Ex Post Facto Law

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					 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.
committed.
                                                           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.
        eliminated retroactively.
                                                                   •   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,
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House Research Department  600 State Office Building  St. Paul, MN 55155  651-296-6753  www.house.mn/hrd/hrd.htm

				
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