468
Scalia, J., dissenting
one of the most "widely held value-judgment[s] 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.
I
A
To begin with, let us be clear that the law here was altered after the fact. Petitioner, whatever else he was guilty of, was innocent of murder under the law as it stood at the time of the stabbing, because the victim did not die until after a year and a day had passed. The requisite condition subsequent of the murder victim's death within a year and a day is no different from the requisite condition subsequent of the rape victim's raising a "hue and cry" which we held could not retroactively be eliminated in Carmell v. Texas, 529 U. S. 513 (2000). Here, as there, it operates to bar conviction. Indeed, if the present condition differs at all from the one involved in Carmell it is in the fact that it does not merely pertain to the "quantum of evidence" necessary to corroborate a charge, id., at 530, but is an actual element of the crime—a "substantive principle of law," 992 S. W. 2d 393, 399 (Tenn. 1999), the failure to establish which "entirely precludes a murder prosecution," id., at 400. Though the Court spends some time questioning whether the year-and-a-day rule was ever truly established in Tennessee, see ante, at
Page: Index Previous 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NextLast modified: October 4, 2007