• David A. Cincotta

An Unjust Approach to Retroactivity of State Question 780

Most believe that the State enacted a law last year that applies State Question 780 retroactively; however, the actual law passed was far from that. In an oversimplified summary, State Question 780 reclassified (from a felony to a misdemeanor) numerous offenses involving simple possession of drugs and multiple property crimes under $1000. It also reduced the range of punishment for these crimes from several years (and up to life) down to no more than one year in the county jail. While the law created by State Question 780 vastly changed the punishment for certain crimes, it did so for those who committed their crimes on or after July 1, 2017. Those who committed one of these crimes before then were still subject to the much harsher punishments - and many are still serving sentences for those crimes today. Influenced by some, the Legislature believed that to reach the intended result of retroactivity, either the court system or the Pardon and Parole Board would be overburdened. Electing not to place that burden on the court system, the Legislature provided relief only to the incarcerated (to obtain commutation relief) and those accused of violating their probation. So, what about individuals serving probation sentences (many are lengthy sentences) who are complying with all probation requirements (and thus not subject to having their probation revoked)? Well, for those unlucky soles, no relief is available - unless they violate their probation.

Those who are successful on probation are generally the success stories of the criminal justice system. Whatever the reason for allowing them probation in the first place, we should not exclude them from being at least equally worthy of relief today. Success on probation often occurs because the person maintains employment, receives court-ordered treatment, pays the fines, fees, costs, restitution, etc. A reduction of their sentence and immediate eligibility for an expungement of their records would assist these individuals with bettering their lives and being even more productive than they have been on probation.

If those who violate their probation are entitled to relief, why not provide the same relief to successful probationers? Why grant relief to someone who violates probation and, at the same time, require successful probationers to live with a felony sentence that may last a lifetime for a crime that is now a misdemeanor? They should be eligible to receive either a commutation (current Pardon and Parole Board rules prevent those not in custody from being considered for a commutation) or a judicial modification of their sentence. The fact is that the only focus of "retroactivity" of State Question 780 was on the numbers of incarcerated individuals in DOC custody - causing many to be released and preventing more from arriving. The State was looking for a way to reduce its incarcerated population; maybe rightfully so, but real reform should encompass more than that. It cannot just be about the numbers or the dollars. These are things worthy of consideration, and perhaps focusing on them serves to get more people supportive of the idea of criminal justice reform. Still, the laws the Legislature enacts should not exclude those on equal footing and who are equally, if not more, deserving of relief. Whether or not you supported State Question 780 or believe it should be applied retroactively, you must agree that the State's approach to providing relief to those who committed their crimes before its passage is ludicrous. Not providing the same relief to those who have been successful is unjust. The law needs amending to give relief to those still serving probation sentences for crimes impacted by State Question 780. The sentences should be reduced to one year, just like it is for those incarcerated and for those who violate their probation.

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©2019 by Cincotta Law Office, PLLC.

CINCOTTA LAW OFFICE, PLLC

Phone:  405.266.0360

Fax:  405.421.0025

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