We've discussed the issue before, in relation to the statutes disabling those convicted of domestic violence from owning guns, and applicable to previous convictions, but I just encountered an interesting cite.
STOGNER V. CALIFORNIA (01-1757) (last term, don't have US cite at hand, striking a California statute that extended the criminal statute of limitations for certain sex crimes, as applied to a case where the statute had expired prior to the enactment)....
"Second, the kind of statute at issue falls literally within the categorical descriptions of ex post facto laws set forth by Justice Chase more than 200 years ago in Calder v. Bull, supra-a categorization that this Court has recognized as providing an authoritative account of the scope of the Ex Post Facto Clause. Collins v. Youngblood, 497 U.S. 37, 46 (1990); Carmell, supra, at 539. Drawing substantially on Richard Wooddeson's 18th-century commentary on the nature of ex post facto laws and past parliamentary abuses, Chase divided ex post facto laws into categories that he described in two alternative ways. See 529 U.S., at 522-524, and n. 9."
Opinion notes that Chase drew heavily upon Wooddeson, A Systematical View of the Laws of England (1792), which categorized Parliament's abuse of ex post facto laws.
"The second category-including any "law that aggravates a crime, or makes it greater than it was, when committed," id., at 390-describes California's statute as long as those words are understood as Justice Chase understood them-i.e., as referring to a statute that "inflict[s] punishments, where the party was not, by law, liable to any punishment," id., at 389. See also 2 R. Wooddeson, A Systematical View of the Laws of England 638 (1792) (hereinafter Wooddeson, Systematical View) (discussing the ex post facto status of a law that affects punishment by "making therein some innovation, [begin italics] or creating some forfeiture or disability, not incurred in the ordinary course of law [end italics]" (emphasis added))."
"[C]reating some forfeiture or disability" certainly seems to fit the situation at hand here!"
Opinion goes on to say the author illustrated the last by Parliamentary enactments imposing banishment as a punishment for a past act, which not only imposed a penalty, but one which the courts had not been authorized to impose at the time of the illegal act. "Thus, these laws, like the California law at issue here, enabled punishment where it was not otherwise available "in the ordinary course of law," 2 Wooddeson, Systematical View 638. As this Court previously recognized in Carmell, supra, at 523, and n. 11, it was this vice that was relevant to Chase's purpose."
Also of general interest since the Court's opinion cites the 18th century text, Reconstruction Congress actions (refusing to extend the statute of limitations to allow Jeff Davis' prosecution) and 19th century state decisions.
Also fun because you don't often see a ruling taking the dissenters to task for their account of the impeachment of the Earl of Clarendon, let alone lines like this: "A second problem that the dissent's account raises is one of historical completeness. That account does not explain how the second relevant example-the banishment of the Bishop of Atterbury-can count as an example of a recharacterization of a pre-existing crime." --
