Stogner v. California, 539 U.S. 607, 9 (2003)

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

Opinion of the Court

Parliament's banishment laws points to concern that a legislature, knowing the accused and seeking to have the accused punished for a pre-existing crime, might enable punishment of the accused in ways that existing law forbids. That fundamental concern, related to basic concerns about retroactive penal laws and erosion of the separation of powers, applies with equal force to punishment like that enabled by California's law as applied to Stogner—punishment that courts lacked the power to impose at the time the legislature acted. See Black, Constitutional Prohibitions 235, at 298 ("It would be superfluous to point out that such an act [reviving otherwise time-barred criminal liability] would fall within the evils intended to be guarded against by the prohibition in question"). Cf. 1 F. Wharton, Criminal Law 444a, pp. 347-348, n. b (rev. 7th ed. 1874) (hereinafter Criminal Law).

In finding that California's law falls within the literal terms of Justice Chase's second category, we do not deny that it may fall within another category as well. Justice Chase's fourth category, for example, includes any "law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender." Calder, supra, at 390. This Court has described that category as including laws that diminish "the quantum of evidence required to convict." Carmell, supra, at 532.

Significantly, a statute of limitations reflects a legislative judgment that, after a certain time, no quantum of evidence is sufficient to convict. See United States v. Marion, 404 U. S. 307, 322 (1971). And that judgment typically rests, in large part, upon evidentiary concerns—for example, concern that the passage of time has eroded memories or made witnesses or other evidence unavailable. United States v. Ku-brick, 444 U. S. 111, 117 (1979); 4 W. LaFave, J. Israel, & N. King, Criminal Procedure 18.5(a), p. 718 (1999); Wharton, Criminal Pleading and Practice 316, at 210. Indeed, this

615

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