Ex post facto laws retroactively make an activity illegal. Democratic societies assume citizens know the law, but retroactive application undermines basic principles. The US Constitution prohibits retroactive criminal laws, but not civil laws. Retroactive decreases in sentence are permissible, but retroactive increases are not.
An ex post facto law is any law passed that retroactively makes an activity illegal. Ex post facto is Latin for “after the fact” and characterizes the common notion that a person should not be subject to arbitrary laws, enforced by a government that may decide that an action is illegal without warning and as an excuse to exercise dominance and control over a person who violates his basic human rights. The concept is applied in culturally specific ways in democratic jurisdictions around the world, but the basic theory behind the principle is consistent.
Retroactive laws are laws that are passed and then applied to activities that occurred in the past. For example, one jurisdiction passes a seat belt law after an accident occurs in which a parent has a child in a car without a seat belt. The parent cannot be charged with violating the seat belt law because it only came into effect after the accident. Most jurisdictions impute knowledge of all book laws to citizens and can charge a person with a felony even if they had no actual knowledge that they had broken the law. This establishes a proactive responsibility on the part of the citizen to know the law and keep within its bounds, and removes from the government the responsibility to try to figure out what a particular offender had in mind.
Assumed knowledge of the law is much more tenable than retroactive application of the law in democratic societies. The basic tenets of democracy hold that citizens should be free from unreasonable searches and seizures by the government. Ex post facto law undermines those basic principles by making government action arbitrary and baseless in a legislative process authorized by the will of the people.
In the United States, for example, the ex post statute prohibition is codified in the United States Constitution. The federal government and each state in the union are expressly limited from passing retroactive laws by what is commonly known as the ex post facto clause of Article I. This restriction, however, was limited by the United States Supreme Court to apply only to criminal laws and is further defined within that legal area.
The court ruled that the ex post restriction on laws in the United States does not apply to any law or regulation that does not have a punitive intent. Thus, the constitutional clause concerns criminal law, not civil law. In the criminal context, the government can retroactively establish a law that decreases the sentence for an offense, but any retroactive increase in sentence would be punitive and not permissible. The court held that laws cannot be passed that limit the defenses available to a defendant at the time a crime has been committed.
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