The Ex Post Facto Clause of the U.S. Constitution prohibits the passage of laws retroactively punishing previously legal activity. It has received limited scholarly attention as one of the document's seemingly less controversial provisions, but in The Ex Post Facto Clause, Wayne Logan shows that it has had a contested jurisprudential history and argues that it can—and should—play a role constraining the punitiveness driving criminal lawmaking today. The book's comprehensive history and analysis of the underexamined clause's untapped potential to check the punitive drives that have besieged American lawmaking is a valuable contribution to literatures on American constitutional and criminal law.
Logan's thesis is corroborated in eight chapters. Chapters 1 through 5 survey the history of ex post facto jurisprudence. Chapter 1 assesses Founding Era debates over the clause's meaning while Chapter 2 details the Court's first ruling related to it in Calder v. Bull (1798). Logan uses these chapters to contend that limiting ex post facto coverage to criminal laws, but not civil laws, was ill-advised and inconsistent with Founding Era intentions while setting the stage for his multifaceted critique of Calder. The third chapter explores the Supreme Court's robust invocation of the clause in the nineteenth century following the Civil War. Logan shows how the Court often invalidated civil laws and statutes retroactively imposing non-carceral sanctions on Confederate sympathizers on ex post facto grounds by interpreting “punishment” broadly. Chapter 4 is an exceptional survey of case law from the late nineteenth century to 1990 tracing how the Court gradually constricted its interpretation of the clause, such as by creating exceptions for “procedural” laws and narrowing what constituted “punishment.” Chapter 5 details the uncritical scrutiny afforded to ex post facto claims by the Court since 1990, especially those involving laws targeting sex offenders for retroactive sanctions through community registration and notification.
Chapters 6 and 7 discuss reform. Chapter 6 critiques the “punishment question” in ex post facto challenges. The test first requires the Court to resolve whether a legislature had punitive intentions when writing the challenged law. If civil rather than punitive intent is found, the petitioners must then provide the “clearest proof” that the law has such punitive effects that it merits ex post facto review anyway. This high bar regularly allows punitive retroactive laws to hide behind a civil designation to survive constitutional scrutiny. Logan proposes an alternative test requiring judges to examine legislative records for a legislature's punitive motivations, interpret what constitutes “punishment” broadly beyond criminal sanctions, and add a “rebuttable presumption that the law is punitive, imposing on the government the burden to negate the presumption,” an idea borrowed from contracts clause jurisprudence (p. 143). In Chapter 7, Logan argues for extending the clause's coverage to civil laws, which he claims comports with Founding Era interpretations and should please constitutional originalists. He also defends expanding the clause's application beyond statutes to actions of executive agencies and other state actors exercising punishment powers. Chapter 8 finishes by evaluating the global spread of ex post facto language in constitutional texts and international human rights declarations.
This is a richly detailed account of an understudied constitutional clause that presents an innovative argument for its reinvigoration. Logan's work directly contributes to legal and historical scholarship on American constitutional and criminal law, but political scientists, sociologists, and criminologists interested in criminal justice reform will be interested in his prescription to use the provision to check punitive lawmaking. Many laws with retroactive impacts on the lives of convicted individuals—including those mandating sex offender registration and notification or prohibiting convicted felons from certain occupations, among others—do not receive ex post facto coverage under current doctrine. Logan's case for a new approach is fresh and valuable.
As with any book, some points merited elaboration. For one, the text's historical organization is well-explained, but scholarship has long acknowledged that the Court's ideological orientation changes over time with the rise of new political coalitions (Reference DahlDahl, 1957). Logan's periodization scheme sometimes glosses over such shifts. For instance, chapter four covers the late nineteenth century to 1990, a timeframe including the conservative Lochner Court, liberal Warren Court, and conservative judiciary that took shape afterward. Logan shows that this century witnessed a gradual narrowing of the Court's ex post facto interpretation, but the persistence of this trajectory across such ideologically diverse judicial regimes is an interesting finding warranting further discussion. It is especially notable that the Warren Court, so frequently protective of defendants' rights, followed this course. Perhaps Logan's arguments complement (Reference StuntzStuntz's 2011) claims that the Warren Court's emphasis on criminal procedure over considerations of substantive justice worked with punitive political currents to legitimize harsh justice, or maybe something distinctive about the clause rendered it immune to the Warren Court's sympathy.
A minor point is that while Logan writes that some of his proposals may appeal to conservative originalists, it would have been helpful to specifically hear his thoughts on his proposals' prospects of adoption given the current Court's conservative supermajority. It may be that the Kavanaugh and Barrett appointments do not feature in the text because they occurred later in the book's research stages, but some brief thoughts more explicitly considering which of his ideas are most likely to be rejected or accepted by this current conservative bloc would have been welcome.
These points do not diminish the substantial value of Logan's book to scholarship on constitutional law, legal history, and criminal law. As research grows exploring the problems of American criminal justice, The Ex Post Facto Clause is a noteworthy contribution advancing a novel argument to reinterpret an oft-ignored constitutional tool to constrain punitive lawmaking.
