Posted on 10/23/17

The Texas Penal Code in Section 1.02 mentions the need for barring ex post facto legislation that a society cannot function if people perform an act that is totally legal today but will be criminalized tomorrow. In Section 1.03, the Penal Code states that “[c]onduct does not constitute an offense unless it is defined as an offense by statute, municipal ordinance, order of a county commissioners court, or rule authorized by and lawfully adopted under a statute.”As mentioned in a previous post, the ex post facto concept from the Constitution is based on the founders’ desire for providing Americans with a just society. Also mentioned previously is that the ex post facto concept is applicable only to criminal, not civil, law. What’s more, the concept is only applicable if the enacted law is “punitive.”

Usually, it is easy to determine whether legislation is unconstitutional on ex post facto grounds. For instance, retroactively criminalizing possession of a substance that was previously legal would be in violation of the ex post facto clause. Often times, however, deciphering whether a law is ex post facto is difficult.

Rieck Case

The case of Texas inmate George W. Rieck, Jr. presents a difficult question with respect to ex post facto law. Rieck was a convicted sex offender who was required by law to attend counseling for indecency with a child. The group running the counseling involuntarily discharged Rieck from the sex offender therapy program. This put Rieck in a difficult position because he would have difficulty gaining his freedom if, according to the new law, he did not comply with the mandatory obligation of undergoing therapy.

Rieck filed a habeas corpus petition (claim that the punishment was severe), claiming that the enacted law was ex post fact and therefore in violation of his constitutional rights. The case was Rieck v. Cockrell from 2003. On appeal to the U.S. Fifth Circuit Court of Appeals, the court applied the “intents-effects” test to determine whether a law is ex post facto: Courts should ask whether the legislature intended the sanction to be punitive; and if the sanction is so punitive in effect as to prevent courts from legitimately viewing it as regulatory or civil in nature.

In the Rieck case, the Appellate Court found that both the intent, i.e. punitive intent of the legislature, and the effect of the law, i.e. not regulatory or civil in nature, did not measure as ex post facto. Although the law was enacted post Rieck’s conviction, the law was rehabilatory, not punitive, in nature. Furthermore, the effect was civil in nature. Unlike a jail term, the law mandating therapy was not a concept that punishes inmates; instead, it is to help inmates rejoin society and reduce recidivism.

If you are facing charges for a crime, know that you can only be lawfully prosecuted if the act was criminalized before the act was committed. Your charge may be unlawful because of the ex post facto clause. For strong criminal defense, contact the law firm of Christopher Abel.

(image courtesy of Daniel Tafjord) 


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