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Failure to look back: a fundamental flaw in sentencing reform

| Nov 5, 2020 | Criminal Defense

Imagine that you’re a Colorado resident with a loved one – a spouse, perhaps, or maybe a child – serving time behind bars following a criminal conviction.

You have a problem with the specifics of the sentencing outcome, a reaction that is widely shared in the general public. It was so harsh as to be patently unfair and even illogical from any reasonable perspective. Your loved one is serving a prison term of many years for behavior that could seemingly have been addressed by an incarceration period of much shorter duration, or even an alternative-to-lockup outcome.

Then the law changes, with state legislators stepping in to address and ameliorate a harsh criminal result that reeked of unfairness and simply made no sense.

Lawmakers sometimes do that, with increasing regularity in recent years and in notably bipartisan fashion. They recognize – as does the public – that criminal law changes in the past often promoted overly punitive (and, in some instances, draconian) sentencing results. Take, for example, a decade-long prison term following a shoplifting charge.

Back to the above hypothetical. Notwithstanding the clear infusion of justice authored by legislators, what if their statutory adjustment yielding a more logical and humane outcome applies only prospectively?

Put another way: How would you feel if defendants newly sentenced for the same crime your loved one committed get a proverbial slap on the wrist? What would your reaction be if their freedom is quickly restored, while the person you care deeply about must serve out the entirety of what is now conclusively recognized as an unjustly punitive exaction?

It happens: Some sentencing reforms don’t fix past wrongs

The above-described outcome is far from rare. In fact, and as noted by a principal in a prominent reform advocacy organization, “Lawmakers frequently pass reforms that only apply prospectively.” That they do so is ironic, adds Kevin Ring, given that what prompts their mitigating efforts is stark realization that some select individuals are already unjustly suffering. Sadly, those persons benefit not a whit from new legal adjustments.

Why aren’t sentencing reforms always retroactive?

Ring notes in an article he recently penned for the publication Above The Law these two key reasons why sentencing reform doesn’t routinely look backward as well as forward:

  • Lawmakers fear voter backlash in the event that individuals freed following reform edicts reoffend; and
  • Some offenders were sentenced on lesser charges negotiated in plea deals that prosecutors say they would never have made had they known that outcomes would be susceptible to change

There are weaknesses relative to both those points, stresses Ring. “Fearmongering occurs every time a reform is proposed,” he states, “whether it is retroactive or not.” And a new reform measure can always mandate that any individual potentially eligible for sentencing readjustment be reexamined by a judge, with prosecutorial input being part of the process.

Ring argues that sentencing reform equates to only partially realized justice when it fails to always consider persons “who made their mistakes before lawmakers corrected faulty laws.”

That is certainly something to think about, isn’t it?

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