Krent – Determining the Retroactive Reach of Decriminalization and Diminished Punishment

Dean Harold Krent has authored a new article for the Fordham Urban Law Journal’s online companion publication, CitySquare, which describes itself as being “a competitive and lively arena showcasing meaningful discourse between the nation’s top legal scholars.” Krent’s article, Determining the Retroactive Reach of Decriminalization and Diminished Punishment, is a reworked version of his larger article, Retroactivity and Crack Sentencing Reform, 47 U. Mich. J.L. Reform (2013), and responds to a piece of scholarship by S. David Mitchell, a criminal justice professor at the University of Missouri. Read an excerpt below:

Legislative decriminalization often leaves those previously convicted of the underlying offense in jail.  Similarly, when legislatures reduce the punishment for a particular offense, those convicted in the past do not generally benefit if their conviction has become final.

Focusing on a tragic incident in which a seventeen year-old in Georgia was sentenced to a ten-year term of imprisonment for consensual sex with a fifteen-year-old, Professor S. David Mitchell reexamines whether those convicted should benefit from legislative decriminalization or decisions to lessen punishment. In the Georgia case, the legislature reacted to the national furor over the sentencing by eliminating consensual sex among minors from the definition of aggravated child molestation, but it did not make the change retroactive.  Accordingly, Professor Mitchell urges recognition of a rule of complete retroactive amelioration, which would prompt release of all those previously incarcerated after decriminalization of an offense.  Similarly, Professor Mitchell recommends lessening punishment for those previously convicted when the legislature reduces a criminal penalty. Professor Mitchell argues that neither consequentialist nor retributivist theories of punishment support continuing punishment for those, like the seventeen-year-old, whose actions subsequently are decriminalized or punished less severely.

Click here to continue reading. Follow the discussion with Blanket Retroactive Amelioration: a Remedy for Disproportionate Punishments, S. David Mitchell’s response to Dean Krent.