Erik Weyant (photo courtesy of FAMM)
Two weeks ago, Peloton, the popular in-home fitness company, announced the recall of defective pedals on approximately 27,000 of its exercise bikes. The company had received complaints from consumers about broken pedals and resulting leg injuries. A recall was the right thing to do. Companies should fix their products not just for future customers but for existing customers as well.
The obvious morality of recalls should guide federal and state lawmakers when they approve criminal sentencing reform. Unfortunately, it rarely does. Lawmakers frequently pass reforms that only apply prospectively, even though the impetus for change was learning about people who have been forced to serve extra years or even decades in a prison cell. Those whose suffering prompted legislators to act are left behind.
Erik Weyant is a perfect and infuriating example. In 2007, he received a mandatory 20-year prison sentence in Florida for firing a warning shot in what he claimed was self-defense. While the jury rejected his self-defense claim, Weyant’s judge recognized that the two-decade sentence required by the legislature didn’t fit the facts of Weyant’s case. No one had been hurt, Weyant had never been in trouble with the law, and his self-defense claim was not frivolous.
The judge said:
[U]nfortunately the legislature has mandated a particular sentence in this matter…the legislature has taken away any consideration by the Trial Court of the merits of a case…the history of a person…The only sentence I can impose in this matter is a 20-year prison sentence. It does not matter whether I agree with that…I don’t find that I have any room to deviate from what the legislature has said that the sentence has to be.
Weyant’s case was one of the examples advocates used to persuade the Florida legislature to fix the law in 2016. The legislature agreed to remove aggravated assault from the list of crimes that triggered severe mandatory prison terms. Weyant had already served nine years by then, and the reform should have set him free. But Florida’s legislature didn’t issue a recall – they only reformed the law for future defendants. Unless something changes, Weyant will serve another seven years in prison on a sentence that lawmakers repudiated, in part, because of how unjust his sentence was!
If a company like Peloton recognizes the need to address even minor harms caused by its product caused, why don’t our elected leaders see the immorality in forcing people to endure the misery of several years in a prison cell because of a broken sentencing law?
Lawmakers know how to make their reforms retroactive. In 2010, Congress approved the Fair Sentencing Act, a law that reduced the indefensible disparity in sentences between crack and powder cocaine-related crimes from 100:1 to 18:1. It took eight years, but Congress in 2018 finally made the crack sentencing reform retroactive as part of the First Step Act. This long overdue step helped nearly 3,500 people who were serving excessive prison terms they would not have received if they were sentenced today. In the same bill, however, Congress failed to apply three other important sentence reforms retroactively.
Why? Why do lawmakers routinely fail to make their reforms retroactive? There are two main reasons, neither of which is compelling.
The first is political. Lawmakers clearly worry that someone freed by the reforms that they voted for might re-offend and that the lawmakers will be blamed if that happens. Think Willie Horton. Yet this type of fearmongering occurs every time a reform is proposed, whether it is retroactive or not. Over the past decade, reforms approved at the federal and state level have helped to reduce the nation’s prison population to its lowest level in 25 years. At every step, Chicken Littles have predicted political doom and yet the thousands of elected officials who have voted for reform continue to get re-elected. Lawmakers should stop listening to the naysayers and do the right thing.
The second reason lawmakers have offered for not making reforms retroactive is that it is not fair. Sometimes, they say, prosecutors allow defendants to plead guilty to a lesser crime because that crime carries a certain punishment, and had the prosecutors known the punishment would later change, they wouldn’t have made the same deal. This concern is concern, but it can be easily addressed. When lawmakers pass retroactive reforms, they can simply require people to go back before a judge to determine whether they should benefit. Prosecutors can then raise any relevant objections, including arguments about how the plea agreement was reached.
Lawmakers deserve credit for passing sentencing reform, but it is immoral to make people suffer for additional years or even decades in prison because they made their mistakes before lawmakers corrected faulty laws. Sentencing reform should be like a recall, addressing past harms while avoiding future ones.
Kevin Ring is a former Capitol Hill staffer, Biglaw partner, and federal lobbyist. He is currently the president of FAMM, a nonprofit, nonpartisan criminal justice reform advocacy group. Back when ATL still had comments, “FREE KEVIN RING” was briefly a meme. You can follow him on Twitter @KevinARing.