concurring in part, dissenting in part.
I concur with the majority’s holding that application of ORS 163.673 to defendant violates Article I, section 21, because to do so would punish defendant for an act that was legal when committed. As the majority states, such an application falls squarely within the embrace of the prohibition against ex post facto laws found in Article I, section 21.1 also concur with the majority’s conclusion that, in amending ORS *35135.125, the legislature intended that the extended statute of limitations apply retroactively to all prior crimes and that the retroactive scope revived all prosecutions that would have been barred under the preexisting statute of limitations.
However, I dissent from the majority’s holding that application of amended ORS 135.125 to defendant’s crime violated Article I, section 21. Unlike the first situation, the extension of a statute of limitations does not fall within the protection afforded by Article I, section 21. Therefore, I would hold that there was no violation of Article I, section 21, in this case. And, as I shall explain, I would hold that application of amended ORS 135.125 to defendant’s prosecution did not violate any other state or federal constitutional protections.
EX POST FACTO
The majority begins its ex post facto analysis by asserting (correctly, I believe) that the scope of Article I, section 21, is the same as the historical scope of Article I, section 10, of the United States Constitution. State v. Wille, 317 Or 487, 502, 858 P2d 128 (1993). However, as I shall describe, the majority misstates the scope of the ex post facto protection provided by federal law and, having misstated it, then errs in construing the scope of Article I, section 21.
In Wille, this court adopted the longstanding federal ex post facto standard enunciated in Collins v. Youngblood, 497 US 37, 110 S Ct 2715, 111 L Ed 2d 30 (1990); Beazell v. Ohio, 269 US 167, 46 S Ct 68, 70 L Ed 216 (1925); and Calder v. Bull, 3 US (3 Dall) 386, 1 L Ed 648 (1798). With respect to the category of ex post facto protection at issue in this case— defenses — the Wille court quoted with approval the following formulation from Collins, quoting Beazell'.
“ ‘ “It is settled * * * that any statute which * * * deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.” ’ ”
Wille, 317 Or at 502 (emphasis added). As expressly — and correctly — stated in that formulation, ex post facto violations are limited to circumstances in which a defendant is deprived of a defense that was available at the time that the crime was *36committed. The question thus becomes: Do statutes of limitations fit within the foregoing rule?
They do not. Statutes of limitations never are available as a defense at the time that a crime is committed. To be sure, a statute of limitations provides a potential bar to prosecution at a future circumscribed date. However, that is not the same as providing an available defense at the time that the crime is committed. A statute of limitations only is “available” to the extent that, if the state should fail to prosecute within a certain period of time, the defendant then may invoke it to prevent a prosecution from proceeding.
The foregoing point concerning the inchoate nature of a statute of limitations defense at the time that the crime is committed points up the fundamental way in which such statutes differ in purpose and effect from those that characterize an offense itself, or defenses to that offense: A statute of limitations does not affect the criminal nature of the act committed. A person who invokes successfully a statute of limitations bar is just as much a criminal as he or she was the day before the statute ran. In contrast, traditional defenses, such as self-defense and insanity, are available at the time the crime is committed. They transform what otherwise would have been a criminal act into something not criminal in nature (or of a lesser criminal nature) when applied to the defendant.1 Indeed, other jurisdictions unanimously have concluded that an extension of a statute of limitations, at least before the original limitations period had expired, does not implicate ex post facto.2
*37The majority misses the foregoing pivotal distinction and, instead, wrestles statutes of limitations into the realm of protections to which the rule against ex post facto laws applies. It does so by modifying the longstanding legal standard. The majority “rephrases” the protection afforded by the rule against ex post facto laws by asserting that Article I, section 21, proscribes any law “that deprive[s] the defendant of a defense.” 324 Or at 31. The majority then claims that ex post facto principles apply, because “the statute of limitations gives a defendant, on the date the specified period expires, a complete defense.” Id. at 32. Under that reasoning, once the defense becomes complete, it cannot be taken away. However, as has been discussed, the correct standard looks to whether a law removes a defense that was available at the time that the crime was committed, not as the majority chooses to do it — at the time when the later law was enacted. I would respect the traditional formulation and hold that, because the statutory amendment at issue in this case did not take away any defense that was available to defendant at the time that he committed his criminal offense, there was no violation of Article I, section 21.
DUE PROCESS
Having concluded that there was no ex post facto violation in this case, the question remains whether application of the revived statute of limitations against defendant is unlawful for some other reason. A divided Court of Appeals held that such an application transgressed defendant’s federal due process right to “fundamental fairness.” 127 Or App at 286. In my view, that conclusion is wrong.
The argument that revival of a prosecution (effectuated by extending an expired statute of limitations) violates a defendant’s due process rights was first articulated by Judge Learned Hand, in Falter v. United States, 23 F2d 420, 425-26 (2d Cir), cert den 277 US 590 (1928):
*38“Certainly it is one thing to revive a prosecution already dead, and another to give it a longer lease of life. 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 pursuits, and thereafter to withdraw its assurance, seems to most of us unfair and dishonest. But, while the chase is on, it does not shock us to have it extended beyond the time first set, or, if it does, the stake forgives it.”
Those courts that have considered this question invariably have utilized the same reasoning, oftentimes quoting from Falter.3 See, e.g., United State v. Taliaferro, 979 F2d 1399, 1403 (10th Cir 1992); Clements v. United States, 266 F2d 397, 399 n 4 (1959); People v. Russo, 439 Mich 534, 487 NW2d 698, 703 n 18 (1992).
While I do not often find myself in disagreement with the eloquent Learned Hand, I feel perfectly comfortable in being in that position here. To my mind, there is nothing unfair or dishonest in the state’s choosing to extend a statute of limitations, even where the statute, as applied to a particular defendant, already had expired when the extension occurred. Rather, the same result should flow, whether the statute was extended before the preexisting limitations period had expired or thereafter.
A statute of limitations is not a fundamental right of a criminal. Indeed, historically, there was no statute of limitations on the prosecution of common-law crimes. Even today, most jurisdictions, including Oregon, have no statute of limitations for the crime of murder. Statutes of limitations are, instead, regulatory measures that have been created by legislatures as a matter of policy to deal with the practical difficulties of prosecuting stale crimes. See, e.g., United States v. Gouveia, 467 US 180, 192, 104 S Ct 2292, 81 L Ed 2d 146 (1984) (stating that statutes of limitations are a guarantee against bringing stale crimes); United States v. Marion, 404 US 307, 322-23, 92 S Ct 455, 30 L Ed 2d 468 (1971) *39(same); see also Wilder v. Haworth, 187 Or 688, 213 P2d 797 (1950) (civil case; stating that statutes of limitations were designed to protect citizens from stale and vexatious claims); Eastman v. Crary, 131 Or 694, 284 P 280 (1930) (civil case; stating that statutes of limitations constitute a declaration of public policy). An expired limitations period thus is not something upon which a criminal legitimately should be able to rely, as of right, to evade prosecution. Certainly, the state may not violate its own laws and prosecute a defendant under an expired statute of limitations. However, the legislature is free to change the law in such a way that an expired limitations period becomes revived.
To hold, as Judge Hand apparently was willing to do, that the revival of a barred criminal prosecution would violate due process, but extending an unexpired limitations period would not, would (to me) create the following anomaly: A criminal could be prosecuted where the legislature extended the applicable statute of limitations from three years to six years so long as the extension occurred two years and 364 days after the crime was committed. However, if the extension occurred three years and one day after the crime was committed a criminal could not be prosecuted.
The foregoing distinction displays the arbitrary nature of a statute of limitations and, in my view, the equally arbitrary reasoning that must be used to find some sort of due process requirement for the difference in outcomes. To whatever extent (if any) the two criminals relied on the statute of limitations in existence at the time of their crimes, I cannot perceive how that reliance merits being exalted to the level of a constitutional protection against modification after the original limitations period has expired. It does not seem unfair to me to prosecute both criminals. Indeed, it would appear far more unfair, both to the victim and to society, to let either criminal evade prosecution, assuming that society was willing to expend its resources to pursue the matters.
In amending ORS 135.125, the legislature was recognizing that the nature of the offenses involved was such that the fact of the crimes might not even come to light until after the old statute of limitations had run: The nature of the *40offense, the age of the victims, and the often close relationship between victim and offender all play a part in that phenomenon. In effect, a former legislature had said, “We’ll not prosecute these crimes after three years, because the nature of the evidence and the availability of scarce prosecutorial resources dictates that we not do so.” A later legislature then said, “Our former policy choices may have had some validity, but we perceive the harm flowing to society from these crimes, and the issues pertaining to the reporting of the crimes, to be of a different and greater magnitude. We therefore choose to hold these criminals accountable to society for a longer period of time.” In my view, the second legislative choice was as valid as the first, and no considerations of ex post facto or due process protections prevented it. I would hold that applying amended ORS 135.125 to defendant’s prosecution did not violate any state or federal constitutional protections.
I respectfully dissent.
A federal circuit court recently made this same distinction in assessing whether ex post facto extends to statutes of limitations. It stated:
“Pleading an expired limitations period is certainly a defense in the general sense that it is a defensive measure. More particularly, however, it is a matter in bar of prosecution and as such is distinguishable from a ‘pure’ defense, which defeats one or more of the elements of the crime. * * * Thus, ‘defense’ as used in [Beazell v. Ohio and Collins v. Youngblood] means a defense related to the definition or elements of the crime. It does not have the much broader meaning assigned to it by defendants, because a plea in bar is not related to the definition of a crime and is not pleaded as a nullification of one or more of its elements or as an excuse or justification for its commission.”
United States v. Knipp, 963 F2d 839, 843 (6th Cir 1992).
See, e.g., United States v. Taliaferro, 979 F2d 1399 (10th Cir 1992); United States v. Knipp, 963 F2d 839 (6th Cir 1992); Clement v. United States, 266 F2d 397 (9th Cir), cert den 359 US 985 (1959); Falter v. United States, 23 F2d 420 (2d Cir), *37cert den 277 US 590 (1928); People v. Russo, 439 Mich 534, 487 NW2d 698 (1992); Commonwealth v. Johnson, 520 Pa 165, 553 A2d 897 (1989); Commonwealth v. Bargeron, 402 Mass 589, 524 NE2d 829 (1988); State v. Creekpaum, 753 P2d 1139 (Alaska 1988); People v. Whitesell, 729 P2d 985 (Colo 1986); People v. Callan, 174 Cal App 3d 1101, 220 Cal Rptr 339 (1985); People v. Massarella, 80 Ill App 3d 552, 400 NE2d 436 (1979) (all so holding).
The due process argument raised by Hand was dictum, because that case did not involve a revival of a previously barred prosecution. I have found only one court that has held a revival of a previously time-barred prosecution was unlawful. Commonwealth v. Rochleau, 404 Mass 129, 533 NE2d 1333 (1989). In that case, the court merely concluded, with little analysis, that such an application was unlawful.