Stogner v. California, 539 U.S. 607, 21 (2003)

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

Opinion of the Court

know that those descriptions fit this case—the dissent's historical exegesis notwithstanding.

More importantly, even were we to accept the dissent's view that Chase's second category examples involved some kind of recharacterization of criminal behavior (which they did not), why would recharacterization be the ex post facto touchstone? Why, in a case where (a) application of a previously inapplicable punishment and (b) recharacterization (or "changing the nature") of criminal behavior do not come hand in hand, should the absence of the latter make a critical difference? After all, the presence of a recharacterization without new punishment works no harm. But the presence of the new punishment without recharacterization works all the harm. Indeed, it works retroactive harm—a circumstance relevant to the applicability of a constitutional provision aimed at preventing unfair retroactive laws. Perhaps that is why Justice Chase's alternative description—which, like Wooddeson's, speaks of laws "affect[ing] the punishment," ibid.—does not mention recharacterization or the like.


The dissent believes that our discussion of the case law is "less persuasive than it may appear at a first glance." Post, at 633. The dissent says that this case law is "deficient," and that we rely on an "inapposite" case and other cases that "flatly contradict" the "principles" on which we rely. Post, at 634, 635.

Having reviewed the relevant cases and commentary, we continue to believe that our characterizations are accurate. We say that courts, "with apparent unanimity until California's decision in Frazer, have continued to state" that "laws reviving time-barred prosecutions are ex post facto" and, "when necessary, so to hold." Supra, at 617. That statement is accurate. The dissent refers to no case, outside of California, that has held, or even suggested, anything to the contrary.


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