Keith Mack
Ex post facto laws are a complex and controversial aspect of legal systems around the world. In a legal context, ex post facto typically refers to a criminal statute that punishes actions retroactively, criminalizing conduct that was legal when originally performed. The concept has been invoked in various contexts, from taxation law to sex offender registries, and has been the subject of debate and criticism. The history of ex post facto laws can be traced back to the Nuremberg Trials after World War II, with some arguing that the trials themselves were based on ex post facto laws. Today, the use of ex post facto laws is prohibited by international covenants and conventions on human rights, but their application continues to be a topic of discussion and scrutiny.
| Characteristics | Values |
|---|---|
| What is Ex Post Facto Law? | In a legal context, ex post facto is typically used to refer to a criminal statute that punishes actions retroactively, thereby criminalizing conduct that was legal when originally performed. |
| Prohibition | Two clauses in the United States Constitution prohibit ex post facto laws. |
| Example | In Calder v. Bull, Justice Chase gave an alternative description of the four categories of ex post facto laws, two of which related to punishment. |
| Implementation | The implementation of retrospective criminal laws is expressly prohibited by the International Covenant on Civil and Political Rights, to which Australia is a party. |
| Prohibition in Canada | In Canada, ex post facto criminal laws are constitutionally prohibited by section 11(g) of the Charter of Rights and Freedoms. |
| Prohibition in Europe | Retrospective criminal laws are prohibited by Article 7 of the European Convention on Human Rights, to which the United Kingdom is a signatory. |
| Example in the UK | The War Crimes Act 1991 created an ex post facto jurisdiction of British courts over war crimes committed during the Second World War. |
| Example in Australia | Taxation law has changed to retrospectively disallow tax avoidance schemes. |
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What You'll Learn
Ex post facto laws in the US Constitution
Ex post facto laws are criminal statutes that retroactively punish actions that were legal when originally performed. In the US Constitution, two clauses prohibit ex post facto laws: Article 1, Section 10, which prohibits Congress from passing any laws that apply ex post facto, and Article 1, Section 9, Clause 3, which prohibits states from doing the same.
The inclusion of these clauses in the US Constitution was a subject of debate during the Constitutional Convention. Some delegates disapproved of ex post facto laws and believed an explicit prohibition was necessary due to past state legislatures' actions. Alexander Hamilton argued that the creation of crimes after the fact and the punishment for actions that were not previously illegal were instruments of tyranny. He asserted that the prohibition on ex post facto laws restricts governmental power and assures that legislative acts give fair warning of their effects.
However, others argued that an explicit prohibition was unnecessary because such laws were inherently invalid. One delegate contended that no lawyer or civilian would support ex post facto laws. Despite the debate, the delegates rejected a suggestion to alter the federal Ex Post Facto Clause to explicitly include civil laws, leaving the scope of the prohibition ambiguous.
The US Supreme Court has interpreted and applied the ex post facto prohibitions in various cases. In Beazell v. Ohio, the Court held that an amendment impacting a currently imprisoned individual does not violate the prohibition if it does not increase the punishment for their crime. In Rogers v. Tennessee, the Court found that an appellate court's abolition of the 'Year and a Day Rule' did not violate the prohibition, as it was a routine exercise of common law decision-making.
Despite the constitutional prohibitions, some state legislatures have enacted laws with retroactive effects, and courts have upheld these laws in certain circumstances. For example, in Smith v. Doe, the Court upheld Alaska's "Megan's Law," which requires released sex offenders to register with local police and provides for public notification, even for offenders convicted before the law's enactment. The Court distinguished between civil and penal laws, finding that the law was civil and non-punitive, promoting public safety.
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Ex post facto laws in other countries
Ex post facto laws are prohibited by Article 7 of the European Convention on Human Rights, to which the United Kingdom is a signatory. However, legal authorities have argued that parliamentary sovereignty takes precedence. An example of this is the War Crimes Act 1991, which gave British courts ex post facto jurisdiction over war crimes committed during World War II.
In Canada, ex post facto criminal laws are constitutionally prohibited by section 11(g) of the Charter of Rights and Freedoms. However, section 11 of the Charter is among the sections that can be overridden under section 33 (the notwithstanding clause), and changes to civil law in Canada can be made ex post facto.
Australia is a party to the International Covenant on Civil and Political Rights, which expressly prohibits the implementation of retrospective criminal laws. However, Australia does not have a strong constitutional prohibition on ex post facto laws, and narrowly retrospective laws may violate the constitutional separation of powers principle.
Brazil's Constitution states that laws cannot have ex post facto effects on acquired rights, accomplished juridical acts, and res judicata.
European countries apply the principle of lex mitior ("the milder law"), which means that if the law has changed after an offense was committed, the version of the law that is more advantageous for the accused is applied.
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The impact of ex post facto laws on individuals
Ex post facto laws have had varying impacts on individuals across different countries. In the United States, two clauses in the Constitution prohibit ex post facto laws, with Article 1 § 10 barring Congress from enacting such laws, and the same section prohibiting states from doing so. These prohibitions are directed at legislative action and aim to prevent the retroactive criminalization of behaviour. For instance, in Beazell v. Ohio, the Supreme Court held that an amendment impacting a currently imprisoned individual does not violate ex post facto prohibitions if it does not increase the punishment for their crime.
Despite these protections, some individuals in the US have been negatively affected by ex post facto laws. In Rogers v. Tennessee, the Supreme Court found that an appellate court's abolition of the 'Year and a Day Rule' (which states that a person cannot be convicted of homicide for a death that occurs more than a year and a day after their act) did not violate ex post facto prohibitions, as it was a routine exercise of common law decision-making. Similarly, in Smith v. Doe, the Court upheld Alaska's 'Megan's Law', which requires released sex offenders to register with local police, even for those convicted before the law's enactment.
In Canada, ex post facto criminal laws are constitutionally prohibited by the Charter of Rights and Freedoms. However, changes to civil law can be enacted ex post facto. For example, convicted murderer Colin Thatcher was ordered to forfeit proceeds from a book published after his parole under a law passed after his conviction. While this impacted Thatcher, the courts ruled that such laws prescribe civil penalties and are thus not subject to Charter restrictions.
In the United Kingdom, retrospective criminal laws are prohibited by Article 7 of the European Convention on Human Rights, to which the UK is a signatory. However, parliamentary sovereignty has taken precedence in certain cases. For instance, the War Crimes Act 1991 created an ex post facto jurisdiction of British courts over war crimes committed during World War II.
In Russia, ex post facto punishment in criminal and administrative law is prohibited by Article 54 of the Russian Constitution, while Article 57 prohibits ex post facto tax laws. Article 10 of the Russian Criminal Code states that criminal law which improves the position of the convicted has retroactive force.
In Australia, the implementation of retrospective criminal laws is expressly prohibited by the International Covenant on Civil and Political Rights, to which Australia is a party. Similarly, in Croatia, Article 90 of the Constitution states that only individual provisions of a law may have a retroactive effect for exceptionally justified reasons.
Ex post facto laws can have significant impacts on individuals, as they can retroactively criminalize behaviour, aggravate crimes, change punishments, extend statutes of limitations, and alter rules of evidence. While there are legal protections in place to prevent these impacts, the interpretation and application of ex post facto prohibitions can vary across different jurisdictions.
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Examples of ex post facto laws in history
Ex post facto laws are prohibited by Article 7 of the European Convention on Human Rights, to which the United Kingdom is a signatory. However, historically, all acts of Parliament before 1793 were ex post facto legislation, as their date of effect was the first day of the session in which they were passed. This situation was rectified by the Acts of Parliament (Commencement) Act 1793.
Some laws are still passed retrospectively, such as the Pakistan Act 1990, which amended UK legislation following the readmission of Pakistan to the Commonwealth of Nations. Despite being passed on 29 June 1990, the Act states that it "shall be deemed to have come into force on 1st October 1989", nine months before it was enacted.
In the US, ex post facto laws are expressly forbidden by the US 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 repeatedly referred to its ruling in Calder v. Bull when deciding ex post facto cases. In Calder v. Bull, the court expressly stated that a law that "mollifies" a criminal act was not an ex post facto law. As a result of this ruling, several retroactive taxes have been passed by the US Congress, starting with the 1913 Revenue Act, which imposed the first income tax.
In Canada, ex post facto criminal laws are constitutionally prohibited by section 11(g) of the Charter of Rights and Freedoms. However, the Canada sex offender registry, which went into effect on December 15, 2004, is somewhat retroactive. All offenders who were on the Ontario sex offender registry, created in 2001, were required to register on the national registry. Additionally, sex offenders in all provinces who were serving a sentence on December 15, 2004, were required to register, regardless of when their offense and conviction occurred.
In Australia, the implementation of retrospective criminal laws is expressly prohibited by the International Covenant on Civil and Political Rights, to which Australia is a party.
In civil matters, such as taxation, ex post facto laws may be made in some circumstances. For example, in the case of Kansas v. Hendricks, a man with a history of molesting children was scheduled to be released from prison shortly after the enactment of Kansas's SVP act, which allows the indefinite commitment of a person with a mental abnormality predisposing them to molest children. The man contested the law on ex post facto and double jeopardy grounds, and while the Supreme Court of Kansas invalidated the Act, the Supreme Court of the United States reversed the decision, ruling that the law was constitutional as it did not impose a criminal punishment.
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The legality of ex post facto laws
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). These clauses prohibit Congress and the states from passing any laws that apply ex post facto.
In a legal context, ex post facto is typically used to refer to a criminal statute that punishes actions retroactively, thereby criminalizing conduct that was legal when originally performed. For example, in California Dep't of Corrections v. Morales, a prisoner was affected by an amendment to a law that allowed the California Board of Prison Terms to defer parole hearings for up to three years for prisoners convicted of multiple homicide offenses. The prisoner filed a lawsuit claiming that the amendment violated the ex post facto prohibition. The Supreme Court held that the amendment did not violate ex post facto because it did not increase the punishment attached to the prisoner's crime.
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Frequently asked questions
An ex post facto law is a law that is passed after an action has already occurred.
Yes, there are several examples of ex post facto laws in the US. One example is the War Crimes Act of 1991, which gave US courts jurisdiction over war crimes committed during World War II.
Yes, the creation of the International Military Tribunal at the Nuremberg Trials following World War II has been cited as an example of an ex post facto law. Additionally, the implementation of the Canadian Sex Offender Registry in 2004 has been described as somewhat retroactive.
Critics of ex post facto laws argue that they undermine the principle of fair warning and legislative predictability. Alexander Hamilton, an American founding father, asserted that such laws are "harsh and oppressive" and enable arbitrary imprisonment.
Yes, several legal frameworks prohibit or restrict ex post facto laws. For instance, the United States Constitution, the European Convention on Human Rights, and the International Covenant on Civil and Political Rights all contain provisions that explicitly or implicitly curtail the application of ex post facto laws.
