Ex Post Facto Application of Criminal Statutes

The United States and Kentucky Constitutions prevent you from being punished for acts that are done before those acts were criminalized. This is commonly referred to as the prohibition ex post facto punishment. The reason behind this prohibition is that criminal statutes place the life and liberty of a person at risk, so the laws must give fair notice as to what acts can be punished. Whether a conviction is based upon fair notice requires that the court inquire: "Was the offender on notice when the offense was committed that his conduct was prohibited and on notice of the potential penalty?"

Think of it like this: you like to ride your bike on the street. You are arrested for riding your bike on the street. Law passes a month after your arrest that says, ‘you cannot ride a bike on the street.’

It is left to the legislature to decide what acts are criminal and to pass statutes that define the crimes. In Kentucky, the penal code is found in the Kentucky Revised Statutes. These statutes must state what acts are criminalized and what the prescribed punishment range is for violating the statute. Criminal statutes are added or changed with almost each and every legislative session. These changes can include the criminalization of different acts or can include increasing or decreasing the punishment for the acts already prohibited. Due to the ever-changing nature of criminal laws, it is not uncommon for a person to be charged, convicted, or punished in violation of the ex post facto clause.

When a citizen is convicted for an act that occurred before it was criminalized, that is a violation of the ex post facto clause. When a citizen's punishment exceeds the punishment prescribed by the statute in effect at the time, that is a violation of the ex post facto clause. Either of these two situations leads to an illegal sentence that is subject to attack at any time, even if all appeals and collateral attacks have been exhausted. These can be brought through a writ of habeas corpus and through a motion to vacate, alter, or amend. If you think that you have a similar situation, contact us for a free consultation. We can use our experience to help you.


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