Keith Mack
Ex post facto laws are a retrospective change to the legal consequences of actions committed before the law's enactment. In criminal law, this can include criminalising actions that were previously legal, increasing the severity of a crime, or changing the punishment for a crime. The US Constitution prohibits ex post facto laws at both the federal and state level. This prohibition seeks to ensure that legislative acts give fair warning of their effect and restrict governmental power by restraining arbitrary and potentially vindictive legislation. The US Constitution's ban on ex post facto laws is closely related to the ban on bills of attainder, which are legislative actions that determine guilt or impose criminal punishment without a judicial trial.
| Characteristics | Values |
|---|---|
| Number of Ex Post Facto Clauses | 2 |
| Applicability of both clauses | Only one of the two can apply to any given piece of legislation |
| Scope of the two clauses | The two clauses have the same scope |
| Ex Post Facto laws in other countries | 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 |
| Ex Post Facto laws in Australia | No strong constitutional prohibition on ex post facto laws |
| Ex Post Facto laws in Brazil | Prohibited by Article 5, Section XXXVI of the Brazilian Constitution |
| Ex Post Facto laws in Canada | Prohibited by Section 11(g) of the Charter of Rights and Freedoms |
| Definition | 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 |
| Prohibited Actions | Imposing criminal liability or increasing criminal punishment retroactively |
| Permitted Actions | Applying lower penalties |
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What You'll Learn
The US Constitution's Ex Post Facto Clause
The Ex Post Facto Clause has been interpreted by the Supreme Court to ban legislatures from enacting laws that impose criminal liability or increase criminal punishment retroactively. This interpretation is based on the notion that laws which criminalize previously innocent acts or aggravate an offense after the fact are "harsh and oppressive." The prohibition on ex post facto laws also serves to assure that legislative acts give fair warning of their effect and restrict governmental power by restraining arbitrary legislation.
The Ex Post Facto Clause does not prohibit the application of lower penalties or retroactive criminal statutes that do not disadvantage criminal defendants. For example, in Beazell v. Ohio, the Supreme Court held that an amendment impacting someone currently imprisoned did not violate the Ex Post Facto Clause as long as it did not increase the punishment attached to the respondent's crime. Additionally, the Supreme Court has held that the Ex Post Facto Clause does not apply to crimes committed outside the jurisdiction of the United States against the laws of a foreign country.
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Federal and State Ex Post Facto Clauses
The US Constitution contains two Ex Post Facto Clauses, one for federal laws and one for state laws, which prohibit the enactment of ex post facto laws. An ex post facto law is a law that retroactively changes the legal consequences of actions committed before the law's enactment. In criminal law, this could mean criminalising actions that were previously legal, aggravating a crime by placing it in a more severe category, or increasing the punishment for a crime.
The federal Ex Post Facto Clause is outlined in Article 1, Section 9, Clause 3 of the US Constitution, which states: "No Bill of Attainder or ex post facto Law shall be passed". This clause prohibits the federal government from enacting ex post facto laws and ensures that legislative acts give fair warning of their effects. It also restricts governmental power by preventing arbitrary and potentially vindictive legislation.
The state Ex Post Facto Clause is outlined in Article 1, Section 10, Clause 1 of the US Constitution, which states: "No State shall [...] pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts". This clause prohibits individual states from enacting ex post facto laws. While there are two Ex Post Facto Clauses, only one can apply to any given piece of legislation.
The Supreme Court has interpreted both clauses to ban legislatures from enacting laws that impose criminal liability or increase criminal punishment retroactively. This interpretation is supported by several court cases, including Calder v. Bull (1798), Fletcher v. Peck (1810), and Beazell v. Ohio (1925). The prohibition on ex post facto laws is closely related to the prohibition on bills of attainder, which are legislative actions that determine guilt or impose punishment without a judicial trial.
The US Constitution's prohibition on ex post facto laws is not unique, as several other countries also prohibit such laws. For example, ex post facto criminal laws are prohibited by the European Convention on Human Rights, the International Covenant on Civil and Political Rights, and the American Convention on Human Rights. In Canada, ex post facto criminal laws are prohibited by the Charter of Rights and Freedoms.
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Ex Post Facto and Bill of Attainder prohibitions
Ex post facto laws are prohibited by the US Constitution, which states that no ex post facto law shall be passed. This means that laws cannot be applied retrospectively, changing the legal consequences or status of actions that were committed before the law's enactment. The US Constitution also prohibits bills of attainder, which are laws that determine guilt or impose criminal punishment on specific persons or groups without a judicial trial. These prohibitions protect citizens against potential abuses of government power and ensure that individuals have fair warning of the effects of legislative Acts.
The US Constitution's prohibition on ex post facto laws applies to both the federal government and state governments. The Supreme Court has interpreted this prohibition to mean that laws cannot retroactively impose criminal liability or increase criminal punishment. This means that if the law has changed after an offense was committed, the version of the law that is more advantageous for the accused should be applied. The prohibition on ex post facto laws also applies to laws that aggravate an offense or make innocent acts criminal after the event.
The US Constitution's prohibition on bills of attainder applies to both the federal government and the states. Bills of attainder are special acts of the legislature that inflict capital punishment or other penalties on persons supposed to be guilty of high offenses, such as treason or felony, without any conviction in a judicial trial. The bill of attainder clause is an implementation of the separation of powers and a general safeguard against trial by legislature. It reflects the belief that the legislative branch is not well-suited to ruling upon the blameworthiness of, and levying appropriate punishment upon, specific persons.
In some cases, a single legislative action may violate both the ex post facto and bill of attainder prohibitions. For example, in Cummings v. Missouri (1866), the Supreme Court invalidated a Missouri law that required anyone seeking a professional's license from the state to swear they had not supported the rebellion. This law was found to be both an ex post facto law and a bill of attainder. Similarly, in Ex parte Garland (1866), the Supreme Court struck down a federal law requiring attorneys practising in federal court to swear that they had not supported the rebellion, finding it to be a bill of attainder.
In conclusion, the US Constitution's prohibitions on ex post facto laws and bills of attainder protect citizens against retroactive government action and ensure that legislative Acts give fair warning of their effects. These prohibitions apply to both the federal government and the states, and they serve to restrict governmental power and prevent arbitrary and potentially vindictive legislation.
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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, Article 15(1) of the International Covenant on Civil and Political Rights, and Article 9 of the American Convention on Human Rights.
Europe
European countries apply the principle of lex mitior ("the milder law"), which states that if the law has changed after an offence was committed, the version of the law that applies is the one that is more advantageous to the accused. This means that ex post facto laws can apply in European jurisdictions if they are the milder law.
Australia
Australia has no strong constitutional prohibition on ex post facto laws, although narrowly retrospective laws might violate the constitutional separation of powers principle. Australian courts normally interpret statutes with a strong presumption that they do not apply retrospectively.
Brazil
According to the 5th Article, section XXXVI of the Brazilian Constitution, laws cannot have ex post facto effects that affect acquired rights, accomplished juridical acts, and res judicata.
India
Article 20(1) of the Indian Constitution prohibits the conviction and sentencing of individuals under an ex post facto law for acts committed before the law was enacted. However, unlike in the United States, such laws are not considered invalid in India. The courts may interpret a law in a way that removes any objection against its retrospective operation.
France
France may have a form of ex post facto amnesty law, where a reduction in the statutory sentence for a crime automatically and retroactively benefits people currently serving sentences for that crime.
International Criminal Law
The Nuremberg trials prosecuted war crimes and crimes against humanity perpetrated during World War II, even though the Nuremberg Charter, the procedural law under which the trials were held, postdated V-E Day. The tribunal rejected the defence that the criminal law was ex post facto, arguing that it derived from earlier treaties like the Hague Conventions of 1899 and 1907. The International Criminal Court established in 2002 that it cannot prosecute crimes committed before 2002. Article 11, paragraph 2 of the Universal Declaration of Human Rights provides that no person shall be held guilty of any criminal law that did not exist at the time of the offence, nor shall they suffer any penalty heavier than what existed at the time.
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Supreme Court rulings on Ex Post Facto laws
The US Constitution's prohibition on ex post facto laws is designed to ensure that legislative acts provide fair warning of their effects. It also allows individuals to rely on their meaning until explicitly changed, restricting governmental power by restraining arbitrary and potentially vindictive legislation.
The US Constitution has two Ex Post Facto Clauses, but only one can apply to any given piece of legislation. The federal Ex Post Facto Clause and the state Ex Post Facto Clause are sometimes distinguished, but they are also used interchangeably. The Supreme Court has cited cases interpreting the federal Ex Post Facto Clause in challenges under the state clause, implying that the two clauses have the same scope.
The Supreme Court has ruled 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. In Neely v. Henkel (1901), the Court held that the prohibitions did not apply to a crime committed in Jamaica.
In Beazell v. Ohio (1925), the Supreme Court defined the scope of the constitutional prohibition on ex post facto laws. The Court held that any statute that punishes an act that was previously legal, increases punishment for a crime after its commission, or deprives a defendant of a defence available at the time of the act is prohibited as ex post facto.
The Supreme Court has also ruled on the application of ex post facto laws in specific cases. In California Department of Corrections v. Morales (1995), the Court applied the Beazell standard to the parole process, holding that an amendment impacting a prisoner's parole process does not violate the ex post facto prohibition if it does not increase the punishment for the underlying crime.
In Rogers v. Tennessee (2000), the Supreme Court found that the Tennessee Court of Criminal Appeals' abolition of the "Year and a Day Rule" did not violate the ex post facto prohibition. The Court reasoned that 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.
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Frequently asked questions
An ex post facto law is 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.
Article 1 § 10 of the US Constitution prohibits the states from passing any laws which apply ex post facto.
In California Dep't of Corrections v. Morales, California amended a law to state that the California Board of Prison Terms may defer parole hearings for up to three years for a prisoner convicted of more than one homicide offense.
