Criminal Provisions

Ex Post Facto Laws

Stogner v. California

In Stogner, the Court held that a California law which extended the criminal statute of limitations for sexual abuse of children was unconstitutional under the ex post facto law. Breyer, J., writing for the Court, warned that “such an extension, by allowing legislatures to pick and choose when to act retroactively, risks both arbitrary and potentially vindictive legislation and erosion of the separation of powers.” The Court also suggested that individuals might have relied on the statute of limitations by, e.g., failing to preserve potentially exculpatory evidence. Kennedy, J., dissented, arguing that the California statute was motivated by a legitimate concern about the continuing suffering endured by the victims of childhood abuse, who, new studies had shown, were unlikely to approach authorities until after the statute of limitations passed.

Rogers v. Tennessee

In Rogers, the Court reaffirmed that the ex post facto clause was only a limitation upon the powers of the Legislature, and did not of its own force apply to the Judicial branch; and held that a “judicial alteration of a common law doctrine of criminal law violates the principle of fair warning, and hence must not be given retroactive effect, only where it is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct at issue.” On this basis, the Court held that the Tennessee Supreme Court’s decision to retroactively abolish the “year and a day rule” – whereby a killer could only be charged with murder if his victim died within a year and a day of the assault – did not violate the due process clause. Scalia, J., dissented, arguing that “ex post facto laws … are contrary to the first principles of the social compact” and that the prohibition on retroactive lawmaking should apply to judges as well as to legislatures.

In class, Tribe noted that the ex post facto clause has two functions: (1) allowing individuals to rely on the existing state of the law; and (2) preventing government vindictiveness. Even where an individual could not be said to have relied on the existing state of the law (as here), there is still a concern that, by retroactively changing the law, the government might target particular individuals for punishment. Cf. Bill of Attainder Clause.

Fourth Amendment

Katz v. United States

In Katz, the Court held that “the Fourth Amendment protects people, not places,” concluding that an individual’s phone conversation – overheard by FBI agents who had attached an electronic listening and recording device to the outside of the public telephone booth he was using – was an unreasonable search within the meaning of the Fourth Amendment. Rejecting the question of whether the phone booth was a constitutionally protected area, the Court stated that “what a person knowingly exposes to the public, even in his own home … is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even an area accessible to the public, may be constitutionally protected.” “One who occupies a [telephone booth], shuts the door behind him, and pays the toll is entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.”

Harlan, J., concurred, and provided the test that the case become known for: For Fourth Amendment protection, a person must have exhibited an actual (subjective) expectation of privacy, and this expectation must be one that society is prepared to recognize as reasonable.

Tribe emphasized that this case involves hybrid rights, with the First Amendment interests in not being overheard pushing back – along with the Fourth Amendment’s protection of privacy – against the government’s interest in obtaining the information. The First Amendment – and its recognition of a legitimate interest in protecting speech that is valueless in order to avoid chilling valuable speech (e.g. Alvarez) – helps illuminate the purpose of the Fourth Amendment’s protection of privacy. Compare this case to Stanley v. Georgia.

United States v. Jones

In Jones, the Court held that the attachment of a GPS tracking device to an individual’s vehicle constituted a search or seizure within the meaning of the Fourth Amendment, because it was a common law trespass. The Court rejected the government’s argument that Jones had no reasonable expectation of privacy on the underbody of his Jeep, such that, under the Katz standard, no search had occurred: “At bottom, we must assure preservation of that degree of privacy … that existed when the Fourth Amendment was adopted. … Katz did not narrow the Fourth Amendment’s scope but only set forth an additional basis for government activity to be deemed a search.” Scalia, J., noted that the text of the Fourth Amendment reflected its close connection to property, and that exclusive reliance on the Katz would risk eliminating rights that previously existed.

Sotomayor, J., concurred. She noted that “awareness that the Government may be watching chills associational and expressive freedoms,” and warned that “the net result is that GPS monitoring … may alter the relationship between citizen and government in a way that is inimical to democratic society.” Further, she noted that “it may be necessary to reconsider the premise … that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” Sotomayor warned that Alito, J.’s approach would risk eroding the longstanding protection for privacy inherent in the items that people possess or control, and endorsed Scalia, J.’s approach as providing “an irreducible constitutional minimum.” Sotomayor also expressed concern that the fact that the Government might obtain the fruits of GPS monitoring through...

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