Constitution of the United States/Art. I/Sec. 9/Clause 3 Nullification

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Constitutional Law Treatise
Table of Contents
US Constitution.jpg
Constitutional Law Outline
Introduction
The Preamble
Article I Legislative Branch
Art. I, Section 1 Legislative Vesting Clause
Art. I, Section 2 House of Representatives
Art. I, Section 3 Senate
Art. I, Section 4 Congress
Art. I, Section 5 Proceedings
Art. I, Section 6 Rights and Disabilities
Art. I, Section 7 Legislation
Art. I, Section 8 Enumerated Powers
Art. I, Section 9 Powers Denied Congress
Art. I, Section 10 Powers Denied States
Article II Executive Branch
Art. II, Section 1 Function and Selection
Art. II, Section 2 Powers
Art. II, Section 3 Duties
Art. II, Section 4 Impeachment
Article III Judicial Branch
Art. III, Section 1 Vesting Clause
Art. III, Section 2 Justiciability
Art. III, Section 3 Treason
Article IV Relationships Between the States
Art. IV, Section 1 Full Faith and Credit Clause
Art. IV, Section 2 Interstate Comity
Art. IV, Section 3 New States and Federal Property
Art. IV, Section 4 Republican Form of Government
Article V Amending the Constitution
Article VI Supreme Law
Article VII Ratification
First Amendment: Fundamental Freedoms
Religion
Establishment Clause
Free Exercise Clause
Free Speech Clause
Freedom of Association
Second Amendment: Right to Bear Arms
Third Amendment: Quartering Soldiers
Fourth Amendment: Searches and Seizures
Fifth Amendment: Rights of Persons
Sixth Amendment: Rights in Criminal Prosecutions
Seventh Amendment: Civil Trial Rights
Eighth Amendment: Cruel and Unusual Punishment
Ninth Amendment: Unenumerated Rights
Tenth Amendment: Rights Reserved to the States and the People
Eleventh Amendment: Suits Against States
Twelfth Amendment: Election of President
Thirteenth Amendment: Abolition of Slavery
Thirteenth Amend., Section 1 Prohibition on Slavery and Involuntary Servitude
Thirteenth Amend., Section 2 Enforcement
Fourteenth Amendment: Equal Protection and Other Rights
Fourteenth Amend., Section 1 Rights
Fourteenth Amend., Section 2 Apportionment of Representation
Fourteenth Amend., Section 3 Disqualification from Holding Office
Fourteenth Amend., Section 4 Public Debt
Fourteenth Amend., Section 5 Enforcement
Fifteenth Amendment: Right of Citizens to Vote
Fifteenth Amend., Section 1 Right to Vote
Fifteenth Amend., Section 2 Enforcement
Sixteenth Amendment: Income Tax
Seventeenth Amendment: Popular Election of Senators
Eighteenth Amendment: Prohibition of Liquor
Eighteenth Amend., Section 1 Prohibition
Eighteenth Amend., Section 2 Enforcement of Prohibition
Eighteenth Amend., Section 3 Ratification Deadline
Nineteenth Amendment: Women's Suffrage
Twentieth Amendment: Presidential Term and Succession
Twentieth Amend., Section 1 Terms
Twentieth Amend., Section 2 Meetings of Congress
Twentieth Amend., Section 3 Succession
Twentieth Amend., Section 4 Congress and Presidential Succession
Twentieth Amend., Section 5 Effective Date
Twentieth Amend., Section 6 Ratification
Twenty-First Amendment: Repeal of Prohibition
Twenty-First Amend., Section 1 Repeal of Eighteenth Amendment
Twenty-First Amend., Section 2 Importation, Transportation, and Sale of Liquor
Twenty-First Amend., Section 3 Ratification Deadline
Twenty-Second Amendment: Presidential Term Limits
Twenty-Second Amend., Section 1 Limit
Twenty-Second Amend., Section 2 Ratification Deadline
Twenty-Third Amendment: District of Columbia Electors
Twenty-Third Amend., Section 1 Electors
Twenty-Third Amend., Section 2 Enforcement
Twenty-Fourth Amendment: Abolition of Poll Tax
Twenty-Fourth Amend., Section 1 Poll Tax
Twenty-Fourth Amend., Section 2 Enforcement
Twenty-Fifth Amendment: Presidential Vacancy
Twenty-Fifth Amend., Section 1 Presidential Vacancy
Twenty-Fifth Amend., Section 2 Vice President Vacancy
Twenty-Fifth Amend., Section 3 Declaration by President
Twenty-Fifth Amend., Section 4 Declaration by Vice President and Others
Twenty-Sixth Amendment: Reduction of Voting Age
Twenty-Sixth Amend., Section 1 Eighteen Years of Age
Twenty-Sixth Amend., Section 2 Enforcement
Twenty-Seventh Amendment: Congressional Compensation

Article I Legislative Branch

Section 9 Powers Denied Congress

Clause 3 Nullification

Clause Text
No Bill of Attainder or ex post facto Law shall be passed.

Historical Background on Bills of Attainder[edit | edit source]

A bill of attainder is legislation that imposes punishment on a specific person or group of people without a judicial trial.[1] The term has its roots in English law before the Founding. As the Supreme Court has explained:

The bill of attainder, a parliamentary act sentencing to death one or more specific persons, was a device often resorted to in sixteenth, seventeenth and eighteenth century England for dealing with persons who had attempted, or threatened to attempt, to overthrow the government.United States v. Brown, 381 U.S. 437, 441 (1965). A bill of attainder also resulted in forfeiture of the target's property, including the right of the person's heirs to inherit it. Id. ("In addition to the death sentence, attainder generally carried with it a 'corruption of blood,' which meant that the attainted party's heirs could not inherit his property.").

A related sanction, known as a "bill of pains and penalties," historically referred to legislation imposing extrajudicial punishments less severe than death, such as banishment or deprivation of political rights.[2] Bills of attainder and bills of pains and penalties were legal in England at the time of the Founding, and state legislatures in the United States also enacted bills of attainder and bills of pains and penalties during the Revolution.[3] However, two separate clauses of the Constitution, Article I, Sections 9 and 10, respectively banned enactment of bills of attainder by the Federal Government and the states.[4]

The Framers adopted the constitutional prohibitions on bills of attainder unanimously and without debate.[5] However, sources from around the time of the Founding outline key concerns underlying the Bill of Attainder Clauses. In the Federalist No. 44, James Madison noted that many states had enacted constitutional provisions banning bills of attainder.[6] Observing that bills of attainder "are contrary to the first principles of the social compact, and to every principle of sound legislation," he opined that it was appropriate for the Framers also to ban the practice in the federal constitution, "add[ing] this constitutional bulwark in favor of personal security and private rights."[7] Joseph Story's Commentaries explained that bills of attainder undermine both separation of powers and the individual right to a judicial trial.[8]

Bills of Attainder Doctrine[edit | edit source]

Supreme Court cases have given "broad and generous meaning to the constitutional protection against bills of attainder" by interpreting it to ban not only legislation imposing a death sentence, as the term was used at English common law, but also legislation that imposes other forms of punishment on specific persons without trial.[9] However, the Court has emphasized that legislation does not violate the Bill of Attainder Clause simply because it places legal burdens on a specific individual or group.[10] Rather, as discussed in more detail below, a bill of attainder must also inflict punishment.[11] Another key feature of a bill of attainder is that it applies retroactively: the Supreme Court has held that the Bill of Attainder Clause does not apply to legislation that "is intended to prevent future action rather than to punish past action."[12] The Court has also held that the prohibition on bills of attainder does not safeguard the states against allegedly punitive federal legislation[13] and does not protect U.S. citizens who commit crimes abroad and face trial in other jurisdictions.[14] Overall, the Supreme Court's decisions suggest that the Court has applied the Bill of Attainder Clause to prevent legislatures from circumventing the courts by punishing people without due process of law.

The Supreme Court applied the constitutional prohibitions on bills of attainder in a pair of Reconstruction-era cases, Ex parte Garland[15] and Cummings v. Missouri.[16] Garland concerned a federal statute, while Cummings involved a post-Civil War amendment to the Missouri constitution, but both of the challenged provisions required persons engaged in certain professions to swear an oath that they had never been disloyal to the United States.[17] In both cases, the Court held that the effect of the challenged provisions was to punish a group of individuals who had been disloyal to the United States, and the punishment they faced was effective exclusion from the covered professions.[18]

Based on that holding, the Supreme Court invalidated the provisions as unconstitutional bills of attainder.[19] In Cummings, the Court noted that the challenged state constitutional provisions did not expressly "define any crimes, or declare that any punishment shall be inflicted, but they produce[d] the same result upon the parties, against whom they are directed, as though the crimes were defined and the punishment was declared."[20] The provisions "aimed at past acts, and not future acts," and were "intended to operate by depriving such persons of the right to hold certain offices and trusts, and to pursue their ordinary and regular avoications."[21] The Court held that this deprivation constituted a punishment, and that the purported option to avoid the restriction by swearing a loyalty oath did not make it less so:

The framers of the constitution of Missouri knew at the time that whole classes of individuals would be unable to take the oath prescribed. To them . . . the deprivation was intended to be, and is, absolute and perpetual. To make the enjoyment of a right dependent upon an impossible condition is equivalent to an absolute denial of the right under any condition, and such denial, enforced for a past act, is nothing less than punishment imposed for that act.Id.

In Garland, the Court applied its reasoning in Cummings to strike down the similar federal law.[22]

In the 1946 case United States v. Lovett, the Supreme Court struck down as a bill of attainder an appropriations bill cutting off the pay of certain named federal employees accused of being "subversives."[23] The Court explained that the challenged legislation effectively declared specific persons guilty of the crime of subversive activities "without the safeguards of a judicial trial."[24] The legislation further permanently barred those persons from government service, which qualified as "punishment . . . of a most severe type."[25] Similarly, in the 1965 case United States v. Brown, the Court held that a federal statute making it a crime for a member of the Communist Party to serve as an officer of a labor union was a bill of attainder.[26] The Brown Court eschewed a rigid historical view of the Bill of Attainder Clause, explaining that the clause

was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply-trial by legislature.Id. at 442.

The Court concluded that Congress had "exceeded the authority granted it by the Constitution" in enacting the challenged statute because, rather than creating generally applicable rules for courts to apply, the statute "designate[d] in no uncertain terms the persons who possess . . . feared characteristics and therefore cannot hold union office without incurring criminal liability--members of the Communist Party."[27] By contrast, in roughly contemporaneous cases, the Supreme Court rejected bill of attainder challenges to a decision of the Secretary of Health, Education and Welfare terminating old-age insurance benefits of an individual who had been deported[28] and an order of the Subversive Activities Control Board requiring the Communist Party of the United States to register as a "Communist-action organization."[29]

The Supreme Court articulated the current test for whether a law is a bill of attainder in the 1977 case Nixon v. Administrator of General Services.[30] In that case, former President Richard M. Nixon challenged provisions of a federal statute that directed the Administrator of General Services to take custody of and preserve his presidential papers and tape recordings.[31] The Court held that a statute constitutes a bill of attainder only if it both applies with specificity and imposes punishment without trial.[32] With respect to the legislation before it, the Supreme Court acknowledged "the Act's specificity--the fact that it refer[red] to [President Nixon] by name."[33] However, the Court rejected the proposition that an individual or defined group is subject to a bill of attainder "whenever he or it is compelled to bear burdens which the individual or group dislikes."[34] Instead, the Court explained, Congress may in some circumstances regulate "a legitimate class of one."[35] If such a law applies with specificity but does not impose punishment, it will not be struck down as a bill of attainder.[36]

The Nixon Court then proceeded to lay out three tests for assessing whether a law imposes punishment: (1) historical, (2) functional, and (3) motivational. The historical test looks to "[t]he infamous history of bills of attainder" to determine whether the law was one of a limited set of legislative actions that were deemed to be bills of attainder before the Founding and in prior Supreme Court cases.[37] Those historical punishments included pre-Founding legislation imposing death sentences, imprisonment, and banishment, as well as the employment bans that were struck down in Cummings, Lovett, and Brown.[38] The functional test considers "whether the law under challenge, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes."[39] The motivational test looks to legislative history to determine "whether the legislative record evinces a congressional intent to punish."[40] Finding that none of the three tests were satisfied in Nixon, the Supreme Court concluded that the law requiring the transfer and preservation of the presidential records did not qualify as a punishment under any of these three tests.[41]

The Court has continued to apply the Nixon framework in its rare Bill of Attainder cases since 1977. In Selective Service System v. Minnesota Public Interest Research Group, the Supreme Court rejected a bill of attainder challenge to a federal statute that denied student financial assistance to male students who failed to register for the draft.[42] After holding that the statute did not single out a specific group based on past actions because "those failing to register timely can qualify for aid by registering late," the Court concluded that none of the Nixon tests suggested that the law was punitive.[43]

Ex Post Facto Laws[edit | edit source]

Overview of Ex Post Facto Laws[edit | edit source]

Separate provisions of the Constitution ban enactment of ex post facto laws by the Federal Government and the states, respectively.[44] The Supreme Court has cited cases interpreting the federal Ex Post Facto Clause in challenges under the state clause, and vice versa, implying that the two clauses have the same scope.[45] The Court has construed both clauses to ban legislatures from enacting laws that impose criminal liability or increase criminal punishment retroactively.[46] The constitutional prohibitions of ex post facto laws are closely related to the prohibitions of bills of attainder--legislative actions that determine guilt or impose criminal punishment on specific persons or groups without a judicial trial.[47] In some cases, the Court has held that a single legislative action may violate both the ex post facto and bill of attainder prohibitions.[48]

Some ex post facto cases involve facial challenges--claims that the challenged laws are invalid in all circumstances.[49] Many, however, involve claims that the Ex Post Facto Clauses bar applying laws to specific offenses that were committed before the laws' enactment.[50] The Supreme Court has denied ex post facto claims when it has found that a law is not ex post facto as applied to the challenger, even when the law might be ex post facto as applied to others not before the Court.[51]

The Supreme Court has held that the constitutional prohibitions on ex post facto laws do not apply to crimes committed outside the jurisdiction of the United States against the laws of a foreign country.[52]

Historical Background on Ex Post Facto Laws[edit | edit source]

An ex post facto law, named using the Latin phrase for "after the fact," is a law that imposes criminal liability or increases criminal punishment retroactively.[53] Two separate clauses of the Constitution, Article I, Sections 9 and 10, respectively ban enactment of ex post facto laws by the Federal Government and the states.[54]

In the Federalist No. 44, James Madison asserted that ex post facto laws "are contrary to the first principles of the social compact, and to every principle of sound legislation."[55] In the Federalist No. 84, Alexander Hamilton further justified prohibitions on ex post facto laws by arguing:

The creation of crimes after the commission of the fact, or . . . punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny.The Federalist No. 84, at 511 (Alexander Hamilton).

The prohibition on ex post facto laws seeks "to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed" and "restricts governmental power by restraining arbitrary and potentially vindictive legislation."[56] The Supreme Court has further stated that the prohibition is based on

the notion that laws . . . which purport to make innocent acts criminal after the event, or to aggravate an offense, are harsh and oppressive, and that the criminal quality attributable to an act . . . should not be altered by legislative enactment, after the fact, to the disadvantage of the accused.Beazell v. Ohio, 269 U.S. 167, 170 (1925). By contrast, the Supreme Court has held that retroactive criminal statutes that do not disadvantage criminal defendants are not ex post facto laws. See Art. I, Sec. 9, Cl. 3: Increasing Punishment and Ex Post Facto Laws.

At the Constitutional Convention, multiple delegates expressed disapproval of ex post facto laws. However, some believed that an explicit constitutional prohibition of ex post facto laws was unnecessary because such laws were clearly invalid. One delegate "contended that there was no lawyer, no civilian who would not say that ex post facto laws were void of themselves."[57] Others asserted that including the prohibition could do harm by "proclaim[ing] that we are ignorant of the first principles of Legislation, or are constituting a Government which will be so" or "implying an improper suspicion of the National Legislature."[58] Other delegates responded that an express prohibition was necessary because some state legislatures had previously passed ex post facto laws, and state constitutional bans of such laws had been invoked to oppose them.[59]

There was also discussion at the Convention as to whether the prohibition on ex post facto laws applied only to retroactive criminal laws or also forbade retroactive civil laws.[60] The delegates rejected a suggestion that would have altered the federal Ex Post Facto Clause to state expressly that it applied to civil laws, but they did not clearly resolve the question.[61] Soon after ratification, in the 1798 case Calder v. Bull, the Supreme Court construed the constitutional prohibition on ex post facto laws to prohibit only retroactive criminal laws.[62]

Retroactivity of Ex Post Facto Laws[edit | edit source]

As the phrase "ex post facto" ("after the fact") suggests, the Ex Post Facto Clauses apply only to legislation that imposes or increases a punishment retroactively.[63] The Ex Post Facto Clauses are related to other constitutional provisions that limit retroactive government action, including the federal and state Bill of Attainder Clauses, the Contract Clause, and the Due Process Clauses.[64]

In ex post facto cases, the relevant point in time for determining whether a law applies retroactively is the time the offense was committed: the Supreme Court has explained that people must have notice of the possible criminal penalties for their actions at the time they act.[65]

A key consideration in ex post facto cases is whether the specific individuals challenging the law had notice of all the legal consequences of their actions at the time they committed their offenses. The Supreme Court has rejected ex post facto challenges to laws that might apply retroactively in some circumstances but applied only prospectively to the challengers before the Court.[66] The Court has also held that statutes are not retroactive if they apply to past conduct that was also prohibited under a prior statute. For instance, in Harisiades v. Shaughnessy, the Court considered ex post facto claims from several resident aliens who had been ordered deported under a 1940 statute based on their pre-1940 membership in the Communist Party.[67] The Court stated that "[a]n impression of retroactivity results from reading as a new and isolated enactment what is actually a continuation of prior legislation."[68] However, the Court noted that membership in organizations such as the Communist Party had been grounds for deportation since 1920. Thus, the challengers "were not caught unawares by a change of law. There can be no contention that they were not adequately forewarned both that their conduct was prohibited and of its consequences."[69]

The Supreme Court has denied ex post facto challenges to laws that impose legal consequences based not solely on past conduct but rather on an ongoing condition that began in the past. In a late nineteenth century case, Murphy v. Ramsey, the Court rejected an ex post facto challenge to a law that disenfranchised bigamists and polygamists, holding that the law did not retroactively impose a penalty for a crime.[70] Although bigamy and polygamy were criminal offenses, the Court observed that the criminal offense was the unlawful marriage itself and was subject to a three-year statute of limitations following the marriage, so that a person subject to disenfranchisement might be "a bigamist or a polygamist, and yet guilty of no criminal offense."[71]

In United States v. Trans-Missouri Freight Association, the Court rejected an ex post facto challenge to the application of an 1890 antitrust law to an agreement begun in 1889.[72] The Court explained that the law did not apply to past conduct but rather to an ongoing violation: even if the agreement was lawful when entered into, "the continuation of the agreement, after it has been declared to be illegal, becomes a violation of the act. . . . There is nothing of an ex post facto character about the act."[73] Similarly, in Samuels v. McCurdy, the Court rejected an ex post facto challenge to a law that prohibited the possession of liquor that was legal when purchased.[74] The Court held that the law did not "provide a punishment for a past offense" by penalizing the owner "for having become possessed of the liquor," but instead imposed a penalty for "continuing to possess the liquor after the enactment of the law."[75]

The Supreme Court has rejected multiple ex post facto challenges to repeat offender statutes on the ground that such statutes do not penalize past conduct.[76] In McDonald v. Massachusetts, the Court rejected an ex post facto challenge to a "habitual criminal" statute that imposed an increased penalty for post-enactment offenses based on the defendant's previous, pre-enactment criminal convictions.[77] While the defendant argued that the law amounted to an additional punishment for his prior offenses, the Court concluded that the "statute, imposing a punishment on none but future crimes, is not ex post facto."[78] The Court likewise approved the consideration of pre-enactment offenses under a repeat offender statute in Gryger v. Burke.[79] The Court explained that the sentence for a habitual criminal "is not to be viewed as . . . additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one."[80]

In Johnson v. United States, the Court denied an ex post facto challenge to a statute authorizing courts to impose an additional term of supervised release following the reimprisonment of persons who violate the conditions of an initial term of supervised release.[81] The Court declined to construe the statute to apply retroactively and therefore concluded that "the ex post facto question does not arise."[82]

In Kansas v. Hendricks, the Court rejected an ex post facto challenge to a statute allowing for civil commitment of "sexually violent predators," in part because the statue was not retroactive.[83] The Court held that the law allowed for involuntary confinement "based upon a determination that the person currently both suffers from a 'mental abnormality' or 'personality disorder' and is likely to pose a future danger to the public."[84] The Court explained that, under the statute, past behavior was permissably used "solely for evidentiary purposes."[85]

Ex Post Facto Law Prohibition Limited to Penal Laws[edit | edit source]

Since the 1798 case Calder v. Bull, the Supreme Court has interpreted the Ex Post Facto Clauses to apply only to laws that are criminal or penal in nature, not to civil laws.[86] The Court has explained, however, that "the ex post facto effect of a law cannot be evaded by giving a civil form to that which is essentially criminal."[87] In Calder, the Court enumerated four ways in which a legislature may violate the Ex Post Facto Clauses' prohibition on imposing retroactive criminal liability: (1) making criminal an action taken before enactment of the law that was lawful when it was done; (2) increasing the severity of an offense after it was committed; (3) increasing the punishment for a crime after it was committed; and (4) altering the rules of evidence after an offense was committed so that it is easier to convict an offender.[88]

Supreme Court decisions from the nineteenth century suggested that a legislature might violate the Ex Post Facto Clauses in ways that do not fit within any of the four categories recognized in Calder.[89] However, in the 1990 case Collins v. Youngblood, the Court rejected that reasoning and held that the scope of the prohibition on ex post facto laws is "defined by the Calder categories."[90]

Increasing Punishment and Ex Post Facto Laws[edit | edit source]

The Supreme Court has denied ex post facto challenges to changes to trial procedures and sentences that do not disadvantage criminal defendants.[91] For instance, in Dobbert v. Florida, the Court rejected an ex post facto challenge to a state law that changed the role of the jury in capital cases.[92] The sentencing regime in place at the time the challenger committed his offenses provided for a death sentence upon conviction of a capital felony, unless a majority of the jury chose to depart from the presumption and instead recommended a life sentence. The revised procedure allowed the jury to render a non-binding advisory opinion on whether a death sentence was warranted; the judge then considered aggravating and mitigating circumstances and determined whether to impose a death sentence. A death sentence had to be supported by written findings by the judge and was subject to expedited appellate review.[93] The Supreme Court held that the new regime was not ex post facto, in part because it was "on the whole ameliorative," providing increased procedural protections for defendants.[94]

In Malloy v. South Carolina, the Court rejected an ex post facto challenge to a statute that changed the method of execution from hanging to electrocution for persons previously sentenced to death.[95] The change was based on a determination that electrocution was more humane.[96] The Court explained that the law did not change the applicable death sentence, "but only the mode of producing this, together with certain nonessential details in respect of surroundings. The punishment was not increased, and some of the odious features incident to the old method were abated."[97] Similarly, in Holden v. Minnesota, the Court held that a statute changing the time of executions and limiting who could attend executions was not ex post facto.[98]

By contrast, the Supreme Court has held that statues that retroactively increase the severity of a criminal sentence are ex post facto laws. Another provision of the statute at issue in Holden mandated solitary confinement pending execution.[99] The Court held that such a provision "may be deemed ex post facto, if applied to offenses committed before its passage."[100] In In re Medley, the Court held that a statute that required a previously convicted death row inmate to be held in solitary confinement until execution and not informed of his execution date was ex post facto.[101]

In considering ex post facto challenges to the length of prison sentences, the Court has held that a law may be impermissible if it increases the sentencing range for a past offense, even if it is not certain that the defendant received a higher sentence than he would have under the previous regime. In Lindsey v. Washington, criminal defendants challenged as ex post facto a statute that imposed a mandatory minimum sentence equal to what had been the maximum sentence at the time they committed their offense.[102] The Supreme Court held that the law was ex post facto as applied to pre-enactment offenses. The Court observed that "[t]he effect of the new statute is to make mandatory what was before only the maximum sentence."[103] While acknowledging that the challengers might have received the new mandatory minimum sentence under the prior regime, the Court emphasized that "the ex post facto clause looks to the standard of punishment prescribed by a statute, rather than to the sentence actually imposed."[104] Thus, in Miller v. Florida, the Court held that new state sentencing guidelines could not be applied retroactively to offenses that had been commited when a lower presumptive sentencing range was in place.[105] Similarly, in Peugh v. United States, the Court held that it violated the federal Ex Post Facto Clause when a defendant was sentenced under a new version of the U.S. Sentencing Guidelines promulgated after he committed his offense that provided a higher sentencing range--even though the Guidelines were only advisory and courts were free to impose sentences outside the range.[106]

The Supreme Court has held that statutes that canceled or reduced release credits earned by prisoners were ex post facto laws. In Weaver v. Graham, the Court held that a statute reducing credits for good behavior that counted towards early release was ex post facto as applied to a prisoner whose offense occurred before the statue was enacted.[107] In another case, Lynce v. Mathis, the Court heard an ex post facto challenge from a prisoner whose early release credits were canceled after he had been released, causing him to be rearrested and returned to prison.[108] The Court held that the retroactive cancellation of credits increased punishment because "it made ineligible for early release a class of prisoners who were previously eligible--including some, like petitioner, who had actually been released."[109]

On the other hand, statutes decreasing the frequency of parole hearings do not necessarily violate the Ex Post Facto Clauses. In California Department of Corrections v. Morales, the Supreme Court held that a state law that changed the frequency of parole hearings for certain offenders from annual to every three years did not violate the state Ex Post Facto Clause as applied to prisoners who committed their offenses before its enactment.[110] In Garner v. Jones, the Court considered a state parole board rule that increased the time between parole hearings from three years to as much as eight years.[111] The Court emphasized that the parole board had broad discretion over whether a prisoner was released, and opined that procedural changes within a system that had always allowed such discretion might not undermine the interest in "actual or constructive notice to the criminal before commission of the offense of the penalty for the transgression."[112] The Court explained that the key question in its ex post facto analysis was whether the amended rule "creates a significant risk of prolonging [the challenger's] incarceration."[113] On the record before it, the Court could not conclude the change lengthened his actual time of imprisonment.[114]

Imposing Criminal Liability and Ex Post Facto Laws[edit | edit source]

Congress and state legislatures sometimes enact temporary statutes that apply until a fixed expiration date. In United States v. Powers, the Supreme Court held that a legislature may extend a temporary criminal statute before it expires, and that, following the extension, the government may prosecute pre-extension conduct--that is, conduct that occurred while the temporary law was in effect and expected to expire as initially planned--without violating the Ex Post Facto Clause.[115] The Court explained that, due to the extension at issue in that case, "the Act has never ceased to be in effect. No new law was created; no old one was repealed. Without hiatus of any kind, the original Act was given extended life."[116]

In Dobbert v. Florida, a prisoner sentenced to death raised a claim that "there was no 'valid' death penalty in effect in Florida as of the date of his actions" because the state had made subsequent changes to sentencing procedures to satisfy newly articulated constitutional requirements.[117] The prisoner committed two murders between December 1971 and April 1972. In July 1972, the Florida Supreme Court found that the state's death penalty statute was inconsistent with the requirements laid out Furman v. Georgia.[118] Florida enacted new death penalty procedures in late 1972, and the challenger was convicted and sentenced under the new regime. The prisoner argued that the death penalty statute in effect at the time of his crimes had been struck down, and that applying the new statute to his conduct was ex post facto. The Supreme Court rejected that claim, holding that despite its procedural flaws, the old statute had "clearly indicated Florida's view of the severity of murder and of the degree of punishment" appropriate to that crime.[119]

By contrast, the Supreme Court has held that a legislature may not retroactively reimpose criminal liability after it has lapsed. Many criminal laws contain statutes of limitations that bar prosecution once a certain amount of time passes after an offense is committed. In Stogner v. California, the Court held that "a law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution."[120] The Court explained that a law extending a statute of limitations after it had lapsed falls within the second category of ex post facto laws laid out in Calder, a "law that aggravates a crime, or makes it greater than it was, when committed," because it "inflict[s] punishments, where the party was not, by law, liable to any punishment."[121]

Civil Commitment, Sex Offender Registration, and Ex Post Facto Laws[edit | edit source]

The Supreme Court has rejected ex post facto challenges to sex offender registration laws and laws imposing civil commitment for "sexually violent predators," holding that such laws are not penal in nature. For instance, in Kansas v. Hendricks, the Court rejected an ex post facto challenge to a statute allowing for civil commitment of "sexually violent predators," in part because the statue was not punitive.[122] The Court held that the civil commitment statute did "not implicate either of the two primary objectives of criminal punishment: retribution or deterrence." On the contrary, the Court stated, "measures to restrict the freedom of the dangerously mentally ill" constituted "a legitimate nonpunitive governmental objective" and a "classic example of nonpunitive detention."[123] In Seling v. Young, the Court rejected a claim that a civil commitment statute was punitive and thus ex post facto as applied to a particular individual.[124] In Smith v. Doe, the Court denied an ex post facto challenge to the Alaska Sex Offender Registration Act.[125] The Court relied in part on Hendricks to analyze whether the challenged law was punitive, concluding that the registration statute was civil and non-punitive in both purpose and effect.[126]

Procedural Changes and Ex Post Facto Laws[edit | edit source]

The Supreme Court has often, but not universally, denied ex post facto challenges to laws changing procedures in criminal trials. At times, the Court has suggested that the application of the Ex Post Facto Clauses depends on whether a challenged law is substantive or procedural, and that a procedural change cannot be ex post facto.[127] More recently, however, the Court has rejected a rigid distinction between substance and procedure and instead focused on whether a law falls within the four categories identified in Calder v. Bull.[128] Thus, in Collins v. Youngblood, the Court held that "by simply labeling a law 'procedural,' a legislature does not thereby immunize it from scrutiny under the Ex Post Facto Clause."[129]

The Supreme Court has explained, "[t]he inhibition upon the passage of ex post facto laws does not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed."[130] Rather, the legislature retains full authority to establish trial procedures, "subject only to the condition that [it] may not, under the guise of establishing modes of procedure and prescribing remedies, violate the accepted principles that protect an accused person against ex post facto enactments."[131] Thus, several Supreme Court cases have allowed the application of laws enacted after an offense that changed the place or mode of trial for that offense. For instance, in Gut v. Minnesota, the Court held that "[a]n ex post facto law does not involve, in any of its definitions, a change of the place of trial of an alleged offence after its commission."[132] In Beazell v. Ohio, the Court rejected an ex post facto challenge to a statute providing for criminal defendants jointly indicted for a felony to be tried jointly rather than separately.[133] In Gibson v. Mississippi, the Court rejected a challenge to a post-offense statute implementing new jury selection procedures.[134] In Mallett v. North Carolina, the Court denied an ex post facto challenge to a post-offense statute providing the state a right of appeal when a criminal defendant was granted a new trial.[135]

Under the fourth category identified in Calder v. Bull, a statute that alters the rules of evidence after an offense was committed so it is easier to convict an offender is ex post facto.[136] However, not every change to evidentiary procedures in criminal cases violates the Ex Post Facto Clauses. In Thompson v. Missouri, the Supreme Court rejected an ex post facto challenge to a post-offense statute that allowed prosecutors to introduce certain evidence related to the authenticity of a disputed letter in a murder trial.[137] The Thompson Court held that the statute did not fit within any of the Calder categories and was not "so unreasonable as materially to affect the substantial rights of one put on trial for crime."[138] In Splawn v. California, the Court rejected an ex post facto challenge to a post-offense statute that altered jury instructions related to the consideration of evidence in an obscenity trial.[139] The Court emphasized that the substantive criminal law governing the challenger's conduct "was in full force and effect at all times relevant to [the] conduct."[140] By contrast, the newly enacted statute did "not create any new substantive offense, but merely declare[d] what type of evidence may be received and considered."[141] Accepting a state court's conclusion that the new statute did not allow admission of previously inadmissible evidence, the Court held that the law was not ex post facto.[142]

Two cases about witness testimony illustrate the difference between laws that merely change trial procedures and those that alter the legal standards for conviction. In Hopt v. Utah, the Supreme Court denied an ex post facto challenge to a post-offense statute that allowed convicted felons to testify as witnesses in murder trials.[143] The Court held that the amendment did not fall within any of the Calder categories and that changes in the law that "only remove[ ] existing restrictions upon the competency of certain classes of persons as witnesses, relate to modes of procedure only, in which no one can be said to have a vested right."[144] The Court later distinguished Hopt in the 2000 case Carmell v. Texas.[145] In Carmell, the Court accepted an ex post facto challenge to a post-offense law that removed a requirement for corroborating evidence and authorized conviction of certain sexual offenses based on the victim's testimony alone.[146] Unlike in Hopt, the Carmell Court held that the challenged statute did not simply determine who was competent to testify but was instead "a sufficiency of the evidence rule" that lowered the burden to convict and thus fell within the fourth category of prohibited laws identified in Calder.[147]

Employment Qualifications and Ex Post Facto Laws[edit | edit source]

The Supreme Court has heard multiple ex post facto challenges to laws that limit the ability of the challengers to engage in certain professions. The Court has struck down laws it deemed to impose employment bans as punishment for past conduct. For instance, in Cummings v. Missouri, the Court considered a challenge to a post-Civil War amendment to the Missouri Constitution that required persons engaged in certain professions to swear an oath that they had never been disloyal to the United States.[148] The Court held that the purpose and effect of the challenged amendment was to punish a group of individuals who had been disloyal to the United States, and the punishment they faced was effective exclusion from the covered professions.[149] The Court noted that some of the covered acts of disloyalty were crimes when they were committed, while some were not. The amendment violated the Ex Post Facto Clause in either case, whether by retroactively increasing the punishment for an existing offense or by imposing punishment for acts that were not offenses at the time they were committed.[150] The Court also held that the challenged provisions improperly "subvert[ed] the presumptions of innocence, and alter[ed] the rules of evidence" by "assum[ing] that the parties are guilty" and requiring them to "establish their innocence."[151] In Ex parte Garland, the Court relied on its reasoning in Cummings to strike down a similar federal law.[152]

By contrast, the Court has rejected ex post facto challenges to laws that it found imposed legitimate, non-punitive employment qualifications. In Hawker v. New York, the Court denied a challenge to a state statute that barred any person convicted of a felony from practicing medicine.[153] The Court concluded that the prohibition "is not to be regarded as a mere imposition of additional penalty, but as prescribing the qualifications for the duties to be discharged and the position to be filled."[154] The Court further explained that a state "may require both qualifications of learning and of good character" of those engaged in the practice of medicine, may determine "that one who has violated the criminal laws of the state is not possessed of sufficient good character," and "may make the record of a conviction conclusive evidence of the fact of the violation of the criminal law, and of the absence of the requisite good character."[155] For similar reasons, the Court in Reetz v. Michigan rejected an ex post facto challenge to a state law that imposed new professional registration requirements for doctors and prohibited the practice of medicine by unregistered persons.[156]

In Garner v. Board of Public Works, the Supreme Court considered ex post facto challenges to a provision of the Charter of the City of Los Angeles barring from public employment any person who within the last five years had been affiliated with a group that advocated the forceful overthrow of the government, and a city ordinance requiring public employees to state whether they had ever been members of the Communist Party.[157] The Court construed the challenged provisions to apply only after adoption of the Charter to "bar[ ] from the city's public service persons who . . . advise, advocate, or teach the violent overthrow of the Government or who are or become affiliated with any group doing so."[158] The Court held that "[t]he provisions operating thus prospectively were a reasonable regulation to protect the municipal service by establishing an employment qualification of loyalty to the State and the United States."[159] It further held that the provisions were not ex post facto because, assuming that being fired for failure to satisfy the requirements constituted punishment, the conduct covered by the oath had been unlawful for years prior to imposition of the oath requirement, so the provisions did not operate to "impose[ ] punishment for past conduct lawful at the time it was engaged in."[160]

Retroactive Taxes and Ex Post Facto Laws[edit | edit source]

The Supreme Court has generally rejected ex post facto challenges to laws imposing retroactive tax liability.[161] In Kentucky Union Co. v. Kentucky, the Court emphasized that not all retroactive laws are ex post facto, as the prohibition on ex post facto laws applies only to retroactive criminal laws.[162] The majority further opined: "Laws of a retroactive nature, imposing taxes or providing remedies for their assessment and collection, and not impairing vested rights, are not forbidden by the Federal Constitution."[163]

The Court has made clear, however, that the question of whether a law is a non-penal tax, and thus outside the scope of the Ex Post Facto Clauses, depends on how the statute functions rather than its formal classification by the legislature. In Burgess v. Salmon, the Court held that the retroactive application of a tax law that was enforceable through a fine and imprisonment was invalid on ex post facto grounds.[164] The Court cautioned that "the ex post facto effect of a law cannot be evaded by giving a civil form to that which is essentially criminal."[165]

Ex Post Facto Prohibition and Judicial Decisions[edit | edit source]

Multiple Supreme Court decisions have held that the Ex Post Facto Clauses apply only to federal and state legislation (including state constitutional amendments), not to judicial decisions.[166] In Ross v. Oregon, the Court declined to apply the prohibition on ex post facto laws to a court decision that interpreted a statute that had been in place at the time of the offense to the disadvantage of the defendant.[167] In Frank v. Mangum, the Court rejected an ex post facto challenge to a judicial decision that allegedly departed from precedent.[168] The Court explained that the state Ex Post Facto Clause "is directed against legislative action only, and does not reach erroneous or inconsistent decisions by the courts."[169] Similarly, in Marks v. United States, the Court held that the federal Ex Post Facto Clause "is a limitation upon the powers of the Legislature . . . and does not of its own force apply to the Judicial Branch of government."[170]

Although the Judicial Branch is not bound by the Ex Post Facto Clauses, the Court has held that the Due Process Clause might similarly prevent a defendant from being convicted for conduct that would not have been criminal but for an intervening court decision.[171] In Bouie v. City of Columbia, the Supreme Court held that "an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law" and "[i]f a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction."[172] In Rogers v. Tennessee, the Court reiterated that while the Ex Post Facto Clause does not apply to the judiciary, "limitations on ex post facto judicial decisionmaking are inherent in the notion of due process."[173] However, the Rogers Court also held that the due process limitation on courts is not identical to the ex post facto prohibition that applies to legislation. The Court explained:

The Ex Post Facto Clause, by its own terms, does not apply to courts. Extending the Clause to courts through the rubric of due process thus would circumvent the clear constitutional text. It also would evince too little regard for the important institutional and contextual differences between legislating, on the one hand, and common law decisionmaking, on the other.Id. at 460.

Ex Post Facto Laws, Deportation, and Related Issues[edit | edit source]

Multiple Supreme Court cases have held that deportation proceedings are civil, not penal, in nature, and therefore are not subject to the federal Ex Post Facto Clause.[174] As one example, in Harisiades v. Shaughnessy, the Court considered ex post facto claims from several resident aliens who had been ordered deported based on their past membership in the Communist Party. The Court rejected the claims, holding in part:

Deportation, however severe its consequences, has been consistently classified as a civil rather than a criminal procedure. . . . 'Congress has power to order the deportation of aliens whose presence in the country it deems hurtful. The determination by facts that might constitute a crime under local law is not a conviction of crime, nor is the deportation a punishment; it is simply a refusal by the government to harbor persons whom it does not want.' 342 U.S. 580, 594 (1952) (quoting Bugajewitz, 228 U.S. at 591). The Court also held that the challenged statute did not apply retroactively. See id. at 593; see Art. I, Sec. 9, Cl. 3: Retroactivity of Ex Post Facto Laws.

In Galvan v. Press, the Court considered another ex post facto claim by a former Communist Party member challenging his deportation.[175] The Court acknowledged the severe consequences of deportation--even likening its "intrinsic consequences" to punishment for a crime--but ultimately chose to follow "the unbroken rule of this Court that [the Ex Post Facto Clause] has no application to deportation."[176]

In Flemming v. Nestor, the Supreme Court rejected an ex post facto challenge to a statute terminating federal old-age, survivor, and disability insurance benefits for individuals deported on certain grounds.[177] The Court deemed the challenged sanction to be "the mere denial of a noncontractual governmental benefit" and held that Congress could have reasonable, non-punitive reasons for "the disqualification of certain deportees from receipt of Social Security benefits while they are not lawfully in this country."[178] While the challenger argued that Congress was actually motivated by a punitive purpose, the Court stated that "only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground," and found no such proof with respect to the challenged statute.[179]

In Johannessen v. United States, the Supreme Court held that a statute providing for cancellation of United States citizenship obtained by fraud was not an ex post facto law.[180] The Court held that the "act imposes no punishment upon an alien who has previously procured a certificate of citizenship by fraud or other illegal conduct. It simply deprives him of his ill-gotten privileges."[181]

  1. See, e.g., Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 468 (1977). In construing an analogous constitutional provision prohibiting the States from enacting bills of attainder, Art. I, Sec. 10, Clause 1 Proscribed Powers, the Supreme Court has held that the clause "is directed against legislative action only, and does not reach erroneous or inconsistent decisions by the courts." Frank v. Magnum, 237 U.S. 309, 344 (1915). Accord Ross v. Oregon, 227 U.S. 150, 161 (1913).
  2. Id. at 441-42.
  3. Id. at 442. As one notable example, in 1778, Thomas Jefferson drafted, and the Virginia House of Delegates enacted, a bill of attainder targeting a man accused of offenses including treason, murder, and arson. 2 The Papers of Thomas Jefferson 189 (J. Boyd ed., 2018).
  4. For the prohibition on state bills of attainder, see Art. I, Sec. 10, Clause 1 Proscribed Powers. See also Art. I, Sec. 10, Cl. 1: State Bills of Attainder. The Supreme Court appears to have interpreted the federal and state prohibitions as having the same scope. See, e.g., Ex parte Garland, 71 U.S. 333, 377-78 (1866) ("In [Cummings v. Missouri, 71 U.S. 277 (1866)] we have had occasion to consider [the state Bill of Attainder Clause] . . . A like prohibition is contained in the Constitution against enactments of this kind by Congress; and the argument presented in that case against certain clauses of the constitution of Missouri is equally applicable to the act of Congress under consideration in this case."); Nixon, 433 U.S. at 468-76 (citing Cummings in case applying federal Bill of Attainder Clause).
  5. Brown, 381 U.S. at 441.
  6. The Federalist No. 44 (James Madison).
  7. Id.
  8. 3 Joseph Story, Commentaries on the Constitution of the United States § 1338 (1833) (In bill of attainder cases, "the legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when such proofs are within its reach, whether they are conformable to the rules of evidence, or not. In short, in all such cases, the legislature exercises the highest power of sovereignty, and what may be properly deemed an irresponsible despotic discretion, being governed solely by what it deems political necessity or expediency, and too often under the influence of unreasonable fears, or unfounded suspicions.").
  9. Nixon, 433 U.S. at 469; see also Fletcher v. Peck, 10 U.S. 87, 138 (1810) ("A bill of attainder may affect the life of an individual, or may confiscate his property, or may do both.").
  10. Id. at 470-71.
  11. Id. at 472-73; see also Trop v. Dulles, 356 U.S. 86, 95-96 (1958) ("Each time a statute has been challenged as being in conflict with the constitutional prohibitions against bills of attainder and ex post facto laws, it has been necessary to determine whether a penal law was involved, because these provisions apply only to statutes imposing penalties." (footnotes omitted)).
  12. American Communications Ass'n, C.I.O., v. Douds, 339 U.S. 382, 414 (1950). The Bill of Attainder Clause is one of several constitutional provisions that limit the ability of the Federal Government and the states to legislate retroactively. See Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994).
  13. South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966) ("[C]ourts have consistently regarded the Bill of Attainder Clause of Article I and the principle of the separation of powers only as protections for individual persons and private groups, those who are peculiarly vulnerable to non-judicial determinations of guilt. . . . Nor does a State have standing as the parent of its citizens to invoke these constitutional provisions against the Federal Government, the ultimate parens patriae of every American citizen." (internal citations omitted)).
  14. Neely v. Henkel, 180 U.S. 109, 122 (1901) (holding that constitutional provisions including the Bill of Attainder Clause "have no relation to crimes committed without the jurisdiction of the United States against the laws of a foreign country").
  15. 71 U.S. 333 (1866).
  16. 71 U.S. 277 (1866).
  17. See Garland, 71 U.S. at 334-35 (federal statute required attorneys practicing in federal court to swear an oath that they had never voluntarily borne arms against the United States or "given . . . aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto"); Cummings, 71 U.S. at 280 (state constitutional provision required members of the clergy and others to swear, "I have always been truly and loyally on the side of the United States against all enemies thereof, foreign and domestic").
  18. See Garland, 71 U.S. at 377 ("The statute is directed against parties who have offended in any of the particulars embraced by these clauses [related to past disloyalty]. And its object is to exclude them from the profession of the law, or at least from its practice in the courts of the United States."); Cummings, 71 U.S. at 320 (The oath requirement "was exacted, not from any notion that the several acts designated indicated unfitness for the callings, but because it was thought that the several acts deserved punishment, and that for many of them there was no way to inflict punishment except by depriving the parties, who had committed them, of some of the rights and privileges of the citizen.").
  19. Cummings, 71 U.S. at 325-29; Garland, 71 U.S. at 380.
  20. Cummings, 71 U.S. at 327.
  21. Id.
  22. Garland, 71 U.S. at 377-78.
  23. 328 U.S. 303, 315 (1946).
  24. Id. at 317. See also Bigelow v. Forrest, 76 U.S. 339, 345 (1869) ("[The] limitation upon bills of attainder does not apply to proceedings in courts, in individual cases, where there are regular trials and formal proceedings in which the individual has full opportunity to defend.").
  25. Id. at 313, 316.
  26. 381 U.S. 437, 440 (1965).
  27. Id. at 450.
  28. Flemming v. Nestor, 363 U.S. 603, 617 (1960) (holding that "the mere denial of a noncontractual governmental benefit" was not sufficently punitive to constitute a bill of attainder).
  29. Communist Party of U.S. v. Subversive Activities Control Bd., 367 U.S. 1, 86 (1961) (registration requirement was not a bill of attainder because "[i]t attache[d] not to specified organizations but to described activities in which an organization may or may not engage," the registration requirement applied only "after full administrative hearing, subject to judicial review," and the law was not retroactive since parties subject to it could "escape regulation merely by altering the course of their own present activities").
  30. 433 U.S. 425 (1977).
  31. Id. at 429.
  32. Id. at 471-73.
  33. Id. at 471-72.
  34. Id. at 470.
  35. Id. at 472.
  36. Id.
  37. Id. at 473.
  38. Id. at 474-75.
  39. Id. at 475-76. See also Trop v. Dulles, 356 U.S. 86, 96 (1958) ("If [a] statute imposes a disability for the purposes of punishment--that is, to reprimand the wrongdoer, to deter others, etc., it has been considered penal. But a statute has been considered nonpenal if it imposes a disability, not to punish, but to accomplish some other legitimate governmental purpose.").
  40. Id. at 478. "[O]nly the clearest proof could suffice to establish the unconstitutionality of a statute" based on punitive intent. Flemming v. Nestor, 363 U.S. 603, 617 (1960).
  41. Id. at 484. In Local 28 of Sheet Metal Workers' Int'l Ass'n v. Equal Employment Opportunity Com'n, the Supreme Court rejected as without merit the argument that a construction of Title VII of the Civil Rights Act of 1964 allowing a court to impose an affirmative action plan on an entity that violated Title VII had "the effect of making the Civil Rights Act an unconstitutional bill of attainder, visiting upon white persons the sins of past discrimination by others." 478 U.S. 421, 481 n.50 (1986).
  42. 468 U.S. 841, 856 (1984).
  43. Id. at 850-56.
  44. Art. I, Sec. 9, Clause 3 Nullification; art. I, § 10, cl. 1. While there are two Ex Post Facto Clauses, only one of the two can apply to any given piece of legislation. Courts and commentators at times distinguish between the federal Ex Post Facto Clause and the state Ex Post Facto Clause, but also sometimes use the singular "Ex Post Facto Clause" without explicitly distinguishing between the two. E.g., Dorsey v. United. States, 567 U.S. 260, 275 (2012) ("Although the Constitution's Ex Post Facto Clause, Art. I, § 9, cl. 3, prohibits applying a new Act's higher penalties to pre-Act conduct, it does not prohibit applying lower penalties.").
  45. See, e.g., Peugh v. United States, 569 U.S. 530, 532-33 (2013) (case construing federal clause citing case construing state clause); Reetz v. Michigan, 188 U.S. 505, 510 (1903) (case construing state clause citing case construing federal clause).
  46. See, e.g., Calder, 3 U.S. at 389; Peugh, 569 U.S. at 532-33; Baltimore and Susquehanna R.R. v. Nesbit, 51 U.S. 395, 401 (1850) (a state can enact a retroactive law that is not punitive and does not impair the obligation of contracts). See also Fletcher v. Peck, 10 U.S. 87, 138 (1810) ("An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed."); Locke v. New Orleans, 71 U.S. 172, 173 (1867); Orr v. Gilman, 183 U.S. 278, 285 (1902).
  47. E.g., Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 537-38 (1977).
  48. E.g., Cummings v. Missouri, 71 U.S. 277 (1866); Ex parte Garland, 71 U.S. 333 (1866).
  49. See, e.g., Garland, 71 U.S. at 382; cf. Jaehne v. New York, 128 U.S. 189, 194 (1888) (challenger argued that a law was facially invalid because it could be ex post facto in some cases).
  50. See, e.g., Lindsey v. Washington, 301 U.S. 397, 398 (1937); Weaver v. Graham, 450 U.S. 24, 28-33 (1981).
  51. Jaehne, 128 U.S. at 194 (law that might be void as applied to pre-enactment offenses was not void as applied to post-enactment offenses); Bugajewitz v. Adams, 228 U.S. 585, 608-09 (1913).
  52. Neely v. Henkel, 180 U.S. 109, 123 (1901).
  53. E.g., Locke v. New Orleans, 71 U.S. 172, 173 (1867).
  54. For the prohibition on state ex post facto laws, see Art. I, Sec. 10, Clause 1 Proscribed Powers. See also Art. I, Sec. 10, Cl. 1: State Ex Post Facto Laws.
  55. The Federalist No. 44, at 278-79 (James Madison). Madison further noted that several state constitutions expressly banned ex post facto laws and that in any case such laws were "prohibited by the spirit and scope of these fundamental charters." Id.
  56. Weaver v. Graham, 450 U.S. 24, 28-29 (1981).
  57. 2 The Records of the Federal Convention of 1787, at 376 (Max Farrand ed., 1911).
  58. Id.
  59. Id.
  60. Id. at 448-49, 617.
  61. Id. at 617. See also id. at 440 (considering amendment to the state Ex Post Facto Clause that would instead have prohibited enactment of "retrospective laws").
  62. 3 U.S. 386, 389 (1798). See also 3 Joseph Story, Commentaries on the Constitution of the United States § 1339 (1833).
  63. See, e.g., Calder v. Bull, 3 U.S. 386, 391 (1798).
  64. See, e.g., Fletcher v. Peck, 10 U.S. 87, 138-39 (1810).
  65. See, e.g., Weaver v. Graham, 450 U.S. 24, 30 (1981) ("Critical to relief under the Ex Post Facto Clause is . . . the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.").
  66. Jaehne v. New York, 128 U.S. 189, 194 (1888) (law that might be void as applied to pre-enactment offenses was not void as applied to post-enactment offenses); Bugajewitz v. Adams, 228 U.S. 585, 608-09 (1913).
  67. 342 U.S. 580, 581-82 (1952).
  68. Id. at 593.
  69. Id.
  70. 114 U.S. 15, 36 (1885).
  71. Id. at 43.
  72. 166 U.S. 290, 342 (1897).
  73. Id. See also Chicago & Alton R.R. v. Tranbarger, 238 U.S. 67, 73 (1915) ("[P]laintiff in error is subjected to a penalty not because of the manner in which it originally constructed its railroad embankment, nor for anything else done or omitted before the passage of the act . . ., but because after that time it maintained the embankment in a manner prohibited by that act.").
  74. 267 U.S. 188, 191 (1925).
  75. Id. at 193.
  76. Cf. Graham v. West Virginia, 224 U.S. 616, 623 (1912) (upholding repeat offender law against non-ex post facto challenges, holding: "The propriety of inflicting severer punishment upon old offenders has long been recognized in this country and in England. They are not punished the second time for the earlier offense, but the repetition of criminal conduct aggravates their guilt and justifies heavier penalties when they are again convicted.").
  77. 180 U.S. 311, 311 (1901).
  78. Id. at 313.
  79. 334 U.S. 728, 729 (1948).
  80. Id. at 732.
  81. 529 U.S. 694, 696 (2000).
  82. Id. at 702.
  83. 521 U.S. 346, 371 (1997). The Court also held that the statute was not punitive. See Art. I, Sec. 9, Cl. 3: Increasing Punishment and Ex Post Facto Laws.
  84. Id.
  85. Id.
  86. Calder v. Bull, 3 U.S. 386, 389 (1798); see also, e.g., Watson v. Mercer, 33 U.S. 88, 110 (1834) ("The constitution of the United States does not prohibit the states from passing retrospective laws generally; but only ex post facto laws. Now it has been solemnly settled by this court, that the phrase, ex post facto laws, is not applicable to civil laws, but to penal and criminal laws."). For additional discussion of certain categories of laws that have generally been held to be non-penal in nature, see Art. I, Sec. 9, Cl. 3: Retroactive Taxes and Ex Post Facto Laws and Art. I, Sec. 9, Cl. 3: Ex Post Facto Laws, Deportation, and Related Issues. For discussion of other constitutional provisions that apply exclusively to penal laws, see Art. I, Sec. 9, Cl. 3: Historical Background on Bills of Attainder, Art. I, Sec. 10, Cl. 1: State Bills of Attainder, and Fifth Amend.: Overview of Double Jeopardy Clause.
  87. Burgess v. Salmon, 97 U.S. 381, 385 (1878); see also Cummings v. Missouri, 71 U.S. 277, 278 (1866).
  88. Calder, 3 U.S. at 390. Cf. Trop v. Dulles, 356 U.S. 86, 95 (1958) ("In deciding whether or not a law is penal, this Court has generally based its determination upon the purpose of the statute. If the statute imposes a disability for the purposes of punishment--that is, to reprimand the wrongdoer, to deter others, etc., it has been considered penal. But a statute has been considered nonpenal if it imposes a disability, not to punish, but to accomplish some other legitimate governmental purpose. The Court has recognized that any statute decreeing some adversity as a consequence of certain conduct may have both a penal and a nonpenal effect.") (footnotes omitted).
  89. Kring v. Missouri, 107 U.S. 221, 228 (1883), overruled by Collins v. Youngblood, 497 U.S. 37 (1990); cf. Thompson v. Utah, 170 U.S. 343, 352 (1898) (same).
  90. 497 U.S. 37, 47 (1990).
  91. See, e.g., Dobbert v. Florida, 432 U.S. 282, 294 (1977) ("It is axiomatic that for a law to be ex post facto it must be more onerous than the prior law.").
  92. Id. at 284.
  93. Id. at 290.
  94. Id. at 292. The Court explained, "The Florida Legislature enacted the new procedure specifically to provide the constitutional procedural protections required by [Furman v. Georgia, 408 U.S. 238 (1972)], thus providing capital defendants with more, rather than less, judicial protection." Id. at 294-95. Other aspects of the Dobbert decision are discussed later in this section and in the section Procedural Changes.
  95. 237 U.S. 180, 183 (1915).
  96. Id. at 185.
  97. Id. See also Rooney v. North Dakota, 196 U.S. 319, 326-27 (1905) (statute increasing the term of imprisonment prior to execution "did not alter the situation to the material disadvantage of the criminal, and, therefore, was not ex post facto when applied to his case in the particulars mentioned"); Dorsey v. United States, 567 U.S. 260, 275 (2012) ("Although the Constitution's Ex Post Facto Clause . . . prohibits applying a new Act's higher penalties to pre-Act conduct, it does not prohibit applying lower penalties.").
  98. 137 U.S. 483, 491 (1890).
  99. Id. at 491.
  100. Id. The Court ultimately denied the ex post facto claim because it concluded there was no evidence that the prisoner challenging the law was actually being held in solitary confinement. Id. at 491-92.
  101. 134 U.S. 160, 167-73 (1890).
  102. 301 U.S. 397, 398 (1937).
  103. Id. at 400.
  104. Id. at 401.
  105. 482 U.S. 423, 435-36 (1987). The Miller Court explained that "one is not barred from challenging a change in the penal code on ex post facto grounds simply because the sentence he received under the new law was not more onerous than that which he might have received under the old." Id. at 432 (quoting Dobbert v. Florida, 432 U.S. 282, 300 (1977)).
  106. 569 U.S. 530, 533 (2013).
  107. 450 U.S. 24, 28-33 (1981).
  108. 519 U.S. 433, 446-47 (1997).
  109. Id. at 447.
  110. 514 U.S. 499, 501-02 (1995).
  111. 529 U.S. 244, 247 (2000).
  112. Id. at 253.
  113. Id. at 251.
  114. Id. at 256. The Court remanded the case to the lower federal courts for further consideration of that question. Id. at 257.
  115. 307 U.S. 214, 216 (1939).
  116. Id. at 217.
  117. 432 U.S. 282, 297 (1977).
  118. 408 U.S. 238 (1972).
  119. Dobbert, 432 U.S. at 297.
  120. 539 U.S. 607, 632-33 (2003).
  121. Id. at 614-615.
  122. 521 U.S. 346, 360-61 (1997). The Court also held that the statute was not retroactive. See Art. I, Sec. 9, Cl. 3: Retroactivity of Ex Post Facto Laws.
  123. Id. at 361-63.
  124. 531 U.S. 250, 263 (2001).
  125. 538 U.S. 84, 95-106 (2003).
  126. Id.
  127. See, e.g., Dobbert v. Florida, 432 U.S. 282, 293 (1977) ("Even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto."); cf. Thompson v. Missouri, 171 U.S. 380, 388 (1898) ("[T]he statute is to be regarded as one merely regulating procedure, and may be applied to crimes committed prior to its passage without impairing the substantial guaranties of life and liberty that are secured to an accused by the supreme law of the land.").
  128. 3 U.S. 386, 390 (1798).
  129. 497 U.S. 37, 46 (1990).
  130. Gibson v. Mississippi, 162 U.S. 565, 590 (1896).
  131. Id.
  132. 76 U.S. 35, 38 (1870). See also Cook v. United States, 138 U.S. 157, 183 (1891); cf. Duncan v. Missouri, 152 U.S. 377, 382-83 (1894) (rejecting ex post facto challenge to state constitutional amendment separating the state supreme court into divisions and assigning certain cases to one division of the court).
  133. 269 U.S. 167, 169-70 (1925).
  134. 162 U.S. at 588-89.
  135. 181 U.S. 589, 593 (1901).
  136. 3 U.S. 386, 390 (1798).
  137. 171 U.S. 380, 381 (1898).
  138. Id. at 387. See also id. at 388 ("We cannot adjudge that the accused had any vested right in the rule of evidence which obtained prior to the passage of the Missouri statute, nor that the . . . statute entrenched upon any of the essential rights belonging to one put on trial for a public offense.").
  139. 431 U.S. 595, 599-600 (1977).
  140. Id. at 600.
  141. Id.
  142. Id. at 601.
  143. 110 U.S. 574, 589 (1884).
  144. Id. at 590.
  145. 529 U.S. 513, 531-53 (2000).
  146. Id. at 516.
  147. Id. at 545.
  148. 71 U.S. 277, 280-81 (1866).
  149. Id. at 320 (determining that the oath requirement "was exacted, not from any notion that the several acts designated indicated unfitness for the callings, but because it was thought that the several acts deserved punishment, and that for many of them there was no way to inflict punishment except by depriving the parties, who had committed them, of some of the rights and privileges of the citizen").
  150. Id. at 327-28.
  151. Id. at 328.
  152. 71 U.S. 333, 377-78 (1867). Cf. Pierce v. Carskadon, 83 U.S. 234, 237-39 (1873) (striking down a law making access to certain court proceedings contingent on an affidavit that, among other things, "such defendant never voluntarily bore arms against the United States, the reorganized government of Virginia, or the State of West Virginia").
  153. 170 U.S. 189, 190-193 (1898). See also De Veau v. Braisted, 363 U.S. 144, 160 (1960) (plurality opinion) (rejecting an ex post facto challenge to a state law that prevented any person who had been convicted of a felony and had not been pardoned from serving as an officer or agent for certain labor organizations).
  154. Hawker, 170 U.S. at 200.
  155. Id. at 191.
  156. 188 U.S. 505, 510 (1903).
  157. 341 U.S. 716, 718-19 (1951).
  158. Id. at 720.
  159. Id. at 720-21.
  160. Id. at 721.
  161. See, e.g., Carpenter v. Pennsylvania, 58 U.S. 456, 463 (1855) (law retroactively imposing a tax on certain devises in a will was not ex post facto); Bankers Trust Co. v. Blodgett, 260 U.S. 647, 652 (1923) (upholding a state statute retroactively imposing an estate tax and imposing a 2% penalty for non-payment, holding that the penalty "was not in punishment of a crime, and it is only to such that the constitutional prohibition applies"). In Locke v. City of New Orleans, the Supreme Court denied an ex post facto challenge to a tax law, holding both that the law was not retroactive and that the Ex Post Facto Clause did not apply to the non-penal tax at issue. 71 U.S. 172, 173 (1866).
  162. 219 U.S. 140, 152 (1911).
  163. Id. at 152-53.
  164. 97 U.S. 381, 381, 385 (1878).
  165. Id.
  166. See generally Cummings v. Missouri, 71 U.S. 277 (1866).
  167. 227 U.S. 150, 161 (1913).
  168. 237 U.S. 309, 344-45 (1914).
  169. Id. at 344.
  170. 430 U.S. 188, 191 (1977) (citation omitted).
  171. See, e.g., United States v. Marcus, 560 U.S. 258, 263 (2010) (holding that if a criminal defendant was erroneously convicted based on noncriminal conduct that preceded enactment of the relevant law, he would have a due process claim rather than an ex post facto claim).
  172. 378 U.S. 347, 353-354, (1964). See also Marks v. United States, 430 U.S. 188, 195-96 (1977) (applying Bouie); but see Splawn v. California, 431 U.S. 595 (1977) (rejecting application of Bouie where there was no "change in the interpretation of the elements of the substantive offense").
  173. 532 U.S. 451, 456 (2000).
  174. Bugajewitz v. Adams, 228 U.S. 585, 609 (1913); Mahler v. Eby, 264 U.S. 32, 39 (1924); Marcello v. Bonds, 349 U.S. 302, 314 (1955).
  175. 347 U.S. 522, 523 (1954).
  176. Id. at 531.
  177. 363 U.S. 603, 604-05 (1960).
  178. Id. at 617.
  179. Id.
  180. 225 U.S. 227, 242-43 (1912).
  181. Id. at 242.