Ex post facto laws retroactively change the
RULES OF EVIDENCE in a criminal case, retroactively alter the definition of a crime, retroactively increase the punishment for a criminal act, or punish conduct that was legal when committed. They are prohibited by Article I, Section 10, Clause 1, of the U.S. Constitution. An ex post facto law is considered a hallmark of tyranny because it deprives people of a sense of what behavior will or will not be punished and allows for random punishment at the whim of those in power.
The prohibition of ex post facto laws was an imperative in colonial America. The Framers of the Constitution understood the importance of such a prohibition, considering the historical tendency of government leaders to abuse power.
As
ALEXANDER HAMILTON observed, "
t is easy for men … to be zealous advocates for the rights of the citizens when they are invaded by others, and as soon as they have it in their power, to become the invaders themselves." The desire to thwart abuses of power also inspired the Framers of the Constitution to prohibit bills of attainder, which are laws that inflict punishment on named individuals or on easily ascertainable members of a group without the benefit of a trial. Both ex post facto laws and bills of attainder deprive those subject to them of DUE PROCESS of law—that is, of notice and an opportunity to be heard before being deprived of life, liberty, or property.
Notes from the Constitutional Convention indicate that the clause should cover the retroactive application of all laws, including civil laws. The only exception for ex post facto laws discussed at the Constitutional Convention was in case of "necessity and public safety" (Farrand, 1937).
Since the Carpenter ruling, the Supreme Court has struck down some retroactive civil laws, but only those intended to have a punitive intent. This construction of the Ex Post Facto Clause has done little more than raise another question: What is punitive intent? The answer lies, invariably, with the U.S. Supreme Court.
Punitive
adjective
- inflicting or intended as punishment.
- (of a tax or other charge) extremely high.