法律英语：24 Ex Post Facto

by Michael W. Flynn
 
First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed¹ to practice in your jurisdiction². Further, I do not intend to create an attorney-client relationship with any listener.   
 
Today’s topic is the ex post facto clause of the Constitution. Kris wrote:
 
Recently, the President has been pushing for Congress to update the FISA law to contain "retroactive liability protection" for the telecommunications companies, but isn't this unconstitutional according to Article I, Section 9 which states that " No bill of attainder or ex post facto Law shall be passed."
 
Very interesting question Kris. The short answer is that the ex post facto clause of the Constitution only prohibits the government from increasing punishment for a something you did in the past, but does not apply to situations where the government decreases punishment.
 
Article I, Section 9, clause 3 of the Constitution, which applies to Congress, provides that “No Bill of Attainder or ex post facto Law shall be passed.” Article I, Section 10, clause 1 similarly prohibits the States from passing ex post facto laws. But what in the world does that phrase mean? As Justice Chase noted³ in 1798, the proscription⁴ against ex post facto laws “necessarily requires some explanation; for, naked and without explanation, it is unintelligible⁵, and means nothing.”  Well said.
 
Ex post facto literally⁶ means “from something done afterward⁷.” Justice Chase noted four categories of ex post facto laws: 1) laws that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action, 2) Laws that aggravate⁸ a crime, or makes it greater than it was when committed, 3) laws that change the punishment, and inflicts⁹ a greater punishment, than the law attached to the crime when it was committed, and 4) laws that alter the legal rules of evidence, and receives less, or different, testimony¹⁰, than the law required at the time of the commission of the offense¹¹, in order to convict the offender¹².
 
So, ex post facto laws are those that make something you did illegal, that was legal at the time you did it. Most modern democratic societies either ban such laws, or look very unfavorably on them because it is fundamentally unfair to punish you for something that was legal at the time you did it. Citizens are entitled to know what they can and cannot do, and the ability to change that after the fact denies citizens due process, and would give the government too much power.
 
It is important to note that this clause only applies to criminal statutes¹⁴. Statutes that do not “punish” are not subject to the Constitution’s prohibition¹⁵ on ex post facto laws. For example, since commitment of persons acquitted¹⁶ of a crime by reason of insanity¹⁷ is imposed, not as punishment, but for the protection of society and of the individual confined, a law so providing is not ex post facto as applied¹⁸ to a case in which the act charged as a crime was committed before the commitment statute¹³ was passed. Similarly, statutes providing for confinement¹⁹ of sexual psychopaths are not criminal statutes, and therefore do not violate the prohibition against ex post facto laws. For the same reason, the ex post facto prohibition is inapplicable to laws providing for the deportation²⁰ or denaturalization of aliens, or for the expatriation of citizens. This last example has engendered²¹ quite a bit of debate, because it means that the government can apply new and harsher deportation rules against immigrants who did something that previously²² would not have resulted in deportation.   
 
With all this in mind, let’s turn to Kris’ question about retroactive liability protection to telecom companies for FISA violations²³. FISA is a federal law that lists the procedures for physical and electronic surveillance. This law has come into play recently with regard to the current administration’s wiretapping activities. While it may be bad policy to allow telecoms to get away with participating in illegal wiretaps, there is one main reason that a law providing for retroactive liability protection does not run afoul of the ex post facto clause. There is nothing unconstitutional about decreasing punishment for something; only increasing punishment. Bush’s aim might be nefarious²⁴. He may wish to shield telecoms that helped him in his intentionally²⁵ illegal wiretapping efforts. His aim might be innocent; he may wish to let telecoms off the hook who were acting²⁶ in what seemed to be a lawful²⁷ manner. Either way, such a shield from liability would not be susceptible²⁸ to an ex post facto challenge because the law would not increase punishment.   
 
Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful Life. Be sure to check out all the excellent Quick and Dirty Tips podcasts at QuickAndDirtyTips.com.
 
You can send questions and comments to........or call them in to the voicemail line at 206-202-4LAW. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.
 
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1 licensed   

adj.得到许可的v.许可，颁发执照(license的过去式和过去分词)

参考例句：

• The new drug has not yet been licensed in the US. 这种新药尚未在美国获得许可。
• Is that gun licensed? 那支枪有持枪执照吗？

2 jurisdiction   

n.司法权，审判权，管辖权，控制权

参考例句：

• It doesn't lie within my jurisdiction to set you free.我无权将你释放。
• Changzhou is under the jurisdiction of Jiangsu Province.常州隶属江苏省。

3 noted   

adj.著名的，知名的

参考例句：

• The local hotel is noted for its good table.当地的那家酒店以餐食精美而著称。
• Jim is noted for arriving late for work.吉姆上班迟到出了名。

4 proscription   

n.禁止，剥夺权利

参考例句：

• Charles Evrémonde, called Darnay, in right of such proscription, absolutely Dead in Law. 根据剥夺法律保护条令，查尔斯-埃佛瑞蒙德，又名达尔内，依法当处以死刑，绝无宽贷。 来自互联网

5 unintelligible   

adj.无法了解的，难解的，莫明其妙的

参考例句：

• If a computer is given unintelligible data, it returns unintelligible results.如果计算机得到的是难以理解的数据，它给出的也将是难以理解的结果。
• The terms were unintelligible to ordinary folk.这些术语一般人是不懂的。

6 literally   

adv.照字面意义，逐字地；确实

参考例句：

• He translated the passage literally.他逐字逐句地翻译这段文字。
• Sometimes she would not sit down till she was literally faint.有时候，她不走到真正要昏厥了，决不肯坐下来。

7 afterward   

adv.后来；以后

参考例句：

• Let's go to the theatre first and eat afterward. 让我们先去看戏，然后吃饭。
• Afterward,the boy became a very famous artist.后来，这男孩成为一个很有名的艺术家。

8 aggravate   

vt.加重(剧)，使恶化；激怒，使恼火

参考例句：

• Threats will only aggravate her.恐吓只能激怒她。
• He would only aggravate the injury by rubbing it.他揉擦伤口只会使伤势加重。

9 inflicts   

把…强加给，使承受，遭受( inflict的第三人称单数 )

参考例句：

• Bullfrog 50 Inflicts poison when your enemy damages you at short range. 牛娃50对近距离攻击你的敌人造成毒伤。
• The U.S. always inflicts its concept of human nature on other nations. 美国总是把自己的人权观念强加于别国。

10 testimony   

n.证词；见证，证明

参考例句：

• The testimony given by him is dubious.他所作的证据是可疑的。
• He was called in to bear testimony to what the police officer said.他被传入为警官所说的话作证。

11 offense   

n.犯规，违法行为；冒犯，得罪

参考例句：

• I hope you will not take any offense at my words. 对我讲的话请别见怪。
• His words gave great offense to everybody present.他的发言冲犯了在场的所有人。

12 offender   

n.冒犯者，违反者，犯罪者

参考例句：

• They all sued out a pardon for an offender.他们请求法院赦免一名罪犯。
• The authorities often know that sex offenders will attack again when they are released.当局一般都知道性犯罪者在获释后往往会再次犯案。

13 statute   

n.成文法，法令，法规；章程，规则，条例

参考例句：

• Protection for the consumer is laid down by statute.保障消费者利益已在法令里作了规定。
• The next section will consider this environmental statute in detail.下一部分将详细论述环境法令的问题。

14 statutes   

成文法( statute的名词复数 )； 法令； 法规； 章程

参考例句：

• The numerous existing statutes are complicated and poorly coordinated. 目前繁多的法令既十分复杂又缺乏快调。 来自英汉非文学 - 环境法 - 环境法
• Each agency is also restricted by the particular statutes governing its activities. 各个机构的行为也受具体法令限制。 来自英汉非文学 - 环境法 - 环境法

15 prohibition   

n.禁止；禁令，禁律

参考例句：

• The prohibition against drunken driving will save many lives.禁止酒后开车将会减少许多死亡事故。
• They voted in favour of the prohibition of smoking in public areas.他们投票赞成禁止在公共场所吸烟。

16 acquitted   

宣判…无罪( acquit的过去式和过去分词 )； 使（自己）作出某种表现

参考例句：

• The jury acquitted him of murder. 陪审团裁决他谋杀罪不成立。
• Five months ago she was acquitted on a shoplifting charge. 五个月前她被宣判未犯入店行窃罪。

17 insanity   

n.疯狂，精神错乱；极端的愚蠢，荒唐

参考例句：

• In his defense he alleged temporary insanity.他伪称一时精神错乱，为自己辩解。
• He remained in his cell,and this visit only increased the belief in his insanity.他依旧还是住在他的地牢里，这次视察只是更加使人相信他是个疯子了。

18 applied   

adj.应用的；v.应用，适用

参考例句：

• She plans to take a course in applied linguistics.她打算学习应用语言学课程。
• This cream is best applied to the face at night.这种乳霜最好晚上擦脸用。

19 confinement   

n.幽禁，拘留，监禁；分娩；限制，局限

参考例句：

• He spent eleven years in solitary confinement.他度过了11年的单独监禁。
• The date for my wife's confinement was approaching closer and closer.妻子分娩的日子越来越近了。

20 deportation   

n.驱逐，放逐

参考例句：

• The government issued a deportation order against the four men.政府发出了对那4名男子的驱逐令。
• Years ago convicted criminals in England could face deportation to Australia.很多年以前，英国已定罪的犯人可能被驱逐到澳大利亚。

21 engendered   

v.产生（某形势或状况），造成，引起( engender的过去式和过去分词 )

参考例句：

• The issue engendered controversy. 这个问题引起了争论。
• The meeting engendered several quarrels. 这次会议发生了几次争吵。 来自《简明英汉词典》

22 previously   

adv.以前，先前（地）

参考例句：

• The bicycle tyre blew out at a previously damaged point.自行车胎在以前损坏过的地方又爆开了。
• Let me digress for a moment and explain what had happened previously.让我岔开一会儿，解释原先发生了什么。

23 violations   

违反( violation的名词复数 )； 冒犯； 违反（行为、事例）； 强奸

参考例句：

• This is one of the commonest traffic violations. 这是常见的违反交通规则之例。
• These violations of the code must cease forthwith. 这些违犯法规的行为必须立即停止。

24 nefarious   

adj.恶毒的，极坏的

参考例句：

• My father believes you all have a nefarious purpose here.我父亲认为你们都有邪恶的目的。
• He was universally feared because of his many nefarious deeds.因为他干了许多罪恶的勾当，所以人人都惧怕他。

25 intentionally   

ad.故意地，有意地

参考例句：

• I didn't say it intentionally. 我是无心说的。
• The local authority ruled that he had made himself intentionally homeless and was therefore not entitled to be rehoused. 当地政府裁定他是有意居无定所，因此没有资格再获得提供住房。

26 acting   

n.演戏，行为，假装；adj.代理的，临时的，演出用的

参考例句：

• Ignore her,she's just acting.别理她，她只是假装的。
• During the seventies,her acting career was in eclipse.在七十年代，她的表演生涯黯然失色。

27 lawful   

adj.法律许可的，守法的，合法的

参考例句：

• It is not lawful to park in front of a hydrant.在消火栓前停车是不合法的。
• We don't recognised him to be the lawful heir.我们不承认他为合法继承人。

28 susceptible   

adj.过敏的，敏感的；易动感情的，易受感动的

参考例句：

• Children are more susceptible than adults.孩子比成人易受感动。
• We are all susceptible to advertising.我们都易受广告的影响。