¶ 78. (concurring in part, dissenting in part). I join Justice Wilcox's dissent. I write separately to emphasize certain additional concerns about the majority's refusal to apply the decision in this case to this defendant.
*287¶' 79. The majority concludes that "the year-and-a-day rule has outlived its various justifications" and that Wisconsin will "now join the many states that have abrogated the rule." Majority op., ¶ 37.1 agree with this conclusion.
¶ 80. The majority also concludes, however, that "now" does not actually mean "now" in the usual sense, as in, "in this case."1 Instead, "now" actually means "later," because the majority has decided to "sunburst" its decision — to abrogate the year-and-a-day rule prospectively only. Majority op., ¶¶ 38-64. I do not agree with this aspect of the majority opinion.
¶ 81. The majority identifies and discards as obsolete each of the justifications for the common law year-and-a-day rule, concluding unequivocally that "[n]one of the[ ] justifications remain persuasive for maintaining the year-and-a-day rule in Wisconsin." Majority op., ¶ 34. In addition, as an "affirmative reason" for abrogating the year-and-a-day rule, the majority holds that "it is unjust to permit an assailant to escape punishment because of a convergence of modern medical advances and an archaic rule from the thirteenth century." Majority op., ¶ 35.
¶ 82. If the year-and-a-day rule is unjustifiable then what justifies the majority's application of it in this case? The majority has declared that it is "unjust to permit an assailant to escape punishment" because of the year-and-a-day rule, majority op., ¶ 35, yet the majority endorses — indeed, orders — just such an injustice in this case. Majority op., ¶ 64. Picotte's conviction *288is overturned and he escapes responsibility for the reckless homicide he committed.
¶ 83. The majority notes that "[the] most common reason for prospective overruling is to protect the reliance interests of individuals and institutions that have ordered their affairs" in accordance with the prior legal rule. Majority op., ¶ 45. It cannot seriously be suggested that persons who commit violent, ultimately fatal assaults "order their affairs" around the year-and-a-day rule. The rule does not implicate any institutional reliance interests. Apparently conceding this, the majority bases its decision to sunburst the abrogation of the year-and-a-day rule in large part upon the "image of justice."2 Majority op., ¶¶ 45, 54.
¶ 84. This is an "image of justice":3
*289[[Image here]]
There are many other "images of justice." See http:I¡members, tripod, comjmdeanljustice. html (collecting various internet links to images of the goddess of justice). Magnificent "images of justice" adorn our State Capitol, courthouses, and other public buildings across the state and nation.
¶ 85. The "image of justice," however, is not a legal principle upon which to base an appellate judicial decision. As far as I can tell, "the image of justice" as a rationale for the majority's decision to prospectively abrogate has something to do with 1) the "equities" in the case, 2) "policy," and 3) the requirement of "stability in the law." Majority op., ¶¶ 44-45.
¶ 86. Stability in the law is an argument for adhering to an existing rule rather than refusing to apply a newly-declared one. Indeed, the technique of sunbursting enables courts to more readily avoid stare decisis and the legal stability that adherence to precedent seeks to promote. Announcing a new legal rule is *290easier when the decision to do so is untethered from any obligation to apply it in the case before the court. Sunbursting promotes stability in the law only when reliance interests are very strong, which is not the case here.4
¶ 87. The generalized invocation of "policy" and "equity" gives the majority the flexibility to make the decision it wants to make, but does not articulate a principled, consistent rule of law, as the majority apparently concedes. Majority op., ¶ 44 ("[Tjhere are no easy-to-follow rules or consistent guidelines directing courts on whether or how to sunburst a decision."). The majority does not identify any equitable or policy factors that govern its use of sunbursting in this case. Such standardless appellate decisionmaking undermines rather than promotes the rule of law. See majority op., ¶ 50 ("Our legal system accords high value to the rule of law and institutional adherence to the law.").
¶ 88. The majority "agree[sj with the State that the abrogation of the year-and-a-day rule would not deprive an accused of any fundamental right," because the burden remains on the prosecution to prove causation beyond a reasonable doubt. Majority op., ¶ 36. Nevertheless, the majority concludes that retroactive abrogation of the year-and-a-day rule creates a "hardship" that must be "mitigated" or "softened" by prospective overruling. Majority op., ¶¶ 43, 46.
¶ 89. Picotte inflicted serious, ultimately fatal head injuries on the victim, who was in a coma for over two-and-a-half years before he died. Picotte was con*291victed after a jury trial. The State proved causation (as well as the other elements of the crime) beyond a reasonable doubt. There are no claims of any constitutional or statutory violations.5 Under these circumstances, I do not see any "hardship" in holding Picotte criminally responsible for reckless homicide. This case hardly falls within Justice Traynor's "ominous warning" against convicting people for committing "no greater offense than to be themselves." Majority op., ¶ 53.
¶ 90. The majority claims that retroactive abrogation of the year-and-a-day rule will put "many other individuals who committed similar crimes" in jeopardy. Majority op., ¶ 55. Actually, retroactive abrogation would probably affect very few people — by its terms, *292the rule applied only in the highly unusual circumstance of a death occurring more than a year after the criminal infliction of injury. The majority itself notes that the year-and-a-day rule is mentioned only once in Wisconsin case law, in a territorial case dating from 1841. Majority op., ¶ 11 n.ll.
¶ 91. The majority also asserts that "the prosecution of these individuals for the same conduct for which they have already served time paints our criminal justice system with a brush of arbitrariness." Majority op., ¶ 56. Again, the majority is referring to hypothetical "prosecutions" of hypothetical "many other individuals." More importantly, it is not at all uncommon for the criminal justice system to prosecute, convict, and sentence a defendant for several different crimes arising out of a single incident. Unless there is a double jeopardy bar, the law does not regard this practice as unfair or "paint[ed] with a brush of arbitrariness."
¶ 92. Ultimately, the majority's refusal to apply the general rule of retroactivity is itself quite arbitrary, resting only on the majority's sense that it would be somehow unfair to Picotte and the hypothetical "many other individuals" who might be subject to homicide prosecutions if their victims hereafter die of injuries criminally inflicted before the date of this decision. But as Justice Wilcox discusses at greater length in his dissent, the United States Supreme Court has held that retroactive abrogation of the year-and-a-day rule fully comports with due process. Rogers v. Tennessee, 532 U.S. 451 (2001).
¶ 93. I agree with Justice Wilcox that the majority's retroactivity analysis is inconsistent with Rogers. If retroactive abrogation of the year-and-a-day rule does not offend due process, then it is not unfair to retroactively abrogate the rule in this case and apply *293that law to Picotte.6 The majority does not rest its decision on any independent state constitutional ground.
¶ 94. Thus, in the end, the majority essentially holds that the "image of justice" prohibits what the federal and state constitutions and the applicable law permit. This, then, is really just an act of judicial will. Applying the general rule of retroactivity, I would affirm the defendant's conviction for reckless homicide.
¶ 95. I am authorized to state that Justices JONE WILCOX and N. PATRICK CROOKS join this dissent.
The majority acknowledges the Blackstonian rule that judicial decisions are generally retrospective in operation. Majority op., ¶ 42.
The majority obtains this rationale for prospective overruling from a law review article, Thomas S. Currier, Time and Change in Judge-Made Law: Prospective Overruling, 51 Va. L. Rev. 201 (1965).
See State of Wisconsin Blue Book (2001-2002) at 129-135. The mosaic "Justice" is one of four panels of glass mosaic works, each one consisting of approximately 100,000 pieces of glass tile, in the State Capitol rotunda designed by Kenyon Cox, an American painter, draughtsman, and art critic. Id.
Professor Currier, the author of the law review article from which the majority derives the "image of justice" rationale for prospective overruling, acknowledges that the criminal law "is not an area where people axe apt to have acted in reliance on perceived law." Currier, supra note 2, at 254.
Picotte does argue that retroactive abrogation of the year-and-a-day rule (that is, applying the abrogation to his case) would violate the Ex Post Facto Clause of the state constitution. See Wis. Const., art. I, § 12 ("No ... ex post facto law ... shall ever be passed.") The state and federal Ex Post Facto Clauses prohibit only ex post facto legislative enactments. See also U.S. Const., art. I, § 9. In Rogers v. Tennessee, 532 U.S. 451, 456 (2001), a constitutional challenge to the Tennessee Supreme Court's retroactive abrogation of the year-and-a-day rule was brought under the federal due process clause, although the Ex Post Facto Clause "figure[d] prominently in [the petitioner's] argument." The United States Supreme Court held that while ex post facto principles are implicated in the concept of due process, "[extending the [.Ex Post Facto] Clause to courts through the rubric of due process . .. 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." Rogers v. Tennessee, 532 U.S. 451, 460 (2001). The majority does not address the defendant's state constitutional argument. For the reasons discussed in Justice Wilcox's dissent, I would interpret the state constitution consistently with Rogers.
The Supreme Court's decision in Rogers undermines the majority's reliance on the Currier law review article that advanced the "image of justice" rationale for prospective overruling. Currier stated that "the image of justice quite obviously will not tolerate retroactive application of criminal responsibility, for the same reason that the [E]x [P]ost [FJacto [CJlause will not." Currier, supra note 2, at 255. The Supreme Court in Rogers declined to import the Ex Post Facto Clause into the determination of the constitutionality of retroactive judicial decisionmaking, and sustained the retroactive abrogation of the common law year-and-a-day rule against a due process challenge. The majority acknowledges as much, majority op., ¶ 40, but does not explain how a judicial act that is consistent with the constitution and the laws nevertheless impermissibly violates the "image of justice."