Ex post facto laws - Next Generation Bar Exam

1. After a burglary is committed, the state raises the maximum sentence for burglary from five years to ten and applies it to that offense. What constitutional defect does the sentence have?

   It violates the Ex Post Facto Clause by increasing punishment for a completed crime. The defendant may be sentenced only under the law in effect when the crime was committed.

2. How do courts decide whether a law labeled civil is punitive for ex post facto purposes?

   By asking whether the legislature intended punishment and, if not, whether the effects are so punitive as to override that intent. Courts consider factors such as historical treatment, deterrence, and excessiveness relative to the law's purpose.

3. To which kinds of laws do the Ex Post Facto Clauses apply?

   Criminal or punitive laws only. Retroactive civil laws are tested under due process, not the Ex Post Facto Clauses.

4. Under Smith v. Doe, why did a retroactive sex-offender registration law not violate the Ex Post Facto Clause?

   The law was civil and nonpunitive in purpose and effect. Registration was a regulatory measure, not punishment.

5. Under Peugh v. United States, what is the status of sentencing a defendant under a higher Guidelines range adopted after the offense?

   It violates the Ex Post Facto Clause. A higher advisory range creates a significant risk of a harsher sentence.

6. What limits a court's unforeseeable retroactive expansion of a criminal statute?

   The Due Process Clause. The Ex Post Facto Clauses apply to legislatures; Bouie v. City of Columbia applied fair-warning principles to courts.

7. Which retroactive changes in criminal procedure are permitted?

   Procedural changes that do not alter the definition of the crime or increase the punishment. A change in procedure that merely affects how a case is tried is not ex post facto.

8. Which governments are bound by an Ex Post Facto Clause?

   Both Congress and the states. Article I, Section 9 binds Congress, and Article I, Section 10 binds the states.

9. Under Stogner v. California, what is the status of a law reviving a criminal prosecution after the limitations period has expired?

   It violates the Ex Post Facto Clause. Reviving a time-barred prosecution subjects the defendant to punishment that was no longer possible.

10. What related clause forbids legislative punishment of specific persons without a judicial trial?

    The Bill of Attainder Clause. Like the Ex Post Facto Clauses, it binds both Congress and the states.

11. What four categories of laws are ex post facto under Calder v. Bull?

    Laws criminalizing past innocent acts, aggravating a past crime, increasing its punishment, or reducing the proof needed to convict. Each category operates on conduct committed before the law was enacted.

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