ArtI.S9.C3.3.5 Increasing Punishment and Ex Post Facto Laws

Article I, Section 9, Clause 3:

No Bill of Attainder or ex post facto Law shall be passed.

The Supreme Court has denied ex post facto challenges to changes to trial procedures and sentences that do not disadvantage criminal defendants.1 For instance, in Dobbert v. Florida, the Court rejected an ex post facto challenge to a state law that changed the role of the jury in capital cases.2 The sentencing regime in place at the time the challenger committed his offenses provided for a death sentence upon conviction of a capital felony, unless a majority of the jury chose to depart from the presumption and instead recommended a life sentence. The revised procedure allowed the jury to render a non-binding advisory opinion on whether a death sentence was warranted; the judge then considered aggravating and mitigating circumstances and determined whether to impose a death sentence. A death sentence had to be supported by written findings by the judge and was subject to expedited appellate review.3 The Supreme Court held that the new regime was not ex post facto, in part because it was “on the whole ameliorative,” providing increased procedural protections for defendants.4

In Malloy v. South Carolina, the Court rejected an ex post facto challenge to a statute that changed the method of execution from hanging to electrocution for persons previously sentenced to death.5 The change was based on a determination that electrocution was more humane.6 The Court explained that the law did not change the applicable death sentence, “but only the mode of producing this, together with certain nonessential details in respect of surroundings. The punishment was not increased, and some of the odious features incident to the old method were abated.” 7 Similarly, in Holden v. Minnesota, the Court held that a statute changing the time of executions and limiting who could attend executions was not ex post facto.8

By contrast, the Supreme Court has held that statues that retroactively increase the severity of a criminal sentence are ex post facto laws. Another provision of the statute at issue in Holden mandated solitary confinement pending execution.9 The Court held that such a provision “may be deemed ex post facto, if applied to offenses committed before its passage.” 10 In In re Medley, the Court held that a statute that required a previously convicted death row inmate to be held in solitary confinement until execution and not informed of his execution date was ex post facto.11

In considering ex post facto challenges to the length of prison sentences, the Court has held that a law may be impermissible if it increases the sentencing range for a past offense, even if it is not certain that the defendant received a higher sentence than he would have under the previous regime. In Lindsey v. Washington, criminal defendants challenged as ex post facto a statute that imposed a mandatory minimum sentence equal to what had been the maximum sentence at the time they committed their offense.12 The Supreme Court held that the law was ex post facto as applied to pre-enactment offenses. The Court observed that “[t]he effect of the new statute is to make mandatory what was before only the maximum sentence.” 13 While acknowledging that the challengers might have received the new mandatory minimum sentence under the prior regime, the Court emphasized that “the ex post facto clause looks to the standard of punishment prescribed by a statute, rather than to the sentence actually imposed.” 14 Thus, in Miller v. Florida, the Court held that new state sentencing guidelines could not be applied retroactively to offenses that had been commited when a lower presumptive sentencing range was in place.15 Similarly, in Peugh v. United States, the Court held that it violated the federal Ex Post Facto Clause when a defendant was sentenced under a new version of the U.S. Sentencing Guidelines promulgated after he committed his offense that provided a higher sentencing range—even though the Guidelines were only advisory and courts were free to impose sentences outside the range.16

The Supreme Court has held that statutes that canceled or reduced release credits earned by prisoners were ex post facto laws. In Weaver v. Graham, the Court held that a statute reducing credits for good behavior that counted towards early release was ex post facto as applied to a prisoner whose offense occurred before the statue was enacted.17 In another case, Lynce v. Mathis, the Court heard an ex post facto challenge from a prisoner whose early release credits were canceled after he had been released, causing him to be rearrested and returned to prison.18 The Court held that the retroactive cancellation of credits increased punishment because “it made ineligible for early release a class of prisoners who were previously eligible—including some, like petitioner, who had actually been released.” 19

On the other hand, statutes decreasing the frequency of parole hearings do not necessarily violate the Ex Post Facto Clauses. In California Department of Corrections v. Morales, the Supreme Court held that a state law that changed the frequency of parole hearings for certain offenders from annual to every three years did not violate the state Ex Post Facto Clause as applied to prisoners who committed their offenses before its enactment.20 In Garner v. Jones, the Court considered a state parole board rule that increased the time between parole hearings from three years to as much as eight years.21 The Court emphasized that the parole board had broad discretion over whether a prisoner was released, and opined that procedural changes within a system that had always allowed such discretion might not undermine the interest in “actual or constructive notice to the criminal before commission of the offense of the penalty for the transgression.” 22 The Court explained that the key question in its ex post facto analysis was whether the amended rule “creates a significant risk of prolonging [the challenger’s] incarceration.” 23 On the record before it, the Court could not conclude the change lengthened his actual time of imprisonment.24

See, e.g., Dobbert v. Florida, 432 U.S. 282, 294 (1977) ( “It is axiomatic that for a law to be ex post facto it must be more onerous than the prior law.” ). back
Id. at 284. back
Id. at 290. back
Id. at 292. The Court explained, “The Florida Legislature enacted the new procedure specifically to provide the constitutional procedural protections required by [Furman v. Georgia, 408 U.S. 238 (1972)], thus providing capital defendants with more, rather than less, judicial protection.” Id. at 294–95. Other aspects of the Dobbert decision are discussed later in this section and in the section Procedural Changes. back
237 U.S. 180, 183 (1915). back
Id. at 185. back
Id. See also Rooney v. North Dakota, 196 U.S. 319, 326–27 (1905) (statute increasing the term of imprisonment prior to execution “did not alter the situation to the material disadvantage of the criminal, and, therefore, was not ex post facto when applied to his case in the particulars mentioned” ); Dorsey v. United States, 567 U.S. 260, 275 (2012) ( “Although the Constitution’s Ex Post Facto Clause . . . prohibits applying a new Act’s higher penalties to pre-Act conduct, it does not prohibit applying lower penalties.” ). back
137 U.S. 483, 491 (1890). back
Id. at 491. back
Id. The Court ultimately denied the ex post facto claim because it concluded there was no evidence that the prisoner challenging the law was actually being held in solitary confinement. Id. at 491–92. back
134 U.S. 160, 167–73 (1890). back
301 U.S. 397, 398 (1937). back
Id. at 400. back
Id. at 401. back
482 U.S. 423, 435–36 (1987). The Miller Court explained that “one is not barred from challenging a change in the penal code on ex post facto grounds simply because the sentence he received under the new law was not more onerous than that which he might have received under the old.” Id. at 432 (quoting Dobbert v. Florida, 432 U.S. 282, 300 (1977)). back
569 U.S. 530, 533 (2013). back
450 U.S. 24, 28–33 (1981). back
519 U.S. 433, 446–47 (1997). back
Id. at 447. back
514 U.S. 499, 501–02 (1995). back
529 U.S. 244, 247 (2000). back
Id. at 253. back
Id. at 251. back
Id. at 256. The Court remanded the case to the lower federal courts for further consideration of that question. Id. at 257. back