20 December 2006

Temporal Justice

Some countries include in their Bill of Rights, a provision that states that if someone is convicted of a crime, and the sentence for that crime is later reduced by the legislature, that people currently serving a sentence under the old regime are entitled to have their sentences revised to the maximum sentence allowed under the new law.

Neither the United States Constitution, nor the Georgia Constitution has such a provision. But, it should. It is a matter of simple justice. The Georgia case that is making that point now involves a boy sentenced to mandatory minimum of ten years in prison without parole for receiving consentual oral sex from a fifteen year old girl when he was seventeen years old. Georgia now punishes that crime with a maximum of a year in jail as a misdemeanor. In many states, it wouldn't be a crime at all.

The 8th Amendment and the equal protection clause of the 14th Amendment are more than sufficient to provide a remedy in cases like these, using legal reason much less imaginative than that used to apply most of the federal bill of rights to the states (a well established doctrine known as "partial incorporation"), to create the "dormant commerce clause" doctrine to invalidate many state regulations of interstate commece, to make proof beyond a reasonable doubt or the presumption of innocence constitutional rights, or to imply protections for privacy or a right to travel, by viewing them in light of other protections of the bill of rights.

This punishment is surely unusual, and by its extremity, is cruel. There is even a credible argument in this case, as in cases involving juvenile executions, that the punishment is so extreme relative to other state laws, federal law, international norms, and existing Georgia law, that it violates the cruel and unusual clause of the 8th Amendment to the United States Constitution.

There is also a not entirely frivilous argument in this case that, as applied, the previous statute was enforced in such a racially discriminatory manner that it violated equal protection clause of the 14th Amendment in a manner that even the broad protections of prosecutorial discretion are insufficient to shield.

But, while current law does not support the argument that people currently incarcerated have an equal protection interest in being punished no more harshly than they would have been had they been convicted today, I believe that this would be a healthy doctrine to establish which is faithful to the inherently vague concept of equal protection and would not do any grave injustice.

There is some precedent for this as well. While the high court has never articulated it in these terms, major U.S. Supreme Court decisions invalidating whole classes of persons who would otherwise be eligible for the death penalty have been applied retroactively. Every death row in the country was emptied when the death penalty was invalided in the 1970s, even for those who had exhausted their direct appeals. The same thing was done when the death penalty was recently abolished for crimes committed while the offender was a juvenile or mentally retarded.

Why should people currently serving sentences no longer subject to such a severe punishment be entitled to benefit if a change in the law is made by a court, but not if a change in the law is made by a legislature?

In truth, this right wouldn't impact that many cases, most of the time.

Few people in prison at any given moment in time are there for crimes for which they were convicted more than five or six years ago. Those who had already completed their sentences would be unaffected. And, many people currently serving time would receive only partial benefit from a change in the law because they had already served more than the new maximum sentence for the crime for which they were convicted. For example, if the maximum sentence for burglary was reduced from ten years in prison to five years in prison, a prisoner who had already served eight years in prison would have his sentence reduced by only two years.

Many people serving long sentences in prison are doing so concurrently for multiple crimes. All of which would have to have sentences change for a change in the law to have any impact. If someone was sentenced to fifteen years for kidnapping and a concurrent fifteen year sentence for armed robbery, as a result of the same incident, and the maximum sentence for armed robbery was reduced to ten years, the actual sentenced served wouldn't change.

Also, only a minority of those serving sentences in prison at any one time are serving the maximum allowable sentence for that crime, so they would be impacted only if the maximum sentence for the crime was reduced below the lesser sentence actually imposed. If the sentencing range for burglarly used to be four to twelve years and was reduced to two to eight years, a burglar sentenced to seven years in prison for his crime would receive no relief.

The substantive criminal law is also sufficiently stable that dramatic reductions in the sentence that would be permissable for a particular change are rare. Very few offenses go from being punishable by up to ten years without parole as a serious felony, to being punishable by up to a year in jail for a misdemeanor, in a single legislative act. When it does, it is usually because the legislature recognizes that the old sentences were a grave injustice in the impacted class of cases.

Also, in some cases, the relief would have been provided anyway. People in this situation while a small percentage of the total population of prison inmates, are prime candidates for executive clemency. Most never get that clemency, but a fair share of those who do are facing this sort of injustice, or some similar injustice.

Law exists to encourge people to do the right thing, not to prevent people from doing the right thing. An expansion of the 14th Amendment to allow such a reform, would be eminently reasonable.

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