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  1. #1
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    A Question for Kelly...about the missing

    I just thought of something that I wanted to ask you. When my daughter's killer was caught 8 years after the murder he had to be tried according to the laws of the year that the murder occured instead of according to the laws of the year he was caught.

    What happens when a missing person has been murdered but they aren't found for a long time...and then the killer is eventually caught OR the person is found but the killer isn't caught for a long time. By what years laws is the killer tried? Is he tired by the laws of the year the person went missing/murdered or is he tried by the laws of the year he is caught?

    It makes a huge difference. My daughter's killer got 27 yrs but if he had been tried by the laws of 2002...when he was caught... he would have gotten LWOP or the death penalty.

    I think it is so wrong when a killer is tried according to the laws of the year the murder actually took place. He is actually being rewarded for not getting caught and then he gets a lesser sentence then he should get. Any killer should be tried by the laws of the year he is caught in.

    What do you think and how can this be changed?

  2. #2
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    Hello,

    I am so sorry you've had this experience.

    As we deal with missing persons and not crime victims, I do not have training or knowledge in this area. I might know someone who does, however, and will be glad to refer this question to her.

  3. #3
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    Unfortunately this type of thing can't be changed without overhauling the federal Constitution. There's certain provisions in the U.S. Constitution that basically prevent criminals from being punished by laws that passed after the crime - its a due process thing.

  4. #4
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    Quote Originally Posted by bykerladi
    Unfortunately this type of thing can't be changed without overhauling the federal Constitution. There's certain provisions in the U.S. Constitution that basically prevent criminals from being punished by laws that passed after the crime - its a due process thing.


    Thank you for answering. That is a shame that it can't be changed. It seems like most everything is in favor of the criminal.

  5. #5
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    I'm sure bykerladi is right.

    I did ask Vicki Kelly, founder of the Tommy Foundation. Her son Tommy was murdered some years back. This is what she said:

    "This is something this lady should ask her District Attorney's and/or Victim's Assistance office as each state is different. Unfortunately I beleive they face the sentence that was law at the time of the offense.

    The adult who injected tommy with meth only was convicted of a class C misdomeanor - 90 days, then after we passed the Tommy Law. The new sentencing of the offense to a Class A felony has been used in sentencing some adults here for the same crime to 10 years. We couldn't go back and apply the new sentencing for Tommy's perp."

  6. #6
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    The term of law is "ex post facto". Those types of laws are prohibited by the U.S. Constitution, Article I, Section 10. I pulled out my old criminal law book and was going to post some more information, and then I realized how incredibly boring that would be


    So here's some links if anyone is interested:
    http://www.law.cornell.edu/lexicon/ex_post_facto.htm
    http://en.wikipedia.org/wiki/Ex_post_facto
    http://www.bartleby.com/59/14/expostfactol.html

  7. #7
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    Quote Originally Posted by Kelly
    I'm sure bykerladi is right.

    I did ask Vicki Kelly, founder of the Tommy Foundation. Her son Tommy was murdered some years back. This is what she said:

    "This is something this lady should ask her District Attorney's and/or Victim's Assistance office as each state is different. Unfortunately I beleive they face the sentence that was law at the time of the offense.

    The adult who injected tommy with meth only was convicted of a class C misdomeanor - 90 days, then after we passed the Tommy Law. The new sentencing of the offense to a Class A felony has been used in sentencing some adults here for the same crime to 10 years. We couldn't go back and apply the new sentencing for Tommy's perp."

    I was told that my daughter's killer had to be sentenced by the 1993 laws when the murder took place. I just think that is so unfair because it rewarded him for the 8 years that he was on the run. I just think a person should be sentenced using the laws of the year they are caught in. I was wondering if it is possible to change a law like that.

    I can't believe a person would only get sentenced to 90 days for committing murder. That is horrible. That would have broken my heart. I'm glad that Tommy's parents got that changed. I know that after a law is changed it only applys to people who commit a offense after the law is changed.

    I'm thinking of other people who lose a loved one to murder and the killer isn't caught for years and then they end up with to light a sentence because LE has to go by the law of the year the murder took place. It is especially unfair when LE know who the killer is but he runs and gets away for years and then is rewarded by getting a lesser sentence.

  8. #8
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    Quote Originally Posted by bykerladi
    The term of law is "ex post facto". Those types of laws are prohibited by the U.S. Constitution, Article I, Section 10. I pulled out my old criminal law book and was going to post some more information, and then I realized how incredibly boring that would be


    So here's some links if anyone is interested:
    http://www.law.cornell.edu/lexicon/ex_post_facto.htm
    http://en.wikipedia.org/wiki/Ex_post_facto
    http://www.bartleby.com/59/14/expostfactol.html


    So a person could never do anything about getting the law changed to where a person is sentenced by the laws of the year he is caught for murdering someone instead of the year the murder actually took place? I know it wouldn't affect a change in my daughter's killer's sentence but it would make a difference to other families who are still waiting for the killer of their loved one to get caught.

  9. #9
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    In the United States, there is no way to make a law punishing people for past crimes with newly changed consequences UNLESS the United States Constitution is overhauled. So, in answer to your question, no. Gotta love those damn founding fathers...

  10. #10
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    Quote Originally Posted by bykerladi
    In the United States, there is no way to make a law punishing people for past crimes with newly changed consequences UNLESS the United States Constitution is overhauled. So, in answer to your question, no. Gotta love those damn founding fathers...


    That is the pitts. The founding fathers couldn't see into the future or a lot of laws would be different. They never dreamed that crime would be like it is today I would imagine.


  11. #11
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    Just like the founding fathers couldn't see how evil people could become, otherwise I think they would've excluded the "cruel and unusual punishment" clause. Back then, the biggest sin was stealing or skipping church, and "cruel and unusual punishment" meant midieval torture devices. I say bring back the guillotine and public hangings...

  12. #12
    knale is offline Verified insider - Jennifer & Adrianna Wix case
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    Quote Originally Posted by bykerladi
    Just like the founding fathers couldn't see how evil people could become, otherwise I think they would've excluded the "cruel and unusual punishment" clause. Back then, the biggest sin was stealing or skipping church, and "cruel and unusual punishment" meant midieval torture devices. I say bring back the guillotine and public hangings...

    I agree!!! Maybe after attending a few public hangings the creeps would think twice about bothering our precious children! Our founding fathers had great ideas and I know that the constitution is a great thing, but doesn't it seem logical that since people have changed so much and the world we live in is so violent that it would stand to reason to change some of the things that were origionally thought to be all we would need for our laws to be based upon???

  13. #13
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    Quote Originally Posted by bykerladi
    Just like the founding fathers couldn't see how evil people could become, otherwise I think they would've excluded the "cruel and unusual punishment" clause. Back then, the biggest sin was stealing or skipping church, and "cruel and unusual punishment" meant midieval torture devices. I say bring back the guillotine and public hangings...
    Um, murders were committed back in the 1700s too. Including some incredibly heinous ones. And they were just as common then as they are now, if not more so.

  14. #14
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    I don't think crime was as rampant in the 1700s as now. And, even if it was, apparently the founding fathers didn't care because our society is based upon a system of fairness to criminals and screw the victims.

  15. #15
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    Quote Originally Posted by bykerladi
    I don't think crime was as rampant in the 1700s as now. And, even if it was, apparently the founding fathers didn't care because our society is based upon a system of fairness to criminals and screw the victims.
    I believe (at least, I hope) that the Founding Fathers created a system that protected citizens from a tyranny by government such as the British subjected the colonists to. The systems that they created were to protect the innocent from the sort of "cruel and unusual punishment" that was depicted in the last part of the movie "Braveheart". They surely did not mean that prisoners could complain that their sandwich was too soggy or other ridiculous interpetations of the common-sense terms used in the Constitution.

    (An example: The framers of the Constitution specifically listed that the death penalty was justified in certain crimes such as "high treason", yet some people illogically conclude that the Constitution should be interpeted to ban capital punishment as cruel and unusual. The only way to come to such a conclusion is to assume that the framers must have had too much to drink during the Constitutional Convention and forgot that they put in such a contradiction - LOL)

    I do not believe that the Founding Fathers can be blamed for the mess that future generations of lenient judges and unscrupulous lawyers have made of our judicial system. The only fault that can be found with them is that the did not have the foresight to see how degraded our common sense would become to distort the meaning of our Constitution.

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