Jonah Patel
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). The prohibition on ex post facto laws seeks to ensure that legislative Acts give fair warning of their effect and allow individuals to rely on their meaning until explicitly changed. This restriction on governmental power prevents the retroactive criminalization of actions and the imposition of harsher punishments for crimes committed before the enactment of a law. While the US Constitution prohibits ex post facto laws, other countries, such as those following the Westminster system, may allow them due to the doctrine of parliamentary supremacy.
| Characteristics | Values |
|---|---|
| Location in the US Constitution | Article 1, Section 9, Clause 3 (federal laws) and Article 1, Section 10 (state laws) |
| Prohibits | Congress from passing any laws which apply ex post facto |
| States from passing any laws which apply ex post facto | |
| Definition | Criminal statutes that punish actions retroactively, thereby criminalizing conduct that was legal when originally performed |
| Exceptions | Does not apply to judicial decisions or laws passed in other countries |
| Does not apply to civil laws that affect private rights adversely | |
| Does not prohibit applying lower penalties | |
| Does not prohibit laws that penalize the continuance of conduct that was legal before the law was passed | |
| Does not prohibit denying future privileges to past offenders | |
| Does not apply to laws that are not punitive and do not impair the obligation of contracts | |
| In some nations with parliamentary supremacy, ex post facto laws may be possible | |
| In nations with a bill of rights, ex post facto laws may be allowed or prohibited, and this provision may be general or specific | |
| In European countries, ex post facto laws may apply to the extent that they are the milder law | |
| In Canada, ex post facto laws are prohibited, but rights are not absolute and may be overridden | |
| In Estonia, no one can be convicted of an act that was not a criminal offense at the time, but ex post facto laws may be made in civil matters such as taxation | |
| In Finland, ex post facto laws are generally not permitted but are not expressly forbidden |
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Ex post facto laws in the US Constitution
Ex post facto laws are expressly forbidden by the United States Constitution. The US Constitution prohibits the federal and state governments from passing ex post facto laws, which are laws that retroactively create a crime where none existed before.
The US Constitution's prohibition of ex post facto laws is outlined in Article 1, Section 9, Clause 3 (with respect to federal laws) and Article 1, Section 10 (with respect to state laws). These clauses ban legislatures from enacting laws that impose criminal liability or increase criminal punishment retroactively. The Supreme Court has interpreted these clauses to mean that ex post facto laws do not apply to judicial decisions, only legislative decisions.
The US Constitution's prohibition of ex post facto laws is closely related to the ban on bills of attainder, which are laws that impose criminal punishment on specific individuals or groups for past actions without a trial. Both of these constitutional prohibitions serve to protect against legislative overreach and preserve the separation of powers.
The prohibition on ex post facto laws seeks to ensure that legislative acts give fair warning of their effects and restrict governmental power by restraining arbitrary and potentially vindictive legislation. This means that individuals can rely on the meaning of laws until they are explicitly changed.
While the US Constitution prohibits ex post facto laws, there are some exceptions. For example, the Supreme Court has held that a law impacting someone currently imprisoned does not violate ex post facto prohibitions if it does not increase the punishment attached to the respondent's crime. Additionally, measures that penalize the continuance of conduct that was lawfully begun before the passage of a law are not considered ex post facto.
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Ex post facto laws in other nations
Ex post facto laws are most typically used to refer to criminal statutes that punish actions retroactively, thereby criminalizing conduct that was legal when originally performed. While the United States Constitution prohibits ex post facto laws, other nations have their own unique approaches and interpretations.
In the United Kingdom, for example, ex post facto laws are permitted due to the doctrine of parliamentary sovereignty. Historically, all acts of Parliament before 1793 were considered ex post facto legislation, with their date of effect being the first day of the session in which they were passed. This was addressed by the Acts of Parliament (Commencement) Act 1793, which rectified the situation. However, it is worth noting that some laws are still passed retrospectively, such as the Pakistan Act 1990.
In Spain, Article 9.3 of the Spanish Constitution guarantees the principle of non-retroactivity of punitive provisions that are not favourable to or restrictive of individual rights. This means that ex post facto criminal laws or any other retroactive punitive provisions are constitutionally prohibited. Similarly, Section 35(3) of the South African Bill of Rights prohibits ex post facto criminal laws, with the exception of acts that violated international law at the time, even if they were not illegal under national law.
In Germany, Article 103 of the German Basic Law stipulates that an act can only be punished if it was already punishable by written law at the time it was committed. This demonstrates a strong commitment to the principle of legality, where laws must exist and be published before an act is committed to be enforceable.
In Ukraine, Article 58 of the Constitution states that laws and regulatory acts shall not have retroactive force, except when they mitigate or nullify the responsibility of an individual. This means that individuals cannot be held responsible for acts that were not deemed unlawful by law at the time they were committed.
It is worth noting that the interpretation and application of ex post facto laws can be complex and may vary across different legal systems. The provided examples showcase how various nations address the concept of ex post facto laws within their legal frameworks.
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Bills of attainder
The United States Constitution prohibits Congress from issuing "bills of attainder" in Article I, Section 9, Clause 3, which states: "No Bill of Attainder or ex post facto Law shall be passed." This clause reinforces the foundational idea in the American justice system that the government cannot punish someone unless they receive due process, typically in the form of a trial.
The prohibition against bills of attainder is legally distinct from the ban on ex post facto laws, but both work together to protect against legislative overreach and preserve the Constitution's separation of powers. While ex post facto laws refer specifically to the retroactive criminalisation of actions, bills of attainder can apply to both criminal and civil matters.
In United States v. Lovett (1946), the Supreme Court struck down an appropriations bill that cut off the pay of certain federal employees accused of being subversives as a bill of attainder. The Court found that the legislation effectively declared these individuals guilty without a trial and permanently barred them from government service, which qualified as a severe form of punishment.
In United States v. Brown (1918), the Court held void a statute making it a crime for a member of the Communist Party to serve as an employee or officer of a labor union. This case cast doubt on certain statutes that had been held not to constitute bills of attainder, particularly those involving conflict-of-interest legislation.
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Supreme Court rulings
The United States Constitution prohibits ex post facto laws in Article I, which bars Congress and state legislatures from enacting such measures. The Supreme Court has clarified the scope of this prohibition through various landmark cases, including Calder v. Bull (1798) and Beazell v. Ohio (1925).
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. The first category was laws that inflicted punishment "where the party was not, by law, liable to any punishment". The second category was laws that inflicted greater punishment than was authorised when the crime was committed. For example, in Stogner v. California, the Court ruled that a law enacted after the expiration of a previously applicable statute of limitations period to revive a previously time-barred prosecution was prohibited as ex post facto.
In Beazell v. Ohio, the Supreme Court defined the scope of the constitutional ex post facto clause through the following restrictions:
> "It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with a crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto."
The Supreme Court has also ruled on the applicability of the ex post facto clause to judicial decisions. In Rogers, the Court found that the prohibition applies only to legislative decisions. In Bouie v. City of Columbia, the Court held that "due process prohibits the retroactive application of any judicial construction of a criminal statute that is unexpected and indefensible by reference to the law which has been expressed prior to the conduct in issue."
In another case, the Supreme Court ruled that an amendment that impacts someone currently imprisoned by a law does not violate ex post facto if the amendment does not increase the punishment attached to the respondent's crime. The Court held that a simple alteration of a prisoner's process of attaining parole does not violate ex post facto prohibitions.
In Harisiades, the Court ruled that the Alien Registration Act of 1940 was not an ex post facto law because the people challenging it "were not caught unawares by a change of law." This decision affirms that a law with a retroactive effect is not necessarily an ex post facto law.
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State vs federal ex post facto laws
The United States Constitution expressly forbids ex post facto laws at the federal and state levels. At the federal level, this is enshrined in Article 1, Section 9, Clause 3, and at the state level, in Article 1, Section 10. These provisions are a proto bill of rights, making them unique as opponents of the Constitution often cited the lack of a bill of rights as a reason for their stance.
Ex post facto laws are those that retroactively criminalise actions that were legal when performed or increase the severity of punishment for a crime after it was committed. In the US, ex post facto laws are prohibited in criminal cases, but they are also considered unjust in civil cases.
The US Supreme Court has repeatedly referred to its ruling in Calder v Bull when deciding ex post facto cases. In Calder v Bull, Justice Samuel Chase held that the prohibition applied only to criminal matters, not civil matters, and established four categories of unconstitutional ex post facto laws:
- Making criminal an action taken before enactment of the law that was lawful when it was done
- Increasing the severity of an offense after it was committed
- Increasing the punishment for a crime after it was committed
- Altering the rules of evidence after an offense was committed so that it is easier to convict an offender
In other countries, ex post facto laws may be possible. For example, in nations with a Westminster system of government, the doctrine of parliamentary supremacy may allow ex post facto laws to be passed, within legal constraints. In Canada, ex post facto criminal laws are prohibited by the Charter of Rights and Freedoms, but changes to civil law can be enacted ex post facto. Similarly, in Europe, the principle of lex mitior applies, meaning that the version of the law that is more advantageous for the accused is applied, even if the law has changed after the offense was committed.
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Frequently asked questions
Ex post facto is a term used to refer to a criminal statute that punishes actions retroactively, thereby criminalizing conduct that was legal when originally performed.
Ex post facto laws are forbidden by the United States Constitution in Article 1, Section 9, Clause 3 (federal laws) and Article 1, Section 10 (state laws).
The Ex Post Facto Clause refers to two clauses in the US Constitution that prohibit ex post facto laws. The federal Ex Post Facto Clause is Article 1, Section 9, Clause 3, and the state Ex Post Facto Clause is Article 1, Section 10, Clause 1.
The Ex Post Facto Clause prevents the federal and state governments from passing laws that retroactively create a crime where none existed before. It also upholds the Constitution's separation of powers by ensuring that only the judiciary can determine an individual's guilt or innocence.
