ex post facto law
Definitions from Case Law · United States Supreme Court
Definitions from Case Law
From 3 U.S. 386 - Calder et Wife, v. Bull et Wife. · 1798Most cited · 2,075 citing opinions
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.
How the Supreme Court has restated “ex post facto law”
Each Supreme Court definition of “ex post facto law,” sized by how often later courts cited it. “Change” is measured by wording overlap with earlier definitions — a rough signal, not a semantic judgment.
How often courts cite the cases defining “ex post facto law”
Court decisions citing the 14 opinions that defined “ex post facto law” — 9,945 in all, by decade. Counts are citations to the defining cases as a whole, not verified uses of the term. The dip in the most recent years is a data-coverage gap, not a real trend — our corpus holds fewer opinions from the latest years.
All 14 definitions, chronological · 1798–1960
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, which punish no party for acts antecedently done which were not punishable at all, or not punishable to the extent or in the manner prescribed. In short, ex post facto laws relate to penal and criminal proceedings which impose punishments or forfeitures, and not to civil proceedings which affect private rights retrospectively.
Constitution
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 is not applicable to civil laws, but to penal and criminal laws.
But if the act of 1850 involved a change in the law of succession, and could be regarded as a civil regulation for the division of the estates of unmarried persons having no lineal heirs, and not as a fiscal imposition, this court could not pronounce it to be an ex post facto law, within the 10th section of the 1st article of the constitution. The debates in the federal convention upon the constitution show that the terms 'ex post facto laws' were understood in a restricted sense, relating to criminal cases only, and that the description of Blackstone of such laws was referred to for their meaning.
criminal only
A law which renders an act punishable in a manner in which it was not punishable when it was committed; or, with somewhat greater fulness, a law which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed; or changes the rules of evidence, by which less or different testimony is sufficient to convict than was then required.
[T]hat phrase in its legal sense is confined to crimes and their punishment.
the terms 'ex post facto laws' were understood in a restricted sense, relating to criminal cases only.
limited to criminal cases
That provision of the Constitution, according to the natural import of its terms, is a restraint upon legislative power, and concerns the making of laws, not their construction by the courts.
The constitutional prohibition: 'No state shall . . . pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts,' as its terms indicate, is directed against legislative action only, and does not reach erroneous or inconsistent decisions by the courts.
It does not provide a punishment for a past offense. It does not fix a penalty for the owner for having become possessed of the liquor. The penalty it imposes is for continuing to possess the liquor after the enactment of the law.
any statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto
The ordinance would be ex post facto if it imposed punishment for past conduct lawful at the time it was engaged in.
It always has been considered that that which it forbids is penal legislation which imposes or increases criminal punishment for conduct lawful previous to its enactment.
The mark of an ex post facto law is the imposition of what can fairly be designated punishment for past acts. The question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct, is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation, such as the proper qualifications for a profession.