Law: It Just Happens Like Magic

Following the Texas Tornado’s spectacular win before the Texas Court of Criminal Appeals, Mark Bennett started receiving comments to his posts from folks who were convicted under a law that now wasn’t.  There were people sitting in prison for having violated Texas Penal Code Sec­tion 33.021(b), the online solicitation of a minor statute, and people who had completed their sentence yet remained under its thumb.

And Mark Bennett, hero of the new digital Alamo, made their nightmare come to an end. At least, that’s what they wanted to hear.  Even people from other states with other statutes wondered whether this ruling might save them. There would be prayers aplenty by teary-eyed mothers, hoping the magic would rub off and somehow touch their loved ones.

But with great wins comes great responsibility, and Bennett, suffering from the twin curse of integrity and skill, set about explaining that there would be no fairy godmother waving her wand and setting free the people convicted under the now-unconstitutional law.  Instead, he tried to explain, in a series of posts, the mechanics and pitfalls defendants would face in trying to undo the damage.

What confounded people was that the ruling was not self-effectuating.  In as inoffensive a way as possible, Bennett tried to make a few points clear:

  • You will need to act to seek a remedy in court to undo your conviction;
  • You will need a lawyer to represent you in doing so;
  • You will need a lawyer with the discrete skills necessary to accomplish an unusual task;
  • You will need to overcome the failure of your prior lawyer to raise the unconstitutionality of the law;
  • You will need your prior lawyer to tell the truth, that he/she inexplicably failed to challenge the law’s constitutionality, even though it puts him/her in a bad light;
  • You will need the prosecution not to seek other/additional charges, if not time-barred, should you prevail.

To put it less surgically, there are still a number of hurdles to surmount before the nightmare ends, and there are still plenty of pitfalls ahead that could blow the deal anyway.

All of this is quite confusing.  If a law is held unconstitutional, then how is it possible that a person can remain in prison, convicted of something that is no longer a crime?  It’s a perfectly logical view, and raises a very reasonable question.

After all, it makes no sense to maintain a conviction for something that is no longer a crime. It makes no sense to hold a person in prison when he committed no crime. And if the law upon which he stands convicted is unconstitutional, and therefore void, the person in prison is an innocent man.  Right? Right?

It probably should go that way, where those misfortunates whose lawyers neglected to raise the constitutionality of the law as an impediment to their client’s conviction are still entitled to the benefit of Bennett’s win because they are no more criminals for having violated a void law than a person is for chugging a glass of water.

Indeed, in this age of computerization, it would hardly take more than a few minutes for the court system to crank out the identities of every person convicted under this void law, issue a mandate for their immediate release from prison (assuming they were held only under this void law and not for any other offense), and send them home.

But the law, that amorphous animal that the government keeps saying has something to do with justice, isn’t solely focused on producing the logical outcome some believe it should.  This isn’t necessarily malevolence, but that there are other concerns, interests, impacts, that either don’t occur to people or aren’t nearly as important to people who are focused on their own plight.

These other concerns include finality, conservation of judicial resources, waiver and the promise of due process rather than perfect outcome.  While these concerns mean little to those who are convicted, they are critical to judges, who see themselves as stewards of the institution of the legal system. These concerns give rise to a host of deeply disturbing outcomes, from harmless error to the execution of the innocent for whom the legal system has failed.

Then there are two points that defendants convicted under an unconstitutional law and their loved ones often overlook in their myopic concern for themselves. First, that many of the people convicted engaged in conduct that was deeply harmful to others.  In other words, the law may be unconstitutional for vagueness and overbreadth, but their conduct fell into the heartland of the evil the law was meant to prevent. They are hardly innocent of wrongdoing, but just convicted under an unconstitutional law.

Second, there are victims of their conduct. How much harm they suffered may be a matter of debate, but that doesn’t change the fact that they suffered from the conduct committed by those convicted under a law that is now void.  To dismiss them as “igno­rant, jerk­wad[s]” is offensive.

Thoughtful people have the capacity to simultaneously appreciate the need for constitutional law while feeling empathy toward those who are harmed.  While harm, alone, doesn’t overcome the requirement that laws be constitutional, only the foolish and callous would think it inconsequential.

Regardless of how people think the law should undo the damage it causes, it doesn’t.  There will be no elves in the backroom of the courthouse correcting its errors and opening the cell doors so the newly innocent can go home again.  No White Knight on his valiant steed will rush to your rescue.

That a lawyer as skilled as Mark Bennett was able to get a unanimous Court of Criminal Appeals to hold a law unconstitutional was nearly miraculous, but it just begins the work needed to filter through to each defendant convicted while the law was still enforced. You don’t have to like it. You don’t have to agree with it. But if you want the benefit of it, you need to heed his warnings and advice.  It won’t happen by magic.

5 thoughts on “Law: It Just Happens Like Magic

  1. Jake DiMare

    Warning: Folksy, layman’s interpretation ahead: I was always under the impression there is the “When you committed the act it was illegal” explanation for why it doesn’t nullify those currently convicted. Is this not true if a law broken is proven to be unconstitutional in the first place?

    1. SHG Post author

      And this time, your folksy layman’s interpretation is correct. The alternatives are to comply with the law or challenge it, and those who were convicted of something that was a crime at the time and either failed to challenge its constitutionality or tried but failed are left holding the bag.

      Yet, this doesn’t sit well for people who are staring at a cell wall saying, “but how can I be here for breaking a law that’s void for being unconstitutional?” And it shouldn’t, unless one accepts the premise that the statutory words on paper are more important than the constitutionality of a law. While that turns out to be the way the law works, it doesn’t go down easy.

      1. Mark W. Bennett

        This is true of statutes nullified by the legislature, but the law everywhere in the US from 1877 to 2007, and everywhere but Texas still, is that a penal statute held facially unconstitutional is void ab initio, so that a conviction under an unconstitutional statute is of no effect. Before Karenev, everyone took it for granted that this was the case. Karenev hasn’t convinced anyone outside Texas. It’s hard to believe that Karenev will be interpreted to bar relief for those convicted of a void statute, but other hard-to-believe things have happened in Texas courts.

        1. SHG Post author

          The Great Republic of Texas is always an excellent source of hard-to-believe things. Too bad it’s not the only source.

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