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Constitution revision would allow retroactive criminal law changes

A coalition of mostly conservative organizations is joining former state Rep. Neil Combee to push a proposal from the Florida Constitution Revision Commission that would allow lawmakers to make new criminal statutes retroactive.

CRC Proposal 20 would repeal Article X, section 9 of the Florida Constitution, which dates back to 1885. Called the “Savings Clause,” the law 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.

An example is a law Combee sponsored in 2016, CS/HB 135, which eliminated the requirement for minimum prison sentences for people convicted of aggravated assault under various circumstances, including with firearms. With the Savings Clause, anyone who committed such assaults before CS/HB 135 went into effect still faced the old minimum sentences, even if they were charged and tried long after the bill was enacted.

A repeal of the clause, as proposed by CRC Proposal 20, could allow those defendants to face sentences under the lighter guidelines of the new law.

The clause, and its potential repeal, also might apply to whether or not the “burden of proof” law approved by the Florida Legislature last spring could be applied to people retroactively.

Under the new standard, the burden of proof is on state attorneys, not defendants, to demonstrate whether someone was or was not standing ground in a shooting, and therefore protected from prosecution. That standard might not apply to anyone alleged to have shot someone before when the new law went into effect this year.

Another example dated to 2014 when Sen. Rob Bradley‘s SB 360 rolled back mandatory minimum sentencing for certain drug offenses. Yet people who committed such crimes, who hadn’t been tried or even charged yet before the bill went into effect, still faced the old mandatory minimums.

New, reduced criminal laws would not be automatically retroactive. The Florida Legislature would have to stipulate retroactivity in the bills.

The Savings Clause and its repeal, if it happens, would not affect any legislative efforts to increase criminal sentencing or toughen the criminal law. Federal law prohibits expanded sentencing laws from being applied retroactively to someone who already has committed the crime.

The coalition — which includes The James Madison Institute, Unified Sportsmen of Florida, Florida Tax Watch, Freedom Partners Chamber of Commerce, FreedomWorks, the R Street Institute, Right On Crime, and Families Against Mandatory Minimums, among others — is pushing the amendment as an expression of reducing government overreach.

In this case, the government overreach involves criminal laws that the Florida Legislature later determines to be too much.

“The Savings Clause mandates that the cost of legislative overreach remains long after it has been corrected,” they wrote in a letter to Commissioner Jacqui Thurlow-Lippisch, Chair of the CRC General Provisions Committee.

“Proposal 20 frees the legislature from this rule, imposed in 1885, when virtually everything about Florida — its population, culture, demographics, and legislative process — was fundamentally different than it is today,” the letter argues.

The coalition contends that Florida is the last state in the union to have a Savings Clause that prohibits retroactive application of criminal statutes.

Written By

Scott Powers is an Orlando-based political journalist with 30+ years’ experience, mostly at newspapers such as the Orlando Sentinel and the Columbus Dispatch. He covers local, state and federal politics and space news across much of Central Florida. His career earned numerous journalism awards for stories ranging from the Space Shuttle Columbia disaster to presidential elections to misplaced nuclear waste. He and his wife Connie have three grown children. Besides them, he’s into mystery and suspense books and movies, rock, blues, basketball, baseball, writing unpublished novels, and being amused. Email him at scott@floridapolitics.com.

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