punishment attached to the crime. The new statute
provided capital defendants with more rather than less
judicial protection than was afforded under the old
statute. Hence, there was no ex post facto violation.
General Rule: If a superceding statute changes the
procedures by which a death penalty may be imposed,
the defendant is precluded from challenging the statute
as being ex post facto unless the procedure prescribed by
the new statute is more onerous than that prescribed by
the superceded statute. Dobbert v. Florida, 432 U.S. at
294.
State v. Erazo, 126 N.J. 112 (1991). Defendant,
convicted of capital murder, claimed that a capital
murder statute permitting the jury’s consideration of
prior murder in sentencing violated the ex post facto
clause. Held: This was not an ex post facto law, because
the prior murder was admissible to enable the jury to
determine the appropriate sentence for charged murder,
not to punish defendant for the prior murder.
State v. Muhammad, 145 N.J. 23 (1996). Defendant
was charged with the kidnapping, rape, and murder of
a child. He claimed that the victim impact statute,
N.J.S.A. 2C:11-3c(6), violated the ex post fact clause,
because it may lessen the weight that a jury attaches to his
catch-all mitigating factor. Held: There was no such
violation because the statute does not criminalize
behavior that was previously lawful, and does not make
punishment for a crime more burdensome after its
commission. The fact that the statute works to
defendant’s disadvantage does not constitute an ex post
facto violation. The statute only modifies the scope of
evidence that may be admitted during the penalty phase
of a capital case and does not alter any substantive rights
of defendant.
H. Megan’s Law
Doe v. Poritz, 142 N.J. 1 (1995). Petitioner, a
convicted repeat sex offender, argued that the
Registration and Community Notification Laws violated
the ex post facto clause. Held: The statute can fairly be
characterized as remedial, both in its purpose and
implementing provisions. Such a law does not become
punitive simply because its impact, in part, may be
punitive, unless the only explanation for that impact is a
punitive purpose. Accord, State in the Interest of B.G., 289
N.J. Super. 361 (App. Div. 1996).
E.B. v. Verniero, 199 F.3d 1077 (3d Cir. 1996);
Artway v. New Jersey, 81 F.3d 1235, reh’g denied, 83 F.3d
594 (3d Cir. 1996).The application of the community notification
provisions of Megan’s Law do not constitute punishment
for the purposes of the ex post facto clause, because the
Legislature’s purpose was not punitive and because
notification was not intended as punishment.
Furthermore, the effects of notification on sex offenders’
reputational interests and safety are not unduly
burdensome when evaluated in light of the State’s
interest in protecting the public.I. Plea BargainingState v. Reyes, 325 N.J. Super. 166 (App. Div. 1999).
Petitioner argued that the application of the Attorney
General Interim Guidelines, governing plea offers in
Comprehensive Drug Reform Act (CDRA) cases, to his
sentence for offenses committed prior to the
promulgation of the guidelines, violated the ex post facto
clause. Held: The Attorney General promulgated
guidelines as part of his delegated power; these guidelines
represented the executive branch’s interpretation of
legislative purpose of CDRA, and this interpretive
function was not a promulgation of a “law” within the
meaning of ex post facto.... A mere change in
enforcement methods, priorities, or policies, does not
activate the prohibition against ex post facto laws. See also
State v. Jimenez, 266 N.J. Super. 560 (App. Div. 1993).