Ex Post Facto Laws: Still Applicable Or Archaic?

Ex post facto laws are a form of retroactive legislation that changes the legal consequences of actions committed or relationships formed before the law was enacted. In criminal law, ex post facto laws can criminalise actions that were previously legal, increase the severity of a crime, change the punishment for a crime, extend the statute of limitations, or alter the rules of evidence to make conviction more likely. While the United States Constitution prohibits ex post facto laws at both the federal and state levels, some countries, such as the United Kingdom, permit them due to the doctrine of parliamentary sovereignty. The applicability and scope of ex post facto laws have been the subject of extensive debate, particularly in the context of retroactive criminal laws and judicial decisions.

Ex post facto laws in the US Constitution

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, Clause 1 (with respect to state laws). The US Constitution defines an ex post facto law as:

> [A] law that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law.

In criminal law, an ex post facto law may criminalise actions that were legal when committed, aggravate a crime by bringing it into a more severe category, change the punishment prescribed for a crime, extend the statute of limitations, or alter the rules of evidence in order to make conviction for a crime more likely.

The US Constitution expressly forbids the enactment of ex post facto laws by both the federal government and the state governments. The US Supreme Court has interpreted the ex post facto clauses to apply only to legislation that is criminal or penal in nature. 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 Clauses.

While the ex post facto clauses prohibit legislatures from passing laws that retroactively criminalise behaviour, this prohibition 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 to attempt to comply with ex post facto prohibitions.

Ex post facto laws in other countries

Ex post facto laws are expressly forbidden by the United States Constitution. However, they are permitted in the United Kingdom by virtue of the doctrine of parliamentary sovereignty.

• Australia has no strong constitutional prohibition on ex post facto laws, although narrowly retrospective laws might violate the constitutional separation of powers principle.
• Brazil has a constitution that prohibits laws from having ex post facto effects that affect acquired rights, accomplished juridical acts, and res judicata.
• Canada has a Charter of Rights and Freedoms that prohibits ex post facto criminal laws.
• Croatia has a constitution that states that only individual provisions of a law may have a retroactive effect for exceptionally justified reasons.
• Denmark reintroduced the death penalty for acts of treason committed during German occupation in World War II.
• Estonia has a constitution that declares that no one shall be convicted of an act that was not a criminal offense under the law at the time it was committed, nor shall they be sentenced to a heavier penalty than what was applicable at the time.
• Finland generally does not permit ex post facto laws, especially those that would expand criminal responsibility.
• France technically prohibits retroactive laws, but they can be passed within certain limits, particularly in the case of financial or tax legislation.
• Germany has a basic law that requires that an act may be punished only if it was already punishable by law at the time it was committed.
• India has adopted the underlying principle of ex post facto laws in its constitution, but there is a difference between the Indian and American positions. In the US, an ex post facto law is invalid in itself, but this is not the case in India.
• Indonesia has a constitution that prohibits trying citizens under retroactive laws in any circumstance.
• Ireland has a constitution that prohibits the retroactive application of criminal sanctions.
• Israel enacted a law in 1950 to punish acts that occurred during the Second World War and the Holocaust, even though Israel did not exist as a state at the time.
• Italy has a constitution that prohibits indictment pursuant to a retroactive law.
• Japan has a constitution that prohibits the retroactive application of laws.
• Lithuania has no constitutional prohibition on ex post facto laws, but as a signatory of the European Convention on Human Rights and a member of the European Union, any retroactive law could be struck down.
• Mexico has a constitution that prohibits the retroactive application of the law if it is detrimental to a person's rights, but a new law can be applied if it benefits the person.
• New Zealand has a Bill of Rights that prevents the application of retroactive penalties.
• Norway has a constitution that prohibits any law from being given retroactive effect.
• Pakistan has a constitution that prohibits any law from being given retroactive effect.
• The Philippines has a constitution that categorically prohibits the passing of any ex post facto law.
• Poland has a civil code that prohibits the retroactive application of law.
• Portugal has a constitution that forbids the retroactive application of any law that restricts rights, as well as the retroactive application of criminal law and taxes.
• Romania has a constitution that provides that the law shall only act for the future, except for more favourable criminal or administrative law.
• Russia has a constitution that prohibits ex post facto punishment in criminal and administrative law, as well as ex post facto tax laws.
• South Africa has a Bill of Rights that prohibits ex post facto criminal laws, except for acts that violated international law at the time they were committed.
• Spain has a constitution that guarantees the principle of non-retroactivity of punitive provisions that are not favourable to or restrictive of individual rights.
• Sweden prohibits retroactive penal sanctions and other retroactive legal effects of criminal acts due to the state, but retroactive taxes or charges are allowed under certain conditions.
• Turkey has a constitution that prohibits ex post facto punishment.
• International Criminal Law – The Nuremberg trials prosecuted war crimes and crimes against humanity perpetrated during World War II, even though the procedural law under which the trials were held postdated VE Day.

Ex post facto laws in criminal law

Ex post facto laws are a form of criminal statute that punishes actions retroactively, thereby criminalizing conduct that was legal when originally performed. The Latin translation of ex post facto is "from a thing done afterward".

In criminal law, ex post facto laws may criminalize actions that were legal when committed, aggravate a crime by bringing it into a more severe category than it was when committed, change the punishment prescribed for a crime (by adding new penalties or extending sentences), extend the statute of limitations, or alter the rules of evidence to make conviction for a crime more likely.

In the United States, the Constitution prohibits ex post facto laws at both the federal and state levels. Article I, Section 9, Clause 3 states: "No Bill of Attainder or ex post facto Law shall be passed". Article I, Section 10, Clause 1 contains a similar prohibition for states: "No State shall...pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts".

The Supreme Court has defined the scope of ex post facto laws and outlined several restrictions on their application. In Beazell v. Ohio (1925), the Court held that any statute which punishes as a crime an act previously committed that 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 has also clarified that ex post facto laws apply only to legislation that is criminal or penal in nature and that the prohibition on ex post facto laws applies only to federal and state legislation, not to judicial decisions.

Ex post facto laws are also prohibited in many other countries, including those in Europe, South America, Asia, and Africa.

Ex post facto laws in civil law

Ex post facto laws, translated from Latin as "from a thing done afterward", are laws that impose criminal liability or increase criminal punishment retroactively. In other words, they are laws that change the legal consequences of actions committed before the law's enactment.

In the United States, ex post facto laws are prohibited by the Constitution, which bans their enactment by both the Federal Government and the states. 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 has been challenged by some legal scholars, who argue that the phrase "ex post facto" historically referred to civil as well as criminal laws.

The Supreme Court has outlined four categories of laws that violate the Ex Post Facto Clauses:

• Making criminal an action that was legal when it was done
• Increasing the severity of a crime after it was committed
• Increasing the punishment for a crime after it was committed
• Altering the rules of evidence to make conviction easier after an offense was committed

While ex post facto laws are prohibited in the US, they are possible in nations with a doctrine of parliamentary supremacy, such as those following the Westminster system of government. In these countries, Parliament can pass any law it wishes within legal constraints, which may include ex post facto laws.

In civil law, the application of ex post facto laws varies by country. For example, in Canada, changes to civil law can be enacted ex post facto, while in France, retroactive laws are technically prohibited by the Code Civil, but this can be overruled by subsequent laws in certain cases.

Ex post facto laws in judicial decisions

Ex post facto laws are prohibited 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). The Latin translation of ex post facto is "from a thing done afterward". In a legal context, ex post facto laws refer to criminal statutes that punish actions retroactively, thereby criminalizing conduct that was legal when originally performed.

Multiple Supreme Court decisions have held that the Ex Post Facto Clauses apply only to federal and state legislation, not to judicial decisions. In Rogers v. Tennessee, 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". The Rogers court also referenced a previous Supreme Court decision, Bouie v. City of Columbia, which held that "due process prohibits retroactive application of any judicial construction of a criminal statute that is unexpected and indefensible by reference to the law which has been expressed prior to the conduct in issue".

In another case, California Dep't of Corrections v. Morales, the Supreme Court, in applying Beazell, held that an amendment that impacts someone currently imprisoned does not violate ex post facto if the amendment does not increase the punishment attached to the respondent's crime. The Court held that a simple alteration of a prisoner's process of attaining parole does not violate ex post facto prohibitions.

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