Cecily Zamora
Being charged with a criminal offence can be a stressful experience, and not knowing whether or not you will be charged can be equally painful. In the United States, it depends on the state. Some jurisdictions go by the law as it existed at the time of the offence, while others go by the later, more lenient version. In the US, ex post facto (or retroactive) laws are expressly forbidden by the Constitution. However, this does not always hold true, as not everyone has the money to challenge the practice. In the UK, there is a different answer. For instance, if you are convicted of possessing heroin in 2017, but in 2018 heroin is legalized, and the case against you for possession of heroin is prosecuted in 2019, you could still be convicted of heroin possession in 2019 as a matter of federal constitutional law in the US, even though many prosecutors would decline to press charges.
| Characteristics | Values |
|---|---|
| Retroactive laws | In the US, ex post facto or retroactive laws are forbidden by the Constitution |
| Retroactive laws in specific circumstances | Retroactive laws can be applied if they are procedural in nature and affect the remedy, not substantive or vested rights |
| Retroactive laws in the UK | Retroactive laws may be prosecuted on the grounds that similar circumstances may occur in the future |
| Retroactive laws and charges | Retroactive laws can lead to more severe charges and penalties |
| Retroactive laws and plea bargains | A criminal lawyer can help you decide whether to take a plea bargain or go to trial |
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What You'll Learn
Retroactive laws
In the United States, retroactive laws, also known as ex post facto laws, are expressly forbidden by the Constitution. This means that an individual cannot be charged for an action that was legal when they performed it but was later criminalised. However, if an action is decriminalised after being performed, a person may still be charged under the previous law.
Retroactivity in the US legal system is critical to sentencing reform. Retroactive laws can reduce sentence lengths or lessen rigid sentencing mandates that have led to over-incarceration. For example, the Youthful Parole Bill, which took effect on June 1, 2019, provides parole consideration for incarcerated individuals who committed crimes before their brains were fully matured.
In some nations that follow the Westminster system of government, ex post facto laws may be possible due to parliamentary supremacy. For instance, Article 29 of the Constitution of Albania explicitly allows retroactive laws that alleviate possible punishments. Similarly, Article 90 of the Constitution of Croatia permits retroactive application of individual provisions of a law for "exceptionally justified reasons".
While some countries prohibit ex post facto laws, European countries apply the principle of lex mitior, or "the milder law". This principle allows for the retroactive application of laws that benefit the accused or alleviate punishments. For example, an amnesty law may decriminalise certain acts, prohibit prosecution, or reduce punishments.
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Ex Post Facto laws
For example, in the case of Beazell v. Ohio, the respondent-defendant Morales was imprisoned before the law was amended, and he was subsequently affected by it when he applied for a parole hearing. In his lawsuit, Morales claimed that the amendment violated the ex post facto prohibition. The Supreme Court held that the amendment did not violate the ex post facto clause as it did not increase the punishment attached to the respondent's crime.
The Ex Post Facto clause is also present in other legal systems. For instance, in Canada, Ex Post Facto criminal laws are constitutionally prohibited by Section 11(g) of the Charter of Rights and Freedoms. Similarly, Ex Post Facto criminalization is prohibited by Article 7 of the European Convention on Human Rights, Article 15(1) of the International Covenant on Civil and Political Rights, and Article 9 of the American Convention on Human Rights.
Despite the existence of these prohibitions, there may be exceptions to the Ex Post Facto clause. For example, in Canada, Section 11 of the Charter is among the sections that can be overridden under Section 33 (the notwithstanding clause), which theoretically allows Parliament to enact Ex Post Facto laws. In the United States, 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.
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Changes to the law after being charged
In the United States, ex post facto (or retroactive) laws are expressly forbidden by the Constitution. This means that if an action was legal when committed but later becomes illegal, you cannot be charged for it retroactively. However, if you continue to engage in the now-illegal activity after the law has changed, you may be charged with a different crime. For example, if you owned a firearm that was later deemed illegal, you would not be guilty of illegally purchasing it, but you could be found guilty of a separate crime for continuing to possess it.
On the other hand, if an action was illegal when committed but is later legalized, you could still be convicted of that crime. For example, if you were convicted of possessing heroin in a state where it was later legalized, you could still be convicted of heroin possession, although many prosecutors would likely decline to press charges.
The impact of changing laws on pending cases can vary. In the United States, it depends on the state and the nature of the statutory amendment. Some jurisdictions adhere to the law as it existed at the time of the offense, while others follow the later, amended version. For a statutory change to be applied retroactively, it typically must be procedural, affecting the remedy only and not disturbing any substantive or vested rights.
In California, for example, a retroactive law could change a misdemeanour charge to a felony, resulting in more severe charges and consequences. In Virginia, new traffic stop laws were enacted to curb racial disparities in police conduct. These laws prohibit traffic stops for minor infractions, and evidence obtained from improper stops can be suppressed under the "exclusionary rule".
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Seeking legal advice
In the United States, Ex Post Facto (or retroactive) laws are expressly forbidden by the Constitution. This means that you cannot be charged for a crime that was committed before a law was created. However, this does not always translate into practice, as legal challenges can be costly. For example, if you purchased a firearm that was later deemed illegal, you would not be guilty of illegally purchasing the firearm, but you may be guilty of a different crime for continuing to possess it.
If you are facing legal charges and require advice or representation, there are several options available to you:
Federally Funded Legal Services
These programs provide lawyers who are experts in helping low-income individuals with their legal issues. The Legal Services Corporation (LSC) and LawHelp.org are examples of such programs. LawHelp.org also provides free legal information and resources, such as guides and legal document creation tools, to help individuals understand their legal rights and resolve simple legal problems.
Pro Bono Programs
Pro bono programs match low-income clients with volunteer lawyers who agree to take their cases for free. These programs may also provide brief online answers to legal questions.
Online Resources
The American Bar Association has an online platform where individuals with low incomes can ask legal questions and receive answers from lawyers. It is important to note that this platform does not answer questions involving crimes.
Law School Programs
Many law schools have pro bono or legal clinic programs where law students, under the supervision of licensed attorneys, provide free or low-cost legal services to the community.
Specialized Legal Services
Depending on your circumstances, you may be eligible for specialized legal services. For example, Stateside Legal offers free legal help for military members, veterans, and their families, while the National Disability Rights Network provides legal advocacy services for individuals with disabilities. Additionally, the Pension Rights Center offers free legal assistance for issues related to pensions and retirement savings plans.
It is important to note that the availability and eligibility criteria for these programs may vary by state. It is recommended to check with your local bar association or legal aid organization to find out what specific services and resources are available in your area.
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Plea bargains
The process of plea bargaining involves the defendant pleading guilty to a subset of multiple charges or a lesser offence, in exchange for a more lenient sentence. This can be done through charge bargaining, where the defendant pleads guilty to a less serious offence, or sentence bargaining, where the expected sentence is agreed upon before a guilty plea. Plea bargains can also involve defendants agreeing to testify for the state in cases against other defendants in exchange for a more favourable plea deal.
While plea bargaining is prevalent in the US, it has also been adopted in various forms worldwide, particularly in common law jurisdictions like the UK. However, it remains controversial, with critics arguing that it may encourage defendants, including innocent ones, to plead guilty out of fear of harsher penalties if convicted at trial. There are also concerns that plea bargaining may lead to coercion and endanger the correct legal outcome.
Despite the criticism, proponents of plea bargaining emphasize its benefits in conserving judicial resources and providing certainty for all parties involved. It is important to note that, in the US, defendants can only plead guilty if they actually committed the crime and admit to doing so in open court before a judge. Additionally, while prosecutors may agree to certain terms as part of a plea agreement, the judge presiding over the court has the final authority to impose a sentence.
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Frequently asked questions
In the US, ex post facto (or retroactive) laws are expressly forbidden by the Constitution. This means that you cannot be charged for something that was legal at the time you did it. However, there are some grey areas and exceptions, and the law can be complex. For example, if you own a firearm that becomes illegal, you won't be guilty of illegally purchasing it, but you may be guilty of a different crime for continuing to keep it.
This depends on the nature of the law change. If the law change is procedural in nature and affects the remedy, it may be applied retroactively. However, if the law change affects substantive or vested rights, it generally will not have a retroactive effect.
If you think you might be charged with a crime, it is important to seek legal advice from an experienced criminal defence lawyer as soon as possible. They can advise you on the best course of action, help you understand your options, and provide support.
