criminal laws and so the retrospective law ban must apply only to civil laws," the Bethurum Court based its opinion on the definition of the terms at issue as they were understood at the time, the language of the constitution, the drafters' motives for including the clause, and the decisions of other state high courts interpreting similar provisions. The Bethurum Court undoubtedly was also presented with the relevant caselaw of the time. Notably, in the 57 years between the adoption of the original retrospective clause in the 1820 constitution and the decision of Bethurum in 1877 not one opinion of this Court applied the retrospective clause to a criminal law. On the other hand, the Court used the provision on numerous occasions to invalidate laws relating to civil rights and remedies. Moreover, this Court decided Hope Mut. Ins. Co. v. Flynn, 38 Mo. 483 (1866), a seminal case concerning the definition of the retrospective clause within one year of the adoption of the 1865 constitution. The Court then decided Bethurum only two years after the adoption of the 1875 constitution. Though Bethurum did not cite Hope, Judge Wagner, the author of Hope, was still on the bench when Bethurum was decided. Those contemporaries of the constitution undeniably have claims to the deference of this Court because those jurists would have been more knowledgeable about the intention of the drafters and the accepted legal meaning of the phrase at the time of its adoption. 13 Bethurum looked to two other cases from outside Missouri, another from New Hampshire and one from Texas. Both cases held that the term "retrospective laws"—or some version thereof—
10
law, nor law impairing the obligation of contracts or retrospective in its operation ... s hall be passed by the general assembly." Woodward, 4 Colo. 162, 163 (1878). The court determined its constitutional provision contained three distinct prohibitions. Further, relying on the analysis from Rich, authority from two other jurisdictions and this Court's opinion in Hope Mutual Insurance Co. v. Flynn, 38 Mo. 483 (1866), it stated, "[t]he term retrospective was intended to apply to laws which could not properly be said to be included in the description of ex post facto, or laws impairing the obligation of contracts." Id. at 164. Bethurum's holding—that the term retrospective had a settled technical legal meaning before its inclusion in Missouri's constitution—finds further support in early legal scholarship. In Bethurum this Court specifically stated, "The terms ex post facto and retrospective, as employed in statutes and constitutions, had acquired a definite, legal meaning, long before the adoption of our constitution." 66 Mo. at 548. Theodore Sedgwick, 14 in his treatise on the interpretation of statutes noted that early legal scholars such as Sir Francis Bacon and Henry de Bracton defined a retrospective law as, in Sedgwick's words, "a statute which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past." Theodore Sedgwick, A Treatise on the Rules which Govern the Interpretation and Construction of Statutory and Constitutional Law 160 (2d ed. 1874). Significant for purposes of the resolution of this
could not be taken to have its literal meaning. Woart v. Winnick, 3 N.H. 473, 481 (1826); De Cordova v. City of Galveston, 4 Tex. 470, 473 (1849). 14 Sedgwick's treatise is cited as authoritative in many of this Court's opinions throughout the mid- to late-1800s. E.g., State ex rel. McNamee v. Stobie, 92 S.W. 191, 213 (Mo. 1906); Ewing v. Hoblitzelle, 85 Mo. 64, 71 (1884); City of St. Louis ex rel. Creamer v. Clemens, 52 Mo. 133, 143
11
issue is that Sedgwick supports thi s definition—which was adopted by this Court sometimes without attribution—solely with citation to cases involving civil rights and remedies. Id. at 160-172; see also Squaw Creek Drainage Dist. v. Turney, 138 S.W. 12, 16 (Mo. 1911). As early as 1798, the Supreme Court of the United States ascribed distinct, technical legal meanings to the phrases "ex post facto laws" and "retrospective laws." In the seminal case of Calder v. Bull, 3 U.S. 386 (1798), cited by the Bethurum Court, the Supreme Court stated that "ex post facto" literally means "that a law shall not be passed concerning, and after the fact, or thing done, or action committed." Calder, 3 U.S. at —390. The Supreme Court then outlined the distinction between the two terms, stating, "[T]he true distinction is between ex post facto laws, and retrospective laws. Every ex post facto law must necessarily be retrospective; but every retrospective law is not an ex post facto law: the former, only, are prohibited [by the United States Constitution]." Id. at 391. The Supreme Court understood retrospective laws as those that "take[] away, or impair[], rights vested, agreeably to existing laws." Id. The Supreme Court stated that such laws are "generally unjust" and, typically, a law should have no retrospect, but there may be situations in which such a retrospective law would be beneficial to the community or to a given individual. Id. Ex post facto laws, on the other hand, applied to criminal laws only, and only in four distinct situations. Id. Recognizing the general injustice inherent in many retrospective laws coupled with the absence of any explicit provision in the federal constitution prohibiting their enactment, some states adopted state constitutional provisions to ensure state legislatures could not pass
(1873); Hope Mut. Ins. Co. v. Flynn, 38 Mo. 483, 484 (1866); Stewart v. Griffith, 33 Mo. 13, 33 (1862).
12
retrospective civil laws. Sedgwick, supr a, at 166. When Missouri adopted its first constitution in 1820 it included, in article XIII, section 17, a provision stating "[t]hat no ex- post fact law, nor law impairing the obligation of contracts, or retrospective in its operation, can be passed, nor can the person of a debtor be imprisoned for debt after he shall have surrendered his property for the benefit of his creditors in such manner as may be prescribed by law." Every constitution of this state since has included a similar provision. Until very recently, every decision of this Court involving the prohibition against laws retrospective in their operation applied that provision solely to laws involving civil rights and remedies. In Hope Mut. Ins. Co. v. Flynn, one of this Court's seminal cases interpreting this provision, this Court concluded that a law of evidence that completely eliminated a party's defense to a civil action could not be applied retrospectively because to do so would violate the constitution's prohibition of laws retrospective in their operation. 38 Mo. 483, 484-85 (1866). In Hope, an insurer sued a policy holder for unpaid premiums. Id. at 483. The parties had entered into an insurance agreement in 1860. Id. In 1863, the Missouri legislature passed a law that made a certificate signed by a company's president, stating that a party owes a debt to the company, conclusive evidence of such indebtedness so long as the corporate seal was affixed to the document. Id. Having such a document in its possession, the insurer argued that the policy holder could not present the defense that no debt was owed. Id. Using Sedgwick's accepted definition of a retrospective law, this Court held that "it is not within the constitutional competency of the Legislature to annul by statute any legal ground on which a previous action is founded, or to create a new bar by which such action may be defeated." Id. at 484. This Court found that the law could not be applied in the case because it took away the policy holder's ability to assert a defense that
13
was available to it when it entered into the policy. Id. The ability to assert a defense was a right t hat had vested in the policy holder prior to the enactment of the statute, and the Court held the law was an invalid attempt to alter retrospectively the private parties' civil rights and remedies. Id. In Barton County v. Walser, this Court reaffirmed the definition of retrospective laws in Hope Mutual Insurance. 47 Mo. 189, 201 (1871). Barton County involved a statute that declared all deeds to certain land granted by the county courts of Missouri valid deeds. Id. at 199. Barton County sued to recover certain land from a purchaser, arguing that the deeds were invalid and that the statute at issue violated the constitution's ban on retrospective laws. Id. at 194, 200. This Court stated, "As between individuals, the Legislature has no power to interfere and declare an act or deed valid which was previously void." Id. at 201. But the Court held that the same was not true as between the State and a county. Id. at 203. Because the new law did not interfere with the vested right of a citizen, and only made valid the transaction between a political subdivision of the state and a citizen of the state, the statute did not violate the ban on retrospective laws. Id. at 205. In City of St. Louis ex rel. Creamer v. Clemens, this Court invalidated a city ordinance that sought to impose a new tax assessment for work previously performed by a city contractor. 52 Mo. 133 (1873). In 1867, the St. Louis City Council passed an ordinance authorizing the construction of sewers and establishing the manner in which the cost of construction should be assessed against the property owners. Id. at 135-36. Under the ordinance, a city contractor constructed sewers for the city and an assessment was made. Id. at 136. In 1870, the city enacted a new ordinance allowing for a re-assessment of the sewer construction. Id. The city then issued a new tax bill to James Clemens under the
14
1870 statute and later sued to collect on that bill. Id. The parties agreed that the tax bill was entirely for work done under the 1867 ordinance and that the bill was for a larger assessment permitted only under the 1870 ordinance. Id. at 140. This Court, citing both Sedgwick's definition of retrospective laws and Hope Mutual I nsurance Co., held that the city could not collect the tax bill. Id. at 145. The Court held that the liability created by the 1870 ordinance was a new obligation and liability that could not be imposed on work previously performed. Id. To do so would violate the constitution's prohibition against laws retrospective in their operation. Id. More recently, in State ex rel. Koster v. Olive, this Court held that a civil law requiring dam owners to obtain permits for their dams was not retrospective in operation. 282 S.W.3d 842, 848 (Mo. banc 2009). The dam at issue had been constructed in 1974, and the statutes requiring a registration permit were enacted in 1979. Id. at 846. In 2001, the dam's owners asserted that they should not be required to register their dam under the statute because the legislature enacted the statute after the dam's construction, and as applied to them, the permitting requirements were unconstitutionally retrospective in their operation. Id. at 848. This Court held—using a derivation of Sedgwick's definition of retrospective laws—that, because the permitting statutes neither took away a vested right nor imposed a new obligation, duty, or disability on the dam's owners, they did not operate retrospectively. Id. Rather, this Court held, the "dam's present use and its present ability to hold back substantial amounts of water is the issue." Id. Olive is consistent with Hope, Bethurum, and other cases because the law did not alter civil rights or remedies. In Klotz v. St. Anthony's Medical Center, this Court invalidated a civil law that established a new cap on non-economic damages as applied to a couple whose claim had
15
16 accrued prior to the enactment of the law. 311 S.W.3d 752 (Mo. banc 2010). In 2006, the couple sued a number of medical providers for medical malpractice and loss of consortium for conduct occurring in 2004. Id. at 758. In 2005, the legislature amended a statutory non- economic damages cap to reduce the total amount of recoverable damages. Id. The amendment stated it applied "to all causes of action filed after August 28, 2005." Id. at 758-59. After trial, a jury found for the couple and awarded damages in excess of the amended cap, which the circuit court reduced. Id. at 759. The couple timely challenged the constitutional validity of the amendment and, on appeal, the case was reversed noting the "underlying repugnance to the retrospective application of laws." Id. This Court held, "It is settled law in Missouri that the legislature cannot change the substantive law for a category of damages after a cause of action has accrued." Id. at 760. Changing the substantive law would have eliminated the couple's right to recovery up to the previous cap amount that vested at the time the cause of action accrued. Furthermore, Missouri courts have—on multiple occasions—expressly reaffirmed the proposition that the retrospective clause of article I, section 13 does not apply to criminal laws. Lincoln Credit Co. v. Peach, 636 S.W.2d 31, 34-35 (Mo. banc 1982) ("A retrospective law, as that term is used in the Missouri Constitution, is one which impairs existing vested civil rights."); State ex rel. Sweezer v. Green, 232 S.W.2d 897, 899-902 (Mo. banc 1950), overruled in part on other grounds by State ex rel. North v. Kirtley, 327 S.W.2d 166 (Mo. banc 1959) (finding that a statute was civil and, therefore, not an ex post facto law, and that the same law was not retrospective); Clark v. Kansas City, St. L. & C.R. Co., 118 S.W. 40 (Mo. 1909) ("[T]he retrospective laws forbidden by [the Constitution] are laws impairing existing vested civil rights."); Westerman v. Supreme Lodge K.P., 94 S.W. 470, 489 (Mo. 1906); Gladney v.
Syndor, 72 S.W. 554, 556 (Mo. 1903), overruled in part on other grounds by Bushnell v. Loomis, 137 S.W. 257 (Mo. 1911) ("The term 'retrospective in their operation,' as used in our Bill of Rights, is one which relates to civil rights and proceedings in civil causes. Ex parte Bethurum, 66 Mo. 545. Hence the well–settled rule deduced from all the authorities is that 'acts of the Legislature are not to be considered as retrospective, unless they impair rights that are vested, because most civil rights are derived from public laws.'") In the face of the long-standing technical legal meaning of these terms and Bethurum's necessary and express holding, Honeycutt argues that this Court implicitly overruled Bethurum in two recent cases: R.L. v. Dep't of Corrections, 245 S.W.3d 236 (Mo. banc 2008), and F.R. v. St. Charles Cnty. Sheriff's Dep't, 301 S.W.3d 56 (Mo. banc 2010). In R.L., this Court invalidated as violative of article I, section 13's prohibition of laws retrospective in their operation a law that prohibited certain sex offenders from living within 1,000 feet of a school or child-care facility. R.L., 245 S.W.3d at 237-38. In F.R., this Court invalidated as violative of the same provision an amended version of the law invalidated in R.L. and a law that imposed several restrictions on what certain sex offenders could do on Halloween. F.R., 301 S.W.3d at 66. Each of the invalidated laws carried a criminal penalty for failure to comply with their provisions. 15 Honeycutt essentially asserts that these two cases overruled Bethurum sub silentio and extended the application of the prohibition against laws retrospective in their operation to criminal laws without discussion, analysis or citation.
15 Violation of the residence restriction was a class D felony for the first violation and a class B felony for any subsequent violation. Violation of the Halloween restrictions was a class A misdemeanor.
17
Generally, this Court presumes, absent a contrary showing, that an opinion of this Court has not bee n overruled sub silentio. See Badahman v. Catering St. Louis, 395 S.W.3d 29, 37 n.10 (Mo. banc 2013). Sub silentio is defined as "without notice being taken or without m aking a particular point of the matter in question." Webster's Third New International Dictionary 2279 (1976). "If the majority chooses to overrule [a case] it is far preferable to do so by the front door of reason rather than the am orphous back door of sub silentio." Keller v. Marion Cty. Ambulance Distr., 820 S.W.2d 301, 308 (Mo. banc 1991) (Holstein, J., dissenting). This presumption can be traced, at least in part, to the doctrine of stare decisis. "The doctrine of stare decisis—to adhere to decided cases—promotes stability in the law by encouraging courts to adhere to precedents." Med. Shoppe Int'l, Inc. v. Dir. of Revenue, 156 S.W.3d 333, 334-35 (Mo. banc 2005). Under the doctrine of stare decisis, decisions of this Court should not be lightly overruled, especially when "the opinion has remained unchanged for many years." Sw. Bell Yellow Pages, Inc. v. Dir. Of Revenue, 94 S.W.3d 388, 391 (Mo. banc 2002). Importantly, "[t]he maxim of stare decisis applies only to decisions on points arising and decided in causes" and does not extend to mere implications from issues actually decided. Broadwater v. Wabash R. Co., 110 S.W. 1084, 1086 (Mo. 1908). To assert that a decision has been overruled sub silentio is the same as to assert that the decision has been overruled by implication. This Court's presumption against sub silentio holdings, therefore, is based not only on the general preference that precedent be adhered to and decisions be expressly overruled, but also because the implicit nature of a sub silentio holding has no stare decisis effect and is not binding on future decisions of this Court. R.L. and F.R. did
18
not expressly address whet her article I, section 13 applies to criminal laws, and this Court must presume those opinions made no decision on the issue. In addition to the usual presumption against assuming a case was overruled sub silentio, a careful review of these cases demonstrates that this Court—without consideration—presumed the laws invalidated in R.L. and F.R. to be civil in nature. In R.L., this Court stated, "The constitutional bar on retrospective civil laws has been a part of Missouri law since this State adopted its first constitution in 1820." 245 S.W.3d at 237 (emphasis added). The Court, without any briefing to suggest a contrary analysis, stated that "[t]he same long-standing principles applied in [Doe v.] Phillips apply in this case." Id. In Doe v. Phillips, this Court held that Missouri's sex offender registration requirement was civil in nature and operated retrospectively in violation of article I, section 13. 194 S.W.3d 833, 850 (Mo. banc 2006). Based on the issues raised and discussed on the briefs of the parties, R.L. held that the residency requirement at issue there retrospectively imposed a new civil obligation in violation of the constitution. Id. at 237-38. Similarly, the opinion in F.R. (concerning residency requirements and various Halloween restrictions) begins with the statement, "These two cases are simply cases that can be resolved by applying article I, section 13 in the same way as it was applied in Doe v. Phillips and R.L." 301 S.W.3d at 61. As already noted, in both of these cases the Court stated that it was applying article I, section 13 to a civil law. The issue concerning whether article I, section 13 applied to criminal laws was not briefed by the parties in R.L. and F.R., and the Court made no formal analysis concerning the nature of the laws before it. The determination of whether this Court's treatment of the statutes in R.L. and F.R., as civil in
19
nature, was accurate is not before the Court in this case. 16 It is sufficient, for the purposes of today's decision, simply to acknowledge that the Court treated the laws as civil. These two cases, therefore, do not stand for the proposition that the "retrospective laws" clause of article I, section 13 applies to criminal laws. While this Court is not critical of counsel for the defendant making the argument that R.L. and F.R. reversed Bethurum sub silentio, a fair reading of R.L. and F.R. demonstrates they do not hold that article I, section 13's prohibition against laws retrospective in their operation applies to criminal laws. Neither case made an express holding to that effect, and the language used and authorities cited in each case demonstrate that the Court presumed the particular laws invalidated were civil laws without consideration or analysis of the issue. This Court reaffirms the long-standing precedent that the separate and distinct phrases of article I, section 13 had technical legal meanings at the time they were adopted and still do. As such, with the issue fully briefed and argued, this Court now holds the phrase "ex post facto law" applies exclusively to criminal laws and the phrase law "retrospective in its operation" does not apply to criminal laws. Section 571.070 is a Criminal Law Though the discussion up to this point has gone to great length to highlight an important distinction between the "ex post facto" and the "retrospective law" provisions of
16 No case should be reversed unless the legally dispositive issue is necessary to the resolution of the pending case. To do otherwise could result in an under-informed or under analyzed holding. Very recently, in State v. Davis, 348 S.W.3d 768 (Mo. banc 2011), this Court did not permit the State to make a claim at the first instance on appeal that the prohibition against laws retrospective in their operation did not apply to criminal laws. This Court, as it does here, will analyze whether a law is criminal to determine whether the prohibition against retrospective laws even applies only when properly preserved and presented on appeal.
20
article I, section 13, that is just th e starting point of the constitutional analysis. Under both provisions, it is essential that the analysis begins with a determination of whether the law under examination is civil or criminal. If the law relates to civil rights or remedies, this Court then must determine whether the law is invalid because it is retrospective in its operation. On the other hand, if a criminal law is at issue, then article I, section 13's prohibition against ex post facto laws is applicable. In order to determine which provision of article I, section 13, determines the law's validity, this Court applies the two-part test utilized by the United States Supreme Court in Smith v. Doe, 538 U.S. 84 (2003), and adopted by this Court in R.W. v. Sanders, 168 S.W. 3d 65 (Mo. banc 2005), and Phillips, 194 S.W.3d 833. In Smith, the United States Supreme Court found that an Alaska version of "Megan's Law," which required sex offenders to register with the State, was a civil statute and was not subject to the ex post facto prohibitions of the United States Constitution. Smith, 538 U.S. at 105-06. The Court utilized a two-part framework for ascertaining whether a statute is civil or criminal in nature. Id. at 92. Under that framework, We must "ascertain whether the legislature meant the statute to establish 'civil' proceedings." If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is "'so punitive either in purpose or effect as to negate [the State's] intention' to deem it 'civil'"
Id. (citations omitted). "Whether a statutory scheme is civil or criminal 'is first of all a question of statutory construction.'" Id. "The courts 'must first ask whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.'"
21
Id. at 92-
- An express legislative finding is one obvious indicator of legislative intent, but
"[o]ther formal attributes of a legislative enactment, such as the manner of its codification or the enforcement procedures it establishes, are probative of the legislature's intent." Id. at 94. If a statute is determined to create a civil regulatory scheme, the Court must then examine whether the civil scheme was "so punitive either in purpose or effect as to negate [the State's] intention to deem it civil." Id. at 92, 97 (quotation marks omitted). To analyze the effects of the regulation, the United States Supreme Court examined whether, in its necessary operation, the regulatory scheme: (1) has been regarded in our history and traditions as a punishment; (2) imposes an affirmative disability or restraint; (3) promotes the traditional aims of punishment; (4) has a rational connection to a nonpunitive purpose; or (5) is excessive with respect to that purpose. Id. at 97. Following Smith, this Court applied the two-part analysis to Missouri's sex offender registration statutes in the ex post facto context. In R.W., 168 S.W.3d 65, this Court, using the Smith analysis, held that Missouri's sex offender registration statute was civil and non- punitive and, therefore, did not violate the ex post facto clause. In Phillips, this Court, relying on the determination made in R.W., concluded that, because such registration laws were civil and retrospective in their application, they violated article I, section 13's retrospective laws provision. Id. at 852. To avoid any future confusion, the courts of this State, when faced with a state constitutional challenge based on article I, section 13, should employ the two-part analysis utilized in Smith and R.W. to determine the character of the particular law as the first step in analyzing whether a law violates the either "ex post facto" provision or the "retrospective
22
laws" provision of article I, sectio n 13. 17 In Missouri, if the law is deemed "civil" under the appropriate challenge, the court will need to analyze whether the law is retrospective in its operation. Simply because a law is civil and looks backward, does not make it retrospective in its operation. Therefore, the two-part analysis will indicate whether a particular provision is appropriate, but will not necessarily end the inquiry entirely if a statute is challenged under both provisions of article I, section 13. With these concepts in mind, this Court now turns to the two-part test to determine if § 571.070.1(1) affects civil rights and remedies or if it relates to crimes or criminal punishment. The first part of the test requires the Court to "ascertain whether the legislature meant the statute to establish 'civil' proceedings." Smith, 538 U.S. at 92. In making this determination, the Court should "consider the statute's text and its structure to determine the legislative objective." Id. at 93. Section 571.070 provides:
- A person commits the crime of unlawful possession of a firearm if such
person knowingly has any firearm in his or her possession and: (1) Such person has been convicted of a felony under the laws of this state, or of a crime under the laws of any state or of the United States which, if committed within this state, would be a felony; or (2) Such person is a fugitive from justice, is habitually in an intoxicated or drugged condition, or is currently adjudged mentally incompetent.
- Unlawful possession of a firearm is a class C felony.
- The provisions of subdivision (1) of subsection 1 of this section shall not
apply to the possession of an antique firearm.
Section 571.070.1(1) appears on its face to be a criminal statute. The statute uses the language of a criminal statute, providing a requisite mental state—"knowingly"—and a
17 Although the test is the same, it is important to point out a distinction when using this test to determine whether a law solely violates the United States Constitutional prohibition against ex post
23
penalty for violation of the statute—"class C felony." Section 571.070 is part of the criminal code. Section 556.011, RSMo 2000. And it is written in the style of all other provisions of the criminal code. Moreover, "[o]ther formal attributes of a legislative enactment, such as the manner of its codification or the enforcement procedures it establishes, are probative of the legislature's intent." Id. at 94. Section 571.070.1(1) appears in Title XXXVIII of the Revised Statutes of Missouri titled "Crimes and Punishment; Peace Officers and Public Defenders." Chapter 571 is titled "Weapons Offenses." All of these factors demonstrate the legislature's clear understanding that § 571.070.1(1) is a criminal statute. Even if § 571.070 appeared on its face to be a civil statute, the second part of the two-part test demonstrates that § 571.070 is "so punitive either in purpose or effect as to negate [the State's] intention to deem it civil." Id. at 92. In the second part of the two-part analysis, this Court considers whether, in its necessary operation, the regulatory scheme: 1) has been regarded in our history and traditions as a punishment; 2) imposes an affirmative disability or restraint; 3) promotes the traditional aims of punishment; 4) has a rational connection to a non-punitive purpose; or 5) is excessive with respect to that purpose. Id. at 97-104. Here, the statute is clearly of the variety that has been regarded in our history and traditions as punishment. It seeks to punish anyone who previously has been convicted of a felony and who is in possession of any firearm and is designed specifically to criminalize that conduct.
facto laws. In the federal analysis, if a law is determined to be civil, the inquiry ends because the federal constitution does not contain an express prohibition against "retrospective laws."
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Turning to the second factor, § 571.070 im poses a direct and affirmative restraint on a certain class of defendants. It prohibits anyone who has been convicted of a felony from knowingly possessing a firearm. Turning to the third factor, § 571.070 also promotes the traditional aims of punishment. "Two traditional aims of punishment are deterrence of future crimes and retribution for past crimes." R.W., 168 S.W.3d at 69. Section 571.070 serves both of these aims of punishment. This statute serves to deter crime by threatening prison time for engaging in the prohibited conduct. It is retributive for much the same reason: undesirable conduct is punished by imprisonment. Turning to the fourth and fifth factors, no non-punitive purpose has been advanced by any party. Therefore, these factors need not be considered. Because the proper analysis demonstrates that § 571.070.1(1) is a criminal statute, article I, section 13's prohibition against laws retrospective in their operation does not apply. This Court recently held that § 571.070 does not violate the ex post facto law provision of article I, section 13 of the Missouri Constitution in State v. Harris, __ S.W.3d ___ (Mo. banc 2013) (No. SC93170, decided October 1, 2013). Conclusion This Court long ago concluded that the phrases "ex post facto" and law "retrospective in its operation" as employed in article I, section 13 have distinct, technical, legal meanings. Today, this Court reaffirms that conclusion and holds that the prohibition of laws retrospective in their operation does not apply to criminal laws. Because § 571.070 is a criminal statute, the circuit court erred in dismissing the third count of the indictment
25
26 against Honeycutt on the grounds that the statute was unconstitutionally retrospective as applied to Honeycutt. The circuit court's judgment is reversed, and the case is remanded.
___________________________ Zel M. Fischer, Judge
Russell, C.J., Breckenridge and Wilson, JJ., concur; Stith, J., concurs in separate opinion filed; Draper and Teitelman, JJ., concur in opinion of Stith, J.
STATE OF MISSOURI, ) ) Appellant, ) ) v. ) No. SC92229 ) JOEY D. HONEYCUTT, ) ) Respondent. )