Abstract

http://ssrn.com/abstract=1443272
 
 

Footnotes (215)



 


 



In With the New, Out With the Old: Expanding the Scope of Retroactive Amelioration


S. David Mitchell


University of Missouri


American Journal of Criminal Law, Vol. 37, p. 1, 2009
University of Missouri School of Law Legal Studies Research Paper No. 2009-21

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.

Number of Pages in PDF File: 52

Keywords: retroactive, amelioration, retroactivity, decriminalization, sentence, saving provisions, saving clause

Accepted Paper Series





Download This Paper

Date posted: August 6, 2009 ; Last revised: May 3, 2012

Suggested Citation

Mitchell, S. David, In With the New, Out With the Old: Expanding the Scope of Retroactive Amelioration. American Journal of Criminal Law, Vol. 37, p. 1, 2009; University of Missouri School of Law Legal Studies Research Paper No. 2009-21. Available at SSRN: http://ssrn.com/abstract=1443272

Contact Information

S. David Mitchell (Contact Author)
University of Missouri ( email )
Missouri Avenue & Conley Avenue
Columbia, MO 65211
United States
Feedback to SSRN


Paper statistics
Abstract Views: 927
Downloads: 105
Download Rank: 154,573
Footnotes:  215

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo8 in 0.234 seconds