Civil or Criminal? Deciding Whether a Law May Be Applied Retrospectively Yet Constitutionally in Missouri

By Guntli, Timothy M. | Missouri Law Review, Winter 2015 | Go to article overview

Civil or Criminal? Deciding Whether a Law May Be Applied Retrospectively Yet Constitutionally in Missouri


Guntli, Timothy M., Missouri Law Review


State v. Wade, 421 S.W.3d 429 (Mo. 2013) (en banc).

I. INTRODUCTION

Although the U.S. Constitution and the constitutions of every state ban ex post facto laws, only Missouri and a minority of other states prohibit enactment of laws retrospective in their operation. (1) Understanding the difference between the two types of laws can be difficult at first glance. According to the Supreme Court of Missouri, an ex post facto law is one that "provides for punishment for an act that was not punishable when it was committed or that imposes an additional punishment to that in effect at the time the act was committed." (2) In comparison, a law retrospective in its operation is "one which creates a new obligation, imposes a new duty, or attaches a new disability with respect to transactions or considerations already past. It must give to something already done a different effect from that which it had when the act transpired." (3)

An example should help to clarify the difference. Suppose that a defendant was convicted of a felony in the year 2002, at which time the state had not enacted a statute prohibiting convicted felons from possessing firearms. (4) Suppose further that the state enacts such a statute in 2004, two years after the defendant's conviction, and charges the defendant with violating the statute in 2005. Such a statute would not be an ex post facto law because it would not actually punish the conduct leading to the defendant's original conviction that occurred before the firearm statute's enactment. Rather, the statute would punish the defendant's possession of a firearm, which occurred after enactment of the statute. (5) However, the statute would be a retrospective law because it would impose a new disability (i.e., a prohibition on firearm possession) upon the defendant due to his past felony conviction.

Although ex post facto laws and retrospective laws are similar concepts, the distinction can have an important impact on any given case in Missouri because the state constitution's ban on retrospectively operational laws applies only to civil--and not criminal--laws. (6) Thus, a party challenging a law as unconstitutional due to retrospective operation must first show that the law is civil in nature. (7) The distinction between criminal and civil laws is obvious in some cases, but the line can become quite blurry in the context of sex offender registration and restriction statutes. (8)

Although the Supreme Court of Missouri recognized the difference between ex post facto laws and retrospectively operative laws long ago, the advent of sex offender statutes and their unique pseudo-criminal characteristics have challenged the court to delineate and apply criteria for deciding whether a particular provision is civil and, therefore, subject to the prohibition of retrospective laws. (9) Even though the Supreme Court of the United States provided substantial aid for this task with its decision in Smith v. Doe in 2003, (10) the application of Smith's, standard still leaves plenty of room for reasonable minds to disagree, as recently demonstrated by a divided Supreme Court of Missouri in State v. Wade. (11)

This Note begins by discussing the facts and holding of Wade. (12) Next, this Note examines generally the legal background and history of bans on ex post facto laws and on laws retrospective in their operation in Missouri. (13) Then, this Note explains recent precedent regarding such bans, particularly in the context of sex offender registration statutes. (14) After the discussion of precedent, this Note explores the analyses of the majority, concurring, and dissenting opinions in Wade. (15) Finally, this Note concludes with a critique of these analyses in the instant decision and contemplates the future effects of the court's decision. (16)

II. FACTS AND HOLDING

This appeal arose from three consolidated cases of different defendants: Michael Wade, Jason Reece Peterson, and Edwin Carey. …

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