Rogers v. Tennessee
The Supreme Court upheld a Tennessee man's murder conviction even though his victim did not die until fifteen months after the stabbing, ruling that the state supreme court's decision to abolish the old 'year and a day' rule and apply it to his case did not violate his right to due process.
The decision draws a sharp line between legislatures, which the Constitution's Ex Post Facto Clause bars from criminalizing past conduct after the fact, and courts, which may retroactively update outdated common-law rules so long as the change was not 'unexpected and indefensible' given prior law.
How it got here: A Tennessee jury convicted Rogers of murder; a state appeals court and the Tennessee Supreme Court affirmed on different grounds; he asked the U.S. Supreme Court to review the due process question.
The Case in Depth
What happened
Wilbert Rogers stabbed James Bowdery with a knife, damaging his heart. Bowdery survived surgery but suffered brain damage, fell into a coma, and died fifteen months later from a kidney infection linked to his condition. Under the old common-law 'year and a day rule,' a killing could not be charged as murder if the victim died more than a year and a day after the injury. Tennessee's courts had to decide whether that rule still barred Rogers's murder conviction.
The question before the Court
Could Tennessee's courts do away with an old common-law rule — that a murder victim must die within a year and a day of the attack — and apply that change to uphold a man's conviction for a stabbing that happened before the rule was scrapped?
The Court's answer
No — the Court ruled that Tennessee's abolition of the year-and-a-day rule, and its application to Rogers's case, did not violate due process. The Constitution's Ex Post Facto Clause only restrains legislatures, not courts, but due process still requires that a court's retroactive ruling not be "unexpected and indefensible" in light of the law as it previously stood.
Applying that standard, the Court found the rule was a widely recognized outdated relic already abandoned by most jurisdictions, and that in Tennessee it had never actually been used to decide a single murder case. Because the rule had such a weak foothold, abolishing it and applying that change to Rogers was not an unfair surprise, so his conviction could stand.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
The ruling means state courts can retroactively eliminate outdated common-law defenses in criminal cases — even to a defendant's disadvantage — as long as the change was reasonably foreseeable, giving judges more flexibility than the Constitution allows legislatures. Defendants relying on old, rarely-used common-law rules cannot assume those rules will protect them if courts view them as obsolete.
What changes now
This is a final merits decision, so Rogers's conviction stands and no further proceedings are required in his case. The ruling establishes that state courts may retroactively revise outdated common-law criminal rules, subject only to a fair-warning check, giving lower courts a standard to apply in future cases involving retroactive changes to common-law doctrines.
What this does not decide
The Court did not adopt the Ex Post Facto Clause's specific categories as due process limits on judges, and did not decide that courts may freely rewrite settled criminal law; it addressed only whether abolishing this particular, rarely-used common-law rule was foreseeable enough to satisfy fair warning.
Concurrences and dissents
Dissent — Justice Stevens
Justice Stevens joined Justice Scalia's dissent in full but wrote separately to stress that, regardless of when exactly the historical understanding of judicial power changed, the majority failed to appreciate how much liberty is threatened whenever criminal law is changed and applied retroactively against a defendant.
Dissent — Justice Scalia
“The Court today approves the conviction of a man for a murder that was not murder (but only manslaughter) when the offense was committed.”Scalia's core objection that the ruling let courts do what legislatures are constitutionally barred from doing.
Justice Scalia argued the Court's ruling lets judges do what the Constitution expressly forbids legislatures from doing: retroactively turning innocent conduct into murder. He argued Bouie's holding, not just its dicta, applied the Ex Post Facto Clause's substance to courts through due process, and that historically courts were understood only to declare law, not change it. He also argued Rogers had no real 'fair warning' that Tennessee would retroactively abolish the rule.
Dissent — Justice Breyer
Justice Breyer agreed with the majority's general due-process, fair-warning approach but disagreed with how it was applied here, concluding that Rogers had no real warning the rule would be abolished and applied retroactively to upgrade his crime to murder. He joined only Part II of Justice Scalia's dissent.
How the Court got there
The legal reasoning, step by step
- The Court began by noting that the Constitution's Ex Post Facto Clause, which bars legislatures from criminalizing conduct after the fact, applies only to legislatures and not to courts by its own terms.
- Relying on Bouie v. City of Columbia, the Court explained that due process nonetheless limits retroactive judicial rulings: a court's construction of a criminal law cannot be applied retroactively if it is 'unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.'
- The Court extended this fair-warning principle from statutory interpretation to common-law rulemaking, reasoning that courts need room to update outdated common-law doctrines as understanding and circumstances change, unlike the stricter limits placed on legislatures.
- Applying that standard, the Court found the year-and-a-day rule was a widely recognized relic that most other courts had already abandoned, and that in Tennessee it had never once actually been used to decide a murder case, appearing only in passing dicta.
- Because the rule had such a weak foothold in Tennessee law and had already fallen out of favor elsewhere, the Court concluded that abolishing it was not an unexpected or indefensible break from prior law.
Doctrinal impact
Cases affected by this decision
Reaffirms Bouie v. City of Columbia (378 U.S. 347)
The Court relied on and extended Bouie's fair-warning due process rule to cover changes in common-law criminal doctrines.