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Even California is becoming more conservative. Prior to 2004, California’s double jeopardy statute protected a defendant from reprosecution if the defendant had been tried for the same acts or omissions under the laws of another state, government or country. California’s double jeopardy law, as enacted in 1872, provides: “No person can be subjected to a second prosecution for a public offense for which he has once been prosecuted and convicted or acquitted.” Calif. Penal Code � 687 (West 2007). In addition, former Section 656 provided an affirmative defense for any defendant convicted or acquitted in another jurisdiction of an offense involving the same acts. Calif. Penal Code � 656 (West 2003). Trouble with double jeopardy leads to a change But in 2004, the California Legislature amended its double jeopardy law. Troubled by the growing numbers of defendants who would commit crimes in California, surrender to nearby Mexican authorities, receive a slap on the wrist, and then return to the United States with immunity, California changed Penal Code Section 656 to provide: “Whenever on the trial of an accused person it appears that upon a criminal prosecution under the laws of the United States, or of another state or territory of the United States based upon the act or omission in respect to which he or she is on trial, he or she has been acquitted or convicted, it is a sufficient defense.” (Emphasis added.) Calif. Penal Code � 656 (West 2007). The legislative history of the new law left no doubt that it was intended to deprive defendants of a double jeopardy claim they would have had under the old law. The act’s sponsor expressly stated that the new law would “eliminate statutory immunity for persons acquitted or convicted in other countries who would otherwise be subject to prosecution by local authorities in California.” A.B. 1432 (Firebaugh). So, how does the ex post facto come into the picture? California officials are trying to use the new law to prosecute a defendant accused of killing his wife in Los Angeles, but who fled to his native Japan and was eventually tried and convicted there. Later, his conviction was overturned on appeal. At the time the defendant was tried overseas, the old California law was in effect and the defendant was barred from retrial in California under the state’s then-existing double jeopardy law. Following the defendant’s trial in Japan, however, California changed its law and the defendant is now being extradited to California to stand trial. Not surprisingly, the defendant is claiming that application of California’s new double jeopardy law violates the federal Constitution’s prohibition against ex post facto laws. Article I, Section 10 of the U.S. Constitution provides that “No State shall . . . pass any . . . ex post facto Law.” Article I, � 9, cl. 3, has a similar prohibition applicable to Congress. It provides: “No Bill of Attainder or ex post facto Law shall be passed.” The Constitution does not elaborate on the meaning of the prohibition against ex post facto laws. In Calder v. Bull, 3 Dallas 386, 390 (1798), the Supreme Court noted that “[t]he proscription against ex post facto laws “necessarily requires some explanation; for, naked and without explanation, it is unintelligible, and means nothing.” At its heart, it prevents the government from “enacting statutes with ‘manifestly unjust and oppressive’ retroactive effects.” Stogner v. California, 539 U.S. 607, 611 (2003). Generally, the prohibition against ex post facto laws covers four situations: (1) a law that makes an action done before the passing of the law, and which was innocent when done, criminal, and which punishes such action; (2) any law that aggravates a crime, or makes it greater than it was when committed; (3) retroactive increase in the punishment for a crime; and (4) any law that alters legal rules, such as rules of evidence, so as to make it easier to convict the offender. Bull, 3 Dall. 386, 390-91 (1798). Thus, any statute “which deprives one charged with crime of any defense available according to law at the time the act was committed, is prohibited as ex post facto.” Beazell v. Ohio, 269 U.S. 169-170 (1925). The prohibition against ex post facto laws has been used to bar the retroactive application of new statutes of limitation that would extend the period during which a defendant could be prosecuted for a crime already committed. In Stogner v. California, 539 U.S. 607 (2003), the Supreme Court struck down California’s new statute of limitations that permitted resurrection of otherwise time-barred prosecutions for sex-related child abuse. In a 5-4 decision, Justice Stephen G. Breyer wrote for the majority that California had, in effect, “granted an amnesty” to those defendants whose statute of limitations had already run. The court held that reviving previously time-barred prosecutions would violate ex post facto principles. The ex post facto prohibition has also been used to prohibit the application of amended rules of evidence that made it easier to convict a defendant. In Carmell v. Texas, 529 U.S. 513 (2000), the Texas statute on the books at the time the defendant committed his crime provided that the alleged victim’s testimony about an alleged sexual offense could not support a conviction unless it was corroborated or the defendant had informed other persons of the alleged offense within six months of its occurrence. After Scott Carmell allegedly attacked his stepdaughter, Texas amended its statute to provide that the uncorroborated testimony of a victim under 18 was sufficient for a conviction. Again in a 5-4 decision, the Supreme Court held that retroactively applying the new Texas law would violate ex post facto principles. Justice John Paul Stevens wrote, “[T]he government refuses, after the fact, to play by its own rules, altering them in a way that is advantageous only to the State, to facilitate an easier conviction. There is plainly a fundamental fairness interest . . . in having the government abide by the rules of law it establishes to govern the circumstances under which it can deprive a person of his or her liberty or life.” Id. at 533. Thus, even laws that change the applicable rules of evidence may trigger the ex post facto provision, although this is not true of evidentiary rules that merely enlarge the class of persons competent to testify. See also People v. Brown, 33 Cal. 4th 382, 394-395 (2005) (admission of victim impact evidence during penalty phase of capital case did not violate ex post facto clause or due process). Most recently, defendants attempted to use the ex post facto prohibition to challenge sentences under new federal sentencing guidelines. See U.S. v. Lennon, 372 F.3d 535 (3d Cir. 2004). However, even when the guidelines were mandatory, application of new guidelines provisions was only prohibited if the guidelines changed after the defendant’s crime was completed. When the defendant’s illegal conduct continued into the time of the new provisions, there was no ex post facto violation. Some defendants have tried to challenge their sentences after the Supreme Court’s decision in U.S. v. Booker, 543 U.S. 220 (2005). They claim that allowing judges broader discretion to depart from the guidelines violates the ex post facto clause. Challenges to post- Booker sentences have not been particularly successful. Generally, “the Ex Post Facto Clause limits the legislature instead of the judiciary.” Rogers v. Tennessee, 532 U.S. 451, 456 (2001). Even if the defendant’s claim is evaluated under due process standards, see Bouie v. Columbia, 378 U.S. 347 (1964), it often fails because defendants know the maximum possible sentence they face and have had fair warning of the law. See, e.g., U.S. v. Farris, 448 F.3d 965 (7th Cir. 2006); U.S. v. Gray, 362 F. Supp. 2d 714, 725-728 (S.D. W.Va. 2005). Defendants challenge new laws on DNA testing Ex post facto challenges may be filed in state and federal cases. Recently, defendants have challenged new laws that require defendants to comply with DNA testing after their convictions on certain offenses. For example, in People v. Travis, 139 Cal. App. 4th 1271 (2006), the defendant challenged the constitutionality of a new statute that required that he give a DNA sample. The courts have rejected these claims. DNA testing is not considered “additional punishment.” DNA testing “may constitute a disadvantage or burden, but the statute [is] neither intended to nor does inflict punishment for commission of the crime.” Id. at 1295. Because the defendant faces no additional punishment, it is invalid to apply the ex post facto provision. See also Smith v. Doe, 538 U.S. 84 (2002) (Alaska Sex Offender Registration Act did not violate ex post facto clause because it was nonpunitive). It is also not an ex post facto violation for a Department of Corrections to implement a new policy that requires a defendant to attend anger-management classes in order to earn release credits. See In the Matter of the Personal Restraint Petition of Steven A. Forbis, 150 Wash. 2d 91, 74 P.3d 1189 (2003). The defendant’s sentence is not increased so long as he complies with the Department of Corrections rules. Ex post facto does not prohibit changes in prison policies, even those that affect how a defendant may earn good-time credits. The Supreme Court has never decided whether retroactive application of a change in double jeopardy laws violates the ex post facto prohibition. If the court follows the path of Stogner and Carmell, states may be barred from retroactively applying new laws that bring their own state laws closer to the federal double jeopardy standards. Although prosecutors complain that this creates a windfall for defendants, courts view the ex post facto prohibition as an issue of fairness. As with much in life, success then is a question of timing. Laurie L. Levenson is a professor of law, William M. Rains Fellow and director of the Center for Ethical Advocacy at Loyola Law School, Los Angeles.

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