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Andy Taylor
12-13-2012, 3:17 AM
Obviously there are people who have been arrested, tried, and convicted of violating the IL law that has now been declared unconstitutional. What happens to them?
If they are still incarcerated, do they need to lawyer up again, and petition to be released, or does this happen automatically?
What if thier sentance has been served, or they only got probation etc, but have a felony conviction on thier record? Does that continue to follow them? What about just compensation for time spent behind bars?

Theseus
12-13-2012, 4:26 AM
Obviously there are people who have been arrested, tried, and convicted of violating the IL law that has now been declared unconstitutional. What happens to them?
If they are still incarcerated, do they need to lawyer up again, and petition to be released, or does this happen automatically?
What if thier sentance has been served, or they only got probation etc, but have a felony conviction on thier record? Does that continue to follow them? What about just compensation for time spent behind bars?

I may be wrong, but why let that stop me? I understand that if you are convicted of a crime, that's it. Doesn't matter if it was unconstitutional, you still broke the law. .

Sent via Note 2 Lte

krucam
12-13-2012, 5:49 AM
Obviously there are people who have been arrested, tried, and convicted of violating the IL law that has now been declared unconstitutional. What happens to them?
If they are still incarcerated, do they need to lawyer up again, and petition to be released, or does this happen automatically?
What if thier sentance has been served, or they only got probation etc, but have a felony conviction on thier record? Does that continue to follow them? What about just compensation for time spent behind bars?

The IL law in question is alive and well until 1) 180 days/June 9, 2) It is rewritten, 3) The potential en banc process works, which must start by 12/26, or 4) The potential petition for cert with the Supreme Court plays out.

dantodd
12-13-2012, 6:57 AM
If the law is unconstitutional it has always been unconstitutional because your rights were no different at the time of conviction they were merely not protected. Do you really think that someone convicted of miscegenation could be held in jail after Loving v. Virginia? Most convictions involving these things are simple add-ons to other crimes and it won't result In the mass release of real bad guys.

For issues like Theseus' I am not certain of the exact strute involved but right now anti-open carry laws are not being challenged right nnow and since the conviction was for violating restrictions I don't think it would be so easily overturned because you'd need the courts to decide the restrictions written into the law were overly restrictive and there is no directly applicable precedence nor would any of the current carry cases be directly applicable.

mdimeo
12-13-2012, 9:20 AM
Theoretically, they should be able to appeal their convictions based on unconstitutional laws and get out of jail.

Realistically, they'll write an appeal, the court (whichever) will decline to take up the matter, and they'll stay. Most of the people convicted under these laws are actually bad people, and there aren't a lot of judges ready to let a bunch of probably-criminals out of jail.

Eventually, one of these cases might get to the Supreme Court. If I had to make a guess, I think the Court would settle on an interpretation along the lines of:
* The 2nd amendment is for the law-abidng
* This guy broke the law, not knowing it was an unconstitutional law
* therefore he's not law-abiding, and the 2nd ain't for him.

SilverTauron
12-13-2012, 9:38 AM
Obviously there are people who have been arrested, tried, and convicted of violating the IL law that has now been declared unconstitutional. What happens to them?

Nothing, because in fact very few people are actually convicted of a felony UUW charge by itself.

The statue which was struck down was the Unlawful Use of a Weapon statute. Its entire purpose is a way to discourage lawful carry of a firearm, because when bad guys in Illinois get caught and charged with UUW its in conjunction with far more serious charges like attempted murder, carjacking, robbery, homicide, etc. The illegal weapon charges are dropped if the defendant agrees to a plea deal for the stronger charges.

When a UUW charge is standalone , its usually because a lawful individual either used a gun in self defense or the police happened to discover a citizen was illegally carrying. In those instances the charges don't stick either because anti-gun DA's in Illinois opt to strategically decline to press charges ,lest they risk a future lawsuit overturning the statute. Its why NYC cut those gun carrying tourists loose last year with plea bargains , so that they don't create a case which results in the judiciary forcing NYC to adopt shall issue CCW in the future.

For all the hubbub about the UUW statute, its a paper tiger. If the cops discover a bad guy's illegally armed its in conjunction with other crimes, and if they discover a citizen's armed its because they defended themselves.

Kukuforguns
12-13-2012, 10:16 AM
In this case, Journigan argues that he was prosecuted under an unconstitutional statute. This contention falls within the rule of Blackledge which holds that a guilty plea does not bar those claims which go to the power of the state to invoke criminal process against the defendant. 417 U.S. at 30, 94 S.Ct. 2098. Even if the guilty plea establishes as a factual matter that Journigan did the acts charged, a successful constitutional attack on the statute violated by those acts would undermine the foundation of the criminal prosecution, making those acts noncriminal. The statute, if unconstitutional, would be void and the conviction a nullity ab initio. As the Court explained in Ex parte Siebold, 100 U.S. 371, 376-77, 25 L.Ed. 717 (1879):
(The constitutionality of the statute) affects the foundation of the whole proceedings. An unconstitutional law is void, and is as no law. An offence created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment.
Thus, Journigan's claim goes to the very authority of the state to hale him into court. Menna v. New York, supra, 423 U.S. at 62, 96 S.Ct. 241; Blackledge v. Perry, supra, 417 U.S. at 30, 94 S.Ct. 2098. Accordingly, Journigan's guilty plea does not bar federal habeas corpus on substantive grounds.

Journigan v. Duffy, 552 F.2d 283, 289 (9th Cir. 1977).

The issue with respect to a conviction for concealed carry is more complicated than the above indicates. The Moore v. Madigan opinion held Illinois' current framework is unconstitutional because it provides law abiding citizens with no legal method to publicly carry a loaded firearm for self-defense. However, the S. Ct. has indicated that laws prohibiting concealed carry are not necessarily unconstitutional. This is not inconsistent because a state could choose to allow its citizens the right to carry openly as opposed to concealed.

I am not saying that a prisoner seeking habeas corpus based on a conviction of Illinois' statute prohibiting concealed carry would lose. I am merely noting that the state could oppose such an application on the ground that the statute was not unconstitutional to the extent it prohibited concealed carry.