# Would this be illegal in the US due to no post facto laws? **URL:** \ **Category:** Great Debates\ **Created:** [October 29, 2012, 8:49pm UTC](https://boards.straightdope.com/t/would-this-be-illegal-in-the-us-due-to-no-post-facto-laws/639258 "2012-10-29T20:49:33Z")\ **Posts on this page:** 10\ **Page:** 1
**Author:** ![Simple\_Linctus](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Simple\_Linctus](https://boards.straightdope.com/u/Simple_Linctus)\ **Post date:** [October 29, 2012, 8:49pm UTC](https://boards.straightdope.com/t/would-this-be-illegal-in-the-us-due-to-no-post-facto-laws/639258/1 "2012-10-29T20:49:33Z")
FYI, “being sectioned” is involuntary confinement to a mental heath hospital, kind of our equivilant to your involuntary commitment (the mental health kind, not the “let’s lock up the sex offenders for life and pretend it’s not prison” kind). Anyway looks like there’s been a huge mistake made in the UK. To quote from a news article today[Thousands wrongly sectioned under mental health act following ‘technical error’ [which] will require immediate retrospective legislation to avoid a deluge of legal complaints](http://www.independent.co.uk/life-style/health-and-families/health-news/thousands-wrongly-sectioned-under-mental-health-act-following-technical-error-8231388.html): > [@Independent](#): > > The Government has admitted that it will have to take the extraordinary step of bringing in emergency retrospective legislation after more than 5,000 people were wrongly sectioned under the mental health act over the past ten years because of a technical error. > > Health Secretary Jeremy Hunt told Parliament that thousands of Britain’s most vulnerable patients have been locked up on the say so of doctors who, despite having the requisite medical knowledge, were not legally allowed to make such a decision. > > The error will require immediate retrospective legislation to avoid a deluge of legal complaints whilst a review has been ordered to find out what went wrong. > > The Department of Health insists that no patients have been wrongly sectioned in clinical terms and that the doctors behind the decisions had the correct professional qualifications. > > \*\*Under the Mental Health Act those who are sectioned for their own or society’s safety are done so with the authorisation of a doctor who has to be approved by the Secretary of State. In recent years the Health Secretary has delegated responsibility for approving doctors to the 10 Strategic Health Authorities that cover England. > > However four authorities - North East, Yorkshire and Humber, West Midlands and East Midlands – delegated a further step top mental health trusts and then failed to sign off on the decisions they made, meaning they were effectively illegal. > \*\* > In a statement to the Commons Mr Hunt said: “We believe that all the proper clinical processes were gone through when these patients were detained. They were detained by medically qualified doctors. We believe that no one is in hospital who shouldn’t be and no patients have suffered because of this. > > He added: “But for the avoidance of any remaining doubt, and in the interests of the safety of patients themselves, as well as the potential concerns of their families and the staff who care for them, we are introducing emergency legislation to clarify the position.” > > … > > Mental health charities reacted cautiously to the announcement saying that although the mistake was regrettable, they were assured by promises from the government that no-one had been sectioned falsely in clinical terms. Important bits of article quoted, most important explanation of what went wrong bolded. So, two items for debate: (a) would the equivilant recitification of mistake with retroactive legislation be against the US constitution? (b) is it a good idea to allow mistakes like this to be rectified through retroactive legislation? I have no position on (a). My position on (b) is that no, retroactive legislation should never be allowed. If the detentions were unlawful then they were unlawful, simple as that. Which is not to say that any compensation need be awarded and certainly no one should be prosecuted. I see this as a demonstration of why we need fewer laws, simpler laws, and more discretion built in to the legal system. Bonus viewpoint: I also am against sectioning in almost all cases of the mentally ill but I have no idea whether in practice the mentally ill are being sectioned very much. I suspect the balance is about right, albeit with some fuck ups and institutional failings - but that’s a guess based on what I would expect the situation to be. ---
**Author:** ![Grumman](https://avatars.discourse-cdn.com/v4/letter/g/43a26b/32.png) [@Grumman](https://boards.straightdope.com/u/Grumman)\ **Post date:** [October 29, 2012, 9:48pm UTC](https://boards.straightdope.com/t/would-this-be-illegal-in-the-us-due-to-no-post-facto-laws/639258/2 "2012-10-29T21:48:26Z")
> [@Simple\_Linctus](#): > > So, two items for debate: > > (a) would the equivilant recitification of mistake with retroactive legislation be against the US constitution? No. You can’t make legal acts illegal after the fact, but there’s no reason you can’t make an illegal act legal. > [@](#): > > (b) is it a good idea to allow mistakes like this to be rectified through retroactive legislation? In this particular case, I don’t think it is. Even if they _had_ signed off on the decisions, it still makes a farce of the intended chain of accountability. ---
**Author:** ![Simple\_Linctus](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Simple\_Linctus](https://boards.straightdope.com/u/Simple_Linctus)\ **Post date:** [October 29, 2012, 9:53pm UTC](https://boards.straightdope.com/t/would-this-be-illegal-in-the-us-due-to-no-post-facto-laws/639258/3 "2012-10-29T21:53:06Z")
> [@Grumman](#): > > No. You can’t make legal acts illegal after the fact, but there’s no reason you can’t make an illegal act legal. Wait, so you can in theory detain a whole bunch of people saying you’re doing it cause “wibble master 3000 says I can”, and THEN pass a law called “wibble master 3000” - and that’s fine? ---
**Author:** ![Strassia](https://avatars.discourse-cdn.com/v4/letter/s/e8c25b/32.png) [@Strassia](https://boards.straightdope.com/u/Strassia)\ **Post date:** [October 29, 2012, 10:17pm UTC](https://boards.straightdope.com/t/would-this-be-illegal-in-the-us-due-to-no-post-facto-laws/639258/4 "2012-10-29T22:17:44Z")
> [@Simple\_Linctus](#): > > Wait, so you can in theory detain a whole bunch of people saying you’re doing it cause “wibble master 3000 says I can”, and THEN pass a law called “wibble master 3000” - and that’s fine? No, you have it backwards. If a law exists saying X is illegal and is punishable by Y time in prison, you can then pass a new law saying X is now legal and everyone who was convicted of it can go free. You cannot convict someone of a crime that was not illegal at the time they did it, but you can void (pre-or post trial) any criminal liability of acts that are rendered no longer illegal. ---
**Author:** ![Telemark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/telemark/32/372_2.png) [@Telemark](https://boards.straightdope.com/u/Telemark)\ **Post date:** [October 29, 2012, 10:17pm UTC](https://boards.straightdope.com/t/would-this-be-illegal-in-the-us-due-to-no-post-facto-laws/639258/5 "2012-10-29T22:17:48Z")
> [@Simple\_Linctus](#): > > Wait, so you can in theory detain a whole bunch of people saying you’re doing it cause “wibble master 3000 says I can”, and THEN pass a law called “wibble master 3000” - and that’s fine? No, he’s saying the exact opposite. You can arrest people for an infraction, and later pass a law decriminalizing that infraction. ---
**Author:** ![Simple\_Linctus](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Simple\_Linctus](https://boards.straightdope.com/u/Simple_Linctus)\ **Post date:** [October 29, 2012, 10:23pm UTC](https://boards.straightdope.com/t/would-this-be-illegal-in-the-us-due-to-no-post-facto-laws/639258/6 "2012-10-29T22:23:19Z")
> [@Strassia](#): > > No, you have it backwards. If a law exists saying X is illegal and is punishable by Y time in prison, you can then pass a new law saying X is now legal and everyone who was convicted of it can go free. You cannot convict someone of a crime that was not illegal at the time they did it, but you can void (pre-or post trial) any criminal liability of acts that are rendered no longer illegal. > [@Telemark](#): > > No, he’s saying the exact opposite. You can arrest people for an infraction, and later pass a law decriminalizing that infraction. You’ve misunderstood my analogy. The point of my example is that the government could just detain people for no reason - then pass a law saying that it was allowed to detain people for no reason. As opposed to detaining people for “X” and passing a law saying that X was illegal back in the day, which is what you **thought** I said. The reason I used that example is because this seems to have been what has happened. People have been detained against their will in a mental hospital using powers that did not exist. How can those powers be granted retrospectively? ---
**Author:** ![Strassia](https://avatars.discourse-cdn.com/v4/letter/s/e8c25b/32.png) [@Strassia](https://boards.straightdope.com/u/Strassia)\ **Post date:** [October 29, 2012, 10:39pm UTC](https://boards.straightdope.com/t/would-this-be-illegal-in-the-us-due-to-no-post-facto-laws/639258/7 "2012-10-29T22:39:45Z")
> [@Simple\_Linctus](#): > > You’ve misunderstood my analogy. The point of my example is that the government could just detain people for no reason - then pass a law saying that it was allowed to detain people for no reason. > > As opposed to detaining people for “X” and passing a law saying that X was illegal back in the day, which is what you **thought** I said. > > The reason I used that example is because this seems to have been what has happened. People have been detained against their will in a mental hospital using powers that did not exist. How can those powers be granted retrospectively? What seems to have happened is that people were detained by doctors who believed they had the power to do so, but did not actually have that power. This could open the doctors and hospitals up to future litigation and prosecution. The new law makes what the doctors and hospitals did not illegal. That would be fine the U.S. The status of the patients is a trickier question. First, they are not convicted of anything and not being punished for any crime. IANAL, but I don’t think ex-post facto would come into play in this case. ---
**Author:** ![solosam](https://avatars.discourse-cdn.com/v4/letter/s/9d8465/32.png) [@solosam](https://boards.straightdope.com/u/solosam)\ **Post date:** [October 30, 2012, 1:52pm UTC](https://boards.straightdope.com/t/would-this-be-illegal-in-the-us-due-to-no-post-facto-laws/639258/8 "2012-10-30T13:52:01Z")
My understanding was that the government made an error when it came to delegating authority. An error is not the same as a criminal act (which is what ex post facto rules are intended to address). In fact, OP’s questions specifically refer to it as a “mistake” rather than an act of malfeasance. In the US, it would be up to the judge to decide whether an error in the proceedings was severe enough to warrant a re-trial. If the judge believes the error was minor and did not effect the outcome, they may uphold the verdict. This is sometimes called acting in “Good Faith” (although that term is usually used in the context of contract law). On the other hand, if the judge decides they were deliberately attempting to abuse or otherwise mangle the intent of the law, he could overturn it and punish the agencies responsible. If the lawmakers believed what they were doing was the correct procedure, and the doctors rendered a fair and competent evaluation, it would not necessarily overturn the result. Now, as for the question of whether it is a “good idea,” I don’t see why not. You are specifically talking about “rectifying a mistake,” as opposed to perpetrating an injustice. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 30, 2012, 2:10pm UTC](https://boards.straightdope.com/t/would-this-be-illegal-in-the-us-due-to-no-post-facto-laws/639258/9 "2012-10-30T14:10:03Z")
The prohibition on _ex post facto_ laws extends only to criminalizing legal conduct after the conduct has occurred. It would not apply to a civil commitment proceeding. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [October 30, 2012, 5:23pm UTC](https://boards.straightdope.com/t/would-this-be-illegal-in-the-us-due-to-no-post-facto-laws/639258/10 "2012-10-30T17:23:18Z")
There are some circumstances where a civil liability can be sufficiently punitive as to trigger the EPF clause. This happened with some recent amendments to the Civil False Claims Act, which were [found](http://www.crowell.com/NewsEvents/AlertsNewsletters/Health-Law-In-The-News/Retroactive-Amendments-to-False-Claims-Act-Found-Unconstitutional) not to have retroactive application for that reason. I suspect that civil commitment would not be considered punitive, though. Also, the FISA telecom immunity litigation supports the idea that the government could retroactively grant immunity from suit to the mental health trusts in this case. I think it would be possible that the people who were civilly committed by these trusts would have a due process claim to have their commitment overturned, regardless of the retroactivity law, if the trusts’ procedures were lacking in some way. That would be dependent upon the specific facts of the matter, though, and not specifically an argument against retroactivity.