OCTOBER TERM, 2002
Syllabus
STOGNER
v. CALIFORNIA
CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE
DISTRICT
No. 01-1757. Argued March 31, 2003-Decided June 26, 2003
In 1993, California enacted a new criminal statute of
limitations permitting prosecution for sex-related child abuse
where the prior limitations period has expired if,
inter
alia, the prosecution is begun within one year of a victim's
report to police. A subsequently added provision makes clear that
this law revives causes of action barred by prior limitations
statutes. In 1998, petitioner Stogner was indicted for sex-related
child abuse committed between 1955 and 1973. At the time those
crimes were allegedly committed, the limitations period was three
years. Stogner moved to dismiss the complaint on the ground that
the
Ex Post Facto Clause forbids revival of a previously
time-barred prosecution. The trial court agreed, but the California
Court of Appeal reversed. The trial court denied Stogner's
subsequent dismissal motion, in which he argued that his
prosecution violated the
Ex Post Facto and Due Process
Clauses. The Court of Appeal affirmed.
Held: A law enacted after expiration of a previously
applicable limitations period violates the
Ex Post Facto
Clause when it is applied to revive a previously time-barred
prosecution. California's law extends the time in which prosecution
is allowed, authorizes prosecutions that the passage of time has
previously barred, and was enacted after prior limitations periods
for Stogner's alleged offenses had expired. Such features produce
the kind of retroactivity that the Constitution forbids. First, the
law threatens the kinds of harm that the Clause seeks to avoid, for
the Clause protects liberty by preventing governments from enacting
statutes with "manifestly
unjust and oppressive" retroactive
effects.
Calder v.
Bull, 3 Dall. 386, 391. Second,
the law falls literally within the categorical descriptions of
ex post facto laws that Justice Chase set forth more than
200 years ago in
Calder v.
Bull, which this Court has
recognized as an authoritative account of the Clause's scope,
Collins v.
Youngblood, 497 U. S. 37,46. It falls
within the second category, which Justice Chase understood to
include a new law that inflicts punishments where the party was
not, by law, liable to any punishment. Third, numerous legislators,
courts, and commentators have long believed it well settled that
the Clause forbids resurrection of a time-barred prosecution. The
Reconstruction Congress of 1867 rejected a bill that would have
revived time-barred treason prosecutions against Jefferson
Davis
608
Syllabus
and others, passing instead a law extending unexpired
limitations periods. Roughly contemporaneous State Supreme Courts
echoed the view that laws reviving time-barred prosecutions are
ex post facto. Even courts that have upheld extensions of
unexpired statutes of limitations have consistently
distinguished situations where the periods have
expired,
often using language that suggests a presumption that reviving
time-barred criminal cases is not allowed. This Court has not
previously spoken decisively on this matter. Neither its
recognition that the Fifth Amendment's privilege against
self-incrimination does not apply after the relevant limitations
period has expired,
Brown v.
Walker, 161 U. S. 591, 597-598,
nor its holding that a Civil War statute retroactively tolling
limitations periods during the war was valid as an exercise of
Congress' war powers,
Stewart v.
Kahn, 11 Wall. 493,
503504, dictates the outcome here. Instead, that outcome is
determined by the nature of the harms that the law creates, the
fact that the law falls within Justice Chase's second category, and
a long line of authority. Pp. 610-633.
93 Cal. App. 4th 1229, 114 Cal. Rptr. 2d 37, reversed.
BREYER, J., delivered the opinion of the Court, in which
STEVENS, O'CONNOR, SOUTER, and GINSBURG, JJ., joined. KENNEDY, J.,
filed a dissenting opinion, in which REHNQUIST, C. J., and SCALIA
and THOMAS, JJ., joined,
post, p. 633.
Roberto Najera argued the cause for petitioner. With him
on the briefs was
Elisa Stewart.
Janet Gaard, Special Assistant Attorney General of
California, argued the cause for respondent. With her on the brief
were
Bill Lockyer, Attorney General,
Manuel M.
Medeiros, Solicitor General,
Robert R. Anderson, Chief
Assistant Attorney General,
W Scott Thorpe, Special
Assistant Attorney General, and
Kelly E. Lebel, Deputy
Attorney General.
Irving L. Gornstein argued the cause for the United States as
amicus curiae urging affirmance. With him on the brief were
Solicitor General Olson, Assistant Attorney General Chertoff,
Deputy Solicitor General Dreeben, and John F. De Pue. *
*Briefs of
amici curiae were filed for the American
Psychological Association et al. by
Kathleen A. Behan,
Christopher D. Man, and
Nathalie F.
P. Gilfoyle;
and for the National Association of Criminal Defense Law-
609
JUSTICE BREYER delivered the opinion of the Court. California
has brought a criminal prosecution after expiration of the time
periods set forth in previously applicable statutes of limitations.
California has done so under the authority of a new law that (1)
permits resurrection of otherwise time-barred criminal
prosecutions, and (2) was itself enacted
after pre-existing
limitations periods had expired. We conclude that the
Constitution's
Ex Post Facto Clause, Art. I, § 10, cl. 1,
bars application of this new law to the present case.
I
In 1993, California enacted a new criminal statute of
limitations governing sex-related child abuse crimes. The new
statute permits prosecution for those crimes where "[t]he
limitation period specified in [prior statutes of limitations] has
expired"-provided that (1) a victim has reported an allegation of
abuse to the police, (2) "there is independent evidence that
clearly and convincingly corroborates the victim's allegation," and
(3) the prosecution is begun within one year of the victim's
report. 1993 Cal. Stats. ch. 390, § 1 (codified as amended at Cal.
Penal Code Ann. § 803(g) (West Supp. 2003)). A related provision,
added to the statute in 1996, makes clear that a prosecution
satisfying these three conditions "shall revive any cause of action
barred by [prior statutes of limitations]." 1996 Cal. Stats. ch.
130, § 1 (codified at Cal. Penal Code Ann. § 803(g)(3)(A) (West
Supp. 2003)). The statute thus authorizes prosecution for criminal
acts committed many years beforehand-and where the
originallimitations period has expired-as long as prosecution
begins within a year of a victim's first complaint to the
police.
In 1998, a California grand jury indicted Marion Stogner, the
petitioner, charging him with sex-related child abuse committed
decades earlier-between 1955 and 1973. With-
yers et al. by David M. Porter, Barry T. Simons, Martin N.
Buchanan, and Michael B. Dashjian.
610
out the new statute allowing revival of the State's cause of
action, California could not have prosecuted Stogner. The statute
of limitations governing prosecutions at the time the crimes were
allegedly committed had set forth a 3-year limitations period. And
that period had run 22 years or more before the present prosecution
was brought.
Stogner moved for the complaint's dismissal. He argued that the
Federal Constitution's
Ex Post Facto Clause, Art. I, § 10,
cl. 1, forbids revival of a previously time-barred prosecution. The
trial court agreed that such a revival is unconstitutional. But the
California Court of Appeal reversed, citing a recent, contrary
decision by the California Supreme Court,
People v.
Frazer, 21 Cal. 4th 737, 982 P. 2d 180 (1999), cert. denied,
529 U. S. 1108 (2000). Stogner then moved to dismiss his
indictment, arguing that his prosecution is unconstitutional under
both the
Ex Post Facto Clause and the Due Process Clause,
Arndt. 14, § 1. The trial court denied Stogner's motion, and the
Court of Appeal upheld that denial.
Stogner v.
Superior
Court, 93 Cal. App. 4th 1229, 114 Cal. Rptr. 2d 37 (2001). We
granted certiorari to consider Stogner's constitutional claims. 537
U. S. 1043 (2002).
II
The Constitution's two
Ex Post Facto Clauses prohibit the
Federal Government and the States from enacting laws with certain
retroactive effects. See Art. I, § 9, cl. 3 (Federal Government);
Art. I, § 10, cl. 1 (States). The law at issue here created a new
criminal limitations period that extends the time in which
prosecution is allowed. It authorized criminal prosecutions that
the passage of time had previously barred. Moreover, it was enacted
after prior limitations periods for Stogner's alleged offenses had
expired. Do these features of the law, taken together, produce the
kind of retroactivity that the Constitution forbids? We conclude
that they do.
611
First, the new statute threatens the kinds of harm that, in this
Court's view, the
Ex Post Facto Clause seeks to avoid. Long
ago Justice Chase pointed out that the Clause protects liberty by
preventing governments from enacting statutes with "manifestly
unjust and oppressive" retroactive effects.
Calder v.
Bull, 3 Dall. 386, 391 (1798). Judge Learned Hand later
wrote that extending a limitations period after the State has
assured "a man that he has become safe from its pursuit ... seems
to most of us unfair and dishonest."
Falter v.
United
States, 23 F.2d 420, 426
(CA2), cert. denied, 277 U. S.
590 (1928). In such a case, the government has refused "to play by
its own rules,"
Carmell v.
Texas, 529 U. S. 513, 533
(2000). It has deprived the defendant of the "fair warning,"
Weaver v.
Graham, 450 U. S. 24, 28 (1981),
that might have led him to preserve exculpatory evidence. F.
Wharton, Criminal Pleading and Practice § 316, p. 210 (8th ed.
1880) ("The statute [of limitations] is ... an amnesty, declaring
that after a certain time ... the offender shall be at liberty to
return to his country ... and ... may cease to preserve the proofs
of his innocence"). And a Constitution that permits such an
extension, by allowing legislatures to pick and choose when to act
retroactively, risks both "arbitrary and potentially vindictive
legislation," and erosion of the separation of powers,
Weaver,
supra, at 29, and n. 10. See
Fletcher v.
Peck, 6
Cranch 87, 137-138 (1810) (viewing the
Ex Post Facto Clause
as a protection against "violent acts which might grow out of the
feelings of the moment").
Second, the kind of statute at issue falls literally within the
categorical descriptions of
ex post facto laws set forth by
Justice Chase more than 200 years ago in
Calder v.
Bull,
supra-a categorization that this Court has recognized as
providing an authoritative account of the scope of the
Ex Post
Facto Clause.
Collins v.
Youngblood, 497 U. S. 37, 46 (1990);
Carmell, supra, at 539. Drawing substantially on Richard
Wooddeson's 18th-century commentary on the nature of
ex post
facto laws and past parliamentary abuses,
612
Chase divided
ex post facto laws into categories that he
described in two alternative ways. See 529 U. S., at 522-524, and
n. 9. He wrote:
"I will state what laws I consider ex post facto laws,
within the words and the intent of the prohibition. 1st. Every law
that makes an action done before the passing of the law, and which
was innocent when done, criminal; and punishes such action. 2d.
Every law that aggravates a crime, or makes it greater than it was,
when committed. 3d. Every law that changes the punishment, and
inflicts a greater punishment, than the law annexed to the crime,
when committed. 4th. Every law that alters the legal rules of
evidence, and receives less, or different, testimony, than the law
required at the time of the commission of the offence, in order to
convict the offender. All these, and similar laws, are
manifestly unjust and oppressive." Calder, supra, at 390-391
(emphasis altered from original).
In his alternative description, Chase traced these four cat-
egories back to Parliament's earlier abusive acts, as
follows:
Category 1: "Sometimes they respected the crime, by declaring
acts to be treason, which were not treason, when committed."
Category 2: "[Alt other times they inflicted punishments, where
the party was not, by law, liable to any punishment."
Category 3: "[I]n other cases, they inflicted greater
punishment, than the law annexed to the offence." Category 4: "[Alt
other times, they violated the rules of evidence (to supply a
deficiency of legal proof) by admitting one witness, when the
existing law required two; by receiving evidence without oath; or
the oath of the wife against the husband; or other testimony, which
the courts of justice would not admit." 3 Dall., at 389 (emphasis
altered from original).
613
The second category-including any "law that
aggravates a
crime, or makes it
greater than it was, when committed,"
id., at 390-describes California's statute as long as those words
are understood as Justice Chase understood themi.
e., as
referring to a statute that "inflict[s]
punishments, where
the party was not, by
law, liable to
any punishment,"
id., at 389. See also 2 R. Wooddeson, A Systematical View of the
Laws of England 638 (1792) (hereinafter Wooddeson, Systematical
View) (discussing the
ex post facto status of a law that
affects punishment by "making therein some innovation,
or
creating some forfeiture or disability, not incurred in the
ordinary course of law" (emphasis added)). After (but not
before) the original statute of limitations had expired, a party
such as Stogner was not "liable to any punishment." California's
new statute therefore "aggravated" Stogner's alleged crime, or made
it "greater than it was, when committed," in the sense that, and to
the extent that, it "inflicted punishment" for past criminal
conduct that (when the new law was enacted) did not trigger any
such liability. See also H. Black, American Constitutional Law §
266, p. 700 (4th ed. 1927) (hereinafter Black, American
Constitutional Law) ("[A]n act condoned by the expiration of the
statute of limitations is no longer a punishable offense"). It is
consequently not surprising that New Jersey's highest court long
ago recognized that Chase's alternative description of second
category laws
"exactly describes the operation" of the kind
of statute at issue here.
Moore v.
State, 43 N. J. L.
203, 217 (1881) (emphasis added). See also H. Black, Constitutional
Prohibitions Against Legislation Impairing the Obligation of
Contracts, and Against Retroactive and Ex Post Facto Laws § 235, p.
298 (1887) (hereinafter Black, Constitutional Prohibitions) ("Such
a statute" "certainly makes that a punishable offense which was
previously a condoned and obliterated offense").
So to understand the second category (as applying where a new
law inflicts a punishment upon a person not then sub-
614
ject to that punishment, to any degree) explains why and how
that category differs from both the first category (making criminal
noncriminal behavior) and the third category (aggravating the
punishment). And this understanding is consistent, in relevant
part, with Chase's second category examples-examples specifically
provided to illustrate Chase's
alternative description of
laws "'inflict[ing]
punishments, where the party was not, by
law, liable to
any punishment,'" Calder, 3 Dall., at
389.
Following Wooddeson, Chase cited as examples of such laws Acts
of Parliament that banished certain individuals accused of treason.
Id., at 389, and n. :!:; see also
Carmell, 529 U. S.,
at 522-524, and n. 11. Both Chase and Wooddeson explicitly referred
to these laws as involving "banishment."
Calder, supra, at
389, and n. :!:; 2 Wooddeson, Systematical View 638-639. This fact
was significant because Parliament had enacted those laws not only
after the crime's commission, but under circumstances where
banishment "was simply not a form of penalty that could be imposed
by the courts."
Carmell, supra, at 523, n. 11; see also 11
W. Holdsworth, A History of English Law 569 (1938). Thus, these
laws, like the California law at issue here, enabled punishment
where it was not otherwise available "in the ordinary course of
law," 2 Wooddeson, Systematical View 638. As this Court previously
recognized in
Carmell, supra, at 523, and n. 11, it was
this vice that was relevant to Chase's purpose.
It is true, however, that Parliament's Acts of banishment,
unlike the law in this case, involved a punishment (1) that the
legislature imposed directly, and (2) that courts had
never
previously had the power to impose. But these differences are not
determinative. The first describes not a retroactivity problem but
an attainder problem that Justice Chase's language does not
emphasize and with which the Constitution separately deals, Art. I,
§ 9, cl. 3; Art. I, § 10, cl. 1. The second difference seems beside
the point. The example of
615
Parliament's banishment laws points to concern that a
legislature, knowing the accused and seeking to have the accused
punished for a pre-existing crime, might enable punishment of the
accused in ways that existing law forbids. That fundamental
concern, related to basic concerns about retroactive penal laws and
erosion of the separation of powers, applies with equal force to
punishment like that enabled by California's law as applied to
Stogner-punishment that courts lacked the power to impose at the
time the legislature acted. See Black, Constitutional Prohibitions
§ 235, at 298 ("It would be superfluous to point out that such an
act [reviving otherwise time-barred criminal liability] would fall
within the evils intended to be guarded against by the prohibition
in question"). Cf. 1 F. Wharton, Criminal Law §
444a, pp.
347-348, n.
b (rev. 7th ed. 1874) (hereinafter Criminal
Law).
In finding that California's law falls within the literal terms
of Justice Chase's second category, we do not deny that it may fall
within another category as well. Justice Chase's fourth category,
for example, includes any "law that alters the
legal rules
of
evidence, and receives less, or different, testimony,
than the law required at the time of the commission of the offence,
in order to convict the offender." Calder, supra, at 390.
This Court has described that category as including laws that
diminish "the quantum of evidence required to convict."
Carmell,
supra, at 532.
Significantly, a statute of limitations reflects a legislative
judgment that, after a certain time, no quantum of evidence is
sufficient to convict. See
United States v.
Marion,
404 U. S. 307, 322 (1971). And that judgment typically rests,
in large part, upon evidentiary concerns-for example, concern that
the passage of time has eroded memories or made witnesses or other
evidence unavailable.
United States v.
Kubrick,
444 U. S. 111,
117 (1979); 4 W. LaFave, J. Israel, & N. King, Criminal
Procedure § 18.5(a), p. 718 (1999); Wharton, Criminal Pleading and
Practice § 316, at 210. Indeed, this
616
Court once described statutes of limitations as creating "a
presumption which renders proof unnecessary."
Wood v.
Carpenter, 101
U. S. 135, 139 (1879).
Consequently, to resurrect a prosecution after the relevant
statute of limitations has expired is to eliminate a currently
existing conclusive presumption forbidding prosecution, and thereby
to permit conviction on a quantum of evidence where that quantum,
at the time the new law is enacted, would have been legally
insufficient. And, in that sense, the new law would "violate"
previous evidence-related legal rules by authorizing the courts to
"'receiv[e] evidence ... which the courts of justice would not
[previously have] admit[tedJ''' as sufficient proof of a crime,
supra, at 612. Cf.
Collins, 497 U. S., at 46 ("Subtle
ex post facto violations are no more permissible than overt
ones");
Cummings v.
Missouri, 4 Wall. 277, 329 (1867)
(The
Ex Post Facto Clause "cannot be evaded by the form in
which the power of the State is exerted"). Nonetheless, given
Justice Chase's description of the second category, we need not
explore the fourth category, or other categories, further.
Third, likely for the reasons just stated, numerous legislators,
courts, and commentators have long believed it well settled that
the
Ex Post Facto Clause forbids resurrection of a
time-barred prosecution. Such sentiments appear already to have
been widespread when the Reconstruction Congress of 1867-the
Congress that drafted the Fourteenth Amendment-rejected a bill that
would have revived time-barred prosecutions for treason that
various Congressmen wanted brought against Jefferson Davis and "his
coconspirators," Congo Globe, 39th Cong., 2d Sess., 279 (1866-1867)
(comments of Rep. Lawrence). Radical Republicans such as Roscoe
Conkling and Thaddeus Stevens, no friends of the South, opposed the
bill because, in their minds, it proposed an
"ex post facto
law,"
id., at 68 (comments of Rep. Conkling), and threatened
an injustice tantamount to "judicial murder," id., at 69 (comments
of Rep. Stevens). In this instance, Con-
617
gress ultimately passed a law extending
unexpired
limitations periods, ch. 236, 15 Stat. 183-a tailored approach to
extending limitations periods that has also been taken in modern
statutes,
e. g., 18 U. S. C. § 3293 (notes on effective date
of 1990 amendment and effect of 1989 amendment); Cal. Penal Code
Ann. § 805.5 (West Supp. 2003).
Further, Congressmen such as Conkling were not the only ones who
believed that laws reviving time-barred prosecutions are
ex post
facto. That view was echoed in roughly contemporaneous opinions
by State Supreme Courts. E. g.,
State v.
Sneed, 25
Tex. Supp. 66, 67 (1860);
Moore, 43 N. J. L., at 216-217.
Cf.
State v.
Keith, 63 N. C. 140, 145 (1869) (A
State's repeal of an amnesty was "substantially an
ex post
facto law"). Courts, with apparent unanimity until California's
decision in
Frazer, have continued to state such views, and,
when necessary, so to hold.
E. g., People ex rel. Reibman v.
Warden, 242 App. Div. 282, 285, 275 N. Y. S. 59, 62 (1934);
United States v.
Fraidin, 63 F. Supp. 271, 276 (Md.
1945);
People v.
Shedd, 702 P. 2d 267, 268 (Colo.
1985) (en bane)
(per curiam); State v.
Hodgson, 108
Wash. 2d 662, 667669, 740 P. 2d 848, 851-852 (1987) (en bane),
cert. denied
sub nom. Fied v.
Washington, 485 U. S.
938 (1988);
Commonwealth v.
Rocheleau, 404 Mass. 129,
130-131, 533 N. E. 2d 1333, 1334 (1989);
State v.
Nunn, 244 Kan. 207, 218, 768 P. 2d 268, 277-278 (1989);
State v.
O'Neill, 118 Idaho 244, 247, 796 P. 2d 121,
124 (1990);
State v.
Hirsch, 245 Neb. 31, 39-40, 511
N. W. 2d 69, 76 (1994);
State v.
Schultzen, 522 N. W.
2d 833, 835 (Iowa 1994);
State v.
Comeau, 142 N. H.
84, 88, 697 A. 2d 497, 500 (1997) (citing
State v.
Hamel, 138 N. H. 392, 395-396, 643 A. 2d 953, 955-956
(1994));
Santiago v.
Commonwealth, 428 Mass. 39, 42,
697 N. E. 2d 979, 981, cert. denied, 525 U. S. 1003 (1998). Cf.
Thompson v.
State, 54 Miss. 740, 743 (1877) (stating,
without specifying further grounds, that a new law could not take
away a vested statute-of-limitations defense);
State v.
Cookman, 127 Ore. App. 283, 289,873 P. 2d 335, 338 (1994)
(holding that a law resurrecting a time-barred crimi-
618
nal case "violates the Due Process Clause"), aff'd on statelaw
grounds, 324 Ore. 19, 920 P. 2d 1086 (1996);
Commonwealth v.
Guimento, 341 Pa. Super. 95, 97-98, 491 A. 2d 166, 167-168
(1985) (enforcing a state ban on
ex post facto laws
apparently equivalent to the federal prohibition);
People v.
Chesebro, 185 Mich. App. 412, 416, 463 N. W. 2d 134, 135-136
(1990) (reciting "the general rule" that, "'where a complete
defense has arisen under [a statute of limitations], it cannot be
taken away by a subsequent repeal thereof' ").
Even where courts have upheld extensions of
unexpired
statutes of limitations (extensions that our holding today does not
affect, see
supra, at 613), they have consistently
distinguished situations where limitations periods have
ex
pired. Further, they have often done so by saying that
extension of existing limitations periods is not
ex post
facto "provided," "so long as," "because," or "if" the prior
limitations periods have not expired-a manner of speaking that
suggests a presumption that revival of time-barred criminal cases
is
not allowed.
E. g., United States v.
Madia,
955 F.2d
538, 540
(CA8 1992) (" 'provided' ");
United
States v.
Richardson, 512 F.2d
105, 106
(CA3 1975) ("provided");
People v.
Anderson, 53 Ill. 2d 437, 440, 292 N. E. 2d 364, 366 (1973)
("so long as");
United States v.
Haug, 21 F. R. D.
22, 25 (ND Ohio 1957) ("so long as"), aff'd,
274
F.2d 885 (CA6 1960), cert. denied, 365 U. S. 811 (1961);
United States v.
Kurzenknabe, 136 F. Supp. 17, 23 (NJ
1955) ("so long as");
State v.
Duffy, 300 Mont. 381,
390, 6 P. 3d 453, 460 (2000) ("because");
State v.
Davenport, 536 N. W. 2d 686, 688 (N. D. 1995) ("because");
Andrews v.
State, 392 So. 2d 270, 271 (Fla. App.
1980) ("if"), review denied, 399 So. 2d 1145 (Fla. 1981). See,
e. g.,
Shedd, supra, at 268 (citing
Richardson,
supra, and
Andrews, supra, as directly supporting a
conclusion that a law reviving time-barred offenses is
ex post
facto). Cf.
Commonwealth v.
Duffy, 96 Pa. 506,
514 (1881) ("[I]n any case where a right to acquittal has not been
absolutely acquired by the completion of the period of limitation,
that period
619
is subject to enlargement or repeal without being obnoxious to
the constitutional prohibition against
ex post facto
laws").
Given the apparent unanimity of
pre-Frazer case law,
legal scholars have long had reason to believe this matter settled.
As early as 1887, Henry Black reported that, although "not at all
numerous," the "cases upon this point ... unmistakably point to the
conclusion that such an act would be
ex post facto in the
strict sense, and void." Constitutional Prohibitions § 235, at 297.
Even earlier, in 1874, Francis Wharton supported this conclusion by
emphasizing the historic role of statutes of limitations as "acts
of grace or oblivion, and not of process," "extinguish[ing] all
future prosecution" and making an offense unable to "be again
called into existence at the caprice of the prince." 1 Criminal Law
§444a, at 347348, n. b. More modern commentators-reporting
on the same and subsequent cases-have come to the same conclusion.
E. g., 21 Am. Jur. 2d, Criminal Law § 294, pp. 349-350 (1998 and
Supp. 2002); 16A C. J. S., Constitutional Law § 420, p. 372 (1984
and Supp. 2002); 4 LaFave, Israel, & King, Criminal Procedure §
18.5(a), at 718, n. 6; 2 C. Antieau & W. Rich, Modern
Constitutional Law § 38.11, p. 445 (2d ed. 1997); Adlestein,
Conflict of the Criminal Statute of Limitations with Lesser
Offenses at Trial, 37 Wm. & Mary L. Rev. 199, 246 (1995); C.
Corman, Limitation of Actions § 1.6, p. 35 (1993 Supp.); Black,
Statutes of Limitations and the Ex Post Facto Clauses, 26 Ky. L. J.
42 (1937); Black, American Constitutional Law § 266, at 700. Cf. H.
Wood, Limitation of Actions § 13, p. 43 (3d ed. 1901) (The State
"may be said" to be "estopped from prosecuting"). Likewise, with
respect to the closely related case of a law repealing an amnesty-a
case not distinguished by the dissent-William Wade concluded early
on that "[s]uch an act would be as clearly in contravention of the
inhibition of
ex postfacto laws as though it undertook to
annex criminality to an act innocent when done." Operation and
Construction of Retroactive Laws
620
§ 286, p. 339 (1880). But cf.
post, at 638-639 (KENNEDY,
J., dissenting).
This Court itself has not previously spoken decisively on this
matter. On the one hand, it has clearly stated that the Fifth
Amendment's privilege against self-incrimination does not apply
after the relevant limitations period has expired.
Brown v.
Walker, 161 U.
S. 591, 597-598 (1896). And that rule may suggest that the
expiration of a statute of limitations is irrevocable, for
otherwise the passage of time would not have eliminated fear of
prosecution.
On the other hand, in
Stewart v.
Kahn, 11 Wall.
493, 503504 (1871), this Court upheld a statute, enacted during the
Civil War, that retroactively tolled
all civil and
criminallimitations for periods during which the war had made
service of process impossible or courts inaccessible.
Stewart, however, involved a civil, not a criminal,
limitations statute.
Id., at 500-501. Significantly, in
reviewing this civil case, the Court upheld the statute as an
exercise of Congress' war powers, id., at 507, without explicit
consideration of any potential collision with the
Ex Post
Facto Clause. Moreover, the Court already had held, independent
of Congress' Act, that statutes of limitations were tolled for "the
time during which the courts in the States lately in rebellion were
closed to the citizens of the loyal States .... "
Id., at
503; see also
Hanger v.
Abbott, 6 Wall. 532, 539-542
(1868). Hence, the Court could have seen the relevant statute as
ratifying a pre-existing expectation of tolling due to wartime
exigencies, rather than as extending limitations periods that had
truly expired. See
id., at 541; see also
Stewart,
supra, at 507. In our view,
Stewart therefore no more
dictates the outcome here than does seemingly contrary precedent
regarding the Fifth Amendment privilege.
Instead, we believe that the outcome of this case is determined
by the nature of the harms that California's law creates, by the
fact that the law falls within Justice Chase's second category as
Chase understood that category, and by
621
a long line of authority holding that a law of this type
violates the
Ex Post Facto Clause.
III
In a prodigious display of legal and historical textual
research, the dissent finely parses cases that offer us support,
see
post, at 633-637; shows appreciation for 19th-century
dissident commentary, see
post, at 638-639; discusses in
depth its understanding of late 17th-century and early 18th-century
parliamentary history,
post, at 642-649; and does its best
to drive a linguistic wedge between Justice Chase's alternative
descriptions of categories of
ex post facto laws,
post, at 640641. All to what end? The dissent undertakes
this Herculean effort to prove that it is
not unfair, in any
constitutionally relevant sense, to prosecute a man for crimes
committed 25 to 42 years earlier when nearly a generation has
passed since the law granted him an effective amnesty. Cf.
post, at 649-653.
We disagree strongly with the dissent's ultimate conclusion
about the fairness of resurrecting a long-dead prosecution. See
infra, at 630-632. Rather, like Judge Learned Hand, we
believe that this retroactive application of a laterenacted law is
unfair. And, like most other judges who have addressed this issue,
see
supra, at 617-618, we find the words
"ex post
facto" applicable to describe this kind of unfairness. Indeed,
given the close fit between laws that work this kind of unfairness
and the Constitution's concern with
ex post facto laws, we
might well conclude that California's law falls within the scope of
the Constitution's interdiction even were the dissent's historical
and precedent-related criticisms better founded than they are.
We need not examine that possibility here, however, because the
dissent's reading of the relevant history and precedent raises far
too many problems to serve as a foundation for the reading of
"ex post facto" that it proposes. In our view, that reading
is too narrow; it is unsupported by prec-
622
edent; and it would deny liberty where the Constitution gives
protection.
A
In the dissent's view, Chase's historical examples show that
"Calder's second category concerns only laws" that both (1)
"subjec[t] the offender to increased punishment" and (2) do so by
"chang[ing] the nature of an offense to make it greater than
it was at the time of commission."
Post, at 642 (emphasis
added). The dissent does not explain what it means by "chang[ing]
the nature of an offense," but we must assume (from the fact that
this language comes in a dissent) that it means something beyond
attaching otherwise unavailable punishment and requires, in
addition, some form of recharacterization of the crime. After all,
the dissent seeks to show through its discussion of the relevant
historical examples that a new law subjecting to punishment a
person not then legally subject to punishment does not fall within
the second category
unless the new law somehow changes the
kind of crime that was previously at issue.
The dissent's discussion of the historical examples suffers from
several problems. First, it raises problems of historical
accuracy. In order to show the occurrence of a change in the
kind or nature of the crime, the dissent argues that Parliament's
effort to banish the Earl of Clarendon amounted to an effort "to
elevate criminal behavior of lower magnitude to the level of
treason."
Post, at 643. The dissent supports this argument
with a claim that "the allegations [against Clarendon] could not
support a charge of treason."
Ibid. Historians, however,
appear to have taken a different view. But cf.
post, at 646.
In their view, at least one charge against Clarendon
did
amount to treason.
Clarendon was charged with "betraying his majesty's secret
counsels to his enemies during the war."
Edward Earl of
Clarendon's Trial, 6 How. St. Tr. 292, 350 (1667) (hereinafter
Clarendon's Trial). In the words of one historian, this
charge "undoubtedly contained treasonous matter."
623
Roberts, The Impeachment of the Earl of Clarendon, 13 Camb.
Hist. J. 1, 13 (1957) (hereinafter Roberts, Impeachment); accord,
G. Miller, Edward Hyde, Earl of Clarendon 21-22 (1983); 10
Dictionary of National Biography 383 (L. Stephen & S. Lee eds.
reprint 1922). See also Roberts, The Law of Impeachment in Stuart
England: A Reply to Raoul Berger, 84 Yale L. J. 1419, 1426 (1975);
R. Berger, Impeachment: The Constitutional Problems 45, n. 193
(1974) (acknowledging and not contradicting the historian Henry
Hallam's conclusion that" 'one of the articles did actually contain
an unquestionable treason' "). And it was on the basis of this
specific charge-a charge of conduct that amounted to treason-that
the House of Commons (which had previously refused to impeach
Clarendon on other charges that did not amount to treason) "voted
to impeach Clarendon for high treason." Roberts, Impeachment 13;
accord,
Clarendon's Trial 350-351.
The House of Lords initially thought that the Commons had failed
to provide sufficient evidence because it failed to provide
"special articles" laying out "particulars to prove it." Roberts,
Impeachment 14. The Lords and Commons deadlocked over whether a
"general charge" was sufficient.
Ibid. See also
Clarendon's Trial 351-374. But Clarendon fled, thereby
providing proof of guilt. 10 Dictionary of National Biography,
supra, at 383; see also
Clarendon's Trial 389390; 2
H. Hallam, Constitutional History of England: From the Accession of
Henry VII to the Death of George II, p. 373 (8th ed. 1855). See
also Berger,
supra, at 44-45, and n. 189. The Lords and
Commons then agreed to banish Clarendon. The Act of banishment-the
only item in this complicated history explicitly cited by
Chase-explained that Clarendon was being banished because he had
"been impeached by the Commons ... of Treason and other
misdemeanours" and had "fled whereby Justice cannot be done upon
him according to his demerit." 19 & 20 Car. II, c. 2
(1667-1668) (reprint 1963).
624
In sum, Clarendon's case involved Parliament's punishment of an
individual who was
charged before Parliament
with treason
and satisfactorily
proved to have committed treason, but
whom Parliament punished by imposing "banishment" in circumstances
where the party was
not, in "the ordinary course of law," liable
to any "banishment." See
supra, at 614. Indeed, because
Clarendon had fled the country, it had become impossible to hold a
proper trial to subject Clarendon to punishment through "ordinary"
proceedings. See 19 & 20 Car. II, c. 2;
Clarendon's
Trial 385-386. To repeat, the example of Clarendon's banishment
is an example of an individual's being punished through legislation
that subjected him to punishment otherwise unavailable, to any
degree, through "the ordinary course of law"-just as Chase and his
predecessor Wooddeson said.
Calder, 3 Dall., at 389, and n.
:!:; 2 Wooddeson, Systematical View 638. See also
Carmell,
529 U. S., at 523, n. 11.
A second problem that the dissent's account raises is one of
historical
completeness. That account does not explain how
the second relevant example-the banishment of the Bishop of
Atterbury-can count as an example of a recharacterization of a
pre-existing crime. The dissent concedes that Atterbury was charged
with conduct constituting a "conspiracy to depose George 1."
Post, at 647. It ought then to note (but it does not note)
that, like the charge of "'betraying his majesty's secret
counsels,'"
supra, at 622, this charge
was recognized
as a charge of treason, see 2 J. Stephen, A History of the Criminal
Law of England 266267 (1883). As the dissent claims, the evidence
upon which Parliament based its decision to banish may have been
"meager," and the punishment may even have been greater than some
expected.
Post, at 647. But the relevant point is that
Parliament did not recharacterize the Bishop's crime. Rather,
through extraordinary proceedings that concluded with a punishment
that only the legislature could impose,
625
Parliament aggravated a predefined crime by imposing a
punishment that courts could not have imposed in "the ordinary
course."
Third, the dissent's account raises a problem of
vagueness.
The dissent describes Justice Chase's alternative description of
the second category as "shed[ding] light on the meaning" of the
category,
post, at 641, and describes the historical
references that accompany Chase's alternative description as
"illustrative examples,"
post, at 649. But the question is
would the dissent apply the term
ex post facto to laws that
fall within the alternative description-or would it not? If not,
how does it reconcile its view with
Carmell? See 529 U. S.,
at 522, n. 9; see also id., at 523 (Wooddeson's categories
"correlate precisely to
Calder's four categories"). If so,
how does it explain the fact that the alternative description
nowhere says anything about recharacterizing, or "changing the
nature," of a crime?
In our view, the key to the Atterbury and Clarendon examples
lies not in any kind of recharacterization, or the like, but in the
fact that Atterbury and Clarendon suffered the "same
sentence"-"banishment." 2 Wooddeson, Systematical View 638;
see also
Calder, supra, at 389, n. :I: (using the word
"banishment" to describe both examples). As we have argued,
supra, at 614, Parliament aggravated the crimes at issue by
imposing an otherwise unavailable punishmentnamely,
banishment-which was, according to Wooddeson, a "forfeiture or
disability, not incurred in the ordinary course of law," 2
Systematical View 638.
Fourth, the dissent's initial account suffers from a technical
problem of
redundancy. Were the second category always to
involve the recharacterization of an offense in a way that subjects
it to greater punishment, see
post, at 642, the second
category would be redundant. Any law falling within it would also
necessarily fall within the third category, which already
encompasses"
'[elvery law that ... inflicts a greater
punishment,'"
supra, at 612 (emphasis added).
626
Fifth, the dissent's historical account raises problems of
pertinence. For one thing, to the extent that we are
construing the scope of the
Calder categories, we are trying
not to investigate precisely what happened during the trials of
Clarendon and Atterbury, but to determine how, several decades
later, an 18th-century legal commentator and an 18th-century
American judge who relied on that commentator-and, by extension,
the Framers themselves-likely understood the scope of the words
"ex post facto." Hence, the dissent's account seems of
little relevance once we recognize that:
(1) When Justice Chase set forth his alternative language for
the second category (the language that the historical examples are
meant to illuminate), he said nothing about recharacterizing
crimes, Calder, 3 Dall., at 389;
(2) When Chase speaks of laws "declaring acts to be treason,
which were not treason, when committed," ibid., he
uses this language for his alternative description offirst
category laws, and not second category laws,
supra, at 612; and
(3) Wooddeson says nothing about recharacterizing crimes and
instead uses the Clarendon and Atterbury examples to illustrate
laws that "principally affect the punishment, making therein
some innovation, or creating some forfeiture or disability, not
incurred in the ordinary course of law," 2 Systematical View 638
(some emphasis added).
Of course, we do not know whether Chase and Wooddeson, in using
such language, had statutes of limitations specifically in mind. We
know only that their descriptions of
ex post facto laws and
the relevant historical examples indicate an
ex post facto
category broad enough to include retroactive changes in, and
applications of, those statutes. And we
627
know that those descriptions fit this case-the dissent's
historical exegesis notwithstanding.
More importantly, even were we to accept the dissent's view that
Chase's second category examples involved some kind of
recharacterization of criminal behavior (which they did not), why
would recharacterization be the
ex post facto touchstone?
Why, in a case where (a) application of a previously inapplicable
punishment and (b) recharacterization (or "changing the nature") of
criminal behavior do not come hand in hand, should the absence of
the latter make a critical difference? After all, the presence of a
recharacterization without new punishment works no harm. But the
presence of the new punishment without recharacterization works
all the harm. Indeed, it works retroactive harm-a
circumstance relevant to the applicability of a constitutional
provision aimed at preventing unfair retroactive laws. Perhaps that
is why Justice Chase's alternative description-which, like
Wooddeson's, speaks of laws "affect[ing]
the punishment,"
ibid.-does not mention recharacterization or the like.
B
The dissent believes that our discussion of the case law is
"less persuasive than it may appear at a first glance."
Post, at 633. The dissent says that this case law is
"deficient," and that we rely on an "inapposite" case and other
cases that "flatly contradict" the "principles" on which we rely.
Post, at 634, 635.
Having reviewed the relevant cases and commentary, we continue
to believe that our characterizations are accurate. We say that
courts, "with apparent unanimity until California's decision in
Frazer, have continued to state" that "laws reviving
time-barred prosecutions are
ex post facto" and, "when
necessary, so to hold."
Supra, at 617. That statement is
accurate. The dissent refers to no case, outside of California,
that has held, or even suggested, anything to the contrary.
628
Of course, one might claim that the judges who wrote the cited
opinions did not consider the matter as thoroughly as has the
dissent or used precisely the same kind of reasoning. The dissent
makes this kind of argument in its discussion of the old New Jersey
case,
Moore v.
State, 43 N. J. L. 203 (1881)-a case
that we believe supports our view. The dissent says that the
Moore court "expressly stated that a statute reviving an
expired limitations period 'is not covered by any of [Justice
Chase's] classes.'"
Post, at 635. And the dissent draws from
this language the conclusion that
Moore "flatly
contradict[s]" our views.
Post, at 635.
The dissent, however, has taken the language that it quotes out
of context. In context, the court's statement reflects a conclusion
that the language of Justice Chase's
first description of
the categories (which
Moore used the word "classes" to
describe) does not fit cases in which a State revives time-barred
prosecutions. The
Moore court immediately adds, however,
that Chase's
alternative description of second category laws
does fit this case. Indeed, it
"easily embraces" a
statute that, like the statute here, retroactively extends an
expired statute of limitations and
"exactly describes [its]
operation." 43 N. J. L., at 216-217 (emphasis added). Had the New
Jersey court had the benefit of
Carmell, 529 U. S., at
522-524, and n. 9, or perhaps even of the dissent itself,
post, at 641, would it not have recognized Chase's
alternative description as an authoritative account of elements of
Chase's "classes"? Would it then not have withdrawn its earlier
statement, which the dissent quotes? Would it not have simply held
that the statute did fall within the second category? Our reading
of the case leads us to answer these questions affirmatively, but
we leave the interested reader to examine the case and draw his or
her own conclusions.
The dissent draws special attention to another case,
State v.
Sneed, 25 Tex. Supp. 66 (1860), arguing that
it is "inapposite" because it "avoided the issue" whether a law
was
629
ex post facto "by holding that the statute was not meant
to apply retroactively."
Post, at 634. Here is the court's
analysis, virtually in full:
"In this case the bar of the statute of limitations of one year
was completed before the Code went into operation .... The state
having neglected to prosecute within the time prescribed for its
own action, lost the right to prosecute the suit. To give an Act of
the Legislature, passed after such loss, the effect of reviving the
right of action in the State, would give it an operation ex post
facto, which we cannot suppose the Legislature intended." 25
Tex. Supp., at 67.
The reader can make up his own mind.
Neither can we accept the dissent's view that Judge Learned
Hand's like-minded comments in
Falter were "unsupported,"
post, at 637. In fact, Judge Hand's comments had support in
pre-existing case law, commentary, and published legislative
debates,
supra, at 616-620, and Hand's opinion specifically
cited
Moore and two other early cases,
Commonwealth
v.
Duffy, 96 Pa. 506 (1880), and
People v.
Buckner, 281 Ill. 340, 117 N. E. 1023 (1917).
Falter,
23
We add that, whatever the exact counts of categories of cases
that we cite, cf.
post, at 633, it is not surprising that
most of these cases involve dicta, while only a handful involve
clear holdings. Where the law has long been accepted as clearly
settled, few cases are likely to arise, and cases that do arise
most likely involve bordering areas of law, such as new limitations
statutes enacted
prior to expiration of preexisting
limitations periods. Consistent with this expectation, one
commentator noted in 1993 that the question whether to give
retroactive effect to the extension of
unexpired limitations
periods had "become timely due to state legislature amendments
during the early 1980s that lengthen the limitation period for the
crimes of rape and sexual intercourse with a child." Corman,
Limitation of Actions § 1.6,
630
at 36. The law at issue today represents a kind of extreme
variant that, given the legal consensus of unconstitutionality, has
not likely been often enacted in our Nation's history. Cf. 1 J.
Bishop, Criminal Law §
219a, p. 127 (rev. 4th ed. 1868)
(declining to answer whether a law reviving time-barred
prosecutions was
ex post facto in part because "it is not
likely to come before the courts").
Neither should it be surprising if the reasoning in a string of
cases stretching back over nearly 150 years is not perfectly
consistent with modern conceptions of how legal analysis should
proceed. After all,
Beazell v.
Ohio, 269 U. S. 167 (1925), an
opinion relied on by the dissent,
post, at 640, is itself
vulnerable to criticism that its "method of analysis is foreclosed
by this Court's precedents,"
post, at 637. See
Collins, 497 U. S., at 45-46. In assessing the case law, we
find the essential fact to be the unanimity of judicial views that
the kind of statute before us is
ex post facto. See
supra, at 617-619.
The situation is similar with respect to commentators.
Here, the essential fact is that, over a span of well over a
century, commentators have come to the same conclusion, and have
done so with virtual unanimity. See
supra, at 619620. We say
"virtual," for the dissent identifies one commentator who did not,
namely, Joel Bishop-the same commentator relied on 122 years ago by
the dissent in
Moore, supra, at 240. The
Moore
majority rejected Bishop's conclusion. So did other contemporary
courts and commentators.
Supra, at 617-620. We do the
same.
C
The dissent says it is a "fallacy" to apply the label "'unfair
and dishonest'" to this statute, a law that revives long-dead
prosecutions.
Post, at 650. The dissent supports this
conclusion with three arguments. First, it suggests that
"retroactive extension of unexpired statutes of limitations" is no
less unfair.
Ibid. Second, the dissent refers to the
small
631
likelihood that "criminals keep calendars" to mark the
expiration of limitations periods, and it mocks the possibility
that revival "destroys a reliance interest."
Ibid. Third,
the dissent emphasizes the harm that child molestation causes, a
harm that "will plague the victim for a lifetime," and stresses the
need to convict those who abuse children.
Post, at 651.
In making the first argument, the dissent reverses field,
abandoning its historical literalism to appeal to practical
consequences. But history, case law, and constitutional purposes
all are relevant. At a minimum, the first two of these
adequately explain the difference between expired and unexpired
statutes of limitations, and Chase's alternative description of
second category laws itself supports such a distinction. See
supra, at 613-614, 618-619.
In making its second argument, which denies the existence of
significant reliance interests, the dissent ignores the potentially
lengthy period of time (in this case, 22 years) during which the
accused lacked notice that he might be prosecuted and during which
he was unaware, for example, of any need to preserve evidence of
innocence. See
supra, at 609-610. Memories fade, and
witnesses can die or disappear. See
supra, at 615-616. Such
problems can plague child abuse cases, where recollection after so
many years may be uncertain, and "recovered" memories faulty, but
may nonetheless lead to prosecutions that destroy families. See,
e. g., Holdsworth, Is It Repressed Memory with Delayed
Recall or Is It False Memory Syndrome? The Controversy and Its
Potential Legal Implications, 22 Law & Psychol. Rev. 103,
103-104 (1998). Regardless, a constitutional principle must apply
not only in child abuse cases, but in every criminal case. And,
insofar as we can tell, the dissent's principle would permit the
State to revive a prosecution for
any kind of crime without
any temporal limitation. Thus, in the criminal context, the
dissent goes beyond our prior statements of what is
constitutionally permissible even in the
632
analogous civil context.
Chase Securities Corp. v.
Donaldson, 325
U. S. 304, 312, n. 8, 315-316 (1945) (acknowledging that
extension of even an expired
civil limitations period can
unconstitutionally infringe upon a "vested right");
William
Danzer &
Co. v.
Gulf &
Ship Island R.
Co., 268 U. S.
633, 637 (1925) (holding the same). But see
post, at
638, 653. It is difficult to believe that the Constitution grants
greater protection from unfair retroactivity to property than to
human liberty.
As to the dissent's third argument, we agree that the State's
interest in prosecuting child abuse cases is an important one. But
there is also a predominating constitutional interest in forbidding
the State to revive a long-forbidden prosecution. And to hold that
such a law is
ex post facto does not prevent the State from
extending time limits for the prosecution of future offenses, or
for prosecutions not yet time barred.
In sum, California's law subjects an individual such as Stogner
to prosecution long after the State has, in effect, granted an
amnesty, telling him that he is "at liberty to return to his
country ... and that from henceforth he may cease to preserve the
proofs of his innocence," Wharton, Criminal Pleading and Practice §
316, at 210. See also
Moore, 43 N. J. L., at 223-224. It
retroactively withdraws a complete defense to prosecution after it
has already attached, and it does so in a manner that allows the
State to withdraw this defense at will and with respect to
individuals already identified. See
supra, at 611. "Unfair"
seems to us a fair characterization.
IV
The statute before us is unfairly retroactive as applied to
Stogner. A long line of judicial authority supports
characterization of this law as
ex post facto. For the
reasons stated, we believe the law falls within Justice Chase's
second category of
ex post facto laws. We conclude that a
law enacted after expiration of a previously applicable limita-
633
tions period violates the
Ex Post Facto Clause when it is
applied to revive a previously time-barred prosecution. The
California court's judgment to the contrary is
Reversed.
JUSTICE KENNEDY, with whom THE CHIEF JUSTICE, JusTICE SCALIA,
and JUSTICE THOMAS join, dissenting.
California has enacted a retroactive extension of statutes of
limitations for serious sexual offenses committed against minors.
Cal. Penal Code Ann. § 803(g) (West Supp. 2003). The new period
includes cases where the limitations period has expired before the
effective date of the legislation. To invalidate the statute in the
latter circumstance, the Court tries to force it into the second
category of
Calder v.
Bull, 3 Dall. 386 (1798), which
prohibits a retroactive law" 'that
aggravates a crime, or
makes it
greater than it was, when committed.'"
Ante,
at 612 (quoting
Calder, supra, at 390 (emphasis in
original)). These words, in my view, do not permit the Court's
holding, but indeed foreclose it. A law which does not alter the
definition of the crime but only revives prosecution does not make
the crime "greater than it was, when committed." Until today, a
plea in bar has not been thought to form any part of the definition
of the offense.
To overcome this principle, the Court invokes "a long line of
authority holding that a law of this type violates the
Ex Post
Facto Clause."
Ante, at 621. The Court's list of
precedents,
ante, at 617-619, is less persuasive than it may
appear at a first glance. Of the 22 cases cited by the Court, only
4 had to decide whether a revival of expired prosecutions was
constitutional. See
Moore v.
State, 43 N. J. L. 203,
216-217 (1881);
United States v.
Fraidin, 63 F. Supp.
271, 276 (Md. 1945);
People v.
Shedd, 702 P. 2d 267,
268 (Colo. 1985) (en bane)
(per curiam); Commonwealth v.
Rocheleau, 404 Mass. 129, 130-131,533 N. E. 2d 1333, 1334
(1989), cited
ante, at 617. These four cases-which are the
only cases that are relevant-will be discussed in due course.
634
The case of
State v.
Sneed, 25 Tex. Supp. 66, 67
(1860), cited
ante, at 617, is inapposite. There, the court
avoided the issue by holding that the statute was not meant to
apply retroactively. Interpreting the statute so as to avoid
invalidation on constitutional grounds,
Sneed did not pass
on the merits. Even if the court addressed the merits, its cursory
paragraph-long opinion, reproduced by the majority in its entirety,
ante, at 629, contains no reference to Justice Chase's
classification, nor indeed any analysis whatsoever. This unreasoned
opinion scarcely supports the majority's novel interpretation of
Calder's second category.
In the remaining 17 cases, the question was not presented.
As the Court itself concedes, eight of these cases considered
only extensions of unexpired statutes of limitations, and upheld
them.
Ante, at 618. The Court does not mention that nine
other cases have done so as well. See
People ex rel. Reibman
v.
Warden, 242 App. Div. 282, 275 N. Y. S. 59 (1934);
State v.
Hodgson, 108 Wash. 2d 662, 740 P. 2d 848
(1987) (en bane);
State v.
Nunn, 244 Kan. 207, 768 P.
2d 268 (1989);
State v.
O'Neill, 118 Idaho 244, 796
P. 2d 121 (1990);
State v.
Schultzen, 522 N. W. 2d
833 (Iowa 1994);
State v.
Comeau, 142 N. H. 84, 697
A. 2d 497 (1997);
State v.
Hamel, 138 N. H. 392, 643
A. 2d 953 (1994);
Santiago v.
Commonwealth, 428 Mass.
39, 697 N. E. 2d 979 (1998), cited
ante, at 617. Because
these cases did not need to decide whether the
Ex Post Facto
Clause would bar the extension of expired limitations periods, the
question did not receive the same amount of attention as if the
courts were required to dispose of the issue.
The case law compiled by the Court is deficient, furthermore, at
a more fundamental level. Our precedents hold that the reach of the
Ex Post Facto Clause is strictly limited to the precise
formulation of the
Calder categories. We have made it clear
that these categories provide "an exclusive definition of
ex
post facto laws,"
Collins v.
Youngblood, 497 U. S. 37, 42 (1990),
and have admonished that it is
635
"a mistake to stray
beyond Calder's four categories,"
Carmell v.
Texas, 529 U. S. 513, 539
(2000). Justice Chase himself stressed that the categories must be
construed with caution to avoid any unnecessary extension: "I am
under a necessity to give a
construction, or explanation of
the words,
'ex post facto law,' because they have not any
certain meaning attached to them. But I will not go farther than I
feel myself bound to do; and if I ever exercise the jurisdiction I
will not decide
any law to be void, but in a very clear
case." 3 Dall., at 395.
The Court seems to recognize these principles,
ante, at
611-612, but then relies on cases which flatly contradict them. The
opinion of the New Jersey's Court of Errors and Appeals in
Moore v.
State, supra, on which the Court places
special emphasis, see
ante, at 613, 617, 628, 630, 632,
expressly stated that a statute reviving an expired limitations
period "is not covered by any of [Justice Chase's] classes." 43 N.
J. L., at 216. The
Moore court made a fleeting mention that
the statute might fall within Chase's fourth category, but
immediately dismissed this line of inquiry. Instead, it proceeded
to "[l]oo[k] away from his classification to what he states to have
been the motive for and principle sustaining the edict."
Ibid. As
Collins and
Carmell explained, this
expansive approach to the
Ex Post Facto Clause is contrary
to
Calder's admonition that its categories must be followed
with care.
The majority's lengthy defense of
Moore's legitimacy,
ante, at 628, exposes the weaknesses both of that case and
of the Court's opinion. The majority argues
Moore's
statement that the statute was not covered by Justice Chase's
categories referred only to the principal description of these
categories, but not to the alternative one the Court now seeks to
embrace. The view that a statute not covered by Justice Chase's
main formulations-the only formulations our cases have treated as
authoritative-may still be
ex post facto if it falls within
his historical examples is a view no court until
636
today has endorsed. The
Moore court was no exception.
When it held that the state statute was "not covered by any of
[Justice Chase's] classes,"
Moore made clear it was looking
beyond the language of the
Calder categories: "Judge Chase
did not consider his classes as exhaustive," and so "a statute
substantially imposing punishment for a previous act which, without
the statute, would not be so punishable, is an
ex post facto
law, although it may not be included in the letter of Judge Chase's
rules." 43 N. J. L., at 216, 220. The point was further emphasized
by the separate opinion of Chancellor Runyon, a member of the
one-judge
Moore majority that invalidated the law as
ex
post facto: "[W]here the enactment, in whatever guise
legislative ingenuity or subtlety may present it, inflicts the
substantial injury, and does the essential wrong which the
constitution sought to guard against, a true interpretation will
hold it to be within the prohibition."
Id., at 226. The
references to "substantia[l] imposi[tion of] punishment" and
"substantial injury" are reminiscent of the references to
"substantial protections" and "substantial personal rights" used to
enlarge the scope of the
Ex Post Facto Clause and
disapproved of in
Collins. 497 U. S., at 46. By endorsing
Moore, the majority seeks to resurrect this rejected
reasoning here.
The other precedents the Court invokes-both the cases where
extension of expired statutes of limitations was at issue and the
cases which merely opined on the question in dicta-have the same
flaw. The misconception causing it arises from Judge Learned Hand's
dictum, mentioned while holding that an extension of an unexpired
statute of limitations is not
ex post facto, that if the
statute had expired there would be a violation.
Falter v.
United States, 23 F.2d 420,
425 (CA2 1928). Judge
Hand based this distinction on a citation of the faulty decision in
Moore and on his belief that whether an extension of a
limitations period is
ex post facto "turns upon how much
violence is done to our instinctive feelings of justice and fair
play."
Falter, supra, at 425-426.
637
The Court's opinion is premised on the same approach. It relies
on Judge Hand for the proposition that an extension of expired
limitations periods "'seems to most of us unfair and dishonest.'"
Ante, at 611 (quoting
Falter, supra, at 426). In
previous cases, however, the Court has explained that this
conception of our
ex post facto jurisprudence is incorrect:
"[WJhile the principle of unfairness helps explain and shape the
Clause's scope, it is not a doctrine unto itself, invalidating laws
under the
Ex Post Facto Clause by its own force."
Carmell, supra, at 533, n. 23 (citing
W S.
Kirkpatrick &
Co. v.
Environmental Tectonics
Corp., Int'l, 493
U. S. 400, 409 (1990)).
It was the unsupported Hand observation that formed the
rationale applied by many of the cases the Court cites, including
all the
post-Moore cases where expired limitations periods
were at issue. See
Fraidin, 63 F. Supp., at 276 (relying on
Falter and containing no discussion of the
Calder
categories);
Shedd, 702 P. 2d, at 268 (same);
Hodgson,
108 Wash. 2d, at 667-668, 740 P. 2d, at 851 (relying on, and
quoting from,
Falter); Rocheleau, 404 Mass., at 130, 533 N.
E. 2d, at 1334 (containing no
Calder analysis but relying
instead on its earlier decision in
Commonwealth v.
Bargeron, 402 Mass. 589, 524 N. E. 2d 829 (1988), which in
turn was based on
Falter); O'Neill, 118 Idaho, at 246, 796
P. 2d, at 123 (citing
Falter and supplying no analysis of
its own);
State v.
Hirsch, 245 Neb. 31, 39, 511 N. W.
2d 69, 76 (1994) (relying on
Falter); Hamel, 138 N. H., at
395, 643 A. 2d, at 955 (same). Since these cases applied the
methodology our Court has disavowed, they provide the majority with
scant support. None of them even discussed the issue in terms of
Calder's second category, much less construed that category
in the manner to day's decision improperly proposes. The flaw of
these cases is not, as the majority argues, that they are "not
perfectly consistent with modern conceptions of how legal analysis
should proceed,"
ante, at 630; the flaw is that their method
of analysis is foreclosed by this Court's precedents.
638
The majority turns for help to a roster of commentators who
concluded that revival of expired statutes of limitations is
precluded by the
ex post facto guarantee. See
ante,
at 619-620. Some of the commentators applied the same expansive
approach we have declared impermissible in
Collins and
Carmell. Henry Black, on whose work the Court relies the
most, see
ante, at 613, 615, 619, openly acknowledged that
the revival of expired statutes of limitations is not covered by
any of the
Calder categories. See Constitutional
Prohibitions Against Legislation Impairing the Obligation of
Contracts, and Against Retroactive and Ex Post Facto Laws § 227, p.
291 (1887). Black, moreover, relied on the example of the civil
statutes of limitations, which he believed could not be revived.
Id., § 235, at 296-297. The Court's later case law has
rendered this interpretation questionable. See,
e. g., Chase
Securities Corp. v.
Donaldson, 325 U. S. 304, 314-316
(1945). Other commentators relied, often with no analysis, on the
Moore and
Falter line of cases, which were plagued by
methodological infirmities since discovered. See authorities cited
ante, at 619. None of these scholars explained their
conclusion by reference to
Calder's second category.
There are scholars who have considered with care the meaning of
that category; and they reached the conclusion stated in this
dissent, not the conclusion embraced by the majority. In his
treatise on retroactive legislation, William Wade defined the
category as covering the law "which undertakes to aggravate a past
offence, and make it greater than when committed, endeavors to
bring it under some description of transgression against which
heavier penalties or more severe punishments have been denounced:
as, changing the character of an act which, when committed, was a
misdemeanor, to a crime; or, declaring a previously committed
offence, of one of the classes graduated, and designated by the
number of its degree, to be of a higher degree than it was when
committed." Operation and Construction of Retroac-
639
tive Laws § 273, pp. 317-318 (1880). Joel Prentiss Bishop's work
on statutory crimes concluded that a law reviving expired
prosecution "is not within any of the recognized legal definitions
of an
ex post facto law." Commentaries on the Law of
Statutory Crimes § 266, p. 294 (rev. 3d ed. 1901). The author's
explanation is an apt criticism of the Court's opinion: "The
punishment which it renders possible, by forbidding the defense of
lapse of time, is exactly what the law provided when 'the fact'
transpired. No bending of language, no supplying of implied
meanings, can, in natural reason, work out the contrary conclusion
.... The running of the old statute had taken from the courts the
right to proceed against the offender, leaving the violated law
without its former remedy; but it had not obliterated the fact that
the law forbade the act when it was done, or removed from the
doer's mind his original consciousness of guilt."
Id., §
266, at 294-295. In reaching his conclusion, Bishop considered, and
rejected, the argument put forth by the
Moore majority.
Commentaries on the Law of Statutory Crimes,
supra, § 266,
at 295, and n. 5. This rejection does not, as the majority
believes, undermine Bishop's conclusion, see
ante, at 630;
given
Moore's infirmities, it strengthens the validity of
his interpretation.
This definition of
Calder's second category is necessary
for consistency with our accepted understanding of categories one
and three. The first concerns laws declaring innocent acts to be a
crime; the third prohibits retroactive increases in punishment. 3
Dall., at 390. The first three categories guard against the common
problem of retroactive redefinition of conduct by criminalizing it
(category one), enhancing its criminal character (category two), or
increasing the applicable punishment (category three). The link
between these categories was noted by Justice Paterson in
Calder itself:
"The enhancement of a crime, or penalty, seems to come within
the same mischief as the creation of a crime or pen-
640
alty; and therefore they may be classed together."
Id.,
at 397.
The point is well illustrated in
Beazell v.
Ohio,
269 U. S. 167
(1925), whose formulation of the
Calder categories we later
described as "faithful to our best knowledge of the original
understanding of the
Ex Post Facto Clause."
Collins,
497 U. S., at 43.
Beazell involved a retroactively applied
law providing for joint trials for most felonies, with separate
trials allowed only when requested by one of the defendants or the
prosecutor, and only with the leave of the court. 269 U. S., at
168-169. The prior law had provided for separate trials whenever a
defendant so requested.
Id., at 168. Reviewing an
ex post
facto challenge to the new law, the Court noted that the first
three
Calder categories address "the criminal quality
attributable to an act." 269 U. S., at 170. Applying this
definition, the Court held the state statute did not violate the
Ex Post Facto Clause because "[i]t does not deprive [the
defendant] of any defense previously available, nor affect the
criminal quality of the act charged. Nor does it change the legal
definition of the offense or the punishment to be meted out."
Ibid. In other words, the Ohio statute fell into none of the
first three
Calder categories. The second category, as the
Beazell Court understood it, covered those retroactive
statutes which "affect the criminal quality of the act charged [by]
chang[ing] the legal definition of the offense." 269 U. S., at 170.
The California statute challenged by petitioner changes only the
timespan within which the action against him may be filed; it does
not alter the criminal quality assigned to the offense.
The Court's opinion renders the second
Calder category
unlimited and the surrounding categories redundant. A law which
violates the first
Calder category would also violate the
Court's conception of category two, because such a law would
"inflic[t] punishments, where the party was not, by law, liable to
any punishment."
Ante, at 612 (emphasis deleted and internal
quotation marks omitted). The majority
641
attempts to eliminate this redundancy by limiting its definition
to instances where the conduct was criminal, yet if Justice Chase's
alternative description of the second category is supposed to be
definitive of its scope,
ante, at 611, it would seem to
strike broader than the Court's limiting construction. Similarly, a
retroactive law increasing punishment in violation of the third
category would also constitute an "innovation" for which, prior to
the passage of the new law, the offender was not liable,
ante, at 612, and so be prohibited under the Court's
unbounded interpretation of category two. The Court's new
definition not only distorts the original meaning of the second
Calder category, but also threatens the coherence of the
overall
ex post facto scheme.
Realizing the inconsistency, the majority scarcely refers to the
authoritative language Justice Chase used to describe the second
category. Instead, the Court relies on what it terms Justice
Chase's alternative description of that category, which speaks
about laws which "'inflict[ed] punishments, where the party was
not, by law, liable to any punishment.'"
Ante, at 612
(emphasis deleted) (quoting
Calder, 3 Dall., at 389). These
words are not, strictly speaking, a description of the second
category itself; they are a description of the category's
historical origins. Justice Chase used them to refer to certain
laws passed by the British Parliament which led the Founders to
adopt the
Ex Post Facto Clause; he did not intend them as a
definitive description of the laws prohibited by that
constitutional provision.
Ibid. This description of a
category's origins may, of course, shed light on the meaning of
Justice Chase's principal formulation, which was meant to be
definitive. The Court, however, uses Chase's alternative
description as the independent operative definition of that
category. None of our precedents, until today, based their holding
on the language of Justice Chase's alternative description,
certainly not in situations when the statute under review would not
fit within the principal formulation.
642
The Court, in any event, misunderstands the alternative
description. As our precedents have instructed, this description
must be viewed in the context of the history of the British
parliamentary enactments to which Justice Chase referred.
Ante, at 614; cf.
Carmell, 529 U. S., at 526-530
(examining the historical circumstances of the case of Sir John
Fenwick, cited by Justice Chase as an example of the fourth
ex
post facto category, in order "[t]o better understand the type
of law that falls within that category"). With respect to the
second category, Justice Chase provided two examples: the
banishments of Lord Clarendon in 1667 and of Bishop Francis
Atterbury in 1723.
Calder, supra, at 389, and n. :I: (citing
19 Car. II, c. 10; 9 Geo. I, c. 17). A consideration of both
historical episodes confirms that
Calder's second category
concerns only laws which change the nature of an offense to make it
greater than it was at the time of commission, thereby subjecting
the offender to increased punishment.
Justice Chase and, it can be presumed, the Founders were
familiar with the parliamentary proceedings leading to the
banishment of the Earl of Clarendon. Clarendon, former Lord
Chancellor and principal advisor to Charles II, was impeached by
the House of Commons on charges of treason.
Edward Earl of
Clarendon's Trial, 6 How. St. Tr. 292, 330334, 350 (1667)
(hereinafter
Clarendon's Trial); G. Miller, Edward Hyde,
Earl of Clarendon 20-21 (1983). The House of Lords, however,
refused to commit Clarendon to trial, finding the allegations not
cognizable as treason under the law.
Clarendon's Trial 358,
367. With the two Houses deadlocked, Clarendon left the country, an
exit wise for his safety, perhaps, but not for his cause. For upon
his departure the impeachment was abandoned yet Parliament agreed
on a bill banishing Clarendon for treason and imposing an extensive
range of civil disabilities.
Id., at 374, 385, 390-391.
643
The principal objection raised against the impeachment charges
was that they did not, under the law of the time, constitute
treason.
Id., at 342-346, 348-349, 350, 356-360, 367-372.
The objection was not, it must be noted, that the charges were
premised on innocent conduct. (If that were the nature of the
objection, Justice Chase would have used the case to illustrate his
first category, rather than his second one.) In fact, the
impeachment explicitly alleged that Clarendon violated the law. See
id., at 330-333. The objection made by Chase and by later legal
scholars was that by the act of banishment the House sought to
elevate criminal behavior of lower magnitude to the level of
treason, thereby redefining what constitutes a treasonous offense.
Even if Parliament assumed, on the basis of Clarendon's flight,
that the allegations were true, see id., at 389-390, that
constructive admission did not alter the fact that, under the laws
of the time, the allegations could not support a charge of treason.
By enacting the bill, Parliament declared these allegations
sufficient to constitute treason. Some parliamentary colloquy
suggested, moreover, that Clarendon was being punished for his
flight, rather than for offenses alleged. See id., at 389 ("[I]t is
plain, if you proceed upon this bill, you go not upon your
impeachment, but because he is fled from the justice of the land").
A flight from justice was not considered an offense so severe as to
warrant banishment, "the highest punishment next to death."
Id., at 386. If the offense of flight was enhanced because
of the prior offenses, then it was an increase in the gravity of
the crime after its commission. Either way, the legislation
increased the gravity of Clarendon's offense.
The bill passed against Clarendon accomplished what English
common-law scholar Richard Wooddeson described as the danger
against which the second
ex post facto category was designed
to guard. The bill "ma[de] some innovation, or creat[ed] some
forfeiture or disability, not incurred in the ordinary course of
law." 2 A Systematical View of the Laws
644
of England 638 (1792) (hereinafter Wooddeson). It was
Wooddeson's interpretation of the English common law that Justice
Chase relied upon. See
Calder, 3 Dall., at 391;
Carmell,
supra, at 522-523, and n. 10;
ante, at 614. The Court
argues that the innovation deplored by Wooddeson was the imposition
of a sanction (banishment) which, under settled law, was the
prerogative of Parliament, not of the courts.
Ibid. That may
be so, but it cannot help the Court because this is not what
California has done. Section 803(g) did not impose any punishment
not otherwise contained in the California Penal Code. It did what
legislatures have done throughout history: It specified when the
criminal justice system may prosecute certain crimes. The majority
tries to explain away this distinction as "not determinative,"
ibid., but it makes all the difference. By imposing on a
particular offender a punishment not prescribed by the existing
legal norms a legislature signals its judgment that the gravity of
the offense warrants its special intervention. In contrast, by
prescribing general rules for the adjudication of offenses the
legislature leaves the determination of the offender's culpability
entirely to the courts.
The majority's explanation of the English precedents, in all
events, is not the most logical one. Justice Chase's alternative
description covered enactments which "inflicted
punishments,
where the party was not, by
law, liable to
any
punishment." Calder, supra, at 389. Though only a parliamentary
Act could subject an individual to banishment in 17th-century
England, Parliament's power to pass such Acts was unquestioned. See
11 W. Holdsworth, A History of English Law 569 (1938). A sanction
of banishment was acknowledged as a punishment provided for by the
existing laws, both at the time of Clarendon's trial and
afterwards. See,
e. g., Craies, Compulsion of Subjects to
Leave the Realm, 6 L. Q. Rev. 388, 392 (1890) ("[B]anishment,
perpetual or temporary, was well known to the common law"); An Act
for Punishment of Rogues, 39 Eliz. 1, c. 4, s. 4 (1597)
(permit-
645
ting banishment of dangerous rogues); the Roman Catholic Relief
Act, 10 Geo. 4, c. 7, s. 28 (1829) (providing for the banishment of
Jesuits). By law, then, a charge of high treason would have made
Clarendon liable to banishment, which is inconsistent with Justice
Chase's formulation.
To explain away the inconsistency, the Court redefines the words
"by law" to refer only to punishments "not otherwise available 'in
the ordinary course of law.'"
Ante, at 614 (quoting 2
Wooddeson 638). As already explained, it was an accepted procedure
in 17th-century England for Parliament to pass laws imposing
banishment.
The majority must mean, then, that banishment was not available
through the courts. At the time of Clarendon's trial, however,
British courts were empowered to adjudicate treason and to punish
it with death. 1 M. Hale, Pleas of the Crown *348-*351; see also 2
Jowitt's Dictionary of English Law 1799-1800 (2d ed. 1977). If the
charges against Clarendon accurately alleged treason, he was
eligible, through ordinary judicial proceedings, to receive capital
punishment, which was obviously a sanction more severe than
banishment. For the majority's historical explanation to work,
Justice Chase's alternative description of the second category
would have to prohibit laws which inflicted a punishment where the
party was not, through normal judicial proceedings, liable to that
precise punishment but was liable to a greater one. This
formulation can hardly be reconciled with the words Justice Chase
used, much less with his principal formulation of the second
category. A legislature does not make an individual's crime
"greater than it was, when committed,"
Calder, supra,
at 390, by assigning a punishment less severe than the one
available through the courts.
If Justice Chase's reference to Clarendon's trial is to have
explanatory power, one must look for an alternative interpretation.
What was repulsive to Chase and Wooddeson in Clarendon's trial was
not the imposition of banishment as such, but that the sanction was
outside the limits of what
646
Clarendon's offense merited under the law established at the
time of its commission, and was instead premised on Parliament's
exaggeration of the gravity of the offense. Viewed this way, the
Clarendon example lends no support to the majority's position, but
instead undercuts it.
It must be acknowledged that, as the majority points out, a
number of historians have treated one of the charges levied against
Clarendon, that of betraying the King's secrets to the enemy, as
impeachable treason.
Ante, at 622-623. The historical
judgment, however, is not as uniform as the Court makes it seem.
See 7 E. Foss, Judges of England 130 (1864) ("No one can read the
articles [against Clarendon] without seeing the weakness and
frivolity of the allegations, none of them, even if true, amounting
to treason"); R. Berger, Impeachment: The Constitutional Problems
45-46 (1974) (explaining the articles of impeachment against
Clarendon as based on the Parliament's power to declare certain
nontreasonous offenses to be treason).
Historians are in agreement, though, that the Commons could not
substantiate the charge of betraying secrets to the enemy. 2 H.
Hallam, Constitutional History of England:
From the Accession of Henry VII to the Death of George II 367,
373 (rev. ed. 1881); Roberts, The Impeachment of the Earl of
Clarendon, 13 Camb. Hist. J. 13-14 (1957); Roberts, The Law of
Impeachment in Stuart England, 84 Yale L. J. 1419, 1426 (1975);
Berger,
supra, at 45, n. 193. It is due to this absence of
evidence that the Commons refused to produce particulars of the
treason charge against Clarendon, insisting instead the Lords trust
their word that the underlying conduct was treasonous. Although the
technical grounds for the Lords' objection to this charge was the
lack of specificity, the objection can also be viewed as reflecting
a belief that the Commons were attempting to aggravate Clarendon's
offenses by labeling them as treason absent any justification. As
Henry Hallam has explained in his respected study of the English
constitutional history, "if the
647
house of lords shall be of opinion, either by consulting the
judges or otherwise, that no treason is specially alleged, they
should, notwithstanding any technical words, treat the offence as a
misdemeanor." 2 Hallam,
supra, at 413. Justice Chase could
have viewed the betrayal of secrets charge in a similar way, as a
subterfuge through which the Commons were trying to elevate
Clarendon's offenses to the level of treason.
The proposed interpretation of Clarendon's example is reinforced
by considering the proceedings against Bishop Francis Atterbury,
who, in the midst of hysteria over both real and supposed Jacobite
plots, was accused of conspiracy to depose George 1. The evidence
against Atterbury was meager, and supporters of the Crown, fearing
that neither the common-law courts nor even the House of Lords
would convict, introduced a bill of banishment. G. Bennett, Tory
Crisis in Church and State, 1688-1730, pp. 258-265 (1975);
Bishop Atterbury's Trial, 16 How. St. Tr. 323, 640 (1723)
(reprint 2000) (hereinafter
Atterbury's Trial). The bill
declared Atterbury a traitor, and subjected him to a range of
punishments not previously imposed, including exile and civil
death.
Id., at 644-646; Bennett,
supra, at 265. The
Duke of Wharton, who registered the lengthiest dissent, commented
that "this Bill seems as irregular in the punishments it inflicts,
as it is in its foundation, and carries with it an unnatural degree
of hardship."
Atterbury's Trial 691. The only bill of
comparable harshness was the Act banishing Clarendon. Those
sanctions were more mild, id., at 691-692, but, as we have seen,
just as violative of the rule against penalties imposed after the
fact. As in the case of Clarendon, Parliament adjudged Atterbury's
offense to be so grave as to merit a singularly severe punishment.
The bill designed vindictive forfeitures and disabilities not
imposed in the ordinary course of law.
The Atterbury case illustrates again the close relationship
between the second and the third
Calder categories. See
648
supra, at 639-640 (quoting
Calder, 3 Dall., at 397
(Paterson, J.)). As already explained,
supra, at 640-641,
the Court's misconstruction of Justice Chase's historical examples
takes the second category out of this logical continuum. Contrary
to the majority's belief,
ante, at 625, an interpretation
which highlights the link between these two categories is more
faithful to the original understanding. Richard Wooddeson, the
Court's preferred commentator, discussed these two categories
together, noting that both "principally affect
the
punishment." 2 Wooddeson 638-640; see also
id., at
624.
Atterbury's trial also illustrates why the majority's
interpretation of the historical examples as premised on the
courts' inability to impose banishment is untenable. See
supra, at 645-646. Had Atterbury been convicted of treason
through the courts, he would have been subject to capital
punishment. Parliament's decision to prosecute Atterbury may have
been driven by fear of backlash provoked by a death sentence, for
Atterbury enjoyed considerable popularity and sympathy in some
circles. See Bennett,
supra, at 259. Wooddeson speculated,
in an observation in tension with the majority's interpretation,
that Atterbury's sentence may have been motivated by a desire "of
mitigating punishment." 2 Wooddeson 639. The mitigation, of course,
was in comparison to the possible death verdict, not, as already
explained, in comparison to the ordinary noncapital punishment
Atterbury could have received.
Clarendon's and Atterbury's trials show why Stogner's case does
not belong in
Calder's second
ex post facto category.
The California Legislature did not change retroactively the
description of Stogner's alleged offense so as to subject him to an
unprecedented and particularly severe punishment. The offense is
described in the same terms as before the passage of § 803(g); the
punishment remains the same. The character of the offense is
therefore unchanged; it is perceived by the criminal justice system
in the same way as before, and punished with the same force. The
only
649
change is that Stogner may now be prosecuted, whereas prior to
the statute the prosecution could not have taken place. These
illustrative examples, then, suggest the second
Calder
category encompasses only the laws which, to the detriment of the
defendant, change the character of the offense to make it greater
than it was at the time of commission.
The majority seems to suggest that retroactive extension of
expired limitations periods is "'arbitrary and potentially
vindictive legislation,'"
ante, at 611 (quoting
Weaver v.
Graham,
450 U. S. 24, 29, and n.
10 (1981)), but does not attempt to support this accusation. And it
could not do so. The California statute can be explained as
motivated by legitimate concerns about the continuing suffering
endured by the victims of childhood abuse.
The California Legislature noted that "young victims often delay
reporting sexual abuse because they are easily manipulated by
offenders in positions of authority and trust, and because children
have difficulty remembering the crime or facing the trauma it can
cause."
People v.
Frazer, 21 Cal. 4th 737, 744, 982
P. 2d 180, 183-184 (1999). The concern is amply supported by
empirical studies. See,
e. g., Summit, Abuse of the Child
Sexual Abuse Accommodation Syndrome, in 1 J. of Child Sexual Abuse
153, 156-163 (1992); Lyon, Scientific Support for Expert Testimony
on Child Sexual Abuse Accommodation, in Critical Issues in Child
Sexual Abuse 107, 114-120 (J. Conte ed. 2002).
The problem the legislature sought to address is illustrated
well by this case. Petitioner's older daughter testified she did
not report the abuse because she was afraid of her father and did
not believe anyone would help her. After she left petitioner's
home, she tried to forget the abuse. Petitioner's younger daughter
did not report the abuse because she was scared. He tried to
convince her it was a normal way of life. Even after she moved out
of petitioner's house, she was afraid to speak for fear she would
not be
650
believed. She tried to pretend she had a normal childhood. It
was only her realization that the father continued to abuse other
children in the family that led her to disclose the abuse, in order
to protect them.
The Court tries to counter by saying the California statute is
"'unfair and dishonest'" because it violated the State's initial
assurance to the offender that" 'he has become safe from its
pursuit'" and deprived him of "the 'fair warning.'"
Ante, at
611 (quoting
Falter v.
United States, 23 F. 2d, at
426; Weaver, supra, at 28). The fallacy of this rationale is
apparent when we recall that the Court is careful to leave in place
the uniform decisions by state and federal courts to uphold
retroactive extension of unexpired statutes of limitations against
an
ex post facto challenge.
Ante, at 613.
There are two rationales to explain the proposed dichotomy
between unexpired and expired statutes, and neither works. The
first rationale must be the assumption that if an expired statute
is extended, the crime becomes more serious, thereby violating
category two; but if an unexpired statute is extended, the crime
does not increase in seriousness. There is no basis in logic, in
our cases, or in the legal literature to support this distinction.
Both extensions signal, with equal force, the policy to prosecute
offenders.
This leaves the second rationale, which must be that an
extension of the expired statute destroys a reliance interest. We
should consider whether it is warranted to presume that criminals
keep calendars so they can mark the day to discard their records or
to place a gloating phone call to the victim. The first expectation
is minor and likely imaginary; the second is not, but there is no
conceivable reason the law should honor it. And either expectation
assumes, of course, the very result the Court reaches; for if the
law were otherwise, there would be no legitimate expectation. The
reliance exists, if at all, because of the circular reason that the
Court today says so; it does not exist as part of our traditions or
social understanding.
651
In contrast to the designation of the crime, which carries a
certain measure of social opprobrium and presupposes a certain
punishment, the statute of limitations has little or no deterrent
effect. See Note, Retroactive Application of Legislatively Enlarged
Statutes of Limitations for Child Abuse: Time's No Bar to Revival,
22 Ind. L. Rev. 989, 1014 (1989) ("The statute of limitations has
no measurable impact on allegedly criminal behavior, neither
encouraging nor deterring such conduct"); Note, Ex Post Facto
Limitations on Legislative Power, 73 Mich. L. Rev. 1491, 1513
(1975) ("[WJhile many defendants rely on substantive definitions of
proscribed conduct, few rely on many of the numerous laws
regulating the enforcement processes"). The Court does not claim a
sex offender would desist if he knew he would be liable to
prosecution when his offenses were disclosed.
The law's approach to the analogous problem of reliance by
wrongdoers in the civil sphere is instructive. We have held that
expired statutes of limitations can be repealed to revive a civil
action. See,
e. g., Chase Securities Corp., 325 U. S., at
314;
Plaut v.
Sprendthrift Farm, Inc., 514 U. S. 211, 229
(1995). These holdings were made in the areas of contracts and
investments where reliance does exist and does matter. We allow the
civil wrong to be vindicated nonetheless. If we do so in the civil
sphere where reliance is real, we should do so in the criminal
sphere where it is, for the most part, a fictional construct.
When a child molester commits his offense, he is well aware the
harm will plague the victim for a lifetime. See Briere & Runtz,
Post Sexual Abuse Trauma: Data and Implications for Clinical
Practice, 2 J. of Interpersonal Violence 367,374-376 (1987); 1 J.
Myers, Evidence in Child Abuse and Neglect Cases § 4.2, pp. 221-223
(2d ed. 1992); Browne & Finkelhor, Initial and Long-Term
Effects: A Review of the Research, in A Sourcebook on Child Sexual
Abuse 143, 150164 (D. Finkelhor et al. eds. 1986). The victims
whose interests § 803(g) takes into consideration have been
subjected to
652
sexual abuse within the confines of their own homes and by
people they trusted and relied upon for protection. A familial
figure of authority can use a confidential relation to conceal a
crime. The violation of this trust inflicts deep and lasting hurt.
Its only poor remedy is that the law will show its compassion and
concern when the victim at last can find the strength, and know the
necessity, to come forward. When the criminal has taken distinct
advantage of the tender years and perilous position of a fearful
victim, it is the victim's lasting hurt, not the perpetrator's
fictional reliance, that the law should count the higher. The
victims whose cause is now before the Court have at last overcome
shame and the desire to repress these painful memories. They have
reported the crimes so that the violators are brought to justice
and harm to others is prevented. The Court now tells the victims
their decision to come forward is in vain.
The gravity of the crime was known, and is being measured, by
its wrongfulness when committed. It is a common policy for States
to suspend statutes of limitations for civil harms against minors,
in order to "protec[t] minors during the period when they are
unable to protect themselves." 2 C. Corman, Limitation of Actions §
10.2.1, p. 104 (1991). Some States toll the limitations periods for
minors even where a guardian is appointed, see id., at 105-106, and
even when the tolling conflicts with statutes of repose, id., at
108. The difference between suspension and reactivation is so
slight that it is fictional for the Court to say, in the given
context, the new policy somehow alters the magnitude of the crime.
The wrong was made clear by the law at the time of the crime's
commission. The criminal actor knew it, even reveled in it. It is
the commission of the then-unlawful act that the State now seeks to
punish. The gravity of the crime is left unchanged by altering a
statute of limitations of which the actor was likely not at all
aware.
653
The California statute does not fit any of the remaining
Calder categories: It does not criminalize conduct which was
innocent when done; it allows the prosecutor to seek the same
punishment as the law authorized at the time the offense was
committed and no more; and it does not alter the government's
burden to establish the elements of the crime. Any concern about
stale evidence can be addressed by the judge and the jury, and by
the requirement of proof beyond reasonable doubt. Section 803(g),
moreover, contains an additional safeguard: It conditions
prosecution on a presentation of independent evidence that
corroborates the victim's allegations by clear and convincing
evidence. Cal. Penal Code Ann. §§ 803(g)(1), (2)(B) (West Supp.
2003). These protections, as well as the general protection against
oppressive prosecutions offered by the Due Process Clause, should
assuage the majority's fear,
ante, at 631, that the statute
will have California overrun by vindictive prosecutions resting on
unreliable recovered memories. See
United States v.
Lovasco, 431
U. S. 783, 789 (1977).
The statute does not violate petitioner's rights under the Due
Process Clause. We have held, in the civil context, that expired
statutes of limitations do not implicate fundamental rights under
the Clause. See,
e. g., Chase Securities Corp., supra, at
314. For reasons already explained, see
supra, at 652, there
is no reason to reach a different conclusion here.
The Court's stretching of
Calder's second category
contradicts the historical understanding of that category, departs
from established precedent, and misapprehends the purposes of the
Ex Post Facto Clause. The Court also disregards the
interests of those victims of child abuse who have found the
courage to face their abusers and bring them to justice. The
Court's opinion harms not only our
ex post facto
jurisprudence but also these and future victims of child abuse, and
so compels my respectful dissent.
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