KY Supremes to consider retroactivity of "no retreat"
Had the same issue here in AZ. It'd help if drafters of legislation remembered always to include a saving clause. I.e., this legislation applies to events occuring after the effective date, or prosecutions filed after its date, or cases pending on its date, or cases or appeals pending on its date. Just say what it is, and that's it. Leave it open, and anything can happen (most likely the courts find it only applies to events occurring after its date). I did some research a ways back, and found some cases indicating that a loosening of a criminal statute is given broad effect, while a tightening, under the double jeopardy clause, can't be given.
Seems to me it is always constitutionally suspect to convict someone under a criminal statute that has been repealed such that the specific conduct is no longer illegal. For example, if drug prohibition laws were repealed would a lot of people in prison for drug offenses be released? Seems that they should be, at least if their conviction related only to drug possession.
What happened when the 19th amendment repealed the Volstead act? [maybe prohibition was so difficult to enforce nobody was in prison for violation of it!]
Posted by: Flash Gordon at September 1, 2008 01:39 PM
Not necessarily. If it was illegal when you did it, you should not have done it. You violated the law, for which the law provided a stated penalty or punishment. That is quite a different thing than being prosecuted for something that was NOT illegal when you did it, but was subsequently made illegal. That is the very nature of ex post facto laws, which are expressly unconstitutional.
Obviously, as part of legislation repealing a criminal statute, the legislature could provide a mechanism for reviewing prior convictions and/or freeing people convicted under the old law, but the Constitution does not mandate it.
Posted by: Bill at September 3, 2008 11:14 AM