Some Realism About Retroactive Criminal Lawmaking

The prohibition on retroactive criminal-lawmaking is said to secure the central values of liberal societies. This essay offers a critical appraisal of this idea. The judicious use of retroactivity, it argues, is perfectly consistent with liberal values; indeed, an absolute prohibition on retroactivity would invariably contract, rather than enlarge, the domain of in which individuals can determine their fate by choice. What's more, the anti-retroactivity principle is fictional: the source of retroactive lawmaking is not the legislative power, which is indeed constrained by the Ex Post Facto Clauses of the U.S. Constitution, but rather the judiciary, which isn't constrained by anything except judges' own situation sense. Finally, the essay defends this allocation of retroactive criminal-lawmaking power. Because the electorate learns of issues in criminal law primarily through exposure to sensationalistic media accounts, legislative retroactivity risks infecting criminal law with political pathologies that disfigure the law relative to the political community's own values. The way to avoid the distorting influence of these pathologies isn't to prohibit retroactive criminal-lawmaking outright, but to track that power to courts, which are modestly insulated from popular will and, even more important, seeped in the every-day exigencies of administering the criminal law.