failure to apply criminal justice
reforms retroactively causes
disparate punishments
Recent laws aimed at easing lengthy “tough on crime” punishments typically do not apply retroactively, which disproportionately harms Black and Hispanic people, the Huffington Post reports.
Several states have passed criminal justice reform legislation aimed to correct harsh sentencing practices. But individuals are still subject to dramatically different retributions depending on the date of their sentencing, according to the article.
“I really believe that it’s not moral to change a statute to the benefit of defendants without making it retroactive,” Professor Mark Osler of the University of St. Thomas School of Law, said in an interview.
“If something was wrong and we change it, to deny that benefit to the people who are in prison is unprincipled.”
About a dozen states automatically increase adult prison sentences because of juvenile felony records. Washington state lawmakers recently introduced a bill that would end this practice and allow resentencing for persons handed longer terms because of their juvenile records. But lawmakers amended the bill to prevent application to people already sentenced.
In California, non-retroactive legislation passed in 2017 allows judges to eliminate additional penalties for possessing a firearm during a crime. About 37,000 individuals — more than one-third of the state’s prison population — have a gun enhancement added to their sentence.
According to Initiate Justice, an organization seeking to end incarceration through inside-out organizing, about 89% of those are people of color.
Anthony Linares, a senior inside organizer for Initiate Justice, is a resident of Corcoran State Prison with a 34-year sentence, much of which results from enhancements and California’s Three Strikes Law.
“It’s hard to want to give a person a second chance, but people can change,” said Linares. He urged lawmakers to pass legislation to make the 2017 law retroactive.
“There’s a real fear that if we allow an opportunity for redemption and somebody does something wrong, how is that going to come back on me?” said Washington state Sen. Yasmin Trudeau, a Democrat.
“This is a societal problem about who we consider worthy. Once people are incarcerated and in the system, we somehow devalue them and consider them less worthy.”
Several states constitutionally restrict retroactive relief. In Oregon, it takes a supermajority in the Legislature to modify punishments enacted by voters.
A justice reform passed in 2019 stopped automatic transfer of 15-17-year-olds accused of certain crimes into the adult penal system. It was not retroactive because it lacked supermajority support. Lawmakers amended the bill to exclude those convicted before its passage from relief if they petitioned the court for resentencing after its passage.
The federal Fair Sentencing Act of 2010 reduced the sentencing disparity between offenses for crack and powder cocaine. It only applied retroactively when the First Step Act passed in 2018. That legislation also amended federal law to eliminate the practice of “stacking” multiple violations in the same case but was not applied retroactively.
The First Step Act “was responsible for a lot of the most extreme and disproportionate sentences,” said Liz Komar, counsel at The Sentencing Project. “But, of course, we’re in the middle of a federal election cycle that’s all about crime, a lot of which is gun crime. So it’s a much tougher battle to go back for the people who were cut out of the First Step Act.”
Washington state’s reform bill addresses incarcerated individuals serving longer sentences because of their juvenile records.
Almost one-third of Washington state’s incarcerated have juvenile felony offenses. More than half of those are people of color even though the population is 77% White.
“Many of them came from impoverished communities, in large part because those are the communities where we see over-policing,” said Chelsea Moore, co-director of Look2Justice.
In 2021, Moore contacted state Democratic Rep. David Hackney, a former federal prosecutor, who admitted that some of the sentences he imposed were “draconian.”
Hackney supported the juvenile history bill and promised Moore he would fight to keep it retroactive. After two years, state representatives passed the legislation with retroactivity. However, in March, the state Senate passed an amendment that removed retroactivity.
“There are some Democrats, as well as Republicans, who just don’t understand sentencing reform. They see people in prison as bad and they should stay in for as long as they possibly can,” said Hackney.
Family members of incarcerated people marched on the capitol in Olympia, demanding retroactivity. Anthony Covert, a resident of the Walla Walla State Penitentiary and lead organizer for Look2Justice said, “We took it hard. We took it as a big middle finger.”
