Rogers v. Tennessee

Supreme Court of the United States · 2001 · Criminal Law

532 U.S. 451 (2001)

Updated August 1, 2026

Criminal Lawlegalityretroactivitydue processyear and a day rulecommon law crimesfair warningforeseeability

Facts

Petitioner stabbed James Bowdery in the heart on May 6, 1994. Bowdery survived surgery but suffered cerebral hypoxia, remained comatose, and died on August 7, 1995, from a kidney infection, with the medical examiner testifying that the death was caused by cerebral hypoxia secondary to the stab wound. More than a year and a day elapsed between the stabbing and the death. Tennessee's homicide statute did not mention the year and a day rule, but the Tennessee Supreme Court concluded the rule existed at common law, abolished it, and applied that abolition to petitioner's case.

Issue

Does the Due Process Clause forbid a state court from retroactively applying its decision abolishing the common law year and a day rule to uphold a murder conviction where the victim died more than a year and a day after the defendant's act? More broadly, what due process standard governs retroactive judicial alteration of criminal common law rules?

Rule

The Ex Post Facto Clause applies only to legislatures, not courts. Due process bars retroactive judicial decisionmaking in criminal law only when the judicial construction or alteration is unexpected and indefensible by reference to the law that had been expressed prior to the conduct in issue; the due process inquiry is grounded in fair warning, notice, and foreseeability, not in wholesale incorporation of the Calder ex post facto categories.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Ohio, the state supreme court abolishes an old common law rule that barred arson liability if a fire victim died more than six months after the burns. The rule had not appeared in Ohio's criminal code, had been mentioned only twice in dicta over the last century, and had been abandoned by most states that recently considered it. The court applies its decision to Devin Cole, whose victim died eight months after the fire he set in Cleveland.

If Devin argues that retroactive application of the court's decision violates the Federal Constitution, which is the strongest response?

Explanation. The governing standard is due process fair warning, not direct application of the Ex Post Facto Clause to courts. A retroactive judicial alteration of criminal common law violates due process only if it is unexpected and indefensible by reference to prior expressed law. Where a rule is obsolete, not codified, rarely referenced, and has only a tenuous foothold in state law, retroactive abolition is less likely to be unforeseeable or arbitrary.