Stogner v. California: a collision between the ex post facto clause and California's interest in protecting child sex abuse victims.

• Author: Jen, Ashran

Stogner v. California, 123 S. Ct. 2446 (2003)

1. INTRODUCTION

   In Stogner v. California, (1) the United States Supreme Court held that California Penal Code section 803(g), (2) which extended the statute of limitations for prosecuting child sex abuse crimes in California, violated the Ex Post Facto Clause (3) of the Constitution where the original statute of limitations had tolled before the drafting and implementation of 803(g).

   This Note argues that the Supreme Court's decision was incorrect and that section 803(g) does not violate the Ex Post Facto Clause. While the majority used the correct analytical framework in considering the issue, it ultimately came to the wrong decision. It misinterpreted precedent and failed to adequately consider the comprehensive scientific literature documenting the unique traumas and recovery processes faced by child sex abuse victims. The dissent, however, did not provide a satisfactory response either because its framework for analyzing the issue was too narrow and discounted the importance of public policy.

   A collective analysis of precedent, history, and public policy is necessary to determine the legality of section 803(g). With no case law having addressed this issue, precedent is sufficient only to establish the general categories of ex post facto laws and the historical underpinnings of ex post facto jurisprudence. To accurately determine whether section 803(g) fits the profile and characteristics of an ex post facto law, a consideration of the statute's public policy implications is necessary. The result of this analysis shows that section 803(g) does not have the unjust characteristics of an ex post facto law as it protects a unique victims' interest while adequately safeguarding against any harms that would trigger ex post facto concerns.

   Finally, this Note predicts that similar provisions in other statutes seeking to extend expired limitations periods for prosecuting criminal offenses are likely in jeopardy. This will impact all types of legislation ranging from state laws covering child abuse crimes to the federal USA PATRIOT Act. (4) The unfortunate consequence of the Stogner holding is that courts will now have to rigidly invalidate statutes if they are similar to section 803(g). Such a restricted application of the law makes no sense because courts will be compelled to invalidate laws without considering the resulting impact on public policy.

2. BACKGROUND

   1. EX POST FACTO CLAUSE

      "Ex post facto" is translated from the Latin as "from a thing done afterward" and is colloquially understood to refer to actions, decisions, or formulations done after the fact and retroactively, particularly in relation to law. (5) The United States Constitution contains two Ex Post Facto clauses with the first applying to the federal government and the second applying to the states. (6)

      The first Ex Post Facto Clause prohibits the United States Congress from passing an ex post facto law. (7) While Stogner did not involve a federal Congressional statute, the Supreme Court's holding in Stogner does have direct ramifications on Congress' ability to pass certain types of retroactive laws. (8) The second Ex Post Facto Clause prohibits a state from passing an ex post facto law, (9) and this is the constitutional clause at issue in Stogner's challenge against California.

   2. CALDER V. BULL

      In Calder v. Bull, a late eighteenth century case involving a probate dispute over the property of a Connecticut doctor, the Supreme Court for the first time set forth an explanation of ex post facto laws prohibited by the Constitution. (10) Justice Chase established four major categories of ex post facto laws:

      1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every 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. All these, and similar laws, are manifestly unjust and oppressive. (11) In distinguishing unconstitutional ex post facto laws from constitutional retroactive laws, Justice Chase suggested that legitimate laws applied retroactively, such as pardons mitigating criminal punishments, do not have the onerous characteristics found in ex post facto laws which make previous lawful acts unlawful or laws that aggravate punishment. (12)

      Justice Chase relied on several sources of authority in recognizing four major categories of ex post facto laws. First, language from the Constitutional Conventions of Massachusetts, Delaware, North Carolina, and Maryland all prohibited punishing individuals for crimes that were not criminal when committed. (13) Justice Chase also found that his four categories were consistent with a historical understanding of ex post facto doctrine articulated by legal practitioners, legislators, and scholars, but his opinion did not explain how his categories were consistent with these views. (14) Furthermore, the Court found a certain philosophical grounding that a "fundamental principle flows from the very nature of our free republican governments, that no man should be compelled to do what the laws do not require." (15)

      In explaining why the drafters of the U.S. Constitution added two Ex Post Facto clauses to limit the power of federal and state legislatures, Justice Chase suggested that the United States had witnessed and learned from Great Britain's retroactive use of "acts of violence and injustice." (16) One category of such unjust acts passed by Parliament included "times ... they inflicted punishments, where the party was not, by law, liable to any punishment." (17) While Justice Chase did not explicitly state that such acts were ex post facto, he clearly disapproved of these unjust Parliamentary actions. (18)

   3. OTHER EX POST FACTO JURISPRUDENCE

      It is well established that extending the statute of limitations for prosecuting crimes which have not become time-barred is not a violation of the Ex Post Facto Clause. (19) However, aside from Stogner, not one United States Supreme Court case or any other federal court case has directly addressed the constitutionality of a statute extending the limitations period for an already expired statute in the criminal or civil context. (20) In Falter v. United States, a case involving the extension of a limitation period for an unexpired statute, Judge Learned Hand opined that "certainly it is one thing to revive a prosecution already dead, and another to give it a longer lease of life." (21) Thus, "the question turns upon how much violence is done to our instinctive feelings of justice and fair play." (22)

      To add support to his comment, Judge Hand cited a New Jersey case, Moore v. State, (23) where the New Jersey Court of Errors and Appeals overturned the defendant Moore's conviction on the basis that the statute under which he was convicted was ex post facto because it extended the statute of limitations from two years to five years after the original two year statute of limitation for prosecuting the defendant had already expired. (24) The majority in Moore took the positions first, that Justice Chase's formulation of four ex post facto categories were dicta, and second, that Justice Chase never intended to make his four categories an exclusive definition of ex post facto laws. (25) The court determined that a public policy consideration of the statute's purposes, intentions, and "spirit" was necessary to determine whether it was an ex post facto law. (26) Using this framework, the court in Moore decided that the statute at issue was unjust because it was making Moore a criminal when he could not face criminal liability. (27)

      Additional case law has attempted to define the scope of Ex Post Facto jurisprudence. In Beazell v. Ohio, (28) Justice Stone wrote:

      It is settled, by decisions of this court ... that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto. (29) Furthermore, laws that retroactively make legal actions illegal or laws in which legislatures retroactively change the definition of an offense to impose greater punishment or change the nature of an offense are "harsh and oppressive." (30) Accepting what he termed the "Beazell formulation," Justice Rehnquist in Collins v. Youngblood (31) rejected the respondent's argument that while the challenged statute did not fit into one of the Beazell categories, the statute was ex post facto because it deprived him of "substantial protections." (32) Justice Rehnquist held that a retroactive application of a new criminal statute against the respondent was not ex post facto because the new criminal statute contained only procedural changes and not substantive changes to the nature of the offense. (33)

      It is clear from ex post facto jurisprudence that the Calder categories and their re-articulation in Beazell provide the framework for determining whether a law is ex post facto. (34) What is unclear from Calder, Falter, Collins, and every other ex post facto case, however, is whether a law is ex post facto only when it fits the strict language articulated in the Calder categories or whether the four categories merely provide a general framework that allows for a more expansive analysis beyond the strict language of Calder.

   4. CALIFORNIA PENAL CODE SECTION 803(G)

      Prior to 1993, failure to prosecute individuals accused of committing sex crimes against children before the...