Hello Everyone,
Marijuana had been illegal, but recently some states have made possession and use of it legal. What happens to those arrested and charged when it was illegal? If you were arrested for possession and two weeks later the law was changed, do you still go to trial or would the charges be dropped?
The cases that were pending were dropped. If you were already convicted…*Sad Trombone. * However, there’s some talk of early releases.
Legally, you can still be tried and convicted. There might be a policy decision to drop all pending charges. There might be a further policy decision to release anyone still serving time, or to remit fines imposed but still unpaid. There might even be a further policy decision to issue pardons to those convicted, though I think that would be fairly unusual. Legally, though, none of these things follow from a change in the law.
It would be much the same as if you were charged with breaking a speed limit and the limit on that road was subsequently raised. Any convictions would stand because at the time you were stopped you were breaking the law.
A sovereign can make a law Retrospective, yes, but if it is not included in the new law, similar to a Grandfather Clause, the Prosecutor can then make the decision to drop charges or not.
This doctrine you speak of is “similar” in nature to Johnson;
United States v. Johnson, USSC, 1982;
Held : A decision of this Court construing the Fourth Amendment is to be applied retroactively to all convictions that were not yet final at the time the decision was rendered, except where a case would be clearly controlled by existing retroactivity precedents. Hence, Payton is to be applied retroactively to respondent’s case.
How has this played out in terms of other legalizations? How long was it after the US Civil War before everyone who was then in prison for helping runaway slaves either died, finished their sentences, or received unconditional releases or pardons? Was there anyone still serving a bootlegging rap in 1935? Had all abortion offenders from before Roe v. Wade been released by 1995? Are there any still serving sentences? I can imagine what it might like to report to a parole officer in Blue-state land every month today because of your 1970 abortion conviction for which you were sentenced to 50 years. “Are you continuing to live a law-abiding life? Are you working on changing your beliefs and attitudes that caused your crime?”
True, but speed limit laws do not typically involve issues of morality that trigger high emotions. Most people today would consider old laws that banned abortion to be immoral and that anyone still serving a sentence on such a charge deserves to be rescued and protected. Not so with speed limit offenders.
You can’t convict someone of illegal marijuana usage if marijuana was legal when he smoked it, so why could you release/exonerate someone for marijuana usage if marijuana was illegal when he smoked it?
It’s ex post facto either way.
I think that each case has to be decided on its own merits. I could see the argument for keeping a guy doing time for bootlegging in jail in 1935. Even though the nation saw the need for repealing the law, it doesn’t change the fact that the guy knowingly and willfully violated a valid law at the time he committed his crime. We might all disagree with certain laws but we have an obligation to follow them unless or until they are repealed.
The abortion law is a little trickier. Roe v. Wade decided that abortion was a constitutional right. Therefore all laws which completely proscribed the conduct were passed in violation of the constitution, those states had no power to pass them, and as such they should be considered void ab initio. If the 14th amendment was the source of the right to an abortion, then any law enacted from 1868 to the present was done without lawful authority from the state. Any that were in effect prior to 1868 lost their status of lawful authority in that year.
So, if one was convicted under a law that is found to be invalid from the start, then I don’t see a good policy for allowing those convictions to stand.
True, but prosecutors could decide, for people whose charges are still pending trial, to cease prosecuting such cases as an exercise of their prosecutorial discretion. They would not be legally required to decide that way, though.
Legally, it depends on whether the law was simply repealed or found to be unconstitutional. In the latter case, the “law” was never valid law at all. In the former case, the law was still valid at the time somebody broke it, and it’s entirely a matter of discretion whether or not the state grants pardons or drops charges (most likely they would, but not necessarily).
I think this is on track. Prohibition appears to have been quite constitutional and the decisions that brought about its downfall were political in nature due to changing opinions on how the country should be run. The legalization of abortion was due to a court case establishing that abortion was not something that the states could legally ban. So there is probably a difference.
But yes, as mentioned above, prosecutorial discretion probably goes a long way to enforcing the true community standards of morality. Virginia had criminal statutes against fornication and adultery for years. Even though they were eventually ruled unconstitutional, they went unenforced for years, if not decades, before because police and prosecutors knew that they would face condemnation from the community if they actually went and busted Lovers’ Lane and filed charges against all the amorous couples. Society had already passed judgment on it as something that wasn’t really a crime, and virtually everyone had done it or was doing it.
President Thomas Jefferson pardoned several people convicted and/or imprisoned under the Alien and Sedition Acts when he came to office in 1801, and had their fines repaid from the U.S. Treasury. The Acts were allowed to expire.
As a nitpick…this isn’t really true. Several states have removed their state laws that criminalize marijuana, but the federal laws are still valid, and marijuana possession and use are still illegal. States do not have the ability to legalize marijuana short of passing a US constitutional amendment. All they can do is remove one layer of criminalization.
However, since the federal government is opting not to enforce their own laws, the question still makes sense at the state level.
Federal restraint on this issue might last only until the next President takes office.
While it is true the Feds can go after marijuana growers/sellers - and perhaps even buyers - most of the front line in law enforcement is local - so most cases aren’t going to get prosecuted. But marijuana is slightly different - since they are (from my understanding) licensed and such. So it would be easy for the Feds to go after those selling them - as they probably could draw up a warrant with just using the internet - and maybe a few controlled buys.
That risks pissing off that entire state - as many people equate decriminalization with legalization.
Of course I’m guessing many of those states won’t vote republican anyway - so maybe they won’t give a shit.
But in general - I agree with what others have posted - if a law is simply changed by the legislature - it was still illegal to do so when it was done. In cases like the marijuana laws - a street dealer might be kept behind bars for other reasons (tax evasion for one).
But in general if we are talking relatively the same crime - a buyer of marijuana for example - you kinda look like a dick prosecuting someone for something that is no longer illegal. In most cases I would expect most prosecutors to either drop the charges or reach some sort of probation plea deal. They don’t have to. As far as people getting out of prison - I don’t know what they would do there.
In general I don’t think most jurisdictions give the ability for prosecutors to let people out. I mean they do - but you have to go post conviction procedures, Corum Nobis, or some other route usually. There would be nothing (in most states) to prevent a governor from pardoning/commuting the sentence of everyone convicted of such a crime.
That’s also not a particularly good analogy because the law is that you can’t go faster than the posted limit. If the posted limit changes, you were still going faster than what was posted at the time so obviously you’d still be on the hook. If they just abolished the speed limit law altogether in some sort of bout of legislative madness, it’s quite possible they would vacate all pending traffic tickets (although like the others said they don’t have to.)
Actually, the jurisdiction of the Federal government is limited by the Constitution and in theory, Federal laws only apply in cases involving interstate commerce, Federally owned land, the Post Office, the armed services, and a few other things that the Constitution specifically placed under the Federal government. The rest is supposed to be up to the states and it should, in theory, be fully legal to possess marijuana if it is legal under state law as long as you possess it in a way so as to not affect interstate commerce, the post office, etc.
The problem is, of course, is that our obsessive-compulsive SCOTUS basically decided that taking a shit in the woods affects interstate commerce because it could possibly cause a farmer downriver to order slightly less fertilizer off of Amazon .com next month and the fertilizer might be shipped from another state (meaning that interstate commerce was affected because not as much fertilizer crossed state lines than would otherwise have crossed). No proof is actually necessary that Farmer Bill did in fact order a different amount than he otherwise would have - it’s logically possible that it could happen, so full Federal jurisdiction applies.