OK, if my understanding of the (U.S.) Constitution is correct, I can’t be convicted of a crime if it wasn’t a crime when I did it? This would be being convicted of a crime ex post facto. For example:
On Sunday, August 1st [making up dates here] I eat an ice cream cone. It’s not illegal to eat ice cream on Sunday on August 1st. On Monday, August 2nd, Congress passes a law making it a felony to eat ice cream on Sunday. According to the Constitution I can’t be charged with that crime since it wasn’t a crime when I did it.
[aside]Has anyone ever argued before the SCOTUS that they were charged and/or convicted ex post facto?[/aside]
NOW, back to my OP. If eating ice cream on Sunday is illegal and has always been illegal since before I was born, then is this scenario possible:
On Sunday, August 1st, I eat an ice cream cone and get caught. The fine for eating ice cream on Sunday is $100. On Monday, August 2nd, Congress passes a law making the mandatory minimum punishment for eating ice cream on Sunday a 5-year prison sentence.
So in this scenario could I be sent up the river for five years, or does the principle of ex post facto mean that the worst that could happen is a $100 fine?
The example you gave would be ex post facto. When you were arrested, the fine was $100, so you could not be given the higher sentence under the new law.
A more problematic example would be if the law provided fines of $5-$1000. Judges generally gave the $5 fine for a first offense. However, new sentencing guidelines are passed after you are caught, saying that judges should fine first offenders $1000. In that case, it’s probably not ex post facto, since the law already existed.
Sure. One that springs to mind was a challenge to laws saying that felons can’t own handguns. Felons challenged the law as imposing an additional punishment. SCOTUS rejected it and said it was just criminalizing a conduct, and not imposing a new punishment.
I’ve always wondered about this in regards to “three strikes” laws. What if a felon’s first two strikes where the passage of the law and the third after? Couldn’t the felon’s lawyer argue “Your honor, if my client had known that three felonies were going to be bad, he wouldn’t have committed the first two.” And how would this differ from just going around and rounding up all felons with three pre-law strikes?
There are two related issues that have generated some recent Ex post Facto Clause jurisprudence in the last few years, both dealing with sex offenders. Certain types of sex offenders have a very high rate of recidivism and various solutions have been proposed for dealing with this. The two at issue here are the various “Megan’s laws” and the idea of civil confinement. Megan’s laws require that convicted sex offenders who have paid for their crimes and been released or parolled from prison register their identity and location with local police. In some cases this information can be made publicly available. Civil confinement is when sex offenders who have served their time can be further incarcerated for an indefinite period of time until the State feels they are no longer a danger. The reason the ex post facto issue arises is that both of these provisions have arisen within the last several years and can be applied to offenders who committed their crimes at an earlier date and, in some cases pled guilty before these further conditions were imposed.
3 strikes laws are different, ftg, because when the felon committed his third crime, the penalty was already in place and the criminal could have easily avoided it simply by obeying the law for the rest of his life the same way most people do.
I don’t want to wander into GD turf here, in fact I think 3 strikes laws are great if they only count against felonies committed after the law goes into effect. (Last week some bozo here killed a woman and nearly killed another. Turns out he had already been convicted of two homicides. He served just 5 years for the second! Sometimes 3 strikes is too generous.)
But there is a lot of things about this that make me uneasy. For example, there’s a lot of people in jail who didn’t commit the crime they are in for. DNA testing is releasing a lot of people who sometimes have been in jail for decades. Who knows how many people are rotting away because DNA can’t help them. What if the third felony is a bad conviction.
Also, in the constitution, penalties cannot be unduly severe. Is a single felony after the law is put in place worth a life sentence?
Lots of issues like that bother me about this. The ex post aspect creeps me out.
I don’t think 3-strikes laws are good policy, in part because of the reasons you mention, but there’s nothing ex post facto about them. At the time of Crime 3, if the law clearly says: “You will go to jail for life if convicted of this crime,” then the criminal is just as capable of understanding the punishment to be levied – regardless if that punishment is because of a serious crime (such as murder) or a result of a less serious crime + prior convictions.
That’s not a response (or at least not a complete one) to the question of whether such sentences are cruel and unusual punishment, which is also forbidden by the Constitution, but that’s a separate issue.
As to the possibility of innocence, as long as due process is provided, the elimination of all possibility of innocence cannot be the touchstone of our jurisprudence – or we’d never be able to arrest anyone. Our inability to ensure that we’re not punishing the wrong guy may be a reason to have a more lenient policy that 3-strikes (indeed, I believe it is), but again, that’s a separate issue from whether the law is ex post facto.