punished according to standards of conduct that they could have known before acting. An example of an ex post facto law challenge can be seen in the case of Rogers v. Tennessee, where the Supreme Court found that ex post facto was not present as the appellate "court's decision was a routine exercise of common law decision-making that brought the law into conformity with reason and common sense."
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Ex post facto laws are criminal or penal in nature
The United States Constitution prohibits the enactment of ex post facto laws by the federal government and state governments. Specifically, Article I, Sections 9 and 10 of the Constitution ban the passage of such laws. The Supreme Court has interpreted the Ex Post Facto Clauses to apply only to laws that are criminal or penal in nature, and not to civil laws. This interpretation was established in the 1798 case of Calder v. Bull and reaffirmed in subsequent cases such as Watson v. Mercer in 1834.
The Court has stated that the ex post facto effect of a law cannot be avoided by giving it a civil form if the substance of the law is criminal. In determining whether a law is penal, the Court considers the purpose of the statute. If the statute imposes a disability for the purposes of punishment, such as reprimanding the wrongdoer or deterring others, it is considered penal. However, if the statute imposes a disability to accomplish some other legitimate governmental purpose, it is considered non-penal.
Ex post facto laws are not limited to the United States. For example, the Estonian Constitution prohibits convicting someone of an act that was not a criminal offense under the law at the time it was committed. Similarly, the Universal Declaration of Human Rights, which Australia helped draft and signed in 1948, includes a prohibition on holding anyone guilty of a penal offense that was not an offense at the time it was committed.
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Ex post facto laws cannot be evaded by giving a civil form
Ex post facto laws are prohibited by the United States Constitution. Two clauses in the Constitution prevent the federal government and the states from enacting such laws. An ex post facto law is a law that imposes criminal liability or increases criminal punishment retroactively. In other words, ex post facto laws criminalise actions retroactively, thereby punishing actions that were legal when they were originally performed.
The Supreme Court has interpreted the Ex Post Facto Clauses to limit only legislation that is criminal or penal in nature. However, the Court has also made clear that the ex post facto effect of a law cannot be evaded by giving a civil form to that which is essentially criminal. This means that a law cannot be applied retroactively to criminal actions by disguising it as a civil law.
For example, in Burgess v. Salmon (1878), the Supreme Court held that the ex post facto effect of a law could not be evaded by giving it a civil form. This case established that the true nature of a law, rather than its form, determines whether it is subject to the Ex Post Facto Clauses.
In another case, Cummings v. Missouri (1866), the Court considered a challenge to a post-Civil War amendment to the Missouri Constitution. The amendment required certain professionals to swear an oath that they had never been disloyal to the United States. The Court held that this amendment violated the state Ex Post Facto Clause, as it essentially imposed criminal liability for past actions of disloyalty, even though it was framed as a requirement for employment.
The prohibition on ex post facto laws is not limited to the United States. Similar prohibitions can be found in the European Convention on Human Rights, the International Covenant on Civil and Political Rights, and the American Convention on Human Rights. These international agreements protect individuals from being punished for actions that were not criminal at the time they were committed.
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Ex post facto laws do not apply to judicial decisions
Ex post facto laws prohibit legislatures from passing laws that retroactively criminalize behaviour. In the United States, two clauses in the Constitution prohibit ex post facto laws: Article 1, Section 9, Clause 3 (with respect to federal laws) and Article 1, Section 10 (with respect to state laws).
However, this prohibition does not apply as strictly to judicial decisions. While appellate courts may announce a new rule of law, they will not apply it to the case in front of them to comply with ex post facto prohibitions. This is demonstrated in the case of Rogers v. Tennessee, where the defendant, Rogers, was found guilty of murder after stabbing someone who died 15 months later. The appellate court upheld the conviction and abolished the Year and a Day Rule, which states that a person cannot be convicted of homicide if death occurs more than a year and a day after the act. Rogers appealed to the Supreme Court, arguing that the appellate court's decision violated the ex post facto prohibition. The Supreme Court disagreed, finding that the appellate court's decision was a "routine exercise of common law decision-making that brought the law into conformity with reason and common sense".
The Supreme Court has held that the ex post facto prohibition applies only to legislative decisions, and even if it did apply to judicial decisions, the retroactive judicial repeal of the Year and a Day Rule is neither unexpected nor indefensible. This interpretation is supported by the previous Supreme Court decision in Bouie v. City of Columbia, which established that due process prohibits the retroactive application of any judicial construction of a criminal statute that is unexpected and indefensible by reference to prior law.
Therefore, while ex post facto laws prohibit the retroactive criminalization of behaviour by legislatures, they do not apply as strictly to judicial decisions. Appellate courts may announce new rules of law while attempting to comply with ex post facto prohibitions by not applying them to the case at hand.
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Ex post facto laws do not apply retroactively
Ex post facto laws are expressly forbidden by the United States Constitution in Article 1, Section 9, Clause 3 (with respect to federal laws) and Article 1, Section 10 (with respect to state laws). Two separate clauses of the Constitution, Article I, Sections 9 and 10, ban enactment of ex post facto laws by the Federal Government and the states, respectively.
Ex post facto laws are laws that impose criminal liability or increase criminal punishment retroactively. In other words, they are laws with retroactive effect that criminalize actions that were not criminal when they were performed, or laws that change the rules of procedure in a way that is substantially disadvantageous to the accused.
The prohibition on ex post facto laws does not apply to civil laws, but only to penal and criminal laws. The Supreme Court has interpreted the Ex Post Facto Clauses to apply only to laws that are criminal or penal in nature. The purpose of the statute is key to determining whether a law is penal. If the statute imposes a disability for the purposes of punishment, it is considered penal. However, if it imposes a disability to accomplish some other legitimate governmental purpose, it is considered nonpenal.
The prohibition on ex post facto laws does not attach as strictly to judicial decisions. Appellate courts sometimes announce a new rule of law but will not apply it to the case in front of them, in order to attempt to comply with ex post facto prohibitions.
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Frequently asked questions
An ex post facto law is a law that retroactively makes criminal conduct that was not criminal when performed, increases the punishment for crimes already committed, or changes the rules of procedure in force at the time an alleged crime was committed in a way that is substantially disadvantageous to the accused.
No, the Constitution of the United States forbids Congress and the states from passing any ex post facto law.
In California Dep't of Corrections v. Morales, California amended a law to state that the California Board of Prison Terms may defer parole hearings for up to three years for a prisoner convicted of more than one homicide offense. This law was deemed an ex post facto law as it affected prisoners who were imprisoned before the law was amended.
The policies underlying ex post facto laws are recognized in most developed legal systems and are reflected in the civil law maxim "nulla poena sine lege" ("no punishment without law"), a principle with roots in Roman law.
