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August 11, 2009

Timely reflections on sentencing retroactivity

As Congress considers reducing crack sentences and state work on reducing their prison population, the retroactive application of new sentencing rules that reduce sentences is an especially important issue these days.  Consequently, I was pleased to see this timely new piece on SSRN by S. David Mitchell, titled "In With the New, Out With the Old: Expanding the Scope of Retroactive Amelioration." Here is the abstract:

The legislative decision to amend a statute and reduce a sentence but not to apply it retroactively to pending prosecutions or to finalized convictions is in accord with the principles of retroactivity, but contrary to legitimate goals of punishment, i.e. deterrence and retributivism.  Genarlow Wilson, convicted at seventeen of aggravated child molestation, a felony, for consensual oral sex with a fifteen-year old classmate, was sentenced to a mandatory minimum of ten years. While his appeal was pending, the Georgia Legislature reclassified the conduct as a misdemeanor and reduced the sentence to a maximum of one year but decided not to apply the changes retroactively to him.  I use the Genarlow Wilson case as a backdrop to examine the denial of the retroactive application of ameliorative sentencing changes that is manifested through the use of a legislative device known as the express saving clause or a general saving statute.

Currently, in the majority, ameliorative sentencing changes are applied retroactively provided there is a clear expression of legislative intent.  Dissatisfied with this approach, a minority of jurisdictions engage in retroactive amelioration routinely either judicially or legislatively.  While the courts in these jurisdictions apply ameliorative changes retroactively despite the existence of a general saving statute in contravention of the rules of statutory construction thus bordering on what some may label as judicial activism, the legislatures have created an ameliorative amendment exception to the general saving statute.  Each applies ameliorative sentencing changes retroactively but restricts the application of such changes to circumstances in which there is neither an express saving clause nor has final judgment been determined.  In my proposed retroactive amelioration statute, I advocate for ameliorative sentencing changes to be applied to pre-final judgment defendants adopting the current minority legislative practice and to those with finalized convictions through an administrative sentence readjustment process.

August 11, 2009 at 09:04 AM | Permalink


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Wait for it, wait for it . . .

Posted by: anon | Aug 11, 2009 9:44:43 AM

Prof. Berman,
You might be interested in this 4th Circuit sentencing op from yesterday. A little embarrassing for the district judge.


Posted by: Jay | Aug 11, 2009 10:31:17 AM

This brings up a question of why the American criminal-loving lawyer loves the criminal so much.
Every single social and political problem in the US is the fault of the lawyer. The prospering of our enemies is from the lawyer protection of the terrorist. All crime is the fault of the lawyer. All poverty. The economic crisis. The high cost of health care. Name a social problem. A lawyer is making a living from it, and preventing a substantive solution.
The system is rigged airtight against the victim. Only self-help remains against the criminal cult enterprise that controls the three branches of government.

The more reliable guide to moral decisions is Reason. The most reliable guide to Reason is the New Testament according to St. Thomas. If this is true, the Reasonable Person may really be 13th Century judge code for Jesus Christ. You learned this stuff when you studied the High Middle Ages. Law school indoctrination made you forget high school and freshman year of college. The reason this indoctrination took place is that supernatural doctrines violate the Establishment Clause.

Posted by: Redundancy Clause | Aug 11, 2009 12:16:05 PM

This brings up a question of why the American criminal-loving lawyer loves the criminal so much.

No, it actually doesn't. Shut up and crawl back in your hole.

Posted by: anonymous | Aug 11, 2009 1:54:17 PM

Your friendly, loving remark is much appreciated. I am very offended by how unfair and misleading it is. However, I am not reporting you.

Posted by: Redundancy Clause | Aug 11, 2009 2:09:23 PM

Redundancy Clause is a gifted prophet of jurisprudence, a genius. He is bringing to the lawyer what is self-evident to everyone who took 10th Grade World History, but stubbornly remains beyond the grasp of the lawyer.

Every point is gem worth extensive study in advanced judge schools, especially criminal court judge schools.

Posted by: Supremacy Claus | Aug 11, 2009 5:52:58 PM

"...legitimate goals of punishment, i.e. deterrence and retributivism."

These are silly and immature goals of the criminal law. Incapacitation is the sole goal worth anything to the owner of the criminal justice system, the public.

If people were capable of feeling deterrence, just the risk of arrest would prevent crime. Career, violent criminals lack the ability to feel fear, influence by consideration of future consequences, or to feel empathy for victims. Nothing can fix those defects, likely brain based.

Retribution is from the Bible, and unlawful in this secular nation. The people spending money do not care about it. It is pretext for a lot of spending, which has no value to victim or public.

These arguments always go in one direction. To shortening the inconvenience of prison to the lawyer customer. That is so that the criminal may return to getting busy, and by increasing crime rates, increase lawyer jobs.

Find me a recent article using the same goals of the law to advocate for longer sentences. You can't.

Posted by: Supremacy Claus | Aug 11, 2009 6:02:23 PM

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