CRS-2 review them." which had not reached final disposition in the highest court authorized to Bradley v. United States, 410 U.S. 605, 607 (1973); Bell v. Maryland, 378 U.S. 226, 230 (1964); Hamm v. Rock Hill, 379 U.S. 306, 312 (1964); United States v. Tynen, 78 U.S. (11 Wall.) 88, 95 (1870). The prosecution of any case, including a conviction which is then pending appeal at the time the criminal penalties of a statute are repealed, absent a "saving" provision, would therefore abate under common law. United States v. Reisinger, 128 U.S. 398, 401-402 (1888); United States v. Chambers, 291 U.S. 217, 223-224 (1934). It should be noted however, that under federal law a general "savings" provision exists, at 1 U.S.C. § 109, which works to reverse the general common law rule of abatement for federal legislation. See United States v. Jackson, 468 F.2d 1388 (8th Cir. 1972), cert denied, 410 U.S. 935. This saving statute states that the "repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability." This saving provision, since it "is in derogation of the common law rights of persons accused of a crime," is strictly construed. United States v. Hark, 49 F.Supp. 95, 97 (D. Mass. 1943), reversed on other grounds, 320 U.S. 531, rhrng den. 321 U.S. 802; see also United States v. Auerbach, 68 F. Supp. 776 (D. Cal. 1946). The "saving" provision has thus been found not to prevent abatement of prosecutions of cases where a regulation, rather than a statute, has been repealed (United States v. Hark, supra), or where a constitutional amendment, rather than a statute, has been repealed (United States v. Chambers, supra at 223-224), or where more than a mere CRS-3 "technical abatement" might occur, such as where Congress "substitutes a right for a crime" (Hamm v. Rock Hill, supra at 314). Generally then, a repeal of a criminal statute by Congress will not abate incomplete prosecutions under the former law, unless the repealing act expressly indicates Congress' intent for such a result. The common law abatement of prosecutions has applied in any event only to those cases in which a "final disposition" has not been rendered by the "highest court" authorized to review such prosecution: Bradley v. United States, supra. In the case of Massey v. United States, 291 U.S. 608 (1934), the Supreme Court found that a conviction under the National Prohibition Act, which was affirmed by the Circuit Court of Appeals which had stayed its mandate pending a petition to the Supreme Court for a writ of certiorari, when such petition for writ was filed, was not a "final judgment" against the petitioner prior to the repeal of the 21st Amendment, and therefore the prosecution would abate. 291 U.S. at 610. It would not appear therefore that abatement would apply under common law for "final" convictions. There may be questions raised, however, as to the effect of a law where Congress expressly indicates by statute that the repeal of the criminal law or the repeal of criminal penalties is to be applied retroactively, and expressly is to apply to even final convictions properly obtained under the former law. Initial research has uncovered no specific federal statutory precedents for the repeal of criminal penalties in a law and the retroactive application of such repeal to persons finally and properly convicted under the former provisions of law. Such a retroactive application of a criminal repeal would arguably be in the nature of a "legislative pardon" or a legislative "amnesty." As opposed to many abatement cases the questions raised by such a provision would apparently not be of congressional intent as to the applicability CRS-4 of the law, if such intent were clearly expressed, but rather ones of congressional power and authority to legislate such a "pardon," "amnesty" or "release" of convicts. There is no express provision in the Constitution which states that Congress may or may not adopt legislation which applies the repeal of criminal penalties retroactively to persons finally convicted under the former Although the general maxim is often expressed that retroactive applications of laws are not favored, this is generally based on considerations law. of vested private rights of individuals, the freedom of contracts, and gen1/ eral due process considerations, (Chase Sec. Corp. v. Donaldson, 325 U.S. 304 (1945); Home Building and Loan Ass'n v. Blaisdell, 290 U.S. 398 (1934); FHA v. The Darlington, Inc., 358 U.S. 84 (1958)), which may not be particularly relevant to the elimination of a criminal penalty and its applicability 2/ retroactively to past conduct. Remissions of statutory penalties and fines by the legislature have generally not been considered improper retroactive laws, as they generally do not affect private rights in an impermissible manner. Maryland v. B. & 0. Railroad, 44 U.S. 534 (1845); United States v. Morriss, 10 Wheat. (23 U.S.) 246 (1825). The increase of a criminal penalty or the legislative establishment, rather than abolition, of a crime, and its attempted retroactive application to past conduct, would incur the specific constitutional prohibition on ex post facto criminal laws. United States Constitution, Art. I, Sec. 9, cl. 3. See Weaver v. 1/ "The Supreme Court and the Constitutionality of Retroactive Legislation," 73 Harvard Law Review 692 (1960). 2/ See "Today's Law and Yesterday's Crime: Retroactive Application of Ameliorative Criminal Legislation," 121 U. Penn. Law Rev. 120 (1972). CRS-5 Graham, 450 U.S. 24 (1981). A retroactive law which does not increase the punishment or "disadvantage the offender," would not, however, constitute an ex post facto law. Weaver v. Graham, supra at 29. The elimination of criminal penalties retroactively, and acts in the nature of legislative pardons, although not covered by the ex post facto provision or any other specific constitutional provision, may be questioned under the general theory of "separation of powers," since the power to pardon is expressly an Article II, executive power. United States Constitution, Art. II, Section 2, cl. 1; See United States v. Klein, 80 U.S. 128 (1872). It may be noted that the ex post facto provision of the Constitution was noted by the Supreme Court as also bearing on separation of powers: "The ex post facto prohibition also upholds the separation of powers by confining the legislature to penal decisions with prospective effect and the judiciary and executive to applications of existing penal law." Weaver v. Graham, supra at 29, n. 10. Under the separation of powers doctrine, it might be argued that the power to pardon is vested exclusively in the President, and may not be exercised or interfered with by another branch of government. See discussion generally of separation of powers doctrine in Buckley v. Valeo, 424 U.S. 1, 120-124 (1976); INS v. Chadha, 462 U.S. 919, 944-967 (1983), note United States v. Klein, 80 U.S. 128 (1872). In a case concerning state legislation, In re Kline, 70 N.E. 511 (1904), the state court there found that a repeal of a criminal statute could not affect the release of a prisoner finally and properly convicted under that former statute, since it would violate the separation of powers doctrine as both an unwarranted legislative interference with the judicial process, as well as a potential legislative infringement on the executive pardon power: The relator demurs to the answer, and in sists that, the "habitual criminal act" CRS-6 having been repealed, there is no longer 70 N.E. at 512. Emphasis added. |