Ex Post Facto

Sometimes we want to change the rules in the middle of the game. When we do this, the question of unfairness comes into play. As a law student I discussed this phenomenon with my classmates and professors in the context of ex post facto laws. When a person commits an act that lawmakers believe should have been criminal they will then pass a law to make it so. Today, lawmakers try to stay up with drug creators so that distribution of dangerous substances can be punished, but unscrupulous and greedy manufacturers work to create products that lie outside of the current law.

Tragedies strike and calls for another law, or perhaps stiffer penalties to existing laws, swell from the populace in a search for fairness. In one case, a terrorist was convicted in Spain for so many attacks that she received a sentence that theoretically would endure 3,828 years. She was part of ETA, a violent Basque separatist movement.  Spanish law did not allow anyone to actually serve such a sentence so she was eligible for parole in 2008. However, the Spanish government created a new law, specifically for ETA prisoners, making her ineligible for release until 2017. She appealed this law and the European Court of Human Rights agreed that the law was invalid and ordered her release.

While I listened to the debate and understood the arguments and reasoning, this case carried an unnerving personal meaning. I was sitting on my bed in my basement apartment in Madrid, reading and planning for the appointments for the day. I had not yet showered, but I was wearing my shoes because I had stepped out to buy bread, yogurt and some milk. I had just settled in to my planning when the windows of the apartment blew open and a reverberating bang bellowed through the apartment. Three roommates and I rushed to the living room and looked out into the street. We could see nothing; there was no storm, no accident and seemingly no explanation for what had just occurred.

With the windows open we began to hear shouts as some people ran into the streets while others closed up their windows. I was aware of ETA and I had witnessed protests against their actions but after seven months in the country, this would be my introduction to their tactics. Like idiots and fools, the four of us left our apartment and followed the sound of ever increasing sirens. We had traveled less than half a block when we came to the Plaza República Dominicana. There we saw 15-story building facades gone and dozens of wounded Spaniards in a complete state of shock. Twelve national police officers died and 32 others were injured from the massive car bomb, filled with shrapnel.

We should consider ourselves fortunate to live in a society that limits the reach of punishment by this ex post facto analysis, but I am keenly aware that these limits rarely have anything to do with actual fairness.