# In jail for something no longer a crime? **URL:** \ **Category:** Factual Questions\ **Created:** [August 1, 2005, 10:08am UTC](https://boards.straightdope.com/t/in-jail-for-something-no-longer-a-crime/315115 "2005-08-01T10:08:27Z")\ **Posts on this page:** 19\ **Page:** 1
**Author:** ![Derleth](https://avatars.discourse-cdn.com/v4/letter/d/b9e5f3/32.png) [@Derleth](https://boards.straightdope.com/u/Derleth)\ **Post date:** [August 1, 2005, 10:08am UTC](https://boards.straightdope.com/t/in-jail-for-something-no-longer-a-crime/315115/1 "2005-08-01T10:08:27Z")
This _should_ be obvious, but the legalistic parts of my brain stand up and shout whenever I try to reason through it. Please bear with me. Imagine that in Foonly County, it’s a crime to oscultate a doxy in public, with a penalty of five years in prison. Fred Bloggs commits this incomprehensible act and is duly arrested, tried, sentenced, and imprisoned. Four months into Fred’s term, someone with more money manages to get that law overturned in a higher court. Given that it’s no longer a crime to oscultate a doxy in public, does Fred Bloggs get to walk free? [ul] [li] **Obviously yes.** It’s a logical impossibility to be in jail for doing something that is not a crime. Thus, Fred would be sprung after four months in the can.[/li][li] **Obviously no.** It’s a legal impossibility to be released without a pardon or an appeal that finds flaw _in the original trial._ Given that the original trial was legally flawless, Fred is staying put absent a note from the governor.[/li][/ul] ---
**Author:** ![Thin\_Lizzy](https://avatars.discourse-cdn.com/v4/letter/t/e9a140/32.png) [@Thin\_Lizzy](https://boards.straightdope.com/u/Thin_Lizzy)\ **Post date:** [August 1, 2005, 10:20am UTC](https://boards.straightdope.com/t/in-jail-for-something-no-longer-a-crime/315115/2 "2005-08-01T10:20:48Z")
I think he would have to be released. ---
**Author:** ![doreen](https://avatars.discourse-cdn.com/v4/letter/d/858c86/32.png) [@doreen](https://boards.straightdope.com/u/doreen)\ **Post date:** [August 1, 2005, 10:27am UTC](https://boards.straightdope.com/t/in-jail-for-something-no-longer-a-crime/315115/3 "2005-08-01T10:27:14Z")
IANAL, but I suspect it would depend on why it’s no longer a crime. If a higher court decided the law was unconstitutional, I think he would have to be released. If a legislature simply changed the law, I’m not so sure. ---
**Author:** ![Inigo\_Montoya](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/inigo_montoya/32/124_2.png) [@Inigo\_Montoya](https://boards.straightdope.com/u/Inigo_Montoya)\ **Post date:** [August 1, 2005, 11:04am UTC](https://boards.straightdope.com/t/in-jail-for-something-no-longer-a-crime/315115/4 "2005-08-01T11:04:29Z")
I wonder if Ex Post Facto (et spiritus sanctum) would apply here? Kinda the reverse of the OP: One day I oscultate a doxy in public, the mayor takes offense, passes a law against such things and then has me arrested for the initial offence. Unconstitutional, I get to walk…but I need to do no more of that osculating business. With doxies. In public. But then, who would? Back to the OP, then. I think you’d stay in the hoosgow. Ya done broke a (presumably constitutional) law and ya done it knowin’ly. You in the klink cuz o dat, not cuz you bin lissnin to hos. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [August 1, 2005, 11:29am UTC](https://boards.straightdope.com/t/in-jail-for-something-no-longer-a-crime/315115/5 "2005-08-01T11:29:19Z")
I suppose the logical place to start such research would be to look for people sentenced to various bootlegging offences in the early thirties, just before prohibition was repealed. Surely there was someone who got a ten-year sentence. Were they released when the 21st Amendment was ratified? ---
**Author:** ![Monty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/monty/32/47_2.png) [@Monty](https://boards.straightdope.com/u/Monty)\ **Post date:** [August 1, 2005, 12:38pm UTC](https://boards.straightdope.com/t/in-jail-for-something-no-longer-a-crime/315115/6 "2005-08-01T12:38:01Z")
> [@Derleth](#): > > Imagine that in Foonly County, it’s a crime to oscultate a doxy in public, If you hadn’t added that t after the l, then you’d be postulating the crime of kissing a woman in public. Five years for that!? Osculate = kiss Doxy = woman Upon reading your OP, I considered how it would be handled for a court-martial conviction. Someone could very well find himself punished for violating the regulation. Now, if the regulation changes after the punishment, said punishment will likely stand as the individual may have been punished for the offense of “violating a lawful general regulation.” ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 1, 2005, 1:16pm UTC](https://boards.straightdope.com/t/in-jail-for-something-no-longer-a-crime/315115/7 "2005-08-01T13:16:18Z")
You get to go home. A conviction may be attacked two ways: directly or collaterally. A direct “attack” is the appeal pocess. Once the appeal process is exhausted, you may, under certain circumstances, collaterally attack a conviction. Most states have a codified post-conviction relief process that limits or replaces the common-law writs that used to serve this function. So, short answer: a person fully anf finally convicted of act which is no longer a crime may file a writ of habeas corpus alleging that he is being held for acts that do not constitute a crime, and gain his freedom. Related question: when the courts change procedural rules, what happens? The OP asks about a change in the law, by the legislature. But what happens if the courts come along with a decision that says, for example, reading a witness’ previous testimony to a jury violates the defendant’s right of confrontation. Obviously, in the case that they’re ruling on, the accused can get a new trial, if the so rule. But what about Joe Schlub, who is serving the tenth year of a 25 year sentence after a trial in which a witness’ prior testimony was read to the jury? Is he out of luck, or doe HE have a Get Out of Jail Free card? Answer: it depends. The general proposition is that if the court’s new rule is merely _procedural_ in nature, persons in the middle of the appeals process will get the benefit of the change. But once their convictions are final, they’re out of luck: procedural rule changes apply prospectively, not retroactively. But if the court has announced a _substantive_ rule of law, or a procedural change that places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe, or defines procedure implicit in the concept of ordered liberty, then the rule is retroactive, and may benefit people even after their conviction has become final. In my example, it’s doubtful that the admission of a certain flavor of hearsay would be implicit in the concept of ordered liberty. So Joe Schlub is probably out of luck. ---
**Author:** ![Revtim](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/revtim/32/1042_2.png) [@Revtim](https://boards.straightdope.com/u/Revtim)\ **Post date:** [August 1, 2005, 1:18pm UTC](https://boards.straightdope.com/t/in-jail-for-something-no-longer-a-crime/315115/8 "2005-08-01T13:18:14Z")
> [@Bricker](#): > > So, short answer: a person fully anf finally convicted of act which is no longer a crime may file a writ of habeas corpus alleging that he is being held for acts that do not constitute a crime, and gain his freedom. Is this ever unsuccesful? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 1, 2005, 1:27pm UTC](https://boards.straightdope.com/t/in-jail-for-something-no-longer-a-crime/315115/9 "2005-08-01T13:27:04Z")
> [@Revtim](#): > > Is this ever unsuccesful? Not to my knowledge, and I can’t imagine how it would be. However, it’s worth pointing out that the onus is on the prisoner to file – the government has no obligation to pore through its records to find persons who may benefit from a retroactive rule change and notify them. ---
**Author:** ![picunurse](https://avatars.discourse-cdn.com/v4/letter/p/7bcc69/32.png) [@picunurse](https://boards.straightdope.com/u/picunurse)\ **Post date:** [August 1, 2005, 2:21pm UTC](https://boards.straightdope.com/t/in-jail-for-something-no-longer-a-crime/315115/10 "2005-08-01T14:21:01Z")
> [@Monty](#): > > If you hadn’t added that t after the l, then you’d be postulating the crime of kissing a woman in public. Five years for that!? > > Osculate = kiss > Doxy = woman > > Upon reading your OP, I considered how it would be handled for a court-martial conviction. Someone could very well find himself punished for violating the regulation. Now, if the regulation changes after the punishment, said punishment will likely stand as the individual may have been punished for the offense of “violating a lawful general regulation.” As spelled, it would be illegal to listen to a woman with a stethoscope in public. ---
**Author:** ![ultrafilter](https://avatars.discourse-cdn.com/v4/letter/u/3d9bf3/32.png) [@ultrafilter](https://boards.straightdope.com/u/ultrafilter)\ **Post date:** [August 1, 2005, 3:23pm UTC](https://boards.straightdope.com/t/in-jail-for-something-no-longer-a-crime/315115/11 "2005-08-01T15:23:38Z")
> [@picunurse](#): > > As spelled, it would be illegal to listen to a woman with a stethoscope in public. Well then, you could just take her stethoscope away and everything would be fine. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 1, 2005, 3:35pm UTC](https://boards.straightdope.com/t/in-jail-for-something-no-longer-a-crime/315115/12 "2005-08-01T15:35:32Z")
> [@Bryan Ekers](#): > > I suppose the logical place to start such research would be to look for people sentenced to various bootlegging offences in the early thirties, just before prohibition was repealed. Surely there was someone who got a ten-year sentence. Were they released when the 21st Amendment was ratified? It’s been a long time since I did any research in this area, but I believe there was a bootleging case that went to the Supreme Court after the passage of the 21st Amendment, and the Court ordered the release of the bootlegger. Afraid I can’t offer a cite for it. Maybe one of our colleagues with access to WestLaw could do so? ---
**Author:** ![Derleth](https://avatars.discourse-cdn.com/v4/letter/d/b9e5f3/32.png) [@Derleth](https://boards.straightdope.com/u/Derleth)\ **Post date:** [August 3, 2005, 5:33am UTC](https://boards.straightdope.com/t/in-jail-for-something-no-longer-a-crime/315115/13 "2005-08-03T05:33:01Z")
> [@picunurse](#): > > As spelled, it would be illegal to listen to a woman with a stethoscope in public. I’ve always spelled that auscultation. **Monty** : I was aware of that. I wanted to pick a nonsense (patently unconstitutional) offense and dress it up in language that would make it more or less unrecognizable. ---
**Author:** ![Cillasi](https://avatars.discourse-cdn.com/v4/letter/c/71e660/32.png) [@Cillasi](https://boards.straightdope.com/u/Cillasi)\ **Post date:** [August 3, 2005, 5:54am UTC](https://boards.straightdope.com/t/in-jail-for-something-no-longer-a-crime/315115/14 "2005-08-03T05:54:45Z")
Interesting question. I would think that if you are criminally convicted of an act that is subsequently decriminalized, your conviction would stand. It was illegal at the time you did it. You may be able to petition for leniency but I have no idea how that process works. It _should_ be a different case if you are criminally convicted under a law that is subsequently held to be unconstitutional. That intimates that what you did should have never been considered a criminal offense and that would make your conviction null and void. I would hope you’d be eligible for a pardon. IANAL, so my suppositions may have no basis whatsoever in reality or the law, but it sounds fair. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [August 3, 2005, 6:01am UTC](https://boards.straightdope.com/t/in-jail-for-something-no-longer-a-crime/315115/15 "2005-08-03T06:01:56Z")
> [@Cillasi](#): > > IANAL, so my suppositions may have no basis whatsoever in reality or the law, but it sounds fair. Thank god you offered up your suppositions. I was worried that, what with having had the correct answer posted over a day earlier, we might not get any more incorrect answers without basis in the law or reality. ---
**Author:** ![Derleth](https://avatars.discourse-cdn.com/v4/letter/d/b9e5f3/32.png) [@Derleth](https://boards.straightdope.com/u/Derleth)\ **Post date:** [August 3, 2005, 7:30am UTC](https://boards.straightdope.com/t/in-jail-for-something-no-longer-a-crime/315115/16 "2005-08-03T07:30:09Z")
> [@Bricker](#): > > The OP asks about a change in the law, by the legislature. No, I asked about a higher court finding the law unconstitutional and overturning it. (I’m guessing this doesn’t change the answer.) I’m glad you provided information for more scenarios, and I’m somewhat saddened by how jury-rigged (ha!) the whole system feels. Specifically, this part: > [@](#): > > However, it’s worth pointing out that the onus is on the prisoner to file – the government has no obligation to pore through its records to find persons who may benefit from a retroactive rule change and notify them. That kind of annoys me. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [August 3, 2005, 8:08am UTC](https://boards.straightdope.com/t/in-jail-for-something-no-longer-a-crime/315115/17 "2005-08-03T08:08:25Z")
> [@Cillasi](#): > > Interesting question. I would think that if you are criminally convicted of an act that is subsequently decriminalized, your conviction would stand. It was illegal at the time you did it. That is the position in Canada. The [Interpretation Act](http://laws.justice.gc.ca/en/I-21/79457.html#section-43) provides: > [@](#): > > **43.** Where an enactment is repealed in whole or in part, the repeal does not > > … > > (d) affect any offence committed against or contravention of the provisions of the enactment so repealed, or any punishment, penalty or forfeiture incurred under the enactment so repealed… ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 3, 2005, 11:07am UTC](https://boards.straightdope.com/t/in-jail-for-something-no-longer-a-crime/315115/18 "2005-08-03T11:07:05Z")
> [@Derleth](#): > > No, I asked about a higher court finding the law unconstitutional and overturning it. (I’m guessing this doesn’t change the answer.) I’m glad you provided information for more scenarios, and I’m somewhat saddened by how jury-rigged (ha!) the whole system feels. I answered that here: > [@Bricker](#): > > But **if the court has announced a substantive rule of law** , or a procedural change that places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe, or defines procedure implicit in the concept of ordered liberty, then the rule is retroactive, and may benefit people even after their conviction has become final. Overturning an act as unconstitutional is a “substantive rule of law.” That change is retroactive. See _Teague v. US_. ---
**Author:** ![Derleth](https://avatars.discourse-cdn.com/v4/letter/d/b9e5f3/32.png) [@Derleth](https://boards.straightdope.com/u/Derleth)\ **Post date:** [August 3, 2005, 11:40am UTC](https://boards.straightdope.com/t/in-jail-for-something-no-longer-a-crime/315115/19 "2005-08-03T11:40:01Z")
**Bricker** : Thank you again, then. 🙂 I was confused by the terminology, I suppose.