The Florida Bar

Florida Bar News

Bill providing some retroactivity when criminal sanctions are reduced clears Senate committee

Senior Editor Regular News

If the Legislature reduces the punishment for a criminal infraction, those lowered sanctions would apply to those already arrested and awaiting trial or sentencing, but not those already sentenced under the older, harsher penalties, under a bill moving through the Florida Senate.

Sen. Tom LeeThe Criminal Justice Committee on April 1 passed and sent to the Rules Committee an amended SB 1656 implementing part of Amendment 11 approved by voters last November. (The remainder of that “technical’ amendment removed outdated language from the Constitution.) The amendment deleted language from Art. X, Sec. 9, to allow reductions in criminal penalties approved by the Legislature to apply retroactively.

SB 1656 as originally drafted provided that retroactivity would apply in future laws only when the Legislature specifically provided for retroactivity. It also addressed an arcane common law issue known as the abatement doctrine which could make, under an 1881 Florida Supreme Court opinion, the underlying criminal statute invalid if penalties were reduced.

Before the Criminal Justice Committee, sponsor Sen. Tom Lee, R-Brandon, presented an amendment he worked out with Sen. Daryl Rouson, D-St. Petersburg. Rouson has sponsored a competing bill which would provide retroactivity for all past offenders. He was the prime sponsor on the retroactivity amendment in last year’s Constitution Revision Commission, which sent it to the voters. Lee also served on the CRC.

Lee presented an amendment at the committee, which he said had been worked out with Rouson and said further changes may be made as the bill proceeds in the Senate.

“Essentially under the amendment, we codify that in the event you have been charged with a crime and while you’re moving through pipeline in the process, the Legislature acts and reduces the sentence on your crime, you would be entitled to that lesser [punishment] under this legislation,” Lee said.

Sen. Randolph Bracy, D-Orlando, said he thought the amendment requires retroactivity to be automatic if the Legislature reduces a penalty, including covering those already convicted as well as those awaiting trial and sentencing.

Lee replied that there were concerns about separation of powers, noting “There is a great legal debate as to whether our Legislature can apply this law retroactively to post-conviction cases. Clemency power is vested in the Cabinet.”

“This is a fight for another day,” Lee added.

He also said it might make it easier to pass criminal justice reforms because there would be less concern about who might be released from prison.

Lee said he and Rouson would jointly present the bill at its next stop at the Rules Committee and would continue to work with those concerned about the issue.

The bill passed the committee 3-1, with Bracy casting the no vote.

“I think we are restricting retroactivity; I don’t think that was the will of the voters,” he said. “.. . . When I look at the amendment, and it seems pretty clear what was intended.”

Assistant Attorney General Richard Martin told the committee that Attorney General Ashley Moody supports Lee’s bill as amended.

Although Rouson was not at the meeting, he had earlier told the Bar News: “Last November the Legislature received a mandate with the passage of Amendment 11 to pass legislation that allows the retroactive reduction of sentences. Our criminal justice system is built on a foundation of blind justice. Justice should be blind in its execution but not in its temporal view. When the law is changed so that a penalty is reduced, it should be reduced for all those affected in the criminal justice system, not just those who have yet to be sentenced.”

The committee heard from several former inmates and families of current inmates who said it was unfair to have different penalties for the same offense simply based on the time a defendant was sentenced and that not having retroactivity keeps many rehabilitated inmates in prison at great expense to the state and harm to their families.

A similar House measure, HB 7069, addresses the abatement issues and provides only for retroactivity when the Legislature specifically provides for it. That bill has cleared the House Judiciary Committee and been sent to the House floor.

At the House Judiciary Committee meeting on March 21, Rep. Juan Fernandez-Barquin said, “Right now, the [penalty reducing] amendment to a [criminal] statute could be interpreted as repealing it under the doctrine of abatement.” The Miami Republican, who is handling the HB 7069 for the Criminal Justice Subcommittee, went on to say the bill provides that “the amendment of the statute does not affect the current prosecutions [under the statute] and operates only prospectively and if there is going to be retroactivity, the Legislature need to affirmatively state that.”