NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 1: Capital Punishment Handbook: Constitutionality And Other General Considerations

        1.17 Ex Post Facto And Related Due Process Considerations

The constitutional prohibition of ex post facto laws is particularly relevant in death penalty law where state statutes have been rewritten so often. A law is ex post facto when it is retroactively applied and not ameliorative–but rather disadvantageous–to the offender.

In Dobbert v. Florida, 432 U.S. 282 (1977), the Supreme Court held that procedural changes in the law are not ex post facto. Specifically, Dobbert held that a change in Florida’s statute–altering the methods used in determining whether the death penalty is to be imposed but not changing the amount of punishment for the crime–was both procedural and ameliorative and therefore not ex post facto. In contrast, the Fourth Circuit found ex post facto the retroactive application of a statute allowing certain juvenile defendants to be tried as adults because it increased the potential punishment to include the death penalty. United States v. Juvenile Male, 819 F.2d 468  (4th Cir. 1987).

Although the ex post facto prohibition literally applies only to substantive legislation, the Supreme Court has incorporated its principles into the due process clauses of the Fifth and Fourteenth Amendments so that application of procedural changes also may be unconstitutional. Thus, in Coleman v. McCormick, 874 F.2d 1280, 1286–89 (9th Cir. 1989), the Ninth Circuit held that it was unconstitutional to resentence a defendant under a state’s new bifurcated sentencing scheme after the court tried and sentenced the defendant pursuant to a mandatory death penalty statute that was later held unconstitutional. Although the statutory change was procedural, resentencing would violate due process because the defendant was given no notice that the evidence used in the original guilt phase would be used at resentencing.

Dobbert v. Florida, 432 U.S. 282 (1977) (upholding death sentence of inmate who committed crime just before state death penalty statute held unconstitutional but was convicted and sentenced under newly enacted constitutional statute; finding no ex post facto because changes in statute were procedural as well as ameliorative; existence of death penalty statute at time of offense served as “operative fact” that death sentence might be penalty imposed and thus gave sufficient notice to avoid offending ex post facto clause).

Murtishaw v. Woodford, 255 F.3d 926 (9th Cir. 2001) (holding that there was ex post facto violation requiring reversal of death sentence where jury was instructed on 1978 California death penalty statute, rather than the 1977 statute, in effect at time of crime; 1978 statute was more onerous than 1977 statute, which permitted jury discretion to reject death penalty even if it found that aggravating factors outweighed mitigating factors; under 1978 statute, jury did not have this discretion), cert. denied, 535 U.S. 935 (2002).

Vickers v. Stewart, 144 F.3d 613 (9th Cir. 1998) (holding that giving a prisoner the option to choose lethal gas as a method of execution where he had been sentenced before the adoption of lethal injection did not make the death penalty more burdensome and therefore was not an ex post facto violation), cert. denied, 525 U.S. 1073 (1999).  

Hamilton v. Vasquez, 17 F.3d 1149 (9th Cir.) (holding, where defendant’s death sentence reversed by state supreme court decision which state supreme court later overruled, retroactive application of overruling opinion on remand not ex post facto because law applied same as law at time of offense), cert. denied, 512 U.S. 1229 (1994).

Toomey v. Bunnell, 898 F.2d 741 (9th Cir.) (holding change in state criminal procedure, pursuant to state constitutional amendment not ex post facto violation), cert. denied, 498 U.S. 960 (1990).

Coleman v. McCormick, 874 F.2d 1280, 1286–89 (9th Cir.) (holding, although procedural change, resentencing defendant under new bifurcated sentencing scheme, where defendant originally tried under Montana’s mandatory death penalty statute later held unconstitutional, violates due process because no notice that guilt phase evidence would be used at resentencing), cert. denied, 493 U.S. 944 (1989).

Knapp v. Cardwell, 667 F.2d 1253, 1262-63 (9th Cir.) (following Dobbert, holding that since change in Arizona statute was procedural and ameliorative, no ex post facto violation), cert. denied, 459 U.S. 1055 (1982).

United States v. Juvenile Male, 819 F.2d 468 (4th Cir. 1987) (holding retroactive application of statute allowing certain juvenile defendants to be tried as adults, increased potential punishment–including death penalty–ex post facto violation).

Robert Woll, Note, The Death Penalty and Federalism: Eighth Amendment Constraints on the Allocation of State Decisionmaking Power, 35 Stan. L. Rev. 787, 823-26 (1983) (reviewing effects of Dobbert on resentencing defendants to death under newly enacted death penalty statutes, after defendant already tried under unconstitutional statute).