with whom Mr. Justice Brennan and Mr. Justice Marshall join, dissenting.
Only a few simple facts are relevant to the question of law presented by this case.1 At the time of petitioner’s offense, there was no constitutional procedure for imposing the death penalty in Florida. Several months after his offense, Florida enacted the death penalty statute that was upheld in Proffitt v. Florida, 428 U. S. 242. Before this statute was passed, as a matter of Florida law, the crime committed by petitioner was not a capital offense.2 It is undisputed, therefore, that a law passed after the offense is the source of Florida’s power to put petitioner to death.
*305The Court holds that Florida may apply this law to petitioner without violating the Ex Post Facto Clause.3 In its view, the unconstitutional law which was on the Florida statute books at the time of the offense “clearly indicated Florida’s view of the severity of murder and of the degree of punishment which the legislature wished to impose upon murderers.” Ante, at 297. The Court concludes that the “fair warning” provided by the invalid statute “was sufficient compliance with the ex post facto provision of the United States Constitution.” Ante, at 298.4
This conclusion represents a clear departure from the test the Court has applied in past cases construing the Ex Post Facto Clause. That test was stated in Lindsey v. Washington, 301 U. S. 397, 401, in language that might have been written with the present case in mind:
“The Constitution forbids the application of any new punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrongdoer.” 5
Applying that test in Lindsey, the Court held that even though *306the statute in effect at the time of the crime authorized a sentence of 15 years in the discretion of the trial judge, that sentence could not be imposed pursuant to a new mandatory sentencing statute. Notwithstanding the defendant’s “fair warning” of the possible 15-year sentence, the Court held that the change in the standard of punishment could not be retroactively applied to him.6 The change was invalid sim*307ply because the new standard increased the probability of a severe sentence. In the case before us, the new standard created the possibility of a death sentence that could not have been lawfully imposed when the offense was committed. A more dramatically different standard of punishment is difficult to envision.
We should adhere to the Lindsey test. Fair warning cannot be the touchstone, for two reasons. First, “fair warning” does not provide a workable test for deciding particular cases. Second, as Mr. Justice Harlan has explained,7 fair notice is not the only important value underlying the constitutional prohibition; the Ex Post Facto Clause also provides a basic protection against improperly motivated or capricious legislation.8 It ensures that the sovereign will govern impar*308tially and that it will be perceived as doing so. The Court's “fair warning” test, if it extends beyond this case, would allow government action that is just the opposite of impartial. If that be so, the “fair warning” rationale will defeat the very purpose of the Clause.
By what standard is the fairness of the warning contained in an unconstitutional statute to be judged? Is an itinerant, who may not have the slightest notion of what Florida’s statute books contain, to be judged differently from a local lawyer? The assumption that the former has “fair warning” can only rest on the somewhat unrealistic presumption that everyone is deemed to know the law. But it is not words in statute books that constitute the law. If citizens are bound to know the law, “they [are] bound to know it as we have expounded it.” Kring v. Missouri, 107 U. S. 221, 235. A consistent application of that presumption would require the conclusion that neither the lawyer nor the itinerant had fair warning because both must also be presumed to know that the old Florida statute was a nullity. The Court’s test cannot fairly be applied on the basis of a particular individual’s actual knowledge of the law; if applied on the basis of a presumed knowledge of the law, it requires that this death sentence be vacated.
*309As applied to pr e-Furman death penalty statutes, ¡the Court's test is dramatically inadequate. The Court makes the assumption that the “existence on the statute books” of the pr e-Furman statute provided “fair warning” to petitioner “of the penalty which Florida would seek to impose on him if he were convicted of first-degree murder.” Ante, at 297, 298. On the contrary, capital punishment at the time of Furman had “for all practical purposes run its course.” Furman v. Georgia, 408 U. S. 238, 313 (White, J., concurring). The death penalty at that time was “freakishly imposed” and “cruel and unusual in the same way that being struck by lightning is cruel and unusual.” Id., at 310, 309 (Stewart, J., concurring). The possibility of such capricious punishment is not “fair warning,” under any meaningful use of those words.
If the Court’s rationale is applicable to all cases in which a State replaces an unconstitutional death penalty statute with a subsequent statute, it is dramatically at odds with the common understanding of the meaning of the Clause. That understanding was most plainly revealed by the nationwide response to this Court’s invalidation of the death penalty in Furman v. Georgia, supra. Of the hundreds of prisoners on death row at the time of that decision, none was resentenced to death. Each of those persons, at the time of his offense, had precisely the same “fair warning” as this petitioner. But our state courts and state legislatures uniformly acted on the assumption that none of them could be executed pursuant to a subsequently enacted statute. Under the “fair warning” rationale the Court adopts today, there was, and is, no such constitutional barrier.
If I am correct that the Ex Post Facto Clause was intended as a barrier to capricious government action, today’s holding is actually perverse. For when human life is at stake, the need to prevent capricious punishment is greatest, as our decisions in Furman and Proffitt establish. Cf. Skinner v. Oklahoma ex *310rel. Williamson, 316 U. S. 535. Yet the Court’s holding may-lead to results which are intolerably arbitrary. For example, the trial in Miller v. State, 332 So. 2d 65 (Fla. 1976), was delayed by the defendant’s incompetence to stand trial. By the time his capacity was restored, Florida had enacted its new death penalty statute. Had it not been for his fortuitous illness, defendant would have been tried promptly and escaped the death penalty. Because of a delay over which he had no control, the enactment of an ex post facto statute was held to entitle the State to put him to death. The capricious consequence is particularly grotesque because Miller may well have been advised before trial that this Court’s decision in Furman had removed the possibility of a death sentence.9
Because a logical application of the Court’s “fair warning” rationale would lead to such manifestly intolerable results,10 *311I assume that this case will ultimately be regarded as nothing more than an archaic gargoyle. It is nevertheless distressing to witness such a demeaning construction of a majestic bulwark in the framework of our Constitution.
I respectfully dissent.
The atrocious character of this indi•. idual’s crimes, which the Court recounts in such detail, is of course no more relevant to the legal issue than the fact that 10 of the 12 jurors who heard all of the evidence voted to spare his life.
In response to this Court’s decision in Furman v. Georgia, 408 U. S. 238, the Florida Supreme Court held that the Florida death penalty had been abolished, that even the category of “capital offenses” had ceased to exist, and that there was no possible procedure under existing Florida law for imposing the penalty. Donaldson v. Sack, 265 So. 2d 499 (1972); State v. Whalen, 269 So. 2d 678 (1972). Following these decisions, therefore, the crime committed by petitioner was not a capital offense.
Article I, § 10, provides that "[n]o State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts There is a separate prohibition against ex post facto laws in Art. I, § 9, which applies to Congress.
In support of this conclusion, the Court cites not a single case involving the Ex Post Facto Clause. Instead, it relies solely on a case which held that a decision of this Court could not serve as a basis for a retroactive attack on a final judgment in a civil case. Chicot County Dist. v. Baxter State Bank, 308 U. S. 371.
Cf. Kring v. Missouri, 107 U. S. 221, in which the Court reviewed a number of state cases involving ex post facto legislation and explicitly endorsed this "excellent observation” by Judge Denio of the New York Court of Appeals:
“ 'No one can be criminally punished in this country, except according to a law prescribed for his government by the sovereign authority, before the imputed offence was committed, and which existed as a law at that time.’ ” Id., at 230-231, quoting Hartung v. People, 22 N. Y. 95, 104 (1860) (emphasis in original).
This language from Mr. Justice Stone’s opinion is, I believe, plainly applicable to this case:
“It is true that petitioners might have been sentenced to fifteen years under the old statute. But the ex post facto clause looks to the standard of punishment prescribed by a statute, rather than to the sentence actually imposed. The Constitution forbids the application of any new punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrongdoer. Kring v. Missouri, supra, 228-229; In re Medley, 134 U. S. 160, 171; Thompson v. Utah, 170 U. S. 343, 351. It is for this reason that an increase in the possible penalty is ex post facto, Calder v. Bull, 3 Dall. 386, 390; Cummings v. Missouri, [4 Wall. 277,] 326; Malloy v. South Carolina, 237 U. S. 180, 184, regardless of the length of the sentence actually imposed, since the measure of punishment prescribed by the later statute is more severe than that of the earlier, State v. Callahan, 109 La. 946; 33 So. 931; State v. Smith, 56 Ore. 21; 107 Pac. 980.
“Removal of the possibility of a sentence of less than fifteen years, at the end of which petitioners would be freed from further confinement and the tutelage of a parole revocable at will, operates to their detriment in the sense that the standard of punishment adopted by the new statute is more onerous than that of the old. It could hardly be thought that, if a punishment for murder of life imprisonment or death were changed to death alone, the latter penalty could be applied to homicide committed before the change. Marion v. State, 16 Neb. 349; 20 N. W. 289. Yet this is only a more striking instance of the detriment which ensues from the revision of a statute providing for a maximum and minimum punishment by making the maximum compulsory. We need not inquire whether this is technically an increase in the punishment annexed to the crime, see Colder v. Bull, supra, 390. It is plainly to the substantial disadvantage of petitioners . . . .” 301 U. S., at 401-402.
In this case, it is also plainly to the substantial disadvantage of the petitioner to be sentenced to death pursuant to a statute that was enacted *307after his offense was committed, when he could not have been validly sentenced to death under the law in effect at the time of the offense.
Mr. Justice Harlan understood the Ex Post Facto Clause as serving a purpose beyond ensuring that fair notice be given of the legal consequences of an individual's actions. He stated:
“Aside from problems of warning and specific intent, the policy of the prohibition against ex post facto legislation would seem to rest on the apprehension that the legislature, in imposing penalties on past conduct, even though the conduct could properly have been made criminal and even though the defendant who engaged in that conduct in the past believed he was doing wrong (as for instance when the penalty is increased retroactively on an existing crime), may be acting with a purpose not to prevent dangerous conduct generally but to impose by legislation a penalty against specific persons or classes of persons.” James v. United States, 366 U. S. 213, 247 n. 3 (separate opinion).
Unlike the procedural guarantees in the Bill of Rights which originally were applicable only to the Federal Government, the Ex Post Facto Clause has always applied to the States. Mr. Justice Chase, writing just a few years after the Constitution was adopted, stated that the Clause was probably a result of the ex post facto laws and bills of attainder passed in England. “With very few exceptions, the advocates of such laws were stimulated by ambition, or personal resentment, and vindictive malice. To prevent such, and similar, acts of violence and injustice, . . . the Federal and State Legislatures, were prohibited from passing any bill of *308attainder; or any ex post facto law.” Calder v. Bull, 3 Dall. 386, 389. It is an important indication of the thought of the times that Mr. Justice Chase believed that the Clause did no more than state an inherent rule of government:
“This fundamental principle flows from the very nature of our free Republican governments, that no man should be compelled to do what the laws do not require; nor to refrain from acts which the laws permit. ... The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them .... To maintain that our Federal, or State, Legislature possesses such powers, if they had not been expressly restrained; would, in my-opinion, be a political heresy, altogether inadmissible in our free republican governments.” Id., at 388-389 (italics omitted).
A comment by Judge Learned Hand on the unfairness of extending a statute of limitations after it had run has even greater force if applied to this kind of situation:
“The question turns upon how much violence is done to our instinctive feelings of justice and fair play. For the state to assure a man that he has become safe from its pursuit, and thereafter to withdraw its assurance, seems to most of us unfair and dishonest.” Falter v. United States, 23 F. 2d 420, 425-426 (CA2 1928).
Perhaps this is an area in which an example is worth more than argument. In Grayned v. City of Rockford, 408 U. S. 104, demonstrators were convicted under an ordinance which prohibited picketing within 150 feet of a school. This Court affirmed convictions under an anti-noise ordinance but reversed the convictions under the anti-picketing ordinance. The reason for reversal was that the ordinance exempted peaceful picketing of any school involved in a labor dispute; it was therefore held to be invalid because it was not neutral as to content. See Police Dept. of Chicago v. Mosley, 408 U. S. 92. But in the meantime, the ordinance had been amended in 1971 to delete the labor exemption, thus removing the First Amendment problem, 408 U. S., at 107 n. 2. As I understand today's decision, these demonstrators could now be convicted of violating the 1971 ordinance on the basis of their actions in 1969, since they were on fair notice that the State intended to prohibit their conduct. At least in Grayned there was no reason to think that the 1971 ordinance was *311passed with retroactive application in mind — I am sure that before today no one would have considered such an application constitutional — but the potential for this kind of legislative (and prosecutorial) abuse is created by the Court’s holding. It was precisely this potential that the Framers wished to avoid.
Indeed, the Court’s holding today seems inconsistent with its holding in Grayned. For in Grayned, the Court agreed with a concession that the 1971 amendment “ ‘has, of course, no effect on Appellant’s personal situation,’” and went on to say that “[n]essarily, we must consider the facial constitutionality of the ordinance in effect when appellant was arrested and convicted.” 408 U. S., at 107 n. 2. Under today’s holding, it is difficult to see why the 1971 amendment could not simply have been applied ex post facto to cure the defect in the original statute.