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Ex Post Facto Laws

Further Readings

[Latin, "After-the-fact" laws.] Laws that provide for the infliction of punishment upon a person for some prior act that, at the time it was committed, was not illegal.

Ex post facto laws retroactively change the RULES OF EVIDENCE in a criminal case, retroactively alter the definition of a crime, retroactively increase the punishment for a criminal act, or punish conduct that was legal when committed. They are prohibited by Article I, Section 10, Clause 1, of the U.S. Constitution. An ex post facto law is considered a hallmark of tyranny because it deprives people of a sense of what behavior will or will not be punished and allows for random punishment at the whim of those in power.

The prohibition of ex post facto laws was an imperative in colonial America. The Framers of the Constitution understood the importance of such a prohibition, considering the historical tendency of government leaders to abuse power. As ALEXANDER HAMILTON observed, "[I]t is easy for men … to be zealous advocates for the rights of the citizens when they are invaded by others, and as soon as they have it in their power, to become the invaders themselves." The desire to thwart abuses of power also inspired the Framers of the Constitution to prohibit bills of attainder, which are laws that inflict punishment on named individuals or on easily ascertainable members of a group without the benefit of a trial. Both ex post facto laws and bills of attainder deprive those subject to them of DUE PROCESS of law—that is, of notice and an opportunity to be heard before being deprived of life, liberty, or property.

The Constitution did not provide a definition for ex post facto laws, so the courts have been forced to attach meaning to the concept. In Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L. Ed. 648 (1798), the U.S. Supreme Court provided a first and lasting interpretation of the Ex Post Facto Clause. The focus of the Calder case was a May 1795 resolution of the Connecticut legislature that specifically set aside a March 1793 probate court decree. The resolution allowed the defeated party in the probate contest a new hearing on the matter of the will. The Court in Calder ruled that the Connecticut resolution did not constitute an ex post facto law because it did not affect a vested property right. In other words, no one had complete ownership of the property in the will, so depriving persons of the property did not violate the ex post facto clause. The Court went on to list situations that it believed the clause did address. It opined that an ex post facto law was one that rendered new or additional criminal punishment for a prior act or changed the rules of evidence in a criminal case.

In Calder, the Court's emphasis on criminal laws seemed to exclude civil laws from a definition of ex post facto—that is, it implied that if a statute did not inflict criminal punishment, it did not violate the Ex Post Facto Clause. Twelve years later, the U.S. Supreme Court held that a civil statute that revoked land grants to purchasers violated the Ex Post Facto Clause (FLETCHER V. PECK, 10 U.S. (6 Cranch) 87, 3 L. Ed. 162 [1810]). However, in 1854, faced with another opportunity to define ex post facto, the Court retreated from Fletcher and limited the prohibition to retroactively applied criminal laws (Carpenter v. Pennsylvania, 58 U.S. (17 How.) 456, 15 L. Ed. 127 [1854]).

In Carpenter, the Court noted that the esteemed legal theorist SIR WILLIAM BLACKSTONE (1723–80) had described ex post facto in criminal terms. According to Blackstone, an ex post facto law has been created when, "after an action (indifferent in itself) is committed, the legislature then for the first time declares it to have been a crime, and inflicts punishment upon the person who has committed it." Using this as the understanding of ex post facto in 1789, the Court reasoned that it must have been the Framers' intent to limit the clause to criminal laws. However, notes from the Constitutional Convention indicate that the clause should cover the retroactive application of all laws, including civil laws. The only exception for ex post facto laws discussed at the Constitutional Convention was in case of "necessity and public safety" (Farrand, 1937).

Since the Carpenter ruling, the Supreme Court has struck down some retroactive civil laws, but only those intended to have a punitive intent. This construction of the Ex Post Facto Clause has done little more than raise another question: What is punitive intent? The answer lies, invariably, with the U.S. Supreme Court.

Court members have agreed unanimously on ex post facto arguments, but it have also split over the issue. In California Department of Corrections v. Morales, 514 U.S. 499, 115 S. Ct. 1597, 131 L. Ed. 2d 588 (1995), Jose Ramon Morales challenged a 1981 amendment (Cal. Penal Code Ann. Sec. 3041 [West 1982]) to California's PAROLE statute that allowed the California Board of Prison Terms to defer for three years the parole hearings of multiple murderers (1977 Cal. Stats. ch. 165, sec. 46). Before the amendment, California law stated that a prisoner eligible for parole was entitled to a parole hearing every year. Morales had two convictions for murder, his second conviction coming in 1980, one year before passage of the amendment.

In 1989, the board denied parole to Morales and scheduled Morales's next hearing for 1992. Morales filed suit, arguing that the amendment was retroactive punishment and therefore unconstitutional. The district court disagreed. However, on appeal, the U.S. Court of Appeals for the Ninth Circuit reversed that decision, holding that the law effectively increased punishment for Morales, thus offending the Ex Post Facto Clause.

By a vote of 7 to 2, the U.S. Supreme Court reversed the Ninth Circuit. Justice CLARENCE THOMAS, writing for the majority, noted that the law only "introduced the possibility" that a convict would receive fewer parole hearings and serve more prison time than he or she expected. The board was required to formally find "no reasonable probability … for parole in the interim period" before it could defer a parole hearing for three years. According to the majority in Morales, the evident focus of the California law was " 'to relieve the [board] from the costly and time consuming responsibility of scheduling parole hearings' " (quoting In re Jackson, 39 Cal. 3d at 473, 216 Cal. Rptr. at 765, 703 P.2d at 106 [quoting legislative history]). The majority noted further that any assertion that the law might actually increase incarceration for those affected by it was largely "speculative."

Justices JOHN PAUL STEVENS and DAVID H. SOUTER dissented. The dissent warned of legislative overreaching, arguing that "the concerns that animate the Ex Post Facto Clause demand enhanced, and not (as the majority seems to believe) reduced, judicial scrutiny." To Stevens and Souter, the majority's own opinion was speculative, and "not only unpersuasive, but actually perverse."

The Supreme Court has continued to be divided on issues related to this clause. In Carmell v. Texas, 529 U.S. 513, 120 S. Ct. 1620, 146 L. Ed. 2d 577 (2000), the Court ruled, in a 5 to 4 decision, that several criminal convictions of a SEX OFFENDER could not stand because the state of Texas had changed the rules of evidence after he had committed the offenses. The defendant, Scott Carmell, was sentenced to life in prison for fifteen counts involving various SEXUAL OFFENSES against his stepdaughter. The victim was twelve- to sixteen-years old during the period that the offenses occurred. In 1993, the Texas Legislature changed its rules of evidence so that a person could be convicted based only on the testimony of the victim if the victim was less than eighteen years old at the time of the offense. The previous age limit in Texas for a victim was fourteen years old.

Carmell challenged the convictions for offenses that occurred when the victim was older than fourteen, but younger than eighteen, because the change in the rules of evidence amounted to an ex post facto law. The Supreme Court, per Justice John Paul Stevens, agreed with the defendant. According to the majority, "laws that lower the BURDEN OF PROOF and laws that reduce the quantum of evidence necessary to meet the burden are indistinguishable in all meaningful ways relevant to the concerns of the Ex Post Facto Clause."

The following year, the Court again considered the application of the clause in Rogers v. Tennessee, 532 U.S. 451, 121 S. Ct. 1693, 149 L. Ed. 2d 697 (2001). The Court examined the relation of the clause to the Fourteenth Amendment's DUE PROCESS CLAUSE and to COMMON LAW rules. It ruled that the clause did not apply to a state supreme court decision that abolished a common law rule dating back to medieval England.

The debate over ex post facto interpretation continues. Critics of contemporary ex post facto interpretation argue that legislatures circumvent the ex post facto prohibition by casting in civil terms laws that provide additional punishment for convicted criminals. For example, they have passed laws that require certain convicted SEX OFFENDERS to register with local authorities and thus make public their continued presence in a community. By virtue of the VIOLENT CRIME CONTROL AND LAW ENFORCEMENT ACT OF 1994 (42 U.S.C.A. § 14071(a)(1)(A)), such laws are required of states that wish to receive certain anti-drug funds.

Sex offender registration laws, or community notification laws, do not provide for retroactive additional incarceration. They do, however, provide additional consequences for a sex offender who was not, at the time the offense was committed, subject to such a constraint. Courts have held that such laws do not run afoul of the Ex Post Facto Clause, because, in part, the requirement is defined as civil regulation; that is, the law does not require extra prison time or exact an excessive fine. Also, such statutes are enacted for the protection of the public, which is an exception to ex post facto prohibition. Dissenters maintain that sex offender registration laws inflict additional punishment and therefore violate the Ex Post Facto Clause. Only one state, Alaska, has found such a law unconstitutional (Rowe v. Burton, 884 F. Supp. 1372 [D. Alaska 1994]).

The line between punitive measure and civil regulation can be thin. So long as legislatures pass laws that provide extra punishment for, or regulation of, conduct already committed, there will be arguments that the government is abusing its power in violation of the Ex Post Facto Clause.

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