Prohibition Against Ex Post Facto Laws

• Jurisdiction: Maryland

III. Prohibition against ex post facto laws

A. Sources of the prohibition against ex post facto laws

Under the U.S. Constitution, art. I, § 9, cl. 3, is a limitation on retroactive legislation enacted by Congress, and art. I, § 10, cl. 1, is a limitation on retroactive legislation enacted by state legislatures. Under the Maryland Constitution, Md. Decl. of Rights art. 17 prohibits the Maryland General Assembly from enacting retroactive substantive more onerous legislation.

B. Scope of ex post facto prohibition

Prohibition against ex post facto laws applies only to (1) substantive (not procedural) criminal legislation that is (2) more onerous than previous law (not ameliorative), and (3) is applied retroactively (not prospective only). Thus, ex post facto prohibits retroactive, disadvantageous substantive law that applies to events occurring before enactment. Frost v. State, 336 Md. 125, 136 (1994) (citing Weaver v. Graham, 450 U.S. 24 (1981)). The prohibition against ex post facto laws applies to administrative agency regulations. Dep't of Public Safety & Correctional Services v. Demby, 390 Md. 580, 598 (2006).

In Weaver v. Graham, 450 U.S. 24 (1981), a state statute reduced the accumulation of monthly "gain-time credits" that an inmate could receive, thereby extending required prison time. The defendant argued that the statute violated the ex post facto clause. The Supreme Court agreed, noting that "[t]he critical question, as [the State] has acknowledged, is whether the new provision imposes greater punishment after the commission of an offense, not merely whether it increases a criminal sentence." Id. at 32 n.17. "Therefore," the Court explained, "a retrospective law . . . can be constitutionally applied . . . only if it is not to [the defendant's] detriment." Id. at 33.

The statute at issue reduced "gain-time accumulation [and] lengthens the period that someone in [the inmate's] position must spend in prison" as well as "reduc[ing] the ability to shorten his time through good conduct." Id. at 33-34. Accordingly, the statute at issue violated the ex post facto clause. See Anderson v. Dep't of Health & Mental Hygiene, 310 Md. 217 (1987) (adopting Weaver's rationale and holding that a new statute that places the burden of persuasion on a mental health patient in a mental hospital, after confinement for a crime, to show that they were no longer insane, violated ex post facto).

In Collins v. Youngblood, 497 U.S. 37 (1990), the defendant was convicted of sex abuse and sentenced to life, plus a $10,000 fine, which the state appellate court affirmed. The defendant filed a state habeas corpus petition, claiming that sentence was illegal, and he was entitled to a new trial. Prior to the state habeas corpus proceeding, the legislature amended the statute, permitting an appellate court to modify an illegal sentence, rather than remanding for a new trial.

The defendant sought federal habeas corpus relief. The District Court granted the petition and ordered a new trial, holding that the state legislature had enacted a law that retroactively permitted reformation of the verdict, allowing the state appellate court to eliminate the $10,000 fine, and deny the new trial, which had been the remedy at the time of the defendant's conduct. The Fifth Circuit agreed, holding that the state appellate court violated the ex post facto clause and ordered a new trial. The Supreme Court disagreed:

The Texas statute allowing reformation of improper verdicts does not punish as a crime an act previously committed, which was innocent when done; nor make more burdensome the punishment for a crime, after its commission; nor deprive one charged with a crime of a defense available according to law at the time when the act was committed. Its application [in this case] therefore is

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