The puzzling boundary between criminal and civil retroactive lawmaking

Georgetown Law Journal

Volumn 84, Issue 6, 1996, Pages 2143-

  Krent, Harold J ^a  

^a NONE

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EID: 0042124827     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (6)

1. The ex post facto restrictions apply to both federal and state laws. U.S. CONST. art. I, § 9, cl. 3; id. § 10, cl. 1. By retroactivity, I refer to the commonly used definition of altering the legal status of acts that were performed before the new law was passed. See, e.g., Landgraf v. USI Film Prods., 114 S. Ct. 1483, 1499 (1994) (specifying that a "court must ask whether the new provision attaches new legal consequences to events completed before its enactment"); Weaver v. Graham, 450 U.S. 24, 31 (1981) (noting that the "critical question is whether the law changes the legal consequences of acts completed before its effective date"); see also Charles B. Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 HARV. L. REV. 692, 692 (1960) (employing similar definition); Saul X. Levmore, The Case for Retroactive Taxation, 22 J. LEGAL STUD. 265, 266 (1993) (same); Stephen R. Munzer, Retroactive Law, 6 J. LEGAL STUD. 373, 381-83 (1977) (same). This definition must be distinguished from retroactive effects, for most prospective legislation, particularly in the civil context, has retroactive impact on previous conduct such as investments.
2. The ex post facto restrictions apply to both federal and state laws. U.S. CONST. art. I, § 9, cl. 3; id. § 10, cl. 1. By retroactivity, I refer to the commonly used definition of altering the legal status of acts that were performed before the new law was passed. See, e.g., Landgraf v. USI Film Prods., 114 S. Ct. 1483, 1499 (1994) (specifying that a "court must ask whether the new provision attaches new legal consequences to events completed before its enactment"); Weaver v. Graham, 450 U.S. 24, 31 (1981) (noting that the "critical question is whether the law changes the legal consequences of acts completed before its effective date"); see also Charles B. Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 HARV. L. REV. 692, 692 (1960) (employing similar definition); Saul X. Levmore, The Case for Retroactive Taxation, 22 J. LEGAL STUD. 265, 266 (1993) (same); Stephen R. Munzer, Retroactive Law, 6 J. LEGAL STUD. 373, 381-83 (1977) (same). This definition must be distinguished from retroactive effects, for most prospective legislation, particularly in the civil context, has retroactive impact on previous conduct such as investments.
3. The ex post facto restrictions apply to both federal and state laws. U.S. CONST. art. I, § 9, cl. 3; id. § 10, cl. 1. By retroactivity, I refer to the commonly used definition of altering the legal status of acts that were performed before the new law was passed. See, e.g., Landgraf v. USI Film Prods., 114 S. Ct. 1483, 1499 (1994) (specifying that a "court must ask whether the new provision attaches new legal consequences to events completed before its enactment"); Weaver v. Graham, 450 U.S. 24, 31 (1981) (noting that the "critical question is whether the law changes the legal consequences of acts completed before its effective date"); see also Charles B. Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 HARV. L. REV. 692, 692 (1960) (employing similar definition); Saul X. Levmore, The Case for Retroactive Taxation, 22 J. LEGAL STUD. 265, 266 (1993) (same); Stephen R. Munzer, Retroactive Law, 6 J. LEGAL STUD. 373, 381-83 (1977) (same). This definition must be distinguished from retroactive effects, for most prospective legislation, particularly in the civil context, has retroactive impact on previous conduct such as investments.
4. See, e.g., Miller v. Florida, 482 U.S. 423, 435-36 (1987) (holding that application of revised sentencing guidelines to petitioner, whose crime occurred before their effective date, violated Ex Post Facto Clause); Weaver, 450 U.S. at 35-36 (holding that application of statute reducing good-time credits of petitioner, whose crime occurred before statute's effective date, violated Ex Post Facto Clause).
5. See, e.g., Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 734 (1984) (upholding retroactive effective date of withdrawal liability provisions of Multiemployer Pension Plan Amendments Act); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 18-19 (1976) (upholding retrospective liability for disabilities of former employees under Coal Mine and Safety Act of 1969).
6. See, e.g., Sandin v. Connor, 115 S. Ct. 2293, 2300 (1995) (curtailing liberty interests enjoyed by prisoners); Minnesota v. Dickerson, 508 U.S. 366, 375 (1993) (holding warrant not needed if investigative officer can determine contraband nature from "plain feel"); Brecht v. Abrahamson, 507 U.S. 619.