Cite as: 532 U. S. 451 (2001)
Breyer, J., dissenting
they were rendered, of prior decisions establishing a particular element of a crime; (2) changing the prior law so as to eliminate that element; and (3) applying that change to conduct that occurred under the prior regime. A court would remain free to apply common-law criminal rules to new fact patterns, see ante, at 461-462, so long as that application is consistent with a fair reading of prior cases. It would remain free to conclude that a prior decision or series of decisions establishing a particular element of a crime was in error, and to apply that conclusion retroactively (so long as the "fair notice" requirement of Bouie is satisfied). It would even remain free, insofar as the ex post facto element of the Due Process Clause is concerned, to "reevaluat[e] and refin[e]" the elements of common-law crimes to its heart's content, so long as it does so prospectively. (The majority of state courts that have abolished the year-and-a-day rule have done so in this fashion.) And, of course (as Blackstone and the Framers envisioned), legislatures would be free to eliminate outmoded elements of common-law crimes for the future by law. But what a court cannot do, consistent with due process, is what the Tennessee Supreme Court did here: avowedly change (to the defendant's disadvantage) the criminal law governing past acts.
For these reasons, I would reverse the judgment of the Supreme Court of Tennessee.
Justice Breyer, dissenting.
I agree with the Court's basic approach. Justice Cardozo pointed out that retroactivity should be determined "not by metaphysical conceptions of the nature of judge-made law, . . . but by considerations of convenience, of utility, and of the deepest sentiments of justice." The Nature of the Judicial Process 148-149 (1921). Similarly, the Due Process Clause asks us to consider the basic fairness or unfairness of retroactive application of the Tennessee court's change in the law. That Clause provides protection against after-the-fact
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