
Contents
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Structural Constitutional Purposes Structural Constitutional Purposes
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Origins of the Punishment Question Origins of the Punishment Question
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Step One: Legislative Intent Step One: Legislative Intent
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Step Two: Analysis of Mendoza-Martinez Factors Step Two: Analysis of Mendoza-Martinez Factors
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Uncertainty Regarding Consideration of “Effects” Uncertainty Regarding Consideration of “Effects”
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“Clearest Proof” Requirement “Clearest Proof” Requirement
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The Punishment Question in State Courts The Punishment Question in State Courts
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Proposed Test Proposed Test
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Summary Summary
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Conclusion Conclusion
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6 Recasting the “Punishment Question”
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Published:December 2022
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Abstract
This chapter focuses on perhaps the most problematic aspect of modern ex post facto doctrine: the “punishment question”—whether a provision is punitive (and hence criminal, as opposed to civil or regulatory) in nature, which since the court’s Calder decision is a sine qua non of an ex post facto challenge. Not only does the limit rest on questionable Framing Era historical evidence, but the modern court’s deferential, highly formalistic analytic framework for deciding whether a sanction qualifies is inconsistent with the framers’ disdain for burdensome retroactive laws and their concern over the “sudden and strong passions” driving their enactment. The chapter offers an alternative framework, tailored to the framers’ sensibilities and the structural constitutional role of the clause, a shift having particular importance today amid the penal populism that continues to affect legislatures and the increasing resort to nonphysical means of punitive restraint and laws of a quasi-criminal nature.
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