“The sentiment that ex post facto laws are against natural right is so strong in the United States, that few, if any, of the State constitutions have failed to proscribe them.”
— Thomas Jefferson
“No State shall *** pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”
— U.S. Constitution, Art. I, Section 10
Imagine that you are contemplating taking some action, but are unsure of whether that action is legal or not. You set out to do some research, or maybe even work for a company that has a legal department to do that research for you. Having completed the research, you determine that the action is legal and move forward.
Several years later, your state legislature amends the law. Your act, which was legal at the time that you undertook it, is now made illegal. And even though you had no criminal intent, and had even checked to make sure that you could legally do what you were doing (at the time you did it), you are now charged with a crime, years later, based on the amended law.
The retroactive application of a criminal amendment is what western law refers to as an “ex post facto” or “after the fact” application of criminal liability. Our Founding Fathers were so concerned about these kinds of laws that Article I, Section 10 of the Constitution is one of the few places where they specifically prohibited the states from criminal enforcement of a law.
The prohibition makes sense. Most of our laws require a mens rea — a mental element that shows that a person acted with some intent. Permitting ex post facto application of criminal laws would allow the state to look back at any action you previously took, criminalize it after the fact, and then punish you for an action that you knew was legal at the time you took it.
The inappropriate after-the-fact application of a criminal law became major news last week when a federal court invalidated the conviction of former Penn State University President Graham Spanier just a day before he was supposed to begin serving his jail sentence.
Spanier was tried in 2012 on a variety of charges related to the Jerry Sandusky sex abuse scandal at Penn St. He was acquitted on most of the charges, but was convicted by the jury on a misdemeanor count of child endangerment for failing to report abuse when he became aware of it. And this is where it gets complicated.
In 1995, Pennsylvania adopted a law making it a crime to fail to report abuse if you are the person responsible for directly supervising the child. The incident with Sandusky was in 2001, and thus the 1995 version of the law would have been in effect. But Spanier wasn’t directly supervising the child, who has never been identified.
In 2007, the Pennsylvania legislature expanded the law, now making it illegal to fail to report alleged abuse if you are the person directly responsible for supervising the child, or if you are the supervisor of the supervisor. This is the version of the law that ensnared Spanier, who was Sandusky’s supervisor. Federal Magistrate Judge Karoline Mehalchick thus found that the 2007 standard was applied to conduct that occurred in 2001, making it an ex post facto application of the amendment.
Spanier can be retried, with the jury clearly instructed on the language of the 1995 law. And Pennsylvania Attorney General Josh Shapiro has said he’ll appeal Mehalchick’s ruling. For now, the jail sentence is invalidated, and the case waits to see what the next steps will be.
While the ruling may seem like “getting off on a technicality,” in reality it goes to the most fundamental basis for criminal liability — a requirement that a person be able to know the legality of their conduct, and that they not be punished absent that knowledge and a sufficient purpose or intention to commit the act. Far from a technicality, this basic right was so important to the drafters of our Constitution that they embodied it in two separate sections — one each applying to the states and to the federal government.