A potential sentence for an offence may be increased if the offender has a record of serious offending.
The policy would be to reflect the social danger posed by such an offender, evidenced by persistent serious criminality.
What if the offences for which an offender has convictions are amended by subsequent legislation to make them less serious? They might no longer make the offender eligible for the increased sentence for the latest offence.
In some jurisdictions, legislation about the interpretation of legislation [1] may make the answer fairly clear.
In Brown v United States 22-6389 (May 23, 2024) the Supreme Court of the United States divided over, if I might put it very broadly, the effect of the change in seriousness of some previous drug convictions for the purposes of sentencing for a firearms offence.
The majority (Alito J, joined by Roberts CJ, Thomas, Sotomayor, Kavanaugh and Barrett JJ) held that the policy of the legislation under which the present sentences were imposed was to reflect the increased social danger posed by persistent offenders, and that this danger was present regardless of the legislature’s reduction in the seriousness of the previous offending.
By way of example, the majority referred to the fact that after Prohibition, the legalization of alcohol “did not by any means ensure that these bootleggers would take up legitimate jobs … many of them simply shifted to other illegal enterprises.”
The position of the minority (Jackson J, joined by Kagan J and in part by Gorsuch J) was that the law is applicable as at the time of the present offending. This, they said, was clear from the plain words of the legislation under which the present sentences were imposed.
The minority added, in a part not joined by Gorsuch J who otherwise joined in the dissent, that the majority had not explained how the future dangerousness of an offender is best assessed by outdated assessments of the seriousness of previous offending. Furthermore, the majority’s interpretation did not include present offenders whose earlier offending would now be assessed as serious but which was not serious when it occurred.
And in a footnote Jackson J described the reference to bootleggers as “strained”, noting that many had successful legitimate careers, and in any event there was no evidence that Congress drew the same lessons from the Prohibition era when considering the present legislation.
The different approaches in this case leave us wondering whether dangerousness is best assessed by act or by attitude.
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[1] See, for example, the Legislation Act 2019 [NZ], s 35 . As its heading indicates, this gives continuing effect to powers exercised under legislation that has been repealed or amended. An example, I think, would be a conviction entered for an offence that has been amended or repealed; the conviction continues in existence, subject to contrary legislative provision. Sections 11 and 12 appear to be consistent with this. Contrary legislation might deem the earlier offences never to have happened, or might establish a procedure to “expunge” the convictions, for example as does the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act 2018 [NZ]; for the effect of expungement, see s 9.
