Due Process Retroactive Judicial Construction of Common Law Crime
Case: Rogers v. Tennessee
Issue: Whether the Tennessee Supreme Courts decision to abolish the common law year and a day rule (which provided that no defendant could be convicted of murder unless the victim died by the defendants act within a year and a day of defendants act) and its simultaneous application of that decision to an appellant, in order to uphold his conviction, violated the Fourteenth Amendments Due Process Clause.
Facts: Petitioner Wilbert K. Rogers stabbed James Bowdery in the heart with a butcher knife in 1994. Bowdery died fifteen months later, after surgery and a lapse into a coma, because of Rogers assault. Rogers was convicted of second degree murder. The Tennessee Court of Criminal Appeals rejected Rogers contention that his conviction was invalid under the common law year and a day rule. The Court of Criminal Appeals held that the rule had been abolished by the Tennessee Criminal Sentencing Reform Act of 1989 (the 1989 Act), which eliminates all common law defenses in Tennessee criminal cases. The Supreme Court of Tennessee affirmed on different grounds. It held that the year and a day rule had not been abolished by the 1989 Act, but was no longer justified. The Tennessee Supreme Court proceeded to abolish the rule on its own, and therefore uphold Rogers conviction.
The Tennessee Supreme Court disagreed with Rogers claim that applying its decision to his case would run afoul of the Ex Post Facto Clause of the United States Constitution. Citing Bouie v. City of Columbia, 378 U.S. 347 (1964), the Tennessee Supreme Court held that retroactive application of its decision was neither unexpected or indefensible with reference to prior law.
Holding: [J]udicial alteration of a common law doctrine of criminal law violates the principle of fair warning, and hence must not be given retroactive effect, only where it is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue. Under this test, Rogers' conviction would stand.
Reasoning: Justice OConnor, writing for the majority, rejected Rogers assertion that Bouie prohibited judicial retroactive application of a law in any situation where legislative retroactive application would violate the Ex Post Facto Clause. Though there was language in Bouie supporting such an argument, such language was merely dicta. The Ex Post Facto Clause applies on its face to the legislature alone.
The real key to Bouie rested in its emphasis on the Due Process Clause concept of fair notice to criminal defendants. Fair notice can be violated by vague statuary language or unanticipated judicial constructions of pre-existing law. Bouie itself involved a novel and wholly unanticipated construction of a criminal statute. Justice OConnor argued that a blanket rule prohibiting retroactive judicial alteration of criminal laws would be particularly pernicious in the common law context, where judges need flexibility to facilitate evolution of the common law. To OConnor, the Tennessee Supreme Courts abolition of the year and a day rule was neither unexpected nor indefensible. The rule had a weak foothold in Tennessee criminal jurisprudence, having been cited only three times in the past one hundred years, had been overruled in many other jurisdictions, and no longer had a rationale for existence in the wake of modern medical developments.
Other Opinions: Justice Scalia, joined by Justices Stevens and Thomas, and in part by Justice Kennedy, dissented. To Scalia the matter was simple; the Tennessee Supreme Court had approved a mans murder conviction on the basis of conduct that did not constitute murder when committed. This violated one of the oldest maxims, nulla poena sine lege, in the history of human thought. Scalia had no doubt that the Framers would have considered this a due process violation. The only reason the Ex Post Facto Clause did not explicitly reach judicial decisionmaking was the absence of the concept, at the time of the framing, of judicial lawmaking, i.e., judges changing rather than finding the law.
Moreover, the Court had mischaracterized Bouie. The key rationale of Bouie was that retroactive application of judicial alteration of the law was just as invalid as retroactive legislative alteration. Fair notice in Bouie did not relate to literal notice that the law might be changed, but rather to the notice provided by the old law as to what behavior was criminal. Indefensibility of a law referred to its indefensibility in relation to the prior law. Under all these tests, Tennessees retroactive application could not pass muster. That the year and a day rule had a weak foothold in Tennessee was irrelevant. The Tennessee Supreme Court held that the rule was in force when Rogers knifed Bowdery and the Court could not disturb that finding. The weakening of the rule in other jurisdictions (and the alleged notice this gave to Rogers) was equally irrelevant. This would have no effect on an any analysis of legislative retroactivity and should have no effect here.
Comment: Justice O'Connor's textualist argument proves too much. Under her theory, the First Amendment could not apply to the executive or judicial branches since it only refers on its face to Congress. The Ex Post Facto Clause was directed to Congress because Congress was unequivocally the only federal lawmaking body. It is preposterous to assume that the Framers ever contemplated a judicial end-run around this prohibition. Like much of her work, Justice OConnors opinion will have the effect of creating more litigation. Aside from his cogent analysis, Justice Scalias approach has the advantage of establishing a bright line rule against retroactive judicial alteration of the criminal law. The same cannot be said for the framework created by Justice OConnor.