HOUSE RESEARCH Short Subjects
The Constitution and the Legislature
Judie Zollar October 2002
Prohibition Against Ex Post Facto Laws
What is an ex post facto law? • the sanction has historically been regarded
as a punishment,
The state is expressly prohibited from enacting an ex • the sanction comes into play only on a
post facto law by article I, section 10 of the United finding of scienter,
States Constitution and article 1, section 11 of the • the sanction’s operation will promote the
Minnesota Constitution. An ex post facto law is one traditional aims of punishment—retribution
that (1) applies to events occurring before its and deterrence,
enactment, and (2) disadvantages the person affected • the behavior to which the sanction applies is
by it. The purpose of this limitation is to ensure that already a crime,
individuals have fair warning of legislative acts that • an alternative purpose to which the sanction
could operate to their disadvantage. may rationally be connected is assignable
for it, and
An ex post facto law is one that has the purpose or • the sanction appears excessive in relation to
effect of creating a new crime, increasing the the alternative purpose assigned.
punishment for an existing crime, depriving a
defendant of a defense available at the time the act Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-
was committed, or otherwise rendering an act 69 (1963). In the criminal context, “scienter” refers
punishable in a different, more disadvantageous to a person’s state of mind or knowledge of
manner than was true under the law at the time it was wrongdoing.
What types of laws have been found to violate the
A law is not ex post facto if it merely changes trial ex post facto clause?
procedures or rules of evidence and operates in only
a limited and unsubstantial manner to the accused’s The following cases are examples of laws found by
disadvantage. In addition, a law is not ex post facto Minnesota courts to violate the ex post facto clause
if it is a civil, regulatory law and is not sufficiently or potentially raise ex post facto concerns:
punitive in purpose or effect to negate the civil label.
• An 18-year-old may not be prosecuted in
How do courts determine whether a law is adult court for a crime committed before the
punitive? effective date of a law eliminating juvenile
court jurisdiction over offenders between the
A law is punitive if the legislature intended to punish ages of 18 and 21.
an offender for a past act and the law indeed
functions as punishment. In situations where the • An offender’s “criminal history score” under
legislature does not state whether a statute is intended the sentencing guidelines may not include a
to be punitive or regulatory, the court considers a felony point for a previous out-of-state crime
number of factors. These factors are whether: which, at the time it was committed, was
equivalent to a gross misdemeanor crime
• the sanction involves an affirmative under Minnesota law.
disability or restraint,
• An offender’s sentence may not include • A new law eliminating the applicability of
court-ordered restitution in addition to an the medical privilege to certain evidence in
executed sentence because the law in effect at child abuse cases is not ex post facto as
the time of defendant’s crime did not applied to proceedings concerning crimes
authorize the imposition of both these committed before the law’s effective date.
sanctions together. The law merely affects the type of evidence
that is admissible; it neither creates a new
• A statutory defense to a crime may not be crime nor changes the standard of proof.
• Application of a new law providing state
What types of laws have survived an ex post facto procedures for imposing federal firearms
challenge? restrictions on convicted offenders does not
violate the ex post facto clause because (1)
The following cases describe situations where the the provision does not create a new crime or
court found no ex post facto violation. impose a harsher punishment, and (2) the
defendant was on constructive notice before
• Previous DWI convictions may be used to the new law was enacted that he would be
elevate a defendant’s current DWI offense subject to even harsher federal restrictions if
from a misdemeanor to a gross misdemeanor convicted for his ongoing criminal acts.
under a new law increasing penalties for
repeat offenders. • A new law requiring a defendant to pay
extradition costs does not violate the ex post
• Criminal statute of limitations may be facto clause because its purpose is to
lengthened and applied to crimes committed reimburse the state for its expenses, not to
before the effective date of the change if punish the defendant.
prosecution of that crime was not time-barred
as of the new law’s effective date. • Laws permitting the civil commitment of
sexually dangerous persons and requiring
• A new law allowing the docketing of court- sex offenders to register their living address
ordered restitution orders as civil judgments with law enforcement authorities do not
may be applied constitutionally to a defendant violate the ex post facto clause because these
who committed the crime before the new laws are civil, regulatory laws that are not
law’s effective date but who was sentenced sufficiently punitive in purpose or effect so
after the effective date. as to negate their civil label.
For more information: Contact legislative analyst Judie Zollar at 651-296-1554 for information on ex post
facto issues, including case law citations for the examples provided in this document.
The Research Department of the Minnesota House of Representatives is a nonpartisan office providing legislative,
legal, and information services to the entire House.
House Research Department 600 State Office Building St. Paul, MN 55155 651-296-6753 www.house.mn/hrd/hrd.htm