A Pending Supreme Court Case Addresses Ex Post Facto Laws:
Part One of a Two-Part Series on Unconstitutional Retroactive Criminal Legislation

This column is Part One of a two-part series by Professor Amar on the Constitution's Ex Post Facto clauses. - Ed.

On March 31, the Supreme Court heard arguments in Stogner v. California, a case involving the Constitution's ban on ex post facto laws. The Court's decision, which will be issued in the coming months, is likely to shed significant light on its current thinking about this important prohibition.

The prohibition itself derives from two separate Ex Post Facto Clauses in the Constitution - one limiting the States, and the other limiting the federal government. Unfortunately, both clauses simply forbid the passage of "ex post facto Law[s]" without further defining that term. As a result, the precise scope of the constitutional ban is not entirely clear.

Everyone agrees that the idea of retroactivity is key to understanding ex post facto, and that some retroactive criminal laws are unconstitutional under the clauses. But which, exactly? A law purporting to make past behavior that was innocent when undertaken the basis for current criminal liability is plainly an ex post facto law. But what about a law that effects some change less drastic than making innocent behavior criminal - for example, a law extending the period during which always-criminal behavior can be prosecuted?

Citizens, lawyers, and law professors don't talk much about ex post facto issues, and the Supreme Court doesn't decide many ex post facto cases. For this reason, it is especially important for the Court to get each such case right. In Stogner, though, that may not happen - for reasons I'll explore in this column and the next.

The Facts of Stogner, and the Ex Post Facto Challenge

Marion Stogner's daughters allege that, between 1955 and 1973, he sexually molested them. During that time period, the statute of limitations for a criminal complaint of child molestation was three years after the crime was alleged to have occurred.

In 1994, the California legislature passed a law saying that, effective January 1, 1994, a criminal complaint against a serious child molester need not be filed within this three-year period. Instead, it may be filed within one year of the date the victim first reported the crime to a California law enforcement agency, provided there is "independent evidence [that is, evidence apart from the victim's report and the opinions of mental health professionals] that clearly and convincingly corroborates the victim's allegation."

In 1998, Stogner's daughters complained of the alleged molestations, and offered independent evidence to support their accusations. Within a year, a criminal complaint was brought.

The daughters claim their suit was timely under the 1994 law. But Stogner argues that under the Ex Post Facto Clause limiting States, the 1994 law is unconstitutional as applied to him. He contends that the three-year statute of limitations governing his alleged misconduct expired long ago. And he says that California cannot constitutionally revive these charges through the 1994 law.

Certainly, to apply the 1994 law to incidents occurring in 1955-73 is to apply it retroactively. But is this the kind of retroactive application of a criminal law that the Ex Post Facto clauses prohibit? That is the question the Supreme Court now must answer.

The Essence of Ex Post Facto

To the Framers, these clauses were so urgent that they were embodied in the original 1787 document - not the Bill of Rights, enacted a few years later. As this history indicates, we are dealing with a basic principle - one that the People of the United States from the outset felt should command nearly universal agreement in a free Republic.

At its core, the principle is this: Congress and state legislatures may not later make conduct criminal that was perfectly lawful when done. In other words, if conduct is legally innocent at a given time, when undertaken by person, a legislature may not pass, at some later time, a law that says the person's conduct at the prior time now can be the basis for criminal liability.

The justifications for this ban are both powerful and simple. Indeed, they are so powerful that ex post facto laws probably would be held implicitly unconstitutional, under several other provisions, even if they were not expressly banned in the Constitution.

First, ex post facto laws violate the separation of powers. When a legislature makes an ex post facto law, it knows (or at least is able to know) whom it is transforming into a criminal. But it is the job of the executive branch and the courts - not the legislature - to mete out punishment against individuals. Legislatures, by contrast, are supposed to make rules of general application that have nothing to do with individual personalities. (In this regard, the ban on ex post facto laws is related to the clause banning Bills of Attainder - that is, legislative punishments naming particular individuals.)

Second, ex post facto laws may violate First Amendment principles. Legislatures could easily use them to transform political enemies into "criminals" based on previous, then-non-criminal behavior. The "chilling effect" to speech would be severe. And the First Amendment is designed, at its core, to allow dissent from existing government policies to flourish.

Third, ex post facto laws are unfair - and thus also implicate broader notions about constitutional due process. Two of the most elemental principles of due process are these: The government must provide individuals with proper notice of the consequences of their actions. And, the government may not undermine legitimate reliance by individuals based on messages the government sends.

Thus, if a prosecutor promises, before you jaywalk, that he will not prosecute you, he should be bound by that promise if you rely on it. Similarly, if a prosecutor promises you a plea bargain, he should not be able to back out after you have confessed the crime.

In short, the ex post facto ban is an illustration of an overarching constitutional concern with systematic unfairness. Government has to treat individuals - even criminals - with dignity, respect and basic honesty.

Is the California Law At Issue in Stogner Ex Post Facto?

Given these background principles, here are a few questions the Court should be asking itself in Stogner: What are the purposes behind the original, three-year statute of limitation? Through this law, did the government send an important message inducing meaningful reliance by individuals?

Suppose, on the one hand, that a statute of limitations is merely a rule of practical necessity. It exists only because memories fades, documents are lost, and we simply have reduced confidence in trials that take place long after crimes occur because of evidentiary problems.

From this perspective, California's retroactive change seems more defensible and less unfair. After all, the new 1994 law allows for prosecution only where there is independent corroborating evidence of the victim's allegations.

Indeed, perhaps retroactive changes similar to this one can actually improve justice: Consider a complaint that could not have been filed in the past because of evidence-collecting limitations - say, due to imperfections in DNA testing. Shouldn't that complaint be able to be filed today if there are improvements in evidence-gathering or analysis - say, improved DNA tests?

If that is true, California's stance here looks more justified. Suppose that, at one point in time, adults' testimony about events that allegedly took place when they were children was not judged to be trustworthy. But suppose also that today, social science and other data today may indicate that such after-the-fact allegations are reliable evidence indeed. Shouldn't the new science be able to be reflected not only in evidence rules, but also in retroactive statute of limitations extensions in cases that authorities once were reluctant to prosecute, but are now are willing to pursue?

But suppose, on the other hand, we view a statute of limitations like a Presidential or gubernatorial pardon - absolving moral and criminal culpability - that is issued after the existing statute of limitations period has run.

From this alternative perspective, California's retroactive change looks worse. California struck a deal with individual citizens about how wrongful it would consider their deeds committed in the distant past. Now it's reneging on the deal.

In a related vein, if individuals (like Mr. Stogner) who committed acts that were criminal when done could show how they reasonably relied on the three-year statute of limitations law, in moving on with their lives after the statutory period had run, then such reliance should perhaps be respected. Or if individuals could show that they tossed aside exculpatory evidence after the statute of limitations period had expired because they thought they were in the clear, we should take account of that too.

Which Is the Better View of Statutes of Limitations, For Ex Post Facto Purposes?

My own tentative view favors the first perspective. That is, I tend to believe that statutes of limitations exist because of practical litigation difficulties - not because of the state's desire to pardon or exonerate knowing criminals after the statutory period has run.

Exclusionary rules provide a strong analogy: Under these rules, wrongfully obtained but relevant evidence is kept out of courts. The idea isn't that the person has not committed a crime, but rather that another value - respecting Fourth Amendment rights - trumps. Similarly, statutes of limitation arguably do not negate criminality, when they expire; they say only that, at that point, another value - avoiding waste of resources when the state lacks strong enough evidence to win at trial - trumps.

What about reliance? A political protester who counts on his speech not being criminal has an excellent reliance argument. A criminal who knowingly molests children, in violation of clear and time-honored bans on such conduct, does not - for several reasons.

First, certainly a criminal does not "rely" on a short three-year statute of limitations period in deciding to commit the crime in the first place. Only the most foolhardy criminal could claim, "I assumed they'd never catch me; after all, they only had three brief years to investigate and bring a complaint." And even if he did, why would we credit that kind of reliance?

Second, I don't think a child molester can say "once the statutory period had expired, I thought I was in the clear, so I moved on with my life." The reality is that criminals move on with their lives whether or not they think they are in the clear. Nor do I believe that child molesters can easily claim that they discarded exculpatory evidence in reliance on the statute of limitations having run.

By comparison, statutes of limitation in the civil realm (in areas such as tort and contract law) implicate far more real-world reliance: Businesses make investments taking into account when they will expire. An acquiring company must account for potential liabilities of the company it's buying before, but not after, the relevant statutes of limitations have expired.

The comparison is significant, for in the civil realm, where there is more reliance, the Supreme Court has held that retroactive changes are perfectly permissible, despite due process objections.

A Change in Evidence, Or A Change in Criminality?

In sum, to my mind, California has not changed the basic rules of criminal conduct. It has always been unlawful to sexually molest your daughter. Everyone in that State has always been put on notice of that.

Instead, California has changed when and how such inherently wrongful conduct may be proven in court. That is akin to a change in evidentiary rules, not a change in the basic law of what is, and is not, a crime.

Even if I am correct, however, in viewing Stogner's case as similar to one involving a change in the rules of evidence, the State of California may not win. That is because a wrongheaded ruling by the Supreme Court a few years ago, Carmell v. Texas, suggests the Ex Post Facto Clauses apply to all significant changes in evidentiary rules.

In my next column, I will consider what led to that erroneous Carmell ruling, how the error there may influence Stogner's case, and how the fate of various recent Congressional statutes may be linked to Stogner's.