Also known as: Ex Post Facto Clause · ex post facto law · ex post facto prohibition
Written by attorneys — see sources below.
A constitutional prohibition barring legislatures from enacting criminal laws that retroactively criminalize conduct lawful when performed, increase punishment for completed acts, or alter evidentiary rules to the defendant's disadvantage.
Eduardo Enriquez sold counterfeit goods in State A last year when the maximum sentence was five years. After a new statute raised the maximum to ten years and applied it to prior offenses, the state court imposed the higher term. The Ex Post Facto Clause blocks the increased punishment because the conduct occurred before the change.
Elise Everly completed an alleged offense in 1995 when the statute of limitations expired in 2000. A 2002 statute revived the prosecution by extending the period. The court dismisses the case because the new law retroactively alters the quantum of evidence sufficient to convict for past conduct.
Emily Ellis acquired artifacts in 1990 under then-lawful export rules. A later federal statute makes those acquisitions a crime and prosecutors indict her. The Ex Post Facto Clause invalidates the application because the statute retroactively criminalizes conduct lawful when performed.
Eric Espinoza was convicted after a state supreme court abolished the year-and-a-day rule in homicide cases. The change applied to his earlier conduct. Due process permits the retroactive judicial ruling because it was reasonably foreseeable given evolving medical standards and widespread abandonment of the rule.
Wilbert K. Rogers stabbed James Bowdery with a butcher knife on May 6, 1994. One of the stab wounds penetrated Bowdery's heart. During surgery to repair the wound to his heart, Bowdery went into cardiac arrest but was resuscitated and survived the procedure. As a result, however, he had developed a condition known as cerebral hypoxia, which results from a loss of oxygen to the brain. Bowdery's higher brain functions had ceased, and he slipped into and remained in a coma until August 7, 1995, when he died from a kidney infection. Approximately 15 months had passed between the stabbing and Bowdery's death which, according to the undisputed testimony of the county medical examiner, was caused by cerebral hypoxia secondary to a stab wound to the heart. Rogers was convicted in Tennessee state court of second degree murder. The state's criminal homicide statute makes no mention of the year and a day rule. It defines criminal homicide simply as the unlawful killing of another person. The trial judge instructed the jury that it could convict Rogers of murder if it found beyond a reasonable doubt that the victim's death was a natural and probable consequence of the stabbing, even if it occurred more than a year later. The jury convicted Rogers of second degree murder. Rogers appealed his conviction to the Tennessee Court of Criminal Appeals. That court affirmed after holding that the state's 1989 Criminal Sentencing Reform Act had abolished all common law defenses in criminal actions. The Tennessee Supreme Court affirmed on different grounds. It observed that the year and a day rule had been part of the common law of the state despite the paucity of case law on the rule. The United States Supreme Court granted certiorari.
View caseElla Emerson committed a capital offense under an invalidated statute that still gave notice of the death penalty. A new capital sentencing statute applied at trial does not increase the likelihood of death. The Ex Post Facto Clause permits the procedural change because punishment is not increased.
The grandson Normand Morrison executed his will on August 21, 1779. On March 21, 1793, the Court of Probate for Hartford County disapproved the will and refused to record it. More than eighteen months elapsed from this decree, during which the right of appeal was lost under Connecticut law. There was no law in Connecticut allowing a new hearing before the court of probate except through special legislative action. On the second Thursday of May 1795, the Legislature of Connecticut passed a resolution setting aside the March 1793 decree of the Court of Probate. The resolution granted a new hearing before the same court of probate with liberty of appeal in six months. This resolution was passed after the time for appeal from the original decree had expired. A new hearing occurred on July 27, 1795, resulting in the court of probate approving the will and ordering it recorded. An appeal followed in August 1795 to the Superior Court at Hartford, which affirmed the decree in February 1796. The Supreme Court of Errors of Connecticut then reviewed the case and in June 1796 confirmed the judgment of the Superior Court. Calder and his wife asserted a claim to the premises as the heiress of Normand Morrison the physician. Bull and his wife asserted their claim under the will of Normand Morrison the grandson. The matter came before the United States Supreme Court for review of the state court proceedings.
View caseEva Espinosa completed a sex offense before a registration statute took effect. The law requires registration and public notification for prior offenders. The Ex Post Facto Clause does not bar application because the measure is civil and nonpunitive in intent and effect.
In April 1791 an action of ejectment was commenced in a Virginia district court held at Winchester for recovery of land within the Northern Neck tract. Denny Fairfax, a British subject holding under the devise of Thomas Lord Fairfax, was admitted to defend upon the usual terms of confessing lease, entry and ouster. The facts were reduced to a case agreed and treated as a special verdict. On 24 April 1794 the district court entered judgment for the defendant. The plaintiff appealed to the Court of Appeals of Virginia, the highest court of law in the state. At its April term in 1810 that court reversed the district court judgment and entered judgment for the plaintiff. The case was then removed into the Supreme Court of the United States. At February term 1813 the Supreme Court reversed the Court of Appeals judgment and issued a mandate directing that its judgment be carried into execution. The Court of Appeals unanimously declined to obey the mandate. It entered judgment declaring that the Supreme Court's appellate power did not extend to it under the Constitution, that section 25 of the Judiciary Act was not in pursuance of the Constitution, that the writ of error had been improvidently allowed, and that proceedings in the Supreme Court were coram non judice. A second writ of error was brought to the Supreme Court. The underlying facts agreed by the parties show that Lord Fairfax, a citizen and inhabitant of Virginia, died in December 1781 seized of approximately 300,000 acres in the Northern Neck. By his will he devised the lands in fee to his nephew Denny Martin, later Denny Fairfax, a native-born British subject who resided in England until his death between 1796 and 1803 and who never became a citizen of the United States. In 1789 the Governor of Virginia issued a patent granting a portion of the land, described as waste and ungranted and never escheated, to David Hunter, a Virginia citizen, pursuant to a treasury warrant dated 23 January 1788. The case agreed also incorporates the definitive treaty of peace of 1783, the treaty of amity of 1794, and the several Virginia statutes concerning land grants and escheats.
View caseAn ex post facto law retroactively makes conduct criminal that was lawful when performed, increases punishment for past conduct, or alters rules of evidence to make conviction easier. The prohibition protects fair notice so individuals may rely on existing law when ordering their affairs.
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The clause applies only to criminal punishment. Civil regulatory measures such as sex-offender registration are permissible even when applied to prior offenses unless the measure is so punitive in effect that it overrides the legislature's civil intent.
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The Ex Post Facto Clause targets retroactive changes in criminal liability or punishment. A bill of attainder prohibition prevents legislative punishment of identifiable individuals or groups without judicial trial. A statute creating a generally applicable offense may raise an ex post facto issue but not a bill of attainder issue.
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The Ex Post Facto Clause binds only legislatures. Due process nevertheless bars courts from retroactively interpreting criminal law in an unexpected and indefensible manner. A change is permissible when evolving standards make the new rule reasonably foreseeable.
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