Criminal Law Changes in Your Favor

The beginning of a new year always brings a raft of new state laws, including new criminal laws. Most people understand that new criminal laws cannot criminalize past conduct that was lawful when it occurred or impose harsher penalties on crimes that already have occurred. These sorts of retroactive criminal laws are known as ex post facto laws and are constitutionally barred. What about changes in the law that are favorable to criminal defendants? Suppose someone is busted for marijuana possession on December 30, and hypothetically a new law takes effect two days later decriminalizing the possession of marijuana. Does the criminal prosecution go away? What about people who are already convicted and perhaps in jail?

These people are probably out of luck. There is no general right to have the new, more favorable law applied to your situation, although there are some exceptions we will discuss in a moment.

Historically, the common law had two doctrines to deal with new, more favorable criminal laws: abatement and amelioration. Abatement described a new law that decriminalized past conduct, such as in our example of the decriminalization of marijuana possession. Amelioration described when a new law lessened a preexisting punishment, such as reducing the punishment for marijuana possession from a felony to a misdemeanor. Under the doctrines of abatement and amelioration, courts would usually apply newer criminal laws when they were more favorable to the defendant.

Change came not from developments in criminal law specifically but changes in government more generally. As legislatures enacted more statutes, it became more difficult to foresee all the ways the new statutes might affect old statutes. To head off problems, many state legislatures passed what are called “general savings statutes.” These laws provide that courts should not read the enactment of any new statute as altering existing statutes or court judgments unless the new statute expressly says otherwise. Courts in many states interpreted these general savings statutes to eliminate the court-made doctrines of abatement and amelioration, leaving us where we are today with the general rule that even a new, more favorable criminal law does not have retroactive effect. There are exceptions. First, the legislature always can provide otherwise in the new law.

Second, the general savings statutes say procedural changes in the law are effective immediately. In many cases, the line between a substantive change and a procedural change will be fuzzy. Suppose a new law says a defendant can be charged with marijuana possession only if the defendant is also charged with another crime. Is this new law a change in substance about what the crime of marijuana possession is or a change in procedure about how the state proves the crime? Either outcome is defensible, but for a defendant charged only with marijuana possession when the law takes effect, the answer will determine whether he walks free.

A third exception exists in about ten states, including Illinois. In these states, the general savings statutes eliminate abatement but they leave in place the doctrine of amelioration. For example, Illinois’s general savings statute begins by saying that the enactment of a new statute does not change whether any offenses were committed under a former law. The Illinois statute then continues by saying that if the new law mitigates any punishment under a former law, the defendant can choose to have the new law apply for how the punishment is determined. The Illinois law has an important limitation: it does not apply to persons who were already sentenced.

Persons who already are sentenced need to look to the executive’s power to pardon or commute sentences as well as look to parole boards who similarly would have discretion to consider how new laws might have changed the criminality of or punishment for past conduct. Prosecutors also have discretion whether to bring cases where the law has changed. As I have observed before, not every remedy lies with the judiciary.