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I. CONSTITUTIONAL PROVISIONS

“No state shall.. .pass any bill of attainder, ex post
facto law, or law impairing the obligation of contracts..

. .” U.S. Const. art. I, § 10.

“The Legislature shall not pass any bill of attainder,
ex post facto law or law impairing the obligation of
contracts, or depriving a party of any remedy for
enforcing a contract which existed when the contract was
made.” N.J. Const.1947, art. IV, § VII, ¶ 3.

II. STATE CONSTITUTIONAL PROHIBITION

COMPARED WITH FEDERAL CONSTITU-

TIONAL PROHIBITION

The New Jersey ex post facto clause is not construed
more expansively than its federal counterpart. State v.
Kaplan, 178 N.J. Super. 487, 495 (App. Div. 1978).

III. GENERAL DEFINITIONS

Generally, an ex post facto law is one which makes a
prior act that was innocent when committed a crime,
which makes punishment for a crime more burdensome
after its commission, or which deprives a defendant of a
defense available when the act was committed. State v.
T.P.M., 189 N.J. Super. 360, 366 (App. Div. 1983),
citing Dobbert v. Florida, 432 U.S. 228, 292 (1977)
(defining “ex post facto” precisely in those terms).

The ex post facto clause prohibits any law which, in
relation to the past offense or its punitive consequences,
alters the situation of the offender to his disadvantage.
State v. Humanik, 199 N.J. Super. 283 (App. Div. 1985),
certif. denied, 101 N.J. 266 (1985), quoting State v.
T.P.M., 189 N.J. Super. at 366-367. See also State v.
Chapman, 187 N.J. Super. 474, 477 (App. Div. 1982),
and cases cited therein.

IV. PURPOSES OF THE PROHIBITION

The purpose of the prohibition is to secure
substantial personal rights against arbitrary and
oppressive legislation. State v. T.P.M., 189 N.J. Super. at
366, citing Dobbert v. Florida, 432 U.S. at 293, and State
v. Davis, 175 N.J. Super. 130, 147 (App. Div. 1980),
certif. denied, 85 N.J. 136 (1980).

The prohibition’s drafters intended thereby “to

assure that individuals had fair warning of the impact of

legislation and could rely on its meaning.” State v.

T.P.M., 189 N.J. Super. at 366, citing Weaver v. Graham,

450 U.S. 24, 28-29 (1981).

V. APPLYING THE PROHIBITION (GENERAL

PRINCIPLES)

A. Application Limited to Statutes Operating

Retrospectively

“The statute in question must be retrospective,

altering the legal consequences of acts completed before

its effective date.” State v. T.P.M., 189 N.J. Super. at 367,

citing Weaver v. Graham, 450 U.S. at 29.

B. Application Limited to Penal (Criminal) Statutes

The prohibition “applies only to statutes that are by

their nature penal.” Matter of Coruzzi, 95 N.J. 557, 578

(1984). See also In re Garay, 89 N.J. 104, 111 (1982)

(the prohibition “applies only to criminal laws”), and

cases cited therein, including Galvan v. Press, 347 U.S.

522, 531 n.4 (1954). Accordingly, the prohibition

applies only to criminal penalties and not civil penalties.

In re Garay, 89 N.J. at 111-113. United States v. Ward,

448 U.S. 242, 249 (1980), “sets forth the inquiry to be

followed in deciding whether a penalty is criminal or

civil.” In re Garay, 89 N.J. at 112.

Primarily, the determination of whether a penalty is

civil or criminal is a matter of statutory construction.

United States v. Ward, 448 U.S. at 248; In re Garay, 89

N.J. at 112.

Where the legislature has labeled the penalty civil,

that expression of legislative purpose is accorded

substantial weight. Such a penalty will be deemed

criminal only upon “the clearest proof” that the sanction

is punitive either in purpose or effect. United States v.

Ward, 448 U.S. at 248-249; In re Garay, 89 U.S. at 112.

Some of the factors to be examined in determining

whether a sanction is civil or criminal are set forth in

Kennedy v. Mendoza-Martin, 356 U.S. 86, 168-169

(1963). In re Garay, 89 N.J. at 113.

The United States Supreme Court has never rejected

Congress’ designation of a penalty as civil when the

sanction was merely monetary. In re Garay, 89 N.J. at

112.