Ex Post Facto

Smith v. Doe, 123 S.Ct. 1140 (2003)

The Alaska sex offender registration statute does not offend the Ex Post Facto Clause, even though the registration requirement is imposed on offenders whose offenses were committed prior to the enactment of the registration law. The registration law is civil in nature, not punitive, so the Clause does not apply.

California Department of Corrections v. Morales, 514 U.S. 499 (1995)

California changed the procedure for conducting parole hearings for certain individuals, allowing the Board to conduct hearings once every three years. When the defendant committed his crime, hearings were required to be held annually. The Supreme Court holds that this change in Parole Board practice did not violate the Ex Post Facto Clause. Note that this effectively overrules certain cases annotated below: Akins v. Snow and Roller v. Cavanaugh.

Collins v. Youngblood, 497 U.S. 37 (1990)

The definition of an ex post facto law is one that: (1) Punishes as a crime an act previously committed, which was innocent when done; (2) Makes more burdensome the punishment for a crime, after its commission; or (3) Deprives one charged with a crime of any defense available according to law at the time when the act was committed. Previous decisions which also held that legislation was ex post facto if it deprived an accused of a “substantial protection” under law existing at the time of the crime are no longer valid.

Hughey v. United States, 495 U.S. 411 (1990)

Amendments to the Victim Witness Protection Act expanding the scope of restitution could not be applied to defendants whose conduct occurred prior to the enactments.

Miller v. Florida, 482 U.S. 423 (1987)

The State of Florida changed the sentencing guidelines after the conduct which led to the defendant’s conviction. The Supreme Court holds that the change in sentencing guidelines represented an illegal ex post facto law. See also Peugh v. United States, 133 S. Ct. 2072 (2013) (applying Miller to the federal Sentencing Guidelines, post-Booker).

Lancaster v. Metrish, 683 F.3d 740 (6th Cir. 2012)

The Michigan Supreme Court’s decision holding that diminished capacity was not a defense under Michigan law, though based on the enactment of a prior statute, could not be applied to defendant. This interpretation of the law was novel and not consistent with a long line of prior decisions and therefore, it would violate Due Process to apply this new rule to the defendant’s conduct, which occurred prior to the Michigan Court’s decision. THE SUPREME COURT REVERSED: Metrish v. Lancaster, 133 S. Ct. 1781 (2013).

Magwood v. Warden, Alabama Dept. of Corrections, 664 F.3d 1340 (11th Cir. 2011)

The novel interpretation of Alabama’s aggravating circumstance law (which renders certain murders to be death-eligible), amounted to a “fair-warnning” violation, which essentially provides that a defendant must have fair warning of the elements of a criminal offense and a novel interpretation of the law by an appellate court after the defendant’s conduct occurs that renders the conduct illegal, is a Due Process violation (not unlike an Ex Post Facto violation). See Rogers v. Tennessee, 532 U.S. 451 (2001); Bouie v. Cuity of Columbia, 378 U.S. 347 (1964).

Niederstadt v. Nixon, 465 F.3d 843 (8th Cir. 2006)

The Missouri Supreme Court’s modification of the law of sodomy (eliminating the element of “physical force that overcomes reasonable resistance” by holding that the incapacitation of the victim is sufficient, as in cases where the sexual conduct occurs while the defendant is asleep), violated the ex post facto clause, according to the panel opinion. The panel opinion held that this construction of the law was not the prevailing law when the defendant committed the offense. See Bouie v. City of Columbia, 378 U.S. 347 (1964); Rogers v. Tennessee, 532 U.S. 451 (2001). The en banc court reversed, holding that the Missouri Supreme Court’s decision did not amount to a due process violation because the law was not “changed” by the decision in petitioner’s case. 505 F.3d 832 (8th Cir. 2007) en banc.

Dyer v. Bowlen, 465 F.3d 280 (6th Cir. 2006)

The Sixth Circuit reviews the Supreme Court precedent regarding the ex post facto implications of changes in the rules governing parole, and concludes that a remand for an evidentiary hearing is necessary to ascertain the practical effects of the change in Tennessee’s parole statute. See Cal. Dep’t of Corrections v. Morales, 514 U.S. 499 (1995); Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891 (1997); Weaver v. Graham, 450 U.S. 24 (1981); Garner v. Jones, 529 U.S. 244 (2000).

Clark v. Brown, 450 F.3d 898 (9th Cir. 2006)

The state appellate court’s reinterpretation of the felony murder statute in California, and the retroactive application of that interpretation (thus making the defendant death-eligible) violated the defendant’s due process rights.

Fletcher v. Reilly, 433 F.3d 867 (D. C. Cir. 2006)

The habeas petitioner stated a colorable ex post facto claim, based on his allegation that the change in parole guidelines amounted to an ex post facto violation. Some of the factors that applied under the former regime were no longer applicable, thus leading to the likelihood that the defendant would serve a longer sentence.

Williams v. Roe, 421 F.3d 883 (9th Cir. 2005)

When the defendant committed his crime, state law provided that if the defendant was convicted of two offenses based on the same conduct, the judge could impose sentence under either offense. When sentenced, the law provided that the judge was required to sentence the defendant pursuant to the section carrying the greater punishment. Applying the new law violated the Ex Post Facto clause.

Richey v. Mitchell, 395 F.3d 660 (6th Cir. 2005)

Although a statute may be made clear by judicial gloss, due process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope. See also United States v. Lanier, 520 U.S. 259 (1997).

Hunter v. Ayers, 336 F.3d 1007 (9th Cir. 2003)

Application of amended prison regulations that denied the defendant restoration of good time credits violated his rights under the ex post facto clause. Previously, he could have good time credits restored even if the credits were previously withheld based on misconduct. Under the new system, once good time credits were lost, they could not be restored.

Himes v. Thompson, 336 F.3d 848 (9th Cir. 2003)

Changes in the state parole regulations resulted in a considerable increase in the amount of time that the defendant would have to serve following revocation of his parole. This violated his rights under the ex post facto clause.

United States v. Edwards, 162 F.3d 87 (3rd Cir. 1998)

Applying the Mandatory Victims Restitution Act (MVRA) in setting restitution in this case violated the Ex Post Facto Clause, because the conduct occurred prior to the enactment of the MVRA in 1996.

Pyler v. Moore, 129 F.3d 728 (4th Cir. 1997)

South Carolina amended its mandatory furlough procedure which, prior to amendment, required that all non-life sentence inmates receive a furlough six months prior to the expiration of their sentence. The amendment limited the inmates who could qualify for the furlough. The amendment violated the ex post facto clause. The fact that the furlough program was initially conceived as a remedy for prison overcrowding does not alter the expost facto analysis. See Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891 (1997).

United States v. Siegel, 153 F.3d 1256 (11th Cir. 1998)

The Mandatory Victims Restitution Act of 1996 substantially revised the rules governing the imposition of restitution that had been embodied in the Victim and Witness Protection Act of 1982. The MVRA, to the extent that it increase the mandatory amount of restitution, could not be applied to offenses occurring before its enactment.

United States v. Torres, 901 F.2d 205 (2d Cir. 1990)

The defendants were sentenced under the “Super Kingpin” statute which requires a life sentence for the principal administrator or organizers of a CCE enterprise. This was improper because the statute was not in effect during the time that the defendants acted in this super supervisory capacity.

Roller v. Cavanaugh, 984 F.2d 120 (4th Cir. 1993)

Relying in large part on Akins v. Snow, the Fourth Circuit holds that an amendment increasing the length of time between parole reconsiderations from every year to every two years is an unconstitutional ex post facto law when applied to prisoners whose crimes were committed before the amendment. But see Morales, 514 U.S. 499, discussed above, which implicitly overruled this holding.

United States v. Parriett, 974 F.2d 523 (4th Cir. 1992)

18 U.S.C. §3583(g) provided that a person on supervised release who is found in possession of drugs will automatically have one-third of his term of supervised release revoked. The defendant committed the offense in this case in August 1988. §3583(g) was enacted effective December 1988. The defendant entered his guilty plea in May 1989; began his period of supervised release in 1990; and was found in possession of drugs in 1991. The Ex Post Facto Clause barred the application of §3583(g). Though the conduct giving rise to revocation occurred after the enactment of the section, the conduct for which the defendant was serving the term of supervised release occurred prior to the enactment of the section. Moreover, the fact that the court could have revoked the same amount of time under the old law is irrelevant for ex post facto concerns.

Kellogg v. Shoemaker, 46 F.3d 503 (6th Cir. 1995)

The state adopted a new rule which mandated parole revocation, without regard to mitigating circumstances, for all parolees who committed a felony while paroled. Under the old law, mitigating circumstances could be considered to preclude revocation. With regard to defendants who committed their initial crime prior to the promulgation of this new rule, this violated the Ex Post Facto Clause.

Williams v. Lee, 33 F.3d 1010 (8th Cir. 1994)

While the defendant was in prison, the legislature amended the law and permitted the parole board to reduce good time credits if a parolee violated the terms of his parole. The defendant was then paroled and violated the terms. The new good time forfeiture legislation could not be applied to him. Even though he was aware of the change in the law when he was paroled, and thus was aware of the consequences of violating the terms of his parole, this did not alter the ex post facto nature of the legislation.

Parton v. Armontrout, 895 F.2d 1214 (8th Cir. 1990)

A new parole eligibility statute which requires all sex offenders to complete treatment and rehabilitation programs suffered from a violation of the Ex Post Facto Clause. The program was applied to inmates whose crime was committed before implementation of the new requirement.

United States v. $814,254.76 in U.S. Currency (Banamex), 51 F.3d 207 (9th Cir. 1995)

18 U.S.C. §981 provides that the government may seize funds in a bank account which represent the proceeds of some form of money laundering activity. That law was in effect when the government seized money in a bank account which was not the proceeds of money laundering activity, even though the account itself had been involved in laundering funds. After the seizure, Congress enacted 18 U.S.C. §984 which permits the seizure of untainted funds (such as the funds in this case) which are in an account which was involved in money laundering activity. The question is whether the new law applies to money which was seized before the law was enacted. The Ninth Circuit holds that the new law does not apply and the funds must be returned. Because §984 attaches new legal consequences to actions which occurred prior to its enactment, it would have to be shown that Congress specifically intended this result before the court would apply the new statute to conduct occurring before its enactment.

United States v. DeSalvo, 41 F.3d 505 (9th Cir. 1994)

According to Hughey v. United States, 495 U.S. 411 (1990), interpreting the pre-1990 version of the VWPA, restitution could only be ordered for the loss caused by the specific conduct that is the basis of the offense of conviction. In 1990 however, Congress amended the statute, 18 U.S.C. §3663(a)(2), to broaden the availability of restitution: “For the purpose of restitution, a victim of an offense that involves as an element a scheme, a conspiracy, or a pattern of criminal activity means any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern.” This new provision, however, cannot be applied to offenses which occurred prior to the 1990 amendment. To do so would violate the Ex Post Facto Clause.

Nulph v. Faatz, 27 F.3d 451 (9th Cir. 1994)

The state of Oregon violated the Ex Post Facto Clause by applying a new parole eligibility formula to prisoners whose crimes were committed prior to the enactment of the new rule.

Flemming v. Oregon Board of Pardons and Paroles, 998 F.2d 721 (9th Cir. 1993)

A regulation which reduced the amount of time that could be subtracted from a sentence violated the Ex Post Facto Clause. The fact that the sentence reduction was only discretionary under the old regime is not consequential. There was no possibility for reduction under the new regulation, therefore, the new regulation impacted negatively on the prisoner. The loss of the opportunity for relief was a substantial hardship covered by the Ex Post Facto Clause.

United States v. Reed, 924 F.2d 1014 (11th Cir. 1991)

The RICO Act was amended to provide for the forfeiture of substitute assets in the event that forfeitable assets were transferred prior to the time the government had the ability to seize the property from the defendant. This section was applicable to transfers which occurred prior to the enactment of the substitute asset forfeiture section.