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Explaining Ex Post Facto

Updated: Dec 13, 2018

Last year, an issue arose concerning the Secretary of State’s Office not affixing stamps onto legislation as required by law. Because the S.C. Constitution requires that all legislation have the Great Seal affixed onto it, some argued that all legislation without it was null and void. The Attorney General’s Office put out an opinion finding that this argument was likely invalid on constitutional grounds (This would give the Secretary of State veto power over legislation). Others also argued that the Secretary of State could not go back and retroactively stamp the legislation to comply with the constitution, and also that the legislature could not pass a law voiding the stamp requirement. They argued that this would be an ex post facto laws and violation of due process.

So what are ex post facto laws and what constitutes a due process violation in this regard? The U.S. Constitution prohibits states from passing ex post facto laws as well as gives individuals the right to due process. These principles are based on fundamental fairness and the protection of individuals from an arbitrary infringement on their basic rights. Our judicial system seeks to be uniform, predictable, and fair.

No state shall…pass any bill of attainder, ex post facto law…
U.S. Const. art. I, § 10, cl. 1.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws
U.S. Const. amend. XIV.

In order for the government to violate the ex post facto provision, there are several requirements that must be present:

The United States and South Carolina Constitutions specifically prohibit the passage of ex post facto laws. For a law to fall within ex post facto prohibitions, two critical elements must be present. First, the law must be retroactive so as to apply to events occurring before its enactment. Second, the law must disadvantage the offender affected by it. See also Jernigan v. State, 340 S.C. 256 (2000) (ex post facto violation occurs when a change in the law retroactively alters definition of crime or increases punishment for crime). For the ex post facto clause to be applicable, the statute or the provision in question must be criminal or penal in purpose and nature.
State v. Walls, 348 S.C. 26, 30 (2002) (citations omitted).
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.
Beazell v. Ohio, 269 U.S. 167, 169–70 (1925).

So what about situations where the legislature needs to correct a technical problem with a legislation?

[W]e have long held that the question of what legislative adjustments “will be held to be of sufficient moment to transgress the constitutional prohibition” must be a matter of “degree.” Beazell, 269 U.S., at 171, 46 S.Ct., at 69. In evaluating the constitutionality of the 1981 amendment, we must determine whether it produces a sufficient risk of increasing the measure of punishment attached to the covered crimes. We have previously declined to articulate a single “formula” for identifying those legislative changes that have a sufficient effect on substantive crimes or punishments to fall within the constitutional prohibition, see ibid., and we have no occasion to do so here. California Dep't of Corr. v. Morales, 514 U.S. 499, 509 (1995).

While it seems fairly straight forward about what constitutes an ex post facto violation, the more confounding issue will be new judicial decisions and their retroactive application. That discussion will be for another day.


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