When laws change between crime and sentencing

[Dunderman]

In the Staff Report about Carlos the Jackal, bibliophage writes:

He was tried and convicted in 1997 for the murders of the two DST agents and Michel Moukharbal in 1975. If he had been caught sooner, he might have faced the guillotine, but France abolished the death penalty in 1981. He instead received the maximum sentence of life in prison.

I imagine this varies from country to country, but I was under the impression that the general principle was that you’re sentenced and punished according to the laws in place when you committed the crime. If France hadn’t had the death penalty in 1975 but reinstated it before Carlos’s trial, that doesn’t mean he could have been sentenced to death, does it?

Or was this simply a matter of it being too much of a hassle to recommission a guillotine that’s been retired for sixteen years?

[robby]

IANAL, but it’s my impression that imposition of the death penalty is generally biased in favor of the defendant.

In other words, if the death penalty is abolished in a given jurisdiction, every offender on death row has their sentence commuted to life in prison. Any defendant facing the death penalty is also off the hook.

On the other hand, even if the death penalty is later reinstated, a defendant is not subject to it unless it was in place at the time of the offense.

[clairobscur]

@Priceguy

I imagine this varies from country to country, but I was under the impression that the general principle was that you’re sentenced and punished according to the laws in place when you committed the crime. If France hadn’t had the death penalty in 1975 but reinstated it before Carlos’s trial, that doesn’t mean he could have been sentenced to death, does it?

Or was this simply a matter of it being too much of a hassle to recommission a guillotine that’s been retired for sixteen years?

@French penal code

ARTICLE 112-1
Conduct is punishable only where it constituted a criminal offence at the time when it took place.
Only those penalties legally applicable at the same date may be imposed.
However, **new provisions are applicable ** to offences committed before their coming into force and which have not led to a res judicata conviction, **when they are less severe than the previous provisions **.

I assume this answer your question, at least regarding France. I wouldn’t know about the principles followed in other countries.

[Lil_Slugger]

@robby

On the other hand, even if the death penalty is later reinstated, a defendant is not subject to it unless it was in place at the time of the offense.

I believe that not only was the death penalty in effect when the Manson Family committed their crimes, but Charlie et. al. were actually sentenced to the gas chamber. Then the death penalty was abolished, and then it was reinstated (wasn’t it?). How come those defendants didn’t wind up back on death row?

[Napier]

In the USA, the constitution says there shall be no ex post facto laws - no laws created after the fact of the crime. But I think this might be limited to criminal law, rather than civil law.

[robby]

@Lil' Slugger

I believe that not only was the death penalty in effect when the Manson Family committed their crimes, but Charlie et. al. were actually sentenced to the gas chamber. Then the death penalty was abolished, and then it was reinstated (wasn’t it?). How come those defendants didn’t wind up back on death row?

Because the current death penalty statute was not in place at the time of the offenses, and the prohibition of ex post facto statutes.

That’s my understanding, anyway–IANAL. Maybe one will come along.

[Northern_Piper]

@Priceguy

I imagine this varies from country to country, but I was under the impression that the general principle was that you’re sentenced and punished according to the laws in place when you committed the crime.

As you note, it will vary with the country. In Canada, the Canadian Charter of Rights and Freedoms takes the same position as the French Code cited by clairobscur (and welcome back, by the way - haven’t seen you posting in a long time!)

11. Any person charged with an offence has the right
    …
    i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

[Northern_Piper]

Can any of our US law-talkin’ Dopers explain the US position on this issue?

According to Findlaw’s Annotation to Article I, s. 9, an increase in the penalty after the fact would violate the ex post facto prohibition:

Every law, which makes criminal an act that was innocent when done, or which inflicts a greater punishment than the law annexed to the crime when committed, is an ex post facto law within the prohibition of the Constitution.

Does the Constitution speak to the issue of a reduction in the penalty between the time the offence was committed and the time sentence is imposed? as an aspect of due process, perhaps? or is this left to Congress to decide when it changes the sentencing law?

[Dunderman]

Giving this a bump in the hope that a law-talkin’ Doper will pass by.

[Gfactor]

@Northern Piper

Can any of our US law-talkin’ Dopers explain the US position on this issue?

According to Findlaw’s Annotation to Article I, s. 9, an increase in the penalty after the fact would violate the ex post facto prohibition:

Yes.

Does the Constitution speak to the issue of a reduction in the penalty between the time the offence was committed and the time sentence is imposed? as an aspect of due process, perhaps? or is this left to Congress to decide when it changes the sentencing law?

Probably not. *See, e.g., * U.S. v. McGlory, 968 F.2d 309; 1992 U.S. App. LEXIS 14262 (3d Cir. 1991):

While the Supreme Court has adopted special rules for determining the retroactivity of judicial decisions announcing new constitutional rules of criminal procedure, see Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 1075-77, 103 L. Ed. 2d 334 (1989) (plurality); Griffith v. Kentucky, 479 U.S. 314, 320-28, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987), and for determining when a statute applied retroactively increases the punishment for criminal acts in violation of the Ex Post Facto Clause of the United States Constitution, see Collins v. Youngblood, 497 U.S. 37, 110 S. Ct. 2715, 2718-24, 111 L. Ed. 2d 30 (1990), those rules do not apply to the Pennsylvania legislature’s decision in enacting the Controlled Substances Act to lessen the penalty for cocaine possession.

Holsey v. Aikens, 1991 U.S. App. LEXIS 19002 (7th Cir. 1991) (“The Ex Post Facto Clause freezes the rules and does not require the state to change them, any more than it would have required the reduction of his term of imprisonment if the state should later have reduced the penalty for murder. Indiana was free to apply a more lenient rule to Holsey, but it did not have to, and it did not choose to.”)

I’ll have to check for cases a bit later for cases where a the penalty is temporarily reduced or eliminated *after * the defendant violates the law and then reinstated *before * the defendant is tried.