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March 29, 2007

Wondering about criminal legislation that sunsets

One of many intriguing aspects of California's Cunningham fix bill, SB 40, is that it has a Jan. 1, 2009, sunset provision.  Though I largely applaud the sentiment of having a sunset provision in what is obviously a short-term-solution bill, I fear that, as explained in this post, the sunset provision could cause special legal headaches.

As I thought about this issue more, I came to wonder generally about (a) whether there are past examples of criminal laws or sentencing legislation enacted with concrete sunset provisions, and (b) whether there are unique constitutional issues potentially raised by criminal laws with sunset provisions. 

Anyone have any information or thoughts on criminal law with sunset provisions?

March 29, 2007 at 08:28 PM | Permalink


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Georgia Law:
Georgia's Commercial Drug-Free Zones Law has an expiration provision regarding the areas designated as drug free zones. The law provides for harsher penalties for those convicted of drug related crimes within such an area. Any area designated as a drug free zone looses that designation after 5 years. See O.C.G.A. 16-13-32.6

Legal Issues:
Is there an equal protection problem with having some people criminally liable for Crime X if they violate Crime X the day before it expires but other people who engage in the exact same conduct only one day later will escape liability? Probably not, because the reverse problem arises with newly enacted legislation, and nobody would consider that to be an EP problem.

Sunset provisions look to be an efficient tool for dealing with temporary problems.

Posted by: Adam | Mar 29, 2007 9:33:27 PM

"Will state appellate courts enforce a sunsetted law being challenged by a criminal defendants? Should they? Can they?"

Probably. Probably not. See answer #1.

Posted by: rothmatisseko | Mar 30, 2007 4:25:37 AM

Sunset laws make sense when criminal penalties are increased dramatically or mandatorily. I'm thinking most specifically about the federal mandatory minimum drug penalties enacted with the ADAA of 1986. In the years since, we have seen these penalties result in serious negative consequences and injustices, most notably with the crack-powder cocaine sentencing differential. When the times change and the medical, sociological, and criminological evidence no longer support such drastic measures, there is often little political will to do the dirty work of abolishing such legislation. It's politically safer to do nothing. Just think if a sunset provision had been added to the ADAAs of 86/88. That is not to say these penalties would never have been renewed, but given the statistics on disproportionate minority confinement and similar travesties, the political will to fight for these provisions would likely have lapsed by now. Instead, we continue to struggle with this legacy as a nation and criminal justice system. Of note, the criminologist Al Blumstein has been an advocate of sunsetting mandatory minimums for some time:

A. Blumstein. “To Improve Criminal Justice, Let the Sun Set on Mandatory Minimum Sentencing.” Pittsburgh Post-Gazette, July 5, 1999, p. A16.


Posted by: Eric Sevigny | Mar 30, 2007 11:58:14 AM

Here is a recent bit of news regarding marijuana prohibition ordinance with a sunset clause that was recently renewed (Full story: http://stopthedrugwar.org/chronicle/479/cincinnati_reapproves_tough_marijuana_ordinance):

"The Cincinnati City Council voted Tuesday to renew a tough municipal marijuana ordinance it approved last year despite charges that it had not done what supporters said it would do: reduce violent crime. Thanks to strong local opposition to the ordinance when originally passed, it included a sunset provision and would have expired Friday if the council had not acted...But despite the ordinance's failure to achieve its stated goals, the council reapproved it. That will make the ordinance a campaign issue, Safer Cincinnati warned."

Posted by: Eric Sevigny | Mar 30, 2007 2:37:25 PM

I don't think converse sunset provisions are relevant - the Due Process clause isn't really implicated by them as it is in this case.

Posted by: rothmatisseko | Mar 30, 2007 3:55:01 PM

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