Also known as: ex post facto violations · ex-post-facto violation · ex post facto law violation · ex post facto · ex post facto law
Written by attorneys — see sources below.
A constitutional prohibition barring legislatures from enacting criminal laws that operate retroactively to the disadvantage of the accused. The bar covers statutes that criminalize conduct lawful when performed, increase punishment for completed offenses, or alter evidentiary rules to make conviction easier.
Eduardo Enriquez managed a waste facility in State Green. Years earlier his disposal practices complied fully with then-existing environmental rules. A new state statute reclassifies those same past methods as felonies and directs prosecutors to charge based on archived compliance reports. The court dismisses the charges because the statute retroactively imposes criminal liability for previously lawful conduct.
Eva Espinosa was investigated for securities fraud in 2015. The five-year limitations period expired without charges. In 2022 Congress enacts a statute extending the period to ten years and expressly reviving expired cases. Prosecutors indict her under the new law. The court dismisses the indictment because the extension retroactively reopens punishment for conduct whose prosecution had already become impossible.
Evergreen Bank financed industrial projects whose emissions exceeded newly adopted federal ceilings during the prior decade. No ceilings existed at the time of the projects. Congress passes the Carbon Accountability Act making such past exceedances federal crimes. Prosecutors charge the bank under the Act. The court dismisses the case because the statute retroactively criminalizes conduct lawful when undertaken.
Esme Ellington inherited copyrights in works published in 1925. Congress extends the term by twenty years after the works entered the public domain. Esme sues a publisher for infringement based on the extended term. The court upholds the extension because the change affects only civil remedies and does not impose or increase criminal punishment.
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.
Emma Erickson sold materials in 1970 that met the prevailing obscenity test at the time. A later Supreme Court decision adopts a new community-standards test that would classify the same materials as obscene. Prosecutors attempt to apply the new test to the 1970 sales. The court rejects the prosecution because the retroactive change in substantive criminal law would violate the prohibition on ex post facto punishment.
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.
Esther Eisenberg held title to enslaved persons under state law in 1856. A later federal statute declares all such holdings unlawful and imposes criminal penalties for prior ownership. Prosecutors bring charges based on the 1856 conduct. The court dismisses the indictment because the statute retroactively criminalizes conduct that was lawful when performed.
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.
A statute violates the prohibition when it retroactively makes previously lawful conduct criminal, increases the punishment attached to a completed offense, or alters rules of evidence to make conviction easier. The constitutional bar protects fair notice by preventing legislatures from changing the legal consequences of past acts after the fact.
Supporting sources
…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…
…The Court rested the invalidation on alternative sources of authority: the specific prohibitions against bills of attainder, ex post facto laws, laws impairing contracts in Article I, § 10, of the Constitution; and "general principles which are common to our free institutions," by which Chief Justice Marshall meant that a…
…321. : The significance of this pronouncement cannot be minimized. The holding that retrial by a jury of eight was an ex post facto law is perforce built upon the conclusion that the jury of 12 was a right of substance. If the right were merely a procedure mandated by statute, it would not have required the ex
…Money; emit Bills of Credit; make any Thing but gold or 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." U. S. Const., Art. I, § 10. Unlike other provisions in the section, it is well settled that the prohibition…
…supra , at 648. For I am unwilling to assume what appellants made no effort to prove, that the possibility of obtaining an ex post facto
The clause applies only to criminal laws. Civil regulatory measures, even when retroactive, do not violate the prohibition unless they are so punitive in purpose or effect that they function as criminal punishment.
Supporting sources
No. Extending a statute of limitations after it has already expired and applying the extension to previously time-barred conduct violates the clause because it reopens the possibility of punishment for acts whose prosecution had become impossible.
Supporting sources
A procedural change that does not increase the quantum of punishment is generally permissible. Only changes that retroactively increase the penalty or alter the substantive elements of the offense trigger the prohibition.
Supporting sources
The clause itself constrains only legislatures. Due process nevertheless forbids courts from applying an unexpected and indefensible retroactive interpretation of criminal law that disadvantages the defendant.
Supporting sources