Abatement, Savings Clauses, and Amelioration: A Framework for Getting it Right in Florida
In March 1880 a guy whose last name was Higginbotham was indicted in Marion County, Florida, for “assault with intent to murder.” He was tried and convicted in November 1880. In February 1881, while Higginbotham’s case was still pending, the Florida legislature repealed the assault statute under which Higginbotham was indicted, and passed a new assault statute, with different elements, in its place.
The repeal of the March 1880 assault statute was “complete in its terms,” and there was “nothing in the act of 1881 to make it prospective only; nor [was] there a saving clause preventing the operation of the repeal as to causes then pending, or continuing the repealed law in force as to such pending prosecutions, or violations of the then existing law.” Higginbotham v. State, 19 Fla. 557, 559 (1882).
Higginbotham appealed his conviction, in part on grounds that the legislature’s failure to include a saving clause meant that the state had no legal grounds to continue his prosecution. The Supreme Court of Florida agreed. Citing principles that were “well settled by repeated decisions,” the Court held that, “ if the law which created the offence is repealed, after the repealing law takes effect no further proceeding can be taken under the law so repealed . . .” Id. at 559–560.
The “well settled” principle on which the Higginbotham court relied is a common law rule known as abatement. The U.S. Supreme Court described the principle: “In case a statute is repealed or rendered inoperative, no further proceedings can be had to enforce it in pending prosecutions unless competent authority has kept the statute alive for that purpose.” United States v. Chambers, 291 U.S. 217, 223 (1934). Chambers goes on to cite several cases that “afford abundant illustration of this principle,” including one in which Chief Justice Marshall described the issue nicely: “It has long been settled, on general principles, that after the expiration or repeal of a law, no penalty can be enforced, nor punishment inflicted, for violations of the law committed while it was in force, unless some special provision be made for that purpose by statute.” Yeaton v. United States, 9 U.S. 281, 283 (1809).
Apparently, and reasonably, that Higginbotham walked free after he probably tried to kill someone was an embarrassment to the powers that be. So, on Tuesday, June 9,1885, the constitutional convention of the state of Florida voted to add the following provision to the constitution it would later adopt:
The repeal or amendment of any Criminal Statute shall not affect the prosecution or punishment of any crime committed before such repeal or amendment.
Eventually, that provision became Article X, sec. 9 of Florida’s constitution. It is known as the “savings clause”; the savings clause negated the Higginbotham holding. (See State v. Watts, 558 So. 2d 994, 999 (1990)). The savings clause has been interpreted to prevent retroactive application of substantive changes to criminal statutes, including reductions in penalties. (See, e.g., Smiley v. State, 966 So. 2d 330 (2007)).
Fast forward 133 years.
In November 2018, Florida voters approved Amendment 11, which included a change to Florida’s savings clause. As of January 8, 2019, that provision reads:
Repeal of a criminal statute shall not affect prosecution for any crime committed before such repeal.
As you can see, Florida voters — nearly 4.7 million of them!—deleted “or amendment” and “or punishment” from the savings clause. The practical effect of the change is that retroactive application of either an amendment to a criminal statute, or a repeal of a criminal statute that reduces penalties, no longer violates Florida’s constitution.
(A quick note on that last point.
As “repeal” also historically includes the situation of repeal and re-enactment with different penalties, the doctrine of abatement also was applied to cases in which Parliament reduced the penalty for a particular act. The conduct was still considered criminal, and only the penalty changed, but the doctrine prevented prosecution or punishment under either the older “repealed” law or the new law with lesser penalties, unless the courts were able to find a specific Parliamentary intent to the contrary. ( Comment, Today’s Law and Yesterday’s Crime: Retroactive Application of Ameliorative Criminal Legislation, 121 U. PA. L. REV. 120, 123.)
Note, however, that the authors of the 1885 Florida savings clause included the phrases “the repeal or amendment” and “the prosecution or punishment,” which suggests there is some distinction between “amendment” and “repeal,” and some distinction between “prosecution” and “punishment,” such that one can “affect” one in the pairing without necessarily affecting the other.)
Anyway, Florida now has a constitutional savings provision that covers the repeal of criminal statutes, and that extends to protect only the prosecution of crimes committed before such repeal. At the moment, however, Florida has no savings provision — either constitutional or statutory — that covers either the amendment of a criminal statute, or the repeal of a statute that reduces a criminal penalty.
The question is: post-Amendment 11, should Florida adopt a general saving statute? If so, what should that statute look like?
The first step in the analysis is to ask whether we need a new rule. It isn’t immediately obvious the answer is yes. After all, there isn’t no rule now. As the U.S. Supreme Court has noted, savings statutes “themselves recognize the principle which would obtain in their absence.” Chambers at 226. The “principle” that obtains in the absence of a general savings statute is abatement. That is the common law rule that was in place in Florida prior to 1885, and it’s the same rule Floridians voted to re-adopt (for amendments and punishments, anyway) when they approved Amendment 11.
It’s a mistake, then, to say that a general savings statute is necessary to create a standard for retroactivity as if no such standard exists now. Say what you want about the tenets of abatement, dude; at least it’s a standard. In fact, six states — I think it’s six! — have no general savings statute, and none, last I checked, is in chaos. To avoid abatement, legislatures in those states just have to include express savings language in relevant criminal legislation. It’s not that difficult.
But it is a hassle. Even in sophisticated modern legislatures full of very smart, professional staff, where bills go through analysis by several committees in each chamber, it isn’t inconceivable that somewhere along the way — just like in 1881 — the legislature could forget to include express savings language. The result would be unintended abatement, i.e.,unintended legislative pardons, for potentially thousands of criminals.
Nobody wants that, so most states have found it easier just to adopt general savings statutes that make it unnecessary to include express savings language in every bill. One statute to save them all!
Under the (reasonable) assumption that a general savings statute is preferable to the common law rule, the second step in the analysis is figuring out what the general saving statute should be. After all, even if one accepts that a new rule is appropriate, that doesn’t by itself justify what the new rule should be. The need for a rule doesn’t justify the content of the rule. In the end, that’s a separate policy question.
And, I think, it’s a policy question that itself can be separated into two distinct analytical buckets.
The first bucket concerns the prosecution of offenses. A general savings statute that prevents unintentional abatement, i.e., one that prevents exactly the kind of situation that led to the constitutional savings clause back in 1885, makes sense. No one wants to see criminals walk because the legislature forgot to add a sentence before a bill passed, and no one wants to make legislative staff write express savings language into every bill they draft. By all means, let’s adopt a general savings statute that protects prosecution of offenses already committed unless the legislature explicitly says otherwise.
The second bucket, however, is different. This bucket concerns the punishment for offenses. The policy considerations that justify protecting prosecutions from unintended abatement do not hold for protecting punishments that have been reduced by the legislature. If the legislature forgets to include savings language that covers prosecutions, then criminals go unpunished completely. If the legislature forgets to include savings language that covers punishments, the worst thing that can happen is a defendant will receive a sentence the legislature believes is appropriate, instead of a sentence the legislature believes is inappropriate.
In fact, ten states — Illinois, Iowa, Kentucky, New Hampshire, New Jersey, Ohio, Texas, Vermont, Virginia, and West Virginia — have a general saving statute coupled with what is known as an “ameliorative exception,” which allows punishments that have been reduced by a legislature to be applied to pending cases even if the legislature doesn’t explicitly say so. These states are doing just fine; like Florida, Texas is at a near 50-year crime low!
Last week, a coalition of organizations and individuals — Americans for Tax Reform, Doug Deason, FreedomWorks, Faith & Freedom Coalition, Americans for Prosperity-Florida, The James Madison Institute, Right on Crime, and FAMM — sent a letter to the Florida House Criminal Justice Subcommittee that endorsed a general saving statute with “an exception that allows for automatic retroactivity of ameliorative changes to criminal penalties.” We wrote that this framework — “protection against abatement coupled with ameliorative retroactivity — strikes the right balance. It prevents chaos in courts by establishing clear rules, and protects against arbitrary injustice.”
And we’re right!
