Stogner v. California, 539 U.S. 607, 19 (2003)

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

Opinion of the Court

Parliament aggravated a predefined crime by imposing a punishment that courts could not have imposed in "the ordinary course."

Third, the dissent's account raises a problem of vagueness. The dissent describes Justice Chase's alternative description of the second category as "shed[ding] light on the meaning" of the category, post, at 641, and describes the historical references that accompany Chase's alternative description as "illustrative examples," post, at 649. But the question is would the dissent apply the term ex post facto to laws that fall within the alternative description—or would it not? If not, how does it reconcile its view with Carmell? See 529 U. S., at 522, n. 9; see also id., at 523 (Wooddeson's categories "correlate precisely to Calder's four categories"). If so, how does it explain the fact that the alternative description nowhere says anything about recharacterizing, or "changing the nature," of a crime?

In our view, the key to the Atterbury and Clarendon examples lies not in any kind of recharacterization, or the like, but in the fact that Atterbury and Clarendon suffered the "same sentence"—"banishment." 2 Wooddeson, Systematical View 638; see also Calder, supra, at 389, n. ‡ (using the word "banishment" to describe both examples). As we have argued, supra, at 614, Parliament aggravated the crimes at issue by imposing an otherwise unavailable punishment— namely, banishment—which was, according to Wooddeson, a "forfeiture or disability, not incurred in the ordinary course of law," 2 Systematical View 638.

Fourth, the dissent's initial account suffers from a technical problem of redundancy. Were the second category always to involve the recharacterization of an offense in a way that subjects it to greater punishment, see post, at 642, the second category would be redundant. Any law falling within it would also necessarily fall within the third category, which already encompasses " '[e]very law that . . . inflicts a greater punishment,' " supra, at 612 (emphasis added).


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