Also known as: ex post facto clauses · ex post facto · ex post facto law · ex post facto laws
Written by attorneys — see sources below.
A constitutional prohibition that bars Congress and the states from enacting criminal laws retroactively criminalizing conduct lawful when performed, increasing punishment for past acts, or altering rules of evidence to the defendant's disadvantage.
Emmett Egan raised rents on his apartment buildings four years earlier under then-lawful lease terms. After Franklin enacted a statute making such increases a felony and authorizing prosecution from old records, the district attorney charged Egan. The court dismissed the charges because the statute retroactively criminalized past lawful conduct.
Elijah Edwards committed a sex offense more than a decade earlier when the statute of limitations had already expired. California later passed a law reviving such prosecutions, and prosecutors filed charges against Edwards. The Supreme Court held the revival statute violated the Ex Post Facto Clause by reopening punishment for completed conduct.
Esther Eisenberg, a museum curator, acquired cultural artifacts fifty years ago in full compliance with then-existing export rules. Congress later enacted a statute making such acquisitions a federal crime and indicted Eisenberg solely on the basis of those prior transactions. The court dismissed the indictment because the statute retroactively criminalized lawful past conduct.
Evelyn Ellison sold counterfeit goods last year when the maximum prison term was five years. After Congress raised the mandatory minimum and applied the new penalties to all prior offenses, the sentencing judge imposed a longer term on Ellison. The court vacated the sentence because the retroactive increase in punishment violated the Ex Post Facto Clause.
Dred Scott, along with his wife Harriet and their two children Eliza and Lizzie, was held as a slave by the defendant John F. A. Sandford in the State of Missouri. Scott initiated an action in the Circuit Court of the United States for the District of Missouri asserting his and his family's right to freedom. The declaration averred that Scott was a citizen of Missouri and the defendant a citizen of New York to establish diversity jurisdiction. The defendant responded with a plea in abatement asserting that the court lacked jurisdiction because Scott was not a citizen of Missouri. Scott was a negro of African descent whose ancestors were of pure African blood and had been brought into the country and sold as slaves. Scott demurred to this plea. The Circuit Court overruled the plea and required the defendant to answer over. The defendant then filed pleas in bar. After a trial on the merits the jury returned a verdict in favor of the defendant, leading to judgment for him. Scott then prosecuted a writ of error to the Supreme Court. The underlying facts showed that Scott had been the slave of Dr. Emerson, a surgeon in the United States Army. In 1834 Emerson took Scott from Missouri to Rock Island in Illinois, where he held him as a slave until 1836. Emerson then removed Scott to Fort Snelling in the Territory of Upper Louisiana north of thirty-six degrees thirty minutes north latitude, holding him there until 1838. Harriet, originally the slave of Major Taliaferro, was also brought to Fort Snelling and sold to Emerson. Scott and Harriet were married at Fort Snelling in 1836 with Emerson's consent, and their children were born there or during the return journey. In 1838 Emerson brought the family back to Missouri, where they resided until Emerson sold them to Sandford. The case reached the Supreme Court after two arguments. The Court ordered reargument on some of the points due to differences of opinion among the justices and the importance of the questions involved.
View caseEric Espinoza published a novel decades earlier under a copyright term that had already expired. Congress later lengthened copyright terms and applied the extension to works whose protection had lapsed. The court upheld the extension because it did not impose criminal punishment or alter criminal liability for past acts.
In 1998 Congress enacted the Copyright Term Extension Act, which extended the duration of all federal copyrights by twenty years. For works created by identified natural persons the new term runs from creation until seventy years after the author's death. For anonymous works, pseudonymous works, and works made for hire the term is ninety-five years from publication or one hundred twenty years from creation, whichever expires first. The statute applied these extended terms both to copyrights already in existence and to works created after its effective date. Petitioners are individuals and businesses whose products or services build on copyrighted works that have gone into the public domain. They filed suit in the United States District Court for the District of Columbia seeking a declaration that the extension of existing copyrights exceeded Congress's power under the Copyright Clause and violated the First Amendment. On cross-motions for judgment on the pleadings the district court entered judgment for the Attorney General. The Court of Appeals for the District of Columbia Circuit affirmed. A majority of the panel upheld the statute against both challenges, while Judge Sentelle dissented in part on the Copyright Clause issue. The Supreme Court granted certiorari to address whether the extension of existing copyrights exceeds Congress's power under the Copyright Clause and whether the extension violates the First Amendment.
View caseEmily Ellis distributed materials that were lawful under the prevailing obscenity test when she acted. After the Supreme Court announced a new standard, prosecutors sought to apply it retroactively to her earlier distribution. The court rejected the application because the new standard could not increase criminal liability for completed conduct.
The appellant conducted a mass mailing campaign advertising the sale of illustrated books and a film described as adult material. After a jury trial he was convicted under California Penal Code § 311.2(a) for knowingly distributing obscene matter based on the mailing of five unsolicited advertising brochures to a Newport Beach restaurant. The brochures contained explicit pictures and drawings depicting sexual activity and genitals. This case was tried on the theory that California's obscenity statute incorporated the tripartite Memoirs test and the jury was instructed to apply contemporary community standards of the State of California. Both parties at trial assumed the community standards were those of the State of California; defense counsel did not object to the state's expert testimony on community standards or to the judge's instruction. Appellant raised for the first time on appeal the contention that application of state rather than national standards violated the First and Fourteenth Amendments. The judgment of the Appellate Department of the Superior Court, Orange County, California, came before the Supreme Court of the United States for review as part of a group of obscenity cases in which the Court re-examined the standards for identifying obscene material that may be regulated by the States.
View caseThe clause prohibits legislatures from making conduct criminal that was lawful when performed, increasing punishment for past acts, or changing evidentiary rules to make conviction easier.
Supporting sources
The clause applies only to criminal punishment. Civil remedial measures such as treble damages for consumer compensation do not violate it even when imposed retroactively, unless the measure functions as punishment.
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No. Extending a statute of limitations after it has expired and applying the extension to already-barred offenses violates the clause because it reopens the possibility of punishment for past conduct.
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Purely procedural changes that do not increase the quantum of punishment may be applied retroactively. Changes that raise the penalty attached to completed conduct are forbidden.
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…a measure was "necessary and proper" to the discharge of its substantive legislative authority, pass a bill of attainder or ex post facto law contrary to the prohibitions contained in § 9 of Art. I. No more may it vest in itself, or in its officers, the authority to appoint officers of the United States when the Appointments…