Rogers v. Tennessee

Supreme Court of the United States

532 U.S. 451 (2001)

JUSTICE O’CONNOR delivered the opinion of the Court.

      [Rogers stabbed a man, who died some 15 months later.  After his conviction of second degree murder, he appealed on the basis of the common law “year and a day rule,” which provides that no defendant can be convicted of murder unless his victim died by the defendant’s act within a year and a day of the act.  The Tennessee Supreme Court abolished the rule and applied its decision to petitioner to uphold his conviction.]

      This case concerns the constitutionality of the retroactive application of a judicial decision abolishing the common law “year and a day rule.” * * *

      Although petitioner’s claim is one of due process, the Constitution’s Ex Post Facto Clause figures prominently in his argument. The Clause provides simply that “no State shall ... pass any ... ex post facto Law.” Art. I, § 10, cl. 1. The most well-known and oft-repeated explanation of the scope of the Clause’s protection was given by Justice Chase, who long ago identified, in dictum, four types of laws to which the Clause extends:

“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 offense, in order to convict the offender.” Calder v. Bull, 3 Dallas 386, 390 (1798)

      [L]imitations on ex post facto judicial decisionmaking are inherent in the notion of due process. . . . [T]his Court has often recognized the “basic principle that a criminal statute must give fair warning of the conduct that it makes a crime.”  Deprivation of the right to fair warning, we continued, can result both from vague statutory language and from an unforeseeable and retroactive judicial expansion of statutory language that appears narrow and precise on its face.  For that reason, “if a judicial construction of a criminal statute is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,’ [the construction] must not be given retroactive effect.” Bouie v. City of Columbia, 378 U.S. 347, 354 (1964) (quoting J. Hall, General Principles of Criminal Law 61 (2d ed. 1960)). * * *

      Petitioner observes that the Due Process and Ex Post Facto Clauses safeguard common interests -- in particular, the interests in fundamental fairness (through notice and fair warning) and the prevention of the arbitrary and vindictive use of the laws. While this is undoubtedly correct, petitioner is mistaken to suggest that these considerations compel extending the strictures of the Ex Post Facto Clause to the context of common law judging. The Ex Post Facto Clause, by its own terms, does not apply to courts. Extending the Clause to courts through the rubric of due process thus would circumvent the clear constitutional text. It also would evince too little regard for the important institutional and contextual differences between legislating, on the one hand, and common law decisionmaking, on the other.

      Petitioner contends that state courts acting in their common law capacity act much like legislatures in the exercise of their lawmaking function, and indeed may in some cases even be subject to the same kinds of political influences and pressures that justify ex post facto limitations upon legislatures.  A court’s “opportunity for discrimination,” however, “is more limited than [a] legislature’s, in that [it]  can only act in construing existing law in actual litigation.” James v. United States, 366 U.S. 213, 247, n. 3, 6 L. Ed. 2d 246, 81 S. Ct. 1052 (1961) (Harlan, J., concurring in part and dissenting in part).  Moreover, “given the divergent pulls of flexibility and precedent in our case law system,” ibid. incorporation of the Calder categories into due process limitations on judicial decisionmaking would place an unworkable and unacceptable restraint on normal judicial processes and would be incompatible with the resolution of uncertainty that marks any evolving legal system. * * *

      [A]t the time of petitioner’s crime the year and a day rule had only the most tenuous foothold as part of the criminal law of the State of Tennessee. The rule did not exist as part of Tennessee’s statutory criminal code. And while the Supreme Court of Tennessee concluded that the rule persisted at common law, it also pointedly observed that the rule had never once served as a ground of decision in any prosecution for murder in the State. Indeed, in all the reported Tennessee cases, the rule has been mentioned only three times, and each time in dicta. * * *

The judgment of the Supreme Court of Tennessee is accordingly affirmed.

It is so ordered. 

JUSTICE SCALIA, with whom JUSTICE STEVENS and JUSTICE THOMAS join, and with whom JUSTICE BREYER joins as to Part II, dissenting.

      The Court today approves the conviction of a man for a murder that was not murder (but only manslaughter) when the offense was committed. It thus violates a principle—encapsulated in the maxim nulla poena sine lege—which “dates from the ancient Greeks” and has been described as one of the most “widely held value-judgments in the entire history of human thought.” J. Hall, General Principles of Criminal Law 59 (2d ed. 1960). Today’s opinion produces, moreover, a curious constitution that only a judge could love. One in which (by virtue of the Ex Post Facto Clause) the elected representatives of all the people cannot retroactively make murder what was not murder when the act was committed; but in which unelected judges can do precisely that. One in which the predictability of parliamentary lawmaking cannot validate the retroactive creation of crimes, but the predictability of judicial lawmaking can do so. I do not believe this is the system that the Framers envisioned—or, for that matter, that any reasonable person would imagine. * * *

      . . . . Madison wrote that “ex-post-facto laws ... are contrary to the first principles of the social compact, and to every principle of social legislation.” The Federalist No. 44, p. 282 (C. Rossiter ed. 1961). I find it impossible to believe, as the Court does, that this strong sentiment attached only to retroactive laws passed by the legislature, and would not apply equally (or indeed with even greater force) to a court’s production of the same result through disregard of the traditional limits upon judicial power. Insofar as the “first principles of the social compact” are concerned, what possible difference does it make that “[a] court’s opportunity for discrimination” by retroactively changing a law “is more limited than a legislature’s, in that it can only act in construing existing law in actual litigation”? The injustice to the individuals affected is no less.

      Even if I agreed with the Court that the Due Process Clause is violated only when there is lack of “fair warning” of the impending retroactive change, I would not find such fair warning here. It is not clear to me, in fact, what the Court believes the fair warning consisted of. Was it the mere fact that “the year and a day rule is widely viewed as an outdated relic of the common law”? So are many of the elements of common-law crimes, such as “breaking the close” as an element of burglary, or “asportation” as an element of larceny. See W. LaFave & A. Scott, Criminal Law 631-633, 708-710 (1972). Are all of these “outdated relics” subject to retroactive judicial rescission? Or perhaps the fair warning consisted of the fact that “the year and a day rule has been legislatively or judicially abolished in the vast majority of jurisdictions recently to have addressed the issue.” But why not count in petitioner’s favor (as giving him no reason to expect a change in law) those even more numerous jurisdictions that have chosen not “recently to have addressed the issue”? . . .

      In any event, as the Court itself acknowledges, “due process ... does not require a person to apprise himself of the common law of all 50 States in order to guarantee that his actions will not subject him to punishment in light of a developing trend in the law that has not yet made its way to his State.” * * *