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There was a question recently about what happens if I do something that is legal today but becomes illegal in the future. The obvious question is what happens in the opposite case? If I do something today that is a crime by today's laws, and next week the law changes and makes the act legal?

Can I be convicted by a judge for something that is today legal? Where everyone in the court room, including the judge, would be allowed to do it today? Does it make a difference if I got caught before or after the law change? Would a judge have legal leeway (that is it's up to him to decide if I should be prosecuted or not?) If I was already convicted, would I have reasons for an appeal with the argument that my actions are not illegal (anymore)?

  • I assume this is a "has it happened" question, not an "is it theoretically allowed" question. – user6726 Dec 28 '17 at 16:40
  • In the US, it apparently depends on the state. Some jurisdictions go by the law as it existed at the time of the offense; others go by the later, more lenient version. – cHao Dec 28 '17 at 22:34
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    Judges never decide whether someone should be prosecuted (because it does not come before a judge unless there is a prosecution). Do you mean "could a judge dismiss the case sua sponte" or "would a prosecutor decide to press the case" or perhaps something else? – Tim Lymington supports Monica Dec 28 '17 at 22:53
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According to United States federal law, 1 U.S. Code § 109 - Repeal of statutes as affecting existing liabilities:

The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability. The expiration of a temporary statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the temporary statute shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.

So it depends on whether Congress expressly said what to do, and if they didn't say anything, it defaults to being able to still prosecute. But this only applies to federal laws, not state laws.

There's also an exception to this. In United States v. Chambers, 291 U.S. 217 (1934), the Supreme Court said that a prosecution for a violation of the National Prohibition Act could not be continued. However, this was a special case, as the constitutional provision (the 18th Amendment) that allowed the act in the first place had just been repealed (by the 21st Amendment).

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Can I be convicted by a judge for something that is today legal? Where everyone in the court room, including the judge, would be allowed to do it today? Does it make a difference if I got caught before or after the law change? Would a judge have legal leeway (that is it's up to him to decide if I should be prosecuted or not?) If I was already convicted, would I have reasons for an appeal with the argument that my actions are not illegal (anymore)?

Context would matter, but usually, the answer would be yes, you could be convicted, even if you were arrest after the change in the law. The judge would have no say in the matter and this would not generally be a ground for appeal.

For example, suppose that you were charged with failing to honor a curfew imposed in the aftermath of a Hurricane and that curfew has now been lifted. You could still be prosecuted and convicted for violating the curfew.

Similarly, suppose that you are convicted of possessing heroin in 2017, but in 2018 heroin is legalized, and the case against you for possession of heroin is prosecuted in 2019. You could be convicted of heroin possession in 2019 as a matter of federal constitutional law in the U.S., even though many prosecutors would decline to press charges in those circumstances, even though a jury might be inclined to engaged in jury nullification, and even though some state constitutions or state jurisprudence might discourage or forbid this prosecution.

There is something subtly different which doesn't really line up with your question but is easily confused for it.

Suppose that you are convicted of a crime, but after your conviction, a court holds as a binding precedent in another case, that the crime that you were convicted of is unconstitutional or otherwise invalid in your circumstances (e.g. in a U.K. scenario, you are convicted of trespassing on the walkway to someone's front door since that is private property, but a later precedent hold that members of the public are legally entitled to use such a walkway unless there is a "no trespassing" sign posted which no one disputes wasn't present in your case).

As a matter of constitutional U.S. law, your conviction remains valid and you must serve the sentence, if your conviction was final and all appeals had been exhausted when the new court decision was announced unless it was a "new rule" of law rather than a mere interpretation of existing law, but if your conviction was not yet final because post-conviction motions or appeals were still pending, the new rule of law could be utilized to challenge your conviction. Under the U.S. Constitution, "new rules" have retroactive effect, while interpretations of existing law do not.

In France, in contrast, the constitution states that all people convicted of crimes that cease to be crimes under a change in the law, are entitled to benefit from the change in the law.

I don't know what English law says about this question.

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    "Under the U.S. Constitution, "new rules" have retroactive effect, while interpretations of existing law do not." - Do you have a citation for this? I thought that this was determined on a case by case basis depending on the will of the legislature. – D M Dec 29 '17 at 17:00
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    You can find a lengthy analysis in the following 2014 law review article (open access): scholarship.law.wm.edu/cgi/… The leading case is Teague v. Lane, 489 U.S. 288 (1989). – ohwilleke Dec 29 '17 at 21:33
  • Thanks. But Teague has exceptions, and I'm not convinced that the ruling is claimed to be required by the US Constitution, as opposed to just being a pragmatic rule made by the courts for use by the courts. See Griffith v. Kentucky, which Teague cites: "As a practical matter, of course, we cannot hear each case pending on direct review and apply the new rule." – D M Dec 31 '17 at 6:01
  • I'm pretty sure that an English prosecutor would decide that a prosecution for the heroin possession was not in the public interest (and the Attorney General would take over any private prosecution and offer no evidence), but the curfew violation (or a temporary traffic ban for a parade) well be prosecuted. Both the curfew violation and the temporary traffic ban are the expiration of time-limited (secondary) legislation. I can't think of an example where a prosecution under a repealed law would. – Martin Bonner supports Monica Aug 8 at 15:31
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Since this is also tagged UK, there's a different answer there.

In Gouarré Patte v. Andorra, the EHCR decided that the most lenient of laws must be applied. In the actual case, Andorra had merely reduced the possible penalty, but in the hypothetical case posed in the question that would mean no penalty at all would be possible.

Note that this is the EHCR, not the EU/ECJ, so this is not affected by Brexit.

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