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Would a law retroactively increasing the penalties for a crime, but not criminalizing any formerly legal action, be constitutional, or would it be considered ex post facto?

Someone
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3 Answers3

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Such a law would be prohibited under the ex post facto clause of the Constitution.

A (very!) early Supreme Court case on this was Calder v. Bull (1798), in which Samuel Chase wrote

I will state what laws I consider ex post facto laws within the words and the intent of the prohibition. 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. 2d. 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 offense in order to convict the offender.

(As it happens, Calder v. Bull was actually about a civil case under Connecticut state law, and the Court found that the ex post facto clause did not apply to it.)

By the time of Beazell v. Ohio (1925), the court didn't even feel like they needed to provide citations for this question any more:

It is settled, by decisions of this Court so well known that their citation may be dispensed with, that 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.

Note, however, that the scope of this protection is effectively limited to the categories listed in Calder. There were a couple of late 19th-century Supreme Court decisions (Kring v. Missouri (1883); Thompson v. Utah (1898)) in which changes to criminal court procedures that disadvantaged defendants were successfully challenged under the ex post facto clause. However, in Collins v. Youngblood (1990), the court explicitly overruled these precedents and basically said "ex post facto only applies to the four categories in Calder."

ohwilleke
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Michael Seifert
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In Canada, this is answered by section 11(i) of the Canadian Charter of Rights and Freedoms:

Any person charged with an offence has the right ... if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

The offender has the right to the benefit of the lesser punishment.

Jen
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Such a law would not be consistent with the European Convention on Human Rights, article 7, paragraph 1:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed