Ex post facto laws

• Currency: Current through 11/8/2022 Election
• Citation: Colo. Const. art. II § 11

No ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges, franchises or immunities, shall be passed by the general assembly.

Cite as Colo. Const. art. II § 11

Source:

Entire article added, effective August 1, 1876, see L. 1877, p. 30.

ANNOTATION

I. GENERAL CONSIDERATION.

Law reviews. For article, "The Case for Billboard Control: Precedent and Prediction", see 36 Dicta 461 (1959). For article, "Constitutional Law", which discusses Tenth Circuit decisions dealing with retroactive legislation under due process clause, see 63 Den. U. L. Rev. 247 (1986). For article, "The DeWitt Test: Determining the Retroactivity of New Civil Legislation in Colorado", see 40 Colo. Law. 73 (July 2011).

Applied in McNichols v. Walton, 120 Colo. 269, 208 P.2d 1156 (1949); Jackson v. Colo., 294 F. Supp. 1065 (D. Colo. 1968); Wasson v. Hogenson, 196 Colo. 183, 583 P.2d 914 (1978); McClanahan v. Am. Gilsonite Co., 494 F. Supp. 1334 (D. Colo. 1980); Denver Urban Renewal Auth. v. Byrne, 618 P.2d 1374 (Colo. 1980); First Lutheran Mission v. Dept. of Rev., 44 Colo. App. 417, 613 P.2d 351 (1980); Sutphin v. Mourning, 642 P.2d 34 (Colo. App. 1981); Thirteenth St. Corp. v. A-1 Plumbing & Heating Co., 640 P.2d 1130 (Colo. 1982); Bellendir v. Kezer, 648 P.2d 645 (Colo. 1982); Kirby of Se. Denver, Inc. v. Indus. Comm'n, 732 P.2d 1232 (Colo. App. 1986).

II. EX POST FACTO LAWS.

Definition. Ex post facto laws are defined variously as: Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action; every law that aggravates a crime, or makes it greater than it was, when committed; every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed; 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 offense, in order to convict the offender. Myers v. District Court, 184 Colo. 81, 518 P.2d 836 (1974).

Implication of term "ex post facto". The term "ex post facto" necessarily implies a fact or act done, after which the law in question is passed. French v. Deane, 19 Colo. 504, 36 P. 609, 24 L.R.A. 387 (1894).

Ex post facto legislation is abhorred in criminal law because it stigmatizes with criminality an act entirely innocent when committed. Police Pension & Relief Bd. v. McPhail, 139 Colo. 330, 338 P.2d 694 (1959).

This section applies solely to statutes which take away or impair a vested right. The provisions of this section prohibiting the passage of laws retrospective in operation apply solely to statutes which take away or impair a vested right acquired under existing laws, or which create a new obligation, impose a new duty, or attach a new disability in respect to transactions already passed. Vail v. Denver Bldg. & Constr. Trades Council, 108 Colo. 206, 115 P.2d 389 (1941); Peoples Natural Gas Div. v. Pub. Utils. Comm'n, 197 Colo. 152, 590 P.2d 960 (1979); Gambler's Express v. Pub. Utils. Comm'n, 868 P.2d 405 (Colo. 1994).

Neither an affirmative enactment nor a repealing statute can be so construed under the state constitution as to retroact upon and impair or take away accrued rights, which by the authority of law, and in the manner pointed out by it, had been previously asserted. And especially is this true when such rights have been carried into judgment. Denver S. P. & P. R. R. v. Woodward, 4 Colo. 162 (1878).

And is aimed only at criminal cases. The prohibition against ex post facto laws is aimed at criminal cases, but it cannot be evaded by giving a civil form to that which in its nature is criminal. French v. Deane, 19 Colo. 504, 36 P. 609 (1894).

The phrase "ex post facto" applies only to criminal cases. French v. Deane, 19 Colo. 504, 36 P. 609 (1894); Wood v. Beatrice Foods Co., 813 P.2d 821 (Colo. App. 1991).

The phrase "ex post facto", as used in the constitution of the United States and this section, does not apply to civil laws. Such laws only are ex post facto as provide for the punishment of a party for acts antecedently done which were not punishable at all, or not punishable to the extent or in the manner prescribed. Denver S. P. & P. R. R. v. Woodward, 4 Colo. 162 (1878).

Two critical elements must be present for a criminal statute to be stricken down as an ex post facto law: It must be retrospective, and it must disadvantage the offender affected by it. People v. Billips, 652 P.2d 1060 (Colo. 1982).

Section 18-1.4-102 (8) violates prohibition on ex post facto laws. Allowing the supreme court to remand cases back for new penalty proceedings violates the ex post facto clause. Subjecting a defendant, sentenced under an unconstitutional death penalty statute, to a new penalty hearing in front of a jury is ex post facto because of the statutory dictate of a life sentence in § 18-1.3-401(5) and because the defendants in these cases were identifiable targets of the legislation. People v. Woldt, 64 P.3d 256 (Colo. 2003).

Statute is not ex post facto where it does not enlarge the punishment to which the accused was liable when his crime was committed, nor make any act involved in his offense criminal that was not criminal at the time he committed the crime for which he was found guilty. People v. Bastardo, 646 P.2d 382 (Colo. 1982).

An inmate does not have a vested right in earned time, so the inmate's punishment is not increased by withholding earned time from the inmate for not participating in sex offender treatment. Reeves v. Colo. Dept. of Corr., 155 P.3d 648 (Colo. App. 2007).

Section 18-3-405(2)(c) was possibly applied ex post facto, therefore, enhancement portion of conviction is reversed where several assaults occurred before this law was enacted, the verdict could have been based on an act that preceded the law's enactment, and the jury was not instructed that the conviction had to be based on an act that occurred after the law's passage. People v. Graham, 876 P.2d 68 (Colo. App. 1994).

Statutory provision tolling the expiration of parole upon the filing of a parole violation complaint does not violate prohibition against ex post facto laws. Goetz v. Gunter, 830 P.2d 1154 (Colo. App. 1992).

The ex post facto clause of the Colorado Constitution operates primarily to prohibit the retroactive application of legislative changes which make previously lawful behavior a criminal offense or which enhance criminal penalties and, by its own terms, said clause does not apply to the judicial branch of the government. The Colorado supreme court's amendment of C.R.C.P. 24(f), which previously required jurors in a capital case to be sequestered, allowed the trial court to determine in its discretion whether to sequester the jurors in a criminal trial and such amendment did not violate the defendant's constitutional rights. People v. Benney, 757 P.2d 1078 (Colo. App. 1987); People v. Graham, 876 P.2d 68 (Colo. App. 1994).

Time at which offense committed governs ex post facto character of law. Whether a law is ex post facto or not relates, in criminal cases, to the time at which the offense charged was committed. If the law complained of was passed before the commission of the act with which the prisoner is charged, it cannot, as to that offense, be an ex post facto law. If passed after the commission of the offense, it is as to that ex post facto, though whether of the class forbidden by the constitution may depend on other matters. French v. Deane, 19 Colo. 504, 36 P. 609 (1894); Zaragoza v. Dept. of Rev., 702 P.2d 274 (Colo. 1985).

So far as the ex post facto character of a law depends on the time of its enactment, it has reference solely to the date at which the offense was committed to which the new law is sought to be applied. No other time or transaction but this has been in any adjudged case held to govern its ex post facto character. French v. Deane, 19 Colo. 504, 36 P. 609 (1894).

A statute is not rendered unconstitutional as an ex post facto law merely because it might operate on a fact or status preexisting the effective date of the legislation, as long as its punitive features apply only to acts committed after the statutory proscription becomes effective. People v. Billips, 652 P.2d 1060 (Colo. 1982); Gasper v. Gunter, 851 P.2d 912 (Colo. 1993); People v. Graham, 876 P.2d 68 (Colo. App. 1994); Coal. for Equal Rights v. Owens, 458 F. Supp. 2d 1251 (D. Colo. 2006), aff'd on other grounds sub nom. Coal. for Equal Rights, Inc. v. Ritter, 517 F.3d 1195 (10th Cir. 2008).

When defendant pleads guilty and the factual basis provided that defendant committed the acts both during a time period before and after a statute is effective, the defendant cannot claim an ex post facto violation. People v. Bobrik, 87 P.3d 865 (Colo. App. 2003).

This section operates, as to pending causes under a statute, as a saving clause incorporated into the repealing statute. Lundin v. Kansas P. R. R., 4 Colo. 433 (1878); Denver S. P. & P. R. R. v. Woodward, 4 Colo. 162 (1878).

The ex post facto clause is violated when a statute punishes as a crime conduct which was innocent when done, makes more onerous the punishment for a crime after its commission, or deprives a defendant of a defense that was available at the time the crime was committed. People v. District Court (Thomas), 834 P.2d 181 (Colo. 1992); People v. Aguayo, 840 P.2d 336 (Colo. 1992); People v. Bielecki, 964 P.2d 598 (Colo. App. 1998).

The test for determining whether a criminal law is ex post facto is twofold. First, it must be retrospective, that is, it must apply to events occurring before its enactment. Second, it must disadvantage the offender affected by it. In re R.B., 815 P.2d 999 (Colo. App. 1991); People v. Stewart, 926 P.2d 105 (Colo. App. 1996); People v. Bielecki, 964 P.2d 598 (Colo. App. 1998).

An ex post facto law is one which imposes punishment for an act which was not a crime when it was committed or which imposes additional punishment upon acts then proscribed. People v. Grenemyer, 827 P.2d 603 (Colo. App. 1992).