We just had a question about what happens to convicts if a law is repealed. However, that question's example of homosexual behavior wasn't decriminalized in the US by legislative action, but rather by the Supreme Court ruling the laws unconstitutional in Lawrence v. Texas.

Court decisions certainly do have some retroactive effect -- even though Lawrence's actions occurred before the ruling, he couldn't be sent to jail for them. So if you were convicted under some law but that law was later struck down in a different case, do you go free? Does it matter what stage the trial was at (e.g. final judgment with appeals exhausted vs. on appeal vs. in trial court)? Does it matter if you had challenged the law's constitutionality?

Please cite answers.

  • Quick clarifying question, is the convicted person referenced in this question still imprisoned or has their sentence already expired with all associated penalties (such as parole or probation) – Viktor Dec 18 '15 at 21:36
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    @Viktor Let's go with "still imprisoned," but I'd also be curious about potential government-imposed restrictions that last past the end of imprisonment or parole (like the ban on owning firearms). – cpast Dec 18 '15 at 22:43

I have to go off-topic a little, because I am not aware of any legal authority for the proposition that a properly convicted defendant's conviction or sentence is automatically quashed, if the law by which he was convicted is overturned.

I can really see the likelihood of the Supreme Court striking down the statutory provision making murder, arson, robbery with violence, or income tax evasion an offence -- I don't think!

In the unlikely event of a criminal offence being declared unconstitutional, I expect it would be up to the defendant to petition the court that convicted him for an order quashing either his conviction or his sentence. And both conviction and sentence would most likely stand, unless and until such an order was granted.

In the event of a statutory repeal, the statute which introduces the repeal always states the date from which the offence no longer exists, but that date rarely or never precedes the date on which the statute becomes law.

I seriously doubt the courts would ever invalidate a crime that has been such since time immemorial. The most likely case would be some recent and controversial proposal, made into law but violating some obscure clause of the US constitution, a recent change under which very few people were ever convicted.

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    "I seriously doubt the courts would ever invalidate a crime that has been such since time immemorial": Sodomy? – phoog Nov 28 '18 at 23:09
  • It is not so unlikjely as you might thiunk that a law specifying a criminal offense would be found unconstitutional or otherwise invalid, either as applied or on itss facIf for example the lsaw punishes excersize of a constitutional right, it may well be struck down. This has happened many times. not laws against murder, no. but many others, including laws against sodomy which seemed as long-standing. and many more recent laws. – David Siegel Oct 22 '20 at 21:11

Here's how it works:

  1. You are charged with a crime.
  2. You are tried, found guilty on the facts and the law and sentenced.
  3. You appeal on the law, if you win you are free, if you lose you aren't.
  4. You appeal to a higher court: ditto.
  5. Ultimately your appeal ends in a petition to the Supreme Court and they will either hear the appeal or not, if they do: ditto.

Now, if you reach the end of this process and lose, you are guilty and the punishment will be imposed.

If latter, somebody else who is making their way through this process on similar facts gets a ruling in their favour then they are not guilty, too bad for you - your case has been finalized and you are done.

However, If that ruling is that a law is invalid for whatever reason (including but not necessarily unconstitutionality) then there was no law under which you could be tried so pack your bags you're going home.

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    This is wrong. Do you have any sources to back up any of your assertions? – phoog Nov 18 '15 at 7:52
  • "If that ruling is that a law is invalid for whatever reason". I think the reason matters. As discussed in Is it better to be fair or final? "Retroactivity turns on whether a change in constitutional law involves substance or procedure" – Conrad Frix May 22 '16 at 21:37
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    This answer is clearly wrong. It fails to give any reasoning in support of the actual answer given, i.e. the very last sentence, and it fails to cite any case law or statutory authority. – Ed999 Nov 28 '18 at 9:49
  • The principle involved is that the Supreme Court is, in strict legal theory, declaring what the law has always been. The court decision might have the practical effect of changing how the law is henceforth applied or enforced, and people might have been wrongly convicted by lower courts in earlier cases, but the legal principle involved is that the decision by the Supreme Court is merely declaratory, i.e. the defendant applies for - and is granted - a declaration that the law under which he was convicted is (and always has been) void. – Ed999 Nov 30 '18 at 14:49

Yes. An individual imprisoned not under a valid statute is imprisoned unconstitutionally. This individual could bring a habeas corpus motion and be set free. Here's an example https://www.statesman.com/news/20200515/court-oks-compensating-man-imprisoned-under-invalidated-law.

Additionally, I would certainly argue, and I would bet this is true, that prosecutors have an ethical obligation to quickly find the names of people incarcerated under the now-invalid statute and have them freed asap.

I'm not a lawyer, just a law student. I'm certainly not agreeing to be your lawyer.

  • You might want to read the underlying opinion. The act took place a year after the law was struck down. – user6726 Jan 10 at 2:39
  • The same principle would apply. – Colin Losey Jan 10 at 3:02
  • @ColinLosey I am rolling back to the version which contains your warning, but I agree with those who think that the warning is not necessary. I am only reluctantly siding with you on this because you are posting under what appears to be your real name. HOWEVER, your continued use of this warning may create an impression that other answers do constitute a degree of legal advice. They do not. – grovkin 1 hour ago
  • @ColinLosey All content on the site is for education purposes only. If you continue posting content which may (in this way) create confusion about the site among uninformed users, you can expect your answer to attract additional downvotes. Education should provide clarity. Anything which increases confusion should undermines that goal. You have some options to consider, but a few users have now warned about this. And I have to side with them even though I am sympathetic to your motives. – grovkin 1 hour ago
  • @grovkin thanks for your advice. – Colin Losey 1 hour ago

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