What is an ex post facto law, and what does it have to do with you?

Ex post facto, like most latin phrases, is legalese. Its something lawyers can throw around to make themselves seem brighter. But its also something that is a violation of your constitutional rights. Ex post facto means after the fact. So an ex post facto law is one which is enacted after the fact, or after the action the prosecutor is accusing someone of.

Ex post facto laws, when they fit two criteria, are a violation of your constitutional rights and create an unfair situation for a defendant. The ex post facto clause of the Constitution embodies the theory that criminal sanctions must not be applied retroactively. The two criteria to make an ex post facto law a problem are:

1. the law must be retrospective, it must apply to events which occurred before the law was enacted
2. the law must disadvantage the defendant affected by it.

The criteria seem straightforward, but sometimes the law creates confusion. For example, the United States Supreme Court is currently faced with a question as to whether the Federal Sentencing Guidelines can be retroactively applied to a defendant. The retroactive application occurs when a past crime is grouped with a new offense at the higher offense category for purposes of multiple offense sentencing. That is, if a person committed federal fraud in the past, and then commits it again now, the past offense is considered at the new level for the purpose of determining sentences. This can cause some extremely harsh penalties when compared to the penalty from the old law, but has not been declared an ex post facto problem. See how it can get murky?

The 2nd Circuit has found that it is not a problem because the defendant has had fair notice of the grouping and the higher penalties. The 3rd Circuit has determined the opposite because it applies a new rule to an old crime and seems to cause the completed sentence t be increased by a later court at a later date. Due to the circuit split, it is important for the Supreme Court to make a determination.

Personally, I agree with the 3rd and 9th Circuits. The sentences for the old crimes are being retroactively increased, which disadvantages the defendant, and therefore certainly causes an ex post facto problem.