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March 1, 2018

"Wrong Turn on the Ex Post Facto Clause"

The title of this post is the title of this notable new paper authored by Paul Reingold and Kimberly Thomas now available via SSRN. Here is the abstract:

The Ex Post Facto Clause bars any increase in punishment after the commission of a crime.  But deciding what constitutes an increase in punishment can be tricky.  At the front end of a criminal case, where new or amended criminal laws might lengthen prisoners’ sentences if applied retroactively, courts have routinely struck down such changes under the Ex Post Facto Clause.  At the back end, however, where new or amended parole laws or policies might lengthen prisoners’ sentences in exactly the same way if applied retroactively, courts have used a different standard and upheld the changes under the Ex Post Facto Clause.  Because the harm is identical and lies at the core of what the Ex Post Facto Clause is supposed to protect against, we think the asymmetry is mistaken.

Parole is an integral part of punishment: it determines how much time people will serve on their sentences.  Until the 21st century, black-letter law forbade even modest parole changes that were adverse to prisoners.  If a change in the parole regime might lead to longer sentences, then courts insisted that the change be applied prospectively only.  Over the last two decades, relying on language in two US Supreme Court parole cases decided in 1995 and 2000, the lower courts have shifted parole–ex post facto doctrine by 180 degrees.  Prisoners can no longer prevail even when the change in the state parole regime is almost certain to lead to significantly longer sentences.

In the context of parole, the courts have repudiated past doctrine and strayed far from the purposes of the Ex Post Facto Clause.  In this article, we review the history, show how the current case law is misguided and illogical, and put forward a new framework that would restore the Ex Post Facto Clause to its rightful place.

March 1, 2018 at 11:53 PM | Permalink


If the statute at the time of the crime calls for ten year sentence, the guilty party is sentenced to ten years, and then ends up serving ten years--i don't see how that is a violation of his human rights.
Getting a parole hearing doesn't guarantee not having to serve the sentence you were given. In fact sentences would have no meaning if people didn't have to serve them (minus any pardon).
If anything, the victim has a right to have the guilty party serve the sentence in the statute or given at the end of the trial.
If voters or congressman think the sentence is too long (as is the case with drug and gun laws), they can change the law or---if the sentence was judge created---appeal the sentence as a violation of the eighth amendment.
If the sentence deters the crime, but the sentence doesn't have to be served, there's no deterrent, and you end up with the Ferguson and Baltimore riots.

Posted by: doing the crime and doing the time | Mar 3, 2018 2:03:27 AM

This is normally true.....unless you committed any sexual crime. Then the lawmakers create any ex post fact law they want and it gets passed. My guess is the Ex Post Facto clause does not apply to a person deemed a sex offender who already completed his/her sentence.

Where are the judges when it comes to defending the U.S. Constitution?

Posted by: Think | Mar 3, 2018 10:02:32 AM


The judges got around the Ex Post Facto clause by "judging" that any old kind of draconian new restriction that any old legislature in any old wanted to pass regulating sex offenders was not a punishment, but instead a matter of public safety.

With this logic you can see the slope and it is slippery. Soon you can look forward to anyone convicted of anything to have to live under a flurry of new laws passed to keep us safe.

Posted by: restless94110 | Mar 3, 2018 12:10:24 PM


That is because the royal baboons in black pajamas are cowards, especially that the new chief baboon was the one who lied to the Supreme Court in Smith vs. Doe and the remaining, led by Kennedy swallowed the lies hook, line and sinker. There is NO other explanation if words have any real meaning.

The mental gymnastics (I have another term here but I will not use it) that came to this conclusion that this was a civil matter and not criminal was truly outstanding. The cowards will never correct their mistake(s) and for that reason that (and this) court should be held in the contempt that they richly deserve.

Be careful. We do not have a Bill of Rights but are being sold a Bill of Goods, even though Ex Post Facto (and bills of attainder) are in the original Constitution, they are never considered to exercise any reasonable restraints on our government by any court.

Posted by: albeed | Mar 4, 2018 3:00:31 PM

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