Ex Post Facto Laws and Punishment

What Constitutes Punishment

The issue of whether a law is civil or punitive in nature is essentially the same for ex post facto and for double jeopardy analysis.1 “A court must ascertain whether the legislature intended the statute to establish civil proceedings. A court will reject the legislature's manifest intent only where a party challenging the Act provides the clearest proof that the statutory scheme is so punitive in either purpose or effect as to negate the State's intention.” 2 A statute that has been held to be civil and not criminal in nature cannot be deemed punitive “as applied” to a single individual.3

More about What Constitutes Punishment

A variety of federal laws have been challenged as ex post facto. A statute that prescribed as a qualification for practice before the federal courts an oath that the attorney had not participated in the Rebellion was found unconstitutional because it operated as a punishment for past acts.4 But a statute that denied to polygamists the right to vote in a territorial election was upheld even as applied to one who had not contracted a polygamous marriage and had not cohabited with more than one woman since the act was passed, because the law did not operate as an additional penalty for the offense of polygamy but merely defined it as a disqualification of a voter.5 A deportation law authorizing the Secretary of Labor to expel aliens for criminal acts committed before its passage is not ex post facto because deportation is not a punishment. 6 For this reason, a statute terminating payment of old-age benefits to an alien deported for Communist affiliation also is not ex post facto, for the denial of a non-contractual benefit to a deported alien is not a penalty but a regulation designed to relieve the Social Security System of administrative problems of supervision and enforcement likely to arise from disbursements to beneficiaries residing abroad.7 Likewise, an act permitting the cancellation of naturalization certificates obtained by fraud prior to the passage of the law was held not to impose a punishment, but instead simply to deprive the alien of his ill-gotten privileges.8

Resources

References

This text about Ex Post Facto Laws and Punishment is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

[Footnote 1] Kansas v. Hendricks, 521 U.S. 346 (1997); Seling v. Young, 531 U.S. 250 (2001).

[Footnote 2] Seling v. Young, 531 U.S. 250, 261 (2001) (interpreting Art. I, § 10).

[Footnote 3] Seling v. Young, 531 U.S. at 263 (2001).

[Footnote 4] Ex parte Garland, 71 U.S. (4 Wall.) 333 (1867).

[Footnote 5] Murphy v. Ramsey, 114 U.S. 15 (1885).

[Footnote 6] Mahler v. Eby, 264 U.S. 32 (1924); Bugajewitz v. Adams, 228 U.S. 585 (1913); Marcello v. Bonds, 349 U.S. 302 (1955). Justices Black and Douglas, reiterating in Lehman v. United States ex rel. Carson, 353 U.S. 685, 690-91 (1957), their dissent from the premise that the ex post facto clause is directed solely to penal legislation, disapproved a holding that an immigration law, enacted in 1952, 8 U.S.C. § 1251, which authorized deportation of an alien who, in 1945, had acquired a status of nondeportability under pre-existing law is valid. In their opinion, to banish, in 1957, an alien who had lived in the United States for almost 40 years, for an offense committed in 1936, and for which he already had served a term in prison, was to retrospectively subject him to a new punishment.

[Footnote 7] Flemming v. Nestor, 363 U.S. 603 (1960).

[Footnote 8] Johannessen v. United States, 225 U.S. 227 (1912).

Ex Post Facto Laws: Changes in Punishment

Justice Chase in Calder v. Bull gave an alternative description of the four categories of ex post facto laws, two of which related to punishment. One such category was laws that inflict punishment “where the party was not, by law, liable to any punishment”; the other was laws that inflict greater punishment than was authorized when the crime was committed.9

More about Ex Post Facto Laws: Changes in Punishment

Illustrative of the first of these punishment categories is “a law enacted after expiration of a previously applicable statute of limitations period [as] applied to revive a previously time-barred prosecution.” Such a law, the Court ruled in Stogner v. California,10 is prohibited as ex post facto. Courts that had upheld extension of unexpired statutes of limitation had been careful to distinguish situations in which the limitations periods have expired. The Court viewed revival of criminal liability after the law had granted a person “effective amnesty” as being “unfair” in the sense addressed by the Ex Post Facto Clause.

Changes in Punishment (Ex Post Facto): Developments

Illustrative of the second punishment category are statutes, all applicable to offenses committed prior to their enactment, that changed an indeterminate sentence law to require a judge to impose the maximum sentence,11 that required solitary confinement for prisoners previously sentenced to death,12 and that allowed a warden to fix, within limits of one week, and keep secret the time of execution. 13 Because it made more onerous the punishment for crimes committed before its enactment, a law that altered sentencing guidelines to make it more likely that the sentencing authority would impose on a defendant a more severe sentence than was previously likely and making it impossible for the defendant to challenge the sentence was ex post facto as to one who had committed the offense prior to the change.14 The Court adopted similar reasoning as regards changes in the U.S. Sentencing Guidelines: even though the Guidelines are advisory only, 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. 15 But laws providing heavier penalties for new crimes thereafter committed by habitual criminals; 16 “prescrib[ing] electrocution as the method of producing death instead of hanging, fix[ing] the place therefor within the penitentiary, and permitt[ing] the presence of more invited witnesses that had theretofore been allowed”; 17 or providing for close confinement of six to nine months in the penitentiary, in lieu of three to six months in jail prior to execution, and substituting the warden for the sheriff as hangman, have been sustained.18

Other Aspects

In Dobbert v. Florida,19 the Court may have formulated a new test for determining when the punishment provided by a criminal statute is ex post facto. The defendant murdered two of his children at a time when Florida law provided the death penalty upon conviction for certain takings of life. Subsequently, the Supreme Court held capital sentencing laws similar to Florida's unconstitutional, although convictions obtained under the statutes were not to be overturned, 20 and the Florida Supreme Court voided its death penalty statutes on the authority of the High Court decision. The Florida legislature then enacted a new capital punishment law, which was sustained. Dobbert was convicted and sentenced to death under the new law, which had been enacted after the commission of his offenses. The Court rejected the ex post facto challenge to the sentence on the basis that whether or not the old statute was constitutional, “it clearly indicated Florida's view of the severity of murder and of the degree of punishment which the legislature wished to impose upon murderers. The statute was intended to provide maximum deterrence, and its existence on the statute books provided fair warning as to the degree of culpability which the State ascribed to the act of murder.” 21 Whether the “fair warning” standard is to have any prominent place in ex post facto jurisprudence may be an interesting question, but it is problematical whether the fact situation will occur often enough to make the principle applicable in many cases.

Resources

References

This text about Ex Post Facto Laws and Punishment is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

[Footnote 9] 3 U.S. (3 Dall.) 386, 389 (1798).

[Footnote 10] 539 U.S. 607, 632-33 (2003) (invalidating application of California's law to revive child abuse charges 22 years after the limitations period had run for the alleged crimes).

[Footnote 11] Lindsey v. Washington, 301 U.S. 397 (1937). But note the limitation of Lindsey in Dobbert v. Florida, 432 U.S. 282, 298-301 (1977).

[Footnote 12] Holden v. Minnesota, 137 U.S. 483, 491 (1890).

[Footnote 13] Medley, Petitioner, 134 U.S. 160, 171 (1890).

[Footnote 14] Miller v. Florida, 482 U.S. 423 (1987). But see California Dep't of Corrections v. Morales, 514 U.S. 499 (1995) (a law amending parole procedures to decrease frequency of parole-suitability hearings is not ex post facto as applied to prisoners who committed offenses before enactment). The opinion modifies previous opinions that had held some laws impermissible because they operated to the disadvantage of covered offenders. Henceforth, “the focus of ex post facto inquiry is . . . whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable.” Id. at 506 n.3. Accord, Garner v. Jones, 529 U.S. 244 (2000) (evidence insufficient to determine whether change in frequency of parole hearings significantly increases the likelihood of prolonging incarceration). But see Lynce v. Mathis, 519 U.S. 433 (1997) (cancellation of release credits already earned and used, resulting in reincarceration, violates the Clause).

[Footnote 15] Peugh v. United States, 569 U.S.___, No. 12-62, slip op. (2013).

[Footnote 16] Gryger v. Burke, 334 U.S. 728 (1948); McDonald v. Massachusetts, 180 U.S. 311 (1901); Graham v. West Virginia, 224 U.S. 616 (1912).

[Footnote 17] Malloy v. South Carolina, 237 U.S. 180, 183 (1915).

[Footnote 18] Rooney v. North Dakota, 196 U.S. 319, 324 (1905).

[Footnote 19] 432 U.S. 282, 297-98 (1977).

[Footnote 20] Furman v. Georgia, 408 U.S. 238 (1972). The new law was sustained in Proffitt v. Florida, 428 U.S. 242 (1976).

[Footnote 21] 432 U.S. at 297.

Tables of Contents

• Ex Post Facto Laws and Punishment and other Topics in the Contents – Article 1 of the U.S. Constitution
• U.S. Constitutional Law Category
• List of amendments to the U.S. Constitution
• Ex Post Facto Laws and Punishment and other Topics in the Constitution Contents
• Interpretation of the U.S. Constitution (Table of Contents)
• Clauses of the Constitution (Table of Contents)