Stogner v. California, 539 U.S. 607, 27 (2003)

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

Kennedy, J., dissenting

tions period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution. The California court's judgment to the contrary is


Justice Kennedy, with whom The Chief Justice, Justice Scalia, and Justice Thomas join, dissenting.

California has enacted a retroactive extension of statutes of limitations for serious sexual offenses committed against minors. Cal. Penal Code Ann. 803(g) (West Supp. 2003). The new period includes cases where the limitations period has expired before the effective date of the legislation. To invalidate the statute in the latter circumstance, the Court tries to force it into the second category of Calder v. Bull, 3 Dall. 386 (1798), which prohibits a retroactive law " 'that aggravates a crime, or makes it greater than it was, when committed.' " Ante, at 612 (quoting Calder, supra, at 390 (emphasis in original)). These words, in my view, do not permit the Court's holding, but indeed foreclose it. A law which does not alter the definition of the crime but only revives prosecution does not make the crime "greater than it was, when committed." Until today, a plea in bar has not been thought to form any part of the definition of the offense.

To overcome this principle, the Court invokes "a long line of authority holding that a law of this type violates the Ex Post Facto Clause." Ante, at 621. The Court's list of precedents, ante, at 617-619, is less persuasive than it may appear at a first glance. Of the 22 cases cited by the Court, only 4 had to decide whether a revival of expired prosecutions was constitutional. See Moore v. State, 43 N. J. L. 203, 216-217 (1881); United States v. Fraidin, 63 F. Supp. 271, 276 (Md. 1945); People v. Shedd, 702 P. 2d 267, 268 (Colo. 1985) (en banc) (per curiam); Commonwealth v. Rocheleau, 404 Mass. 129, 130-131, 533 N. E. 2d 1333, 1334 (1989), cited ante, at 617. These four cases—which are the only cases that are relevant—will be discussed in due course.


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