Posted on 9/25/17

Article 1, Section 10, Clause 1 of the United States Constitution provides “No state shall…pass any…ex post facto law…” The idea of a ban on the legislature from passing an ex post facto law is considered law; only a tyrannical government would pass and enforce a law that criminalizes an action ex post facto. There can be no punishment without law.

The founding fathers thought to create laws that were not abusive. Through the original Constitution and subsequent amendments, the Constitution creates a right of due process, reasonable punishment, and more. One of those concepts is ex post facto. While the Constitution clearly bans enforcing a law ex post facto, it does not define ex post facto precisely.

Calder v. Bull

An early United States Supreme Court case, Calder v Bull in 1796, provided some explanation of ex post facto. In that case, a probate court decided a will contest. Following the case, the Connecticut legislature passed a law that would provide the losing party to the probate case with a victory. The Supreme Court ruled that while the law overturned a court ruling, it was not ex post facto because ex post facto only applies to the legal status of acts committed or a prior relationship, not to non-vested property rights. In other words, ex post facto only applies to criminal, not civil, actions.

Morales Case

There have been some clarifications over the years regarding ex post facto. The California case of Jose Morales is one such case. Morales was a murderer who was sitting in jail under the California statute that allows prisoners to be eligible for a parole hearing once a year. In 1981, the California legislature passed a law that allows the parole board to defer hearings for three years. Morales committed his crimes before the passing of the new law, which he challenged as ex post facto for denying him the right to a yearly parole hearing.

In a split decision, the Supreme Court ruled that the California law was not ex post facto. Specifically, the majority noted that the California law did not increase Morales’s punishment retroactively; rather, it merely lessened the amount of parole hearings. Furthermore, the majority noted that there was no evidence that the law increased incarceration times, just speculation.

The minority countered that the California law violated the ex post facto clause because it increased inmates’ punishment. The minority called for more, not less, judicial scrutiny of the ex post facto clause.

Sex Offenders

Some argue that registering sex offenders qualifies as ex post facto because laws requiring those who committed acts prior to the legislation to register is punishment after the fact. They claim that these laws are cloaked as civil laws, thereby enjoying protection under the Calder v Bull analysis, when they are intended, in part, to punish sex offenders, who committed criminal crimes. The debate rages on.

Accused of a crime? Know that you have rights. Contact the law firm of Christopher Abel, a board-certified criminal defense attorney.

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