We just had a question about what happens to convicts if a law is repealed.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
    Commented Dec 18, 2015 at 21:36
  • 1
    @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
    Commented Dec 18, 2015 at 22:43

3 Answers 3


Generally speaking if it is substantively unconstitutional for the government to punish a certain kind of criminal conduct, then this provides a basis for a "collateral attack" on the conviction to set it aside (in a post-conviction motion in state or federal court), even if the criminal defendant serving a sentence has already appealed the conviction directly (i.e. to the court of appeals and all higher appellate court that review that court of appeals) to the fullest extent possible and lost.

But this is not self-executing. Someone has to file a court case on behalf of the person incarcerated to make it happen. It does not generally entitle the criminal defendant to compensation for wrongful incarceration or to a return of fines paid, although it would end the authority of the state to incarcerate the individual going forward or the compel that individual to pay the balance of unpaid fines.

There might be a right to have the case sealed, but the ruling does not automatically remove the conviction from the criminal record of the defendant. And, getting the case sealed is likely to be harder in the circumstance where all of the sentence for the unconstitutional offense has been fully served.

When a past conviction does not meet the standards of current law from a procedural context, in contrast, this may be raised in pending direct appeals, but is rarely something that can be brought up in a post-decision collateral attack on the conviction unless certain other exceptions apply (e.g. sometimes if a collateral attack pending before the decision is still pending at the time of the decision or in certain extraordinary cases involving due process concerns that cast deep doubt on the validity of all convictions obtained by that means), and even in cases where it is set aside, does not pose a double jeopardy bar against a new prosecution for the crime that meets the appropriate procedural standards.

The U.S. Supreme Court is currently considering the proper treatment under these rules of its holding that non-unanimous juries were an unconstitutional manner by which to convict someone of a felony, which is a procedural rule, but may fall within the exception that makes the new rule retroactive anyway.

For cases on direct review, a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past Justice Harlan's habeas approach was first adopted by a plurality in Teague v. Lane and then by the Court in Penry v. Lynaugh. Thus, for collateral review in federal courts of state court criminal convictions, the general rule is that new rules of constitutional interpretation—those not 'dictated by precedent existing at the time the defendant's conviction became final'—will not be applied. However, [a] new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a 'watershed rul[e] of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding. Put another way, a new rule will be applied in a collateral proceeding only if it places certain kinds of conduct beyond the power of the criminal law-making authority to prescribe or constitutes a new procedure[ ] without which the likelihood of an accurate conviction is seriously diminished. In Montgomery v. Louisiana, the Court extended the holding of Teague beyond the context of federal habeas review, such that when a new substantive rule of constitutional law controls the outcome of a case, state collateral review courts must give retroactive effect to that rule in the same manner as federal courts engaging in habeas review.

As a result, at least with regard to the first exception, the Court has held that the Teague rule is constitutionally based, as substantive rules set forth categorical guarantees that place certain laws and punishments beyond a state’s power, making the resulting conviction or sentence . . . by definition . . . unlawful. In contrast, procedural rules are those that are aimed at enhancing the accuracy of a conviction or sentence by regulating the manner of determining the defendant’s guilt. As a consequence, with respect to a defendant who did not receive the benefit of a new procedural rule, the possibility exists that the underlying conviction or sentence may still be accurate and the defendant’s continued confinement may still be lawful under the Constitution. In this vein, the Court has described a substantive rule as one that alters the range of conduct that the law punishes, or that prohibits a certain category of punishment for a class of defendants because of their status or offense. Under the second exception it is not enough under Teague to say that a new rule is aimed at improving the accuracy of a trial. More is required. A rule that qualifies under this exception must not only improve accuracy, but also alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.

From here.


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.

  • 8
    "I seriously doubt the courts would ever invalidate a crime that has been such since time immemorial": Sodomy?
    – phoog
    Commented Nov 28, 2018 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. Commented Oct 22, 2020 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
    Commented Nov 18, 2015 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" Commented May 22, 2016 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
    Commented Nov 28, 2018 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
    Commented Nov 30, 2018 at 14:49

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