We need an "Ex Post Facto" primer, please!

[ColbertWatcher]

Can someone please explain how "ex post facto" relates to the House resolution passed today giving conditional immunity to GOP donors?

Please post more than just links; I'd like this thread to be a discussion about another one of these laws (like habeas corpus) that are the foundation of our Constitution.

Thank you.

[The Magistrate]

1. Viewed Neutrally, Sir

An 'ex post facto' law is one that alters the consequences of an action after it is committed.

This is viewed as a problem when a law criminalizes an action that was not criminal when it was committed. An example might be a law defining as murder any death resulting from drunk driving, which specified such a prosecution could be brought in cases that had occurred prior to the date the bill was signed into law. The injustice of this sort of changing the rules in the middle of the game to the greater hazard of a citizen is obvious.

Just about any law which reduces penalties for a crime, or even removes criminal liability for an act, is in a sense an 'ex post facto' law, since a person who is arrested after its passage for an act committed before it is passed will face a different liability than they would have, and if the act committed before the law was passed is no longer a crime, cannot be arrested for it at all. A person who was arrested before the law was passed would still be subject to the law at the time of his or her arrest without change, though in an instance where the act was no longer criminal, charges probably would be dropped, and in case of conviction might well receive a lesser sentence than otherwise.

[Wizard777]

4. I kind of disagree with your second assertion. Laws can be repealed or sentances relegislated.

This is not a violation of the Ex Post Facto provision as long as you do not try to retroactively apply the new legislation to old cases that precede the passage of the legislation.

[The Magistrate]

7. Not Saying Such Things Violate The Clause, Sir

Only that they fit the neutral definition. Lessening penalties is generally not viewed as an abuse of law, and so the question seldom arises in this light.

The provision regarding the telecom companies in the recent F.I.S.A. bill seems to fall in a sort of grey area, as it specifies a certain form of defense must succeed in a civil trial, that prior to its passage might or might not have succeeded, and specifies this shall occur retroactively. That makes it an 'ex post facto' law by neutral definition, but since it operates in favor of a defendant, does not fit the usual view of why such laws are unjust. However, it also prejudices the rights of plaintiffs, and so can certainly be taken as harming some citizens, and thus constituting an injustice of the commonly appreciated sort.

[ColbertWatcher]

10. Lessening penalties is generally not viewed as an abuse of law

But what if that the law that was broken is a clear violation of the Constitution (spying on American citizens)?

If lessening penalties is not an abuse, is removing all accountability considered an abuse of power?

[The Magistrate]

14. There Is No Question, Sir, The Administration And The Telecom Companies Broke The Law

My own view is that they should pay for doing so, and that this bill is a wrong thing, even, if you will, an abuse of power.

But it is not clear to me that it amounts to a Constitutionally prohibited ex post facto law. If, for example, a law were passed stating those actions were not crimes, no one who had not been arrested prior to its passage could be arrested for those acts once criminal and now no longer so. It is possible, of course, that such a law permitting warrant-less spying on citizens would be ruled Un-Constitutional by a Supreme Court: indeed, such a law ought to be so ruled by the Supreme Court. That the action of this Bill in civil cases would change the rules to the clear detriment of plaintiffs, making recovery of damages for wrongful acts impossible, without altering their wrongfulness under law at the time they were committed, seems to me the most fruitful line for bringing this under the aegis of the Constitutional ban against ex post facto laws and bills of attainder. It certainly changes the rules to the detriment of citizens already at court retroactively, and it amounts to a legislative direction that a class of persons must lose in court, which certainly smacks of a bill of attainder.

[Leopolds Ghost]

20. What if previous law said they were crimes at the time committed? Could they no longer be arrested?

[Leopolds Ghost]

11. Isn't it unconstitutional for Congress to dictate what defense must succeed in a civil trial?

It violates separation of powers and overturns common-law which is
precedent based.

This is Napoleonic, if not Jacobin legislation.

[The Magistrate]

15. It Very Likely Is, Sir: It Could Be Forcefully Argued This Amounts To A Bill Of Attainder

It certainly is a Legislative usurpation of Judicial function, and though it does not declare a group of citizens guilty of crimes by legislative fiat, which is the strict meaning of a bill of attainder, it does certainly declare a group of citizens, indeed, all citizens, must be harmed, by denying them the recovery of damages for a wrongful act committed against them.

[Wizard777]

17. Okay, then that removes any tendency to disagree.

The most nuetral and idiot proof way I have found to express the concept of the prohibition of Ex Post Facto law. Is that it ensures that you are placed on trial with only the laws that existed at the time you commited the crime.

The concept could be made more simple with a computer sorting program. A Judge would enter the date the crime was commited and then hit a reset button. Then all the laws passed after that date would be removed from the database acessable for that case file.

[The Magistrate]

19. Happy To Hear It, Sir

[ColbertWatcher]

6. But...

...how does ex post facto fit into the recent House resolution giving conditional immunity to GOP donors?

A. they're not people
and
B. the resolution negates their role in spying on American citizens

Thank you for your post.

[The Magistrate]

8. To Repeat From A Comment Above, Sir

The provision regarding the telecom companies in the recent F.I.S.A. bill seems to fall in a sort of grey area, as it specifies a certain form of defense must succeed in a civil trial, that prior to its passage might or might not have succeeded, and specifies this shall occur retroactively. That makes it an 'ex post facto' law by neutral definition, but since it operates in favor of a defendant, does not fit the usual view of why such laws are unjust. However, it also prejudices the rights of plaintiffs, and so can certainly be taken as harming some citizens, and thus constituting an injustice of the commonly appreciated sort.

[Leopolds Ghost]

13. It is unjust in the sense that what the telecoms did is still a crime and the law specifically sets

precedent for declaring that a letter from Bush (or Reagan, Nixon, etc.)
AG stating that it's legal is a "get out of jail free" card for enablers
in every possible circumstance, not just FISA.

This goes against the "ignorance and bad legal advice is not a defense"
which is at the foundation of all our public interest statutes.

[The Magistrate]

16. We Are, Sir, Very Much In Agreement Here

[Wizard777]

2. "Ex Post Facto" is Latin and it simply means "After The Fact."

Actual translation is out of (ex) after (post) deed (Facto/factum.)The phrase is reduced to a single word in Retroactive.

It's most simple function is to ensure that that you are tried by the laws at the time you commited your crime.

[Occulus]

3. For those who don't speak Latin,

ex post facto- literally, "after the fact"- applies to laws passed after the fact of the crime, incident, or violation. In this case, it is not clear that telecom company immunity applies; as I understand it, ex post facto has traditionally applied to cases in which additional punishment was applied (e.g., sex offender registries, as they applied to sex offenders already sentenced) after the sentencing, and in some cases service of punishment, of the guilty party.

I've never heard of it being applied to parties which would be guilty, but for the ex post facto law. From the Wiki:

In reference to criminal law, it may criminalize actions that were legal when committed; or it may aggravate a crime by bringing it into a more severe category than it was in at the time it was committed; or it may change or increase the punishment prescribed for a crime, such as by adding new penalties or extending terms; or it may 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, a form of ex post facto law commonly known as an amnesty law may decriminalize certain acts or alleviate possible punishments (for example by replacing the death sentence with life-long imprisonment) retroactively.

So, the telecom immunity bill is not an ex post facto law per se, but rather an amnesty law. However, only ex post facto laws (and bills of attainder) are explicitly prohibited by our Constitution.

From the "bill of attainder" Wiki:

A bill of attainder (also known as an act or writ of attainder) is an act of legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a trial.

Perhaps we would have gained more traction had we tied this "amnesty law" (which applies to corporations who broke the law) to that oh-so-controversial other "amnesty law" (which applies to noncitizens who broke the law).

Oh: IANAL.

[Wizard777]

5. No It's literal translation is Ex (out of ) Post (after) Facto/Factum (deed)

Also your cite says that "a form of Ex post facto law" is amnesty law. So since amnesty law is a form of expost facto law. Amnesty laws are Constitutionly prohibited. Also Amnesty is a form of pardon. Only the President has the power to grant pardons.

[pt22]

12. It's means "it is"

;-)

[Wizard777]

18. LMAO! Okay, you got me on that one.

:blush: :rofl: :hi: Maybe my latin is better than my english.

[pt22]

9. Geometric analogy-> EFP : amnesty = rectangle : square

:D