If the legislature passes a law making wearing red socks a felony and specifying a penalty of 10 years in jail upon conviction and then repeals it the next year, would those found guilty of wearing red socks go free or would that be up to the governor/president? Would they be considered felons?
Thanks,
Rob
Well, the legislature could draft the law so that it mandates the release of those incarcerated for the no-longer-criminal offense. But if they didn’t do that, then yah - it’s up to the governor, or the President for federal crimes.
On the flip side, a criminal law that had been struck down by a state Supreme Court, or US SCOTUS, normally would give prisoners a chance to get out immediately (for suitable values of “immediately”). I’d have to check to see how that would work, though - I’d assume the prisoners would file habeus motions? Have any LawDopers actually done this?
Would it be considered a bill of attainder to craft a law whose definition was so narrow as to only apply to one person? For example, “It shall be a state jail felony with penalty not exceeding 50 years for any male adult to intentionally occupy the dwelling at 1234 Main St. Austin, TX 78701.” The legislature passes the bill and upon conviction of the intended person, immediately repeal the law. I can see 8th Amendment issues with putting someone in jail for 50 years for living in their house, but would it violate the Bill of Attainder clause?
Thanks,
Rob
Sounds to me like a due process clause violation, and possibly also equal protection. Granted it was a duly passed statute, a law must afford a law-abiding citizen opportunity to abide by it. To parallel your point, think of condemnation proceedings – their effect is to make it illegal to reside at a given residence (etc., depending on what is being condemned), but they afford a time period to comply with the law by relocating. As for equal protection, laws which cause injury (in the legal sense) to one or more persons must have a rational basis. Not necessarily a good one – the courts are extremely deferential to what the legislature deems a rational basis. It’s extremely rare for a law to be struck down on the rational basis test, but it has happened (cf. Romer v. Evans).
But what if the legislature has already appealed the law? Can the court strike down a law that no longer exists?
Thanks,
Rob
Rob: Yes, for the precise reason you gave. Even though the law has been repealed, it was putatively valid law prior to the repeal, people were convicted under it, or expended money they would not otherwise have spent in that way to bring themselves in compliance with it. etc. People are entitled to relief from its past actions. There may even be people awaiting trial based on it – who could be convicted, if they broke it prior to its repeal.
Note the difference. A repealed law was valid law before its repeal, and remains valid law prior to its repeal after it, if you see what I mean. A law found unconstitutional or otherwise invalid was never valid law, even though it was thought to be so.
If a criminal law is repealed, do violators go free?
Dunno about other jurisdictions, but not in Canada, no.
The federal Interpretation Act provides:
New laws normally take effect prospectively, not retroactively. Same rule applies to the repeal of a previous law.
Now, it’s open to Parliament to provide a specific rule for a particular case, and to provide that the repeal is retroactive, but the general rule is that repeal doesn’t have retroactive effect.
For federal criminal laws, the most cited case on this topic is Tinder v. U.S., 345 U.S. 565 (1953).
No. A Bill of Attainder must deny the right to a trial.
“Legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a trial, are ‘bills of attainder’ prohibited under this clause”
US v. Lovett
What you would have would be a equal protection clause issue:
"…the Seventh 564 Circuit reversed, holding that a plaintiff can allege an equal protection violation by asserting that state action was motivated solely by a “spiteful effort to "get" him for reasons wholly unrelated to any legitimate state objective.'" 160 F. 3d 386, 387 (1998) (quoting Esmail v. Macrane, 53 F. 3d 176, 180 (CA7 1995)). It determined that Olech's complaint sufficiently alleged such a claim. 160 F. 3d, at 388. We granted certiorari to determine whether the Equal Protection Clause gives rise to a cause of action on behalf of a "class of one" where the plaintiff did not allege membership in a class or group.[li] 527 U. S. 1067 (1999).[/li] Our cases have recognized successful equal protection claims brought by a "class of one," where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. See Sioux City Bridge Co. v. Dakota County, 260 U. S. 441 (1923); Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty., 488 U. S. 336 (1989). In so doing, we have explained that "[t]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.’” Sioux City Bridge Co., supra, at 445 (quoting Sunday Lake Iron Co. v. Township of Wakefield, 247 U. S. 350, 352 (1918)).
That reasoning is applicable to this case. Olech’s complaint can fairly be construed as alleging that the Village intentionally demanded a 33-foot easement as a condition of connecting her property to the municipal water supply where the Village required only a 15-foot easement from other similarly situated property owners. See Conley v. Gibson, 355 U. S. 41, 45-46 (1957). The complaint also alleged that the Village’s demand was “irrational and wholly arbitrary” and that the Village ultimately connected her property after receiving a clearly adequate 15-foot easement. These allegations, quite apart from the Village’s subjective motivation, are sufficient to state a claim for relief under traditional equal protection analysis. We therefore affirm the judgment of the Court of Appeals, but do not reach the alternative theory of “subjective ill will” relied on by that court."
Village of Willowbrook et al. v. Olech
In a criminal case, the court would probably treat the gov’t much more harshly than in a zoning case, so the chance of a conviction on your law standing up is basically zero. (A good thing)