Symposium: Predators, Porn & the Law: America's Children in the Internet Era: The Disappearing Ex Post Facto Clause: From Substantive Bulwark to Procedural Nuisance

December 2013 National:

Abstract:
The growing enactment of sex offender restrictions has been one of the most notable developments in criminal law in recent decades. Thus far, courts across the country have been relatively complacent in allowing legislatures to test the limits of various civil liberties. The Ex Post Facto Clause has been among the first constitutional victims of these new laws.

Whereas the Clause was once construed as a substantive right protecting citizens against vindictive or arbitrary legislative actions often based upon the hysteria of the moment, it has become a hollow shell of its original form. Because courts have narrowly construed the purpose of the Clause to fair notice, the right underlying the Clause has ceased being substantive and become entirely process based.

The result of this transformation is that the courts have provided a set of sure-fire legislative recipes for extremely punitive criminal statutes to survive challenges based upon the Ex Post Facto Clause. ..Source.. by Corey Rayburn Yung, University of Kansas School of Law