Legal Awareness: Ex Post Facto Law and Bill of Attainder

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A Legal Awareness of the Ex Post Facto Law and Bill of Attainder will provide a better perspective and appreciation of due process in the field of criminal law.

Broaden your legal awareness! In this 6th chapter of legal awareness articles, I will discuss 2 forbidden legislations that are pertinent to the field of Penology: the Ex Post Facto Law, on the one hand, and the Bill of Attainder, on the other. Legislation is penal when it prescribes a criminal penalty imposable in a criminal trial.

Ex Post Facto is Latin, which literally means “from a thing done afterward.” An Ex Post Facto Law essentially changes the legal consequences of actions committed PRIOR to its enactment. In substance, it is retroactive in nature.

The archaic definition of a Bill of Attainder is “a special legislative act that imposes a death sentence on a person without trial.” Traditionally, it is described as “a special legislative act prescribing punishment without a trial for a specific person or group.” A Bill of Attainder is technically a form of class legislation that targets particular groups or names individuals. This is in violation of both the “due process clause” and “equal protection clause” of the Constitution.

For your legal awareness, the following are types of Ex Post Facto Laws:

Ex Post Facto Law Type 1: One which makes an action done before the passing of the law - and which was innocent when done – criminal, and punishes such action;

Ex Post Facto Law Type 2: One which aggravates a crime or makes it greater than when it was committed;

Ex Post Facto Law Type 3: One which changes the punishment, and inflicts a greater punishment than the law annexed to the crime when it was committed;

Ex Post Facto Law Type 4: One which alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the defendant;

Ex Post Facto Law Type 5: One that assumes to regulate civil rights and remedies only, but in effect, imposes a penalty or deprivation of a right – which when done was lawful;

Ex Post Facto Law Type 6: One which deprives a person accused of a crime of some lawful protection to which he has become entitled – such as the protection of a former conviction or acquittal, or a proclamation of amnesty.

For your legal awareness, the following are requisites of a Bill of Attainder:

Bill of Attainder Requisite 1: There must be legislation.

Bill of Attainder Requisite 2: The legislation imposes a penal burden on a named individual, or easily ascertainable members of a group.

Bill of Attainder Requisite 3: The penal burden is imposed directly by legislation without judicial trial.

Bill of Attainder is in violation of due process: A Bill of Attainder, basically, does not satisfy the 2 kinds of due process required concurrently by the Constitution: a) procedural due process, which in essence, was expressed by Daniel Webster as “a law which hears before it condemns;” and b) substantive due process which is a prohibition of arbitrary legislation. Both due process clauses are mandatory.

May this Legal Awareness 101 help you in the future.


Posted on Oct 4, 2010
Patrick Regoniel
Posted on Sep 29, 2010