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Decoligny
10-05-2009, 9:22 AM
Had an interesting thought and I am not sure what the real answer is.

Assuming that SCOTUS rules in our favor in the Chicago case, and incorporation goes nationwide, it is probable that a lot of the current gun laws will be challenged and overturned.

What happens to those already convicted and in prison for violation of those laws? Since the laws themselves are basically being ruled unconstitutional, would these prisoners be released and have their records cleared?

wash
10-05-2009, 9:25 AM
I'm pretty sure the answer is no.

kdm
10-05-2009, 9:29 AM
I agree with wash. Consider old convictions "grandfathered"...based on the rulings of the time, it would stand.

mmartin
10-05-2009, 9:46 AM
I wouldn't think they'd get automatically dropped, but could you challenge them individually based on the law being ruled unconstitutional?

and does each unconstitutional law have to be challenged based on the new ruling? or do the laws get automatically dumped? and who decides which ones get dumped and which don't?

megan

Gray Peterson
10-05-2009, 9:54 AM
I don't know what the FRAP procedure is for this, but it's possible, *maybe* to have a writ of coram nobis filed to vacate a conviction. The only time I remember ever being used is by Fred Korematsu, of the Korematsu v. United States case in 1943.

Decoligny
10-05-2009, 9:55 AM
I wouldn't think they'd get automatically dropped, but could you challenge them individually based on the law being ruled unconstitutional?

and does each unconstitutional law have to be challenged based on the new ruling? or do the laws get automatically dumped? and who decides which ones get dumped and which don't?

megan

I am pretty sure that some laws will simply just be dropped by some State or local governments, but some of them will probably act like D.C. and not let go without a temper tantrum and the associated kicking and screaming, and additional litigation.

I think once a law is challenged by an inmate, and the inmate wins, all other inmates convicted under that particular law would also be entitled to have their conviction overturned.

radioman
10-05-2009, 10:06 AM
I think under federal law they would stand, but under state law they could fall, as unconstitutional, this will make a mess in the lower courts, I hope 12031 goes away.

wash
10-05-2009, 10:09 AM
Assuming that we get incorporation through the McDonald case, I think you could challenge a conviction for possession of an unregistered gun in Chicago.

Beyond that, you would need to get a law thrown out, then challenge.

In CA, the roster and our CCW system are a couple of our first targets. I don't think anyone has been convicted for violating the roster. CCW will fall in to the area of reasonable restrictions if it's shall issue so I doubt a CCW conviction would get thrown out.

CHS
10-05-2009, 10:10 AM
The way I understand it, the convictions will stand unless challenged.

When challenged they should easily and successfully be able to get them overturned and released from jail/prison.

tgriffin
10-05-2009, 10:26 AM
My understanding is if the incident occurred while the act was illegal, the conviction stands regardless of whether the law is later changed.

kermit315
10-05-2009, 10:31 AM
My understanding is if the incident occurred while the act was illegal, the conviction stands regardless of whether the law is later changed.

I agree. My only caveat to that is if it were ruled as illegal, yet that law was found to be illegal in and of itself, you might have a case to get it dropped.

If the convictions werent open to challenge at that point, it would be like the state "profiting" from a crime.

Profit is money/inmate, crime is putting an illegal law on the books and convicting people under it.

JMO.

demnogis
10-05-2009, 12:02 PM
I'm sure that with enough time and legal resources the conviction could be appealed and a new decision found.

GuyW
10-05-2009, 12:32 PM
I'm pretty sure the answer is no.

But new legislation CAN say YES....

.

bohoki
10-05-2009, 1:01 PM
it sure would suck being in jail for helping runaway slaves the day after the emancipation proclamation and still having to serve your sentence

GrizzlyGuy
10-05-2009, 1:30 PM
What happens to those already convicted and in prison for violation of those laws? Since the laws themselves are basically being ruled unconstitutional, would these prisoners be released and have their records cleared?

Those folks could request a pardon from the governor:

http://www.shouselaw.com/governor-pardons.html

1859sharps
10-05-2009, 2:05 PM
It is my limited legal understanding that if a law is considered unconstitutional and you are convicted of a crime based on that now unconstitutional law you don't automatically get your conviction repealed. Unless you are the case that got the law repealed.

But, the unconstitutional ruling gives you a whole new life on appeals depending on the circumstances of what led to your arrest and conviction. you might get your conviction over turned and record cleared, but will have to get a lawyer to help get your case reviewed.

For example, I am convicted of having an un registered assault weapon. I have no other crimes, was not committing a robbery, murder etc. simply owning an un registered assault weapon in California and now I have a felony on my record and may or may not be serving jail time. California's assault weapons law is ruled unconstitutional in whole. I could more then likely successfully appeal and get my record cleared of the felony. But if only part is ruled unconstitutional, it would depend on a whole lot of what ifs that will have to be taken on a case by case basis.

just my limited understanding of what happens when a law is ruled unconstitutional.

yellowfin
10-05-2009, 2:29 PM
A mitigating factor is that gun charges are comparatively rarely isolated to just that, so it's hard to not have a US v. Crackhead making things impossible for the few(er) deserving cases like UOC unknowingly within 998 feet of a school zone.

bernieb90
10-05-2009, 2:45 PM
It works both ways. If you commited an act when a law didn't exist or commited a crime when penalties were less strict you can only be held to those standards that existed at the time the act was commited. That is why Manson didn't get the death penalty, it did not exist at the time the crimes were commited.
I do think that you would have a very strong basis for an appeal would have a good chance of having the conviction overturned. The fact of the matter is that a crime was commited given the interpretation of the constitution at that time so don't expect any apologies.

M1A Rifleman
10-05-2009, 3:26 PM
When the speed limit on I-5 was raised to 70 mph, were speeding tickets based upon the old limit of 55 up for repeal and reconsideration?

Answer, NO.

M1A Rifleman
10-05-2009, 3:29 PM
That is why Manson didn't get the death penalty, it did not exist at the time the crimes were commited.
.

I think your wrong here. Manson DID get the DP. It was later changed to life when the DP was found unconsitutional in CA and also with the help of the Gov - Jerry Brown I believe.

radioman
10-05-2009, 3:35 PM
M1A Rifleman you are right about Manson, I was in hi school at the time and found it odd that Manson would luck out like that.

M1A Rifleman
10-05-2009, 3:40 PM
M1A Rifleman you are right about Manson, I was in hi school at the time and found it odd that Manson would luck out like that.

Yea, it burns me every time I watch the bio of his 1968 crimes on the History Channel and it mentions he was let off the DP in favor of life. :banghead:

kermit315
10-05-2009, 5:21 PM
When the speed limit on I-5 was raised to 70 mph, were speeding tickets based upon the old limit of 55 up for repeal and reconsideration?

Answer, NO.

55mph speed limit was not found to be unconstitutional, thats the difference.

Riodog
10-05-2009, 6:05 PM
It works both ways. If you commited an act when a law didn't exist or commited a crime when penalties were less strict you can only be held to those standards that existed at the time the act was commited. That is why Manson didn't get the death penalty, it did not exist at the time the crimes were commited.
I do think that you would have a very strong basis for an appeal would have a good chance of having the conviction overturned. The fact of the matter is that a crime was commited given the interpretation of the constitution at that time so don't expect any apologies.

If I remember correctly, Manson was given the death penalty but Chief idiot Rose Bird dumped all death penalties and they were given life sentences in-loo. Since that time they have found the death penalty to be just dandy...
Rio

1859sharps
10-05-2009, 6:23 PM
When the speed limit on I-5 was raised to 70 mph, were speeding tickets based upon the old limit of 55 up for repeal and reconsideration?

Answer, NO.

this is a little different. speeding is an infraction at best.

We are talking felonies. If a law is ruled unconstitutional, then you were possibly wrongfully charged and convicted. that has to be addressed. But I think you as the one convicted have to initiate it in most cases.

snobord99
10-05-2009, 7:21 PM
I'm 100% sure they won't let you out unless you at least initiate. That said, I'm fairly certain you're not getting out even if you do initiate. Two words: res judicata.

If the statute you were convicted under was unconstitutional, the general thought is that you should have challenged it. If you don't or if your appeals fail, the decision is final. I did some research into it and couldn't find anything on point. I'm guessing this doesn't come up often, res judicata is pretty well established. I'll keep digging, but I'm not sure if I'll find anything directly on point.

Telperion
10-05-2009, 8:54 PM
I agree with wash. Consider old convictions "grandfathered"...based on the rulings of the time, it would stand.


I'm 100% sure they won't let you out unless you at least initiate. That said, I'm fairly certain you're not getting out even if you do initiate. Two words: res judicata.

O RLY?

"All laws which are repugnant to the Constitution are null and void." - Marbury v. Madison

"An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; creates no office. It is as inoperative as though it had never been passed." - Norton v. Shelby County

snobord99
10-05-2009, 9:09 PM
O RLY?

"All laws which are repugnant to the Constitution are null and void." - Marbury v. Madison

"An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; creates no office. It is as inoperative as though it had never been passed." - Norton v. Shelby County

Good job. Now find me a case where "It is as inoperative as though it had never been passed" was interpreted to mean that it applies to previously finalized cases also. The point of res judicata is that the decision is final. Final means it can't be changed.

Again, I'm not 100% certain about this and haven't been able to find any cases directly on point. I'm still looking, but every case I've seen so far that even touch upon a statute being found unconstitutional has been one where the statute was found unconstitutional prior to final adjudication.

I'm looking at 28 U.S.C. 2254 right now. Hopefully that'll lead me somewhere. Subsection (d) is somewhat indicative, but I still have no clear answer.

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Telperion
10-05-2009, 9:47 PM
IIRC several convictions in sodomy cases were overturned after Lawrence v. Texas was decided. Is this what you mean by "finalized"? As you note habeus petitions are an option if the courts will no longer hear appeals.

snobord99
10-05-2009, 10:18 PM
IIRC several convictions in sodomy cases were overturned after Lawrence v. Texas was decided. Is this what you mean by "finalized"? As you note habeus petitions are an option if the courts will no longer hear appeals.

I have no idea about these Lawrence v. Texas cases. What I mean by finalized is basically have all the normal appeal routes been used? As in, convicted, new trial denied, and appeal denied or claim rejected by appeals court. That could mean SCOTUS or another lower court with the appellate power declined to hear or rejected the claim. In other words, is there anywhere else the defendant could appeal to? And habeas relief doesn't count as an appeal.

But, I think I found the applicable case. Teague v. Lane, 489 U.S. 288. I'll be reading that now. I've only looked at the case summary and its history so far and it looks like it's directly on point and this (along with its progeny) is the current law on the issue.

leelaw
10-05-2009, 10:38 PM
My understanding is that the conviction will stand. An appellate court will be concerned with procedural issues regarding the first case, not having to do with the current case law.

bernieb90
10-05-2009, 10:39 PM
I think your wrong here. Manson DID get the DP. It was later changed to life when the DP was found unconsitutional in CA and also with the help of the Gov - Jerry Brown I believe.


I stand corrected I blame all my mistakes on that crazy rock and roll musak, however the point still remains that he can't be re-sentenced because the death penalty is now constitutional (Now that is a shame).

snobord99
10-05-2009, 11:44 PM
Ok, I read the Teague plurality and have concluded that the convictions will probably stand. There are 2 exceptions where a collateral review may be applied retroactively, but I don't think these will meet either of those exceptions. I could be wrong, I didn't read Teague's progeny, but based on Teague itself, I say the convictions will stand.

There are other ways to distinguish Teague from what we're talking about here, but I don't think the distinguishing characteristics will be enough.

E Pluribus Unum
10-06-2009, 8:59 AM
When the speed limit on I-5 was raised to 70 mph, were speeding tickets based upon the old limit of 55 up for repeal and reconsideration?

Answer, NO.

That is not a fair analogy. In that case the law was CHANGED, not overturned.


What if California passed a law making it illegal to go to church.

You were seen entering a church and charged. You didn't have money to fight it so you plead guilty for going to church. You then served 1 year of a 4 year sentence when Tom Cruise gets busted for going to a Scientology event. He fights it to the supreme court and the law is overturned as unconstitutional because it violates your 1st amendment right of freedom of religion.

Why then should you not be immediately released? Why then should you have a criminal record when it was the LAW that violated your right to freedom of religion?

I say we are not bound to follow unconstitutional laws. By their very nature, they violate the rights of those that do. No man should be penalized after the fact when the law is found to be a violation of the constitution.

cineski
10-06-2009, 9:17 AM
The issue is these people broke the law as it stood at the time they broke it.

demnogis
10-06-2009, 10:04 AM
Let's make a fair and easy-to-understand analogy that would hit closer to home in this forum.

California has no 2nd Amendment RKBA. CA Legislature hurries through a law making it illegal to own or possess a firearm at all places. People start getting charged, plead no contest. They start serving their first years in multi-year sentences.

Someone comes forth and challenges the bad law. CA overturns bad law as unconstitutional. Do those in jail/prison for the same charge get to go free?

That is not a fair analogy. In that case the law was CHANGED, not overturned.


What if California passed a law making it illegal to go to church.

You were seen entering a church and charged. You didn't have money to fight it so you plead guilty for going to church. You then served 1 year of a 4 year sentence when Tom Cruise gets busted for going to a Scientology event. He fights it to the supreme court and the law is overturned as unconstitutional because it violates your 1st amendment right of freedom of religion.

Why then should you not be immediately released? Why then should you have a criminal record when it was the LAW that violated your right to freedom of religion?

I say we are not bound to follow unconstitutional laws. By their very nature, they violate the rights of those that do. No man should be penalized after the fact when the law is found to be a violation of the constitution.

CHS
10-06-2009, 10:09 AM
Someone comes forth and challenges the bad law. CA overturns bad law as unconstitutional. Do those in jail/prison for the same charge get to go free?

No, not unless they challenge the charges.

demnogis
10-06-2009, 10:14 AM
I know the answer, I was just restating the question in more relevant terms...

E Pluribus Unum
10-06-2009, 10:16 AM
Let's make a fair and easy-to-understand analogy that would hit closer to home in this forum.

California has no 2nd Amendment RKBA. CA Legislature hurries through a law making it illegal to own or possess a firearm at all places. People start getting charged, plead no contest. They start serving their first years in multi-year sentences.

Someone comes forth and challenges the bad law. CA overturns bad law as unconstitutional. Do those in jail/prison for the same charge get to go free?

I specifically avoided the gun issue. Even amongst the gun ownership crowd, there are those that believe everyone should follow the "law of the land" regardless of what it says. They are the ones that would have been loyal to King George in the 1700's. There are those that would turn their guns in if the law required it. There are those that don't feel as passionately and will not fight with their lives for the right to possess them. The gun issue is "too close to home."

Whether religious or not, most people recognize the constitutional right to practice whatever religion they choose. They recognize that there are those that would die for the belief in God. The first amendment is just as important as the second. I wanted to use an example that everyone agrees is a fundamental constitutional right.

You will find that when trying to make a persuasive argument for a cause that is controversial, it is good to draw parallels with issues that are established. First amendment protections were fought many years ago and are very established. Drawing conclusions and parallels based on the first strengthens the second amendment argument.


I know the answer, I was just restating the question in more relevant terms...

I would argue that there is nothing more relevant to the incorporation of the second amendment, then the previous decisions regarding incorporation to the other amendments. There is also nothing more relevant than the security of a second amendment constitutional right than the previous fight for a first amendment right.

Fjold
10-06-2009, 10:19 AM
I think your wrong here. Manson DID get the DP. It was later changed to life when the DP was found unconsitutional in CA and also with the help of the Gov - Jerry Brown I believe.


If I remember correctly, Manson was given the death penalty but Chief idiot Rose Bird dumped all death penalties and they were given life sentences in-loo. Since that time they have found the death penalty to be just dandy...
Rio

Jerry Brown and Rose Bird had nothing to do with the suspension of the death penalty that commuted Charles Manson's sentence to life.

The death penalty as applied by most States was ruled unconstitutional by SCOTUS on June 29, 1972, the Supreme Court effectively voided 40 death penalty statutes, thereby commuting the sentences of 629 death row inmates around the country and suspending the death penalty because existing statutes were no longer valid.

kermit315
10-06-2009, 10:47 AM
The issue is these people broke the law as it stood at the time they broke it.

Its not so black and white as that if the law itself was unconstitutional. It should never have been allowed to be a law in the first place. That being said, voiding an unconstitutional law should automatically reverse the sentences of those in prison because of that law.

If the law was just changed, thats one thing. But to nullify the law altogether is a whole different beast.

E Pluribus Unum
10-06-2009, 11:26 AM
Its not so black and white as that if the law itself was unconstitutional. It should never have been allowed to be a law in the first place. That being said, voiding an unconstitutional law should automatically reverse the sentences of those in prison because of that law.

If the law was just changed, thats one thing. But to nullify the law altogether is a whole different beast.

Legislators can pass any law they want to. There are all kinds of unenforceable laws on the books. During the days of the Jim Crow laws, it was illegal for a black man to be out passed 10pm. When the supreme court ruled them unconstitutional, those laws were still on the books, but they were unenforceable.


I know this is way outside logic, but bare with me.

Let's say that congress decides, in order to fix the medicare problem, they pass a law requiring all people older than 80 years old to move to Mexico. The day after it takes effect, they start arresting people that are 80+ years old. Then the law is found unconstitutional. Would you expect those people to stay in prison because at the time, it was illegal to be 80+ years old?

I take it to the extreme to show my point. If the law was found to be wrong in the first place, how then can we punish those that failed to comply? To do so ruins what this country was founded on. The constitution states that we have rights that are not listed in the constitution. Just because a right is not laid out in plain text in the constitution, does not mean that we do not have that right. It is up to the people as a whole to decide what protections, in addition to those codified in words, the populous has. At the time this country was founded, the founders were in direct violation of the law of the land at the time.

kermit315
10-06-2009, 11:33 AM
Legislators can pass any law they want to. There are all kinds of unenforceable laws on the books. During the days of the Jim Crow laws, it was illegal for a black man to be out passed 10pm. When the supreme court ruled them unconstitutional, those laws were still on the books, but they were unenforceable.


I know this is way outside logic, but bare with me.

Let's say that congress decides, in order to fix the medicare problem, they pass a law requiring all people older than 80 years old to move to Mexico. The day after it takes effect, they start arresting people that are 80+ years old. Then the law is found unconstitutional. Would you expect those people to stay in prison because at the time, it was illegal to be 80+ years old?

I take it to the extreme to show my point. If the law was found to be wrong in the first place, how then can we punish those that failed to comply? To do so ruins what this country was founded on. The constitution states that we have rights that are not listed in the constitution. Just because a right is not laid out in plain text in the constitution, does not mean that we do not have that right. It is up to the people as a whole to decide what protections, in addition to those codified in words, the populous has. At the time this country was founded, the founders were in direct violation of the law of the land at the time.

I think we are agreeing, just saying it differently.;)

ETA: by changing the law I mean the adjusting the speed limit argument, where it wasnt found unconsitutional, however it was changed. By nullify, I mean the law was found to be unconstitutional and was, for lack of a better term, deleted.

snobord99
10-06-2009, 12:17 PM
That is not a fair analogy. In that case the law was CHANGED, not overturned.


What if California passed a law making it illegal to go to church.

You were seen entering a church and charged. You didn't have money to fight it so you plead guilty for going to church. You then served 1 year of a 4 year sentence when Tom Cruise gets busted for going to a Scientology event. He fights it to the supreme court and the law is overturned as unconstitutional because it violates your 1st amendment right of freedom of religion.

Why then should you not be immediately released? Why then should you have a criminal record when it was the LAW that violated your right to freedom of religion?

I say we are not bound to follow unconstitutional laws. By their very nature, they violate the rights of those that do. No man should be penalized after the fact when the law is found to be a violation of the constitution.

I'd say the answer to why you shouldn't be immediately released is "because you didn't challenge it." Assuming you didn't challenge it. If you did take it all the way up to the SCOTUS and still lost, then, at least at the time it happened, it was found to be constitutional. If you challenged it but it never made it up the the SCOTUS because some appeals court said you lose (whether by hearing it on its merits or by saying we won't hear it), well, then you still lost and your case has still been finalized.

It sucks to be penalized for something that's later found to be unconstitutional, but we have to work with laws that are on the books when the event happens. It's too hard to live in a system of "what will the law be later?"

Do you think that someone winning $10,000 in a civil lawsuit based on a statute later found to be unconstitutional should be forced to pay that money back?

Read Teague v. Lane, 489 U.S. 288. It addresses this issue directly. You may disagree with it, but that's the current law.

MindBuilder
10-06-2009, 1:34 PM
Teague seems to have been about an attempted murder and the fairness of the jury selection process. It seems much different to say that every improvement to the fairness of the trial process should invalidate every previous case where the defendant didn't benefit from that improvement, then it is to say that the defendant should be let off if the very crime the defendant was convicted of, wasn't really a crime at all.

Exactly what part of Teague do you think applies directly to the release of a convict after the invalidation of a law?

The issue some people seem to be forgetting here is that for example it is currently legal for individuals in every city in this country to keep handguns, regardless of what invalid ordinances like the ones in Chicago say. When there are two laws that directly contradict each other, like the Second Amendment and the Chicago ordinances do, then it is the Constitutional law which was ratified by more than 3/4 of the states that is the actual law, and the lower law ratified by a possibly racist local simple majority, is not the law at all. The opinion of the courts can't change what the law is. Although citizens may be ethically obligated to respect even erroneous court opinions in most circumstances.

snobord99
10-06-2009, 3:46 PM
Teague seems to have been about an attempted murder and the fairness of the jury selection process. It seems much different to say that every improvement to the fairness of the trial process should invalidate every previous case where the defendant didn't benefit from that improvement, then it is to say that the defendant should be let off if the very crime the defendant was convicted of, wasn't really a crime at all.

Exactly what part of Teague do you think applies directly to the release of a convict after the invalidation of a law?

The issue some people seem to be forgetting here is that for example it is currently legal for individuals in every city in this country to keep handguns, regardless of what invalid ordinances like the ones in Chicago say. When there are two laws that directly contradict each other, like the Second Amendment and the Chicago ordinances do, then it is the Constitutional law which was ratified by more than 3/4 of the states that is the actual law, and the lower law ratified by a possibly racist local simple majority, is not the law at all. The opinion of the courts can't change what the law is. Although citizens may be ethically obligated to respect even erroneous court opinions in most circumstances.

Did you read the case? I know the facts are based on an attempted murder case and jury selection and, as such, is surrounded by criminal procedure; however, the rule that actually came out of the case has to do with retroactivity for cases on collateral review. I'll copy the first sentence of the case overview from Lexis, "The Court took the opportunity to clarify how the question of retroactivity should be resolved for cases on collateral review."

If someone was already prosecuted and their case finalized and the statute they were convicted of violating was found to be unconstitutional after finalization, they're going to have to file something (e.g., habeas if they're still in custody) to argue that their conviction should be reversed or thrown out. This is retroactivity for a case on collateral review.

And to answer your question, pretty much the whole thing ;).

Gray Peterson
10-06-2009, 9:19 PM
The thing they would have to file is an petition for errom coram nobis.

snobord99
10-06-2009, 10:28 PM
The thing they would have to file is an petition for errom coram nobis.

That's assuming they're no longer in custody ;).

MindBuilder
10-07-2009, 2:14 AM
I don't doubt that for a prisoner to have a conviction overturned, that the prisoner would have to petition a court. The process would not just be automatic, but I think they may be able to get it done.

I haven't read all of Teague v Lane, but it seems to be almost entirely about criminal procedure or the fairness of the trial process. But it doesn't seem to say much about the overturning of the law the prisoner was convicted of. Here is a paragraph from Teague that seems to back my impression. For those who haven't read Teague, the fair cross section requirement is about a racially diverse jury of one's peers.

The first exception suggested by Justice Harlan - that a new rule should be applied retroactively if it places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," Mackey, 401 U.S., at 692 (opinion concurring in judgments in part and dissenting in part) - is not relevant here. Application of the fair cross section requirement to the petit jury would not accord constitutional protection to any primary activity whatsoever.

And I spotted more hope for the convicted in a footnote of the dissent. I haven't checked out the actual law referred to here yet.

[Footnote 1]Prisoners sentenced by a federal court may seek to have their sentences vacated, corrected, or set aside "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. 2255. The plurality does not address the question whether the rule it announces today extends to claims brought by federal, as well as state, prisoners.

kf6tac
10-07-2009, 2:39 AM
That footnote is just clarifying that Teague applies only to prisoners sentenced under state law who are challenging their convictions in federal court by way of habeas corpus (e.g. you were sentenced in your local Superior Court for violating the California Gun Free School Zones law and exhausted your appeals in the state court system, and now are throwing yourself to the mercy of the federal courts by petitioning for a writ of habeas corpus), as opposed to prisoners who are sentenced in federal court for a crime under a federal law (e.g. you were sentenced in the federal District Court for the Northern/Eastern/Central/Southern District of California for violating the federal Gun Free School Zones law and are now pursuing an appeal in federal court). The footnote does not deal with a distinction between criminal procedure vs. the substantive law under which one is sentenced.

If I'm not mistaken, Teague does allow retroactivity in cases where the Supreme Court has announced a new rule that places "certain kinds of primary, private individual conduct beyond the power of the crmiinal law making to prescribe."

Mulay El Raisuli
10-07-2009, 7:58 AM
Jerry Brown and Rose Bird had nothing to do with the suspension of the death penalty that commuted Charles Manson's sentence to life.

The death penalty as applied by most States was ruled unconstitutional by SCOTUS on June 29, 1972, the Supreme Court effectively voided 40 death penalty statutes, thereby commuting the sentences of 629 death row inmates around the country and suspending the death penalty because existing statutes were no longer valid.


And, as I recall, the revocation of the death sentences was just about automatic. In that while each & every inmate had to apply, each & every application was summarily granted. That's why that Manson chick died last month instead of having to suck cyanide 40 years ago.

The Raisuli

snobord99
10-07-2009, 10:15 AM
If I'm not mistaken, Teague does allow retroactivity in cases where the Supreme Court has announced a new rule that places "certain kinds of primary, private individual conduct beyond the power of the crmiinal law making to prescribe."

Close. That's exception #1. Exception #2 is: "a new rule should be applied retroactively if it requires the observance of "those procedures that . . . are 'implicit in the concept of ordered liberty.'" Id., at 693 (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937) (Cardozo, J.))."

So these are the two cases where the new rule would be applied retroactively. Now, WTH qualifies under one or both of these exceptions? I have no idea. Haven't read up on it yet :p.

snobord99
10-07-2009, 10:24 AM
I haven't read all of Teague v Lane, but it seems to be almost entirely about criminal procedure or the fairness of the trial process. But it doesn't seem to say much about the overturning of the law the prisoner was convicted of. Here is a paragraph from Teague that seems to back my impression. For those who haven't read Teague, the fair cross section requirement is about a racially diverse jury of one's peers.

Again, it's about retroactivity of a new rule. The distinction you're trying to draw (that Teague's about criminal procedure while what we're talking about is the substantive law) won't work. The rule (minus the 2 exceptions) is: "new rules should always be applied retroactively to cases on direct review, but that generally they should not be applied retroactively to criminal cases on collateral review." This rule, as stated, applies to criminal cases. It doesn't apply only to cases of criminal procedure or or only to criminal substantive law. It applies to "criminal cases."

snobord99
10-07-2009, 10:27 AM
And, as I recall, the revocation of the death sentences was just about automatic. In that while each & every inmate had to apply, each & every application was summarily granted. That's why that Manson chick died last month instead of having to suck cyanide 40 years ago.

The Raisuli

I believe you're right, but that was pre-Teague. Even if it was post-Teague, I think it would still be the case. Admittedly, I don't know how the exceptions in Teague are actually applied, but based on the language used, I believe this would probably fall under exception #1 anyways.

ilbob
10-07-2009, 2:27 PM
It might be simpler for a governor to issue pardons with full restoration for those in such a situation. And cheaper.

Its not as many people as you might think though. Most (but certainly not all) gun law violations are add on charges associated with other criminal activity.