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September 6, 2018
The (complicated) Florida constitutional ballot initiative, Amendment 11, seeking to allow retroactive sentencing changes
My twitter feed lately has included links to "Yes on 11," which is a reference to the ballot initiative coming before voters in Florida that seeks to, according to the campaign, repeal "three obsolete or outdated provisions of Florida’s constitution." One of those provisions concerns sentencing reform, and here is more from the campaign website:
Florida's Constitution Revision Commission added Amendment 11 to the ballot by a vote of 36-1, the largest margin of any measure added to the ballot by the CRC this year.
WHAT DOES AMENDMENT 11 ACTUALLY DO?
There's no denying that Amendment 11 is confusing. It contains several provisions, the ballot summary is full of legalese, and it even appears contradictory in places. Here's a brief summary of Amendment 11 that will hopefully clear up any confusion.
Amendment 11 does three things, each related to some obsolete or outdated provision of Florida's constitution. Here they are:
1. AMENDMENT 11 AMENDS FLORIDA'S "SAVINGS CLAUSE" TO ALLOW RETROACTIVE APPLICATION OF CHANGES TO CRIMINAL STATUTES, INCLUDING REDUCTIONS OF CRIMINAL SENTENCES.
In 1885, delegates to the Florida constitutional convention added a provision to Florida's constitution that said whatever the sentence is at the time a crime occurs is the only sentence that matters, no matter what happens in the future.
Even if the legislature reduces the sentence for a crime later, courts can't go back and change it for anyone who's already been convicted. Florida is the only state in the country with this provision in its constitution.
Amendment 11 would give the legislature the authority to apply sentencing reforms retroactively, or reduce sentences for those who were convicted under old laws.
For examples of who would benefit from this change, click here.
2. AMENDMENT 11 REPEALS THE "ALIEN LAND LAW."...
3. AMENDMENT 11 REPEALS OBSOLETE LANGUAGE ABOUT A HIGH-SPEED RAIL SYSTEM....
WHAT DO THESE THINGS HAVE TO DO WITH EACH OTHER?
That's a good question! On the surface, a provision about criminal statutes, another about property rights, and another about an obsolete high-speed rail system don't really have much in common. So why are they all grouped together on the ballot? All three provisions are obsolete, outdated, or both....
These provisions were grouped together because none is controversial. No member of the public and no organization opposed any of the proposals in Amendment 11 at any public meeting of the Constitution Revision Commission. To avoid making an already long ballot even longer, the CRC grouped these uncontroversial proposals together....
Every element in Amendment 11 is exclusively a constitutional issue. Unlike some of the other amendments on the ballot, nothing in Amendment 11 is a policy issue that could be settled in the legislature.
Amendment 11 is a "cleanup" amendment. In 1998, Florida voters approved a similar amendment that bundled eight technical revisions to the constitution. Like those in Amendment 11, those provisions were not controversial.
Writing three different amendments for these proposals would make an already lengthy ballot unnecessarily longer. Bundling the repeal of outdated and obsolete provisions makes the voting process more convenient and allows voters to spend more time on the issues that have generated more controversy. The proposals in Amendment 11 are bipartisan, and passed by a vote of 36-1 in the Constitution Revision Commission.
Regular readers know my affinity for allowing retroactive sentencing changes, so I am all in on Amendment 11 (if only I was a Florida voter).
September 6, 2018 at 05:08 PM | Permalink
Comments
This is a political trick!
It's put together to LOOK like it will help the Florida Citizens, but NOT.
If passed, Amendment 11 will be the catalyst for the legislature being able to take prior convicted felons and put additional punishment on him/her.....mainly by sticking them in one of the private prisons that Florida politicians are so fond of.
Wonder how many of those politicians own stock in "The GEO Group-a Boca Raton-based company"??
Lobbyist for The GEO Group is Ron Book out of Miami.
Posted by: Don't Believe it | Sep 7, 2018 8:29:58 AM
I think it's dumb to have this type of provision in a Constitution prohibiting the retroactive application of reductions in sentence although Ex Post Facto Clause does bar retroactive application of increases in a sentence.
On the other hand, the experience in my state shows why retroactive application should be the exception not the rule. Back in the late 80's/early 90s, my state had a very liberal retroactive sentencing law. (Basically allowing any reduction prior to the mandate on direct appeal to benefit a defendant.) The problem was the the legislature kept tinkering with the elements of the offense and adding new "greater offenses." Thus conduct that may have been robbery second became stealing while the appeal was pending and involuntary manslaughter became either involuntary manslaughter 1st or 2nd depending upon evidence supporting the "new" element that distinguished involuntary manslaughter 1st from involuntary manslaughter 2d. (The problem was most severe in the sex cases where the legislature made multiple changes to the definition of deviate sexual intercourse over the decade and drug charges which were changed to include different levels of offense based on the weight of the drugs.)
It makes more sense to have a default rule of no retroactivity (avoiding the need to evaluate the facts of the case under the old law and the new law when the changes are numerous) but allowing the legislature to expressly authorize retroactive application when they are truly intending to reduce penalties on offenders.
Posted by: tmm | Sep 7, 2018 12:07:07 PM
ICCPR
Article 15
1 . No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.
If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.
Posted by: Claudio Giusti | Sep 7, 2018 2:59:30 PM
