Talk:Ex post facto law

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U.S. Constitution[edit]

I put the reference to the US Constitution back, but with slightly different wording. It seemed to me to be a useful piece of information - and there's nothing wrong with that. I write as a non American, and I'm assuming that the information provided is correct. -- David Martland 08:42, 17 Aug 2003 (UTC)

Thank you, David. I didn't see the sin in referencing the U.S. Constitution on a page that was linked from an article on the subject. StinKerr 09:59, 17 Aug 2003 (UTC)

The explanation of United States v. Carlton was incorrect. That opinion does not decide anything about the applicability of the ex post facto clause; that issue was decided in 1798. Carlton considers a substantive due process challenge to a retroactive tax law and applies rational basis review. —Preceding unsigned comment added by (talk) 23:06, 17 April 2010 (UTC)

Other types of retroactive law[edit]

What are the retroactive implications of something like Prohibition of Alcohol in the United States? When a law is removed does that mean that all criminal penalties are also immdediately removed, including penalties that are in the process of being carried out, such as a jail sentence?

This doesn't really fit into the category of ex post facto law, it's more a question of criminal procedure. Generally when a law is removed (as opposed to modified) all criminal convictions under the law will be overturned and no new prosecutions will occur (even if the act was illegal at the time it was committed). There are exceptions to this, though. When a law is modified, generally people will be prosecuted under the law as it stood at the time the offence was (allegedly) committed, otherwise this would violate ex post facto principles. Psychobabble

What about laws banning ex-felons from voting? I was just wondering why they don't qualify as a retroactive punishment, since they come into effect after one has already paid his or her debt to society. I've said this twice and been deleted. Could someone maybe clarify?Lebob 06:20, 15 Dec 2004 (UTC)

If we're talking about Florida, it isn't ex post facto for 2 reasons. One, the laws have been on the books for over 50 years, it's just that no one was really enforcing them before Jeb. Two, even if Jeb had brought them in, they still aren't make an offence which is criminally punishing a past action. They are simply preventing you from in the future voting if you have a past conviction. It's exactly like if the state decides previously convicted pedofiles should be prevented from teaching small children. Taking away an aspect of someone's civil liberties isn't criminal punishment, and that's what double jeopardy is getting act. Psychobabble 09:16, 16 Dec 2004 (UTC)
As to Florida specifically, you make a good point. If the laws have been applying for fifty years, they are not retroactive. However, the very basis of criminal punishment is the removal of civil liberties. If you haven't been convicted of a crime, you can keep life, liberty and property. If you're convicted, you can lose them in proportion to the crime you have committed. I don't see how the loss of civil liberty can be something separate from criminal punishment if that's all criminal punishment is.Lebob 04:47, 18 Dec 2004 (UTC)
Criminal punishment is procedural not substantive. It involves (roughly) formal charges, trial by jury and judicial sentencing. The effect on one's civil liberties doesn't matter, it is the process that seperates criminal punishment from legislative sanction. Psychobabble 05:36, 18 Dec 2004 (UTC)
OK, I think I see why this doesn't apply...Lebob 06:10, 20 Dec 2004 (UTC)

If the law forbidding felons' voting was passed AFTER the crime, then that's ex post facto law, but if it's already in effect at the time of the crime, I don't see why it would be ex post facto law then. Michael Hardy 01:10, 23 Dec 2004 (UTC)

Ex post facto and international crimes[edit]

Perhaps I should add a section on this on the page, but it's not strictly speaking relevant. When things like Nurenburg happen when people are punished for what was apparently legal at the time, they are tried for crimes against humanity which are classed as jus cogens - customary international law. These are crimes (originaly piracy, now genocide etc.) which are deemed to be universal regardless of domestic statutes and thus the infringing actions were illegal at the time the crime was commited. Thus the ex post facto principle is not, strictly speaking, violated.Psychobabble 10:42, 1 May 2005 (UTC)

"The Nuremberg Trials and other post-World War II laws that prosecuted former members of the Nazi party are often accused of being ex post facto laws." There is another problem with this sentence: it is ungrammatical - since it shortens the impossible sentence "The Nuremberg Trials are often accused of being ex post facto laws." That should be changed to something like "The rules under which the Nuremberg Trials were held and other ...". However, perhaps rules is not the correct word, and another word should be used, so I leave that to law specialists. User_talk:Pan_Gerwazy--pgp 07:05, 27 June 2006 (UTC)

A possible justification for the Nuremberg prosecutions of Nazi war criminals for blatant homicide and theft is that although acts of murder, medical experimentation upon non-consenting subjects, mistreatment of prisoners of war, kidnapping, theft, and torture may have received the permission or have been ordered by top leadership of the Third Reich, the crimes themselves were never legalized in general. No legislation ever formally abolished laws against murder, kidnapping, torture, or theft; no specific legislation authorized so horrific a crime as the Holocaust. German citizens were prosecuted, convicted, and sentenced -- often to death -- for murder during the Third Reich. Nazi Germany also routinely executed captured partisans and 'traitors', demonstrating implied consent with capital punishment for severe violations of the law. Germany had a heritage of rule of law, and as much as was consistent with Nazi objectives (the compromises being obvious), the Third Reich usually found some semblance of judicial procedure appropriate in judging common crime.

All of the atrocities of the Third Reich were thus violations of German law even if a despot ordered them. That uppermost Nazi leadership attempted to keep those crimes hidden from the German public attests to some consciousness of the unconscionability of those crimes. Likewise, German officials were condemning the Allies for murderous crimes during the war while committing such crimes; by condemning Soviet atrocities against Germans or even the Anglo-American incendiary attacks on German cities, the same German leadership culpable in Nazi atrocities established the immorality of mass murder.

The question is not whether the acts tried after the war were criminal acts; the question is whether political leadership can excuse such acts, let alone command them with any reasonable expectation of compliance. Such crimes, to be sure, were violations of the pre-Nazi German legal heritage.

It is possible to recognize that such offenses as aggressive warfare in violation of treaties is without precedent as objects of prosecution. Such had been the norm of kings of medieval and primitive times; victors judge the losers and not themselves. But even if prosecutions for "crimes against peace" (including, as with Joachim von Ribbentrop for offering treaties of peace that Hitler intended to violate, or like Wilhelm Keitel, plotting those violations) or with "general conspiracy" to establish a totalitarian and murderous order (example: Wilhelm Frick) were almost without precedent, the horrors that followed any Nazi "crime against peace" themselves were monstrous crimes, and those who committed "crimes against peace" almost as a rule, including Ribbentrop, Keitel, and Frick, had culpability in the subsequent atrocities. --Paul from Michigan (talk) 13:09, 24 November 2007 (UTC)

Ex post facto and Guantanamo Bay[edit]

According to the Melbourne Herald Sun one of the charges filed against Australian citizen and Gitmo detainee David Hicks is in fact an ex post facto charge.,21985,21170498-5005961,00.html

You could have used something a bit more serious as a reference, even The Australian (newspaper) is saying that the law was Ex Post Facto. Hicks and the others there could try appealing to the War Crimes Tribunal, claiming that:
  • There is no such category as Illegal Combatant under international law.
  • He was not aiding the enemy, since he was not a US citizen, and he committed no crime under Australian law. If he could be charged with aiding the enemy, then the entire defence industry in the USA could equally have been rounded up by the Taliban and charged with aiding the enemy.
  • He was never in US terrritiory when conducting any activity which allows him to be charged under the military commisions act. Even if he visited the USA with the intent to plan an attack, he would have beeen breaking civilian criminal law, not military law.
Now that he has pleaded guilty, this is possibly his only chance, unless Labor win in the next election and pass an enabling act to release him (which would be unlikely). —The preceding unsigned comment was added by (talk) 03:15, 29 March 2007 (UTC).
Illegal combatants are the residue of the legal combatants and civilians of the Geneva Conventions. They are therefore war criminals. So unless you want to argue that Geneva should be ignored, it's hard to ignore illegal combatants. The other accusations essentially fail unless one ignores international law, so it was probably good not to make those arguments. 11:01, 26 May 2007 (UTC)

Ex post facto versus Ex post facto[edit] 22:32, 29 July 2007 (UTC) In the first paragraph, you say "An ex post facto law is..." You then go on to say, "Conversely, an ex post facto law is..." What's the difference? Should the second be subtly different?

The difference is in the outcome. I've changed the structure of the last sentence of the first paragraph to better emphasize the contrast in outcomes from the "amnesty" form of ex post facto law. --Hmvalois 07:24, 28 August 2007 (UTC)

Code of Conduct[edit]

I've opened this discussion in the Talk:Nulla poena sine lege page. Briefly, I'm asking for your thoughts on how ex post facto does or does not apply to a very broadly stated code of conduct, or honor code. For example, the West Point Academy honor code is "A cadet will not lie, cheat, or steal, or tolerate those who do."

Please consider responding on the Talk:Nulla poena sine lege page instead of this page so that this discussion can be unified ...

--Hmvalois 07:15, 28 August 2007 (UTC)

Retrospective or retroactive?[edit]

I would think retroactive would be the proper word, but the article uses retrospective. I'm not changing it because I'm not sure, and it seems to have been this way for quite a while. --BennyD (talk) 23:17, 17 December 2007 (UTC)

"Retrospective" is the term used in an important case on the subject, Calder v. Bull. --Joseph.nobles (talk) 20:51, 14 July 2008 (UTC)

Copyright law[edit]


Can it be added that most copyright laws are retroactive, either de jure or de facto, because the previous law was repealed? Yann (talk) 12:27, 2 January 2008 (UTC)

Hello. What you've brought up is more of a mechanism of amendment or change, rather than an ex post facto example. Technically yes, the old law is repealed with the creation of the new law, but the rights provided by the new law are not retroactive. Even when the USSC court ruled that copyright periods may be extended prospectively, it did not bring anything out of the public domain. Or at least I think not. It's been a year, but I hope this helps. IMHO (talk) 20:44, 9 February 2009 (UTC)

Can someone explain to me how retroactive immunity is legal in the US?[edit]

I keep hearing how GW Bush has pushed for laws granting himself, his associates, and the telecommunications companies "retroactive immunity" for possible violations of US and international law. Is this legit in the face of the Constitution's prohibition of ex post facto laws? If such a law is passed, shouldn't it legally only apply to the actions granted immunity from the passage of the law forward? This is something that has confused me for a long time... JJ4sad6 (talk) 13:15, 20 June 2008 (UTC)

This concept of retroactive immunity needs to be linked to, as well - just to make this more explicit, if the legal concept is valid. (The current retroactive immunity wikipedia links to 'amnesty law', though it is unsatisfying because it applies to crimes against humanity.) The specific issues (warrantless wiretapping) could have been dealt without retroactive immunity, by simply changing FISA going forward [Congress] then pardoning the Telco officials [Executive]. Worried about that pardon because of a change in administrations? Then don't break the law.

Wikip rhyre (talk) 00:58, 27 August 2008 (UTC)

Agreed, not only that, but the wikipedia article claims that this isn't a violation of ex poste facto, without references to back it up. (talk) 20:58, 25 June 2008 (UTC)
The reference was provided. The reference was Calder v. Bull, a Supreme Court case that clearly shows the decriminalization of an act in the past is NOT ex post facto, but is only retrospective. --Joseph.nobles (talk) 20:51, 14 July 2008 (UTC)
Ok, so what's the difference then? The opposite direction is usually covered by grandfather clauses, where even if something is criminalized now that wasn't illegal before, those who would technically be committing an illegal act would be exempt as the law cannot apply retroactively to persons who already do the illegal act. For example, if a city decided to pass an ordinance restricting a house to one story, two story houses currently in the city couldn't be cited for violating the ordinance. My point here being that whether we are criminalizing or decriminalizing something, it seem ludicrous and against the idea of the ex-post facto clause to impose the new situation on those who would otherwise be exempt from the new situation. I will have to read that case you cite to see the justices' reasoning on it. However, I have a strong feeling it was not a very sound decision on his/her/their part. JJ4sad6 (talk) 06:30, 19 July 2008 (UTC)
I deleted the sentence. It's OR if it's just stated without a cite to analysis from a constitutional attorney directly and explicitly linking Calder v. Bull with telecom immunity. The only thing the Calder v. Bull cite is good for for our purposes is the Calder v. Bull case. If someone thinks it's obvious that the ruling applies to the telecom case then they should be able to find a cite explicitly linking the two. WP is not in the business of interpreting SCOTUS rulings. etc etc. Ripe (talk) 02:09, 11 August 2008 (UTC)

International treatment of ex post facto[edit]

I've divded off the ECHR subsection from it's original section, which was all listing treatment by specific states except for the ECHR, into a new section on international org.s and treaties. To this I've added the UDHR and ICCPR. "Someday" I may add in number of parties to each of the treaties, now, date they entered into force, how many ratified at that time, and whether any declarations or reservations were attached to the relevant provisions. If anyone wants to beat me to that, or add in other treaties, please feel free, as the quotes around someday means it's not a huge priority for me. IMHO (talk) 20:24, 9 February 2009 (UTC)


Again, something I'm not ready to delve into, but it would improve the article significantly to added the history of how the prohibition came about, preferably within traditions, e.g. Common Law ang Civil Law, as a whole, rather than every specific jurisidiction. For Common Law this may likely focus on England, with notes of it's former colonies adopting the prohibition upon independance. For Civil Law...well, I'm not sure. IF the Roman codes ever included it great. If not, it might get a little more loose than Common Law discussion. IMHO (talk) 20:29, 9 February 2009 (UTC)

U.S. and Ex Post Facto[edit]

The section on Ex Post Facto in the U.S. discusses the Adam Walsh Act (AWA) as having an ex post facto "effect". I have a few issue with this. First of all, this assertion is not cited (there are multiple sources available via court cases, journals and other commentary) and as such, has little credibility. Secondly, while I agree that the AWA should violate ex posto facto, in acutality, it does not. Accordingly, the quote that follows it in the article from the supreme court case stating that the AWA is not punishment is enough to show that it is not an ex post facto punishment and therefore should not be included (despite our opinions to the contrary). If it is not punishment, then it is not ex post facto. An "ex post facto effect" is irrelevant when what we're talking about is a legal term of art. It would be like saying, in effect, the death penalty is cruel and unusual punishment in all cases despite multiple decisions finding that it is not. I recommend this section be deleted or revised to state more clearly that some argue that it should be ex post facto, but thus far, it has been determined that it is not. I will leave the fixxing to a regular editor so as not to start an edit war. (talk) 07:09, 3 May 2009 (UTC)Jack66.61.167.100 (talk) 07:09, 3 May 2009 (UTC)


This talk page hasn't been touched in years, so dunno if I'll get a response or not but... The US ex post facto section contains a large paragraph cited to Bowen discussing administrative law as an area of exception to the US Constitution's prohibition. But the US clause only applies in criminal cases, and the statute at issue in Bowen (which was struck down, by the way, but the majority said retroactive regulation could take place where expressly delegated by Congress) only enacted civil punishments. So while administrative law may be an exception to the broad concept of ex post facto, it's right in line with the US Constitutional version of it. Rewriting the paragraph to this effect to be bold. Staxringold talkcontribs 13:52, 23 February 2012 (UTC)

Constitutionality of retroactive taxes[edit]

The article in the section on United States, claims: Retroactive taxes are not ex post facto laws. It cites Calder v. Bull - 3 U.S. 386.

This is misunderstanding and misrepresentation of Calder v. Bull, making it original research under wiki's NOR guidelines. I am tagging it for now. This content should be better supported or removed. The full opinion of this ruling can be read here:

At 390-391,in Calder v. Bull, Justice Chase explains,

"Every ex post facto law must necessarily be retrospective, but every retrospective law is not an ex post facto law. The former only are prohibited. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive, and it is a good general rule that a law should have no retrospect; but there are cases in which laws may justly, and for the benefit of the community and also of individuals, relate to a time antecedent to their commencement, as statutes of oblivion or of pardon."

Justice Chase does not, at any point, consider or declare retrospective tax laws are not ex post facto laws. Taxes are not pardon or statutes of oblivion, rather they fit Justice Chase 'impair rights' explanation. Using this opinion to create a position on taxes, one not made by the source, is original research. Kiitos, (talk) 10:11, 6 March 2013 (UTC)

I add that United States v. Carlton 1994 opinion (see, too, rules, "Retroactively disallowing the tax benefit that the earlier law offered, without compensating those who incurred expenses in accepting that offer, seems to me harsh and oppressive by any normal measure." I am tagging the second part as well. Kiitos, (talk) 10:21, 6 March 2013 (UTC)

The reference to United States v. Carlton is a reference to a concurring opinion, not a holding of the Supreme Court. Therefore, it was not a ruling by the Court. Famspear (talk) 17:44, 6 March 2013 (UTC)

By the way, I think the issue of whether the federal tax law, as retroactively applied, was an "ex post facto" law, was not an issue decided by the Supreme Court in the Carlton case.

"Tax legislation is not a promise, and a taxpayer has no vested right in the Internal Revenue Code." That language is from the U.S. Supreme Court decision in United States v. Carlton, 512 U.S. 26 (1994). In the Carlton case, the Supreme Court ruled that a statute making a retroactive amendment to Internal Revenue Code section 2057 (limiting the availability of a deduction for the proceeds of sales of stock to employee stock-ownership plans) does not violate the Due Process Clause of the Fifth Amendment to the U.S. Constitution. This is not an "ex post facto" clause-related ruling.

In other words, whether a retroactively effective statute violates the ex post facto prohibition in the Constitution and whether a whether a retroactively effective statute violates some other provision of the Constitution are separate, different legal issues.

It may be that neither Calder nor Carlton really relate to the subject of ex post facto laws. I'll try to get back to this issue later. Famspear (talk) 17:57, 6 March 2013 (UTC)

OK, I have removed the material from the article. Although the statements in the material are technically correct, the cases cited do not actually deal with the issue of whether retroactive application of the imposition of a U.S. federal tax would be an example of ex post facto laws. It is almost certain that such a law would NOT be an ex post facto law, but that's beside the point: Wikipedia needs to be accurate not only as to what is said, but as to whether the source material supports what is said. Famspear (talk) 22:56, 25 August 2013 (UTC)

Proposal to merge retroactivity into ex post facto law[edit]

The current article retroactivity discusses retroactivity in law. As it has a lot of overlap with this article (ex post facto law), I suggest to merge it into this article. --Chris Howard (talk) 20:03, 15 September 2013 (UTC)

Is the repeal of a law actually retroactive as the lede claims?[edit]

The lede currently says "when a law repeals a previous law, the repealed legislation is no longer applicable to situations to which it previously was, even if such situations arose before the law was repealed. The principle of prohibiting the continued application of such laws is called Nullum crimen, nulla poena sine praevia lege poenali". But according to that article, nullum crimen... means that newly created penalties don't apply retroactively, not that abolishment of penalties is retroactive. Can someone delete the example, or cite the correct legal principle, or fix the nullum crimen article, as appropriate? -- BenRG (talk) 23:20, 19 February 2015 (UTC)

External links modified[edit]

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