What happens when an act formerly a crime ceases to be a crime, i.e., miscegenation, sodomy, and now in a few states casual drug use? Are people in jail for having done those acts now freed?
Conceivably but not necessarily. When you are talking about whether someone committed a crime, what is relevant is whether their actions were legal at the time that they took place, not whether they are legal now.
It depends what caused the act to stop being a crime.
If the crime in question was something like miscegenation or sodomy and the thing that caused the act to stop being a crime was a Supreme Court decision declaring that criminal law to be unconstitutional, then (according to the retroactivity rules set down by the Court itself) all criminal convictions for under those laws are immediately rendered void, and people serving time for them can file what’s called a “collateral” appeal to get set free.
In the case a legislative repeal (i.e. possession of pot in, say, Colorado), the offenders probably stay in jail, unless the new law says otherwise.
@john: Generally laws altering the definitions or sentencing for criminal acts do not have a retroactive clause. It is in fact illegal for the US Congress to pass ex post facto laws. I’m not sure whether retroactively decreasing punishment or decriminalizing would count as an ex post facto law in this context.
There exist arguments on both sides. See http://urbanlawjournal.com/determining-the-retroactive-reach-of-decriminalization-and-diminished-punishment-by-harold-j-krent/
At the very least retroactive decriminalization must be taken case by case. It is not the case by default. It might in fact be unconstitutional.
I am not a lawyer.
I’m pretty sure it’s not unconstitutional. I’m not a constitutional scholar or anything, but that clause is clearly about keeping the state from doing things like passing a law saying that, as of last Wednesday, some innocent but ludicrously specific behavior is criminal in order to take away someone’s rights. There’s also explicit mechanisms by which things can be retroactively *not* subject to punishment, such as pardons, so at most, it’d take cooperation from the executive branch.