Hello fellow Kossacks. This is the first of what I hope will be an ongoing series of weekly diaries about legal issues. I decided to start this series because I noticed that some legal misunderstandings are repeated over and over again. I thought it might be helpful to address these issues on a regular basis. My hope is that this will be a place for education, as well as discussion, disagreement, and controversy.
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Today's diary topic, ex post facto laws.
We must never forget, that it is a constitution we are expounding.
McCulloch v. Maryland
In this diary I explain what an ex post facto law is, and perhaps more importantly, what it isn't.
This topic was generated by a discussion I had with Swoosh, Stand Strong, and knowthings.
http://www.dailykos.com/...
http://www.dailykos.com/...
Article I, section 9 of the Constitution states (among other things) that
". . . No bill of attainder or ex post facto Law shall be passed . . ."
Ex post facto is a Latin phrase that means "after the fact." However not all retroactive laws, laws passed after the events they regulate, are ex post facto laws under the meaning of the Constitution.
The prohibition against ex post facto laws only applies to making criminal punishment worse. No other retroactive law is explicitly prohibited by the Constitution.
Famous case cite for today:
Calder v. Bull 3 Dall. 386 (1798)
I will state what laws I consider ex post facto laws, within the words and the intent of the (constitutional) prohibition. 1st. Every law that makes an action , done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. All these, and similar laws, are manifestly unjust and oppressive. In my opinion, the true distinction is between ex post facto laws, and retrospective laws. Every ex post facto law must necessarily be retrospective; but every retrospective law is not an ex post facto law: The former, only, are prohibited. Every law that takes away, or impairs, rights vested, agreeably to existing laws, is retrospective, and is generally unjust; and may be oppressive; and it is a good general rule, that a law should have no retrospect: but there are cases in which laws may justly, and for the benefit of the community, and also of individuals, relate to a time antecedent to their commencement; as statutes of oblivion, or of pardon. They are certainly retrospective, and literally both concerning, and after, the facts committed. But I do not consider any law ex post facto, within the prohibition, that mollifies the rigor of the criminal law; but only those that create, or aggravate, the crime; or encrease the punishment, or change the rules of evidence, for the purpose of conviction. Every law that is to have an operation before the making thereof, as to commence at an antecedent time; or to save time from the statute of limitations; or to excuse acts which were unlawful, and before committed, and the like; is retrospective. But such laws may be proper or necessary, as the case may be. There is a great and apparent difference between making an UNLAWFUL act LAWFUL; and the making an innocent action criminal, and punishing it as a CRIME.
The bolding is mine, the caps are in the original.
In other words, retroactive laws are not necessarily unconstitutional. The only "ex post facto" laws forbiden are laws that make a new crime, or make punishment worse.
Examples:
1. Timmy smokes a joint and gets caught. While he is awaiting trial, congress passes a law saying that everyone who smokes a joint will go to prison for an extra 10 years. The law cannot apply to Timmy or anyone else who smoked a joint before the law was passed (no matter what the law says). If the law were applied to Timmy, it would be an ex post facto law in violation of the constitution, because he couldn't know that these consequences would follow from his smoking a joint. Making criminal liability for past actions is "manifestly unjust."
2. Tommy tortures and abuses a prisoner and gets caught (by some miracle). While Tommy is awaiting trial, Congress passes a law saying that anyone who has tortured a prisoner in the last ten years can only be punished by a $10 fine and nothing more. This change limits Tommy's punishment, and does not violate the constitution. Tommy pays his $10 and gets out of jail. This is not against the constitution because it isn't unfair to Tommy, who will face LESS liability for his actions than he would have expected. That isn't unfair to Tommy.
3. Juan lights a fire in his back yard. Even though Juan is very careful, the fire gets out of control and burns all of Texas. Congress passes a law saying that everyone who has lit a fire in the last two years is legally liable for the damage caused, no matter how careful they were. Sorry Juan, this law is probably constitutional. Ex post facto just doesn't apply to civil liability. Only criminal!
However, it is important to note that even if not all retroactive laws are unconstitutional, they are generally disfavored. This means that the courts will usually interpret retroactive laws narrowly.
DISCLAIMER This is not legal advice. Nothing in this diary or in any of the comments should be construed as legal advice.