Understanding Lawbreaking And Prosecution: What's The Link?

The concept of being prosecuted for breaking a law that has since been repealed is known as ex post facto law. In most jurisdictions, laws cannot be applied retroactively. For example, in the U.S., the constitution forbids ex post facto laws at both the federal and state level. However, there are exceptions to this principle, such as in Germany, where the Radbruch formula has been applied to prosecute deeds committed under Nazi Germany and East Germany that were legal in those jurisdictions.

Prosecution for breaking a law that no longer exists

In the United States, federal prosecutors have a lot of leeway in determining when, whom, how, and even whether to prosecute for apparent violations of federal criminal law. However, the constitution forbids ex post facto law both on the federal and state level. This means that a person cannot be prosecuted for breaking a law that no longer exists.

However, there are some exceptions to this rule. In the United States v. Chambers, the Supreme Court said that a prosecution for a violation of the National Prohibition Act could not be continued after the 18th Amendment (which allowed the act in the first place) was repealed by the 21st Amendment.

In Germany, the criminal code can only be trusted, and the prohibition of a retroactive application is only applicable if the law has been enacted by a lawful democratic government. This trust in the law is lacking when a government encourages the most serious crimes and thus flagrantly disregards generally acknowledged human rights. In such cases, the strict trust established by the law must stand back.

In France, per article 112-1 du code pénal, only acts constituting an offence on the date they were committed are punishable. However, if a new law decrees a reduced sentence, the person shall benefit from it. Additionally, crimes against humanity can be prosecuted even if they were committed before the laws existed.

In Canada, Section 11(g) of the Canadian Charter of Rights and Freedoms says that any person charged with an offence has the right not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations.

Retroactive prosecution

The legality of a retroactively applied law depends on whether the law would improve or worsen the situation of the individuals it affects. If it worsens their situation, it is considered an ex post facto law and is prohibited by the US Constitution. However, the Constitution does not prohibit laws that retroactively remove or reduce the burden on individuals who have already been sentenced.

Retroactive reforms are designed to provide relief to individuals who have been disadvantaged by outdated, overly broad, harsh, or disproven policies of the past. These reforms can reduce sentence lengths or lessen rigid sentencing mandates that have led to over-incarceration. They are important for ensuring fair and proportionate justice, as courts sometimes make mistakes and sentencing reforms can help correct these errors.

In the US, the Supreme Court's retroactivity jurisprudence distinguishes between criminal and civil cases. The general rule prior to 1965 was that the Court's constitutional decisions involving criminal law applied retroactively, subject to limited exceptions. However, in the 1965 case of Linkletter v. Walker, the Court held that its decisions on new constitutional interpretations involving criminal rights did not have retrospective effect. Since then, the Court has adopted a balancing process that results in different degrees of retroactivity in different cases.

While the US Constitution forbids ex post facto laws, this is not the case in all countries. For example, in Germany, the constitutional court has made exceptions to the prohibition of retroactivity in cases where the legal consequences of past actions are perceived as unjust, such as in the prosecution of GDR border guards who killed fugitive GDR citizens.

Ex post facto laws

In the US, 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).

The US Supreme Court has defined the scope of ex post facto laws through the following restrictions:

> "It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any 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 crime of any defence available according to law at the time when the act was committed, is prohibited as ex post facto."

In California Dep't of Corrections v. Morales, the Supreme Court held that an amendment which impacts someone currently imprisoned does not violate ex post facto laws if the amendment does not increase the punishment attached to the respondent's crime.

In some nations that follow the Westminster system of government, ex post facto laws may be possible due to the doctrine of parliamentary supremacy.

In India, the underlying principle of ex post facto laws has been adopted in the constitution, but there is a difference between the Indian and the American positions: in the US, an ex post facto law is invalid in itself, but in India, it is not.

In the UK, ex post facto laws are permitted by virtue of the doctrine of parliamentary sovereignty.

Null poena sine lege praevia (no punishment without prior law)

The principle of null poena sine lege praevia (or nulla poena sine lege) is a legal formula that states that a person cannot be punished for an act unless a penalty for that behaviour is fixed in criminal law. In other words, there should be "no punishment without previous law". This principle is a basic maxim in continental European legal thinking and is enshrined in the Bavarian Criminal Code, which was written by Paul Johann Anselm Ritter von Feuerbach in 1813.

The principle of null poena sine lege praevia is a fundamental requirement of the rule of law and is accepted and codified in modern democratic states. It is also reflected in the legality principle in criminal law and international criminal law, which holds that a person should not face criminal punishment unless their act was criminalised by law before they performed it. This idea is further manifested in laws that require criminal acts to be publicised in unambiguous statutory text.

The principle of null poena sine lege praevia is closely related to the concept of ex post facto laws, which are laws that retroactively change the legal consequences of actions that were committed before the laws were passed. In most jurisdictions, laws cannot be applied retroactively, as this would undermine legal certainty, a key rationale for codified law.

However, there are exceptions to the principle of null poena sine lege praevia. For example, in Germany, the Radbruch formula takes precedence, which states that existing law must be ignored if it is deemed to be "unbearably unjust". This formula has been applied to prosecute deeds committed in Nazi Germany and East Germany that were arguably legal in those jurisdictions.

In summary, the principle of null poena sine lege praevia is a fundamental legal concept that ensures individuals are not punished for acts that were not criminalised by law before they were committed. While this principle is widely accepted, there are exceptions, such as the Radbruch formula in Germany, which prioritises justice over legal certainty in exceptional circumstances.

Prosecution for breaking a law you were unaware of

In general, ignorance of the law is not a valid defence for breaking it. However, there are exceptions to this rule.

In the US, the constitution forbids ex post facto law (a law that retroactively changes the legal consequences of actions that were committed before the law was passed) on both the federal and state level. However, this only applies to federal laws, not state laws. In the state of New Jersey, ignorance is a defence in some cases, depending on the specific crime being committed. For example, if you accidentally shot someone because you didn't realise your gun was loaded, you may be able to claim ignorance as a defence. However, if you fired in the direction of another person without checking the chamber, ignorance is unlikely to be a valid defence.

In Germany, the criminal code can only be trusted if it has been enacted by a lawful democratic government. In the case of GDR border guards who killed unarmed citizens attempting to flee the GDR, the constitutional court ruled that the strict protection of trust in the law must stand back because the government encouraged most serious crimes and flagrantly disregarded human rights.

In France, you cannot be charged for something you did before the law came into existence. However, there are two exceptions: if a new law is passed that decrees a reduced sentence for a crime you committed, you will benefit from it, and if you committed crimes against humanity, you can be prosecuted even if those crimes were not defined at the time.

In Canada, anyone charged with an offence has the right not to be found guilty of any act that did not constitute a criminal offence under Canadian or international law at the time.

In California, ignorance of the law is not an acceptable defence, but there are exceptions. For example, if you are arrested for committing a specific intent crime, such as robbery or forgery, without realising it was a crime, ignorance may be a valid defence. Additionally, if there are differences in state and local traffic laws without proper signage, ignorance of the law may be a valid defence.

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