Submitted by L0rdTeddingt0n t3_11bu64n in explainlikeimfive
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Comments
mynewaccount4567 t1_ja3h49j wrote
This is a big issue around drug decriminalization. Especially since the argument is these should never have been criminalized in the first place, most people agree someone in prison on drug charges should be let out. But what if they have other charges that came with the drug charges. Should possession only be forgiven, or also distribution? Smuggling charges? Resisting arrest? Tax evasion on drug profits? Possession of a firearm while you had a drug felony? You killed someone over a drug dispute?
Most people would probably say murder is still murder and the last example is easy, but It gets really complicated and everyone will probably draw the line at a different place.
tiredstars t1_j9zvhcj wrote
On the whole they will stay in prison. They still broke the law, and governments and societies generally view this as a bad thing in itself.
There are exceptions where a law might include an amnesty for those convicted, or people might be pardoned. That might be most common with 'political crimes' and changes of government. At the very least, parole hearings are likely to be more lenient.
UnrealPownament t1_ja2am1h wrote
Thats the reason why law Is stupid. Common sense is much smarter than law.
Drwgeb t1_ja2e0q2 wrote
Common sense dictates to have laws
tiredstars t1_ja2r7k4 wrote
Common sense is often quite narrow and short-sighted though. It doesn't seem particularly hard for governments to give amnesties when they decriminalise things, so why isn't this the norm?
It's not hard to think of potential problems.
What if it looks like a law is going to be changed and people start breaking it anticipating that change? Even worse, what if it then isn't changed?
Does it undermine people's respect for laws and fear of punishment?
Does the law punish people based on the impact of their actions or their character? Eg. we might now believe there's little harm in selling weed, but if the consensus when someone sold some weed was it was dangerous, shouldn't they have paid attention to that? (This seems similar to how we don't apply new crimes retrospectively.)
What if the law changes because the situation changes? For example, the benefits and harms of drug prohibition differ in different circumstances.
With examples like this there are usually a bunch of reasons why things are done the way they are that aren't obvious or have been forgotten. They may or may not be persuasive reasons, but you don't know until you know what they are.
TCelvice t1_ja2ifsw wrote
See, that's the funny thing, innit? The laws were written by lawmakers, the lawmakers were voted in by the commoners, i.e. they're common sense, and if they weren't common sense, well we'd just vote in some smarter lawmakers! But we don't.
You or I in particular might be smart, but collectively we are startlingly stupid.
(aside: happy cake day!)
AcusTwinhammer t1_j9zvsam wrote
As a matter of official process, nothing. The fact that something is no longer legal now does not mean you didn't commit an offense when it was illegal in the past. By much the same logic, if something is made illegal now, that doesn't mean you can be charged for doing it when it was still legal.
That being said, there are methods for the government (usually via the executive branch in the US) to grand clemency in some form or another to many of those convicted of something that is no longer illegal.
EggyRepublic t1_ja0bkw3 wrote
Is it possible for the government to retroactively charge people with crimes, or is that unconstitutional?
The-Wright t1_ja0fo57 wrote
Retroactively charging someone for an action that was legal when they performed it is called an ex post facto charge, and the US Constitution explicitly prohibits both federal and state authorities from pursuing them
Chrona_trigger t1_ja2afky wrote
I'm glad that wasn't attempted by the umpa lumpa
Only because the idea didn't occur to him, I'm sure.
Dorocche t1_ja1tmrp wrote
Yes, it's unconstitutional in the US according to Article 1, Section 9
wojtekpolska t1_ja2r4dg wrote
"lex prospicit non respicit" (the law works foward, not backwards) has been a fundamental part in any legal systems, going all the way back to the holy roman empire
so yes, people cannot be charged for something, that was not illegal when they did it. when someone is charged for something, only the laws that were in effect at the time of the "crime" are considered
quintazore t1_ja2ig6h wrote
That very thing was legal back in Ancient Rome. Odd to think people accepted such a scary concept
greatdrams23 t1_ja10ffg wrote
"By much the same logic, if something is made illegal now, that doesn't mean you can be charged for doing it when it was still legal"
This 'reverse' case is not the same Logic in reverse.
If something was PREVIOUSLY LEGAL but now illegal, then it would be wrong to convict retrospectively, because that person kept to the law.
But...
If something was PREVIOUSLY ILLEGAL but now legalised, then their conviction was THEN first, but CONTINUED punishment means you continue to punish a person for something that is now deemed legal.
caraamon t1_ja15hdc wrote
There's two arguments I can think of for this.
Among whatever other reasons for sentencing someone, there's an almost circular logic element of punishing people for breaking the law. In modern society there's an unspoken agreement that people will follow the law, even if they don't agree with it. Therefor, in essence, breaking the law itself is breaking the law, which doesn't change even if the act they did later becomes legal.
Second is the practical element of a clogged "justice" system. It might be simple to release a person who was convicted of a newly legal act, but it still requires review. Plus what about other cases, where they might have been convicted of multiple counts of different crimes? You'd need to resentence them since it may not be clear how much of the total sentence was derived from each crime. What about people who were only fined? Under the same logic, wouldn't they deserve their fines back? And how far back would you go with these repayments?
And on another practical level, if a change in law results in "criminals" being released and large repayments, voters that would be supportive, or at least apathetic, may come to oppose it.
Llanite t1_ja1ns6h wrote
They are punished because they violated the laws and broke a social contract. The punishment is that they are no longer part of the society.
The fact that a law was amended doesn't mean they did not break it in the past.
NextSoft2224 t1_ja2fqwl wrote
Genuine question: How about for cases that a law violates human rights? Alan Turing's case for example.
Llanite t1_ja3ojcy wrote
Human rights are just something we made up. Slavery used to be something we considered ok, now we don't and it's illegal, then we made freedom a human right and grant clemency to everyone.
SoNic67 t1_ja2ikue wrote
Punishment was for breaking an existing law at that time. Not for breaking it NOW.
pbrart2 t1_ja2mn5k wrote
That’s kinda like how the old bar in town can sell you a 6 pack over the counter to take home versus the bar that opened a few years ago can’t legally do that?
Mammoth-Mud-9609 t1_ja01kgo wrote
There is something called retrospective legislation which not only changes current law but also changes how the law is applied in the past, most governments avoid retrospective legislation because of issues like this in general if you broke the law you still knowingly committed a criminal act and have to face the consequences of doing so.
oblarneymcdoodle t1_ja09lek wrote
Washington state recently did this (Blake). Retroactively making weed convictions and everything associated with them (LFOs, points etc.) unconstitutional. Legislature is currently working on a bill to lay out how to reimburse everyone affected. (I may have over simplified some of this but basics are correct.)
abeorch t1_ja0chji wrote
Im not familiar with the case but generally in constitutional states if a law is ruled as unconstitutional then it is treated as if the law never existed (since it has been found to be invalid) therefore all convictions based on it are considered invalid. This is different to a law being repealed (which the original post refers to)
SoNic67 t1_ja2iptl wrote
Free money for former pot dealers. What could go wrong?
nerdsonarope t1_ja1u1y9 wrote
Another scenario is that the action becomes no longer illegal because a court rules that the criminal law was unconstitutional. In that scenario, a person previously convicted under the now invalid law may be able to apply to the court to be released. However, whether they will succeed is fact dependent and too complicated for an ELI5.
Captain-Griffen t1_ja2sc0a wrote
It doesn't become legal, legally speaking, but it is found to have always been legal.
StupidLemonEater t1_j9zvf06 wrote
Nothing. You broke the law and were duly convicted. That the law has since changed is irrelevant.
In some cases law changes like that are accompanied with mass amnesties or pardons, but not necessarily.
Mars27819 t1_ja0wujr wrote
I recall hearing about this in Canada when marijuana was legalized.....
IIRC, those convicted of low level possession charges were pardoned like it never happened. But also that the US doesn't recognize a Canadian pardon for crimes, so they still can't visit the US
itwasntmeblamethecat t1_ja1c3ts wrote
In Mexico... the law operates similar to Canada. Under a legal principle that the law can only be applied retroactively if it benefits the person, not of it affects their rights. This may apply to other countries with laws based on the Roman-french rooots.
fiendishrabbit t1_ja20oqh wrote
What happens depends on the country.
US law says expressly that nothing changes (US federal law, US Code Title 1, § 109. "Repeal of statutes as affecting existing liabilities") unless the law specifically states that it does (some laws have done so in the past). However, that's Common law (the fundamental principle of law as applied by states descended from the British empire).
If we instead look at countries which use Napoleonic code (law based on humanist principles), they use the principle of "Lex Mitior" (the milder law). Under the milder law any change in law is supposed to benefit the accused rather than the state. So in many countries that base their law on the Code Napoleon (notably France, but really most of the EU) when a law is repealed that triggers an automatic sentence review, and if it's no longer a crime "Hey hop, you're free to go".
P.S (maybe not so ELI5): "Hey hop, you're free to go" is in practice a bit more complicated than that. Many countries that practice Lex Mitior also practice "Socialism!". So before ratification (when it's signed by parliament/congress/whatever) and long before implementation (when the law goes into effect) the law is sent out for consultation. The prison system and social services get to say "Hey, no biggie. We can deal with this relatively quickly" or "uh. We're going to need X months to prepare for that, because this is huge". So on the day the law is ratified (signed) the bureaucracy gets to work. Sentences are reviewed, prisoners are scheduled for release, social services are notified so that they can set up the ground works (sending people out with no housing, no money and no social network would be a recipe for catastrophe) , relatives are notified etc so that when it's implementation day everything is set and people can be released in an orderly and humane manner.
y_wont_my_line_block t1_ja0lrch wrote
Usually nothing happens.
Occasionally the law which legalized whatever they were imprisoned for will include a section that pardons people. For instance, Illinois when they legalized Marijuana.
CountingMyDick t1_ja0aadi wrote
By itself, nothing, since they still broke the law when they committed their initial offense and were duly convicted of it. In principle, you could even prosecute and convict somebody after the legalization for an act committed before, though it seems unlikely any prosecutor would bother. Though if you bothered to legalize something, you might also want to commute the sentences of anyone previously convicted.
This is a mirror of "Ex Post Facto" - if you pass a law making some act illegal, you can't convict somebody who did that act before the law was passed because it wasn't illegal at the time. In principle, it's supposed to be possible for an individual to determine if an act they are considering performing is illegal or not, and for them to be able to rely on that determination.
greatdrams23 t1_ja0ze01 wrote
So if a man was imprisoned for consensual homosexual acts stays in prison even when the jaw changes.
Seems harsh considering that the law changed because it was deemed to be wrong.
[deleted] t1_ja1fa95 wrote
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light_at_the_tunnel t1_ja1re09 wrote
I will tell you in terms of India.
So just because it is legal now, the prisons don't open their gates to the prisoners. However, if the prisoner makes an application to the court, saying that the crime for which he has been imprisoned is no longer a crime, then he'll be released immediately. Because once the decriminalization takes place, it essentially means that the act is no longer a crime. The society has changed its view that the act is alright. So there is no sense in keeping somebody inside and punishing them.
[deleted] t1_ja26f9u wrote
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Jakewb t1_ja29fsc wrote
In general, society’s approach is that if you broke the law at the time, you’re a criminal, and future law changes don’t change that. So you would stay in prison.
I’m not sure there are too many real-world examples of that, but there definitely are examples of people not in prison but with a criminal record for something that’s no longer illegal. An example that jumps to mind is that it took until 2017 for gay men in the UK to be given the right to apply for a pardon if they had been convicted when homosexuality was illegal. Note apply for a pardon - it’s not automatic.
None of them were actually in prison, but many felt that having the conviction on their record was still a blight on their life.
This is a relatively unusual case because there was so much political and societal shame about the way gay men were treated and the unjustness of the law. That’s not the case with all or even most changes to laws, and I can’t think of another similar example.
[deleted] t1_ja2kcp2 wrote
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skiveman t1_ja2peyc wrote
Nothing, unless an amnesty or general pardon is given then they stay in prison. People are serving the sentences that were handed down by the courts at the time, that isn't going to change for anyone except for those whose trials are yet to start.
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Helloscottykitty t1_j9zvdts wrote
Nothing changes for them, they broke the law and have been prosecuted and convicted for doing so.
T
Danne660 t1_ja0dljm wrote
Usually the same thing that happens to people who broke a law before it became illegal.
Nothing changes.
DTux5249 t1_ja2bctk wrote
They aren't in prison because they were wrong; they are in prison because they broke the rules of society. There's an important distinction there. Their sentence wouldn't change.
That said, in many cases, they could ask for a pardon, and it may be successful
TehWildMan_ t1_j9zv9fi wrote
Unless the action that changed the law included some provision for those with existing convictions, nothing.
Although asking for a pardon may be successful in such cases.