On Straddle Crimes and the Ex Post Facto Clauses

41 Pages Posted: 14 Nov 2010 Last revised: 5 Mar 2015

See all articles by J. Richard Broughton

J. Richard Broughton

University of Detroit Mercy - School of Law

Date Written: November 11, 2010


Straddle crimes – those in which one or more conduct elements of a newly created crime occur prior to the effective date of the law, yet the crime is not complete until afterward – pose a unique problem in American criminal and constitutional law. Yet this problem has escaped scholarly attention. This Article fills that void in the literature by examining the ex post facto implications of straddle offenses and by exploring the possibilities for a new ex post facto approach to true straddle crimes which involve conduct elements that are separated in time and space. Courts have typically approached straddle crimes in this context by holding that no ex post facto problem exists where the crime was completed after enactment (what I call the “completion approach,” for which courts have offered little explanation); or that the underlying crime was a continuing offense; or that the relevant statute applied only prospectively. Finding that the latter two approaches avoid the constitutional problem because they essentially transform a straddling scenario into a non-straddling one, this Article focuses on the completion approach and goes beyond the cases to explain its distinct strengths in the ex post facto context. Still, that approach is subject to question when we consider the virtues of a new, elemental approach, which would consider whether the defendant committed any conduct element of a non-continuing offense prior to the date of enactment. This kind of approach is consistent with the underlying purposes of the ex post facto prohibition and with its historical understanding, recognizing that criminal legislation should commence in the future and not reach backward in time to make prior actions a basis for criminal punishment. Finally, as applied to federal criminal legislation, this new approach could serve as a useful (albeit narrow) auxiliary limit on congressional commerce power.

Keywords: Ex Post Facto Clause, Constitutional Law, Criminal Law, Crime and Punishment, Supreme Court, Commerce Clause

Suggested Citation

Broughton, James Richard, On Straddle Crimes and the Ex Post Facto Clauses (November 11, 2010). George Mason Law Review, Vol. 18, 2011. Available at SSRN: https://ssrn.com/abstract=1707684

James Richard Broughton (Contact Author)

University of Detroit Mercy - School of Law ( email )

651 East Jefferson Avenue
Detroit, MI 48226
United States

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