Ex post facto law
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An ex post facto law (from the Latin for "from something done afterward") or retroactive law (or
retrospective law) is a law that retroactively changes the legal consequences of acts committed or the legal
status of facts and relationships that existed prior to the enactment of the law. In reference to criminal law,
it may criminalize actions that were legal when committed; or to aggravate a crime by bringing it into a
more severe category than it was at the time it was committed; or to change or increase the punishment
prescribed for a crime, such as by adding new penalties or extending terms; or to alter the rules of evidence
in order to make conviction for a crime more likely than it would have been at the time of the action for
which a defendant is prosecuted. Conversely, an ex post facto law may decriminalize certain acts or
alleviate possible punishments (for example by replacing the death sentence by life-long imprisonment)
retroactively.
A hypothetical example: someone committed a high-profile, brutal murder, but the public thinks the
existing laws will not punish the murderer severely enough; so the legislature enact laws that will more
severely punish those who have committed the crime of murder ensuring that this specific murderer will
get a prison sentence longer than that prescribed at the time he committed the crime.
A law may have an ex post facto effect without being technically ex post facto. For example, when a law
repeals a previous law, the repealed legislation no longer applies to the situations it once did, even if such
situations arose before the law was repealed. The principle of prohibiting the continued application of these
kinds of laws is also known as Nullum crimen, nulla poena sine praevia lege poenali.
Generally speaking, ex post facto laws are seen as a violation of the rule of law as it applies in a free and
democratic society. Most common law jurisdictions do not permit retroactive legislation, though some have
suggested that judge-made 'law' is retroactive as a new precedent applies to events that occurred prior to the
judicial decision. In some nations that follow the Westminster system of government, such as the United
Kingdom, ex post facto laws are technically possible as parliamentary supremacy allows the parliament to
pass any law it wishes. However, in a nation with an entrenched bill of rights or a written constitution, ex
post facto legislation may be prohibited.
Habeas corpus-Search warrantUnited States
This procedure, part of English common law, was considered important enough to be specifically
mentioned in the United States Constitution, which says, "The Privilege of the Writ of Habeas Corpus shall
not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." (Article
One, section nine).
In the USA, the writ of habeas corpus ad subjiciendum is a civil (as opposed to a criminal) proceeding in
which the court inquires as to the legitimacy of a prisoner's custody. Typically, habeas corpus proceedings
investigate whether a criminal trial was conducted fairly and constitutionally after the criminal appellate
process has been exhausted. Habeas corpus is also used as a legal avenue to challenge other types of
custody such as pretrial detention or detention by the Bureau of Immigration and Customs Enforcement
pursuant to a deportation proceeding.
The "constitutional" writ of habeas corpus, which was originally understood to apply only to those held in
custody by officials of the executive branch of the federal government, and not to those held by state
governments, and then only within the jurisdiction of the court, should be distinguished from what can be
called "statutory" habeas corpus. Congress granted all federal courts jurisdiction under Title 28, Section
2241 of the United States Code to issue writs of habeas corpus to release prisoners held by any government
entity (state or federal) from custody, but only when held in violation of the Constitution. Title 28 U.S.C.,
section 2254, is the primary habeas corpus vehicle to challenge the constitutionality of a state court
conviction. A similar provision, 28 U.S.C., section 2255, (though technically not a habeas corpus statute)
provides analogous relief to federal prisoners.
Sections 2254 and 2255 govern the grant of habeas corpus relief by the federal courts after a prisoner is
convicted and his direct appeals (in either state or federal court, depending on which jurisdiction has
convicted the prisoner) have been completed. Prisoners who have been convicted in state courts also have
access to habeas corpus actions under state law and can pursue such relief in addition to federal habeas
corpus.
Decisions by the Warren Supreme Court greatly expanded the use and scope of the federal writ in the
1950s and 1960s. Over the last thirty years, decisions by the Burger and Rehnquist Courts have somewhat
narrowed the writ. The Anti-Terrorism and Effective Death Penalty Act of 1996 further limited the use of
the federal writ by, among other things, imposing a one-year deadline (statute of limitation) and
dramatically increasing the federal judiciary's deference to decisions previously made in state court
proceedings either on appeal or in a state court habeas corpus action.
Here's a simple illustration of the section 2254 (which challenges a prisoner in state prison) process: Bob
was convicted in state court for rape. Bob is thrown in prison and appeals his conviction to the state
appellate court and then to the state supreme court. All uphold his conviction. Within a year, Bob files a
"Petition" in federal district court. The prison warden, represented by the state attorney general, will file an
"Answer." Then Bob responds to the answer by filing a "Traverse." If his petition has a procedural defect,
like he failed to appeal to his state's highest court, his petition will be dismissed without prejudice (Bob
may refile once he finishes appealing). If his petition, however, appears like it has merit, the Magistrate
Judge typically will appoint a federal Public Defender to represent Bob and hold an evidentiary hearing to
determine if the writ will be granted. If the judge determines Bob's detention in state prison infringes on a
constitutional right as recognized by the U.S. Supreme Court, the judge will order Bob be released. If not,
Bob's case will be dismissed with prejudice, and it's over for him. He may appeal to the Federal Court of
Appeals for a last-ditch effort to be heard.
A more recent use of the habeas petition is with cases involving DNA evidence. If new technology can
prove Bob did not commit the rape, he may file a habeas petition and allege his detention was based on a
misapplication of the facts. At the evidentiary hearing, Bob's attorney will present exculpatory DNA
evidence, and the judge will order his release. In its most basic form, the writ of habeas corpus serves as the
final chance a prisoner has to challenge his conviction, and it will only be granted based on constitutional
issues.