ArtI.S10.C1.4 State Ex Post Facto Laws

Article I, Section 10, Clause 1:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

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. ¹ Distinguishing between civil and penal laws was at the heart of the Court’s decision in Smith v. Doe ² 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. ³ Here, the Court determined, the legislative intent was civil and non-punitive – 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. ⁴ 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. ⁵ Nor is the act “excessive” in relation to its regulatory purpose. ⁶ 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. ⁷

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. ⁸ The bar is directed only against legislative action and does not touch erroneous or inconsistent decisions by the courts. ⁹

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. ¹⁰ A statute that mitigates the rigor of the law in force at the time the crime was committed, ¹¹ 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 ¹² or making illegal the continued possession of intoxicating liquors which were lawfully acquired ¹³ have been held valid.

Denial of Future Privileges to Past Offenders

The right to practice a profession may be denied to one who was convicted of an offense before the statute was enacted if the offense reasonably may be regarded as a continuing disqualification for the profession. Without offending the Constitution, statutes barring a person from practicing medicine after conviction of a felony, ¹⁴ or excluding convicted felons from waterfront union offices unless pardoned or in receipt of a parole board's good conduct certificate, ¹⁵ may be enforced against a person convicted before the measures were passed. But the test oath prescribed after the Civil War, under which office holders, attorneys, teachers, clergymen, and others were required to swear that they had not participated in the rebellion or expressed sympathy for it, was held invalid on the ground that it had no reasonable relation to fitness to perform official or professional duties, but rather was a punishment for past offenses. ¹⁶ A similar oath required of suitors in the courts also was held void. ¹⁷

Changes in Punishment

Justice Chase in Calder v. Bull gave an alternative description of the four categories of ex post facto laws, two of which related to punishment. One such category was laws that inflict punishment where the party was not, by law, liable to any punishment; the other was laws that inflict greater punishment than was authorized when the crime was committed. ¹⁸

Illustrative of the first of these punishment categories is a law enacted after expiration of a previously applicable statute of limitations period [as] applied to revive a previously time-barred prosecution. Such a law, the Court ruled in Stogner v. California, ¹⁹ is prohibited as ex post facto. Courts that had upheld extension of unexpired statutes of limitation had been careful to distinguish situations in which the limitations periods have expired. The Court viewed revival of criminal liability after the law had granted a person effective amnesty as being unfair in the sense addressed by the Ex Post Facto Clause.

Illustrative of the second punishment category are statutes, all applicable to offenses committed prior to their enactment, that changed an indeterminate sentence law to require a judge to impose the maximum sentence, ²⁰ that required solitary confinement for prisoners previously sentenced to death, ²¹ and that allowed a warden to fix, within limits of one week, and keep secret the time of execution. ²² Because it made more onerous the punishment for crimes committed before its enactment, a law that altered sentencing guidelines to make it more likely that the sentencing authority would impose on a defendant a more severe sentence than was previously likely and making it impossible for the defendant to challenge the sentence was ex post facto as to one who had committed the offense prior to the change. ²³ The Court adopted similar reasoning regarding changes in the U.S. Sentencing Guidelines: even though the Guidelines are advisory only, an increase in the applicable sentencing range is ex post facto if applied to a previously committed crime because of a significant risk of a lengthier sentence being imposed. ²⁴ But laws providing heavier penalties for new crimes thereafter committed by habitual criminals, ²⁵ prescrib[ing] electrocution as the method of producing death instead of hanging, fix[ing] the place therefor within the penitentiary, and permitt[ing] the presence of more invited witnesses that had theretofore been allowed, ²⁶ or providing for close confinement of six to nine months in the penitentiary, in lieu of three to six months in jail prior to execution, and substituting the warden for the sheriff as hangman, have been sustained. ²⁷

In Dobbert v. Florida, ²⁸ the Court may have formulated a new test for determining when the punishment provided by a criminal statute is ex post facto. The defendant murdered two of his children at a time when Florida law provided the death penalty upon conviction for certain takings of life. Subsequently, the Supreme Court held capital sentencing laws similar to Florida's unconstitutional, although convictions obtained under the statutes were not to be overturned, ²⁹ and the Florida Supreme Court voided its death penalty statutes on the authority of the High Court decision. The Florida legislature then enacted a new capital punishment law, which was sustained. Dobbert was convicted and sentenced to death under the new law, which had been enacted after the commission of his offenses. The Court rejected the ex post facto challenge to the sentence on the basis that whether or not the old statute was constitutional, it clearly indicated Florida's view of the severity of murder and of the degree of punishment which the legislature wished to impose upon murderers. The statute was intended to provide maximum deterrence, and its existence on the statute books provided fair warning as to the degree of culpability which the State ascribed to the act of murder. ³⁰ Whether the fair warning standard is to have any prominent place in ex post facto jurisprudence may be an interesting question, but it is problematical whether the fact situation will occur often enough to make the principle applicable in many cases.

Changes in Procedure

An accused person does not have a right to be tried in all respects in accordance with the law in force when the crime charged was committed. ³¹ Laws shifting the place of trial from one county to another, ³² increasing the number of appellate judges and dividing the appellate court into divisions, ³³ granting a right of appeal to the state, ³⁴ changing the method of selecting and summoning jurors, ³⁵ making separate trials for persons jointly indicted a matter of discretion for the trial court rather than a matter of right, ³⁶ and allowing a comparison of handwriting experts, ³⁷ have been sustained over the objection that they were ex post facto. It was suggested in a number of these cases, and two decisions were rendered precisely on the basis, that the mode of procedure might be changed only so long as the substantial rights of the accused were not curtailed. ³⁸ The Court has now disavowed this position. ³⁹ All that the language of most of these cases meant was that a legislature might not evade the ex post facto clause by labeling changes as alteration of procedure. If a change labeled procedural effects a substantive change in the definition of a crime or increases punishment or denies a defense, the clause is invoked; however, if a law changes the procedures by which a criminal case is adjudicated, the clause is not implicated, regardless of the increase in the burden on a defendant. ⁴⁰

Changes in evidentiary rules that allow conviction on less evidence than was required at the time the crime was committed can also run afoul of the ex post facto clause. This principle was applied in the Court's invalidation of retroactive application of a Texas law that eliminated the requirement that the testimony of a sexual assault victim age 14 or older must be corroborated by two other witnesses, and allowed conviction on the victim's testimony alone. ⁴¹