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Jurists conclude that Hicks' charge is retrospective [and] Advice in the matter of the legality of the charge against David Hicks.
8 March 2007
Jurists Conclude that Hicks’ Charge is Retrospective
The only remaining charge against Australian Guantanamo Bay detainee David Hicks is retrospective, according to expert legal advice released today by the Law Council.
All previous charges against Mr Hicks have been abandoned, leaving only the new charge of ‘providing material support for terrorism’.
Law Council President Tim Bugg said, “The advice, authored by nine of Australia’s leading international law experts, concludes that, without doubt, this offence is not a crime known to the law of war.”
According to the advice, prior to the enactment of the Military Commissions Act last September the offence simply did not exist in its current form. Furthermore, the legal experts are of the view that the domestic US offences, on which the charge is roughly based, had no application to David Hicks in Afghanistan in 2001.
“The disturbing conclusion reached is that, although the charge against David Hicks violates the US Constitution, because Mr Hicks is a non-US citizen held in the legal black hole of Guantanamo, the Constitution may not protect him,” Mr Bugg said.
The advice was authored by Peter Vickery QC, Professor Tim McCormack, the Hon Alastair Nicholson AO RFD QC, Professor Hilary Charlesworth, Gavan Griffith AO QC, Professor Andrew Byrnes, Mr Gideon Boas, Professor Stuart Kaye and Professor Don Rothwell.
“When advice this important from jurists of this calibre is made available to us, we believe it should be shared. The debate should be informed, and we have provided the advice to all Australian MPs” Mr Bugg concluded.
The advice released by the Law Council is available at: www.lawcouncil.asn.au/shared/2435666621.pdf
Link: In the Matter of the Legality of the Charge against David Hicks
Media Contact: Elenore Eriksson, Director Public Affairs - 02 6246 3716/0419 269 855
A D V I C E
In the Matter of the Legality of the Charge against David Hicks
8 March 2007
I. EXECUTIVE SUMMARY
David Hicks, an Australian citizen, was captured in November 2001 near Kondoz, Afghanistan in the closing days of the war between the Taliban government of Afghanistan and the Northern Alliance supported by the United States. He was subsequently confined at Guantanamo Bay (GTMO) where he remains imprisoned.
The US administration has never alleged Hicks engaged in any actual acts of terrorism, nor that he killed any US or Coalition soldier while engaged in fighting at Konduz. Indeed, no specific acts of violence directed at anybody have ever been alleged.
David Hicks was not charged with any offence until 26 August 2004. He was then charged under the former military commission process with 3 offences: conspiracy, attempted murder by an unprivileged belligerent and aiding the enemy.
On 29 June 2006, in the case Hamdan v. Rumsfeld, 1 the United States Supreme Court ruled th at the military commissions were illegal under United States law and the Geneva Conventions. Four justices determ
ined that that the charge of conspiracy was not a war
crime. With the striking down of the military commissions, all of the 2004 charges were also rendered invalid.
A new military commission was established under the Military Commissions Act of 2006 (the MCA), a federal statute which was signed into US law by President Bush on 17
On 3 February 2007, the Prosecutor under the new military commission announced that his office had prepared, but not yet laid, new charges against David Hicks. The drafted charges were attempted murder and providing material support for terrorism, both said to be offences under the MCA.
On 1 March 2007, the Convening Authority to the military commission announced that the draft charge of attempted murder would not be proceeded with. The offence of Attempted Murder in Violation of the Law of War as set out in the draft charge was clearly flawed because it went beyond what was permitted in the MCA and attempted to define a war crime that did not exist. In addition, the facts alleged in support of the charge did not identify anything in the nature of an attempt under the law.
However, David Hicks was formally charged with Providing Material Support for Terrorism pursuant to Section 950v(25) MCA.
1 Hamdan v Rumsfeld, Secretary of Defense 548 U.S. (2006)
For the reasons stated, we conclude and advise that this charge does not constitute a war crime contrary to the Law of War.
Further, the offence of Providing Material Support for Terrorism is clearly retrospective in its application to David Hicks. The suggestion that the offence of Providing Material Support for Terrorism under the MCA is merely a codification of an existing Law of War or an existing domestic law of the United States, and is therefore not a retrospective criminal law, is untenable. This is a recently invented and new war crime created with the passing of the Military Commissions Act of 2006 when President Bush signed it into law in the United States on 17 October 2006.
The US Constitution prohibits retrospective (or ex post facto) criminal laws. Proceeding with a trial of David Hicks on the basis of this charge is also in clear violation of international treaties to which Australia and the United States are parties and contravenes the Australian Criminal Code.
The attempt to apply the section 950v(25) MCA offence to Hicks plainly violates the substance of the guarantee against ex post facto laws in the US Constitution. The provision is therefore unconstitutional and invalid on its face. The only doubt relates to whether Hicks, as a non-citizen held outside the sovereign territory of the United States, has the standing to seek a remedy before the US federal courts for the violation of the principle of non-retrospectivity. Until this question has finally been determined by the US Supreme Court, in practical terms, there is no constitutional obstacle in the United States to applying a retrospective criminal law to David Hicks, although this could not happen legally to any citizen of the United States.
The reasoning which leads to these conclusions is considered in detail in the advice which follows.
II. DETAILED ADVICE
PROVIDING MATERIAL SUPPORT FOR TERRORISM ________________________________________________________________________
The charge against David Hicks is the Crime of Providing Material Support for Terrorism (pursuant to Section 950v(25) of the Manual for Military Commissions). Paragraph 22 of the charge sheet specifies the following:
A. Material Support for Terrorism as a Violation of the Law of War?
The list of elements for the offence of Providing Material Support for Terrorism in Section 950v(25)(b) of the Manual for Military Commissions includes the requirement that the conduct in question ‘took place in the context of and was associated with an armed conflict’. The inclusion of this phrase raises the possibility of an inference that the offence constitutes a violation of the Law of War (why else would the conduct in question need to arise in the context of an armed conflict?).
Notwithstanding this inference, the offence as charged is wholly unknown in the Law of War. Despite decades of attempts to progress an agreed definition of the international crime of terrorism, there is no agreed definition to date.2 Even if there were such agreement, it is unlikely that such agreement would be reached in the context of the Law of War. Instead, it is more likely that any international agreement on the crime would be reached without limitation as to the precise context in which the agreed prohibited conduct occurred. In any case, there is no agreed definition of the international crime of terrorism in the Law of War as it currently stands and so there can be no crime of ‘providing material support for terrorism’ in the Law of War either.
2 See, eg, Jean-Marc Sorel, ‘Some Questions About the Definition of Terrorism and the Fight Against its Financing’ (2003) 14 European Journal of International Law 365; Ben Golder and George Williams, ‘‘What is Terrorism’” Problems of Legal Definition’ (2004) 27 University of New South Wales Law Journal 270.
Accordingly, the offence of ‘material support for terrorism’ included in the Military Commissions Act of 2006 (MCA) is not a codification of any existing Law of War. It is derived solely from the domestic law of the United States. It is a new domestic law, although it appears to be founded upon two pre-existing federal offences found in the US Criminal Code. However, in the opinion of the authors of this advice, the offence contained in the MCA is clearly a retrospective (ex post facto) criminal law.
B. Rationale for Prohibition on Retrospective (Ex Post Facto) Criminal Laws
The rationale behind the prohibition of retrospective criminal laws is that people should not be convicted and sentenced for actions that were not illegal when they were taken without fair warning that the conduct was criminal. A retrospective law is unjust because it deprives people of the knowledge of what behavior will or will not be punished and makes breaches of the criminal law a lottery at the whim of those in power.
As was said by Dicey, the basic tenet of penal jurisprudence is that every citizen is "ruled by the law, and by the law alone". The citizen "may with us be punished for a breach of law, but he can be punished for nothing else". 3
Blackstone referred to Caligula’s methods of prescribing laws by writing them in very small characters and hanging them up on high pillars in order to catch the unwary and said that4
There is still a more unreasonable method than this, which is called the making of laws ex post facto: when after an action (indifferent in itself) is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it. Here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law: he had therefore no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust. All laws should be therefore made to commence in futuro, and be notified before their commencement; which is implied in the term 'prescribed'.
As Deane J. put it in Polyukhovich v The Commonwealth 5 …it is basic to our penal jurisprudence that a person who has disobeyed no relevant law is not guilty of a crime. Of its nature, a crime "is an act committed, or omitted, in violation of a public law, either forbidding or commanding it" (Blackstone, Commentaries, (1830), vol.IV, p 5). It necessarily involves a contravention of a prohibition contained in an existing applicable valid law. And further:
..the whole focus of a criminal trial is the ascertainment of whether it is established that the accused in fact committed a past act which constituted a criminal contravention of
3 Dicey, Introduction to the Study of the Law of the Constitution, (1959, 10th ed.) p 202, cited by Deane J. in Polyukhovich v The Commonwealth (1991) 172 CLR 50, at para. 27 of his judgment.
4 Commentaries, (1830), vol.I, pp 45-46, cited by Deane J. in Polyukhovich v The Commonwealth (1991) 172 CLR 50, at para. 27 of his judgment.
5 Polyukhovich v The Commonwealth (1991) 172 CLR 50, per Deane J. at para. 27 of his judgment.
the requirements of a valid law which was applicable to the act at the time the act was done. It is the determination of that question which lies at the heart of the exclusively judicial function of the adjudgment of criminal guilt.
And as Dawson J said in the same case: “In legislation, judicial decisions and statements of principles, both of municipal and international law, there has emerged a general abhorrence of retroactive criminal law.” And further: All these general objections to retroactively applied criminal liability have their source
in a fundamental notion of justice and fairness. They refer to the desire to ensure that individuals are reasonably free to maintain control of their lives by choosing to avoid conduct which will attract criminal sanction; a choice made impossible if conduct is assessed by rules made in the future. And further:
Prohibition against retroactive laws protects a particular accused against potentially capricious state action. But the principle also represents a protection of a public interest. This is so, first, in the sense that every individual is, by the principle, assured that no future retribution by society can occur except by reference to rules presently known; and secondly, it serves to promote a just society by encouraging a climate of security and humanity.6
C. Constitutional Position in Australia
Retrospective laws, at least at the federal level, are not in general prohibited in Australia. While the courts will, as a matter of statutory construction, normally interpret laws not to have a retrospective effect,7 if retrospectivity is clearly intended by the legislature, the courts are bound to enforce it.
In R. v Kidman8 the High Court upheld the validity of a law deeming past conduct in defrauding the Commonwealth to be criminal and imposing penal consequences. That case concerned the validity of the Crimes Act 1915 (Cth) so far as its provisions were retrospective. Section 2 of that Act added conspiracies to defraud the Commonwealth to the conspiracies which, by s.86 of the Crimes Act 1914 (Cth), were declared to be indictable of
fences. Section 3 of the 1915 Act provided that the Act was deemed to have been in force from
the date of commencement of the 1914 Act. The accused were indicted for conspiracy to defraud the Commonwealth under the retrospective provisions of the 1915 Act. The validity of that Act was upheld. Griffith C.J. acknowledged (at p 432) that an ex post facto law was forbidden by the United States Constitution but pointed out that no question of the validity of such a law could arise in the case of
a legislature of
plenary power. Isaacs J. observed (at pp 442-443): “There is no prohibition in the Australian Constitution against passing ex post facto laws, as there is in the American Constitution ...”
6 Ibid, at paras. 103; 104 & 107 of the judgment of Dawson J. 7 See for example: Polyukhovich v The Commonwealth (1991) 172 CLR 50, per Deane J. at para. 25 of
his judgment. 8 (1915) 20 CLR 425.
The decision in Kidman has frequently been cited in subsequent decisions of the High Court9, although it was criticised by Deane and Gaudron JJ. in Polyukhovich v The Commonwealth, where it was thought that Kidman should be overruled because the exclusive vesting of judicial power of the Commonwealth in Chapter III courts precludes the enactment by the Parliament of an ex post facto criminal law.10
As Gaudron J stated in Polyukhovich: The usurpation of judicial power by a law which declares a person guilty of an offence produces the consequence that the application of that law by a court would involve it in an exercise repugnant to the judicial process. It is repugnant to the judicial process because the determination of guilt or innocence is foreclosed by the law. The only issue is whether the person concerned was a person declared guilty by the law. And all that involves is the determination, as a matter of fact, whether some person is the person, or answers the description (whatever form it takes) of the persons, declared guilty by the Act. It does
not involve, and indeed negates, that which is the essence of judicial power in a criminal proceeding, namely, the determination of guilt or innocence by the application of the law to the facts as found. Accordingly, such a law is invalid as infringing s.71 because it involves the exercise by Parliament of a power which can be exercised only by the courts named or indicated in s.71 and because its application by a court would i
nvolve it in exercising a power repugnant to the judicial process.
In Polyukhovich, Dawson J.11 on the other hand confirmed the traditional view in Kidman that “There is ample authority for the proposition that the Commonwealth Parliament may in the exercise of its legislative powers create retrospective laws, including criminal laws with an ex post facto operation.” The decision of McHugh J was to like effect,12 particularly where he held that:
In my opinion, the enactment of laws having a retrospective operation does not infringe the constitutional guarantee that the judicial power of the Commonwealth can be exercised only by courts established and judges appointed in accordance with Ch III of the Constitution, and by such other courts as are invested with federal jurisdiction.13
Further, the High Court more recently confirmed in the course of argument in the case of Baker v The Queen14 that Federal Parliament does in fact have the power to pass retrospective criminal laws without trespassing on the judicial power referred to in Chapter III of the Commonwealth Constitution.
Thus the position in Australia is that, at least at the federal level and in all States other than Victoria, and with one possible exception, there is no constitutional protection
9 See R. v Snow (1917) 23 CLR 256, at p 265; Ex parte Walsh and Johnson; Re Yates (1925) 37 CLR 36, at pp 86, 124-125; Millner v Raith (1942) 66 CLR 1, at p 9; Australian Communist Party v. The Commonwealth (1951) 83 CLR 1, at p 172; University of Wollongong v Metwally (1984)
158 CLR 447, at pp 461, 484; and Polyukhovich v The Commonwealth (1991) 172 CLR 501. 10 Polyukhovich v The Commonwealth (1991) 172 CLR 501, per Deane J. at para. 45 of his judgment and Gaudron J. at para. 41 of her judgment. 11
Ibid, Dawson J at paras. 20-22. 12 Ibid, McHugh J at para. 21-22. 13
Ibid, per McHugh J. at para. 25. 14  HCA 45 (1 October 2004).
against retrospective legislation, whether criminal or otherwise. The possible exception arises by operation of the judicial power in the Constitution of Australia through Chapter III which vests the judicial power of the Commonwealth exclusively in the Section 71 appointed courts, although practical instances of Parliament usurping judicial power to the necessary degree by passing legislation which in effect involves the exercise of a judicial, rather than a legislative function (for example legislation which punishes specifically designated persons or groups or which determines facts) are likely to be relatively rare.
This may be contrasted with the position in a number of other countries. In Indonesia, for example, the Indonesian Constitutional Court recently ruled to strike down anti-terrorism laws introduced shortly after the Bali bombings of 12 October 2002. This resulted in the conviction of one terror suspect being overturned and a further decision to withdraw charges against another alleged terrorist. In spite of these outcomes being greeted with dismay and even outrage in some quarters in Australia, there is little doubt that the outcome was consistent with the proper application of the Indonesian Constitution and the rule of law. Under the amended Indonesian anti-terrorism legislation, committing or assisting terrorist acts was punishable by death and Section 46 of the law authorised its retrospective application. Article 28I of the Indonesian Constitution, however, prohibited prosecution for a retrospective offence. The Constitution describes this as a "basic human right that may not be diminished under any circumstances at all". In Indonesia the Constitution is the supreme law and a law that conflicts with it is not valid. Retrospective laws are therefore constitutionally invalid under Article 281 and the Indonesian Constitutional Court ruled accordingly.
An example of the operation of the ‘supremacy’ of Federal Parliament in relation to retrospective laws in Australia is provided by the Commonwealth's "bottom of the harbour" tax legislation of the1980’s.15 In 1982 the Commonwealth Parliament passed a number of related Acts, including the Taxation (Unpaid Company Tax) Assessment Act which aimed to recover tax evaded under the “bottom of the harbour schemes” which had been declared illegal. This Act expressly provided for retrospective operation enabling the recovery of tax previously avoided at a time when the schemes had not been declared illegal. In his second reading speech on the 1982 Bill, the then Federal Treasurer, John Howard, acknowledged the retrospective nature of the new legislation but justified this aspect as follows:
Our normal and general reluctance to introduce legislation having any retrospective element has, on this occasion, been tempered by the competing consideration of overall perceptions as to the equity and fairness of our taxation system and the distribution of
the tax burden. 16
15 See: A. Freiberg, ‘Ripples from the Bottom of the Harbour: Some Social Ramifications of Taxation Fraud’ (1988) 12 Criminal Law Journal 136 at 159.
16 Commonwealth, Parliamentary Debates, House of Representatives, 1982, Vol. HR129, p. 1866 (John Howard, Federal Treasurer).
In Victoria The Charter of Human Rights and Responsibilities Act 2006 came into operation on 1 January 2007. The Charter is a set of human rights which receives recognition and defined protection by law.
Government departments and public bodies are required to act
compatibly with human rights as defined in the Charter, and to consider human rights in making decisions, unless to so act would be inconsistent with another statute.
New laws in Victoria are now required to be checked against the Charter. All new laws in Victoria require a Statement of Compatibility to advise Parliament whether a law is compatible with human rights including whether, if it limits human rights, that limitation is reasonable and proportionate. Where limits on the human rights are
reasonable and proportionate, the law will be found to be compatible
with human rights. In circumstances where a law is not compatible with human rights, the Government is expected to explain how and why. In
exceptional circumstances Parliament may provide that an Act has effect despite being incompatible with human rights. From 1 January
2008, the Supreme Court will be empowered to issue a Declaration of Incompatibility requiring the reconsideration of legislation but it does not have the power to strike down legislation. Thus Parliament retains the final authority as to the passing of legislation in Victoria.
Section 27 of the Victorian Charter of The Charter of Human Rights and Responsibilities Act 2006 contains a prohibition against retrospective criminal laws in the following sub-Sections:
(1) A person must not be found guilty of a cri minal offence because of conduct that was not a criminal offence when it was engaged in.
(2) A penalty must not be imposed on any person for a criminal offence that is greater than the penalt y that applied to the offence when it was committed.
(3) If a penalty for an offence is reduced after a person committed the offence but before the person is sentenced for that offence, that person is eligible for the reduced penalty
(4) Nothing in this Section affects the trial or punishment of any person for any act or omission which was a criminal offence under international law at
the time it was done or omitted to be done.
However, section 27 must be read in conjunction with section 7 which
allows for limitations on the rights provided for by the Charter
(including section 27) where those limits are reasonable and
D. International Law Binding on Australia
The legal principle against retrospective criminal laws has been incorporated into international law in treaties to which Australia is a party.
phasizing its importance in the community of nations, the principle is found in Article 11 of the United Nations Universal Declaration of Human Rights.17
Central to the modern international law framework of human rights is the International Covenant on Civil and Political Rights 1966 (the “ICCPR”).18 This treaty gives binding force to the fundamental civil and political rights contained in the Universal Declaration of Human Rights. With 160 States Parties, the Civil and Political Covenant is widely accepted. The United States ratified the ICCPR in 1992 and is therefore bound by its terms.19 Australia is also bound by the Covenant, having ratified the treaty in1980.20
The principle against retrospective criminal offences is re-stated in Article 15 of the ICCPR 1966, where the following is provided:
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.
Article 99 of the 1949 Geneva Convention (III) Relative to the Treatment of Prisoners of War (GC3) which also binds Australia and the United States under international law, contains a similar provision:
No prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the Detaining Power or by International Law, in force at the time the said act was committed.
As Brennan J said in Polyukhovich 21 “In legislation, judicial decisions and statements of principles, both of municipal and international law, there has emerged a general abhorrence of retroactive criminal law.”
17 GA Res 217A, 3 U.N. GAOR, U.N. Doc. A/810 (“Universal Declaration”), agreed at the United Nations General Assembly on 10 December1948.
18 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
19 Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 with entry into force 23 March 1976. The ICCPR was ratified by the United State on 8 September 1992.
20 The ICCPR was ratified by Australia on 13 August 1980 (Australian Treaty Series  ATS 23). 21 Polyukhovich v The Commonwealth (1991) 172 CLR 501, Brennan J at para. 48.
The principle is also enshrined in several national constitutions, and a number of international instruments, as for example in Article 28I of the Indonesian Constitution and in the European Convention on Human Rights 1950.22
E. The Australian Criminal Code
The Rome Statute of the International Criminal Court (the Rome Statute) entered into force on 1 July 2002. It established the International Criminal Court (ICC) and defined war crimes within the jurisdiction of the ICC. Australia signed the treaty in 1998 and ratified it on 1 July 2002 and the treaty entered into force for Australia on 1 September 2002. There are now 104 countries that are bound by the Rome Statue and subject to the jurisdiction of the ICC.
The Australian governm
ent then implemented its obligations under the Rome Statute by incorporating those obligations into domestic law.23 In describing the importance of the introduction of the Rome Statute into Australian law the former Attorney-General Daryl Williams said in July 2002 24 “It was clear after Australia's signature of the Rome Statute in 1998 that ratifying the International Criminal Court Statute was an issue of importance to many members of the community. This is why the Government took such a considered approach to ratification of the ICC Statute and to the development of the domestic legislation implementing Australia's obligations under the Statute in Australian law.”
Following ratification, the Australian Parliament also introduced Division 268 into the Australian Criminal Code thereby incorporating the war crime provisions of the Rome Statute into Australian law and making those war crimes offences under Commonwealth law.25 Division 268 of the Criminal Code creates offences of denying a fair trial to persons protected by the Geneva Conventions. The offences are found in Section 268.31 (a trial of a protected person arising out of an international armed conflict) and Section 268.76 (a trial of a protected person arising out of a conflict which is not of an international character).
David Hicks is clearly a protected person, whether his precise status is that of a presumed prisoner of war under Article 5 of the Third Geneva Convention (GC3) or, consistently with the findings of the US Supreme Court in Hamdan v Rumsfeld, 26 he is otherwise a protected person under Common Article 3 of the Four Geneva Conventions (GC 1-4).
War crimes in the Criminal Code include offences which strike at conducting unfair and irregular trials arising out of an armed conflict. The offences include prohibitions against
22 The Convention for the Protection of Human Rights and Fundamental Freedoms, also known as the European Convention on Human Rights (ECHR), was adopted under the auspices of the Council of Europe in 1950. The Convention also established the European Court of Human Rights, which has its
seat in Strasbourg. 23 International Criminal Court Act 2002 24
Australian Red Cross, International Humanitarian Law Lecture Series, “Future Directions in International Humanitarian Law”, Mallesons Stephen Jaques, July 2002 25 International Criminal Court (Consequential Amendments) Act 2002 26
prosecuting charges in criminal trials against protected persons based on retrospective offences by the specific incorporation of Article 99 of GC3 (section 268.31) and Article 15 of the ICCPR (section 268.76).
F. Prohibition in Constitution of the United States of America
Since 1789 in the United States, the passing of retrospective (or in the US, “ex post facto” or “retroactive”) laws are prohibited by Article I Section 9 (applying to federal law) and Section 10 (applying to state law) o
f the Constitution of the United States of America.
es of the Constitution limit Congress and state legislatures when enacting criminal or penal laws that have a retrospective effect.
At the time the Constitution was adopted, many persons understood the term ex post facto laws to “embrace all retrospective laws, or laws governing or controlling past transactions, whether a civil or a criminal nature”.27
However in the early 1798 case of Calder v Bull28, the Supreme Court determined that the phrase ex post facto as used in the Constitution, applied only to penal and criminal statutes.
When deciding ex post facto cases, the United States Supreme Court has referred repea tedly to its seminal ruling in Calder v Bull. Justice Chase established four categories
of unconstitutional ex post facto laws. In this case the Calders claim ed that a Connecticut
law relating to testamentary dispositions of property under a will was void. The sole issue in the case was whether the law of Connecticut was an ex post facto law and therefore void within the prohibition of the Federal Constitution because it violated Article I, Section 10.
Justice Chase said in his judgment:
The Legislature may enjoin, permit, forbid, and punish; they may declare new crimes; and establish rules of conduct for all its citizens in future cases; they may command what is right, and prohibit what is wrong; but they cannot 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. To maintain that our Federal, or State, Legislature possesses such powers, if they had not been expressly restrained; would, in my opinion, be a political heresy, altogether inadmissible in our free republican governments.
In defining the categories of ex post facto legislation that are prohibited by the US Constitution, Justice Chase said further:
27 3 J. Storey, Commentaries on the Constitution of the United States (Boston: 1833), 1339 cited in Killian and Costello (eds) The Constitution of the United States of America, Analysis and Interpretation, annotation of cases decided by the Supreme Court of the United States to June 29, 1992
28 3 Dall. (3 U.S.) 386 (1798).
I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 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. All these, and similar laws, are manifestly unjust and oppressive.
Cases in the Supreme Court of the United States on ex post facto laws have tended to focus on issues which are not relevant to the present case of Hicks. An issue which often arises when a law is challenged under an ex post facto clause is whether the legislature has actually imposed a penalty for past conduct. For example, in Flemming v Nestor 29 the issue was whether a deported alien’s loss of Social Security benefits was punitive or non-punitive in character and therefore valid. The issue sometimes arises as to whether the effect of the legislation is to actually increase a penalty previously imposed. For example, in Lynce v Mathis30 the question was whether the cancellation of certain penal “credits” for released prisoners violated the ex post facto clause because objective factors demonstrated that the prisoner’s sentence had increased. To similar effect is the case of Weaver v Graham.31 A mere change in the type of penalty will not violate the provisions. If for example a State had imposed a death penalty on an individual, altering the form of capital punishment from death by hanging to death by electrocution would not violate the constitutional prohibition on ex post facto laws.32 Laws that alter rules of criminal procedure but do not affect substantive rights of an accused do not violate the ex post facto clauses, even though the legislative change is made during the trial process.33
The Supreme Court in the modern era has generally used a three pronged analysis, which has its foundation in Calder v Bull, when determining whether the particular application of a law to a defendant violates one of the ex post facto clauses.34 An ex post facto violation involves both a change to substantive laws and the application of the changed law to a particular defendant. The three types of ex post facto violations recognized and regularly applied by the US Supreme Court are: