Rogers v. Tennessee

United States Supreme Court
532 U.S. 451 (2001)

ELI5:

Rule of Law:

The Due Process Clause prohibits retroactive judicial application of a change in common law criminal doctrine only when the change is 'unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,' a standard distinct from the limitations of the Ex Post Facto Clause which applies only to legislative acts.

Facts:

On May 6, 1994, Wilbert K. Rogers stabbed James Bowdery with a butcher knife, with one wound penetrating Bowdery’s heart.
During surgery to repair the heart wound, Bowdery went into cardiac arrest and developed cerebral hypoxia, causing his higher brain functions to cease and leaving him in a coma.
Bowdery remained in a coma until August 7, 1995, when he died from a kidney infection, a common complication for comatose patients.
Approximately 15 months elapsed between the stabbing and Bowdery’s death.
The county medical examiner testified that Bowdery’s death was caused by cerebral hypoxia secondary to the stab wound to the heart.

Procedural Posture:

Wilbert K. Rogers was convicted in Tennessee state court (trial court) of second-degree murder.
Rogers appealed his conviction to the Tennessee Court of Criminal Appeals (intermediate appellate court).
The Court of Criminal Appeals affirmed Rogers' conviction, holding that Tennessee’s Criminal Sentencing Reform Act of 1989 had abolished the year and a day rule.
Rogers then appealed his conviction to the Supreme Court of Tennessee (highest state court).
The Supreme Court of Tennessee affirmed on different grounds, concluding that the 1989 Act had not abolished the rule, but judicially abolished the common law rule itself.
The Supreme Court of the United States granted certiorari.

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Issue:

Does a state's highest court violate the Due Process Clause of the Fourteenth Amendment by retroactively applying its judicial decision abolishing a common law criminal rule, such as the year and a day rule, to uphold a murder conviction for conduct that occurred before the rule's abolition?

Opinions:

Majority - Justice O’Connor

No, a state's highest court does not violate the Due Process Clause by retroactively applying its judicial decision abolishing a common law criminal rule, such as the year and a day rule, provided that the judicial alteration was not 'unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.' The Court clarified that the Ex Post Facto Clause explicitly applies only to legislative acts, not judicial decisions, but acknowledged that due process incorporates limitations on retroactive judicial decision-making. However, this due process limitation is based on core concepts of notice, foreseeability, and the right to fair warning, as established in Bouie v. City of Columbia, and does not incorporate the specific prohibitions of the Ex Post Facto Clause jot-for-jot. Applying this 'unexpected and indefensible' standard, the Court found that the Tennessee Supreme Court's abolition of the year and a day rule was not unexpected and indefensible because the rule is widely considered an outdated relic, had been abolished by a vast majority of other jurisdictions, and had a tenuous foothold in Tennessee law, never having been enforced as a ground for decision in any reported murder prosecution in the state.

Dissenting - Justice Stevens

While joining Justice Scalia’s dissent, Justice Stevens emphasized that the majority undervalued the threat to liberty posed by retroactive changes to criminal law, regardless of historical interpretations of judicial lawmaking power. He considers the question of when judicial perception of lawmaking power changed to be tangential, with the paramount concern being the injustice of retroactive criminalization.

Dissenting - Justice Scalia

Yes, a state's highest court violates the Due Process Clause when it retroactively applies a judicial decision abolishing a common law criminal rule that was in effect at the time of the conduct, thereby making an act criminal that was not criminal when committed. Justice Scalia argued that the year-and-a-day rule was a substantive element of murder in Tennessee, and its elimination after the fact violated the principle of 'nulla poena sine lege' (no punishment without law). He contended that the Bouie v. City of Columbia decision's statement about due process barring judicial action mirroring legislative ex post facto laws was not mere dicta but the core reasoning. He also asserted that 'fair warning' in Bouie referred to the existing law at the time of the offense, not a warning that the law might change. Historically, at the time of the framing, judges were understood to 'find' law, not 'make' it, and retroactive changes were deemed a legislative function. Even if the majority's 'unexpected and indefensible' test were accepted, there was no fair warning in this case, as the rule's outdated status or its abolition in other jurisdictions (often prospectively or legislatively) did not make its retroactive judicial abolition predictable in Tennessee.

Dissenting - Justice Breyer

While agreeing with the majority’s basic approach and the application of the 'unexpected and indefensible' standard from Bouie, Justice Breyer disagreed with the majority's application of that standard to the facts of this case. He joined Part II of Justice Scalia's dissenting opinion, concluding that Rogers did not have fair warning that the Tennessee courts would abolish the year and a day rule or retroactively apply such a change to elevate his crime from attempted murder to murder.

Analysis:

This case clarifies the scope of due process limitations on judicial alterations of common law criminal rules, distinguishing them from the legislative prohibitions of the Ex Post Facto Clause. By adopting the 'unexpected and indefensible' standard from Bouie for common law changes, the Court grants state courts significant flexibility to modernize archaic rules without violating due process, provided there is some degree of foreseeability. The decision highlights the tension between judicial evolution of common law and the due process right to fair warning in criminal law, potentially impacting future cases where courts seek to update long-standing but obsolete common law doctrines in criminal contexts. However, it implicitly reinforces that a truly novel or unforeseeable judicial change to a criminal element, especially one previously clearly established, could still violate due process.

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