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State Advocacy News: Retroactivity and Criminal Justice Reform

November 05, 2018
Voters decide on ballot proposals for retroactive sentencing and the restoration of voting rights to people with felony convictions.

Finding practical solutions to address mass incarceration can be difficult. Including retroactive reforms, applying to persons currently incarcerated, into sentencing measures can be challenging. In recent years, incarcerated persons have benefited from a range of policy improvements in states like California while efforts are underway in Florida and Oklahoma to retroactively remedy excessive sentencing.

Florida – Retroactivity and the Ballot

Many are following Amendment 4, the measure to expand voting rights to up to 1.4 million Floridians. However, Amendment 11 is on the ballot, too. The amendment would remove language from the state’s constitution that blocks the legislature from retroactively applying changes to criminal penalties. Limits on retroactivity are due to the ‘Savings Clause’ provision in Florida’s Constitution. The provision prohibits the Florida Legislature from applying reduced sentencing requirements and other criminal law changes to people who committed crimes before the new rules went into effect. One example was the state’s 2014 measure, SB 360 which scaled back mandatory minimum sentencing for certain drug offenses. Persons whose offense occurred prior to the law change, but hadn’t been tried or even charged before the bill went into effect, were sentenced to the old mandatory minimum.

If voters approve Amendment 11, statutory law changes would not be automatically retroactive; the legislature would have to authorize retroactivity legislatively for a particular sentencing reform measure. Amendment 11 also includes two other components to modernize Florida’s Constitution.

California – Targeting Reforms to Prison Population Reduction

Proposition 47 was passed by voters in 2014. The measure reduced the penalties for certain lower-level drug and property offenses. In recent years, the California Department of Corrections and Rehabilitation implemented a number of court-ordered population-reduction measures that helped reduce the prison population. Retroactive application of Prop 47 resulted in early releases from jails and prisons for persons already serving time for offenses that qualified for resentencing from a felony to a misdemeanor. Officials estimate that Prop 47 reduced the state’s prison population by 4,700 during the first year.

Oklahoma – Strategies for Retroactivity

During 2016, Oklahoma voters approved State Question 780, which reclassified drug possession as a misdemeanor instead of a felony. The ballot initiative was not retroactive and hundreds of persons sentenced prior to the law change were left out.

As a solution, Oklahomans for Criminal Justice Reform launched a commutation campaign for persons sentenced to SQ 780 offenses prior to the reform. Currently, the advocacy group is working with more than 30 incarcerated men and women to apply for commutations with the state’s Pardon and Parole Board. In Oklahoma, the Governor can approve the commutation of a sentence after a favorable recommendation of the Pardon and Parole Board.

Other News

  • Idaho – State officials discussed scaling back mandatory minimums.
  • New Jersey – Racial impact statement requested for marijuana legalization measure – S 2703.
  • Pennsylvania – Hundreds rallied in support of SB 942, legislation to end life without parole sentences.
  • Wisconsin – Baron Walker was recently released from a 60 year prison term, despite several denials of parole, after a sentence modification when the Milwaukee County prosecutor reopened the case.



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