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The Prohibition of Ex Post Facto Laws

In their effort to “form a more perfect union,” the authors of the United States Constitution wanted to ensure that certain rights would be defended from imposition by the government of the states or the federal government. In order to get a number of states to ratify the Constitution, the Bill of Rights was proposed. In 1791, the Bill of Rights was ratified by the requisite number of states after being largely written and introduced by James Madison. One of the most important provisions of the Constitution is the prohibition of ex post facto laws.

An ex post facto law retroactively makes a past act a crime based on new legal guidelines, or increases the punishment for a past crime. A crime cannot be a crime prior to a law being put on the books, since an individual is unable to adapt his or her conduct to what is legal or illegal if the act becomes a crime only after it has been committed. This creates a problem in that the individual was never given the opportunity not to commit the crime.

A similar problem exists when the legislature raises the associated penalties for a crime after a crime has been committed. When a criminal commits a crime, the crime is committed based on the potential penalty for committing the crime. There is, arguably, a cost benefit analysis conducted by the individual considering a crime. He or she is expected to compare the potential costs of being caught (such as prison time) with the potential benefits of committing the crime. By raising the punishment after the crime has been committed, the legislature has changed the cost/benefit analysis after the criminal has conducted his analysis and concluded that the crime provides a greater benefit.

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