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Overturning a Conviction on Appeal When the Law Has Changed Since Conviction

While death and taxes may be two constants in life, our state and federal laws do change over time. One need look no further than to states like Washington, Oregon, and California where recreational marijuana possession is now legal under certain conditions after being wholly prohibited for many decades. Thus, there will be situations in which a person has been convicted and may be currently serving time for a specific crime, which, if they had gone to trial today, would have resulted in a dismissal of charges.

So what does this mean for those people who have been previously convicted of a crime for an action that would no longer be considered a crime? Can they win a reversal of their conviction, which could result in being freed from jail or at the very least having their criminal record modified to show no crime?

This is a complex topic – and all individuals who believe they may be in this position are encouraged to speak with an experienced attorney to assess their options – but generally, how such a case will resolve depends in part on several factors.

Did a Controlling Court Later Change How It Viewed the Law?

A key distinction to make here is whether 1) the specific legal statute itself changed – as in Congress or a state legislature repealed a law or changed the wording of it – to make an act no longer a crime; or 2) the statute itself was unchanged but a court has later changed how it reads and interprets that law.


In the second case, the opportunity for appealing a conviction may be better, as the court is basically saying that any previous courts who convicted a person under a different reading of the law were wrong to do so. We have seen this in a number of federal corruption and bribery cases lately, where courts have overturned convictions for corruption after appeals courts changed how the law should be read.  


Another example of this is in California, where the California Supreme Court recently changed how criminal courts can convict defendants based on uncorroborated accomplice testimony, which we discussed here last month. As stated there, because the court changed its view (as opposed to the text of a federal or state law being changed), this means that others who were convicted on what is now considered insufficient evidence may have an opportunity for appeal.


Did the Underlying State or Federal Law Itself Change (e.g. Decriminalization)?

Going back to the first scenario, where the state or federal legislature has actually rewritten the law (or, in the case of places like California, the voters themselves have changed the law via a statewide referendum) to make a previously criminal act no longer a crime, things may be more complicated.


It is long standing U.S. Supreme Court precedent that, when a person is convicted of a criminal act that was indeed criminal at the time, but later becomes decriminalized, that person does not automatically have the right to have the conviction overturned. The thinking there is that, if a person broke the existing law at the time, it is still a criminal act.


That said, there may be situations in which prosecutors and other government officials do take actions to give those who have been previously convicted for now decriminalized acts to have their convictions removed. That was the case earlier this year, when San Francisco and San Diego prosecutors announced they would take steps to remove the convictions of those convicted of marijuana-related crimes which are no longer criminal under California law in the wake of Proposition 64 being passed in 2016.

Again, speak to an experienced appeals attorney for guidance in your particular situation.

Help in Your Washington and California Appeal

The Law Office of Corey Evan Parker is focused on the civil and criminal appeals process in Washington and California. If you are considering filing a criminal or civil appeal, feel free to contact Mr. Parker today for a no obligation 30-minute consultation.