Stogner v. California

United States Supreme Court

123 S.Ct. 2446 (2003)

 

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. … 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].” … The statute thus authorizes prosecution for criminal acts committed many years beforehand--and where the original limitations 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. Without 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. … 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, Amdt. 14, §1. The trial court denied Stogner’s motion, and the Court of Appeal upheld that denial. … We granted certiorari to consider Stogner’s constitutional claims. …

 

II

 

            The Constitution’s two Ex Post Facto Clauses prohibit the Federal Government and the States from enacting laws with certain retroactive effects. … 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.

 

            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 the Court 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). …

 

            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. … Drawing substantially on Richard Wooddeson’s 18th-century commentary on the nature of ex post facto laws and past parliamentary abuses, Chase divided ex post facto laws into categories that he described in two alternative ways. … 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.” …

 

            In his alternative description, Chase traced these four categories 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: “[A]t 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: “[A]t 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.” …

 

            The second category--including any “law that aggravates a crime, or makes it greater than it was, when committed,” …--describes California’s statute as long as those words are understood as Justice Chase understood them--i.e., as referring to a statute that “inflict[s] punishments, where the party was not, by law, liable to any punishment.” … 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. … 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. …

 

            So to understand the second category (as applying where a new law inflicts a punishment upon a person not then subject 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.’” …

 

            Following Wooddeson, Chase cited as examples of such laws Acts of Parliament that banished certain individuals accused of treason. … Both Chase and Wooddeson explicitly referred to these laws as involving “banishment.” …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.” … Thus, these laws, like the California law at issue here, enabled punishment where it was not otherwise available “in the ordinary course of law,” … As this Court previously recognized in Carmell [v.Texas (2000)] … 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. … The second difference seems beside the point. The example of 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. …

 

            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.” … This Court has described that category as including laws that diminish “the quantum of evidence required to convict.” …

 

            Significantly, a statute of limitations reflects a legislative judgment that, after a certain time, no quantum of evidence is sufficient to convict. …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. …Indeed, this Court once described statutes of limitations as creating “a presumption which renders proof unnecessary.” …

 

            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[ted]’ “ as sufficient proof of a crime. …

 

            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.” … 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,” … and threatened an injustice tantamount to “judicial murder.” … In this instance, Congress ultimately passed a law extending unexpired limitations periods--a tailored approach to extending limitations periods that has also been taken in modern statutes. …

 

            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. … Courts … have continued to state such views, and, when necessary, so to hold. …

 

            Even where courts have upheld extensions of unexpired statutes of limitations … they have consistently distinguished situations where limitations periods have expired. 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. …

 

            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. … 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. …

 

            [W]e 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 a long line of authority holding that a law of this type violates the Ex Post Facto Clause. …

 

III

           

            … 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.”... 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. … “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 limitations 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. … 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, … which prohibits a retroactive law “ ‘that aggravates a crime, or makes it greater than it was, when committed.’” … 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 13. The Court’s list of precedents, … 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. …

 

            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,” … and have admonished that it is “a mistake to stray beyond Calder’s four categories.” …

 

            The Court seems to recognize these principles, … but then relies on cases which flatly contradict them. …

 

            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 accusers 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.