Stogner v. California, 539 U.S. 607, 7 (2003)

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Cite as: 539 U. S. 607 (2003)

Opinion of the Court

The second category—including any "law that aggravates a crime, or makes it greater than it was, when committed," id., at 390—describes California's statute as long as those words are understood as Justice Chase understood them— i. e., as referring to a statute that "inflict[s] punishments, where the party was not, by law, liable to any punishment," id., at 389. See also 2 R. Wooddeson, A Systematical View of the Laws of England 638 (1792) (hereinafter Wooddeson, Systematical View) (discussing the ex post facto status of a law that affects punishment by "making therein some innovation, or creating some forfeiture or disability, not incurred in the ordinary course of law" (emphasis added)). After (but not before) the original statute of limitations had expired, a party such as Stogner was not "liable to any punishment." California's new statute therefore "aggravated" Stogner's alleged crime, or made it "greater than it was, when committed," in the sense that, and to the extent that, it "inflicted punishment" for past criminal conduct that (when the new law was enacted) did not trigger any such liability. See also H. Black, American Constitutional Law 266, p. 700 (4th ed. 1927) (hereinafter Black, American Constitutional Law) ("[A]n act condoned by the expiration of the statute of limitations is no longer a punishable offense"). It is consequently not surprising that New Jersey's highest court long ago recognized that Chase's alternative description of second category laws "exactly describes the operation" of the kind of statute at issue here. Moore v. State, 43 N. J. L. 203, 217 (1881) (emphasis added). See also H. Black, Constitutional Prohibitions Against Legislation Impairing the Obligation of Contracts, and Against Retroactive and Ex Post Facto Laws 235, p. 298 (1887) (hereinafter Black, Constitutional Prohibitions) ("Such a statute" "certainly makes that a punishable offense which was previously a condoned and obliterated offense").

So to understand the second category (as applying where a new law inflicts a punishment upon a person not then sub-

613

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