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Ex Post Facto By Karen MacNutt, Ex Post Facto "Ex post facto" is a Latin phrase which, literally translated, means "from after the fact." An ex post facto law makes something illegal retroactively. Conduct which was legal when undertaken, becomes illegal after the fact. It is a nasty trick. You change the rules of the game after the game has been played to get a result that was not foreseeable. The prohibition against ex post facto laws is not in the Bill of Rights. Such laws were considered so dangerous to the concept of ordered liberty that the prohibition is contained in the main body of the Constitution. In explaining the Constitution, Alexander Hamilton wrote in
1788, that the writ of habeus corpus [a court order to produce
a person who is being detained by the government before the court
to prove the detention is lawful] and the prohibition of ex post
facto laws are Criminal law, in particular, must be clear so that people have the ability to conform their behavior to what is required. Laws that do not give the public sufficient notice for people to conform are unjust and only serve as a trap for the uninformed. They have no valid social purpose, and no just place, in a free society. James Madison said such laws were contrary to every principal of sound legislation. Good government provides its citizens with consistency and
predictability. People need to feel secure that when they make
decisions based upon what is then known about the legal consequence
of those decisions, the law will not be applied differently to
their actions after they have altered their position. Early encroachments against the right were in the nature of recidivism laws that enhanced penalties for second and third offenses. The argument against such laws was that, "When I committed the first offense, there was no risk of the enhanced penalty. Therefore I should not be subjected to the enhancement when I commit the second offense." The Court dismissed those arguments saying, "There is no ex post facto in such circumstance because you have committed a second offense after the law was changed. You are being punished for the second offence. You had ample notice to conform your behavior." A more serious encroachment came when legislatures began passing laws that changed future rights based upon a past status. This was generally done with controversial issues such as gun ownership. Such changes ran counter to general statutory interpretation. The general presumption applied by Courts when interpreting statutes is that, unless there is an express legislative intent, new disabilities or legal consequences are not attached to events completed before the enactment of the statute. "If a statute would impair rights a party possessed when
he acted, increase a party's liability for past conduct or attach
a new disability in respect to transactions already past, it
should be presumed not to apply to events before its enactment." One exception to this rule is where a statute is remedial, such as where rules of court are altered, and substantial rights of individuals are not negatively impacted. The presumption thus stated, sounds remarkably like the ex post facto law described by Hamilton, the enactment of which is prohibited by the Constitution. The express intent of Congress to violate the Constitution by having legislation retroactively applied, should not be the determining factor in whether or not the statute may legally be retroactively applied. Retroactive disqualifications are a growing problem with firearms legislation. The types of conduct which result in a person being disqualified from owning firearms has been steadily growing. At one time only felony convictions resulted in a disqualification. Historically felonies were the most serious category of crime. They often carried civil disabilities. In some states people with felony convictions may not vote, serve on juries, hold certain jobs, or certain licenses, including motor vehicle licenses. This is a punishment for their anti-social behavior. People with felony convictions may not serve in the military without special waivers. On the other hand, misdemeanor offenses were generally considered minor offenses the conviction of which did not carry any permanent or extended civil disqualification. In most states, if the offense carried a maximum potential sentence of one year or less in jail, it was considered a misdemeanor. If the maximum sentence was more that one year, it was a felony. Courts have mostly agreed that if a crime was a misdemeanor when it was committed, and that the potential sentence for the crime is later increased so that the crime is now considered a felony, that whether or not a person is treated as a felon for violating that particular law will depend upon when the violation of law took place. That is, if you committed the crime before the law was changed, your classification as person convicted of a misdemeanor will not change and you will not be subjected to the added disqualifications that flow from a felony conviction. The upgrades in punishments are not retroactively applied. In the area of firearms legislation, there has been a deliberate attempt to have laws applied retroactively to disqualify growing numbers of people from being able to own firearms. Suddenly 40-year-old school yard scuffles are disqualifying offenses. Misdemeanor motor vehicle transgressions are being classed as "crimes of violence" because there was a risk of personal injury. Violations of hunting regulations are being classed as "gun" crimes even though they have maximum sentences of not more than 60 days in jail. Suddenly the violation of laws that when they were committed carried no civil disqualifications, have become lifetime disqualifications for gun ownership. Many of the disqualifying laws are retroactively applied. The excuse for so doing is that the disqualification is not a "punishment" of the disqualified individual but a matter of public safety. The analysis is convoluted. If projected to other areas, it would swallow all civil rights. One could make a valid statistical argument that all males of certain ethnicity between certain ages should be held in protective custody because they are the people most often involved in violent crime. Such an argument can even be made in areas where everyone is of the same race because some group will always qualify as the one "most often" involved in crime. If we accept the premises that the removal of a civil right is an appropriate "public safety" measure and not a punishment, then restricting someone's activities or incarcerating them without trial for "public safety" becomes an accepted action of government. This is the grossest violation of the right to liberty not only as set out in our Constitution, but also as contained in any concept of basic human rights. Before the reader dismisses such suggestion as fantasy, remember that this is exactly what our government is doing when it claims someone is a terrorist and holds them without status or trial. Preventive depravation of civil rights is an incredibly dangerous theory. The courts, by focusing on the excuse of the government for such laws, are failing in their more important duty which is to protect the rights of the individual. The court should be focusing on the impact to the individual of these laws. For the individual, these laws are punitive because the individual is being stripped of a right or privilege granted to other citizens. A person who committed a crime which, at the time of the commission, carried no civil disabilities, should not be subject to civil disabilities enacted at a later date. It is an increase in the punishment after the crime has been committed. The imposition of civil disabilities is a major factor in the punishment of felony crimes. Such disabilities impair the privileges of citizenship and should not be applied retroactively to actions that did not call for such disabilities when the conduct was committed. Our sense of justice would be outraged if two years after paying a speeding ticket we received a bill from the state which said, "Last month we retroactively increased the fines for speeding to $500. Send us more money." The real world of criminal courts is not the world as seen on TV. The vast majority of people charged with crimes do not go to trial. There is tremendous pressure by judges on both the prosecution and on the defense side to have people accused of crimes enter into a plea bargain arrangement. Prosecutors routinely overcharge people with offenses that are much greater than their conduct warranted. They routinely threaten to ask for punishments disproportionate to the offense. They do this so that they can intimidate defendants into pleading guilty to lesser crimes. There is little search for truth or justice. There is a quest for large numbers of cases processed. The very poor, who are appointed public defenders, and the very wealthy are able to try cases on principal. The middle class citizen, who has to pay for his or her own lawyer, however, is often pushed into plea bargains because he or she cannot afford to continue the fight. In that mix of issues considered when deciding whether or not to plead to a crime, the consequences of the plea are a major factor in the decision to be made. To change the consequences of a plea after the fact is grossly unjust. The courts should not be looking to see if there is some minimal rational relationship to impose disqualifications on an individual. Rather the courts should be looking at how the individual is impacted by the law. If the individual is going to be stripped of some benefit, then the legislation should be looked at as punitive and only be applied to acts which where completed after the law took effect. As of the writing of this article, the Supreme Court has not ruled on the meaning of the Second Amendment in the Heller case. If the Second Amendment is an individual right, then the Court should re-examine a number of federal laws relating to guns based on the higher standards applied to legislative restrictions on individual rights. As of the writing of this article, however, the Court has taken a second case on guns involving Randy Hayes and the so-called Lautenberg law. The Lautenberg law changed the disqualifications for owning guns. Previously, the only disqualifying convictions were felonies or related to drug use. Lautenberg made misdemeanor convictions disqualifying if they involved violations of certain restraining orders or were assaults on designated family members. Although hailed as a protection for women, fights between two siblings or even the parent who may have struck a child, were covered by the law. In previous cases, courts have held that Lautenberg be applied retroactively to offenses which occurred prior to the passage of the law. This resulted in situations where people who had admitted to simple assaults against a parent or sibling when they were very young, or people who had admitted to a shoving match with their spouse but then experience thirty years of marital bliss, were suddenly disqualified from owning a gun. In most cases, the new disqualification was not even dreamed of when the charges were brought by a family member or a acted on by some judge. Conduct that everyone involved in the event believed would result in no lasting disability, was now stripping people of the right to continue to owned property lawfully acquired and disqualifying them from holding a wide variety of jobs in security and the government. This clearly impacted the civil rights of a large number of people based upon conduct that was completed prior to the enactment of the law. Because the law also prevented people who had outstanding domestic abuse orders from possessing a gun, the only people impacted by the retroactive application of the disqualification for misdemeanor convictions, were people who posed no current threat. Initially Lautenberg was held invalid as not having a rational purpose. Later, the court relented and upheld the act. In the case now being considered by the Supreme Court, Mr. Hayes plead guilty to a simple assault in 1994, prior to the passage of Lautenberg. At that time he owned a rifle. His admission of guilt did not prevent him from continuing to lawfully own the rifle. Unknown to Mr. Hayes, the law changed in 1996 making a domestic assault a disqualifying offense. More than ten years after the original offense, Mr. Hayes was charged with being a disqualified person in possession of a gun. The charge was brought even though Mr. Hayes was unaware of the change in the law which made his possession of a gun illegal. Mr. Hayes's lawyers are arguing that the offense Mr. Hayes pled guilty to in 1994 was not, by statute in force at the time, a "domestic battery." At that time, no such crime existed. The 1996 federal law, among other things, made it illegal for someone convicted of a "domestic battery" from having a gun. Federal authorities categorized Mr. Hayes' 1994 crime as a "domestic battery" because the person Mr. Hayes assaulted was his now ex-wife. A major civil disqualification was applied retroactively to make Mr. Hayes a criminal. Mr. Hayes attorney has challenged this and the Supreme Court has agreed to consider the matter. The government will surely argue that Mr. Hayes is being charged with a current violation of law. That is, he was in possession of the gun after the law made it illegal to do so. Mr. Hayes will undoubtedly argue that the change of his status from a qualified person to a disqualified person subject to further criminal penalties based upon an event which took place prior to the passage of the statute, is a violation of basic Constitutional law. To paraphrase Alexander Hamilton: The subjecting of men to punishment for things, which, when they were done, were not a violation of law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite instruments of tyranny. We must all live with the law as it is written and enforced. At the same time, we must never lose sight of the way a just legal system should work. We should at all times work towards that just system. |
