The Effect of a USSC Decision Declaring a Law Unconstitutional

[Mark Tushnet]

I'm at home without access to materials, but I'm pretty sure that there are cases both pre- and post-Teague saying that you get automatic relief on habeas if you're being held as the result of a conviction for an offense that the Constitution "says" cannot be made an offense.  I have a vague sense that a case called Bailey is relevant here (I think it holds that relief is automatic if the government fails to prove an element of the offense and is therefore holding you even though you haven't violated the law).

-----Original Message-----

From:  "Vladeck, Steve " <svladeck at law.miami.edu>
Subj:  RE: The Effect of a USSC Decision Declaring a Law Unconstitutional
Date:  Tue Mar 20, 2007 8:43 pm
Size:  3K
To:  "Steven Jamar" <stevenjamar at gmail.com>; "ConLaw Prof" <Conlawprof at lists.ucla.edu>

Maybe I'm missing something, but, at least legally, isn't the answer the Court's messy Teague v. Lane (and progeny) jurisprudence on applying "new rules" retroactively on habeas, most recently rejecting retroactive application of Crawford in Whorton v. Bockting? 
  
-steve 
  
--- 
Stephen I. Vladeck 
Associate Professor 
University of Miami School of Law 
G-385 Law Library 
1311 Miller Drive 
Coral Gables, FL  33146 
(305) 284-5837 
svladeck at law.miami.edu 
 
________________________________ 
 
From: conlawprof-bounces at lists.ucla.edu on behalf of Steven Jamar 
Sent: Tue 3/20/2007 8:33 PM 
To: ConLaw Prof 
Subject: Re: The Effect of a USSC Decision Declaring a Law Unconstitutional 
 
 
Interesting question.  I don't know the actual answer, but  for the most part these mixed couples were not jailed because they were just denied a marriage license in the first place and then moved somewhere where they could get married legally.    
 
And other such statutes -- like anti-gay statutes like in Lawrence were generally not enforced much and so not a lot of people affected, I would think. 
 
But it is an interesting question that I hope someone has a definitive answer to. 
 
Steve 
 
On Mar 20, 2007, at 7:55 PM, DavidEBernstein at aol.com wrote: 
 
 
	 
	Today, when discussing Loving v. Virginia, a student asked what happened to people who were in jail for interracial marriage when this decision came down?  Were they released? Pardoned?  Did they have to petition for release?  Did they rot in jail?  Were people who had this conviction on their record able to get their criminal record cleared?  What happens more generally when a criminal statute is declared unconstitutional to those who had been convicted under it, and whose appeals were previously exhausted? 
 
	David  
	  
	David E. Bernstein 
	Professor 
	George Mason University School of Law 
	http://mason.gmu.edu/~dbernste 
 
 
 
	 
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Hope has two beautiful daughters. Their names are anger and courage; anger at the way things are, and courage to see that they do not remain the way they are. 
-- Augustine of Hippo. 
 
Steven Jamar 
stevenjamar at gmail.com 
 
 
 
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