Ex post facto is a Latin phrase that means “a thing done after” or “after the fact.”  It is applicable to our criminal justice system because it refers to a criminal law that applies retroactively, thereby criminalizing conduct that was legal when originally performed.  It should be noted that ex post facto laws only apply to criminal laws and penalties and not civil regulatory schemes.  As an example, it is was constitutional for the Alaska legislature to enact a scheme that required present and past sex offenders to notify police where they lived and notify themselves to the public as sexual offenders via the internet.  Whether a law is a civil regulatory scheme or a criminal sanction will be determined on whether or not it has a punitive effect (i.e. whether it punishes or not).  The United States Supreme Court in Smith v. Doe, laid out several factors that should be considered when analyzing whether a law is punitive or non-punitive.  First, whether the action can be deemed as a traditional form of punishment.  Second, whether the law subjects a person to an affirmative disability or restraint.  Third, the law may not be excessive in relation to its regulatory purpose.  The government need only prove that the law has a rational relation to a legitimate-non-punitive- government objective,

There are two clauses in the United States Constitution that prohibit this conduct.  The first is Article 1 § 9.  This Article reads, “No bill of attainder or ex post facto Law shall be passed.”  The other clause can be found in Article 1 § 10 and that provision states, “No state shall enter into any treaty, alliance…pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.”  In short, these two clauses emphasize two things respectively.  First, the United States government (federal) shall not pass (i.e. congress) any ex post facto laws; second, no state government may pass an ex post facto law.  This seems rather unequivocal in text, but in application it can be quite murky.

The leading case involving the application of an ex post facto law is Collins v Youngblood.  Respondent was convicted in a Texas state court of aggravated sexual assault and sentenced to life imprisonment and a $10,000 fine. After his conviction and sentence were affirmed on direct appeal, he applied for a writ of habeas corpus in state court, arguing that Texas law did not authorize both a fine and prison term for his offense, and thus that his judgment and sentence were void and he was entitled to a new trial. The court, bound by a State Court of Criminal Appeals’ decision, recommended that the writ be granted. Before the writ was considered by the Court of Criminal Appeals, however, a new statute was passed allowing an appellate court to reform an improper verdict assessing a punishment not authorized by law. Thus, the Court of Criminal Appeals reformed the verdict by ordering that the fine be deleted and denied the request for a new trial. Arguing that the new Texas law’s retroactive application violated the Ex Post Facto Clause of Art. 1, § 10, respondent filed a writ of habeas corpus in Federal District Court, which was denied. The Court of Appeals reversed. Relying on the statement in Thompson v. Utah, 170 U. S. 343, that retroactive procedural statutes violate the Ex Post Facto Clause unless they “leave untouched all the substantial protections with which existing law surrounds the . . . accused,” the court held that respondent’s right to a new trial under former Texas law was a “substantial protection.”

Should you find yourself be being prosecuted for a past crime under a new statute, immediately contact a qualified Illinois Criminal Defense Attorney.