Should Bouie Be Buoyed?: Judicial Retroactive Lawmaking and the Ex Post Facto Clause

Abstract

The Supreme Court under the Ex Post Facto Clause surprisingly has protected criminal defendants from retroactive alteration of any determinant of their sentences. Although the Court in Bouie v. City of Columbia held that the same principles apply to judicial lawmaking, courts routinely permit lower court judges to apply new law retroactively that would violate the Ex Post Facto Clause if enacted by the legislature.In this article, I consider several explanations to justify the Court's disparate treatment of retroactive lawmaking by legislators and judges. The first explanation rests on a Blackstonian distinction between lawmaking and adjudication; a second suggests that judges should apply new rules retroactively as a means of restraining judicial power; and a third focuses on the functional differences between legislative and judicial lawmaking. I dispute the salience of these three explanations, and instead stress that legislators are more likely than judges to make law with an eye toward the next election. Influential interest groups and voters often press for tough criminal law measures, and criminal offenders have comparatively little clout in the political arena due to poverty and social stigmatization. When legislators decide whether to apply harsher punishments to identifiable individuals, the political process in a sense malfunctions. In contrast, judges trust themselves not to give vent to vindictiveness or pander to interest group pressure in construing particular criminal enactments. Nonetheless, because state trial judges in particular can be swayed by popular prejudice and the need for constituent approval, appellate courts assert the authority to, and occasionally have, set aside retroactive lawmaking which seems motivated by animus or caprice.