Ex Post Facto Laws

Clause 3. Bills of Attainder and Ex Post Facto Laws

No Bill of Attainder or ex post facto Law shall be passed.

Ex Post Facto Laws Definition

Both federal and state governments are prohibited from enacting ex post facto laws,1 and the Court applies the same analysis whether the law in question is a federal or a state enactment. When these prohibitions were adopted as part of the original Constitution, many persons understood the term ex post facto laws to “embrace all retrospective laws, or laws governing or controlling past transactions, whether . . . of a civil or a criminal nature.” 2 But in the early case of Calder v. Bull,3 the Supreme Court decided that the phrase, as used in the Constitution, was a term of art that applied only to penal and criminal statutes. But, although it is inapplicable to retroactive legislation of any other kind,4 the constitutional prohibition may not be evaded by giving a civil form to a measure that is essentially criminal.5 Every law that makes criminal an act that was innocent when done, or that inflicts a greater punishment than the law annexed to the crime when committed, is an ex post facto law within the prohibition of the Constitution.6 A prosecution under a temporary statute that was extended before the date originally set for its expiration does not offend this provision even though it is instituted subsequent to the extension of the statute's duration for a violation committed prior thereto.7 Because this provision does not apply to crimes committed outside the jurisdiction of the United States against the laws of a foreign country, it is immaterial in extradition proceedings whether the foreign law is ex post facto or not.8

Resources

References

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

[Footnote 1] The prohibition on state ex post facto legislation appears in Art. I, § 10, cl. 1.

[Footnote 2] 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1339 (1833).

[Footnote 3] 3 U.S. (3 Dall.) 386, 393 (1798).

[Footnote 4] Bankers Trust Co. v. Blodgett, 260 U.S. 647, 652 (1923).

[Footnote 5] Burgess v. Salmon, 97 U.S. 381 (1878).

[Footnote 6] Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798); Ex parte Garland, 71 U.S. (4 Wall.) 333, 377 (1867); Burgess v. Salmon, 97 U.S. 381, 384 (1878).

[Footnote 7] United States v. Powers, 307 U.S. 214 (1939).

[Footnote 8] Neely v. Henkel, 180 U.S. 109, 123 (1901). Cf. In re Yamashita, 327 U.S. 1, 26 (1946) (dissenting opinion of Justice Murphy); Hirota v. MacArthur, 338 U.S. 197, 199 (1948) (concurring opinion of Justice Douglas).

Change in Place or Mode of Trial

A change of the place of trial of an alleged offense after its commission is not an ex post facto law. If no place of trial was provided when the offense was committed, Congress may designate the place of trial thereafter.9 A law that alters the rule of evidence to permit a person to be convicted upon less or different evidence than was required when the offense was committed is invalid,10 but a statute that simply enlarges the class of persons who may be competent to testify in criminal cases is not ex post facto as applied to a prosecution for a crime committed prior to its passage.11

Resources

References

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

[Footnote 9] Cook v. United States, 138 U.S. 157, 183 (1891).

[Footnote 10] Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798).

[Footnote 11] Hopt v. Utah, 110 U.S. 574, 589 (1884).

Ex Post Facto Laws: Scope of the Provision

The prohibition against state ex post facto laws, like the cognate restriction imposed on the Federal Government by § 9, relates only to penal and criminal legislation and not to civil laws that affect private rights adversely.12 Distinguishing between civil and penal laws was at the heart of the Court's decision in Smith v. Doe 13 upholding application of Alaska's “Megan's Law” to sex offenders who were convicted before the law's enactment. The Alaska law requires released sex offenders to register with local police and also provides for public notification via the Internet. The Court accords “considerable deference” to legislative intent; if the legislature's purpose was to enact a civil regulatory scheme, then the law can be ex post facto only if there is “the clearest proof ” of punitive effect.14 Here, the Court determined, the legislative intent was civil and non-punitive&emdash;to promote public safety by “protecting the public from sex offenders.” The Court then identified several “useful guideposts” to aid analysis of whether a law intended to be non-punitive nonetheless has punitive effect. Registration and public notification of sex offenders are of recent origin, and are not viewed as a “traditional means of punishment.” 15 The Act does not subject the registrants to an “affirmative disability or restraint”; there is no physical restraint or occupational disbarment, and there is no restraint or supervision of living conditions, as there can be under conditions of probation. The fact that the law might deter future crimes does not make it punitive. All that is required, the Court explained, is a rational connection to a non-punitive purpose, and the statute need not be narrowly tailored to that end.16 Nor is the act “excessive” in relation to its regulatory purpose.17 Rather, the “means chosen are reasonable in light of the [state's] non-punitive objective” of promoting public safety by giving its citizens information about former sex offenders, who, as a group, have an alarmingly high rate of recidivism.18

More about Ex Post Facto Laws: Scope of the Provision

There are three categories of ex post facto laws: those “which punish[ ] as a crime an act previously committed, which was innocent when done; which make[ ] more burdensome the punishment for a crime, after its commission; or which deprive[ ] one charged with crime of any defense available according to law at the time when the act was committed.” 19 The bar is directed only against legislative action and does not touch erroneous or inconsistent decisions by the courts.20

Scope of the Ex Post Facto Laws: Developments

The fact that a law is ex post facto and invalid as to crimes committed prior to its enactment does not affect its validity as to subsequent offenses.21 A statute that mitigates the rigor of the law in force at the time the crime was committed,22 or merely penalizes the continuance of conduct lawfully begun before its passage, is not ex post facto. Thus, measures penalizing the failure of a railroad to cut drains through existing embankments 23 or making illegal the continued possession of intoxicating liquors which were lawfully acquired 24 have been held valid.

Resources

References

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

[Footnote 12] Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798); Watson v. Mercer, 33 U.S. (8 Pet.) 88, 110 (1834); Baltimore and Susquehanna R.R. v. Nesbit, 51 U.S. (10 How.) 395, 401 (1850); Carpenter v. Pennsylvania, 58 U.S. (17 How.) 456, 463 (1855); Loche v. New Orleans, 71 U.S. (4 Wall.) 172 (1867); Orr v. Gilman, 183 U.S. 278, 285 (1902); Kentucky Union Co. v. Kentucky, 219 U.S. 140 (1911). In Eastern Enterprises v. Apfel, 524 U.S. 498, 538 (1998) (concurring), Justice Thomas indicated a willingness to reconsider Calder to determine whether the clause should apply to civil legislation.

[Footnote 13] 538 U.S. 84 (2003).

[Footnote 14] 538 U.S. at 92.

[Footnote 15] The law's requirements do not closely resemble punishments of public disgrace imposed in colonial times; the stigma of Megan's Law results not from public shaming but from the dissemination of information about a criminal record, most of which is already public. 538 U.S. at 98.

[Footnote 16] 538 U.S. at 102.

[Footnote 17] Excessiveness was alleged to stem both from the law's duration (15 years of notification by those convicted of less serious offenses; lifetime registration by serious offenders) and in terms of the widespread (Internet) distribution of the information.

[Footnote 18] 538 U.S. at 105. Unlike involuntary civil commitment, where “the magnitude of restraint [makes] individual assessment appropriate,” the state may make “reasonable categorical judgments,” and need not provide individualized determinations of dangerousness. Id. at 103.

[Footnote 19] Collins v. Youngblood, 497 U.S. 37, 42 (1990) (quoting Beazell v. Ohio, 269 U.S. 167, 169-70 (1925)). Alternatively, the Court described the reach of the clause as extending to laws that “alter the definition of crimes or increase the punishment for criminal acts.” Id. at 43. Justice Chase's oft-cited formulation has a fourth category: “every law that aggravates a crime, or makes it greater than it was, when committed.” Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798), cited in, e.g., Carmell v. Texas, 529 U.S. 513, 522 (2000).

[Footnote 20] Frank v. Mangum, 237 U.S. 309, 344 (1915); Ross v. Oregon, 227 U.S. 150, 161 (1913). However, an unforeseeable judicial enlargement of a criminal statute so as to encompass conduct not covered on the face of the statute operates like an ex post facto law if it is applied retroactively and violates due process in that event. Bouie v. City of Columbia, 378 U.S. 347 (1964). See Marks v. United States, 430 U.S. 188 (1977) (applying Bouie in context of § 9, cl. 3). But see Splawn v. California, 431 U.S. 595 (1977) (rejecting application of Bouie). The Court itself has not always adhered to this standard. See Ginzburg v. United States, 383 U.S. 463 (1966). 2015 Jaehne v. New York, 128 U.S. 189, 194 (1888).

[Footnote 21] Jaehne v. New York, 128 U.S. 189, 194 (1888).

[Footnote 22] Rooney v. North Dakota, 196 U.S. 319, 325 (1905).

[Footnote 23] Chicago & Alton R.R. v. Tranbarger, 238 U.S. 67 (1915).

[Footnote 24] Samuels v. McCurdy, 267 U.S. 188 (1925).

Tables of Contents

• Ex Post Facto Laws 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 other Topics in the Constitution Contents
• Interpretation of the U.S. Constitution (Table of Contents)
• Clauses of the Constitution (Table of Contents)