Stogner v. California, 539 U.S. 607, 8 (2003)

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614

STOGNER v. CALIFORNIA

Opinion of the Court

ject to that punishment, to any degree) explains why and how that category differs from both the first category (making criminal noncriminal behavior) and the third category (aggravating the punishment). And this understanding is consistent, in relevant part, with Chase's second category examples—examples specifically provided to illustrate Chase's alternative description of laws " 'inflict[ing] punishments, where the party was not, by law, liable to any punishment,'" Calder, 3 Dall., at 389.

Following Wooddeson, Chase cited as examples of such laws Acts of Parliament that banished certain individuals accused of treason. Id., at 389, and n. ‡; see also Carmell, 529 U. S., at 522-524, and n. 11. Both Chase and Wooddeson explicitly referred to these laws as involving "banishment." Calder, supra, at 389, and n. ‡; 2 Wooddeson, Systematical View 638-639. This fact was significant because Parliament had enacted those laws not only after the crime's commission, but under circumstances where banishment "was simply not a form of penalty that could be imposed by the courts." Carmell, supra, at 523, n. 11; see also 11 W. Holdsworth, A History of English Law 569 (1938). Thus, these laws, like the California law at issue here, enabled punishment where it was not otherwise available "in the ordinary course of law," 2 Wooddeson, Systematical View 638. As this Court previously recognized in Carmell, supra, at 523, and n. 11, it was this vice that was relevant to Chase's purpose.

It is true, however, that Parliament's Acts of banishment, unlike the law in this case, involved a punishment (1) that the legislature imposed directly, and (2) that courts had never previously had the power to impose. But these differences are not determinative. The first describes not a retroactivity problem but an attainder problem that Justice Chase's language does not emphasize and with which the Constitution separately deals, Art. I, 9, cl. 3; Art. I, 10, cl. 1. The second difference seems beside the point. The example of

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