Ellingburg v. United States · ¶43

The second multifactor test, which applies only if the law survives the first test, asks whether the law's other features render it criminal or penal. See id., at 92. Under this second test, a law is subject to the Ex Post Facto Clauses if it is “so punitive either in purpose or effect as to negate [the legislature's] intention to deem it civil.” Ibid. (internal quotation marks omitted). The Court has at times said that this second test is a function of up to seven factors: whether the law involves an affrmative disability or restraint, imposes what has historically been regarded as a punishment, requires a finding of scienter, promotes the traditional aims of punishment, applies to behavior which is already a crime, lacks a rational alternative purpose, or is excessive in relation to that purpose. Kennedy v. Mendoza-Martinez, 372 U. S. 144, 168–169 (1963); see Smith, 538 U. S., at 97…

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