CRS Annotated Constitution

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Changes in Punishment.—Statutes that changed an indeterminate sentence law to require a judge to impose the maximum sentence, whereas formerly he could impose a sentence between the minimum and maximum,1826 required criminals sentenced to death to be kept thereafter in solitary confinement,1827 or allowed a warden to fix, within limits of one week, and keep secret the time[p.364]of execution,1828 were held to be ex post facto as applied to offenses committed prior to their enactment. Because it made more onerous the punishment for crimes committed before its enactment, a law, a law that altered sentencing guidelines to make it more likely the sentencing authority would impose on a defendant a more severe sentence than was previously likely and making it impossible for the defendant to challenge the sentence was ex post facto as to one who had committed the offense prior to the change.1829 But laws providing heavier penalties for new crimes thereafter committed by habitual criminals,1830 changing the punishment from hanging to electrocution, fixing the place therefor in the penitentiary, and permitting the presence of a greater number of invited witnesses,1831 or providing for close confinement of six to nine months in the penitentiary, in lieu of three to six months in jail prior to execution, and substituting the warden for the sheriff as hangman, have been sustained.1832

In Dobbert v. Florida,1833 the Court may have formulated a new test for determining when a criminal statute vis–a-vis punishment is ex post facto. Defendant murdered two of his children; at the time of the commission of the offenses, Florida law provided the death penalty upon conviction for certain takings of life. Subsequent to the commission of the capital offenses, the Supreme Court held laws similar to Florida’s unconstitutional to the extent that death was a sentence under them, although convictions obtained under the statutes were not to be overturned,1834 and the Florida Supreme Court voided its death penalty statutes on the authority of the High Court decision. The Florida legislature then enacted a new capital punishment law, which was sustained. Dobbert was convicted and sentenced to death under the new law, which was enacted after the commission of his offenses. The Court rejected the ex post facto challenge to the sentence on the basis that whether the old statute was constitutional or not, “it clearly indicated Florida’s view of the severity of murder and of the degree of punishment which the legislature wished to impose upon murderers. The statute was intended to provide maximum deterrence, and its existence on the statute books provided fair warning as to the degree[p.365]of culpability which the State ascribed to the act of murder.”1835 Whether the “fair warning” standard is to have any prominent place in ex post facto jurisprudence may be an interesting question but it is problematical in any event whether the fact situation will occur often enough to make the principle applicable in very many cases.

Changes in Procedure.—An accused person does not have a right to be tried in all respects in accordance with the law in force when the crime charged was committed.1836 Laws shifting the place of trial from one county to another,1837 increasing the number of appellate judges and dividing the appellate court into divisions,1838 granting a right of appeal to the State,1839 changing the method of selecting and summoning jurors,1840 making separate trials for persons jointly indicted a matter of discretion for the trial court rather than a matter of right,1841 and allowing a comparison of handwriting experts1842 have been sustained over the objection that they were ex post facto. It was said or suggested in a number of these cases, and two decisions were rendered precisely on the basis, that the mode of procedure might be changed only so long as the substantial rights of the accused were not curtailed.1843 The Court has now disavowed this position.1844 All that the language of most of these cases meant was that a legislature might not evade the ex post facto clause by labeling changes as alteration of “procedure.” If a change labeled “procedural” effects a substantive change in the definition of a crime or increases punishment or denies a defense, the clause is invoked; however, if a law changes the procedures by which a criminal case is adjudicated, the clause is[p.366]not implicated, regardless of the increase in the burden on a defendant.1845

Obligation of Contracts

“Law” Defined.—The term comprises statutes, constitutional provisions,1846 municipal ordinances,1847 and administrative regulations having the force and operation of statutes.1848 But are judicial decisions within the clause? The abstract principle of the separation of powers, at least until recently, forbade the idea that the courts “make” law and the word “pass” in the above clause seemed to confine it to the formal and acknowledged methods of exercise of the law–making function. Accordingly, the Court has frequently said that the clause does not cover judicial decisions, however erroneous, or whatever their effect on existing contract rights.1849 Nevertheless, there are important exceptions to this rule that are hereinafter set forth.

Supplement: [P. 366, add to end of section:]

Changes in evidentiary rules that allow conviction on less evidence than was required at the time the crime was committed can also run afoul of the Ex Post Facto Clause. This principle was applied in the Court’s invalidation of retroactive application of a Texas law that eliminated the requirement that the testimony of a sexual assault victim age 14 or older must be corroborated by two other witnesses, and allowed conviction on the victim’s testimony alone.66


1826 Lindsey v. Washington, 301 U.S. 397 (1937). But note the limitation of Lindsey in Dobbert v. Florida, 432 U.S. 282, 298–301 (1977).
1827 Holden v. Minnesota, 137 U.S. 483, 491 (1890).
1828 Medley, Petitioner, 134 U.S. 160, 171 (1890).
1829 Miller v. Florida, 482 U.S. 423 (1987).

Supplement: [P. 364, add to n.1829:]

But see California Dep’t of Corrections v. Morales, 514 U.S. 499 (1995) (a law amending parole procedures to decrease frequency of parole–suitability hearings is not ex post facto as applied to prisoners who committed offenses before enactment). The opinion modifies previous opinions that had invalidated some laws because they operated to the “disadvantage” of covered offenders. Henceforth, “the focus of ex post facto inquiry is . . . whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable.” Id. at 506 n.3. Accord, Garner v. Jones, 120 S. Ct. 1362 (2000) (evidence insufficient to determine whether change in frequency of parole hearings significantly increases the likelihood of prolonging incarceration). But see Lynce v. Mathis, 519 U.S. 433 (1997) (cancellation of release credits already earned and used, resulting in reincarceration, violates the Clause).

1830 Gryger v. Burke, 334 U.S. 728 (1948); McDonald v. Massachusetts, 180 U.S. 311 (1901); Graham v. West Virginia, 224 U.S. 616 (1912).
1831 Malloy v. South Carolina, 237 U.S. 180 (1915).
1832 Rooney v. North Dakota, 196 U.S. 319, 324 (1905).
1833 432 U.S. 282, 297–298 (1977). Justices Stevens, Brennan, and Marshall dissented. Id., 304.
1834 Furman v. Georgia, 408 U.S. 238 (1972). The new law was sustained in Proffitt v. Florida, 428 U.S. 242 (1976).
1835 Id., 432 U.S., 297.
1836 Gibson v. Mississippi, 162 U.S. 565, 590 (1896).
1837 Gut v. Minnesota, 9 Wall. (76 U.S.) 35, 37 (1870).
1838 Duncan v. Missouri, 152 U.S. 377 (1894).
1839 Mallett v. North Carolina, 181 U.S. 589, 593 (1901).
1840 Gibson v. Mississippi, 162 U.S. 565, 588 (1896).
1841 Beazell v. Ohio, 269 U.S. 167 (1925).
1842 Thompson v. Missouri, 171 U.S. 380, 381 (1898).
1843 E.g., Duncan v. Missouri, 152 U.S. 377, 382–383 (1894); Malloy v. South Carolina, 237 U.S. 180, 183 (1915); Beazell v. Ohio, 269 U.S. 167, 171 (1925). The two cases decided on the basis of the distinction were Thompson v. Utah, 170 U.S. 343 (1898) (application to felony trial for offense committed before enactment of change from 12– person jury to an eight–person jury void under clause), and Kring v. Missouri, 107 U.S. 221 (1883) (as applied to a case arising before change, a law abolishing a rule under which a guilty plea functioned as a acquittal of a more serious offense, so that defendant could be tried on the more serious charge, a violation of the clause).
1844 Collins v. Youngblood, 497 U.S. 37, 44–52 (1990). In so doing, the Court overruled Kring and Thompson v. Utah.
1845 Id., 44, 52. Youngblood upheld a Texas statute, as applied to a person committing an offense and tried before passage of the law, that authorized criminal courts to reform an improper verdict assessing a punishment not authorized by law, which had the effect of denying defendant a new trial to which he would have been previously entitled.
1846 Dodge v. Woolsey, 18 How. (59 U.S.) 331 (1856); Ohio & M. R. Co. v. McClure, 10 Wall. (77 U.S.) 511 (1871); New Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 650 (1885); Bier v. McGehee, 148 U.S. 137, 140 (1893).
1847 New Orleans Water–Works Co. v. Rivers, 115 U.S. 674 (1885); City of Walla Walla v. Walla Walla Water Co., 172 U.S. 1 (1898); City of Vicksburg v. Waterworks Co., 202 U.S. 453 (1906); Atlantic Coast Line v. City of Goldsboro, 232 U.S. 548 (1914); Cuyahoga Power Co. v. City of Akron, 240 U.S. 462 (1916).
1848 Ibid.; see also Grand Trunk Ry. v. Indiana R.R. Comm., 221 U.S. 400 (1911); Appleby v. Delaney, 271 U.S. 403 (1926).
1849 Central Land Company v. Laidley, 159 U.S. 103 (1895). See also N.O. Water–Works Co. v. La. Sugar Co., 125 U.S. 18 (1888); Hanford v. Davies, 163 U.S. 273 (1896); Ross v. Oregon, 227 U.S. 150 (1913); Detroit United Ry. v. Michigan, 242 U.S. 238 (1916); Long Sault Development Co. v. Call, 242, U.S. 272, (1916); McCoy v. Union Elevated R. Co., 247 U.S. 354 (1918); Columbia G. & E. Ry. v. South Carolina, 261 U.S. 236 (1923); Tidal Oil Co. v. Flannagan, 263 U.S. 444 (1924).

Supplement Footnotes

66 Carmell v. Texas, 120 S. Ct. 1620 (2000).
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