Retroactivity of Legislation (Update)

AuthorCornelia T. L. Pillard
Pages2225-2226

Page 2225

LEGISLATION is "retroactive" when it applies new legal consequences to conduct that occurred before the legislation took effect. Congress and state legislatures generally may enact legislation that has retroactive effects when their intent to do so is clear. In Landgraf v. USI Film Products (1993), the leading recent case on retroactivity of legislation, the Supreme Court held that the CIVIL RIGHTS ACT OF 1991, enacted to restore the scope of CIVIL RIGHTS laws the Court had narrowly interpreted in 1989, did not apply to claims arising before the act's effective date. The Court applied a presumption against statutory retroactivity and, the act's restorative purpose notwithstanding, held that Congress had not clearly indicated an intent that the provisions at issue apply retrospectively. (No similar clear-statement hurdle or presumption against retroactive application applies to judicial decisions, which are governed by a general rule in favor of retroactive application, except on HABEAS CORPUS review.)

There is no general constitutional prohibition against retroactive legislation; the Constitution does, however, prohibit certain types of retroactive legislation. The various constitutional anti-retroactivity provisions reflect fundamental considerations of fairness, including protection of reasonable reliance and settled expectations, and the RULE OF LAW principle that behavior should be governed by rules publicly fixed in advance. Retroactive laws can deprive persons of fair notice of the illegality of contemplated behavior, and create opportunities for legislative retribution or favoritism against identifiable groups.

Among the constitutional prohibitions on retroactive legislation are the EX POST FACTO clauses of the Constitution, which prohibit retroactive application of certain federal and state laws. The Supreme Court since CALDER V. BULL (1798) has construed those prohibitions to apply only to new penal laws that disadvantage the defendant. Laws violate the prohibition on ex post facto laws if they punish acts that were noncriminal when committed, increase the punishment for or aggravate an existing crime after it was committed, or deprive an individual of a defense that was available when the conduct occurred. Retroactive application of new SENTENCING guidelines or mandatory sentence provisions, and elimination of "good time" credits for time served in prison are examples of measures the Court has invalidated under the ex...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT