Ex Post Facto

By James W. Carter, Former Managing Attorney

A question many of our clients ask is whether their sentences or convictions violate the constitutional protections against ex-post facto laws. The purpose of this article is to provide some general information about the prohibition against ex post facto laws found in both the United States and North Carolina Constitutions. United States Constitution, Art. I. §§ 9 and 10; North Carolina Constitution, Art. I § 16.

People generally assume that the prohibition against ex post facto laws only protects against the infliction of punishment for an act that was not defined as a crime when it was committed. However, the United States Supreme Court has held that the protection of the ex post facto clauses extends to four types of laws:

(1) a law that punishes conduct which was not defined as a crime at the time;

(2) a law that makes a crime more serious than it was when committed;

(3) a law that inflicts a greater punishment than the law allowed when the crime was committed; and

(4) a law that changes the rules of evidence so less proof is required to convict the defendant than was required when the offense was committed.

Rogers v. Tennessee, 532 U.S. 451, 456 (2001), citing, Calder v. Bull, 3 Dallas 386, 390 (1978) (seriatim opinion of Chase, J).

In determining if a law is ex post facto, the United States Supreme Court has stated that two critical elements must be present. First, the law must be retrospective, that is, it must apply to an offense that occurred before the law was enacted. And second, the law must disadvantage the defendant. Weaver v. Graham, 450 U.S. 24, 29 (1981).

A common question is whether the Structured Sentencing Act (SSA), which superceded the Fair Sentencing Act (FSA), was a violation of the constitutional protection against ex post facto laws. The question arises in two forms.

First, consider the defendant who committed a felony breaking and entering (a Class H felony) on January 1, 1994, and was convicted on January 1, 1995. The defendant was sentenced under the FSA and received the maximum sentence of 10 years. On October 1, 1994, the Structured Sentencing Act (SSA) took effect and provided that the maximum sentence for felony breaking and entering was 25 to 30 months (2 years and one month, to 2 years and six months). The defendant asks whether the 10-year FSA sentence violates the ex post facto clause.

The answer to this question is no. Proof of a violation of the ex post facto clause requires a showing that the challenged law was applied to events that occurred before the law was enacted. In the situation described, the Fair Sentencing Act was the law that was in effect at the time the crime was committed, and that is the law that must be used for sentencing. That is true, even though the trial was conducted and the defendant was convicted and sentenced after the Structured Sentencing Act took effect.

The second way the ex post facto question most commonly arises has to do with sentence reduction credits. A person convicted under the FSA receives day-for-day good time credit to reduce his sentence. On the other hand, a person sentenced under the SSA does not earn day-for-day good time credit. People convicted under the SSA often want to know whether SSA's elimination of day-for-day good time credit violates the ex-post facto clause.

Again, the answer is no. When the offense was committed after the SSA became effective, the SSA controls. Because the SSA's elimination of good time credit is applied to offenses committed after the law was enacted, it does not violate the ex post facto principle.

With all of this, you might be wondering when the ex post facto prohibition might ever apply. In the situation above, suppose the facts were the same except that the offense was committed before October 1, 1994, during the time that the FSA was the law. Let's assume that the defendant earned day-for-day good time credit on his FSA sentence until the SSA was enacted. After the SSA was enacted, assume that the Department of Correction (DOC) refused to credit any more day-for-day good time credit against the FSA sentence.

In this situation, the defendant would have been subjected to a violation of the ex post facto clause. The defendant could show that the new law [the SSA], which eliminated day-for-day good time credit, was being applied to a conviction that occurred before the new law [the SSA] was enacted. Also, the defendant could show that the loss of day-for-day good time credit was a disadvantage to him because he would spend more time in prison. In such a case, the prohibition against ex post facto laws would require the DOC to award all of the good time credit to which the defendant is entitled under the FSA.

We hope that this will help you to understand the prohibition against ex post facto laws. But please remember that this is general information and is not intended as legal advice in your particular case. If you believe that you were sentenced in violation of the ex post facto clause, please write to us. We will consider your specific situation and let you know whether there is a legal basis to challenge the sentence.