Ellingburg v. United States · ¶42

But in defning criminal punishment—and thus the scope of Calder's limitation—the Court's modern framework applies two multifactor tests developed in the 20th century. The first multifactor test asks whether the legislature “intended” the law to be viewed as criminal or penal. Smith, 538 U. S., at 92–93; see also ante, at 165, n. 1. Under this test, a law is subject to the Ex Post Facto Clauses “[i]f the intention of the legislature was to impose punishment.” Smith, 538 U. S., at 92. But if “the intention was to enact a regulatory scheme that is civil and nonpunitive,” then a law is presumptively not subject to the Ex Post Facto Clauses. Ibid. This test has included up to five factors, most of which allow a legislature to avoid the Clauses through labeling or semantics. Those five factors are whether the legislature had a “ `preference' ” for “ `one label or the other,' ” id., at 93…

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