Cite as: 539 U. S. 607 (2003)
Kennedy, J., dissenting
tive Laws § 273, pp. 317-318 (1880). Joel Prentiss Bishop's work on statutory crimes concluded that a law reviving expired prosecution "is not within any of the recognized legal definitions of an ex post facto law." Commentaries on the Law of Statutory Crimes § 266, p. 294 (rev. 3d ed. 1901). The author's explanation is an apt criticism of the Court's opinion: "The punishment which it renders possible, by forbidding the defense of lapse of time, is exactly what the law provided when 'the fact' transpired. No bending of language, no supplying of implied meanings, can, in natural reason, work out the contrary conclusion. . . . The running of the old statute had taken from the courts the right to proceed against the offender, leaving the violated law without its former remedy; but it had not obliterated the fact that the law forbade the act when it was done, or removed from the doer's mind his original consciousness of guilt." Id., § 266, at 294-295. In reaching his conclusion, Bishop considered, and rejected, the argument put forth by the Moore majority. Commentaries on the Law of Statutory Crimes, supra, § 266, at 295, and n. 5. This rejection does not, as the majority believes, undermine Bishop's conclusion, see ante, at 630; given Moore's infirmities, it strengthens the validity of his interpretation.
This definition of Calder's second category is necessary for consistency with our accepted understanding of categories one and three. The first concerns laws declaring innocent acts to be a crime; the third prohibits retroactive increases in punishment. 3 Dall., at 390. The first three categories guard against the common problem of retroactive redefinition of conduct by criminalizing it (category one), enhancing its criminal character (category two), or increasing the applicable punishment (category three). The link between these categories was noted by Justice Paterson in Calder itself: "The enhancement of a crime, or penalty, seems to come within the same mischief as the creation of a crime or pen-
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