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.