It's an ex post facto fact: Supreme Court misapplies the ex post facto clause to criminal procedure.

AuthorKitson, Danielle

Carmell v. Texas, 120 S. Ct. 1620 (2000)


    In Carmell v. Texas,(1) the Supreme Court held that the Ex Post Facto Law Clause of the United States Constitution(2) prohibited the application of a Texas statute of criminal procedure(3) in trials against sexual offenders for their offenses committed prior to the amendment of the statute in 1995.(4) The Court reasoned that the amendment to the Texas statute altered the sufficiency of the evidence needed to convict criminal defendants, and thus it qualified as an ex post facto law as such under the seminal case of Calder v. Bull.(5) In particular, the court was persuaded that the facts of Carmell mirrored the 300 year-old case of Sir John Fenwick, the same case that Justice Chase cited in Calder(6) for the proposition that statutes altering the sufficiency of the evidence needed to convict were invalid ex post facto laws.(7)

    This Note argues that the Supreme Court's decision was incorrect. First, the majority incorrectly found that Texas Article 38.07 altered the sufficiency of the evidence needed to obtain a conviction.(8) Instead, Texas Article 38.07 is functionally identical to rules of witness competency, and is not ex post facto as such under the principles of Calder.(9) Second, the Court erroneously analogized the facts of John Fenwick's case to Carmell's situation.(10) Finally, even if the majority were correct in its assertion that Texas Article 38.07 qualifies as an ex post facto law as defined in Calder,(11) the majority ignored subsequent case law that effectively reinterpreted the Calder definition, to the exclusion of Calder's fourth category of ex post facto laws, those which alter the legal rules of evidence.(12)



      Article I, Section 10, clause 1 of the United States Constitution provides that "no state shall ... pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts."(13) The framers of the Constitution drafted this clause in order to restrain State legislatures from acts of injustice against citizens, in both criminal and civil matters.(14) In particular, the framers were concerned with the power of the Parliament of Great Britain to pass bills of attainder and bills of "pains and penalties" specifically against individuals or classes of individuals. Bills of attainder imposed a sentence of death and bills of pains and penalties imposed lesser punishment.(15) The framers were concerned that bills of attainder violated the principle of separation of powers. When a legislature passed a bill of attainder, the legislature passed judgment on an individual. The framers considered this act to be "an exercise of judicial power."(16)

      Literally, the prohibition against ex post facto laws encompasses any law with a retrospective application, that is, any law applying "after the fact."(17) At the very heart of this prohibition is the notion that a citizen cannot be deprived of life, liberty, property, or reputation for an act which, at the time it was committed, did not violate any law.(18) As the Court noted in Ogden v. Saunders,(19) "laws of this character are oppressive, unjust, and tyrannical; and, as such, are condemned by the universal sentence of civilized man."(20) The Court recognized in Calder that entrusting State and Federal legislatures with such power was contrary to the core concept of free Republican government, in which men enter into society willingly in order to form a social compact.(21) As Justice Chase explained, "this fundamental principle flows from the very nature of our free Republican governments, that no man should be compelled to do what the laws do not require; nor to refrain from acts which the laws permit."(22) The framers of the Constitution infused a great deal of power into the federal legislature, but also left a great deal of power to the state legislatures to "enjoin, permit, forbid, and punish; ... declare new crimes; and establish rules of conduct for all ... citizens in future cases; ... [and] command what is right, and prohibit what is wrong."(23) However, the framers did not entrust the federal or the state legislatures with the power to "change innocence into guilt; or punish innocence as a crime; or violate the right of an antecedent lawful private contract; or the right of private property."(24)

      Commentators have noted that the Ex Post Facto Clause in the Constitution serves three main functions.(25) First, it provides notice to the public "to assure that legislative acts give fair warning of their' effect."(26) Second, it protects the right of citizens to reasonably rely on existing laws in choosing what actions to take, without fear that the laws will be changed capriciously or maliciously.(27) Third, it preserves the principle of separation of powers by ensuring that "legislatures do not meddle with the judiciary's task of adjudicating guilt and innocence in individual cases."(28) The ban on ex post facto laws not only prevents the legislature from adjudicating guilt and innocence for an individual, but it also prevents the legislature from acting in an arbitrary or vindictive fashion while acting in a judicial vein.(29)


      The early case of Calder v. Bull was the first to address the Ex Post Facto Clause of the Constitution.(30) In the oft-quoted opinion written by Justice Chase, the Court explored the parameters of the Clause, and set out a four-category definition of ex post facto laws.(31) In the case of Cummings v. Missouri,(32) the Court first applied the fourth Calder category, regarding a law that "alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.(33) Consideration of these two early cases is crucial to understanding which procedural provisions the Court understood to be ex post facto in nature.

      Calder v. Bull involved a resolution passed by the legislature of Connecticut that set aside a decree of the Court of Probate of Harford.(34) The decree in question disapproved and refused to record Normand Morrison's will.(35) As a result of this legislative resolution, Mr. Morrison's will was probated and recorded.(36) Calder and his wife, who would have inherited the estate if the will had not been probated, as the Court of Probate had originally ordered, were disinherited.(37) Caleb Bull, whose wife was named in Mr. Morrison's will, inherited the estate.(38) Calder and his wife claimed on appeal that the legislative resolution to set aside the decree of the probate court was an ex post facto law.(39)

      The Court held that the legislative decree was not an invalid ex post facto law.(40) Justice Chase reasoned that the Ex Post Facto Clause encompassed only penal statues, and that the "framers of the Constitution ... understood and used the words in their known and appropriate signification, as referring to crimes, pains, and penalties, and no further."(41) Because Calder's case involved a civil matter, the legislative resolution could not be ex post facto under the Constitution as a matter of definition.(42) Justice Chase further explored the Ex Post Facto Clause in reaching his holding, and explained there were four types of ex post facto laws:

      1st. Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.(43) In developing this definition, Justice Chase explained that he relied heavily on the works of William Blackstone and Richard Wooddeson, as well as the definitions given in the constitutions of Maryland, North Carolina, and Massachusetts.(44)

      As an example of the fourth category of ex post facto laws, Justice Chase cited briefly to the case of Sir John Fenwick in 1696.(45) The details of this case are important because the Carmell Court relied significantly on them in determining that laws that altered the sufficiency of evidence needed to obtain a criminal conviction were ex post facto.(46)

      In Sir John Fenwick's case, an act of Parliament proclaimed that two witnesses were necessary to convict a person of high treason.(47) John Fenwick, a Jacobite, plotted with two co-conspirators to restore James II to the throne after his overthrow by King William III in the Revolution of 1688.(48) The number of conspirators expanded over the course of a few months, and the throne began arresting the conspirators one by one after three of them disclosed the restoration plot to the King.(49) The conspirators were systematically arrested, tried, convicted of treason and put to death.(50)

      When Fenwick was eventually arrested, there were only two witnesses among the group of conspirators who could prove Fenwick's guilt, George Porter and Cardell Goodman.(51) Fenwick's wife was successful in bribing Goodman to leave the country, and under the act of Parliament, Porter's testimony alone would not be sufficient to obtain a conviction.(52)

      The House of Commons reacted to Goodman's absence by passing a bill of attainder against Fenwick, nullifying the two-witness requirement in his case.(53) Sir John Fenwick was beheaded on January 28, 1697.(54) Justice Chase cited to Fenwick's case as an example of ex post facto laws falling under the fourth category, laws which alter the rules of evidence necessary to obtain a conviction.(55)

      In their concurring opinions in Calder, Justices Paterson and Iredell provided their own definitions of...

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