Ex post facto - sustany/dvg GitHub Wiki

The Latin translation of ex post facto is �from a thing done afterward.��

In a legal context, ex post facto�is most typically used to refer to a criminal�statute�that punishes actions retroactively, thereby criminalizing conduct that was legal when originally performed. Two clauses in the�United States�Constitution�prohibit�ex post facto�laws:

  • Article 1, ��9
    • This prohibits Congress from passing any laws which apply�ex post facto.
  • Article�1 � 10.
    • This prohibits the states from passing any laws which apply�ex post facto.

What Constitutes Punishment

In Beazell v. Ohio, 269 U.S. 167 (1925),�the Supreme Court defined the scope of the constitutional�ex post�facto�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 crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto."

Courts have applied this standard to different parts of the criminal process.�California�Dep't�of Corrections v. Morales, 514 US 499 (1995)�takes the�Beazell�standard and applies it to the parole process. In�Morales, California amended a law to state that the California Board of Prison Terms may defer parole hearings for up to three years for a prisoner convicted of more than one homicide offense.�Respondent-defendant Morales was imprisoned before the law was amended, and he was subsequently affected by it when he applied for a parole hearing. In his lawsuit, he claimed that the amendment violated the�ex post facto�prohibition. The Supreme Court, in applying�Beazell,�held that an amendment which impacts someone currently imprisoned to 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 here, the amendment did not impact Morales's sentence, nor did it impact any substantive attempt to be granted parole. The Court found that a simple alteration of a prisoner's process of attaining parole does not violate�ex post facto�prohibitions.�

Retroactive Judicial Decisions

At a minimum, ex post facto�prohibits legislatures from passing laws which retroactively criminalize behavior. However, this prohibition does not attach as strictly to judicial decisions. Appellate courts sometimes announce a new rule of law but will not apply it to the case in front of it, in order to attempt to comply with�ex post facto�prohibitions.�

Year and a Day Rule

The�Year and a Day Rule�is a�common law�doctrine which states that�a person cannot be convicted of homicide for a death that occurs more than a year and a day after their act(s) that allegedly caused the death.�Rogers v. Tennessee, 532 U.S. 451 (2000)dealt with the doctrine.�Defendant-petitioner�Rogers had stabbed Bowdery, who died 15 months later.�The trial court found Rogers guilty of murder. When Rogers appealed to the Tennessee Court of Criminal Appeals under the Year and a Day Rule, the appellate court upheld the conviction and abolished the Year and a Day Rule for Tennessee. Rogers ultimately appealed to the Supreme Court, claiming that the appellate court's action violated the�ex post facto�prohibition. The Supreme Court�in�Rogers�found that�ex post facto�was not present here, as the appellate "court's decision was a routine exercise of common law decision-making that brought the law into conformity with reason and common sense." The�Rogers�court also referenced a previous Supreme Court decision,�Bouie v. City of Columbia, 378 U.S. 347 (1964), which held that "due process prohibits 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."�Rogers, considering the holding inBouie, held that the�ex post facto�prohibition applies only to legislative decisions, and that even if it were to apply to judicial decisions, the retroactive judicial repeal of the Year and a Day Rule is neither unexpected nor indefensible.�

See also: Koch v. Village of Hartland, No. 22-1007 (7th Cir. 2022) and this California Law Review Article�