Article I, §9 of the Constitution states “[n]o ex post facto Law shall be passed”; §10 that “[n]o State shall … pass any … ex post facto Law.” Courts must determine when the prohibition is operative. For example, Peugh v. United States, 569 U.S. 530, 533 (2013), held an ex post facto violation exists when a defendant is sentenced under guidelines promulgated after the crime occurred and which provide for higher sentences than the guidelines when the crime was committed.
In 1798, the Supreme Court held the ex post facto bar applies only to criminal laws. It later explained “any statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.” Calder v. Bull, 3 U.S. 386 (1798); Beazell v. Ohio, 269 U.S.167, 169-70 (1925).
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