Cite as: 532 U. S. 451 (2001)
Opinion of the Court
petitioner's further contention that the legislative abolition of the rule constituted an ex post facto violation, noting that the 1989 Act had taken effect five years before petitioner committed his crime. No. 02C01-9611-CR-00418 (Tenn. Crim. App., Oct. 17, 1997), App. 7.
The Supreme Court of Tennessee affirmed on different grounds. The court observed that it had recognized the viability of the year and a day rule in Tennessee in Percer v. State, 118 Tenn. 765, 103 S. W. 780 (1907), and that, "[d]espite the paucity of case law" on the rule in Tennessee, "both parties . . . agree that the . . . rule was a part of the common law of this State." 992 S. W. 2d, at 396. Turning to the rule's present status, the court noted that the rule has been legislatively or judicially abolished by the "vast majority" of jurisdictions recently to have considered the issue. Id., at 397. The court concluded that, contrary to the conclusion of the Court of Criminal Appeals, the 1989 Act had not abolished the rule. After reviewing the justifications for the rule at common law, however, the court found that the original reasons for recognizing the rule no longer exist. Accordingly, the court abolished the rule as it had existed at common law in Tennessee. Id., at 399-401.
The court disagreed with petitioner's contention that application of its decision abolishing the rule to his case would violate the Ex Post Facto Clauses of the State and Federal Constitutions. Those constitutional provisions, the court observed, refer only to legislative Acts. The court then noted that in Bouie v. City of Columbia, 378 U. S. 347 (1964), this Court held that due process prohibits retroactive application of any " 'judicial construction of a criminal statute [that] is unexpected and indefensible by reference to the law which has been expressed prior to the conduct in issue.' " 992 S. W. 2d, at 402 (quoting Bouie v. City of Columbia, supra, at 354) (alteration in original). The court concluded, however, that application of its decision to petitioner would
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