Constitutional Law
Jul. 26, 2003
Question of Time
Forum Column - By Erwin Chemerinsky - Judicial review is most important when legislatures enact laws that are overwhelmingly popular but also unconstitutional. In such situations, we cannot rely on the political process to ensure compliance with the Constitution.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
Forum Column
By Erwin Chemerinsky
Judicial review is most important when legislatures enact laws that are overwhelmingly popular but also unconstitutional. In such situations, we cannot rely on the political process to ensure compliance with the Constitution.
In Stogner v. California, 123 S.Ct. 2446 (2003), the U.S. Supreme Court declared unconstitutional a California law that the Legislature passed overwhelmingly and that the vast majority of the people undoubtedly favored. The law retroactively extended the statute of limitations for criminal prosecution of the sexual molestation of children and thus allowed prosecutions to occur that otherwise would be time-barred.
The Supreme Court, in a 5-4 majority opinion written by Justice Stephen Breyer, held that this statute is an impermissible ex post facto law. Many stories have run in the media about convictions being overturned and child molesters going free because of this decision. Yet as distasteful as that may be, the court got it right in Stogner - retroactively extending the statute of limitations to allow prosecutions that were time-barred violates the Constitution.
The law was enacted by the Legislature in 1993 and changed the statute of limitations for sex-related child-abuse crimes. It provided that a defendant could be prosecuted, even though the statute of limitations had expired, with the following criteria: the victim reported an allegation of abuse to the police; there was independent evidence to corroborate the victim's allegation; and the prosecution was initiated within one year of the victim's report. Penal Code 803(g).
In 1996, the Legislature enacted another statute that made it clear that a prosecution satisfying these three requirements "shall revive any cause of action barred [by the statute of limitations]." Penal Code 803(g)(3)(A).
In other words, the purpose and effect of this law was to allow criminal prosecutions for child molestation after the statute of limitations otherwise would have expired. That is exactly what occurred in the case before the Supreme Court.
In 1998, Marion Stogner was indicted for child sexual abuse that allegedly occurred between 1955 and 1973. The three-year statute of limitations obviously had expired on these alleged crimes, which had occurred between 25 and 43 years earlier. Stogner argued that it violated the Ex Post Facto Clause for the state to extend the statute of limitations after his crime was committed and after the prosecution otherwise would have been time-barred.
Reversing the state Court of Appeal, the U.S. Supreme Court held that California's extension of the statute of limitations was an impermissible ex post facto law.
The text of the Constitution, apart from the Bill of Rights, protects relatively few individual rights. But in Article I, Sections 9 and 10, the Constitution says that neither Congress nor the states may enact "ex post facto laws."
The specific enumeration of this right within the Constitution reflects its fundamental nature to the Framers. They viewed ex post facto laws as profoundly unfair and a violation of a basic right of all individuals. Some of the earliest Supreme Court cases dealt with the Ex Post Facto Clause and explained the importance of the provision.
In Calder v. Bull, 3 Dall. 386 (1798), the court described how the Ex Post Facto Clause protects liberty by preventing governments from enacting retroactive criminal liability that is "manifestly unjust and oppressive." In Fletcher v. Peck, 6 Cranch 87 (1810), the court spoke of the Ex Post Facto Clause as an essential protection "against violent acts which might grow out of the feelings of the moment."
Thus, it long has been clear that the government violates the Ex Post Facto Clause if it criminally punishes conduct that was lawful when it was done or increases the punishment for a crime after it was committed.
But that is exactly what California's law did. At the time that the law was enacted, Stogner was not criminally liable for what he allegedly had done; but the law subjected him to criminal prosecution. The statute increased the punishment for the crime of child molestation after the time of Stogner's alleged crimes.
When Stogner allegedly molested the children, his possible punishment could occur within three years of the crimes; but the 1993 law increased this punishment indefinitely by allowing a prosecution at any time in the future, so long as it was within one year of the illegal acts being reported.
Breyer clearly explained why this was an impermissible ex post facto law: "After (but not before) the original statute of limitations had expired, a party such as Stogner was not liable to any punishment. California's new statute therefore aggravated Stogner's alleged crime, or made it greater than it was, when committed, in the sense that, and to the extent that, it inflicted punishment for past criminal conduct that (when the new law was enacted) did not trigger any such liability."
Critics argue that the decision will mean that sex offenders will go free and escape punishment for their heinous crimes. Obviously, everyone wants to see child molesters punished. But these prosecutions are barred, not because of an arbitrary decision by the Supreme Court, but because California long ago set a three-year statute of limitations for sex crimes against children and did not enact a provision to extend the statute of limitations until 1993.
Although providing for the prosecution of sex offenders is a crucial government interest, it does not justify a law that violates the Ex Post Facto Clause. In essence, the court said that a statute of limitations has no meaning if a legislature can extend it retroactively long after it has run out.
As Breyer explained, "California's law subjects an individual such as Stogner to prosecution long after the State has, in effect, granted amnesty. ... It retroactively withdraws a complete defense to prosecution after it has already attached, and it does so in a manner that allows the State to withdraw this defense at will and with respect to individuals already identified. Unfair seems to us a fair characterization."
What will this mean for other criminal and civil actions in California? First, the law unquestionably is constitutional for sex crimes against children that occurred after 1993.
A state is not required to set a statute of limitations for any crime. For example, no statute of limitations exists for murder. California could provide that there will be no statute of limitations for sex crimes against children. It follows, then, that California may provide a three-year statute of limitations for child molestation but also provide that prosecutions may occur beyond this time so long as they are initiated within one year of the crime being reported.
Thus, as long as this statute was on the books when the crime was committed, it does not violate the Ex Post Facto Clause to have a criminal prosecution even after the three-year statute of limitations has expired.
In other words, the court's objection in Stogner was based entirely on the fact that the law extending the statute of limitations was enacted after Stogner's alleged crimes and was applied retroactively. Extending the statute of limitations for crimes occurring after 1993 is entirely permissible.
Second, will Stogner have any relevance to laws extending the statute of limitations for civil liability for child molestation? Last year, the Legislature enacted such a statute, retroactively extending the statute of limitations for civil claims. This law was enacted in response to revelations of abuse, particularly within the Catholic Church.
It is crucial to emphasize that Stogner has absolutely no application in the civil context. Since early in American history, the Supreme Court has held that the Ex Post Facto Clause applies only as to criminal liability, not with regard to civil liability. In many cases, the court has held that retroactive civil liability, including an extension of the statute of limitations, can be challenged only under the Due Process Clause and not under the Ex Post Facto Clause.
The Supreme Court and lower courts are unanimous in holding that retroactive civil liability is allowed so long as it meets a rational-basis test. See, for example, United States v. Sperry Corp., 493 U.S. 52 (1989); Gray v. First Winthrop Corp., 989 F.2d 1564 (9th Cir. 1993). No doubt exists that extending the statute of limitations for civil liability for sex abuse against children is reasonable and thus would be constitutional.
Everyone wants to see child molesters punished. But it is in precisely this situation, where criminal defendants are socially unpopular and legislation against them is highly desired, that courts must enforce the Constitution. That is exactly what the Supreme Court did in Stogner.
Erwin Chemerinsky is Sydney M. Irmas Professor of Public Interest Law, Legal Ethics and Political Science at USC Law School.
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