Friday, March 28, 2003
The second case for next Monday is Stogner v. California. Stogner was charged in 1998 with child molestation, occurring between 1955 and 1973. During that '55-'73 time frame, and for many years after, California's statute of limitations applicable to such charges was three years. However, well after three years had passed since these (alleged) crimes, the State changed the statute of limitations, and provided that charges could be brought at any time within a year after the complainant came forward to police, even if (as in this case) that took place a long time after the molestation. The question is whether this after-the-fact extension of the limitations period – coming after Stogner could have (if he had thought about it) rested comfortable in the assurance that the limitations period had already run – violates the U.S. Constitution, either the ex post facto clause or the due process clause. Here is the California appellate court's decision, ruling against Stogner. Here is an old post from the Volokh Conspiracy, quoting something written by Marty Lederman about the ex post facto issue, which helped me greatly in figuring out this case. (Marty is now part of the SCOTUSblog crew.)
First, let's take the Ex Post Facto issue. Our guidepost here is the decision a couple of years ago in Carmell v. Texas, in which the Supreme Court – by a very unusual 5-4 lineup – held that a Texas statute violated the Ex Post Facto clause. As you can see from the Carmell opinion, the Court's analysis of the Ex Post Facto clause treats a passage in the 1798 opinion of Justice Chase in Calder v. Bull as the definitive and dispositive text on Ex Post Facto. Under this formulation, a law violates the Ex Post Facto clause only if it does one of these four things:
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. My hunch is that the majority of the Court won't think that any of these four categories includes a law reviving the right of prosecution, after the limitations period has passed. The words of those four categories just don't quite fit this situation; and that will, I think, be the end of the matter for at least five Justices.
How about the Due Process issue, then? Although I personally see this as a more fertile ground for Stogner – because I think that yanking the limitations rug out from under somebody in the criminal context, after the limitations period has already run, is fundamentally unfair – I don't foresee Stogner faring any better with that. My hunch is that the majority will say that the Ex Post Facto clause is where the Framers put all their thoughts about when criminal laws can be changed retroactively; and so, if this law doesn't violate the specific EPF clause, it doesn't violate the more general Due Process clause either. So, I say "AFFIRM."
posted by sam 3:14 PM
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