Judge Harrell opens the Maryland Court of Appeals’ unanimous opinion today like this:
[Jeremy] Bentham (my note: a name familiar to my ultraeducated readers and Lost fans) stated the case against retroactivity most succinctly when he likened it to ‘dog law.’ He was referring to the age-old method of training dogs by waiting until they do what they are to be forbidden to do, and then kicking them.” NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 41.02 (5th ed. 1992) [hereinafter SUTHERLAND]; see JEREMY BENTHAM, Truth versus Ashhurst, in 5 THE WORKS OF JEREMY BENTHAM 235 (1863) (“They won’t tell a man beforehand what it is he should not do—they won’t so much as allow of his being told: they lie by till he has done something which they say he should not have done, and then they hang him for it. What way, then, has any man of coming at this dog-law?”).
Sadly, Judge Harrell did not bother to read “Eight Leaflets on Aspects of Bentham’s Thought and Life” which explains that Bentham completely changed his views on retroactive dog law in later writings. What? You think I just made that up? Fair enough. I’ve never actually read Bentham. In fact, I may not have heard of him until Lost and my knowledge may or may not be limited to a Wikipedia page. Seriously, I wish I had a more classical education. (Besides, I would never call out a Maryland judge with a “sadly,” because I’m not quite that brave.)
Anyway, I don’t think this wisdom applies so much for child molesters. Thankfully, Judge Harrell and the court agrees that the Maryland legislature would not see it Jeremy Bentham’s way, ruling that the Maryland legislature’s decision to extend the Maryland statute of limitations on child abuse claims until the victim turns 25 (instead of 21) should be applied retroactively.
I’d like to think that Bentham would also agree that this quote is not quite in line with the idea that retroactively changing the statute of limitations for child molesters is a bad idea because I’m pretty sure that child molesters know “beforehand what it is he should not do.”
You can read the opinion here.