This Article argues that the strong presumption against retroactive application of reduced punishments articulated in the Supreme Court’s recent decision, Dorsey v. United States, is neither historically grounded nor constitutionally compelled. Although not dispositive in Dorsey, the presumption may mislead legislatures in future contexts, whether addressing marijuana decriminalization or lessened punishment for file sharing, and in no way should signal to Congress that future changes should apply prospectively only. Although the Court reached the right result in applying the reduction in punishment for crack offenses to offenders whose sentences had not been finalized, the Court relied excessively on the general Savings Statute enacted in 1871. Congress enacted that statute not to discourage retroactive decriminalization or diminution in punishment, but to avoid the consequence of abating pending prosecutions and penalties that, at common law, followed from alteration of a criminal statute. Congress wished to prevent release of offenders when it recodified a law or increased the punishment for an offense without explicitly specifying that prosecutions could continue under the former enactment. The Savings Statute currently should be understood as a default in the face of congressional silence; once it is clear that Congress considered the temporal scope of its action, the presumption should disappear. The Article next explores whether alternative justifications support a strong presumption for prospective application of any legislative change. It initially turns to the norm against retroactive lawmaking. The conventional reasons for distrusting retroactive measures have little applicability in the context of legislative amelioration of punishment. The Article then considers two separation of powers concerns that might justify a rule against retroactive application of congressional leniency: first, whether Congress’s reduction of sentences would interfere with the President’s pardon authority under Article II, and second, whether Congress lacks the power to undo a final decision of the judiciary. The constitutional arguments raise no serious barrier to retroactive application of congressional leniency. On the other hand, the Article rejects the notion that Congress, in light of equal protection principles, must benefit those who previously committed the offense. To be sure, ignoring the plight of prior offenders may seem grossly unfair, and deterrence is not a justifiable reason to treat similarly situated offenders so disparately. Nonetheless, the Article argues that retribution and institutional rationales can justify the differential punishment scheme and survive equal protection scrutiny. In short, because there are no compelling policy or constitutional grounds to presume that congressional leniency should apply prospectively only, Congress should be accorded the discretion to determine where to draw the line in determining the proper amount of retribution for those who committed offenses before the decriminalization or diminution in punishment.
Harold J. Krent,
Retroactivity and Crack Sentencing Reform,
U. Mich. J. L. Reform
Available at: https://repository.law.umich.edu/mjlr/vol47/iss1/2