Respondent was convicted in a Texas state court of aggravated
sexual assault and sentenced to life imprisonment and a $10,000
fine. After his conviction and sentence were affirmed on direct
appeal, he applied for a writ of habeas corpus in state court,
arguing that Texas law did not authorize both a fine and prison
term for his offense, and thus that his judgment and sentence were
void and he was entitled to a new trial. The court, bound by a
State Court of Criminal Appeals' decision, recommended that the
writ be granted. Before the writ was considered by the Court of
Criminal Appeals, however, a new statute was passed allowing an
appellate court to reform an improper verdict assessing a
punishment not authorized by law. Thus, the Court of Criminal
Appeals reformed the verdict by ordering that the fine be deleted
and denied the request for a new trial. Arguing that the new Texas
law's retroactive application violated the
Ex Post Facto
Clause of Art. 1, § 10, respondent filed a writ of habeas corpus in
Federal District Court, which was denied. The Court of Appeals
reversed. Relying on the statement in
Thompson v. Utah,
170 U. S. 343,
that retroactive procedural statutes violate the
Ex Post Facto
Clause unless they "leave untouched all the substantial
protections with which existing law surrounds the . . . accused,"
the court held that respondent's right to a new trial under former
Texas law was a "substantial protection."
Held:
1. Although the rule of
Teague v. Lane, 489 U.
S. 288 -- which prohibits the retroactive application of
new rules to cases on collateral review -- is grounded in important
considerations of federal-state relations, it is not jurisdictional
in the sense that this Court, despite a limited grant of
certiorari, must raise and decide the issue
sua sponte.
Since Texas has chosen not to rely on
Teague, the merits
of respondent's claim will be considered. Pp.
497 U. S.
40-41.
2. The application of the Texas statute to respondent is not
prohibited by the
Ex Post Facto Clause. Pp.
497 U. S.
41-52.
(a) The definition of an
ex post facto law as one that
(1) punishes as a crime an act previously committed which was
innocent when done, (2)
Page 497 U. S. 38
makes more burdensome the punishment for a crime after its
commission, or (3) deprives one charged with a crime of any defense
available according to law at the time when the act was committed,
Beazell v. Ohio, 269 U. S. 167, is
faithful to this Court's best knowledge of the original
understanding of the Clause: Legislatures may not retroactively
alter the definition of crimes or increase the punishment for
criminal acts. Respondent concedes that Texas' statute does not
fall within the
Beazell categories, since it is a
procedural change in the law. However, he errs in arguing that this
Court's decisions have not limited the Clause's scope to those
categories, but have stated more broadly that retroactive
legislation contravenes the Clause if it deprives an accused of a
"substantial protection" under law existing at the time of the
crime, and that the new trial guaranteed by Texas law is such a
protection. When cases have described as "procedural" those changes
that do not violate the Clause even though they work to the
accused's disadvantage,
see, e.g., Beazell, supra at
269 U. S. 171,
it is logical to presume that "procedural" refers to changes in the
procedures by which a criminal case is adjudicated, as opposed to
substantive changes in the law. The "substantial protection"
discussion in
Beazell, Duncan v. Missouri, 152 U.
S. 377,
152 U. S.
382-383, and
Malloy v. South Carolina,
237 U. S. 180,
237 U. S. 183,
has imported confusion into the Clause's interpretation, and should
be read to mean that a legislature does not immunize a law from
scrutiny under the Clause simply by labeling the law "procedural."
It should not be read to adopt without explanation an undefined
enlargement of the Clause. Pp.
497 U. S.
41-46.
(b)
Kring v. Missouri, 107 U.
S. 221, and
Thompson v. Utah, supra, are
inconsistent with the understanding of the term "
ex post
facto law" at the time the Constitution was adopted, rely on
reasoning that this Court has not followed since
Thompson
was decided, and have caused confusion in state and lower federal
courts about the Clause's scope.
Kring and
Thompson are therefore overruled. Pp.
497 U. S.
47-52.
882 F.2d 956 (Ca 5 1989), reversed.
REHNQUIST, C.J., delivered the opinion of the Court, in which
WHITE, BLACKMUN, O'CONNOR, SCALIA, and KENNEDY, JJ., joined.
STEVENS, J., filed an opinion concurring in the judgment, in which
BRENNAN and MARSHALL, JJ., joined,
post, p.
497 U. S.
52.
Page 497 U. S. 39
Chief Justice REHNQUIST delivered the opinion of the Court.
The question presented in this case is whether the application
of a Texas statute, which was passed after respondent's crime and
which allowed the reformation of an improper jury verdict in
respondent's case, violates the
Ex Post Facto Clause of
Art. I, § 10. We hold that it does not.
Respondent Carroll Youngblood was convicted in a Texas court of
aggravated sexual abuse. The jury imposed punishment of life
imprisonment and a fine of $10,000. After his conviction and
sentence were affirmed by the Texas Court of Criminal Appeals,
Youngblood applied for a writ of habeas corpus in the State
District Court. He argued that Texas Code of Criminal Procedure did
not authorize a fine in addition to a term of imprisonment for his
offense, and, thus, under the decision of the Court of Criminal
Appeals in
Bogany v. State, 661
S.W.2d 957 (Tex.Crim.App.1983), the judgment and sentence were
void, and he was entitled to a new trial. [
Footnote 1] In April, 1985, the District Court, feeling
bound by
Bogany, recommended that the writ be granted.
Before the habeas application was considered by the Texas Court
of Criminal Appeals, which has the exclusive power under Texas law
to grant writs of habeas corpus,
see Tex.Code
Crim.Proc.Ann., Art. 11.07 (Vernon 1977 and Supp.1990), a new Texas
statute designed to modify the
Bogany
Page 497 U. S. 40
decision became effective. Article 37.10(b), as of June 11,
1985, allows an appellate court to reform an improper verdict that
assesses a punishment not authorized by law. Tex.Code
Crim.Proc.Ann., Art. 37-10(b) (Vernon Supp.1990);
see Ex parte
Johnson, 697
S.W.2d 605 (Tex.Crim.App.1985). Relying on that statute, the
Court of Criminal Appeals reformed the verdict in Youngblood's case
by ordering deletion of the $10,000 fine, and denied his request
for a new trial.
Youngblood then sought a writ of habeas corpus from the United
States District Court for the Eastern District of Texas, arguing
that the retroactive application of Article 37.10(b) violated the
Ex Post Facto Clause of Art. I, § 10. The District Court
concluded that, since Youngblood's
"punishment . . . was not increased (but actually decreased),
and the elements of the offense or the ultimate facts necessary to
establish guilt were not changed,"
there was no
ex post facto violation. App. to Pet. for
Cert. C-6.
The Court of Appeals reversed.
Youngblood v. Lynaugh,
882 F.2d 956 (CA5 1989). It relied on the statement in this Court's
decision in
Thompson v. Utah, 170 U.
S. 343 (1898), the retroactive procedural statutes
violate the
Ex Post Facto Clause unless they
"'leave untouched all the substantial protections with which
existing law surrounds the person accused of crime,'"
Lynaugh, supra, at 959 (quoting 170 U.S. at
170 U. S.
352). It held that Youngblood's right to a new trial
under the
Bogany decision was such a "substantial
protection," and therefore ordered that a writ of habeas corpus be
issued. We granted certiorari. 493 U.S. 1001 (1989).
Because respondent is before us on collateral review, we are
faced with a threshold question whether the relief sought by
Youngblood would constitute a "new rule," which would not apply
retroactively under our decisions in
Teague v. Lane,
489 U. S. 288
(1989), and
Butler v. McKellar, 494 U.
S. 407 (1990). Generally speaking,
"[r]etroactivity is
Page 497 U. S. 41
properly treated as a threshold question, for, once a new rule
is applied to the defendant in the case announcing the rule,
even-handed justice requires that it be applied retroactively to
all who are similarly situated."
Teague, supra, 489 U.S. at
489 U. S. 300.
The State of Texas, however, did not address retroactivity in its
petition for certiorari or its briefs on the merits, and, when
asked about the issue at oral argument, counsel answered that the
State had chosen not to rely on
Teague. Tr. of Oral Arg.
4-5. Although the
Teague rule is grounded in important
considerations of federal-state relations, we think it is not
"jurisdictional" in the sense that this Court, despite a limited
grant of certiorari,
must raise and decide the issue
sua sponte. Cf. Patsy v. Board of Regents of Fla.,
457 U. S. 496,
457 U. S. 515,
n. 19 (1982) (Eleventh Amendment defense need not be raised and
decided by the Court on its own motion). We granted certiorari to
consider the merits of respondent's
ex post facto claim,
and we proceed to do so.
Although the Latin phrase "
ex post facto" literally
encompasses any law passed "after the fact," it has long been
recognized by this Court that the constitutional prohibition on
ex post facto laws applied only to penal statutes which
disadvantage the offender affected by them.
Calder v.
Bull, 3 Dall. 386,
3 U. S. 390-392
(1798) (opinion of Paterson, J.);
id. at
3 U. S. 400
(opinion of Iredell, J.).
See Miller v. Florida,
482 U. S. 423,
482 U. S. 430
(1987). [
Footnote 2] As early
opinions in this Court explained, "
ex post facto law" was
a term of art with an established meaning at the time of the
framing of the Constitution.
Calder, 3 Dall. at
3 U. S. 391
(opinion of Chase, J.);
id. at
3 U. S. 396
(opinion of Paterson, J.). Justice Chase's now familiar opinion in
Calder expounded those legislative
Page 497 U. S. 42
acts which in his view implicated the core concern of the
Ex
Post Facto Clauses:
"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 offense
in order to convict the offender."
Id. at
3 U. S. 390
(emphasis in original).
Early opinions of the Court portrayed this as an exclusive
definition of
ex post facto laws.
Fletcher v.
Peck, 6 Cranch 87,
10 U. S. 138
(1810);
Cummings v.
Missouri, 4 Wall. 277,
71 U. S.
325-326, (1867);
id. at
71 U. S. 391
(Miller, J., dissenting) ("This exposition of the nature of
ex
post facto laws has never been denied, nor has any court or
any commentator on the Constitution added to the classes of laws
here set forth as coming within that clause");
Gut v.
State, 9 Wall. 35,
76
U. S. 38 (1870). So well accepted were these principles
that the Court, in
Beazell v. Ohio, 269 U.
S. 167 (1925), was able to confidently summarize the
meaning of the Clause as follows:
"It is settled, by decisions of this Court so well known that
their citation may be dispensed with 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."
Id. at
269 U. S.
169-170.
Page 497 U. S. 43
See also Dobbert v. Florida, 432 U.
S. 282,
432 U. S. 292
(1977). [
Footnote 3]
The
Beazell formulation is faithful to our best
knowledge of the original understanding of the
Ex Post
Facto Clause: Legislatures may not retroactively alter the
definition of crimes or increase the punishment for criminal acts.
Several early state constitutions employed this definition of the
term, and they appear to have been a basis for the Framers'
understanding of the provision.
See The Federalist No. 44,
p. 301 (J. Cooke ed. 1961) (J. Madison); 2 Records of the Federal
Convention of 1787, p. 376 (M. Farrand ed. 1966); (
Calder,
3 Dall. at
3 U. S. 391-392
(opinion of Chase, J.));
id. at
3 U. S. 396-397
(opinion of Paterson, J.). The Constitutions of Maryland and North
Carolina, for example, declared that
"retrospective laws, punishing facts committed before the
existence of such laws, and by them only declared criminal, are
oppressive, unjust, and incompatible with liberty; wherefore no
ex post facto law ought to be made."
See Constitution of Maryland, Declaration of Rights,
Art. XV (1776); Constitution of North Carolina, Declaration of
Rights, Art. XXIV (1776). Other state constitutions, though not
using the phrase "
ex post facto," included similar
articles.
See Declaration of Rights and Fundamental Rules
of the Delaware State, § 11 (1776); Constitution or Form of
Government for the Commonwealth of Massachusetts, Declaration of
Rights, Art. XXIV (1780).
Page 497 U. S. 44
Another historical reference, Blackstone's Commentaries, which
was discussed by the Framers during debates on the
Ex Post
Facto Clause,
see 2 Records of the Federal Convention
of 1787, pp. 448-449 (M. Farrand ed. 1966), and deemed an
authoritative source of the technical meaning of the term in
Calder, see 3 Dall. at
3 U. S. 391
(opinion of Chase, J.);
id. at
3 U. S. 396
(opinion of Paterson, J.), buttresses this understanding. According
to Blackstone, a law is
ex post facto
"when after an action (indifferent in itself) is committed, the
legislator then for the first time declares it to have been a
crime, and inflicts a punishment upon the person who has committed
it."
1 W. Blackstone, Commentaries *46. Although increased
punishments are not mentioned explicitly in the historical sources,
the Court has never questioned their prohibition, apparently on the
theory that "[t]he enhancement of a crime, or penalty, seems to
come within the same mischief as the creation of a crime or
penalty."
Calder, supra, at
3 U. S. 397
(opinion of Paterson, J.). The
Beazell definition, then,
is faithful to the use of the term "
ex post facto law" at
the time the Constitution was adopted.
Respondent concedes that Art. 37.10(b) of the Texas Code of
Criminal Procedure does not fall within any of the
Beazell
categories and, under that definition, would not constitute an
ex post facto law as applied to him. The new statute is a
procedural change that allows reformation of improper verdicts. It
does not alter the definition of the crime of aggravated sexual
abuse, of which Youngblood was convicted, nor does it increase the
punishment for which he is eligible as a result of that conviction.
Nevertheless, respondent maintains that this Court's decisions have
not limited the scope of the
Ex Post Facto Clause to the
finite
Beazell categories, but have stated more broadly
that retroactive legislation contravenes Art. I, § 10 if it
deprives an accused of a "substantial protection" under law
existing at the time of the crime. He argues that the new trial
guaranteed him by former Texas law is such a protection.
Page 497 U. S. 45
Several of our cases have described as "procedural" those
changes which, even though they work to the disadvantage of the
accused, do not violate the
Ex Post Facto Clause.
Dobbert v. Florida, supra, 432 U.S. at
432 U. S.
292-293, and n. 6;
Beazell v. Ohio, 269 U.S. at
269 U. S. 171;
Mallett v. North Carolina, 181 U.
S. 589,
181 U. S. 597
(1901). While these cases do not explicitly define what they mean
by the word "procedural," it is logical to think that the term
refers to changes in the procedures by which a criminal case is
adjudicated, as opposed to changes in the substantive law of
crimes. Respondent correctly notes, however, that we have said a
procedural change may constitute an
ex post facto
violation if it "affect[s] matters of substance,"
Beazell,
supra, 269 U.S. at
269 U. S. 171,
by depriving a defendant of "substantial protections with which the
existing law surrounds the person accused of crime,"
Duncan v.
Missouri, 152 U. S. 377,
152 U. S.
382-383 (1894), or arbitrarily infringing upon
"substantial personal rights."
Malloy v. South Carolina,
237 U. S. 180,
237 U. S. 183
(1915);
Beazell, supra, 269 U.S. at
269 U. S.
171.
We think this language from the cases cited has imported
confusion into the interpretation of the
Ex Post Facto
Clause. The origin of the rather amorphous phrase "substantial
protections" appears to lie in a nineteenth century treatise on
constitutional law by Professor Thomas Cooley. T. Cooley,
Constitutional Limitations *272. According to Cooley, who notably
assumed the
Calder construction of the
Ex Post
Facto Clause to be correct, Constitutional Limitations *265, a
legislature
"may prescribe altogether different modes of procedure in its
discretion, though it cannot lawfully, we think, in so doing,
dispense with any of those substantial protections with which the
existing law surrounds the person accused of crime."
Id. at *272.
This Court's decision in
Duncan v. Missouri, supra,
subsequently adopted that phraseology:
"[A]n
ex post facto law is one which imposes a
punishment for an act which was not punishable at the time it was
committed; or an additional punishment to that then
Page 497 U. S. 46
prescribed; or changes the rules of evidence by which less or
different testimony is sufficient to convict than was then
required; or, in short, in relation to the offence or its
consequences, alters the situation of a party to his disadvantage;
but the prescribing of different modes or procedure and the
abolition of courts and creation of new ones,
leaving untouched
all the substantial protections with which the existing law
surrounds the person accused of crime, are not considered
within the constitutional inhibition. Cooley Const.Lim. (5th ed.)
329."
Id. at
152 U. S.
382-383 (other citations omitted) (emphasis added).
Later, in
Malloy v. South Carolina, supra, we stated that,
even with regard to procedural changes. the
Ex Post Facto
Clause was "intended to secure substantial personal rights against
arbitrary and oppressive legislative action."
Id. 237 U.S.
at
237 U. S. 183.
We repeated that recognition in
Beazell itself, while also
emphasizing that the provision was "not to limit the legislative
control of remedies and modes of procedure which do not affect
matters of substance."
Beazell, supra, 269 U.S. at
269 U. S.
171.
We think the best way to make sense out of this discussion in
the cases is to say that, by simply labeling a law "procedural," a
legislature does not thereby immunize it from scrutiny under the
Ex Post Facto Clause.
See Gibson v. Mississippi,
162 U. S. 565,
162 U. S. 590
(1896). Subtle
ex post facto violations are no more
permissible than overt ones. In
Beazell, supra, we said
that the constitutional prohibition is addressed to laws, "whatever
their form," which make innocent acts criminal, alter the nature of
the offense, or increase the punishment. 269 U.S. at
269 U. S. 170.
But the prohibition which may not be evaded is the one defined by
the
Calder categories.
See Duncan, supra, 152
U.S. at
152 U. S. 382;
Malloy, supra, 237 U.S. at
237 U. S.
183-184. The references in
Duncan and
Malloy to "substantial protections" and "personal rights"
should not be read to adopt without explanation an undefined
enlargement of the
Ex Post Facto Clause.
Page 497 U. S. 47
Two decisions of this Court, relied upon by respondent, do not
fit into this analytical framework. In
Kring v. Missouri,
107 U. S. 221
(1883), the Court said
"it is not to be supposed that the opinion in [
Calder v.
Bull] undertook to define, by way of exclusion, all the cases
to which the constitutional provision would be applicable."
Id. at
107 U. S. 228.
It defined an
ex post facto law,
inter alia, as
one which, "
in relation to the offence or its consequences,
alters the situation of a party to his disadvantage.'" Id.
at 107 U. S.
228-229 (quoting United States v. Hall, 26 F.
Cas. 84, 86 (No. 15,285) (D. Pa.1809)) (emphasis deleted). And in
Thompson v. Utah, 170 U. S. 343
(1898), the Court held that a change in Utah law reducing the size
of juries in criminal cases from 12 persons to 8 deprived Thompson
of "a substantial right involved in his liberty," and violated the
Ex Post Facto Clause. Id. at 170 U. S.
352.
Neither of these decisions, in our view, is consistent with the
understanding of the term "
ex post facto law" at the time
the Constitution was adopted. Nor has their reasoning been followed
by this Court since
Thompson was decided in 1898. These
cases have caused confusion in state and lower federal courts about
the scope of the
Ex Post Facto Clause, as exemplified by
the opinions of the District Court and Court of Appeals in this
case.
See also Murphy v. Kentucky, 465 U.
S. 1072, 1073 (1984) (WHITE, J., dissenting from denial
of certiorari) (noting "the evident confusion among lower courts
concerning the application of the
Ex Post Facto Clause to
changes in rules of evidence and procedure");
United States v.
Kowal, 596 F.
Supp. 375, 377 (Conn.1984) (Supreme Court jurisprudence
applying
ex post facto prohibition to retroactive
procedural changes "is not all of one piece"); L. Tribe, American
Constitutional Law 638 (2d ed. 1988) (procedural changes upheld by
the Court "can hardly be distinguished in any functional way from
those invalidated").
The earlier decision,
Kring v. Missouri, was a capital
case with a lengthy procedural history. Kring was charged with
first-degree murder, but, pursuant to a plea agreement, he
Page 497 U. S. 48
pleaded guilty to second-degree murder. The plea was accepted by
the prosecutor and the trial court, and he was sentenced to 25
years in prison. He appealed the judgment, however, on the ground
that his plea agreement provided for a sentence of no more than 10
years. The State Supreme Court reversed the judgment and remanded
for further proceedings. In the trial court, Kring refused to
withdraw his guilty plea to second-degree murder and refused to
renew his plea of not guilty to first-degree murder, insisting
instead that the acceptance of his earlier plea constituted an
acquittal on the greater charge. The trial court, over Kring's
objection, directed a general plea of not guilty to be entered,
and, upon retrial, he was convicted of first-degree murder and
sentenced to death.
At the time the crime was committed, Missouri law provided that
a defendant's plea of guilty to second-degree murder, if accepted
by the prosecutor and the court, served as an acquittal of the
charge of first-degree murder. After the crime, but before Kring
made his plea, a new Missouri Constitution abrogated that rule. The
State was thus free, as a matter of Missouri law, to retry Kring
for first-degree murder after his conviction and the 25-year
sentence for second-degree murder were vacated. The Supreme Court
of Missouri held that the new law did not violate the
Ex Post
Facto Clause, because it effected only a change in criminal
procedure.
This Court reversed by a vote of 5 to 4. As support for the view
that
Calder did not define an exclusive list of
legislative acts falling within the constitutional prohibition,
Justice Miller's opinion for the Court quoted a jury charge given
by Justice Washington sitting in the District Court:
"'[A]n
ex post facto law is one which, in its
operation, makes that criminal which was not so at the time the
action was performed; or which increases the punishment,
or, in
short, which, in relation to the offence or its consequences,
alters the situation of a party to his disadvantage.'"
Kring, 107 U.S. at
107 U. S.
228-229
Page 497 U. S. 49
(quoting
United States v. Hall, supra, at 86) (emphasis
in original). Applying that test, the Court concluded that, because
the new Missouri Constitution denied Kring the benefit of an
implied acquittal which the previous law provided, it "altered the
situation to his disadvantage," and his conviction for first-degree
murder was void.
Kring, supra, 107 U.S. at
107 U. S.
235-236.
The Court's departure from
Calder's explanation of the
original understanding of the
Ex Post Facto Clause was, we
think, unjustified. The language in the
Hall case, heavily
relied upon in
Kring and repeated in other decisions
thereafter, does not support a more expansive definition of
ex
post facto laws.
In Hall, a vessel owner was sued by the United States for
forfeiture of an embargo bond obliging him to deliver certain cargo
to Portland. As a legal excuse, the defendant argued that a severe
storm had disabled his vessel and forced him to land in Puerto
Rico, where he was forced by the Puerto Rican government to sell
the cargo. In dicta, Justice Washington hypothesized that,
according to the law in effect at the time Hall forfeited the
cargo, an "unavoidable accident" was an affirmative defense to a
charge of failing to deliver cargo. His jury instruction then
explained that a subsequent law imposing an additional requirement
for the affirmative defense -- that the vessel or cargo actually
be lost at sea as a result of the unavoidable accident --
would deprive Hall of a defense of his actions available at the
time he sold the cargo, and thus be an invalid
ex post
facto law.
This analysis is consistent with the
Beazell framework.
A law that abolishes an affirmative defense of justification or
excuse contravenes Art. I, § 10, because it expands the scope of a
criminal prohibition after the act is done. It appears, therefore,
that Justice Washington's reference to laws "relat[ing] to the
offence, or its consequences," was simply shorthand for legal
changes altering the definition of an offense or increasing a
punishment. His jury charge should not be read to mean that the
Constitution prohibits retrospective
Page 497 U. S. 50
laws, other than those encompassed by the
Calder
categories, which "alter the situation of a party to his
disadvantage." Nothing in the
Hall case supports the broad
construction of the
ex post facto provision given by the
Court in
Kring.
It is possible to reconcile
Kring with the numerous
cases which have held that "procedural" changes do not result in
ex post facto violations by saying that the change in
Missouri law did not take away a "defense" available to the
defendant under the old procedure. But this use of the word
"defense" carries a meaning quite different from that which appears
in the quoted language from
Beazell, where the term was
linked to the prohibition on alterations in "the legal definition
of the offense" or "the nature or amount of the punishment imposed
for its commission."
Beazell, 269 U.S. at
269 U. S.
169-170. The "defense" available to Kring under earlier
Missouri law was not one related to the definition of the crime,
but was based on the law regulating the effect of guilty pleas.
Missouri had not changed any of the elements of the crime of
murder, or the matters which might be pleaded as an excuse or
justification for the conduct underlying such a charge; it had
changed its law respecting the effect of a guilty plea to a lesser
included offense. The holding in
Kring can only be
justified if the
Ex Post Facto Clause is thought to
include not merely the
Calder categories but any change
which "alters the situation of a party to his disadvantage." We
think such a reading of the Clause departs from the meaning of the
Clause as it was understood at the time of the adoption of the
Constitution, and is not supported by later cases. We accordingly
overrule
Kring.
The second case,
Thompson v. Utah, must be viewed in
historical context. Thompson was initially charged with his crime
-- grand larceny committed by stealing a calf -- in 1895, when Utah
was a Territory. He was tried by a jury of 12 persons and
convicted. A new trial was subsequently granted, however, and in
the meantime Utah was admitted
Page 497 U. S. 51
into the Union as a State. The Constitution of the State of Utah
provided that juries in noncapital cases would consist of eight
persons, not twelve, and Thompson was retried and convicted by a
panel of eight.
This Court reversed the conviction. It reasoned first that while
Utah was a Territory, the Sixth Amendment applied to actions of the
territorial government and guaranteed Thompson a right to a
12-person jury. 170 U.S. at
170 U. S.
349-360. The Court then held that
"the State did not acquire upon its admission into the Union the
power to provide, in respect of felonies committed within its
limits while it was a Territory, that they should be tried
otherwise than by a jury such as is provided by the Constitution of
the United States."
Id. at
170 U. S.
350-351. Because the State Constitution "deprive[d] him
of a substantial right involved in his liberty" and "materially
alter[ed] the situation to his disadvantage," the Court concluded
that Thompson's conviction was prohibited by the
Ex Post
Facto Clause.
Id. at
170 U. S.
352-353.
The result in
Thompson v. Utah foreshadowed our
decision in
Duncan v. Louisiana, 391 U.
S. 145 (1968), which held that the Sixth Amendment right
to trial by jury -- then believed to mean a jury of 12,
see,
e.g., Patton v. United States, 281 U.
S. 276,
281 U. S.
288-289 (1930) -- was incorporated and made applicable
by the Fourteenth Amendment against the states. The Court held
that, since Utah was a territory when Thompson's crime was
committed, and therefore obligated to provide a twelve-person jury
by the Sixth Amendment, the
Ex Post Facto Clause prevented
the State from taking away that substantial right from him when it
became a State and was no longer bound by the Sixth Amendment as
then interpreted. The right to jury trial provided by the Sixth
Amendment is obviously a "substantial" one, but it is not a right
that has anything to do with the definition of crimes, defenses, or
punishments, which is the concern of the
Ex Post Facto
Clause. To the extent that
Thompson v. Utah
Page 497 U. S. 52
rested on the
Ex Post Facto Clause and not the Sixth
Amendment, we overrule it. [
Footnote 4]
The Texas statute allowing reformation of improper verdicts does
not punish as a crime an act previously committed which was
innocent when done, nor make more burdensome the punishment for a
crime after its commission, nor deprive one charged with crime of
any defense available according to law at the time when the act was
committed. Its application to respondent therefore is not
prohibited by the
Ex Post Facto Clause of Art. I, §
10.
The judgment of the Court of Appeals is
Reversed.
[
Footnote 1]
In
Bogany, the Texas Court of Criminal Appeals held
that a jury verdict which included a punishment unauthorized by law
was void at its inception, and must be set aside. It concluded that
Texas law at that time did not give appellate courts authority to
reform such verdicts.
[
Footnote 2]
Although there has been some debate within the Court about the
accuracy of the historical discussion in
Calder v. Bull, see
27 U. S.
Matthewson, 2 Pet. 380,
27 U. S. 381
(1829) (note by Justice Johnson), the Court has consistently
adhered to the view expressed by Justices Chase, Paterson, and
Iredell in
Calder that the
Ex Post Facto Clause
applies only to penal statutes.
[
Footnote 3]
The
Beazell definition omits the reference by Justice
Chase in
Calder v. Bull,
3 Dall. 386 (1798), to alterations in the "legal rules of
evidence."
See also Hopt v. Utah, 110 U.
S. 574,
110 U. S. 590
(1884) (approving procedural changes "leaving untouched the nature
of the crime and the amount or degree of proof essential to
conviction"). As cases subsequent to
Calder make clear,
this language was not intended to prohibit the application of new
evidentiary rules in trials for crimes committed before the
changes.
Thompson v. Missouri, 171 U.
S. 380,
171 U. S.
386-387 (1898) (rejecting
ex post facto
challenge to retroactive application of statute making admissible
handwritten documents as handwriting exemplars);
Hopt,
supra, 110 U.S. at
110 U. S.
588-590 (upholding retroactive application of statute
making felons competent to testify).
[
Footnote 4]
The Court's holding in
Thompson v. Utah, 170 U.
S. 343 (1898), that the Sixth Amendment requires a jury
panel of 12 persons is also obsolete.
Williams v. Florida,
399 U. S. 78
(1970).
Justice STEVENS, with whom Justice BRENNAN and Justice MARSHALL
join, concurring in the judgment.
The "
Ex Post Facto" Clause of the Constitution
[
Footnote 2/1] has been construed
to embrace any law that deprives a person accused of crime of a
"substantial protection" that the law afforded at the time of the
alleged offense. Thus, the Clause prohibits not only the
retroactive creation of new criminal offenses and more harsh
penalties but also substantial changes in procedure that are
designed to protect the defendant from a wrongful conviction. The
question in this case is whether a law that changed a
post-conviction remedy for an erroneous sentence -- by conforming
it to the law in effect at the time of the offense instead of
affording the defendant a new trial on all issues -- effected a
"substantial" deprivation within the meaning of our cases. I agree
with the Court's conclusion
Page 497 U. S. 53
that the new law did not violate the
Ex Post Facto
Clause, but I believe that conclusion is entirely consistent with
our precedents.
I
Respondent committed a crime that was punishable by a maximum
sentence of life imprisonment, and was convicted on March 17, 1982.
Under Texas law, it was the jury's task to impose sentence as well
as to determine guilt or innocence. By consequence of a faulty
instruction, respondent was improperly sentenced to life
imprisonment and a fine of $10,000. The following year, in
Bogany v. State, 661
S.W.2d 957 (1983), the Texas Court of Criminal Appeals held in
a somewhat similar case that the fine was not authorized by law,
and that no reviewing court had authority to correct such an
erroneous sentence. Instead, the entire judgment was deemed "void"
and the defendant was entitled to a new trial. [
Footnote 2/2] Understandably, the Texas legislature
recognized that corrective legislation was in order, for it is
difficult to understand why an error in sentencing should
necessitate a second trial on the issue of guilt or innocence.
Page 497 U. S. 54
Theoretically, the legislature might have remedied the situation
in either of two ways. It might have authorized a punishment of
both life imprisonment and a $10,000 fine for respondent's offense
or, alternatively, it might have authorized a court to correct the
sentence by eliminating the fine. The former option would plainly
have violated the
Ex Post Facto Clause, because it would
have increased the respondent's punishment beyond the penalty
authorized at the time of his offense. The second option, which the
Texas legislature adopted, is not subject to that defect, nor does
it criminalize previously innocent conduct or make any change in
the procedures used to convict or to sentence respondent. It
created a new remedy designed to conform respondent's sentence to
that authorized by law at the time of his offense. Such legislation
does not violate the
Ex Post Facto Clause.
The argument to the contrary is based on our cases holding that
the Clause applies to procedural, as well as substantive, changes
that deprive a defendant of "substantial personal rights" and a
claim that respondent's right to a new trial after an erroneous
sentence was such a right. The argument misreads our precedents and
overlooks the critical importance of evaluating the procedural
right at issue by reference to the time of the offense.
II
In
Kring v. Missouri, 107 U. S. 221
(1883), the Court rejected the argument that the
Ex Post
Facto Clause has no application to procedural changes. At the
time of Kring's offense, Missouri law provided that the acceptance
of a plea of guilty to second-degree murder constituted an
acquittal of first-degree murder. A subsequent amendment to the
Missouri Constitution abrogated that rule, and Kring was thereafter
convicted of first-degree murder and sentenced to death. The
Missouri Supreme Court held that there was no violation of the
Ex Post Facto Clause, because the retroactive
Page 497 U. S. 55
amendment was merely a procedural change. [
Footnote 2/3] This Court's reversal of that holding
demonstrates that the Clause applies to some procedural changes,
but our decision rested on the fact that the change had deprived
the defendant of a complete defense to the charge of first-degree
murder and to the imposition of the death penalty. We wrote:
"Whatever may be the essential nature of the change, it is one
which, to the defendant, involves the difference between life and
death, and the retroactive character of the change cannot be
denied."
Id. 107 U.S. at
107 U. S.
224.
"In the case before us, the Constitution of Missouri so changes
the rule of evidence that what was conclusive evidence of innocence
of the higher grade of murder when the crime was committed, namely,
a judicial conviction for a lower grade of homicide, is not
received as evidence at all, or, if received, is given no weight in
behalf of the offender. It also changes the punishment, for,
whereas the law as it stood when the homicide was committed was
that, when convicted of murder in the second degree, he could never
be tried or punished by death for murder in the first degree, the
new law enacts
Page 497 U. S. 56
that he may be so punished, notwithstanding the former
conviction."
Id. at
107 U. S.
228.
Thompson v. Utah, 170 U. S. 343
(1898), involved an offense committed while Utah was a territory,
but the case was tried after Utah became a State. At the time of
the offense, the defendant was entitled to a trial by a 12-person
jury, but, under the new State's law, only 8 jurors were required.
We held that this retrospective procedural change deprived Thompson
of "a substantial right belonging to him when the offense was
committed," and therefore violated the
Ex Post Facto
Clause.
"We are of opinion that the State did not acquire upon its
admission into the Union the power to provide, in respect of
felonies committed within its limits while it was a Territory, that
they should be tried otherwise than by a jury such as is provided
by the Constitution of the United States. When Thompson's crime was
committed, it was his constitutional right to demand that his
liberty should not be taken from him except by the joint action of
the court and the unanimous verdict of a jury of twelve persons. To
hold that a State could deprive him of his liberty by the
concurrent action of a court and eight jurors would recognize the
power of the State not only to do what the United States in respect
of Thompson's crime could not, at any time, have done by
legislation, but to take from the accused a substantial right
belonging to him when the offence was committed."
"It is not necessary to review the numerous cases in which the
courts have determined whether particular statutes come within the
constitutional prohibition of
ex post facto laws. It is
sufficient now to say that a statute belongs to that class which by
its necessary operation and
in its relation to the offence, or
its consequences, alters the situation of the accused to his
disadvantage.' United States v. Hall [26 F. Cas. 84,] 2
Wash. C.C. 366; Kring v.
Missouri, 107 U. S. 221,
107 U. S. 228;
Medley,
Petitioner, 134 U.S.
Page 497 U. S. 57
160,
134 U. S. 171.
Of course, a statute is not of that class unless it materially
impairs the right of the accused to have the question of his guilt
determined according to the law as it was when the offence was
committed."
170 U.S. at
170 U. S.
350-351.
In
Beazell v. Ohio, 269 U. S. 167
(1925), we made it clear that the question whether a particular
procedural change has a sufficiently drastic impact on a defendant
to be characterized as "substantial" is a matter of degree. In that
case, we held that the rule applied in
Kring and
Thompson did not preclude the retrospective application of
a rule allowing two codefendants to be tried jointly for a
noncapital offense. We summarized our earlier cases construing the
Ex Post Facto Clause and explained:
"The constitutional prohibition and the judicial interpretation
of it rest upon the notion that laws, whatever their form, which
purport to make innocent acts criminal after the event, or to
aggravate an offense, are harsh and oppressive, and that the
criminal quality attributable to an act, either by the legal
definition of the offense or by the nature or amount of the
punishment imposed for its commission, should not be altered by
legislative enactment, after the fact, to the disadvantage of the
accused."
Id. at
269 U. S.
170.
"And there may be procedural changes which operate to deny to
the accused a defense available under the laws in force at the time
of the commission of his offense, or which otherwise affect him in
such a harsh and arbitrary manner as to fall within the
constitutional prohibition.
Kring v. Missouri,
107 U. S.
221;
Thompson v. Utah, 170 U. S.
343. But it is now well settled that statutory changes
in the mode of trial or the rules of evidence, which do not deprive
the accused of a defense and which operate only in a limited and
unsubstantial manner to his disadvantage, are not prohibited."
Ibid.
Page 497 U. S. 58
"Just what alterations of procedure will be held to be of
sufficient moment to transgress the constitutional prohibition
cannot be embraced within a formula or stated in a general
proposition. The distinction is one of degree. But the
constitutional provision was intended to secure substantial
personal rights against arbitrary and oppressive legislation,
see Malloy v. South Carolina, 237 U. S.
180, 183, and not to limit the legislative control of
remedies and modes of procedure which do not affect matters of
substance."
Id., 269 U.S. at
269 U. S.
170-171.
III
The foregoing cases make it clear that the mere fact that this
case involves a procedural change in Texas law is not sufficient to
exclude it from the coverage of the
Ex Post Facto Clause.
But it is equally clear that our analysis should focus on the
impact of the change upon the "right belonging to [the defendant]
when the offense was committed."
Thompson, 170 U.S. at
170 U. S. 351.
In this case, neither the defendant's right to a fair trial nor his
right to be protected against unauthorized or excessive punishment
has been impaired in the slightest by the new Texas rule.
This conclusion follows immediately from an observation which is
both sensible and evident from precedent: a procedural protection
is likely to be substantial, when viewed from the time of the
commission of the offense, only if it affects the modes of
procedure by which a valid conviction or sentence may be imposed.
The claims in
Kring and
Thompson both satisfy
this threshold test. In
Kring, the procedural change --
which deprived Kring of a defense based upon an earlier trial or
plea -- made it easier for the State to obtain a first-degree
murder charge against a defendant who had never been subject to any
valid conviction for the crime in question, much less a valid
conviction for first-degree murder. In
Thompson, the
reduction in the size of the jury made it easier for the State to
obtain a unanimous verdict
Page 497 U. S. 59
against a defendant who, before the verdict, likewise had not
been convicted.
Mallett v. North Carolina, 181 U.
S. 589 (1901), is, however, distinguishable from
Kring and
Thompson, because it fails to meet the
threshold test. In
Mallett, a valid conviction had been
obtained against the defendant. Under the defendant's theory in
that case, however, the State would have been prohibited from
relying upon this conviction, because it had been vacated by an
intermediate appellate court. Although the North Carolina Supreme
Court reinstated the conviction, Mallett claimed that it lacked
power to do so. At the time Mallett committed his crime, the State
was prohibited by state law from appealing the adverse decisions of
intermediate appellate courts in criminal cases. This restriction
had been removed, but Mallett contended that the State had thereby
enacted an
ex post facto law. As the case came to this
Court, it was conceded that Mallett was convicted after a trial
which afforded him all the procedural and substantive protections
guaranteed by North Carolina law at the time he committed his
offense. Nevertheless, according to Mallett's theory, the State was
prohibited from relying upon his conviction because of the
combination of an intervening -- and, for this Court's purposes,
erroneous -- appellate decision and a restriction upon the State's
access to the appellate processes. Not surprisingly, we rejected
this claim.
This case is comparable to
Mallett. Respondent does not
claim that he was denied any procedural protections relevant to the
determination of his guilt or innocence. Nor does he claim that his
life sentence was unauthorized by law, or that it was the
consequence of improper procedures. Finally, he does not argue that
he has been deprived of any avenue of review for correcting errors
that may have vitiated the validity of his conviction or sentence.
For example, respondent does not contend-- and we do not see how he
could plausibly contend, that the State has deprived him of any
opportunity to challenge his conviction on the ground that the
improper
Page 497 U. S. 60
sentencing instruction somehow infected the jury's deliberations
about his guilt or about the propriety of life imprisonment.
Respondent instead claims, as did the defendant in
Mallett, that an unrelated error must bar the State from
relying upon his concededly valid conviction, and predicates this
claim solely on a restriction upon the State's access to appellate
-- or, more precisely in this case, post-conviction -- remedies.
[
Footnote 2/4] Unlike the
defendants in
Thompson and
Kring, Youngblood
wishes to have a new trial according to the same procedures,
regulated by the same laws, open to the. same evidence, and capped
by the same sentencing limitations that resulted in his conviction
and his life sentence. [
Footnote
2/5]
Obviously, as our decision in
Beazell itself makes
clear, a procedural protection does not become substantial merely
because it meets the low threshold that I have discussed. It does,
however, become insubstantial by failing to do so. Whatever else
may be said of the factors that determine whether a procedural
protection affects substantial rights, it is difficult to imagine
how a retroactive law could, when viewed from the standpoint of the
date the offense was committed, implicate substantial rights of any
defendant if the law does no more than expand the flexibility of
post-conviction processes available to the State with respect to a
defendant
Page 497 U. S. 61
who is subject to a valid conviction and sentence. Indeed,
respondent has barely even attempted to articulate any
justification for the Texas procedure that the legislature
abolished. The mere possibility of a capricious and unlikely
windfall is not the sort of procedural protection that could
reasonably be judged substantial from the perspective of the
defendant at the time the offense was committed.
Accordingly, I concur in the Court's judgment, but not in its
opinion.
[
Footnote 2/1]
Art. I, § 10 of the Constitution provides in part:
"No State shall enter into any Treaty, Alliance, or
Confederation; grant Letters of Marque and Reprisal; coin Money;
emit Bills of Credit; make any Thing but gold and silver Coin a
Tender in Payment of Debts; pass any Bill of Attainder,
ex post
facto Law, or Law impairing the Obligation of Contracts, or
grant any Title of Nobility."
[
Footnote 2/2]
At the time of respondent's offense, it apparently was well
established under Texas law that, as a general proposition, when a
criminal jury rendered a verdict not authorized by law, the verdict
was void at its inception.
See, e.g., Ex parte
McIver, 586
S.W.2d 851, 854 (Tex.Crim.App.1979);
Ocker v.
State, 477
S.W.2d 288, 290 (Tex.Crim.App.1972). However, until the Court
of Criminal Appeals decided
Bogany, there was some doubt
both as to whether that general rule would apply to the error in
this case, and as to whether the sentence imposed by the jury in
this case was in fact unlawful.
See, e.g., Adams v. State,
642 S.W.2d 211, 213-14 (Tex.App.1982) (reforming jury's sentence);
Bogany v. State, 646 S.W.2d 663, 664-665 (Tex.App.)
(stating that jury's sentence could be reformed),
rev'd, 661
S.W.2d 957 (1983);
Bogany v. State, 661
S.W.2d 957, 960 (Tex.Crim.App.1983) (McCormick, J., dissenting)
(contending that supplementary fine was authorized by law). For
purposes of this opinion, I assume that both the substantive
limitation upon respondent's sentence and the procedural limitation
on the remedial powers of reviewing courts were law at the time
that respondent's offense was committed.
[
Footnote 2/3]
The Missouri Supreme Court relied upon the reasoning of the St.
Louis Court of Appeals.
See State v. Kring, 74 Mo. 612,
631 (1881). The relevant passage from the Court of Appeals opinion
was quoted (and then disavowed) by this Court in
Kring v.
Missouri, 107 U. S. 221,
107 U. S.
223-224 (1883):
"Formerly it was held in Missouri (
State v. Ross, 29
Mo. 32) that, when a conviction is had of murder in the second
degree on an indictment charging murder in the first degree, if
this be set aside, the defendant cannot again be tried for murder
in the first degree. A change introduced by sect. 23 of art. 2 of
the Constitution of 1875 has abrogated this rule. On the oral
argument, something was said by counsel for the defendant to the
effect that, under the old rule, defendant could not be put on his
trial for murder in the first degree, and that he could not be
affected by the change of the constitutional provision, the crime
having been committed whilst the old constitution was in force.
There is, however, nothing in this; this change is a change not in
crimes, but in criminal procedure, and such changes are not
ex
post facto. 76
U. S. State, 9 Wall. 35;
Cummings v.
Missouri, 4 Wall. at
71 U. S. 326."
[
Footnote 2/4]
In
Mallett v. North Carolina, 181 U.
S. 589 (1901), the unrelated intervening error was an
incorrect decision by the intermediate appellate court; in this
case, it was the imposition of a supplementary fine in addition to
the life sentence. In
Mallett, the restriction upon the
review process prohibited the State from taking an appeal; in this
case, it prohibits the courts from saving the conviction and
sentence by removing the improper supplement.
[
Footnote 2/5]
Indeed, this case is
a fortiori by comparison to
Mallett. In that case, the defendant would benefit from an
evidentiary exclusion at the secondary trial, although that
exclusion would be entirely the consequence of the appellate
court's incorrect interpretation of State law, and not a
consequence of the trial procedures established by North Carolina
law in effect at the time of the offense. By contrast, in this
case, the procedures at the second trial would be in all relevant
respects identical.