Ex Post Facto Law: Understanding Its Application

Ex post facto laws are criminal statutes that retroactively punish actions, thereby criminalising behaviour that was legal when it was originally performed. In other words, ex post facto laws impose criminal liability or increase criminal punishment after the fact. The Latin translation of ex post facto is from a thing done afterward.

In the US, two clauses in the Constitution prohibit ex post facto laws, one for Congress and one for the states. These are Article I, Section 9, Clause 3 and Article I, Section 10, Clause 1, respectively.

Criminal statutes

Ex post facto laws are a form of criminal statutes that retroactively change the legal consequences of actions committed before the law's enactment. In other words, they criminalise actions that were legal when they were originally performed.

In Beazell v. Ohio (1925), the Supreme Court defined the scope of constitutional 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 (1995), the Supreme Court applied the Beazell standard to the parole process. The Court held that an amendment that impacts someone currently imprisoned by a law does not violate ex post facto prohibitions if the amendment does not increase the punishment attached to the respondent's crime.

In Carmell v. Texas (2000), the Supreme Court ruled that the Ex Post Facto Law Clause of the U.S. Constitution prohibited the application of a Texas statute of criminal procedure in trials against sex offenders for their offences committed prior to the amendment of the statute in 1995. The Court reasoned that the amendment altered the sufficiency of the evidence needed to convict criminal defendants.

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).

Retroactive criminalisation

In the US, ex post facto laws are forbidden by the Constitution, which states that "no State shall...pass any...ex post facto Law". This prohibition applies only to criminal laws and not to civil laws. The US Supreme Court has defined ex post facto laws as those that "punish 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".

In Beazell v. Ohio, the Supreme Court held that an amendment that impacts someone currently imprisoned does not violate ex post facto prohibitions if it does not increase the punishment attached to the respondent's crime. Similarly, in California Dep't of Corrections v. Morales, the Supreme Court held that an amendment to the parole process that did not impact the respondent's sentence or their substantive attempt to be granted parole did not violate ex post facto prohibitions.

In the UK, ex post facto laws are permitted due to the doctrine of parliamentary sovereignty. However, retrospective criminal laws are prohibited by the European Convention on Human Rights, to which the UK is a signatory.

While ex post facto laws are prohibited in many countries, there are some exceptions. For example, in France, while retroactive criminal sanctions are generally forbidden, they are allowed in cases where the retroactive application benefits the accused person.

Retroactive punishment increases

Ex post facto laws, which in Latin means "from a thing done afterward", can retroactively increase punishment for a crime. This can be done in several ways. Firstly, a law can be passed that increases the punishment for a crime after the crime has been committed. Secondly, a law can alter the rules of evidence to make conviction for a crime more likely than when the crime was committed. Thirdly, a law can change a crime from one category to a more severe one.

The United States Constitution prohibits ex post facto laws that increase punishment at both the federal and state level. The US Supreme Court has held that the constitutional prohibitions on ex post facto laws do not apply to crimes committed outside the jurisdiction of the US against the laws of a foreign country. However, the Supreme Court has also held that the constitutional prohibitions on ex post facto laws do not apply to retroactive criminal statutes that do not disadvantage criminal defendants.

In the case of California Dep't of Corrections v. Morales (1995), the Supreme Court held that an amendment that impacts someone currently imprisoned by law does not violate ex post facto prohibitions if the amendment does not increase the punishment attached to the respondent's crime. The Court held that, in this case, the amendment did not impact Morales's sentence or any substantive attempt to be granted parole.

In the case of Beazell v. Ohio (1925), the Supreme Court defined the scope of the constitutional ex post facto through the following restrictions:

> [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.

In the case of Stogner v. California (2003), the Supreme Court ruled that a law that revives a previously time-barred prosecution by extending the statute of limitations after it has expired is prohibited as ex post facto.

In the case of Miller v. Florida (1987), the Supreme Court held that a law that alters sentencing guidelines to make it more likely that the sentencing authority will impose a more severe sentence than was previously likely and makes it impossible for the defendant to challenge the sentence is ex post facto as applied to one who committed the offense prior to the change.

In the case of Peugh v. United States (2013), the Supreme Court held that an increase in the applicable sentencing range is ex post facto if applied to a previously committed crime because of a significant risk of a lengthier sentence being imposed.

Retroactive defences

For example, a retroactive defence may prohibit prosecution for a certain act, while not redefining the act as non-criminal. Alternatively, it may enact that there is to be no punishment, while leaving the underlying conviction technically unaltered. A pardon is a similar concept, except it applies to a single case instead of a class of cases.

In the United States, the Constitution forbids Congress and the states to pass any ex post facto law. However, in some nations that follow the Westminster system of government, ex post facto laws may be possible due to the doctrine of parliamentary supremacy.

Evidentiary rules

Changes in evidentiary rules that allow conviction on less evidence than was required at the time the crime was committed can also run afoul of the ex post facto clause. An example of this principle being applied is the Court's invalidation of the retroactive application of a Texas law that eliminated the requirement that the testimony of a sexual assault victim age 14 or older be corroborated by two other witnesses, and allowed conviction on the victim's testimony alone.

In Beazell v. Ohio, the Supreme Court defined the scope of the constitutional ex post facto clause 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 a crime of any defense 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, in applying Beazell, held that an amendment that impacts someone currently imprisoned by a law does not violate ex post facto if the amendment does not increase the punishment attached to the respondent's crime. The Court held that, in this case, the amendment did not impact Morales's sentence, nor did it impact any substantive attempt to be granted parole. The Court found that a simple alteration of a prisoner's process of attaining parole does not violate ex post facto prohibitions.

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