source: Caselaw Access Project

author: Justice O’Connor Justice Stevens, Justice Scalia, Justice Breyer,

license: Public Domain

text:
    ROGERS v. TENNESSEE
    No. 99-6218.
    Aygued November 1, 2000
    Decided May 14, 2001

      W. Mark Ward argued the cause for petitioner. With him on the briefs were Tony Brayton and Garland Ergiiden.

      . Michael E. Moore, Solicitor General of Tennessee, argued the cause for respondent. With him on the brief were Paul G. Summers, Attorney General, and Gordon W. Smith, Associate Solicitor General.

        Paula R. Voss filed a brief for the Tennessee Association of Criminal Defense Attorneys as amicus curiae urging reversal.

   Justice O’Connor

delivered the opinion of the Court.

This case concerns the constitutionality of the retroactive application of a judicial decision abolishing the common law “year and a day rule.” At common law, the year and a day rule provided that no defendant could be convicted of murder unless his victim had died by the defendant’s act within a year and a day of the act. See, e. g., Louisville, E. & St. L. R. Co. v. Clarke, 152 U.S. 230, 239 (1894); 4 W. Blaekstone, Commentaries on the Laws of England 197-198 (1769). The Supreme Court of Tennessee abolished the rule as it had existed at common law in Tennessee and applied its decision to petitioner to uphold his conviction. The question before us is whether, in doing so, the court denied petitioner due process of law in violation of the Fourteenth Amendment.

I

Petitioner Wilbert K. Rogers was convicted in Tennessee state court of second degree murder. According to the undisputed facts, petitioner stabbed his victim, James Bow-dery, with a butcher knife on May 6,1994. One of the stab wounds penetrated Bowdery’s heart. During surgery to repair the wound to his heart, Bowdery went into cardiac arrest, but was resuscitated and survived the procedure. As a result, however, he had developed a condition known as "cerebral hypoxia,” which results from a loss of oxygen to the brain. Bowdery’s higher brain functions had ceased, and he slipped into and remained in a coma until August 7, 1995, when he died from a kidney infection (a common complication experienced by comatose patients). Approximately 15 months had passed between the stabbing and Bowdery’s death which, according to the undisputed testimony of the county medical examiner, was caused by cerebral hypoxia "‘secondary to a stab wound to the heart.’” 992 S. W. 2d 393, 395 (Tenn. 1999).

Based on this evidence, the jury found petitioner guilty under Tennessee’s criminal homicide statute. The statute, which makes no mention of the year and a day rule, defines criminal homicide simply as “the unlawful killing of another person which may be first degree murder, second degree murder, voluntary manslaughter, criminally negligent homicide or vehicular homicide.” Tenn. Code Ann. § 39-13-201 (1997). Petitioner appealed his conviction to the Tennessee Court of Criminal Appeals, arguing that, despite its absence from the statute, the year and a day rule persisted as part of the common law of Tennessee and, as such, precluded his conviction. The Court of Criminal Appeals rejected that argument and affirmed the conviction. The court held that Tennessee’s Criminal Sentencing Reform Act of 1989 (1989 Act), which abolished all eommon law defenses in criminal actions in Tennessee, had abolished the rule. See Tenn. Code Ann. § 39-ll-203(e)(2) (1997). The court also rejected petitioner’s further contention that the legislative abolition of the rule constituted an ex post facto violation, noting that the 1989 Act had taken effect five years before petitioner committed his crime. No. 02C01-9611-CR-00418 (Tenn. Crim.App., Oct. 17, 1997), App. 7.

The Supreme Court of Tennessee affirmed on different grounds. The court observed that it had recognized the viability of the year and a day rule in Tennessee in Percer v. State, 118 Tenn. 765, 103 S. W. 780 (1907), and that, “[d]espite the paucity of case law” on the rule in Tennessee, “both parties ... agree that the ... rule was a part of the common law of this State.” 992 S. W. 2d, at 396. Turning to the rule’s present status, the court noted that the rule has been legislatively or judicially abolished by the “vast majority” of jurisdictions recently to have considered the issue. Id., at 397. The court concluded that, contrary to the conclusion of the Court of Criminal Appeals, the 1989 Act had not abolished the rule. After reviewing the justifications for the rule at common law, however, the court found that the original reasons for recognizing the rule no longer exist. Accordingly, the court abolished the rule as it had existed at common law in Tennessee. Id., at 399-401.

The court disagreed with petitioner’s contention that application of its decision abolishing the rule to his case would violate the Ex Post Facto Clauses of the State and Federal Constitutions. Those constitutional provisions, the court observed, refer only to legislative Acts. The court then noted that in Bouie v. City of Columbia, 378 U.S. 347 (1964), this Court held that due process prohibits retroactive application of any “‘judicial construction of a criminal statute [that] is unexpected and indefensible by reference to the law which has been expressed prior to the conduct in issue.’” 992 S. W. 2d, at 402 (quoting Bouie v. City of Columbia, supra, at 354) (alteration in original). The court concluded, however, that application of its decision to petitioner would not offend this principle. 992 S. W. 2d, at 402. We granted certiorari, 529 U.S. 1129 (2000), and we now affirm.

II

Although petitioner’s claim is one of due process, the Con stitution’s Ex Post Facto Clause figures prominently in his argument. The Clause provides simply that “[n]o State shall... pass any... ex post facto Law.” Art. I, § 10, el. 1. The most well-known and oft-repeated explanation of the scope of the Clause’s protection was given by Justice Chase, who long ago identified, in dictum, four types of laws to which the Clause extends:

“1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.” Calder v. Bull, 8 Dall. 386, 390 (1798) (seriatim opinion of Chase, J.) (emphasis deleted).

Accord, Carmell v. Texas, 529 U.S. 513, 521-525 (2000); Collins v. Youngblood, 497 U.S. 37, 41-42, 46 (1990). As the text of the Clause makes clear, it “is a limitation upon the powers of the Legislature, and does not of its own force apply to the Judicial Branch of government.” Marks v. United States, 430 U.S. 188, 191 (1977) (citation omitted).

We have observed, however, that limitations on ex post facto judicial decisionmaking are inherent in the notion of due process. In Bouie v. City of Columbia, we considered the South Carolina Supreme Court’s retroactive application of its construction of the State’s criminal trespass statute to the petitioners in that case. The statute prohibited “entry upon the lands of another... after notice from the owner or tenant prohibiting such entry .. .378 U.S., at 349, n. 1 (citation and internal quotation marks omitted). The South Carolina court construed the statute to extend to patrons of a drug store who had received no notice prohibiting their entry into the store, but had refused to leave the store when asked. Prior to the court’s decision, South Carolina cases construing the statute had uniformly held that conviction under the statute required proof of notice before entry. None of those cases, moreover, had given the “slightest indication that that requirement could be satisfied by proof of the different act of remaining on the land after being told to leave.” Id., at 357.

We held that the South Carolina court’s retroactive application of its construction to the store patrons violated due process. Reviewing decisions in which we had held criminal statutes “void for vagueness” under the Due Process Clause, we noted that this Court has often recognized the “basic principle that a criminal statute must give fair warning of the conduct that it makes a crime.” Id., at 350; see id., at 350-352 (discussing, inter alia, United States v. Harriss, 347 U.S. 612 (1954), Lanzetta v. New Jersey, 306 U.S. 451 (1939), and Connally v. General Constr. Co., 269 U.S. 385 (1926)). Deprivation of the right to fair warning, we continued, can result both from vague statutory language and from an unforeseeable and retroactive judicial expansion of statutory language that appears narrow and precise on its face. Bouie v. City of Columbia, 378 U.S., at 352. For that reason, we concluded that “[i]f a judicial construction of a criminal statute is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,’ [the construction] must not be given retroactive effect.” Id., at 354 (quoting J. Hall, General Principles of Criminal Law 61 (2d ed. 1960)). We found that the South Carolina court’s construction of the statute violated this principle because it was so clearly at odds with the statute’s plain language and had no support in prior South Carolina decisions. 378 U. S., at 356.

Relying largely upon Bouie, petitioner argues that the Tennessee court erred in rejecting his claim that the retroactive application of its decision to his case violates due process. Petitioner contends that the Ex Post Facto Clause would prohibit the retroactive application of a decision abolishing the year and a day rule if accomplished by the Tennessee Legislature. He claims that the purposes behind the Clause are so fundamental that due process should prevent the Supreme Court of Tennessee from accomplishing the same result by judicial decree. Brief for Petitioner 8-18. In support of this claim, petitioner takes Bouie to stand for the proposition that “[i]n evaluating whether the retroactive application of a judicial decree violates Due Process, a critical question is whether the Constitution would prohibit the same result attained by the exercise of the state’s legislative power.” Brief for Petitioner 12.

To the extent petitioner argues that the Due Process Clause incorporates the specific prohibitions of the Ex Post Facto Clause as identified in Calder, petitioner misreads Bouie. To be sure, our opinion in Bouie does contain some expansive language that is suggestive of the broad interpretation for which petitioner argues. Most prominent is our statement that “[i]f a state legislature is barred by the Ex Post Facto Clause from passing... a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction.” 378 U.S., at 358-354; see also id., at 353 (“[A]n unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law”); id., at 362 (“The Due Process Clause compels the same result” as would the constitutional proscription against ex post facto laws “where the State has sought to achieve precisely the same- [impermissible] effect by judicial construction of the statute”). This language, however, was dicta. Our decision in Bouie was rooted firmly in well established notions of due process. See supra, at 457-458. Its rationale rested on core due process concepts of notice, foreseeability, and,,in particular, the right to fair warning as those concepts bear on the constitutionality of attaching criminal penalties to what previously had been innocent conduct. See, e.g., 878 U.S., at 351, 352, 354-355. And we couched its holding squarely in terms of that established due process right, and not in terms of the ex post facto-related dicta to which petitioner points. Id., at 355 (concluding that “the South Carolina Code did not give [the petitioners] fair warning, at the time of their conduct..., that the act for which they now stand convicted was rendered criminal by the statute”). Contrary to petitioner’s suggestion, nowhere in the opinion did we go so far as to incorporate jot-for-jot the specific categories of Calder into due process limitations on the retroactive application of judicial decisions.

Nor have any of our subsequent decisions addressing Bouie-type claims interpreted Bouie as extending so far. Those decisions instead have uniformly viewed Bouie as restricted to its traditional due process roots. In doing so, they have applied Bouie’s check on retroactive judicial deci-sionmaking not by reference to the ex post facto categories set out in Calder, but, rather, in accordance with the more basic and general principle of fair warning that Bouie so clearly articulated. See, e. g., United States v. Lanier, 520 U.S. 259, 266 (1997) (“[D]ue process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope”); Marks v. United States, 430 U.S., at 191-192 (Due process protects against judicial infringement of the “right to fair warning” that certain conduct will give rise to criminal penalties); Rose v. Locke, 423 U.S. 48, 53 (1975) (per curiam) (upholding defendant’s conviction under statute prohibiting “crimes against nature” because, unlike in Bouie, the defendant “[could] make no claim that [the statute] afforded no notice that his conduct might be within its scope”); Douglas v. Buder, 412 U.S. 480, 432 (1973) (per curiam) (trial court's construction of the term “arrest” as including a traffic citation, and application of that construction to defendant to revoke his probation, was unforeseeable and thus violated due process); Rabe v. Washington, 405 U.S. 313, 316 (1972) (per curiam) (reversing conviction under state obscenity law because it did “not giv[e] fair notice” that the location of the allegedly obscene exhibition was a vital element of the offense).

Petitioner observes that the Due Process and Ex Post Facto Clauses safeguard common interests — in particular, the interests in fundamental fairness (through notice and fair warning) and the prevention of the arbitrary and vindictive use of the laws. Brief for Petitioner 12-18. While this is undoubtedly correct, see, e. g., Lynce v. Mathis, 519 U.S. 433, 439-440, and n. 12 (1997), petitioner is mistaken to suggest that these considerations compel extending the strictures of the Ex Post Facto Clause to the context of common law judging. The Ex Post Facto Clause, by its own terms, does not apply to courts. Extending the Clause to courts through the rubric of due process thus would circumvent the clear constitutional text. It also would evince too little regard for the important institutional and contextual differences between legislating, on the one hand, and common law decision-making, on the other.

Petitioner contends that state courts acting in their common law capacity act much like legislatures in the exercise of their lawmaking function, and indeed may in some cases even be subject to the same kinds of political influences and pressures that justify ex post facto limitations upon legislatures. Brief for Petitioner 12-18; Reply Brief for Petitioner 15. A court’s “opportunity for discrimination,” however, “is more limited than [a] legislature’s, in that [it] can only act in construing existing law in actual litigation.” James v. United States, 366 U.S. 213, 247, n. 3 (1961) (Harlan, J., concurring in part and dissenting in part). Moreover, “[gliven the divergent pulls of flexibility and precedent in our case law system,” ibid., incorporation of the Colder categories into due process limitations on judicial decisionmaking would place an unworkable and unacceptable restraint on normal judicial processes and would be incompatible with the resolution of uncertainly that marks any evolving legal system.

That is particularly so where, as here, the allegedly impermissible judicial application of a rule of law involves not the interpretation of a statute but an act of common law judging. In the context of common law doctrines (such as the year and a day rule), there often arises a need to clarify or even to reevaluate prior opinions as new circumstances and fact patterns present themselves. Such judicial acts, whether they be characterized as “making” or “finding” the law, are a necessary part of the judicial business in States in which the criminal law retains some of its common law elements. Strict application of ex post facto principles in that context would unduly impair the incremental and reasoned development of precedent that is the foundation of the common law system. The common law, in short, presupposes a measure of evolution that is incompatible with stringent application of ex post faeto principles. It was on account of concerns such as these that Bouie restricted due process limitations on the retroactive application of judicial interpretations of criminal statutes to those that are “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.” Bouie v. City of Columbia, 378 U.S., at 354 (internal quotation marks omitted).

We believe this limitation adequately serves the common law context as well. It accords common law courts the substantial leeway they must enjoy as they engage in the daily task of formulating and passing upon criminal defenses and interpreting such doctrines as causation and intent, reevaluating and refining them as may be necessary to bring the common law into conformity with logic and common sense. It also adequately respects the due process concern with fundamental fairness and protects against vindictive or arbitrary judicial lawmaking by safeguarding defendants against unjustified and unpredictable breaks with prior law. Accordingly, we conclude that a judicial alteration of a common law doctrine of criminal law violates the principle of fair warning, and hence must not be given retroactive effect, only where it is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.” Ibid.

Justice Scaiia makes much of the fact that, at the time of the framing of the Constitution, it was widely accepted that courts could not “change” the law, see post, at 472-473, 477-478 (dissenting opinion), and that (according to Justice Scalia) there is no doubt that the Ex Post Facto Clause would have prohibited a legislative decision identical to the Tennessee court’s decision here, see post, at 469-471, 478. This latter argument seeks at bottom merely to reopen what has long been settled by the constitutional text and our own decisions: that the Ex Post Facto Clause does not apply to judicial decisionmaking. The former argument is beside the point. Common law courts at the time of the framing undoubtedly believed that they were finding rather than making law. But, however one characterizes their actions, the fact of the matter is that common law courts then, as now, were deciding cases, and in doing so were fashioning and refining the law as it then existed in light of reason and experience. Due process clearly did not prohibit this process of judicial evolution at the time of the framing, and it does not do so today.

Ill

Turning to the particular facts of the instant ease, the Tennessee court’s abolition of the year and a day rule was not unexpected and indefensible. The year and a day rule is widely viewed as an outdated relic of the common law. Petitioner does not even so much as hint that good reasons exist for retaining the rule, and so we need not delve too deeply into the rule and its history here. Suffice it to say that the rule is generally believed to date back to the 13th century, when it served as a statute of limitations governing the time in which an individual might initiate a private action for murder known as an “appeal of death”; that by the 18th century the rule had been extended to the law governing public prosecutions for murder; that the primary and most frequently cited justification for the rule is that 13th century medical science was incapable of establishing causation beyond a reasonable doubt when a great deal of time had elapsed between the injury to the victim and his death; and that, as practically every court recently to have considered the rule has noted, advances in medical and related science have so undermined the usefulness of the rule as to render it without question obsolete. See, e. g., People v. Carrillo, 164 Ill. 2d 144, 150, 646 N. E. 2d 582, 585 (1995); Commonwealth v. Lewis, 381 Mass. 411, 414-415, 409 N. E. 2d 771, 772-773 (1980); People v. Stevenson, 416 Mich. 383, 391-392, 331 N. W. 2d 143,146 (1982); State v. Hefler, 310 N. C. 135, 138-140,310 S. E. 2d 310, 313 (1984); see generally Comment, 59 U. Chi. L. Rev. 1337 (1992) (tracing the history of the rule).

For this reason, the year and a day rule has been legislatively or judicially abolished in the vast majority of jurisdictions recently to have addressed the issue. See 992 S. W. 2d, at 397, n. 4 (reviewing cases and statutes). Citing Bouie, petitioner contends that the judicial abolition of the rule in other jurisdictions is irrelevant to whether he had fair warning that the rule in Tennessee might similarly be abolished and, hence, to whether the Tennessee court’s decision was unexpected and indefensible as applied to him. Brief for Petitioner 28-30. In discussing the apparent meaning of the South Carolina statute in Bouie, we noted that “[i]t would be a rare situation in which the meaning of a statute of another State sufficed to afford a person ‘fair warning’ that his own State’s statute meant something quite different from what its words said.” 378 U. S., at 359-360. This case, however, involves not the precise meaning of the words of a particular statute, but rather the continuing viability of a common law rule. Common law courts frequently look to the decisions of other jurisdictions in determining whether to alter or modify a common law rule in light of changed circumstances, increased knowledge, and general logic and experience. Due process, of course, does not require a person to apprise himself of the common law of all 50 States in order to guarantee that his actions will not subject him to punishment in light of a developing trend in the law that has not yet made its way to his State. At the same time, however, the fact that a vast number of jurisdictions have abolished a rule that has so clearly outlived its purpose is surely relevant to whether the abolition of the rule in a particular case can be said to be unexpected and indefensible by reference to the law as it then existed.

Finally, and perhaps most importantly, at the time of petitioner’s crime the year and a day rule had only the most tenuous foothold as part of the criminal law of the State of Tennessee. The rule did not exist as part of Tennessee’s statutory criminal code. And while the Supreme Court of Tennessee concluded that the rule persisted at common law, it also pointedly observed that the rule had never once served as a ground of decision in any prosecution for murder in the State. Indeed, in all the reported Tennessee eases, the rule has been mentioned only three times, and each time in dicta.

The first mention of the rule in Tennessee, and the only mention of it by the Supreme Court of that State, was in 1907 in Percer v. State, 118 Tenn. 765, 103 S. W. 780. In Percer, the court reversed the defendant’s conviction for second degree murder because the defendant was not present in court when the verdict was announced and because the proof failed to show that the murder occurred prior to the finding of the indictment. In discussing the latter ground for its decision, the court quoted the rule that “ ‘it is ... for the State to show that the crime was committed before the indictment was found, and, where it fails to do so, a conviction will be reversed.'” Id., at 777, 103 S.W., at 783 (quoting 12 Cyclopedia of Law and Procedure 382 (1904)). The court then also quoted the rule that ‘“[i]n murder, the death must be proven to have taken place within a year and a day from the date of the injury received.'” 118 Tenn., at 777, 103 S. W., at 783 (quoting P. Wharton, Law of Homicide § 18 (3d ed. 1907)).

While petitioner relies on this case for the proposition that the year and a day rule was firmly entrenched in the common law of Tennessee, we agree with the Supreme Court of Tennessee that the case cannot establish nearly so much. After reciting the rules just mentioned, the court in Pereer went on to point out that the indictment was found on July 6,1906; that it charged that the murder was committed sometime in May 1906; and that the only evidence of when the victim died was testimony from a witness stating that he thought the death occurred sometime in July, but specifying neither a date nor a year. From this, the court concluded that it did “not affirmatively appear” from the evidence “whether the death occurred before or after the finding of the indictment.” 118 Tenn., at 777, 103 S. W., at 783. The court made no mention of the year and a day rule anywhere in its legal analysis or, for that matter, anywhere else in its opinion. Thus, whatever the import of the court’s earlier quoting of the rule, it is clear that the rule did not serve as the basis for the Pereer court’s decision.

The next two references to the rule both were by the Tennessee Court of Criminal Appeals in eases in which the date of the victim’s death was not even in issue. Sixty-seven years after Pereer, the court in Cole v. State, 512 S. W. 2d 598 (Tenn. Crim. App. 1974), noted the existence of the rule in rejecting the defendants’ contentions that insufficient evidence existed to support the jury’s conclusion that they had caused the victim’s death in a drag-racing crash. Id., at 601. Twenty-one years after that, in State v. Ruane, 912 S. W. 2d 766 (Tenn. Crim. App. 1995), a defendant referred to the rule in arguing that the operative cause of his victim's death was removal of life support rather than a gunshot wound at the defendant’s hand. The victim had died within 10 days of receiving the wound. The Court of Criminal Appeals rejected the defendant’s argument, concluding, as it had in this case, that the year and a day rule had been abolished by the 1989 Act. It went on to hold that the evidence of causation was sufficient to support the conviction. Id., at 773-777. Ruane, of course, was decided after petitioner committed his crime, and it concluded that the year and a day rule no longer existed in Tennessee for a reason that the high court of that State ultimately rejected. But we note the case nonetheless to complete our account of the few appearances of the common law rule in the decisions of the Tennessee courts.

These eases hardly suggest that the Tennessee court’s decision was “unexpected and indefensible” such that it offended the due process principle of fair warning articulated in Bouie and its progeny. This is so despite the fact that, as Justice Scalia correctly points out, the court viewed the year and a day rule as a “substantive principle” of the common law of Tennessee. See post, at 480. As such, however, it was a principle in name only, having never once been enforced in the State. The Supreme Court of Tennessee also emphasized this fact in its opinion, see 992 S. W. 2d, at 402, and rightly so, for it is surely relevant to whether the court’s abolition of the rule in petitioner’s ease violated due process limitations on retroactive judicial decisionmaking. And while we readily agree with Justice Scalia that fundamental due process prohibits the punishment of conduct that cannot fairly be said to have been criminal at the time the conduct occurred, see, e. g., post, at 470, 478, 480, nothing suggests that is what took place here.

There is, in short, nothing to indicate that the Tennessee court’s abolition of the rule in petitioner’s ease represented an exercise of the sort of unfair and arbitrary judicial action against which the Due Process Clause aims to protect. Par from a marked and unpredictable departure from prior precedent, the court’s decision was a routine exercise of common law decisionmaking in which the court brought the law into conformity with reason and common sense. It did so by laying to rest an archaic and outdated rule that had never been relied upon as a ground of decision in any reported Tennessee case.

The judgment of the Supreme Court of Tennessee is accordingly affirmed.

It is so ordered.

Justice Stevens,

dissenting.

While I have joined Justice Scaua’s entire dissent, I must add this brief caveat. The perception that common-law judges had no power to change the law was unquestionably an important aspect of our judicial heritage in the 17th century but, as he has explained, that perception has played a role of diminishing importance in later years. Whether the most significant changes in that perception occurred before the end of the 18th century or early in the 19th century is, in my judgment, a tangential question that need not be resolved in order to decide this case correctly. For me, far more important than the historical issue is the fact that the majority has undervalued the threat to liberty that is posed whenever the criminal law is changed retroactively.

Justice Scalia,

with whom Justice Stevens and Justice Thomas join, and with whom Justice Breyer joins as to Part II,

dissenting.

The Court today approves the conviction of a man for a murder that was not murder (but only manslaughter) when the offense was committed. It thus violates a principle— encapsulated in the maxim nulla poena sine lege — which “dates from the ancient Greeks” and has been described as one of the most “widely, held value-judgment[s] in the entire history of human thought.” J. Hall, General Principles of Criminal Law 59 (2d ed. 1960). Today’s opinion produces, moreover, a curious constitution that only a judge could love. One in which (by virtue of the Ex Post Facto Clause) the elected representatives of all the people cannot retroactively make murder what was not murder when the act was committed; but in which unelected judges can do precisely that. One in which the predictability of parliamentary lawmaking cannot validate the retroactive creation of crimes, but the predictability of judicial lawmaking can do so. I do not believe this is the system that the Framers envisioned — or, for that matter, that any reasonable person would imagine.

HH

¡>

To begin with, let us be clear that the law here was altered after the fact. Petitioner, whatever else he was guilty of, was innocent of murder under the law as it stood at the time of the stabbing, because the victim did not die until after a year and a day had passed. The requisite condition subsequent of the murder victim’s death within a year and a day is no different from the requisite condition subsequent of the rape victim’s raising a “hue and cry” which we held could not retroactively be eliminated in Carmell v. Texas, 529 U. S. 518 (2000). Here, as there, it operates to bar conviction. Indeed, if the present condition differs at all from the one involved in Carmell it is in the fact that it does not merely pertain to the “quantum of evidence” necessary to corroborate a charge, id., at 530, but is an actual element of the crime — a “substantive principle of law,” 992 S. W. 2d 893,399 (Tenn. 1999), the failure to establish which “entirely precludes a murder prosecution,” id., at 400. Though the Court spends some time questioning whether the year-and-a-day rule was ever truly established in Tennessee, see ante, at 464-466, the Supreme Court of Tennessee said it was, see 992 S. W. 2d, at 396,400, and this reasonable reading of state law by the State’s highest court is binding upon us.

Petitioner’s claim is that his conviction violated the Due Process Clause of the Fourteenth Amendment, insofar as that Clause contains the principle applied against the legislature by the Ex Post Facto Clause of Article I. We first discussed the relationship between these two Glauses in Bouie v. City of Columbia, 378 U.S. 347 (1964). There, we considered Justice Chase to have spoken for the Court in Colder v. Bull, 3 Dall. 386, 390 (1798), when he defined an ex post facto law as, inter alia, one that “aggravates a crime, or makes it greater than it was, when committed.” 378 U.S., at 353 (emphasis deleted). We concluded that, “[i]f a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction.” Id., at 353-354. The Court seeks to avoid the obvious import of this language by characterizing it as mere dicta. See ante, at 459. Only a concept of dictum that includes the very reasoning of the opinion could support this characterization. The ratio de-cidendi of Bouie was that the principle applied to the legislature though the Ex Post Facto Clause was contained in the Due Process Clause insofar as judicial action is concerned. I eannot understand why the Court derives such comfort from the fact that later opinions applying Bouie have referred to the Due Process Clause rather than the Ex Post Facto Clause, see ante, at 459-460; that is entirely in accord with the rationale of the case, which I follow and which the Court discards.

The Court attempts to cabin Bouie by reading it to prohibit only “‘unexpected and indefensible”’ judicial law revision, and to permit retroactive judicial changes so long as the defendant has had “fair warning” that the changes might occur. Ante, at 462. This reading seems plausible because Bouie does indeed use those quoted terms; but they have been wrenehed entirely out of context. The “fair warning” to which Bouie and subsequent cases referred was not “fair warning that the law might be changed,” but fair warning of what constituted the crime at the time of the offense. And Bouie did not express disapproval of “unexpected and indefensible changes in the law” (and thus implicitly approve “expected or defensible changes”). It expressed disapproval of “judicial construction of a criminal statute” that is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.” 878 U. S., at 354 (emphasis added; internal quotation marks omitted). It thus implicitly approved only a judicial construction that was an expected or defensible application of prior cases interpreting the statute. Extending this principle from statutory crimes to common-law crimes would result in the approval of retroactive holdings that accord with prior cases expounding the common law, and the disapproval of retroactive holdings that clearly depart from prior cases expounding the common law. According to Bouie, not just “unexpected and indefensible” retroactive changes in the common law of crimes are bad, but all retroactive changes.

Bouie rested squarely upon “[t]he fundamental principle that ‘the required criminal law must have existed when the conduct in issue occurred/” ibid. (Nulla poena sine lege.) Proceeding from that principle, Bouie said that “a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result [prohibited by the Ex Post Facto Clause] by judicial construction.” Id., at 353-354. There is no doubt that “fair warning” of the legislature’s intent to change the law does not insulate retroactive legislative criminalization. Such a statute violates the Ex Post Facto Clause, no matter that, at the time the offense was committed, the bill enacting the change was pending and assured of passage — or indeed, had already been passed but not yet signed by the President whose administration had proposed it. It follows from the analysis of Bouie that “fair warning” of impending change cannot insulate retroactive judicial criminalization either.

Nor is there any reason in the nature of things why it should. According to the Court, the exception is necessary because prohibiting retroactive judicial criminalization would “place an unworkable and unacceptable restraint on normal judicial processes,” would be “incompatible with the resolution of uncertainty that marks any evolving legal system,” and would “unduly impair the incremental and reasoned development of precedent that is the foundation of the common law system.” Ante, at 461. That assessment ignores the crucial difference between simply applying a law to a new set of circumstances and changing the law that has previously been applied to the very circumstances before the court. Many criminal eases present some factual nuance that arguably distinguishes them from cases that have come before; a court applying the penal statute to the new fact pattern does not purport to change the law. That, however, is not the action before us here, but rather, a square, head-on overruling of prior law — or, more accurately, something even more extreme than that: a judicial opinion acknowledging that under prior law, for reasons that used to be valid, the accused eould not be convicted, but decreeing that, because of changed circumstances, “we hereby abolish the common law rule,” 992 S. W. 2d, at 401, and upholding the conviction by applying the new rule to conduct that occurred before the change in law was announced. Even in civil cases, and even in modern times, such retroactive revision of a concededly valid legal rule is extremely rare. With regard to criminal cases, I have no hesitation in affirming that it was unheard of at the time the original Due Process Clause was adopted. As I discuss in detail in the following section, proceeding in that fashion would have been regarded as contrary to the judicial traditions embraced within the concept of due process of law.

B

The Court’s opinion considers the judgment at issue here “a routine exercise of common law decisionmaking,” whereby the Tennessee court “brought the law into conformity with reason and common sense,” by “laying to rest an archaic and outdated rule.” Ante, at 467. This is an accurate enough description of what modern “common law decisionmaking” consists of — but it is not an accurate description of the theoretical model of common-law decisionmaking accepted by those who adopted the Due Process Clause. At the time of the framing, common-law jurists believed (in the words of Sir Francis Bacon) that the judge’s “office is jus dicere, and not jus dare; to interpret law, and not to make law, or give law.” Bacon, Essays, Civil and Moral, in 3 Harvard Classics 130 (C. Eliot ed. 1909) (1625). Or as described by Blackstone, whose Commentaries were widely read and “accepted [by the framing generation] as the most satisfactory exposition of the common law of England,” see Schick v. United States, 195 U.S. 65, 69 (1904), “judicial decisions are the principal and most authoritative evidence, that can be given, of the existence of such a custom as shall form a part of the common law,” 1 W. Blackstone, Commentaries *69 (hereinafter Blackstone) (emphasis added).

Blackstone acknowledged that the courts’ exposition of what the law was could change. Stare decisis, he said, “admits of exception, where the former determination is most evidently contrary to reason . . . Ibid. But “in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation.” Id., at *70. To fit within this category of bad law, a law must be “manifestly absurd or unjust.” It would not suffice, he said, that “the particular reason [for the law] can at this distance of time [not be] precisely assigned.” “[F]or though [its] reason be not obvious at first view, yet we owe such a deference to former times as not to suppose they acted wholly without consideration.” Ibid. By way of example, Blackstone pointed to the seemingly unreasonable rule that one cannot inherit the estate of one’s half brother. Though he accepted that the feudal reason behind the law was no longer obvious, he wrote "yet it is not in [a common law judge’s] power to alter it.” Id., at *70-*71 (emphasis added). Moreover, "the unreasonableness of a custom in modern circumstances will not affect its validity if the Court is satisfied of a reasonable origin.” Allen 140-141. “A cus-tome once reasonable and tolerable, if after it become grievous, and not answerable to the reason, whereupon it was grounded, yet is to be ... taken away by act of parliament.” 2 E. Coke, Institutes of the Laws of England *664 (hereinafter Institutes); see also id., at *97 ("No law, or custome of England can be taken away, abrogated, or adnulled, but by authority of parliament”); Of Oaths before an Ecclesiastical Judge Ex Officio, 12 Co. Rep. *26, *29 (1655) (“[T]he law and custom of England is the inheritance of the subject, which he cannot be deprived of without his assent in Parliament”).

There are, of course, stray statements and doctrines found in the historical record that — read out of context — could be thought to support the modern-day proposition that the common law was always meant to evolve. Take, for instance, Lord Coke’s statement in the Institutes that “the reason of the law ceasing, the law itself ceases.” This maxim is often cited by modern devotees of a turbulently changing common law — often in its Latin form (cessante ratione legis, cessat ipse lex) to create the impression of great venerability. In its original context, however, it had nothing to do with the power of common-law courts to change the law. At the point at which it appears in the Institutes, Coke was discussing the exception granted abbots and mayors from the obligation of military service to the King which attached to land ownership. Such service would be impracticable for a man of the cloth or a mayor. But, said Coke, “if they convey over the lands to any naturall man and his heires,” the immunity “by the conveyance over eeaseth.” 1 Institutes *70. In other words, the service which attached to the land would apply to any subsequent owner not cloaked in a similar immunity. It was in describing this change that Coke employed the Latin maxim cessante ratione legis, cessat ipse lex. It had to do, not with a changing of the common-law rule, but with a change of circumstances that rendered the common-law rule no longer applicable to the ease.

The same is true of the similar quotation from Coke: “[RJatio legis est anima legis, et mutata legis ratione, mu-tatur et lex’ — reason is the soul of the law; the reason of the law being changed, the law is also changed. This is taken from Coke’s report of Milborn’s Case, 7 Co. Rep. 6b, 7a (1587), a suit involving a town’s responsibility for a murder committed within its precincts. The common-law rule had been that a town could be amerced for failure to apprehend a murderer who committed his crime on its streets during the day, but not a murderer who struck after nightfall, when its citizens were presumably asleep. Parliament, however, enacted a statute requiring towns to close their gates at night, and the court reasoned that thereafter a town that left its gates open could be amerced for the nocturnal homicide as well, since the .town’s violation of the Act was negligence that facilitated the escape. This perhaps partakes more of a new right of action implied from legislation than of any common-law rule. But to the extent it involved the common law, it assuredly did not change the prior rule: A town not in violation of the statute would continue to be immune. Milborn’s Case simply held that the rule would not be extended to towns that wrongfully failed to close their gates— which involves no overruling, but nothing more than normal, case-by-ease common-law adjudication.

It is true that framing-era judges in this country considered themselves authorized to reject English common-law precedent they found “barbarous” and “ignorant,” see 1 Z. Swift, A System of the Laws of the State of Connecticut 46 (1795) (hereinafter Swift); N. Chipman, A Dissertation on the Act Adopting the Common and Statute Laws of England, in Reports and Dissertations 117, 128 (1793) (hereinafter Chipman). That, however, was not an assertion of judges’ power to change the common law. For, as Blackstone wrote, the common law was a law for England, and did not automatically transfer to the American Colonies; rather, it had to be adopted. See 1 Blackstone *107-*108 (observing that “the common law of England, as such, has no allowance or authority” in “[o]ur American plantations”); see also 1 Swift 46 (“The English common law is not in itself binding in this state”); id., at 44-45 (“The English common law has never been considered to be more obligatory here, than the Roman law has been in England”). In short, the colonial courts felt themselves perfectly free to pick and choose which parts of the English common law they would adopt. As stated by Chipman 128: “If no reason can be assigned, in support of rules, or precedents, not already adopted in practice, to adopt such rules, is certainly contrary to the principles of our government.” (Emphasis added.) This discretion not to adopt would not presuppose, or even support, the power of colonial eourts subsequently to change the accumulated colonial common law. The absence of belief in that power is demonstrated by the following passage from 1 Horwitz 5: “Massachusetts Chief Justice Hutchison could declare in 1767 that ‘laws should be established, else Judges and Juries must go according to their Reason, that is, their Will.’ It was also imperative ‘that the Judge should never be the Legislator: Because, then the Will of the Judge would be the Law: and this tends to a State of Slavery.’ ” Or, as Judge Swift put it, courts “ought never to be allowed to depart from the well known boundaries of express law, into the wide fields of discretion.” 2 Swift 366.

Nor is the framing era’s acceptance of common-law crimes support for the proposition that the Framers accepted an evolving common law. The acknowledgment of a new crime, not thitherto rejected by judicial decision, was not a changing of the common law, but an application of it. At the time of the framing, common-law crimes were considered unobjectionable, for “‘a law founded on the law of nature may be retrospective, because it always existed,’ ” 1 Horwitz 7, quoting Blackwell v. Wilkinson, Jefferson’s Rep. 73, 77 (Va. 1768) (argument of then-Attorney General John Randolph). Of course, the notion of a common-law crime is utterly anathema today, which leads one to wonder why that is so. The obvious answer is that we now agree with the perceptive chief justice of Connecticut, who wrote in 1796 that common-law crimes “partak[e] of the odious nature of an ex post facto law.” 2 Swift 365-366. But, as Horwitz makes clear, a widespread sharing of Swift’s “preoccupation with the unfairness of administering a system of judge-made criminal law was a distinctly post-revolutionary phenomenon, reflecting a profound change in sensibility. For the inarticulate premise that lay behind Swift’s warnings against the danger of judicial discretion was a growing perception that judges no longer merely discovered law; they also made it.” 1 Horwitz 14-15 (emphases added). In other words, the connection between ex post facto lawmaking and common-law judging would not have become widely apparent until common-law judging became lawmaking, not (as it had been) law declaring. This did not happen, see id., at 1-4, until the 19th century, after the framing.

What occurred in the present case, then, is precisely what Blaekstone said — and the Framers believed — would not suffice. The Tennessee Supreme Court made no pretense that the year-and-a-day rule was “bad” law from the outset; rather, it asserted, the need for the rule, as a means of assuring causality of the death, had disappeared with time. Blaekstone — and the Framers who were formed by Blackstone — would clearly have regarded that change in law as a matter for the legislature, beyond the power of the court. It may well be that some common-law decisions of the era in fact changed the law while purporting not to. But that is beside the point. What is important here is that it was an undoubted point of principle, at the time the Due Process Clause was adopted, that courts could not “change” the law. That explains why the Constitution restricted only the legislature from enacting ex post facto laws. Under accepted norms of judicial process, an ex post facto law (in the sense of a judicial holding, not that a prior decision was erroneous, but that the prior valid law is hereby retroactively changed) was simply not an option for the courts. This attitude subsisted, I may note, well beyond the founding era, and beyond the time when due process guarantees were extended against the States by the Fourteenth Amendment. In an 1886 admiralty case, for example, this Court said the following: “The rights of persons in this particular under the maritime law of this country are not different from those under the common law, and as it is the duty of courts to declare the law, not to make it, we cannot change this rule.” The Harrisburg, 119 U. S. 199, 213-214 (1886), overruled by Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970).

It is not a matter, therefore, of “[ejxtending the [Ex Post Facto] Clause to courts through the rubric of due process,” and thereby “circumvent[ing] the clear constitutional text,” ante, at 460. It is simply a matter of determining what due judicial process consists of — and it does not consist of retroactive creation of crimes. The Ex Post Facto Clause is relevant only because it demonstrates beyond doubt that, however much the acknowledged and accepted role of common-law courts could evolve (as it has) in other respects, retroactive revision of the criminal law was regarded as so fundamentally unfair that an alteration of the judicial role which permits that will be a denial of due process. Madison wrote that “ex-post-facto laws . . . are contrary to the first principles of the social compact, and to every principle of social legislation.” The Federalist No. 44, p. 282 (C. Rossiter ed. 1961). I find it impossible to believe, as the Court does, that this strong sentiment attached only to retroactive laws passed by the legislature, and would not apply equally (or indeed with even greater force) to a court’s production of the same result through disregard of the traditional limits upon judicial power. Insofar as the "first principles of the social compact” are concerned, what possible difference does it make that “[a] court’s opportunity for discrimination” by retroactively changing a law “is more limited than a legislature’s, in that it can only act in construing existing law in actual litigation”? Ante, at 460-461 (internal quotation marks and citation omitted). The injustice to the individuals affected is no less.

II

Even if I agreed with the Court that the Due Process Clause is violated only when there is lack of "fair warning” of the impending retroactive change, I would not find such fair warning here. It is not clear to me, in fact, what the Court believes the fair warning consisted of. Was it the mere fact that “[t]he year and a day rule is widely viewed as an outdated relic of the common law”? Ante, at 462. So are many of the elements of common-law crimes, such as “breaking the close” as an element of burglary, or “asportation” as an element of larceny. See W. LaFave & A. Scott, Criminal Law 631-633, 708-710 (1972). Are all of these “outdated relics” subject to retroactive judicial rescission? Or perhaps the fair warning consisted of the fact that “the year and a day rule has been legislatively or judicially abolished in the vast majority of jurisdictions recently to have addressed the issue.” Ante, at 463. But why not count in petitioner’s favor (as giving him no reason to expect a change in law) those even more numerous jurisdictions that have chosen not “recently to have addressed the issue”? And why not also count in petitioner’s favor (rather than against him) those jurisdictions that have abolished the rule legislatively, and those jurisdictions that have abolished it through prospective rather than retroactive judicial rulings (together, a large majority of the abolitions, see 992 S. W. 2d, at 397, n. 4, 402 (listing statutes and eases))? That is to say, even if it was predictable that the rule would be changed, it was not predictable that it would be changed retroactively, rather than in the prospective manner to which legislatures are restricted by the Ex Post Facto Clause, or in the prospective manner that most other courts have employed.

In any event, as the Court itself acknowledges, “[d]ue process . .. does not require a person to apprise himself of the common law of all 50 States in order to guarantee that his actions will not subject him to punishment in light of a developing trend in the law that has not yet made its way to his State.” Ante, at 464. The Court tries to counter this self-evident point with the statement that “[a]t the same time, however, the fact that a vast number of jurisdictions have abolished a rule that has so clearly outlived its purpose is surely relevant to whether the abolition of the rule in a particular case can be said to be unexpected and indefensible by reference to the law as it then existed,” ibid. This retort rests upon the fallacy that I diseussed earlier: that “expected or defensible” "abolition” of prior law was approved by Bouie. It was not — and according such conclusive effect to the “defensibility” (by which I presume the Court means the "reasonableness”) of the change in law will validate the retroactive creation of many new crimes.

Finally, the Court seeks to establish fair warning by discussing at great length, ante, at 464-466, how unclear it was that the year-and-a-day rule was ever the law in Tennessee. As I have already observed, the Supreme Court of Tennessee is the authoritative expositor of Tennessee law, and has said categorically that the year-and-a-day rule was the law. Does the Court mean to establish the principle that fair warning of impending change exists — or perhaps fair warning can be dispensed with — when the prior law is not crystal clear? Yet another boon for retroactively created crimes.

I reiterate that the only “fair warning” discussed in our precedents, and the only “fair warning” relevant to the issue before us here, is fair warning of what the law is. That warning, unlike the new one that today’s opinion invents, goes well beyond merely “safeguarding defendants against unjustified and unpredictable breaks with prior law,” ante, at 462 (emphasis added). It safeguards them against changes in the law after the fact. But even accepting the Court’s novel substitute, the opinion’s conclusion that this watered-down standard has been met seems to me to proceed on the principle that a large number of almost-valid arguments makes a solid ease. As far as I can tell, petitioner had nothing that could fairly be called a “warning” that the Supreme Court of Tennessee would retroactively eliminate one of the elements of the crime of murder.

* * *

To decide this case, we need only conclude that due process prevents a court from (1) acknowledging the validity, when they were rendered, of prior decisions establishing a particular element of a crime; (2) changing the prior law so as to eliminate that element; and (3) applying that change to conduct that occurred under the prior regime. A court would remain free to apply common-law criminal rules to new fact patterns, see ante, at 461-462, so long as that application is consistent with a fair reading of prior cases. It would remain free to conclude that a prior decision or series of decisions establishing a particular element of a crime was in error, and to apply that conclusion retroactively (so long as the “fair notice” requirement of Bouie is satisfied). It would even remain free, insofar as the ex post facto element of the Due Process Clause is concerned, to “reevaluat[e] and re-fin[e]” the elements of common-law crimes to its heart’s content, so long as it does so prospectively. (The majority of state courts that have abolished the year-and-a-day rule have done so in this fashion.) And, of course (as Blackstone and the Framers envisioned), legislatures would be free to eliminate outmoded elements of common-law crimes for the future by law. But what a court cannot do, consistent with due process, is what the Tennessee Supreme Court did here: avowedly change (to the defendant’s disadvantage) the criminal law governing past acts.

For these reasons, I would reverse the judgment of the Supreme Court of Tennessee.

Justice Breyer,

dissenting.

I agree with the Court’s basic approach. Justice Cardozo pointed out that retroactivity should be determined “not by metaphysical conceptions of the nature of judge-made law,... but by considerations of convenience, of utility, and of the deepest sentiments of justice.” The Nature of the Judicial Process 148-149 (1921). Similarly, the Due Process Clause asks us to consider the basic fairness or unfairness of retroactive application of the Tennessee court’s change in the law. That Clause provides protection against after-the-fact changes in criminal law that deprive defendants of fair warning of the nature and consequences of their actions. It does not enshrine Blackstone’s “ancient dogma that the law declared by ... courts had a Platonic or ideal existence before the act of declaration,” Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 858, 365 (1932) (Cardozo, J.). Cf. ante, at 473-474 (Scalia, J., dissenting).

I also agree with the Court that, in applying the Due Process Clause, we must ask whether the judicial ruling in question was “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.” Bouie v. City of Columbia, 378 U. S. 347,354 (1964) (quoting J. Hall, General Principles of Criminal Law 61 (2d ed. 1960) (internal quotation marks omitted)).

I cannot agree, however, with the majority’s application of that due process principle to this ease. As Justice Scalia well explains, Rogers did not have fair warning that the Tennessee courts would abolish the year and a day rule or that they would retroactively apply the new law to the circumstances of his case, thereby upgrading the crime those circumstances revealed from attempted murder to murder. I therefore join Part II of Justice Scalia’s dissenting opinion.

       Inquiring into a law’s original reasonableness was perhaps tantamount to questioning whether it existed at all. “In holding the origin to have been unreasonable, the Court nearly always doubts or denies the actual origin and continuance of the custom in fact.” C. Allen, Law in the Making 140 (3d ed. 1939) (hereinafter Allen).

       The near-dispositive strength Blackstone accorded stare decisis was not some mere personal predilection. Chancellor Kent was of the same view: “If a decision has been made upon solemn argument and mature deliberation, the presumption is in favor of its correctness; and the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it.” 1 J. Kent, Commentaries *475-*476 (emphasis added). See also Hamilton’s statement in The Federalist: “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.” The Federalist No. 78, p. 471 (C. Rossiter ed. 1961).

       In fact, however, “most of the basie departures [from English common law] were accomplished not by judicial decision but by local statute, so that by the time of the American Revolution one hears less and less about the unsuitability of common law principles to the American environment.” 1 M. Horwitz, Transformation of American Law 1780-1860, p. 5 (1977) (hereinafter Horwitz).


author: Justice Thomas Justice Stevens,

text:
    UNITED STATES v. OAKLAND CANNABIS BUYERS’ COOPERATIVE et al.
    No. 00-151.
    Argued March 28, 2001
    Decided May 14, 2001

      Acting Solicitor General Underwood argued the cause for the United States. With her on the briefs were former Solicitor General Waxman, Assistant Attorney General Ogden, Deputy Solicitor General Kneedler, and Lisa Schiavo Blatt.

      Gerald F. Uelmen argued the cause for respondents. With him on the brief were James J. Brosnahan, Annette P. Carnegie, Christina Kirk-Kazhe, Robert A. Raich, and Randy E. Barnett.

         Janet M. LaRue filed a brief for the Family Research Council as ami-cus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed for the State of California by Bill Lockyer, Attorney General, and David De Alba, Special Assistant Attorney General; for the American Civil Liberties Union et al. by Steven R. Shapiro, Daniel P. Tokaji, and Jordan C. Budd; for the American Public Health Association et al. by Daniel N. Abrahamson; for the Marijuana Policy Project et al. by Cheryl Flax-Davidson; for the National Organization for the Reform of Marijuana Laws et al. by R. Keith Stroup, John Wesley Hall, Jr., and Lisa B. Kemler; for Edward Neil Brundridge et al. by Thomas V. Loran III; and for Sheriff Mark N. Dion et al. by Julie M. Carpenter.

      Briefs of amici curiae were filed for the California Medical Association et al. by Catherine I. Hanson and Alice P. Mead; and for the Institute on Global Drug Policy of the Drug Free America Foundation et al. by David G. Evans and John E. Lamp.

   Justice Thomas

delivered the opinion of the Court.

The Controlled Substances Act, 84 Stat. 1242, 21 U. S. C. §801 et seq., prohibits the manufacture and distribution of various drugs, including marijuana. In this ease, we must decide whether there is a medical necessity exception to these prohibitions. We hold that there is not.

I

In November 1996, California voters enacted an initiative measure entitled the Compassionate Use Act of 1996. Attempting “[t]o ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes,” Cal. Health & Safety Code Ann. § 11362.5 (West Supp. 2001), the statute creates an exception to California laws prohibiting the possession and cultivation of marijuana. These prohibitions no longer apply to a patient or his primary caregiver who possesses or cultivates marijuana for the patient’s medical purposes upon the recommendation or approval of a physician. Ibid. In the wake of this voter initiative, several groups organized “medical cannabis dispensaries” to meet the needs of qualified patients. United States v. Cannabis Cultivators Club, 5 F. Supp. 2d 1086, 1092 (ND Cal. 1998). Respondent Oakland Cannabis Buyers’ Cooperative is one of these groups.

The Cooperative is a not-for-profit organization that operates in downtown Oakland. A physician serves as medical director, and registered nurses staff the Cooperative during business hours. To become a member, a patient must provide a written statement from a treating physician assenting to marijuana therapy and must submit to a screening interview. If accepted as a member, the patient receives an identification card entitling him to obtain marijuana from the Cooperative.

In January 1998, the United States sued the Cooperative and its executive director, respondent Jeffrey Jones (together, the Cooperative), in the United States District Court for the Northern District of California. Seeking to enjoin the Cooperative from distributing and manufacturing marijuana, the United States argued that, whether or not the Cooperative’s activities are legal under California law, they violate federal law. Specifically, the Government argued that the Cooperative violated the Controlled Substances Act’s prohibitions on distributing, manufacturing, and possessing with the intent to distribute or manufacture a controlled substance. 21 U. S. C. § 841(a). Concluding that the Government had established a probability of success on the merits, the District Court granted a preliminary injunction. App. to Pet. for Cert. 39a-40a; 5 F. Supp. 2d, at 1105.

The Cooperative did not appeal the injunction but instead openly violated it by distributing marijuana to numerous persons, App. to Pet. for Cert. 21a-23a. To terminate these violations, the Government initiated contempt proceedings. In defense, the Cooperative contended that any distributions were medically necessary. Marijuana is the only drug, according to the Cooperative, that can alleviate the severe pain and other debilitating symptoms of the Cooperative’s patients. Id., at 29a. The District Court rejected this defense, however, after determining there was insufficient evidence that each recipient of marijuana was in actual danger of imminent harm without the drug. Id., at 29a-32a. The District Court found the Cooperative in contempt and, at the Government’s request, modified the preliminary injunction to empower the United States Marshal to seize the Cooperative’s premises. Id., at 37a. Although recognizing that “human suffering” could result, the District Court reasoned that a court’s “equitable powers [do] not permit it to ignore federal law.” Ibid. Three days later, the District Court summarily rejected a motion by the Cooperative to modify the injunction to permit distributions that are medically necessary.

The Cooperative appealed both the contempt order and the denial of the Cooperative’s motion to modify. Before the Court of Appeals for the Ninth Circuit decided the case, however, the Cooperative voluntarily purged its contempt by promising the District Court that it would comply with the initial preliminary injunction. Consequently, the Court of Appeals determined that the appeal of the contempt order was moot. 190 F. 3d 1109,1112-1113 (1999).

The denial of the Cooperative’s motion to modify the injunction, however, presented a live controversy that was ap-pealable under 28 U. S. C. § 1292(a)(1). Reaching the merits of this issue, the Court of Appeals reversed and remanded. According to the Court of Appeals, the medical necessity defense was a “legally cognizable defense” that likely would apply in the circumstances. 190 F. 3d, at 1114. Moreover, the Court of Appeals reasoned, the District Court erroneously “believed that it had no discretion to issue an injunction that was more limited in scope than the Controlled Substances Act itself.” Id., at 1114-1115. Because, according to the Court of Appeals, district courts retain “broad equitable discretion” to fashion injunctive relief, the District Court could have, and should have, weighed the “public interest” and considered factors such as the serious harm in depriving patients of marijuana. Ibid. Remanding the case, the Court of Appeals instructed the District Court to consider “the criteria for a medical necessity exemption, and, should it modify the injunction, to set forth those criteria in the modification order.” Id., at 1115. Following these instructions, the District Court granted the Cooperative’s motion to modify the injunction to incorporate a medical necessity defense.

The United States petitioned for certiorari to review the Court of Appeals’ decision that medical necessity is a legally cognizable defense to violations of the Controlled Substances Act. Because the decision raises significant questions as to the ability of the United States to enforce the Nation’s drug laws, we granted certiorari. 531 U. S. 1010 (2000).

II

The Controlled Substances Act provides that, “[ejxcept as authorized by this subehapter, it shall be unlawful for any person knowingly or intentionally ... to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.” 21 U. S. C. 1841(a)(1). The subehapter, in turn, establishes exceptions. For marijuana (and other drugs that have been classified as “schedule I” controlled substances), there is but one express exception, and it is available only for Government-approved research projects, § 823(f). Not conducting such a project, the Cooperative eannot, and indeed does not, claim this statutory exemption.

The Cooperative contends, however, that notwithstanding the apparently absolute language of § 841(a), the statute is subject to additional, implied exceptions, one of which is medical necessity. According to the Cooperative, because necessity was a defense at common law, medical necessity should be read into the Controlled Substances Act. We disagree.

As an initial matter, we note that it is an open question whether federal courts ever have authority to recognize a necessity defense not provided by statute. A necessity defense “traditionally covered the situation where physical forces beyond the actor’s control rendered illegal conduct the lesser of two evils.” United States v. Bailey, 444 U. S. 394, 410 (1980). Even at common law, the defense of necessity was somewhat controversial. See, e. g., Queen v. Dudley & Stephens, 14 Q. B. 273 (1884). And under our constitutional system, in which federal crimes are defined by statute rather, than by common law, see United States v. Hudson, 7 Craneh 32, 34 (1812), it is especially so. As we have stated: “Whether, as a policy matter, an exemption should be created is a question for legislative judgment, not judicial inference.” United States v. Rutherford, 442 U.S. 544, 559 (1979). Nonetheless, we recognize that this Court has discussed the possibility of a necessity defense without altogether rejecting it. See, e. g., Bailey, supra, at 415.

We need not decide, however, whether necessity can ever be a defense when the federal statute does not expressly provide for it. In this ease, to resolve the question presented, we need only recognize that a medical necessity exception for marijuana is at odds with the terms of the Controlled Substances Act. The statute, to be sure, does not explicitly abrogate the defense. But its provisions leave no doubt that the defense is unavailable.

Under any conception of legal necessity, one principle is clear: The defense cannot succeed when the legislature itself has made a “determination of values.” 1 W. LaFave & A. Scott, Substantive Criminal Law § 5.4, p. 629 (1986). In the ease of the Controlled Substances Act, the statute reflects a determination that marijuana has no medical benefits worthy of an exception (outside the confines of a Government-approved research project). Whereas some other drugs can be dispensed and prescribed for medical use, see 21 U. S. C. § 829, the same is not true for marijuana. Indeed, for purposes of the Controlled Substances Act, marijuana has “no currently accepted medical use” at all. §812.

The structure of the Act supports this conclusion. The statute divides drugs into five schedules, depending in part on whether the particular drug has a currently accepted medical use. The Act then imposes restrictions on the manufacture and distribution of the substance according to the schedule in which it has been placed. Schedule I is the most restrictive schedule. The Attorney General can include a drug in schedule I only if the drug “has no currently accepted medical use in treatment in the United States,” “has a high potential for abuse,” and has “a lack of accepted safety for use ... under medical supervision.” §§ 812(b)(l)(A)-(C). Under the statute, the Attorney General could not put marijuana into schedule I if marijuana had any accepted medical use.

The Cooperative points out, however, that the Attorney General did not place marijuana into schedule I. Congress put it there, and Congress was not required to find that a drug lacks an accepted medical use before including the drug in schedule I. We are not persuaded that this distinction has any significance to our inquiry. Under the Cooperative’s logic, drugs that Congress places in schedule I could be distributed when medically necessary whereas drugs that the Attorney General places in schedule I could not. Nothing in the statute, however, suggests that there are two tiers of schedule I narcotics, with drugs in one tier more readily available than drugs in the other. On the contrary, the statute consistently treats all schedule I drugs alike. See, e. g., § 823(a) (providing criteria for Attorney General to consider when determining whether to register an applicant to manufacture schedule I controlled substances), § 828(b) (providing criteria for Attorney General to consider when determining whether to register an applicant to distribute schedule I controlled substances), § 823(f) (providing procedures for becoming a government-approved research project), §826 (establishing production quotas for schedule I drugs). Moreover, the Cooperative offers no convincing explanation for why drugs that Congress placed on schedule I should be subject to fewer controls than the drugs that the Attorney General placed on the schedule. Indeed, the Cooperative argues that, in placing marijuana and other drugs on schedule I, Congress “wishe[d] to assert the most restrictive level of controls created by the [Controlled Substances Act].” Brief for Respondents 24. If marijuana should be subject to the most restrictive level of controls, it should not be treated any less restrictively than other schedule I drugs.

The Cooperative further argues that use of schedule I drugs generally — whether placed in schedule I by Congress or the Attorney General — can be medically necessary, notwithstanding that they have “no currently accepted medical use.” According to the Cooperative, a drug may not yet have achieved general acceptance as a medical treatment but may nonetheless have medical benefits to a particular patient or class of patients. We decline to parse the statute in this manner. It is clear from the text of the Act that Congress has made a determination that marijuana has no medical benefits worthy of an exception. The statute expressly contemplates that many drugs “have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people,” §801(1), but it includes no exception at all for any medical use of marijuana. Unwilling to view this omission as an accident, and unable in any event to override a legislative determination manifest in a statute, we reject the Cooperative’s argument.

Finally, the Cooperative contends that we should eonstrue the Controlled Substances Act to include a medical necessity defense in order to avoid what it considers to be difficult constitutional questions. In particular, the Cooperative asserts that, shorn of a medical necessity defense, the statute exceeds Congress’ Commerce Clause powers, violates the substantive due process rights of patients, and offends the fundamental liberties of the people under the Fifth, Ninth, and Tenth Amendments. As the Cooperative acknowledges, however, the canon of constitutional avoidance has no application in the absence of statutory ambiguity. Because we have no doubt that the Controlled Substances Act cannot bear a medical necessity defense to distributions of marijuana, we do not find guidance in this avoidance principle. Nor do we consider the underlying constitutional issues today. Because the Court of Appeals did not address these claims, we decline to do so in the first instance.

For these reasons, we hold that medical necessity is not a defense to manufacturing and distributing marijuana. The Court of Appeals erred when it held that medical necessity is a “legally cognizable defense.” 190 F. 3d, at 1114. It further erred when it instructed the District Court on remand to consider “the criteria for a medical necessity exemption, and, should it modify the injunction, to set forth those criteria in the modification order.” Id., at 1115.

Ill

The Cooperative contends that, even if the Controlled Substances Act forecloses the medical necessity defense, there is an alternative ground for affirming the Court of Appeals. This ease, the Cooperative reminds us, arises from a motion to modify an injunction to permit distributions that are medically necessary. According to the Cooperative, the Court of Appeals was correct that the District Court had “broad equitable discretion” to tailor the injunctive relief to account for medical necessity, irrespective of whether there is a legal defense of necessity in the statute. Id., at 1114. To sustain the judgment below, the argument goes, we need only reaffirm that federal courts, in the exercise of their equity jurisdiction, have discretion to modify an injunction based upon a weighing of the public interest.

We disagree. Although district courts whose equity powers have been properly invoked indeed have discretion in fashioning injunctive relief (in the absence of a statutory restriction), the Court of Appeals erred concerning the factors that the district courts may consider in exercising such discretion.

A

As an initial matter, the Cooperative is correct that, when district courts are properly acting as courts of equity, they have discretion unless a statute clearly provides otherwise. For “several hundred years,” courts of equity have enjoyed “sound discretion” to consider the “necessities of the public interest” when fashioning injunctive relief. Hecht Co. v. Bowles, 321 U. S. 321, 329-330 (1944). See also id., at 329 (“The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it”); Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982) (“In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction”). Such discretion is displaced only by a “clear and valid legislative command.” Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946). See also Romero-Barcelo, supra, at 313 (“Of course, Congress may intervene and guide or control the exercise of the courts’ discretion, but we do not lightly assume that Congress has intended to depart from established principles”).

The Cooperative is also correct that the District Court in this case had discretion. The Controlled Substances Act vests district courts with jurisdiction to enjoin violations of the Act, 21 U. S. C. § 882(a). But a “grant of jurisdiction to issue [equitable relief] hardly suggests an absolute duty to do so under any and all circumstances,” Hecht, supra, at 329 (emphasis deleted). Because the District Court’s use of equitable power is not textually required by any “clear and valid legislative command,” the court did not have to issue an injunction.

TVA v. Hill, 437 U.S. 153 (1978), does not support the Government’s contention that the District Court lacked discretion in fashioning injunctive relief. In Hill, the Court held that the Endangered Species Act of 1973 required the District Court to enjoin completion of a dam, whose operation would either eradicate the known population of the snail darter or destroy its critical habitat. Id., at 193-195. The District Court lacked discretion because an injunction was the “only means of ensuring compliance.” Romero-Barcelo, supra, at 314 (explaining why the District Court in Hill lacked discretion). Congress’ “order of priorities,” as expressed in the statute, would be deprived of effect if the District Court could choose to deny injunctive relief. Hill, supra, at 194. In effect, the District Court had only a Hob-son’s choice. By contrast, with respect to the Controlled Substances Act, criminal enforcement is an alternative, and indeed the customary, means of ensuring compliance with the statute. Congress’ resolution of the policy issues can be (and usually is) upheld without an injunction.

B

But the mere fact that the District Court had discretion does not suggest that the District Court, when evaluating the motion to modify the injunction, could consider any and all factors that might relate to the public interest or the conveniences of the parties, including the medical needs of the Cooperative’s patients. On the contrary, a court sitting in equity cannot “ignore the judgment' of Congress, deliberately expressed in legislation.” Virginian R. Co. v. Railway Employees, 300 U.S. 515, 551 (1937). A district court cannot, for example, override Congress’ policy choice, articulated in a statute, as to what behavior should be prohibited. “Once Congress, exercising its delegated powers, has decided the order of priorities in a given area, it is... for the courts to enforce them when enforcement is sought.” Hill, 437 U.S., at 194. Courts of equity cannot, in their discretion, reject the balance that Congress has struck in a statute. Id., at 194-195. Their choice (unless there is statutory language to the contrary) is simply whether a particular means of enforcing the statute should be chosen over another permissible means; their choice is not whether enforcement is preferable to no enforcement at all. Consequently, when a court of equity exercises its discretion, it may not consider the advantages and disadvantages of nonenforcement of the statute, but only the advantages and disadvantages of “employing the extraordinary remedy of injunction,” Romero-Barcelo, 456 U.S., at 312, over the other available methods of enforcement. Cf. id., at 816 (referring to “discretion to rely on remedies other than an immediate prohibitory injunction”). To the extent the district court considers the public interest and the conveniences of the parties, the court is limited to evaluating how such interest and conveniences are affected by the selection of an injunction over other enforcement mechanisms.

C

In this case, the Court of Appeals erred by considering relevant the evidence that some people have “serious medical conditions for whom the use of cannabis is necessary in order to treat or alleviate those conditions or their symptoms,” that these people “will suffer serious harm if they are denied cannabis,” and that “there is no legal alternative to cannabis for the effective treatment of their medical conditions.” 190 P. 3d, at 1115. As explained above, in the Controlled Substances Act, the balance already has been struck against a medical necessity exception. Because the statutory prohibitions cover even those who have what could be termed a medical necessity, the Act precludes consideration of this evidence. It was thus error for the Court of Appeals to instruct the District Court on remand to consider “the criteria for a medical necessity exemption, and, should it modify the injunction, to set forth those criteria in the modification order.” Ibid.

*í- H* H*

The judgment of the Court of Appeals is reversed, and the ease is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Breyer took no part in the consideration or decision of this ease.

Justice Stevens,

with whom Justice Souter and Justice Ginsburg join,

concurring in the judgment.

Lest the Court’s narrow holding be lost in its broad dicta, let me restate it here: “[W]e hold that medical necessity is not a defense to manufacturing and distributing marijuana.” Ante, at 494 (emphasis added). This confined holding is consistent with our grant of certiorari, which was limited to the question “[wjhether the Controlled Substances Act, 21U. S. C. 801 et seq., forecloses a medical necessity defense to the Act’s prohibition against manufacturing and distributing marijuana, a Schedule I controlled substance.” Pet. for Cert. (I) (emphasis added). And, at least with respect to distribution, this holding is consistent with how the issue was raised and litigated below. As stated by the District Court, the question before it was “whether [respondents’] admitted distribution of marijuana for use by seriously ill persons upon a physician’s recommendation violates federal law,” and if so, whether such distribution “should be enjoined pursuant to the injunctive relief provisions of the federal Controlled Substances Act.” United States v. Cannabis Cultivators Club, 5 F. Supp. 2d 1086, 1091 (ND Cal. 1998) (emphasis added).

Accordingly, in the lower courts as well as here, respondents have raised the medical necessity defense as a justification for distributing marijuana to cooperative members, and it was in that context that the Ninth Circuit determined that respondents had “a legally cognizable defense.” 190 F. Sd 1109, 1114 (1999). The Court is surely correct to reverse that determination. Congress’ classification of marijuana as a schedule I controlled substance — that is, one that cannot be distributed outside of approved research projects, see 21 U. S. C. §§812, 823(f), 829 — makes it clear that “the Controlled Substances Act cannot bear a medical necessity defense to distributions of marijuana,” ante, at 494 (emphasis added).

Apart from its limited holding, the Court takes two unwarranted and unfortunate excursions that prevent me from joining its opinion. First, the Court reaches beyond its holding, and beyond the facts of the case, by suggesting that the defense of necessity is unavailable for anyone under the Controlled Substances Act. Ante, at 491-498,494-495, n. 7, 499. Because necessity was raised in this case as a defense to distribution, the Court need not venture an opinion on whether the defense is available to anyone other than distributors. Most notably, whether the defense might be available to a seriously ill patient for whom there is no alternative means of avoiding starvation or extraordinary suffering is a difficult issue that is not presented here.

Second, the Court gratuitously casts doubt on "whether necessity can ever be a defense” to any federal statute that does not explicitly provide for it, calling such a defense, into question by a misleading reference to its existence as an “open question.” Ante, at 490,491. By contrast, our precedent has expressed no doubt about the viability of the common-law defense, even in the context of federal criminal statutes that do not provide for it in so many words. See, e. g., United States v. Bailey, 444 U.S. 394, 415 (1980) (“We therefore hold that, where a criminal defendant is charged with escape and claims that he is entitled to an instruction on the theory of duress or necessity, he must proffer evidence of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force”); id., at 416, n. 11 (“Our principal difference with the dissent, therefore, is not as to the existence of such a defense but as to the importance of surrender as an element of it” (emphasis added)). Indeed, the Court’s comment on the general availability of the necessity defense is completely unnecessary because the Government has made no such suggestion. Cl Brief for United States 17-18 (narrowly arguing that necessity defense cannot succeed if legislature has already “canvassed the issue” and precluded it for a particular statute (internal quotation marks omitted)). The Court’s opinion on this point is pure dictum.

The overbroad language of the Court’s opinion is especially unfortunate given the importance of showing respeet for the sovereign States that comprise our Federal Union. That respect imposes a duty on federal courts, whenever possible, to avoid or minimize conflict between federal and state law, particularly in situations in which the citizens of a State have chosen to “serve as a laboratory” in the trial of “novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandéis, J., dissenting). In my view, this is such a case. By passing Proposition 215, California voters have decided that seriously ill patients and their primary caregivers should be exempt from prosecution under state laws for cultivating and possessing marijuana if the patient’s physician recommends using the drug for treatment. This case does not call upon the Court to deprive all such patients of the benefit of the necessity defense to federal prosecution, when the ease itself does not involve any such patients.

An additional point deserves emphasis. This ease does not require us to rule on the scope of the District Court’s discretion to enjoin, or to refuse to enjoin, the possession of marijuana or other potential violations of the Controlled Substances Act by a seriously ill patient for whom the drug may be a necessity Whether it would be an abuse of discretion for the District Court to refuse to enjoin those sorts of violations, and whether the District Court may consider the availability of the necessity defense for that sort of violator, are questions that should be decided on the authority of eases such as Hecht Co. v. Bowles, 321 U.S. 321 (1944), and Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982), and that properly should be left “open” by this case.

I join the Court’s judgment of reversal because I agree that a distributor of marijuana does not have a medical necessity defense under the Controlled Substances Act. I do not, however, join the dicta in the Court’s opinion.

       The Government requested, and the District Court granted, an injunction that prohibited the possession of marijuana with the intent to manufacture and distribute, as well as the distribution and manufacture of marijuana. For simplicity, in this opinion, we refer to these activities collectively as distributing and manufacturing marijuana. The legal issues are the same for all of these activities.

       The amended preliminary injunction reaffirmed that the Cooperative is generally enjoined from manufacturing, distributing, and possessing with the intent to manufacture or distribute marijuana, but it carved out an exception for cases of medical necessity. Specifically, the District Court ordered that “[t]he foregoing injunction does not apply to the distribution of cannabis by [the Cooperative] to patient-members who (1) suffer from a serious medical condition, (2) will suffer imminent harm if the patient-member does not have access to cannabis, (3) need cannabis for the treatment of the patient-member’s medical condition, or need cannabis to alleviate the medical condition or symptoms associated with the medical condition, and (4) have no reasonable legal alternative to cannabis for the effective treatment or alleviation of the patient-member’s medical condition or symptoms associated with the medical condition because the patient-member has tried all other legal alternatives to cannabis and the alternatives have been ineffective in treating or alleviating the patient-member’s medical condition or symptoms associated with the medical condition, or the alternatives result in side effects which the patient-member cannot reasonably tolerate.” App. to Pet. for Cert. 16a-17a.
      The United States appealed the District Court’s order amending the preliminary injunction. At the Government’s request, we stayed the order pending the appeal. 580 U. S. 1298 (2000). The Court of Appeals has postponed oral argument pending our decision in this case.

       The Cooperative is incorrect to suggest that Bailey has settled the question whether federal courts have authority to recognize a necessity defense not provided'by statute. There, the Court rejected the necessity defense of a prisoner who contended that adverse prison conditions justified his prison escape. The Court held that the necessity defense is unavailable to prisoners, like Bailey, who fail to present evidence of a bona fide effort to surrender as soon as the claimed necessity had lost its coercive force. 444 U. S., at 415. It was not argued, and so there was no occasion to consider, whether the statute might be unable to bear any necessity defense at all. And although the Court noted that Congress “legislates against a background of Anglo-Saxon common law'’ and thus “may” have contemplated a necessity defense, the Court refused to “bal-ane[e] [the] harms,” explaining that “we are construing an Act of Congress, not drafting it.” Id., at 415-416, n. 11.

       We reject the Cooperative’s intimation that elimination of the defense requires an “explici[t]” statement. Brief for Respondents 21. Considering that we have never held necessity to be a viable justification for violating a federal statute, see supra, at 490, and n. 3, and that such a defense would entail a social balancing that is better left to Congress, we decline to set the bar so high.

       As noted, supra, at 490, the only express exception for schedule I drugs is the Government-approved research project, see 21 U.S.C. § 823(f). Unlike drugs in other schedules, see §829, schedule I drugs cannot be dispensed under a prescription.

       The Government argues that the 1998 "sense of the Congress” resolution, 112 Stat. 2681-760 to 2681-761, supports its position that Congress has foreclosed the medical necessity defense. Entitled “Not Legalizing Marijuana for Medicinal Use,” the resolution declares that “Congress continues to support the existing Federal legal process for determining the safety and efficacy of drugs and opposes efforts to circumvent this process by legalizing marijuana, and other Schedule I drugs, for medicinal use without valid scientific evidence and the approval of the Food and Drug Administration.” Because we conclude that the Controlled Substances Act cannot sustain the medical necessity defense, we need not consider whether the 1998 “sense of the Congress resolution” is additional evidence of a legislative determination to eliminate the defense.

       Lest there be any confusion, we clarify that nothing in our analysis, or the statute, suggests that a distinction should be drawn between the prohibitions on manufacturing and distributing and the other prohibitions in the Controlled Substances Act. Furthermore, the very point of our holding is that there is no medical necessity exception to the prohibitions at issue, even when the patient is “seriously ill” and lacks alternative avenues for relief Indeed, it is the Cooperative’s argument that its patients are “seriously ill,” see, e. g., Brief for Respondents 11,13,17, and lacking "alternatives,” see, e. g., id., at 13. We reject the argument that these factors warrant a medical necessity exception. If we did not, we would be affirming instead of reversing the Court of Appeals.
      Finally, we share Justice Stevens’ concern for “showing respect for the sovereign States that comprise our Federal Union.” Post, at 502 (opinion concurring in judgment). However, we are “construing an Act of Congress, not drafting it.” United States v. Bailey, 444 U.S. 394, 415, n. 11 (1980). Because federal courts interpret, rather than author, the federal criminal code, we are not at liberty to rewrite it. Nor are we passing today on a constitutional question, such as whether the Controlled Substances Act exceeds Congress’ power under the Commerce Clause.

       Notwithstanding Justice Stevens’ concerns, post, at 502-503, it is appropriate for us to address this issue because this case arises from a motion to modify the injunction, because the Court of Appeals held that the District Court misconstrued its equitable discretion, and because the Cooperative offers this conclusion as an alternative ground for affirmance.

        Hecht Co. v. Bowles, 321 U.S. 321 (1944), for example, held that the District Court was not required to issue an injunction to restrain violations of the Emergency Price Control Act of 1942 and regulations thereunder when “some ‘other order’ might be more appropriate, or at least so appear to the court.” Id., at 328 (quoting statutory provision that enabled district court to issue an injunction, a restraining order, “or other order”). Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982), held that a District Court had discretion not to issue an injunction precluding the United States Navy from releasing ordnance into water, but to rely on other means of ensuring compliance, including ordering the Navy to obtain a permit. Id., at 314-318. See also Amoco Production Co. v. Gambell, 480 U.S. 531, 544-546 (1987) (holding that a District Court did not err in declining to issue an injunction to bar exploratory drilling on Alaskan publie lands, because the District Court’s decision “did not undermine” the policy of the Alaska National Interest Lands Conservation Act, 16 U. S. C. §3120, and because the Secretary of the Interior had other means of meaningfully complying with the statute).

       In any event, respondents do not fit the paradigm of a defendant who may assert necessity. The defense “traditionally covered the situation where physical forces beyond the actor's control rendered illegal conduct the lesser of two evils.” United States v. Bailey, 444 U.S. 394, 410 (1980); see generally 1 W. LaFave & A. Scott, Substantive Criminal Law § 5.4, pp. 627-640 (1986). Respondents, on the other hand, have not been forced to confront a choice of evils — violating federal law by distributing marijuana to seriously ill patients or letting those individuals suffer — but have thrust that choice upon themselves by electing to become distributors for such patients. Of course, respondents also cannot claim necessity based upon the choice of evils facing seriously ill patients, as that is not the same choice respondents face.

       As a result, perhaps the most glaring example of the Court's dicta is its footnote 7, where it opines that “nothing in our analysis, or the statute, suggests that a distinction should be drawn between the prohibitions on manufacturing and distributing and the other prohibitions in the Controlled Substances Act.” Ante, at 494, n. 7.

       Cf. Feeney, Bush Backs States’ Rights on Marijuana: He Opposes Medical Use But Favors Local Control, Dallas Morning News, Oct. 20, 1999, p. 6A, 1999 WL 28018944 (then-Govemor Bush supporting state self-determination on medical marijuana use).

         Since 1996, six other States — Alaska, Colorado, Maine, Nevada, Oregon, and Washington — have passed medical marijuana initiatives, and Hawaii has enacted a similar measure through its legislature. See Alaska Stat. Ann. §§11.71.090, 17.37.010 to 17.37.080 (2000); Colo. Const., Art. XVIII, §14; Haw. Rev. Stat. §§329-121 to 329-128 (Supp. 2000); Me. Rev. Stat. Ann., Tit. 22, §2383-B(5) (Supp. 2000); Nev. Const., Art. 4, §38; Ore. Rev. Stat. §§475.300 to 475.346 (1999); Wash. Rev. Code §§69.51A.005 to 69.51A.902 (1997 and Supp. 2000-2001).