ex post facto clause in District of Columbia

2023See generally Smith, 538 U.S. at 110-14 (Stevens, J., dissenting as to the ex post facto issue); id. at 114-18 (Ginsburg, J., dissenting).

2021“If the intention of the legislature [in enacting the statute] was to impose punishment, that ends the inquiry.” Id.; that is, “[a] conclusion that the legislature intended to punish would satisfy an ex post facto challenge without further inquiry into its effects[.]” Id. at 92-93 .

2015A. The Ex Post Facto Clause “[A] law violative of the ex post facto clause may be identified by two critical elements; it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” Dean v. United States, 938 A.2d 751, 770 (D.C.2007) (citation omitted).

2012“Under the Ex Post Facto Clause, legislation may not be given retrospective application ‘which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.’ ... [A] law violative of the ex post facto clause may be identified by ‘two critical elements’; ‘it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.’ ” Dean v. United States, 938 A.2d 751, 770 (D.C.2007) (quoting Weaver, 450 U.S. at 28-29, 101 S.Ct. 960 (1981)).

1987Bowyer v. United States, 422 A.2d 973, 980 (D.C.1980) (quoting Beazell v. Ohio, 269 U.S. 167 , 46 S.Ct. 68 , 70 L.Ed. 216 (1925)) We do not view Jackson’s situation to fall within either the fair notice, Bouie, supra, 378 U.S. at 352 , 84 S.Ct. at 1701-02 , or standard of punishment, Lindsey v. Washington, 301 U.S. 397 , 57 S.Ct. 797 , 81 L.Ed. 1182 (1937), aspects of the ex post facto clause.

1984Procedural changes that impair a defense that had been available to the accused or lessen “the quantity or degree of proof necessary to convict .. . [are] within the prohibition of the ex post facto clause.” Bowyer v. United States, 422 A.2d 973, 980 (D.C.App.1980) (citations omitted).

1995In Portley v. Grossman, 444 U.S. 1311 , 100 S.Ct. 714 , 62 L.Ed.2d 723 (1980), an opinion in chambers, Justice Rehnquist denied applicant’s request for a stay of execution of the Ninth Circuit’s denial of a writ of habeas corpus, holding that the change in federal parole guidelines which altered applicant’s next presumptive parole date did not violate the ex post facto clause because ”[t]he change in guidelines assisting the Commission in the exercise of its discretion is in the nature of a procedural change found permissible in Dobbert [v. Florida, 432 U.S. 282, 293 [, 97 S.Ct. 2290, 2298 , 5

1995In Portley v. Grossman, 444 U.S. 1311 , 100 S.Ct. 714 , 62 L.Ed.2d 723 (1980), an opinion in chambers, Justice Rehnquist denied applicant’s request for a stay of execution of the Ninth Circuit’s denial of a writ of habeas corpus, holding that the change in federal parole guidelines which altered applicant’s next presumptive parole date did not violate the ex post facto clause because ”[t]he change in guidelines assisting the Commission in the exercise of its discretion is in the nature of a procedural change found permissible in Dobbert [v. Florida, 432 U.S. 282, 293 [, 97 S.Ct. 2290, 2298 , 5

2012“Under the Ex Post Facto Clause, legislation may not be given retrospective application ‘which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.’ ... [A] law violative of the ex post facto clause may be identified by ‘two critical elements’; ‘it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.’ ” Dean v. United States, 938 A.2d 751, 770 (D.C.2007) (quoting Weaver, 450 U.S. at 28-29, 101 S.Ct. 960 (1981)).

2007Under Weaver , a law violative of the ex post facto clause may be identified by “two critical elements”; “it must be retrospective, that is, it must apply to events occur-' ring before its enactment, and it must disadvantage the offender affected by it.” Id. at 29 , 101 S.Ct. 960 .

1996See Gibson v. United States, 602 A.2d 117, 121 (D.C.1992) ("The ex post facto clause proscribes legislation that retroactively 'alter[s] the definition of crimes or increase[s] the punishment for criminal acts.’ ”) (quoting Collins v. Youngblood, 497 U.S. 37, 43 , 110 S.Ct. 2715, 2719 , 111 L.Ed.2d 30 (1990)); Cornwell v. United States, 451 A.2d 628, 630 (D.C.1982) (per curiam) ("A ‘law that changes the punishment, and inflects a greater punishment, than the law annexed to the crime, when committed is an ex post facto law.”) (quoting Warren v. United States Parole Comm’n, 212 U.S.App.D.C. 137,

1996See Gibson v. United States, 602 A.2d 117, 121 (D.C.1992) ("The ex post facto clause proscribes legislation that retroactively 'alter[s] the definition of crimes or increase[s] the punishment for criminal acts.’ ”) (quoting Collins v. Youngblood, 497 U.S. 37, 43 , 110 S.Ct. 2715, 2719 , 111 L.Ed.2d 30 (1990)); Cornwell v. United States, 451 A.2d 628, 630 (D.C.1982) (per curiam) ("A ‘law that changes the punishment, and inflects a greater punishment, than the law annexed to the crime, when committed is an ex post facto law.”) (quoting Warren v. United States Parole Comm’n, 212 U.S.App.D.C. 137,

1996See Gibson v. United States, 602 A.2d 117, 121 (D.C.1992) ("The ex post facto clause proscribes legislation that retroactively 'alter[s] the definition of crimes or increase[s] the punishment for criminal acts.’ ”) (quoting Collins v. Youngblood, 497 U.S. 37, 43 , 110 S.Ct. 2715, 2719 , 111 L.Ed.2d 30 (1990)); Cornwell v. United States, 451 A.2d 628, 630 (D.C.1982) (per curiam) ("A ‘law that changes the punishment, and inflects a greater punishment, than the law annexed to the crime, when committed is an ex post facto law.”) (quoting Warren v. United States Parole Comm’n, 212 U.S.App.D.C. 137,

1996See Gibson v. United States, 602 A.2d 117, 121 (D.C.1992) ("The ex post facto clause proscribes legislation that retroactively 'alter[s] the definition of crimes or increase[s] the punishment for criminal acts.’ ”) (quoting Collins v. Youngblood, 497 U.S. 37, 43 , 110 S.Ct. 2715, 2719 , 111 L.Ed.2d 30 (1990)); Cornwell v. United States, 451 A.2d 628, 630 (D.C.1982) (per curiam) ("A ‘law that changes the punishment, and inflects a greater punishment, than the law annexed to the crime, when committed is an ex post facto law.”) (quoting Warren v. United States Parole Comm’n, 212 U.S.App.D.C. 137,

1980In so doing, the Court distinguished the Utah law from laws similar to the one in Kring, supra : Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto . . . they do not . . . alter the degree, or lessen the amount or measure of proof which was made necessary to conviction when the crime was committed. [ Id. at 589, 4 S.Ct. at 210 (emphasis supplied).] Thus, the Court affirmed its earlier holding that procedural charges which lessen the quantity or degree of proof necessary to establish guilt may be obnoxious to the ex post fa

1972As the Supreme Court stated in Beazell v. Ohio, 269 U.S. 167, 170-171 , 46 S.Ct. 68, 69 , 70 L.Ed. 216 (1925), “ . . . it is now well settled that statutory changes in the mode of trial or the rules of evidence, which do not deprive the accused of a defense and which operate only in a limited and unsubstantial manner to his disadvantage, are not prohibited . . . ” by the ex post facto clause of the Constitution and this includes statutes which change the “rules of evidence . . . so as to render admissible against the accused evidence previously held inadmissible.” Thompson v. Missouri, 171 U.S

1980Kring v. Missouri, 107 U.S. 221 , 2 S.Ct. 443 , 27 L.Ed. 506 (1882), also illustrates this point.

1980Kring v. Missouri, 107 U.S. 221 , 2 S.Ct. 443 , 27 L.Ed. 506 (1882), also illustrates this point.

2020See Jordan, 722 A.2d at 1262 .

2015However, “every retrospective law is not an ex post facto law,” Calder v. Bull, 3 U.S. 386, 391 , 3 Dall. 386 , 1 L.Ed. 648 (1798) (emphasis added), and “[n]ot all changes in law which are disadvantageous to a defendant violate *621 the Ex Post Facto Clause,” Thomas v. United States, 50 A.3d 458, 465 (D.C.2012).

2012This authority existed prior to the Court’s holding in Stogner. 4 See Stogner, 539 U.S. at 618-19 , 123 S.Ct. 2446 (collecting cases from various state courts); id. at 634 , 123 S.Ct. 2446 (Kennedy, J., dissenting) (citing nine additional cases); see also United States v. Grimes, 142 F.3d 1342, 1351 (11th Cir.1998) (reviewing cases and noting that all U.S. Circuit Courts facing this issue have found no violation of the Ex Post Facto Clause); LaFave, § 18.5(a), at 718, n.6 (“the application of [a lengthened statute of limitations] to ... crimes not yet time-barred does not violate the ex post f

2012Ct., 341 Mont. 219 , 177 P.3d 439, 443 (2008) (“[T]he Stogner Court specifically distinguished cases concerning extensions of unexpired statutes of limitations, holding that such cases did not violate the ex post facto clause.”); State v. Morales, 148 N.M. 305 , 236 P.3d 24, 26 (2010) (“Although the extension of a statute of limitations cannot revive a previously time-barred prosecution, Stogner, 539 U.S. at 607 , 123 S.Ct. 2446 , ... it can extend an unexpired limitation period because ... [it] does not impair vested rights acquired under prior law, require new obligations, impose new duties,

2012Ct., 341 Mont. 219 , 177 P.3d 439, 443 (2008) (“[T]he Stogner Court specifically distinguished cases concerning extensions of unexpired statutes of limitations, holding that such cases did not violate the ex post facto clause.”); State v. Morales, 148 N.M. 305 , 236 P.3d 24, 26 (2010) (“Although the extension of a statute of limitations cannot revive a previously time-barred prosecution, Stogner, 539 U.S. at 607 , 123 S.Ct. 2446 , ... it can extend an unexpired limitation period because ... [it] does not impair vested rights acquired under prior law, require new obligations, impose new duties,

2012Ct., 341 Mont. 219 , 177 P.3d 439, 443 (2008) (“[T]he Stogner Court specifically distinguished cases concerning extensions of unexpired statutes of limitations, holding that such cases did not violate the ex post facto clause.”); State v. Morales, 148 N.M. 305 , 236 P.3d 24, 26 (2010) (“Although the extension of a statute of limitations cannot revive a previously time-barred prosecution, Stogner, 539 U.S. at 607 , 123 S.Ct. 2446 , ... it can extend an unexpired limitation period because ... [it] does not impair vested rights acquired under prior law, require new obligations, impose new duties,

2012Ct., 341 Mont. 219 , 177 P.3d 439, 443 (2008) (“[T]he Stogner Court specifically distinguished cases concerning extensions of unexpired statutes of limitations, holding that such cases did not violate the ex post facto clause.”); State v. Morales, 148 N.M. 305 , 236 P.3d 24, 26 (2010) (“Although the extension of a statute of limitations cannot revive a previously time-barred prosecution, Stogner, 539 U.S. at 607 , 123 S.Ct. 2446 , ... it can extend an unexpired limitation period because ... [it] does not impair vested rights acquired under prior law, require new obligations, impose new duties,

2012Ct., 341 Mont. 219 , 177 P.3d 439, 443 (2008) (“[T]he Stogner Court specifically distinguished cases concerning extensions of unexpired statutes of limitations, holding that such cases did not violate the ex post facto clause.”); State v. Morales, 148 N.M. 305 , 236 P.3d 24, 26 (2010) (“Although the extension of a statute of limitations cannot revive a previously time-barred prosecution, Stogner, 539 U.S. at 607 , 123 S.Ct. 2446 , ... it can extend an unexpired limitation period because ... [it] does not impair vested rights acquired under prior law, require new obligations, impose new duties,

2012Ct., 341 Mont. 219 , 177 P.3d 439, 443 (2008) (“[T]he Stogner Court specifically distinguished cases concerning extensions of unexpired statutes of limitations, holding that such cases did not violate the ex post facto clause.”); State v. Morales, 148 N.M. 305 , 236 P.3d 24, 26 (2010) (“Although the extension of a statute of limitations cannot revive a previously time-barred prosecution, Stogner, 539 U.S. at 607 , 123 S.Ct. 2446 , ... it can extend an unexpired limitation period because ... [it] does not impair vested rights acquired under prior law, require new obligations, impose new duties,

2006We emphasized that the Supreme Court in Ashe, supra, “forewarned ... that the collateral estoppel rule ‘is not to be applied with the hypertechnical and archaic approach, of a 19th Century pleading book, but with realism and rationality.’” Id. at 1221 (quoting Ashe, supra, 397 U.S. at 444, 90 S.Ct. 1189 ).

2006We emphasized that the Supreme Court in Ashe, supra, “forewarned ... that the collateral estoppel rule ‘is not to be applied with the hypertechnical and archaic approach, of a 19th Century pleading book, but with realism and rationality.’” Id. at 1221 (quoting Ashe, supra, 397 U.S. at 444, 90 S.Ct. 1189 ).

2001The corrective action therefore did not run afoul of the ex post facto taboo. "[A]n agency misinterpretation of a statute cannot support an ex post facto claim. . . . `The ex post facto clause of the Constitution does not give [appellants] a vested right in such an erroneous interpretation.'" Caballery v. United States Parole Comm'n, 673 F.2d 43 , 47 (2d Cir.1982) (quoting Mileham v. Simmons, 588 F.2d 1279, 1280 (9th Cir.1979)). [7] 2.

2001The corrective action therefore did not run afoul of the ex post facto taboo. "[A]n agency misinterpretation of a statute cannot support an ex post facto claim. . . . `The ex post facto clause of the Constitution does not give [appellants] a vested right in such an erroneous interpretation.'" Caballery v. United States Parole Comm'n, 673 F.2d 43 , 47 (2d Cir.1982) (quoting Mileham v. Simmons, 588 F.2d 1279, 1280 (9th Cir.1979)). [7] 2.

1996NOTES [1] See Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 841 , 110 S.Ct. 1570, 1579 , 108 L.Ed.2d 842 (1990) (Scalia, J., concurring). [2] See Bradley v. United States, 410 U.S. 605, 607-08 , 93 S.Ct. 1151, 1153-54 , 35 L.Ed.2d 528 (1973). [3] See Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 660 , 94 S.Ct. 2532, 2536 , 41 L.Ed.2d 383 (1974); Bradley, 410 U.S. at 607-08 , 93 S.Ct. at 1153-54 . [4] See Gibson v. United States, 602 A.2d 117, 121 (D.C.1992) ("The ex post facto clause proscribes legislation that retroactively `alter[s] the definition of crimes or increa

1996NOTES [1] See Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 841 , 110 S.Ct. 1570, 1579 , 108 L.Ed.2d 842 (1990) (Scalia, J., concurring). [2] See Bradley v. United States, 410 U.S. 605, 607-08 , 93 S.Ct. 1151, 1153-54 , 35 L.Ed.2d 528 (1973). [3] See Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 660 , 94 S.Ct. 2532, 2536 , 41 L.Ed.2d 383 (1974); Bradley, 410 U.S. at 607-08 , 93 S.Ct. at 1153-54 . [4] See Gibson v. United States, 602 A.2d 117, 121 (D.C.1992) ("The ex post facto clause proscribes legislation that retroactively `alter[s] the definition of crimes or increa