It Is a Criminal Statute That Purports to Criminalize Conduct Retroactively
Video Transcribed: Hello, I am Brian Jackson, I am an attorney in Tulsa, Ok. I want to talk about Ex post facto laws. What is an Ex post facto law? It’s basically a criminal statute that purports to criminalize conduct retroactively. In other words, it’s passed after the act has already been committed and declares that act a crime, and purports to make it criminal going backward. So anybody who committed the act prior to the passage of that law has now committed a crime.
Under the US Constitution and under the State Constitution, Ex post facto laws are unconstitutional. And I think the reason for this is obvious. You have no notice that such an act would be criminal and therefore, how were you to know you were breaking the law at the time you committed the act?
Ex post facto laws along with Bills of Attainder, which I’ve talked about previously, were a tool used by the crown a lot in England during the Middle Ages and leading up to even the Colonial period. And it was typically a means for the Crown to get at political opponents. If somebody did something that the Crown disliked, then Parliament could pass an Ex post facto law to criminalize that behavior and then prosecute that individual.
In modern times, these laws tend to offend the general sense of decency and fair play. But it is an interesting clause in the Constitution. It’s something to keep in mind anytime somebody starts talking about applying criminal penalties or something that’s Quasi-criminal like a fine or an assessment retroactively to behavior that wasn’t criminal at the time. And this is another example of how we got to build up our ideas of due process and fair play in the courtrooms.
We don’t punish somebody for something that was lawful at the time even if we don’t like it because the idea is that you should have notice of the fact that what you’re doing is criminal and therefore subject to criminal penalties that could restrict your liberty or take your property in the form of fines.