Ex post facto laws refer to laws that apply to acts committed before the enactment of such laws and are, therefore, disadvantageous to the affected persons. The United States constitution in article I, section 10 prohibits the state from enacting such retroactive laws. This prohibition protects individuals from unjust legislative acts. However, the ban on ex post facto laws applies only with regard to criminal and not civil laws (Zollar, 2002). I believe that the US constitution is reasonable and consistent by containing provisions that limit the enactment of ex post facto laws since this help in safeguarding the rights of individuals under existing laws.
If the constitution did not contain the ex post facto clause, individuals would be unfairly subjected to laws that act retrogressively and deny them justice. For instance, an adult should not be prosecuted for crimes he committed when he was a minor if such crimes could not be instituted against him at that time due to limitation on juvenile court jurisdiction.
I concur with the authors of the ex post facto clause that laws should not be applied retroactively.
However, where the rule cannot be reasonably applied, various exceptions should be incorporated to make the rule workable. Like every other rule, I believe that it is important for the ex post facto clause to have various exceptions that would ensure its enforceability. While I agree that laws should not be enacted retrogressively, I feel that the biggest challenge facing the ex post facto clause is the obscure differentiation of criminal laws from civil laws.
The clause that prohibits ex post facto laws bans several acts. First, it prohibits the creation of criminal laws and making them retroactive. Such retroactive laws have the effect of criminalizing acts committed before their enactments. The clause also prohibits laws that are made in order to retroactively aggravate a crime, for instance, by retroactively changing a misdemeanor to a felony.
Retroactively increasing the punishment for a crime is also prohibited under US laws. Furthermore, the Ex post facto clause also bans the creation of laws that alter the rules of evidence and instead allow conviction based on different or lesser evidence than what the law proscribed at the time of the crime’s commission (Gardner & Anderson, 2011). There are several exceptions to the limitation of retroactive laws in the ex post facto clause. The rule is limited to penal law and is not applicable to cases where the new laws favor the accused.
Moreover, the rule is not applicable to customary laws and precedent laws that are retrospective with regard to previous cases. Another exception to the ex post facto rule is a retroactive law that provides for retribution for certain acts that were illegal but not criminal when they were committed. An example of such a law is the London Agreement, which is retroactive to the extent of acts that constituted violations of international laws when they were committed (Bassiouni, 2011) One of the most important current aspects of ex post facto laws is taxation.
Prohibition of retroactive laws is limited to criminal acts. Therefore, there is no ex post facto law prohibition in taxation since it is a civil act. In the case of Fernandez vs. Fernandez, it was ruled that prohibition on ex post facto laws was limited to criminal laws and that tax laws were civic. In September 2012, the U.S Commerce Department imposed an ex post facto tax of $ 100 million as an anti-dumping measure (Foldvary, 2012). I feel that there is need to address the lack of prohibition of ex post facto laws in taxation. It would be unjust if entrepreneurs would lose property through confiscation by the government in an effort to recover retroactive taxes.
References
Bassiouni, M. C. (2011). Crimes against humanity: Historical and contemporary application. Cambridge: Cambridge University Press. Foldvary, F. E. (2012). The Progress Report: Ex post Facto Taxation. Retrieved October 27, 2012 from: http://www.progress.org/2012/fold784.htm Gardner, T. J. and Anderson, T. M. (2011). Criminal Law. Belomont, CA: Cengage Learning. Zollar, J. (2002). Prohibition against Ex Post Facto laws. House Research. Retrieved October 7, 2012 from: http://www.house.leg.state.mn.us/hrd/pubs/ss/clssexpost.pdf
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