Retrospective Law

Retrospective, or Ex Post Facto Laws are laws that are created "after the fact". This means that an act which was not illegal when it was committed will be declared to be illegal at a later time.

What Ex Post Facto Laws Actually Do

These laws are created in order to convict a person of a crime, even though what they did was not considered to be a crime when they did it. It calls for a law to be created which will criminalize an act after it has already occurred to allow for a higher level of punishment for the people who have charges brought against them, or to ensure that an individual or group will be convicted of a crime. When these laws are created, a person is allowed to be punished for an action that had been legal at the time.

The creation of Retrospective Laws is prohibited by the Constitution in Article I, Section 10, Clause 1. This Clause was included to ensure that those who held positions of power would not be allowed to abuse that power by punishing people for doing something that was a legal activity. Ex Post Facto Laws were banned because they eliminated due process, a policy that grants every individual has the right to a fair trial.

Retrospective Law Interpreted

One of the difficulties about determining the legalities of Retrospective Law is the fact that the Constitution did not give an exact definition of what these laws are. This has led to questions, debates and arguments about what type of laws may or may not be created after the fact, and The United States Supreme Court has been called upon to interpret the exact meaning from the Constitution. The first case that they were involved in was Calder v. Bull in 1798, and the basic outcome implied that Retrospective Laws are legal in civil cases, but not in cases which involve punishment for criminal activities. While this ruling has been subject to much debate, and was even overturned for a short time, it has been a basic guiding principle since it was created.

Smith v. Doe

In 2003, a case was brought to the Supreme Court which eventually led to the establishment of a Retrospective Law known as the Adam Walsh Child Protection and Safety Act of 2006. This act stipulates that any sex offender must make a public registration on a regular basis to notify authorities of where they are living at any given time. The general public is allowed to have access to this information, so people are able to know when and if a sex offender has moved close to them. The Supreme Court declared that this registration was not a form of punishment, and therefore it was considered to be Constitutionally valid to create this law after the fact. This case is commonly used as an example of what type of Retrospective Laws are allowed to be created.

While there may never be an absolute definition of exactly what type of Retrospective Laws the judicial branch should be allowed to institute, the work of The Supreme Court in interpreting the meaning of the Constitution has provided a valuable guideline that is still followed today.

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