We are independent & ad-supported. We may earn a commission for purchases made through our links.

Advertiser Disclosure

Our website is an independent, advertising-supported platform. We provide our content free of charge to our readers, and to keep it that way, we rely on revenue generated through advertisements and affiliate partnerships. This means that when you click on certain links on our site and make a purchase, we may earn a commission. Learn more.

How We Make Money

We sustain our operations through affiliate commissions and advertising. If you click on an affiliate link and make a purchase, we may receive a commission from the merchant at no additional cost to you. We also display advertisements on our website, which help generate revenue to support our work and keep our content free for readers. Our editorial team operates independently from our advertising and affiliate partnerships to ensure that our content remains unbiased and focused on providing you with the best information and recommendations based on thorough research and honest evaluations. To remain transparent, we’ve provided a list of our current affiliate partners here.

What is an Ex Post Facto Law?

By Theresa Miles
Updated May 17, 2024
Our promise to you
WiseGeek is dedicated to creating trustworthy, high-quality content that always prioritizes transparency, integrity, and inclusivity above all else. Our ensure that our content creation and review process includes rigorous fact-checking, evidence-based, and continual updates to ensure accuracy and reliability.

Our Promise to you

Founded in 2002, our company has been a trusted resource for readers seeking informative and engaging content. Our dedication to quality remains unwavering—and will never change. We follow a strict editorial policy, ensuring that our content is authored by highly qualified professionals and edited by subject matter experts. This guarantees that everything we publish is objective, accurate, and trustworthy.

Over the years, we've refined our approach to cover a wide range of topics, providing readers with reliable and practical advice to enhance their knowledge and skills. That's why millions of readers turn to us each year. Join us in celebrating the joy of learning, guided by standards you can trust.

Editorial Standards

At WiseGeek, we are committed to creating content that you can trust. Our editorial process is designed to ensure that every piece of content we publish is accurate, reliable, and informative.

Our team of experienced writers and editors follows a strict set of guidelines to ensure the highest quality content. We conduct thorough research, fact-check all information, and rely on credible sources to back up our claims. Our content is reviewed by subject matter experts to ensure accuracy and clarity.

We believe in transparency and maintain editorial independence from our advertisers. Our team does not receive direct compensation from advertisers, allowing us to create unbiased content that prioritizes your interests.

An ex post facto law is any law passed that makes an activity illegal retroactively. Ex post facto is Latin for “after the fact,” and it typifies the common notion that a person should not be subjected to arbitrary laws, imposed by a government that can decide an action is illegal without notice and as an excuse to exert dominion and control over a person in contravention to his basic human rights. The concept is applied in culturally-specific ways in democratic jurisdictions around the world, but the basic theory behind the principal is consistent.

Retroactive laws are laws that are passed and then applied to activity that occurred in the past. For example, a jurisdiction passes a seatbelt law after an accident occurs where a parent had a child in a car without a seatbelt. The parent cannot be charged with violating the seatbelt law because it did not go into affect until after the accident. Most jurisdictions impute knowledge of all laws on the books to citizens, and can charge a person with a crime even if he had no actual knowledge he was in violation of the law. This establishes a proactive responsibility on the part of the citizen to know the law and to stay within its bounds, and removes from the government the responsibility of trying to figure out what was in the mind of any particular offender.

Imputed knowledge of the law is much more tenable than retroactive application of law in democratic societies. Basic principals of democracy hold that citizens should be free from unreasonable search and seizure by the government. Ex post facto law undermines those basic principals by making government action arbitrary and without basis in a legislative process empowered by the will of the people.

In the U.S., for example, the prohibition against ex post facto law is codified in the U.S. Constitution. The federal government and every state in the union are expressly restricted from passing retroactive laws by what is commonly known as the Ex Post Facto Clause of Article I. This restriction, however, has been limited by the U.S. Supreme Court to apply only to criminal laws and is further defined within that legal area.

The court has established that the ex post facto restriction on laws in the U.S. does not apply to any law or regulation that does not have a punitive intent. Hence, the constitutional clause affects criminal, not civil, law. Within the criminal context, the government can retroactively establish a law that decreases a penalty for an offense, but any retroactive increase in penalty would be punitive and not allowed. The court has held that laws cannot be passed that limit defenses that were available to a defendant at the time a crime was committed.

WiseGeek is dedicated to providing accurate and trustworthy information. We carefully select reputable sources and employ a rigorous fact-checking process to maintain the highest standards. To learn more about our commitment to accuracy, read our editorial process.

Related Articles

Discussion Comments

By Logicfest — On Jun 12, 2014

@Terrificli -- that is confusing and you can blame the courts for that. Without going into too much detail, Due Process used to curb what are considered legislative abuses while ex post facto laws dealt expressly with criminal laws.

Over time, the Supreme Court has essentially broadened what is prohibited under Due Process and that has reduced the importance of prohibitions against ex post facto laws.

But, hey. It's an important subject. Can't hurt to make it redundant for people who spend their time wondering what the Founding Fathers had in mind when they drafted the Constitution.

By Terrificli — On Jun 11, 2014

This is a very odd provision of the U.S. Constitution because it is redundant. The Fifth Amendment's Due Process pretty well protects people from being found guilty of crimes without having the chance to know his or her conduct was illegal. When you apply that to the states through the 14th Amendment, then what is the point of the Ex Post Facto prohibition in Article I?

Here's the thing. Due process requires that a person is notified that conduct is illegal before he or she can be found guilty of engaging in it. That's exactly what an ex post facto law does -- makes something illegal after the fact and then punished people for engaging in crimes they committed prior to the law. That's prohibited by the Due Process Clause.

So, again, what was the point of having a redundant provision in the Constitution. Makes no sense.

WiseGeek, in your inbox

Our latest articles, guides, and more, delivered daily.

WiseGeek, in your inbox

Our latest articles, guides, and more, delivered daily.