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The ex post facto clause is a section of the U.S. Constitution which prohibits the federal or state governments from creating ex post facto laws, which are laws that would retroactively declare an act to be a criminal after the act had already been committed (Logan, 1998). The ex post facto clause limits criminal law in that all criminal laws must be pre-established and they must be vague enough to not prevent certain crimes from being excluded but the laws must also be specific enough that the average citizen has a clear understanding of what is covered under the law.

Ex post facto laws are banned under the constitution. However, laws that are written after events that have taken place can still impact the offender if the laws are not punitive in nature. For example, a state which didn’t have sex offender registration requirements can mandate that all individuals convicted of sex crimes must register. This is not an ex post facto law because sex offender names are already available as public records and the purpose of the registry is not to punish the individuals (Gardner & Anderson, 2018).

Prohibiting ex post facto laws could have potential benefits such as giving judges the discretion to be able to punish things which are clearly morally and ethically wrong but do not yet have official laws banning such behavior. An example would be early cyber-criminals getting away with technical crimes because of the early gaps in cyber laws. Another benefit of ex post facto laws would be increasing the sentence past the maximum sentence guidelines for a particularly heinous crime; though, it is notable that a court can sentence someone below the minimum sentencing guideline without violating the ex post facto clause (Harvard Law Review, 2011). The cons of ex post facto laws are that courts can be given too much power and can essentially create the law as they see fit, it deteriorates the balance of power between branches, citizens can be punished for things which were not laws when they committed their actions, and because such laws could be seen to degrade the impartiality of the law.

Limiting criminal law in accordance with the ex post facto clause is in accordance with a biblical worldview because it provides left and right lateral limits for citizens to conduct themselves appropriately without creating additional rules and punishments after actions have already taken place. Imagine the frustration if Christian churches taught that the actions which are sanctioned today can be declared as sins tomorrow. Hebrews 13:8 teaches, “Jesus Christ is the same yesterday and today and forever” (KJV).

References:

Gardner, T.J. & Anderson, T.M. (2018). “Criminal Law”. 13. Retrieved May 19, 2020 via Cengage

Harvard Law Review. (2011). Violation of ex post facto clause using sentencing guidelines. Harvard Law Review, 124(8), 2091

Logan, W. A. (1998). The ex post facto clause and the jurisprudence of punishment. American Criminal Law Review, 35(4), 1261.

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