Hello kababik-ga,
At the outset, I should emphasize the disclaimer at the bottom of this
page, which states that answers and comments on Google Answers are
general information, and are not substitutes for informed professional
legal advice. If you need an expert legal opinion, you should contact
an attorney in your area.
From the information I have found in my research, the answer is that
if the law is changed so that it is not a crime to do something --
such as using or possessing certain drugs like marijuana -- the people
presently in prison for committing that crime do not get released,
unless the case is still on direct appeal, in which case they can get
released (presumably, if they bring the change to the attention of the
appellate court).
The Family Legal Guide of the American Bar Association has addressed
this question:
"Q : What if the law changes after a court convicts me?
A : If a court convicted you for something that is no longer a crime,
you might be able to have your conviction overturned. This also might
be possible if a trial court denied you a right that the U.S. Supreme
Court later rules is guaranteed by the U.S. Constitution. However,
your rights will depend on whether the new rule or law is retroactive,
that is, applied to past court decisions. As a general rule, a change
in the law would be retroactive to your criminal case if the case has
been appealed but not resolved at the time the law is changed. If, on
the other hand, your case on appeal has been resolved, the change in
the law would not be retroactive to your case, unless the change is
one that directly enhances the accurate determination of your guilt or
innocence."
"Q : What if the law changes after a court convicts me?" (Family Legal
Guide, American Bar Association) (2002)
Findlaw
http://cobrands.public.findlaw.com/newcontent/flg/ch14/st12/qa2.html
It seems that the key portion of the American Bar Association's answer
comes in the last two lines. If the case is "appealed but not
resolved at the time the law is changed", a new law making something
no longer a crime is retroactive; if the "case on appeal has been
resolved", this new law is not retroactive.
An outline of criminal procedure -- in particular, to cases that are
not on direct review -- appears to provide support for this answer:
"Once convicted, a person may only challenge the lawfulness of his
detention under the laws that existed at the time of his trial and
final judgment on direct appeal. Teague [v. Lane, 489 U.S. 288
(1989)] recognized two exceptions to the rule barring application of
new rules to habeas petitioners.
(1) 'a new rule should be applied retroactively if it places "certain
kinds of primary, private individual conduct beyond the power of the
criminal law-making
authority to proscribe."' (think abortion, porn, etc) Note: this rule
doesn’t address case where something is no longer a crime (think
repeal of sodomy or marijuana bans) but only where the act cannot and
could not be a crime under the Constitution.
(2) 'a new rule should be applied retroactively if it requires the
observance of "those procedures that . . . are implicit in the concept
of ordered
liberty"' and the procedures are 'accuracy-enhancing procedures . . .
without which the likelihood of an accurate conviction is seriously
diminished.' It is quite unlikely that the Court will find a new rule
fitting this second exception, one possibility is overruling the grand
jury indictment rule, but plain view doctrine, searches, etc are
police conduct not affecting the accuracy of the finding of guilt."
"Criminal Procedure, Jerod E. Tufte, Prof. Kader Fall 2001"
tufte.net [Jerod Tufte]
http://tufte.net/jerod/law/outlines/CrimPro.pdf
See also:
"Federal Habeas Corpus Reivew: D. Limitations on Availablity of
Federal Habeas Corpus (Contd'): 4. The Nonretroactivity Doctrine:
Teague v. Lane", by Todd Maybrown
FindLaw
http://profs.lp.findlaw.com/habeas/habeas_6.html
So, if the new rule makes something "no longer a crime", it cannot be
applied retroactively. The new rule would have to be that "something
... cannot and could not be a crime under the Constitution."
Moreover, it seems that making something "no longer a crime" does not
mean that the conviction was inaccurate when that activity was a
crime.
This may not seem fair, but it is apparently the current law. Of
course, it is possible that the law in a particular state is more
lenient for a repealed state law crime. (Research into the laws of
all 50 states would be beyond the scope of a $5.00 question.)
Moreover, the law can change. Finally, as noted in the beginning, an
answer on Google Answers is not a professional legal opinion, so if
you want to be certain, you should consult an attorney to determine
whether this information is complete and correct.
I hope that this answer is helpful.
- justaskscott-ga
I used the following terms, in various combinations, on Google and on
FindLaw:
"no longer a crime"
"change in the law"
retroactive
retroactivity
"laws that existed at the time"
"laws in existence at the time"
"new rule"
repeal
repealed
"criminal statute"
criminal
statute
habeas
"criminal statute" |
,
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