When you're wrong and you may not know it...

May 13, 2011 11:57 AM

What is the name for a law/act/legislation that turns, an otherwise law abiding citizen, into a criminal?

I remember seeing this referenced some years ago and it's bothered me that I can't remember it. Searches have proved misguided and frustrating. My google-fu failed to get the TKO.

I'm not sure if it's a latin word or phrases but I'm pretty sure it'd apply to situations such as:

You own a house on 10 foot stilts. The city passes a law that says "Any house on 9 foot tall stilts or higher is illegal." Through no fault (or action? or knowledge? is this key to the definition) of your own you are now in breach of the law.

posted by RolandOfEld to law & government (43 answers total)

Are you thinking of ex post facto?
posted by 0xFCAF at 11:58 AM on May 13, 2011

retroactive?
posted by Paquda at 11:58 AM on May 13, 2011

Paquda has it: retroactive legislation.
Great movie by Costa-Gavras focused on this -- "Special Section." In Vichy France during WW2, the pro-Nazi govt passed retroactive laws against protest. People who had been arrested for posting up anti-Nazi flyers were hauled into court under a new law that made that action -- retroactively -- a capital crime.
posted by LonnieK at 12:01 PM on May 13, 2011

That's ex post facto: Latin for "after the fact."
posted by dfriedman at 12:01 PM on May 13, 2011

Ex post facto looks close but it might not be EXACTLY what I'm looking for. Ex post facto seems more focused on consequences instead of status.

If I'm not mistaken the Ex Post Facto example would be such that:

Your house on 10 foot stilts was fined $1000 for being in breach. The case was closed. Two years later, a law was passed that raised the fine to $2000 for the same offense that you've been prosecuted for. If it's an ex post facto law then you're stuck with a bill for another $1000.

That seems akin to double jeopardy in a way.
posted by RolandOfEld at 12:02 PM on May 13, 2011

Ex post facto can apply to either status or consequences.
posted by decathecting at 12:05 PM on May 13, 2011

Any other takers? Ex post facto may very well be as close as I get, but I really thought my sought-after definition was more of (forgive the ridiculous example):

Anyone who is unemployed is guilty of a class 13 misdemeanor.

Where, being unemployed is not a crime, but all of a sudden is. Therefor, people who are not otherwise criminals are now criminals, with the stroke of a pen.
posted by RolandOfEld at 12:06 PM on May 13, 2011

Lots of definitions out there equate "ex post facto with retroactive." Good enough for me. Prohibited in article 1 of US Constitution.
posted by LonnieK at 12:07 PM on May 13, 2011

Everyone wins! Knew that askme wouldn't take long.
posted by RolandOfEld at 12:08 PM on May 13, 2011

You're just describing weird laws. If having a house with 10 foot stilts is illegal, then you can tear down your house to avoid breaking the law. Nothing ex post facto about it. If being unemployed is illegal, then that's a shitty law, but it's not really retroactive, because you're unemployed in the present when you're being charged.

Ex post facto would be making it illegal to PAY someone to make 10 foot stilts for your house, so then the government charges you with the crime because you had done so in the past, but before the law was enacted. Ex post facto would be making it illegal to leave your job for any reason, and then charging unemployed people who had left their jobs before becoming unemployed.
posted by Sticherbeast at 12:09 PM on May 13, 2011

You may be thinking of the opposite - grandfathering. Many regulations and ordinances, to avoid the prohibition on ex post facto laws and just for the sake of general fairness - yes, it does happen - will exempt current "nonconforming" uses and apply only to new activities.
posted by megatherium at 12:10 PM on May 13, 2011 [1 favorite]

The OP isn't talking about ex post facto laws, exactly. The OP seems to be after something broader, like "criminalization," which is what I would call this sort of thing.
posted by smorange at 12:14 PM on May 13, 2011

Building off of what megatherium and smorange are saying: OP is describing statuses and/or courses of conduct that have become criminalized, as opposed to specific discrete actions. This might be what's creating the illusion that there's anything retroactive about these laws. They're not really retroactive at all, no more than banning heroin possession or the keeping of slaves is retroactive.
posted by Sticherbeast at 12:18 PM on May 13, 2011

It might help to clarify exactly what feature of the law you really want to focus on.

As you've defined it, every criminal law turns an otherwise law-abiding citizen who violates the law into a criminal!

And it doesn't add much to say that the person might not know about the illegality. That's true of every law. In general, you can't defend against a prosecution by claiming you didn't know your actions were against the law.

The essence of your question seems to be the retroactivity (based on your example), and that's been answered. I'd just like to point out that the fact that a law makes an otherwise law-abiding citizen a criminal isn't extraordinary, nor is the fact that you can violate the law without knowing it.
posted by John Cohen at 12:18 PM on May 13, 2011 [1 favorite]

All the examples of ex post facto and retroactive laws here are not, AFAICT, what RolandOfEld is asking for. These examples, and TTBOMK what ex post facto actually refers to, are cases where a person is punished for an action that was legal at the time the action was taken, because it later became illegal. RoE is asking about something else: situations which are illegal at the time, but which the actor doesn't know about because the law changed out from under them. This happens all the time.

I think there's a subtlety in the house-on-stilts example, because the "action" could be seen as the building of the house, but the thing the law prohibits is the existence of the house.

But anyway, I cant think of a more specific term than "criminalization", but IANAL.
posted by hattifattener at 12:20 PM on May 13, 2011

Do you mean strict liability? Or regulatory crimes (for which there's a poorly sourced Wikipedia entry)?

Neither of those has anything to do with retroactivity.
posted by John Cohen at 12:22 PM on May 13, 2011

In the case of your example "Non-compliant" comes to mind.
posted by Gungho at 12:23 PM on May 13, 2011

Maybe the fact this askme SHOULD have focused on (my fault not y'alls) is the fact that the law in question would make an otherwise law abiding citizen into a criminal. Maybe. Perhaps there's a "this is obviously a bad idea" requirement/quirk in there as well but maybe:

Everyone who is Jewish is now a criminal and shall be punished via x, y, and z. (please I don't know the specifics of Nazi legal stuff but this may serve my purpose)

At least in my initial impression of years ago, knowledge of the law's passing had nothing to do with things EXCEPT for the fact that the person doing it would not have been a criminal otherwise [which I suppose fits the criminalization side of things].
posted by RolandOfEld at 12:24 PM on May 13, 2011

Here's a test. Think of an act that is clearly immoral and intentional, like the rape of one's spouse. Take a jurisdiction that used to have no law against "marital rape," but has now changed the law to include this act in the legal definition of "rape." And let's say this applies retroactively; so, a person can be prosecuted for raping their spouse the day before marital rape became a crime in that jurisdiction.

Would this count as the type of law you're thinking about? If not, then your focus isn't really on retroactivity.
posted by John Cohen at 12:27 PM on May 13, 2011

Part of what generated this question might be the fact that we take for granted certain aspects of these kinds of laws. We're used to grandfather clauses, which would say that all 10-foot-stilt houses constructed before the law was enacted are legal. We're used to publicity about the law, which would mean that we would hear about the stilt law before it even takes effect. We're also used to effective dates, which would state that, beginning from such-and-such a date, you can't have a 10-foot-stilt house anymore.

If the government were to enact these kinds of laws without making these sorts of considerations, then you wind up with pretty bizarre, Kafka-esque results.

...

OP, I'm not sure what "otherwise law-abiding" means. If I'm an otherwise law-abiding citizen who murders people, then I'm going to be charged with murder, even though I pay my taxes and keep my house up to code. They're not going to charge me with the laws I didn't break, they're going to charge me with the crime I committed.

If it's against the law to wear a funny hat, then I would be a criminal if I wore a funny hat, even though that's a stupid law. In theory, if there were no checks and balances whatsoever, and if the legislature truly were a flock of idiots, then they could criminalize any number of idiotic things. We take it for granted that they usually don't.
posted by Sticherbeast at 12:29 PM on May 13, 2011

I think there's a subtlety in the house-on-stilts example, because the "action" could be seen as the building of the house, but the thing the law prohibits is the existence of the house.

That distinction doesn't really matter, legally. There doesn't need to be an action for the law to prohibit it. Generally, this isn't true in criminal law because criminal law requires both actus reus (the act) and mens rea (guilty mind). However, something like "possession" qualifies as an "act" for this purpose. So, you can always write laws to get around this distinction. The OP's examples look like they're cases in which mens rea is absent, but you actually would have the requisite mens rea because mens rea is usually defined as (simplified) the intention to do the prohibited act itself. So, for example, the intention to be in possession of the house would qualify. In Criminal Codes, there are "ignorance of the law is no excuse" provisions in every one I'm aware of.
posted by smorange at 12:29 PM on May 13, 2011

Maybe the fact this askme SHOULD have focused on (my fault not y'alls) is the fact that the law in question would make an otherwise law abiding citizen into a criminal.

Again, isn't that true of every law? The only exception would be if there are two laws (say, a federal law and a state law) that prohibit the exact same conduct. But it's normally the case that you would be "otherwise law-abiding" if not for the fact that the action you did is violation of a law.

If I shoot you dead with a pistol, I could say I'm "otherwise law-abiding." Yeah, "otherwise," except that murder! Maybe you think: that's silly, that's obviously not what I'm talking about, because murder is obviously illegal. Or is it that you think murder is obviously immoral? OK, but this is going to open up a million grey areas: is a marijuana seller "otherwise law-abiding"? How about a heroin seller?
posted by John Cohen at 12:32 PM on May 13, 2011

@John : You've made a cogent point. I don't think it does, because I'm thinking more about status/situations/passive actions instead of active choices (which maybe doesn't matter legally, given).

You made me think of this one which I THINK fits pretty damn close.

Bob plants a tree that grows into a huge oak. The city then passes a law that says having huge oaks is illegal. That law is a ___ law. Punishment is doled out based upon the status of things the instant the law changed. Bob did nothing, nor could do anything. He became a criminal, having committed (legally i may be wrong using that word) zero crimes.
posted by RolandOfEld at 12:32 PM on May 13, 2011

Having a huge oak tree was a criminal act. He committed the crime of having a huge oak tree. That's not a retroactive law.

Think about it this way. One day heroin was legal to possess, the next day it wasn't. Aren't I a criminal if I want to possess my heroin after it's illegal?
posted by Sticherbeast at 12:35 PM on May 13, 2011

I'm guessing I'm either way off base or looking for a non-existent word if minds like these haven't already come up with something. Ex post facto is probably it.
posted by RolandOfEld at 12:36 PM on May 13, 2011

This is one of those times where I wish mefi had an option to reddit style reply to individual comments, this got kinda muddy faster than I would have liked.
posted by RolandOfEld at 12:39 PM on May 13, 2011

He became a criminal, having committed (legally i may be wrong using that word) zero crimes.

Well, no, he committed a crime. He possessed an oak that violates a criminal statute.

I mean, let's say your country has no law against marijuana right now. And let's say your currently keeping a bag of marijuana in your house. Then, tomorrow, a law is enacted making it a crime to possess marijuana. Would that count as what you're talking about? You didn't actively do anything at the very moment the law was enacted. But you did do something: you brought marijuana into your house (similar to planting the tree). And so you committed a crime. What were you supposed to do? Well, throw out the marijuana before it became illegal! Which might be a little hard on you, but you could do it. And you should do it, since citizens are generally held responsible for knowing the law. Same thing with the oak. You should be sufficiently aware of the law to realize it's become a crime, and you should chop down that tree or hire someone to do it.

On preview, what Sticherbeast said!
posted by John Cohen at 12:39 PM on May 13, 2011

Ex post facto would be if the law had made it illegal to plant an oak tree, so then he was charged with that crime by dint of having an oak tree that he had planted before the law was enacted.

(Or: if the law just stated outright, "it is illegal to have planted an oak tree in your life, even before this law was enacted.")
posted by Sticherbeast at 12:40 PM on May 13, 2011

(your --> you're)
posted by John Cohen at 12:40 PM on May 13, 2011

OP, you might find it interesting to read a good hornbook on criminal law. It's an interesting subject and this question is actually about some deceptively complicated points.
posted by Sticherbeast at 12:42 PM on May 13, 2011

Is there a term for the situation of being pressed into an unlawful situation regardless? I.e. the whole 'instant' implementation, no warning, no leeway effects. Given that that may be unreasonable, you've humored this thread this far.

Offshoot: is there a word for being law abiding (or perhaps moral) but violating a law/tenant for certain reasons?

@Sticherbeast: I noticed, especially the footnotes about act and guilty mind. It sounds like this is where legal studies begin approaching philosophy or morality, very cool.
posted by RolandOfEld at 12:44 PM on May 13, 2011

Here's another example: Let's say I run a factory, which is constantly, automatically, spewing a steady stream of pollutants into the air. Tomorrow, the legislature enacts a criminal statute making it a crime to spew a certain quantity of those pollutants into the air. I'm spewing more than the minimum. But it was years ago that I set up a machine in my factory to make this happen automatically, 24/7. I might be in a coma tomorrow, and I'd be in violation! But I've still committed a crime, because the legislature has decided that this is so harmful to society that it should be illegal.
posted by John Cohen at 12:45 PM on May 13, 2011

Offshoot: is there a word for being law abiding (or perhaps moral) but violating a law/tenant for certain reasons?

First, the word you're looking for is "tenet," not "tenant."

I'm not completely clear on the question. What do you mean by "for certain reasons?" People who disobey laws because of a belief that those laws are unjust are engaged in civil disobedience. People who disobey laws as a political statement or in hopes of undermining the government may be engaged in direct action. People who violate the law without intent to do so may lack mens rea, which is an element of a crime.

Can you clarify your question so that we might be able to figure out what you're asking about?
posted by decathecting at 12:56 PM on May 13, 2011

Offshoot: is there a word for being law abiding (or perhaps moral) but violating a law/tenant for certain reasons?

Yes. "Justification" and "excuse." They're different things for different situations.
posted by smorange at 1:02 PM on May 13, 2011

People who violate the law without intent to do so may lack mens rea, which is an element of a crime.

Clarification for the OP: strict liability crimes (like "having an oak tree") do not have mens rea as an element.
posted by Sticherbeast at 1:12 PM on May 13, 2011

This may be an example. When I turned 18, it was legal for me to drink alcohol (and the bartender gave me my first legal drink for free!!). Less than three years after that, the drinking age was raised to 21 so what had been entirely legal for me to do suddenly became illegal.
posted by ambient2 at 1:36 PM on May 13, 2011 [1 favorite]

The other phrase you may be looking for is "Bill of Attainder," but at this point the questions and answers have gotten muddy enough that it's hard to tell any more.
posted by willbaude at 1:46 PM on May 13, 2011

Is there a term for the situation of being pressed into an unlawful situation regardless? I.e. the whole 'instant' implementation, no warning, no leeway effects.

I suspect what you're getting at is a bill of attainder^. The word "attainder" itself is ME for "stained" or "tainted". The general thrust of the US Constitution's prohibition is about laws specifically defining individuals or groups to be tainted, but more generally it is about types of ex post facto lawmaking.
posted by dhartung at 1:50 PM on May 13, 2011

It is indeed muddy, but I am going to jump in once more: The law recognizes a distinction between things malum in se (bad of themselves), such as rape and murder, and malum prohibitum. The latter cover things that are bad only because the law says that they are bad - such as selling marijuana.
posted by megatherium at 1:52 PM on May 13, 2011 [1 favorite]

Is this about things that become illegal and your previous actions you can't change? Like, it's illegal to have had French lessons ever, even though you can't do anything about the (now illegal) French lessons you already had.

Or about things that were acceptable and legal but now are illegal. Like drinking beer during the prohibition. Illegal, but 'everyone' does it.
posted by plonkee at 2:28 PM on May 13, 2011

Like, it's illegal to have had French lessons ever, even though you can't do anything about the (now illegal) French lessons you already had.

That's an ex post facto law. The "have had...ever" phrase gives it away.

Or about things that were acceptable and legal but now are illegal. Like drinking beer during the prohibition. Illegal, but 'everyone' does it.

They're still illegal, even if they're not often enforced. Adultery is technically a misdemeanor in NY, but I couldn't tell you when the last successful prosecution of that was.
posted by Sticherbeast at 2:42 PM on May 13, 2011

OP, you seem interested in status-based crimes--laws that criminalize a status, rather than an act or omission. The Supreme Court considerered one such law in 1962 in Robinson v. California, which considered a law that essentially made it illegal to be a drug addict--not just to use drugs, but to be an addict. Worth a read.
posted by jgfoot at 7:48 PM on May 13, 2011

Entrapment?
posted by tgov27 at 2:47 AM on May 16, 2011