ex post facto clause in New Jersey

2024For an ex post facto violation to occur, "the statute in question must either (1) punish as a crime an act previously committed, which was innocent when done; (2) make more burdensome the punishment for a crime, after its commission; or (3) deprive a defendant of any defense available according to the law at the time when the crime was committed." State v. Muhammad, 145 N.J. 23, 56 (1996) (citing Beazell v. Ohio, 269 U.S. 167 , 169- 70 (1925)).

2021In order for an ex post facto violation to occur, the statute in question must either "(1) punish as a crime an act previously committed, which was innocent when done; (2) make more burdensome the punishment for a crime, after its commission; or (3) deprive a defendant of any defense available according to the law at the time when the crime was committed." State v. Muhammad, 145 N.J. 23, 56 (1996) (citing Beazell v. Ohio, 269 U.S. 167, 169-70 (1925)).

2021In disposing of the ex post facto challenge, the majority ultimately relies heavily on Doe v. Poritz, 142 N.J. 1 (1995), asserting that Megan’s Law 7 registration is a remedial measure, not a punitive one.

2014We do not pass any judgment on those regulations. 4 Courts use the terms "retrospective” and “retroactive” interchangeably. 5 In Poritz, supra, we declined to utilize the Mendoza-Martinez factors in deciding the ex post facto challenge to Megan's Law. 142 N.J. at 72 , 662 A.2d 367 .

2025The United States Supreme Court identified "four categories of laws that violate the ex post facto doctrine if applied retroactively to conduct that occurred before the challenged law was in effect." State v. Bailey, 251 N.J. 101 , 122-23 (2022) (citing Carmell v. Texas, 529 U.S. 513, 521-30 (2000) (discussing Calder v. Bull, 3 U.S. 386, 389-91 (1798))).

2022In Carmell, the United States Supreme Court reaffirmed its prior holding identifying four categories of laws that violate the ex post facto doctrine if applied retroactively to conduct that occurred before the challenged law was in effect. 529 U.S. at 521-30 (discussing Calder v. Bull, 3 U.S. (3 Dall.) 386 , 389-91 (1798)).

2014In contrast to Cory , in Doe v. Bredesen, the United States Court of Appeals for the Sixth Circuit upheld, against an ex post facto challenge, the Tennessee Serious and Violent Sex Offender Monitoring Pilot Project Act, which “authorized the Tennessee Board of Probation and Parole ... to subject a convicted sexual offender to a satellite-based monitoring program for the duration of his probation.” 507 F.3d 998, 1000 (6th Cir.2007) (emphasis added).

2014In contrast to Cory, in Doe v. Bredesen, the United States Court of Appeals for the Sixth Circuit upheld, against an ex post facto challenge, the Tennessee Serious and Violent Sex Offender Monitoring Pilot Project Act, which “authorized the Tennessee Board of Probation and Parole . . . to subject a convicted sexual offender to a satellite-based monitoring program for the duration of his probation.” 507 F.3d 998, 1000 (6th Cir. 2007) (emphasis added).

2025In fact, the Court has been “careful . . . not to adopt a single formula for identifying which legislative adjustments, in matters bearing on parole, would survive an ex post facto challenge,” id. at 252 (citing Morales, 514 U.S. at 509 ), and has time and again stressed that such a determination “must be a matter of ‘degree.’” Morales, 514 U.S. at 509 (quoting Beazell, 269 U.S. at 171 ).

2024For an ex post facto violation to occur, "the statute in question must either (1) punish as a crime an act previously committed, which was innocent when done; (2) make more burdensome the punishment for a crime, after its commission; or (3) deprive a defendant of any defense available according to the law at the time when the crime was committed." State v. Muhammad, 145 N.J. 23, 56 (1996) (citing Beazell v. Ohio, 269 U.S. 167 , 169- 70 (1925)).

2014The majority then applied the ex post facto test set forth in Smith v. Doe, 538 U.S. 84, 92 , 123 S.Ct. 1140, 1147 , 155 L.Ed.2d 164, 176 (2003).

2014The majority then applied the ex post facto test set forth in Smith v. Doe, 538 U.S. 84, 92 , 123 S.Ct. 1140, 1147 , 155 L.Ed.2d 164, 176 (2003).

2025The U.S. Supreme Court has explained that the ex post facto analysis is concerned “solely with whether a statute assigns more disadvantageous criminal or penal consequences to an act than did the law in place when the act occurred.” Weaver, 450 U.S. at 29 n.13.

2014The ex post facto clause of the Constitution prohibits Congress and the States from enacting any law “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.” Weaver v. Graham, 450 U.S. 24, 28 , 101 S.Ct. 960, 964 , 67 L.Ed.2d 17, 22 (1981) (citations and internal quotation marks omitted).

2025The United States Supreme Court identified "four categories of laws that violate the ex post facto doctrine if applied retroactively to conduct that occurred before the challenged law was in effect." State v. Bailey, 251 N.J. 101 , 122-23 (2022) (citing Carmell v. Texas, 529 U.S. 513, 521-30 (2000) (discussing Calder v. Bull, 3 U.S. 386, 389-91 (1798))).

2022A. Defendant argues that the amendment to N.J.R.E. 509 is a “law that alters the legal rules of evidence, and receives less, or different, testimony, 17 than the law required at the time of the commission of the offense, in order to convict the offender.” She contends that the amendment thus offends the ex post facto clause pursuant to Carmell v. Texas, 529 U.S. 513, 522 (2000).

1991Defendant argues that based on the decision in Godfrey v. Georgia, 446 U.S. 420 , 100 S.Ct. 1759 , 64 L.Ed. 2d 398 (1980) (Georgia provision on which c(4)(c) is modeled held unconstitutionally vague in absence of limiting construction), "Biegenwald could have reasonably believed that this factor did not apply to his case because the victim's death was instantaneous; there was no serious physical abuse prior to death as required by the Georgia limiting construction." According to defendant, application of c(4)(c) as construed in Ramseur, supra, 106 N.J. at 208-11, 524 A. 2d 188 , violates the p

1991Defendant argues that based on the decision in Godfrey v. Georgia, 446 U.S. 420 , 100 S.Ct. 1759 , 64 L.Ed. 2d 398 (1980) (Georgia provision on which c(4)(c) is modeled held unconstitutionally vague in absence of limiting construction), "Biegenwald could have reasonably believed that this factor did not apply to his case because the victim's death was instantaneous; there was no serious physical abuse prior to death as required by the Georgia limiting construction." According to defendant, application of c(4)(c) as construed in Ramseur, supra, 106 N.J. at 208-11, 524 A. 2d 188 , violates the p

2025But the “controlling inquiry” in determining whether a retroactive application of a new parole law is an ex post facto violation is “whether retroactive application . . . created ‘a sufficient risk of increasing the measure of punishment attached to the covered crimes,’” Garner, 529 U.S. at 250 (quoting Morales, 514 U.S. at 509 ), or “create[d] a significant risk of prolonging [an individual]’s incarceration,” id. at 251, beyond that contemplated at the time of the offense.

2025In the nuanced context of parole, “[t]he controlling inquiry” as to whether a change in parole law is an ex post facto violation is “whether retroactive application of the change in [parole] law created ‘a sufficient risk of increasing the measure of punishment attached to the covered crimes.’” Garner v. Jones, 529 U.S. 244, 250 (2000) (quoting Cal. Dep’t of Corr. v. 6 Morales, 514 U.S. 499, 509 (1995)).

2025Finally, although more than 100 years ago the U.S. Supreme Court asked whether a new law was substantive or procedural in evaluating ex post facto challenges, see Kring v. Missouri, 107 U.S. 221, 224 (1883); Thompson v. 21 Utah, 170 U.S. 343, 351-52 (1898), it has since clarified that “by simply labeling a law ‘procedural,’ a legislature does not thereby immunize it from scrutiny under the Ex Post Facto Clause,” Collins v. Youngblood, 497 U.S. 37, 46 (1990).

1996Collins v. Youngblood, 497 U.S. 37, 50 , 110 S.Ct. 2715, 2723 , 111 L.Ed.2d 30, 44 (1990).

2018See O'Keefe v. Passaic Valley Water Comm'n , 132 N.J. 234 , 240, 624 A.2d 578 (1993).

2018See O'Keefe v. Passaic Valley Water Comm'n , 132 N.J. 234 , 240, 624 A.2d 578 (1993).

1990See State v. Bethune, 121 N.J. 137, 146 , 578 A.2d 364 (1990) (“... [I]f we were to remand for a new trial, there is a strong likelihood that Ms. Foster’s testimony would be admissible pursuant to Evidence Rule 63(33) (enacted subsequent to the Bethune trial), governing the tender-years exception to the hearsay rule.”) Defendant relies on our language in State v. T.P.M., 189 N.J.Super. 360, 366-367 , 460 A.2d 167 (App.Div.1983), where, in summarizing the federal definition of the ex post facto clause of the federal constitution, we said: The Clause prohibits any law which in relation to the pa

1990See State v. Bethune, 121 N.J. 137, 146 , 578 A.2d 364 (1990) (“... [I]f we were to remand for a new trial, there is a strong likelihood that Ms. Foster’s testimony would be admissible pursuant to Evidence Rule 63(33) (enacted subsequent to the Bethune trial), governing the tender-years exception to the hearsay rule.”) Defendant relies on our language in State v. T.P.M., 189 N.J.Super. 360, 366-367 , 460 A.2d 167 (App.Div.1983), where, in summarizing the federal definition of the ex post facto clause of the federal constitution, we said: The Clause prohibits any law which in relation to the pa

2025But the “controlling inquiry” in determining whether a retroactive application of a new parole law is an ex post facto violation is “whether retroactive application . . . created ‘a sufficient risk of increasing the measure of punishment attached to the covered crimes,’” Garner, 529 U.S. at 250 (quoting Morales, 514 U.S. at 509 ), or “create[d] a significant risk of prolonging [an individual]’s incarceration,” id. at 251, beyond that contemplated at the time of the offense.

2025In the nuanced context of parole, “[t]he controlling inquiry” as to whether a change in parole law is an ex post facto violation is “whether retroactive application of the change in [parole] law created ‘a sufficient risk of increasing the measure of punishment attached to the covered crimes.’” Garner v. Jones, 529 U.S. 244, 250 (2000) (quoting Cal. Dep’t of Corr. v. 6 Morales, 514 U.S. 499, 509 (1995)).

2024State Parole Bd., in which we held applying the 1997 Parole Act amendment—which deleted the new information mandate—to the parole hearing of an inmate whose offense occurred prior to 1997 "did not violate the ex post facto clause," because the change in the law was simply "a procedural modification that does not constitute a substantive change in the parole release criteria." 331 N.J.

2024Coburn argues that the Third Circuit Court of Appeals in Holmes v. Christie, 14 F.4th 250, 255 (3d Cir. 2021) overturned the holding in Trantino V, which provided "that application of the 1997 amendments to N.J.S.A. 30:4-123.56c . . . [does] not violate the ex post facto clause since this change in the law is a procedural modification that does not constitute a substantive change in the parole release criteria." Trantino V, 331 N.J.

2008There are two elements to an ex post facto analysis. "[T]o fall within the ex post facto prohibition, two critical elements must be present: first, the law `must be retrospective, that is, it must apply to events occurring before its enactment'; and second `it must disadvantage the offender affected by it.'" Miller, supra, 482 U.S. at 430 , 107 S.Ct. at 2451 , 96 L.Ed. 2d at 360 (quoting Weaver, supra, 450 U.S. at 29 , 101 S.Ct. at 964 , 67 L.Ed. 2d at 23 ); accord State v. Natale, 184 N.J. 458, 490-92 , 878 A. 2d 724 (2005); see also Fortin II, supra, 178 N.J. at 608 , 843 A. 2d 974 .

2008There are two elements to an ex post facto analysis. "[T]o fall within the ex post facto prohibition, two critical elements must be present: first, the law `must be retrospective, that is, it must apply to events occurring before its enactment'; and second `it must disadvantage the offender affected by it.'" Miller, supra, 482 U.S. at 430 , 107 S.Ct. at 2451 , 96 L.Ed. 2d at 360 (quoting Weaver, supra, 450 U.S. at 29 , 101 S.Ct. at 964 , 67 L.Ed. 2d at 23 ); accord State v. Natale, 184 N.J. 458, 490-92 , 878 A. 2d 724 (2005); see also Fortin II, supra, 178 N.J. at 608 , 843 A. 2d 974 .

2011Bare, supra, 677 S.E. 2d at 528 . [3] Because appellant's claim under the ex post facto clause fails, his claim under the federal and state double jeopardy provisions fails as well, Hendricks, supra, 521 U.S. at 369 , 117 S.Ct. at 2086 , 138 L.Ed. 2d at 519-20 , since the threshold question is the same in both— namely, whether the sanction constitutes a "criminal punishment." Auge v. N.J.

2011Bare, supra, 677 S.E. 2d at 528 . [3] Because appellant's claim under the ex post facto clause fails, his claim under the federal and state double jeopardy provisions fails as well, Hendricks, supra, 521 U.S. at 369 , 117 S.Ct. at 2086 , 138 L.Ed. 2d at 519-20 , since the threshold question is the same in both— namely, whether the sanction constitutes a "criminal punishment." Auge v. N.J.

2022As we observed in an ex post facto challenge to an amendment to the Megan’s Law sentencing scheme, “[a]n ex post facto law is defined by two critical elements. ‘[F]irst, the law “must be retrospective, that is, it must apply to events occurring before its enactment”; and second, “it must disadvantage the offender affected by it.”’” State v. Hester, 233 N.J. 381, 392 (2018) (second alteration in original) (quoting Miller v. Florida, 482 U.S. 423, 430 (1987)); accord Brown, 245 N.J. at 88.

2008There are two elements to an ex post facto analysis. "[T]o fall within the ex post facto prohibition, two critical elements must be present: first, the law `must be retrospective, that is, it must apply to events occurring before its enactment'; and second `it must disadvantage the offender affected by it.'" Miller, supra, 482 U.S. at 430 , 107 S.Ct. at 2451 , 96 L.Ed. 2d at 360 (quoting Weaver, supra, 450 U.S. at 29 , 101 S.Ct. at 964 , 67 L.Ed. 2d at 23 ); accord State v. Natale, 184 N.J. 458, 490-92 , 878 A. 2d 724 (2005); see also Fortin II, supra, 178 N.J. at 608 , 843 A. 2d 974 .

2022The ex post facto doctrine “thus advances two primary purposes: ‘It assures that individuals can rely on laws until they are “explicitly changed,” and it restricts the government from passing “potentially vindictive legislation.”’” Brown, 245 N.J. at 88 (quoting Riley v. State Parole Bd., 219 N.J. 270, 284 (2014)).

2018However, even if "the enumerated purposes may involve law enforcement to some degree," a search qualifies as a special needs search if the 4 Although the Court held that SOMA imposed such punitive consequences as to trigger the ex post facto clause, Riley, 219 N.J. at 297 , the Court nonetheless, "[f]or purposes of [its] ex post facto analysis, . . . accept[ed] that the Legislature, in passing SOMA, intended to enact a remedial, regulatory scheme that was civil and nonpunitive in nature," id. at 292 .

2019See A-1428-16T2 15 State v. Perez, 220 N.J. 423, 443 (2015) (remanding for resentencing to correct Ex Post Facto violation).

2016That was the situation when the Board imposed GPS monitoring on defendant and on Riley.8 Further, although Perez did not address SOMA, the Court found that the ex post facto analysis "turn[ed] on whether the 2003 [PSL] amendment [made] more burdensome the punishment of a crime after its commission." Perez, 220 N.J. at 440 .

2014Id. at 3.

2014Id. at 3 .

2010See In re Civil Commitment of J.M.B., 197 N.J. 563, 600-01 , 964 A. 2d 752 (rejecting ex post facto challenge to SVPA), cert. denied, ___ U.S. ___, 130 S.Ct. 509 , 175 L.Ed. 2d 361 (2009); State v. Bellamy, 178 N.J. 127, 137-38 , 835 A. 2d 1231 (2003) (rejecting argument that civil commitment under SVPA is "direct and penal" consequence of guilty plea; holding that commitment is only "collateral" consequence).

2010See In re Civil Commitment of J.M.B., 197 N.J. 563, 600-01 , 964 A. 2d 752 (rejecting ex post facto challenge to SVPA), cert. denied, ___ U.S. ___, 130 S.Ct. 509 , 175 L.Ed. 2d 361 (2009); State v. Bellamy, 178 N.J. 127, 137-38 , 835 A. 2d 1231 (2003) (rejecting argument that civil commitment under SVPA is "direct and penal" consequence of guilty plea; holding that commitment is only "collateral" consequence).

1997The issue in an ex post facto analysis is “whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation[.]” DeVeau v. Braisted, 363 U.S. 144, 160 , 80 S.Ct. 1146, 1155 , 4 L.Ed.2d 1109, 1120 (1960).

1997The issue in an ex post facto analysis is “whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation[.]” DeVeau v. Braisted, 363 U.S. 144, 160 , 80 S.Ct. 1146, 1155 , 4 L.Ed.2d 1109, 1120 (1960).

2025But the court also stated that “[t]he critical inquiry is whether the statute realistically produces a sufficient risk of increasing the measure of punishment.” Ibid. (quoting Loftwich v. Fauver, 284 N.J.

2025Finally, although more than 100 years ago the U.S. Supreme Court asked whether a new law was substantive or procedural in evaluating ex post facto challenges, see Kring v. Missouri, 107 U.S. 221, 224 (1883); Thompson v. 21 Utah, 170 U.S. 343, 351-52 (1898), it has since clarified that “by simply labeling a law ‘procedural,’ a legislature does not thereby immunize it from scrutiny under the Ex Post Facto Clause,” Collins v. Youngblood, 497 U.S. 37, 46 (1990).

2025Applying those and similar precedents, the Third Circuit has explained that, “[w]hen confronted with the claim that a parole law has worked an ex post facto violation on an inmate, a court must compare the allegedly offensive parole law with the parole law in effect at the time of the inmate’s crime” and “ask whether the parole standards of the newer act are more rigorous or burdensome than were the standards of the older one.” Royster, 775 F.2d at 533 ; see also Mickens-Thomas v. Vaughn, 321 F.3d 374, 391-92 (3d Cir. 2003) (citing Garner and holding that “an offender, prior to his conviction

2025That analysis is not a simple comparison between an active law and its pre-amendment predecessor, but is rather a more nuanced assessment that considers the “sum of . . . factors” “within the whole context of [a State’s] parole system.” Id. at 251-52 . 7 The majority is correct that the facts of ex post facto parole cases in both the U.S. Supreme Court and the Third Circuit have caused those courts to focus their ex post facto analyses on the “parole law in effect at the time of the inmate’s crime.” Royster v. Fauver, 775 F.2d 527, 533 (3d Cir. 1985).

2025Applying those and similar precedents, the Third Circuit has explained that, “[w]hen confronted with the claim that a parole law has worked an ex post facto violation on an inmate, a court must compare the allegedly offensive parole law with the parole law in effect at the time of the inmate’s crime” and “ask whether the parole standards of the newer act are more rigorous or burdensome than were the standards of the older one.” Royster, 775 F.2d at 533 ; see also Mickens-Thomas v. Vaughn, 321 F.3d 374, 391-92 (3d Cir. 2003) (citing Garner and holding that “an offender, prior to his conviction