Also known as: retroactive laws · ex post facto law · retrospective law
Written by attorneys — see sources below.
A law that reaches back to alter the legal consequences of conduct completed before its enactment. Such a measure violates the Ex Post Facto Clauses when it criminalizes previously lawful acts or increases punishment for past conduct.
Roberto Reyes raised rents on his Franklin apartments four years before the legislature acted. The new statute declares those increases felonies and lets the district attorney prosecute using old lease records. Reyes moves to dismiss, arguing the law attaches criminal liability to conduct that was lawful when performed.
Titan Industries exceeded carbon limits during years when no federal ceiling existed. Congress later passes the Carbon Accountability Act making those emissions criminal and refers the company for prosecution. Titan moves to dismiss the charges on the ground that the statute imposes new criminal liability for completed conduct.
Roland Rhodes stabbed a victim who lingered in a coma for months before dying. At the time of the attack, state precedent required death within a year and a day for murder liability. The state supreme court later abolishes the rule and applies the new standard to Rhodes's case, allowing the murder charge to proceed.
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 caseRiley Rivera bought a truck whose design later fails a newly announced strict-liability test. The manufacturer argues that applying the new standard to vehicles sold years earlier would impose retroactive liability for conduct that complied with the law at the time of sale.
Nancy Denny was severely injured when the Ford Bronco II that she was driving rolled over on June 9, 1986. The rollover occurred after Denny slammed on her brakes to avoid a deer that had walked directly into the vehicle's path. The Bronco II was a downsized small utility vehicle designed for off-road use on unpaved and rugged terrain. Ford marketed the vehicle as suitable for commuting, suburban and city driving, and family use in snow and ice. Denny and her spouse sued Ford Motor Co. asserting claims for negligence, strict products liability and breach of implied warranty of merchantability under UCC 2-314(2)(c) and 2-318. The case went to trial in the District Court for the Northern District of New York in October of 1992. Plaintiffs introduced evidence that the Bronco II had a high center of gravity, narrow track width and short wheel base that made it prone to rollover on paved roads. Ford introduced evidence that those design features were necessary to the vehicle's off-road capabilities and that it had not been designed primarily as a passenger car. The jury found that the Bronco II was not defective under the strict products liability claim but that Ford had breached the implied warranty of merchantability and that the breach proximately caused Nancy Denny's injuries. Following apportionment the plaintiff was awarded judgment in the amount of $1.2 million. Ford moved for a new trial under Federal Rule of Civil Procedure 59(a) arguing that the verdicts were irreconcilable. The trial court rejected the motion. On appeal the Second Circuit certified three questions of New York law to this Court.
View caseRosalind Reed's will was denied probate under the rules in force at the testator's death. The state legislature later passes a resolution setting aside the decree and ordering a new hearing under changed procedures. The disappointed heirs challenge the resolution as an impermissible retroactive alteration of vested rights.
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 caseRyan Roberts is detained and charged before a military commission under rules that did not exist when the alleged conduct occurred. The government seeks to try him under the later-enacted procedures. Roberts petitions for habeas relief, contending the new rules cannot govern his completed acts.
Salim Ahmed Hamdan, a Yemeni national, was captured by militia forces in Afghanistan in November 2001 during hostilities between the United States and the Taliban regime that then governed the country. The militia turned him over to the United States military, which transported him to the detention facility at Guantanamo Bay, Cuba, in June 2002. Over a year later, on July 3, 2003, the President determined that Hamdan was eligible for trial by military commission for then-unspecified crimes. Subsequently, on July 13, 2004, the government charged Hamdan with one count of conspiracy to commit offenses triable by military commission. The charging document alleged that from February 1996 to November 2001 he had joined an enterprise with al Qaeda members and committed four overt acts in furtherance of that conspiracy. Hamdan then filed petitions for writs of habeas corpus and mandamus in the United States District Court for the District of Columbia to challenge both the authority of the military commission and the procedures it would employ. The District Court granted Hamdan's habeas petition on November 8, 2004, stayed the commission proceedings, and concluded that the commission lacked authority under the law of war and violated both the Uniform Code of Military Justice and Common Article 3 of the Geneva Conventions. The Court of Appeals for the District of Columbia Circuit reversed that decision, holding that the Geneva Conventions were not judicially enforceable and that the commission's jurisdiction and procedures were lawful. The Supreme Court granted certiorari on November 7, 2005. On December 30, 2005, Congress enacted the Detainee Treatment Act, after which the government moved to dismiss the case for lack of jurisdiction. The Supreme Court postponed ruling on the motion and later denied it, retaining jurisdiction over the appeal.
View caseA statute violates the Ex Post Facto Clauses when it makes conduct criminal that was lawful when performed or increases punishment for past acts. Courts invalidate such laws because they deny fair notice and allow legislatures to punish completed conduct after the fact.
Supporting sources
The Ex Post Facto Clauses target criminal penalties. Civil measures that function as punishment may still fall within the prohibition when they impose new disabilities or liabilities on past conduct without a nonpunitive purpose.
Supporting sources
No. A state may not enact legislation that retroactively criminalizes possession, rent increases, or emissions that were lawful when they occurred. Such statutes are invalid even when they address serious public harms like environmental damage or housing costs.
Supporting sources
Yes. When a statute raises maximum or mandatory minimum sentences and expressly applies them to prior offenses, it imposes greater punishment for completed conduct and is therefore an unconstitutional ex post facto law.
Supporting sources
…aside a decree of a court and granting a new trial to be had before the same court is not void under the Constitution as an ex post facto law. The Legislature of Connecticut, on the second Thursday of May, 1795, passed a resolution which set aside a decree of the Court of Probate for Hartford County made 21 March 1793…