Line Drawing in a Time of Change
The United States lags behind world trends in refusing to retroactively apply ameliorative changes in the law for criminal offenders
It is well understood that laws change. Legislatures ideally gauge public opinion, and then pass or amend laws to reflect how society has evolved. Supreme Courts overrule past opinions. States pass propositions that can substantially affect the law. It is clear that these changes in law will be applied in the future. But in the criminal context, how do these changes effect current trials, convictions on appeal, or past convictions when the new law allows for lighter penalties?
The world trend is to allow defendants to benefit from a change in the law, both pre and post conviction, which lessens their sentence. In fact, international law requires that criminal defendants be given the benefit of a lighter penalty when laws change in their favor.1 The International Covenant on Civil and Political Rights (ICCPR) states, “[i]f, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby.”2 There are 74 signatories and 167 parties to the ICCPR.3
Allowing offenders to benefit from retroactive application of ameliorative laws can have major, beneficial effects. In 1995 the South African Constitutional Court held that the death penalty was unconstitutional in interpreting the 1993 Constitution.8 Up to 400 people were on death row with sentences dating as far back as 1988.9 All of these death sentences were overturned and “substituted [with] lawful punishments,” or life without the possibility of parole.10 Without the benefit of retroactive application of the new Constitution and its interpretation, 400 people would have remained on death row in South Africa knowing that it was now illegal to sentence someone to death.
The United States has a complicated approach to the retroactive application of changes in the law for criminal offenders. The U.S. is the only party to the ICCPR to put a reservation on Article 15, essentially stating, ‘we are not going to comply with this law.’11 The United States is one of 22 countries in the world that does not automatically extend the right of retroactive application of ameliorative law to its citizens.12 Instead, courts in the U.S. apply a messy, complicated test that often reaches divergent results.
The United States consistently applied new constitutional rules retroactively on habeas review until 1965 when the United States Supreme Court decided Linkletter v. Walker.13 Linkletter held that retroactive effect should be applied on a case-by-case basis by assessing three factors: (1) the purpose of the rule; (2) the reliance of the states on the prior law; and (3) the effect on the administration of justice.14 The Court changed the law when this standard produced divergent and unfair results.15 In Teague v. Lane, the Supreme Court held that new constitutional rules of criminal procedure should not be applied retroactively to cases on collateral review, but would remain in effect for cases still pending or on direct review.16 There are two exceptions allowing for retroactive application of new rules to cases on collateral review: (1) rules that place certain kinds of primary individual conduct beyond the power of the states to proscribe; and (2) if the rule requires the observance of those procedures that are inherent in the concept of ordered liberty.17 Once a new constitutional rule of criminal procedure is applied retroactively to a defendant in one case, justice requires that it be applied to all “similarly situated” defendants.18
It is not necessary to translate the legalese of the United States’ retroactivity analysis to understand that it is a disaster for the courts. Battles are waged between prosecutors and defendants over the retroactive application of ameliorative laws in everything from mandatory life without the possibility of parole sentences for juveniles22 to mandatory minimums under the Fair Sentencing Act.23 The United States, as a party to the ICCPR, has the obligation to follow international law and apply ameliorative changes in the law retroactively for criminal offenders. But more importantly, there is something to be said for bright line rules. It is a waste of court resources to be continually litigating the fine points that divide retroactive and non-retroactive application of new laws. With the current rules in force, this extends beyond the federal arena to individual states, where each state must determine how state law will treat the retroactive application of ameliorative laws.
Further, it is fundamentally unfair for offenders to not benefit from changes in the law that would reduce their sentences. If society deems a crime to deserve a lesser punishment, then those serving their sentences should not continue to serve the harsher sentence. For example, the death penalty was repealed in Connecticut,24 but this change was not applied to the eleven men currently on death row.25 Those men will carry out their sentences knowing that Connecticut no longer approves of capital punishment, and that it is illegal to condemn someone to death for their crimes. It is unfair that they should still be condemned to death. Compare this with the repeal of the death penalty in South Africa, where 400 inmates had their sentences reduced to life without the possibility of parole.26
Retroactivity does not have to be a muddled, complicated analysis. The United States needs to comply with its international obligations; but more importantly, it needs to apply ameliorative laws retroactively for criminal offenders to achieve fairness.
 International Covenant on Civil and Political Rights art. 15(1), Jan. 3, 1976, 993 U.N.T.S. 3.
 Id. “No one shall be guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby. “ (Emphasis added).
 Databases, UNITED NATIONS TREATY COLLECTION, http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en (last visited March 2, 2013).
 CONNIE DE LA VEGA, AMANDA SOLTER; SOO-RYUN KWON & DANA MARIE ISAAC. CRUEL AND UNUSUAL: U.S. SENTENCING PRACTICES IN A GLOBAL CONTEXT 69 (2012).
 Bill of Rights Act 1990 (N.Z.). Section 25(g): “Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights: (g) the right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty.”
 Codigo Penal de la Republica de Panama. Art. 14: “La ley favorable al imputado se aplicará retroactivamente.” http://www.wipo.int/wipolex/en/text.jsp?file_id=189273#LinkTarget_969 (last visited March 2, 2013).
 Constitution of the Republic of South Africa Act, 1996. Art. 35(3)(n): “Every accused person has a right to a fair trial, which includes the right to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing.”
 State v. Makwanyane 1995 (3) SA 391 (S. Afr.).
 Id. at 6.
 Id. at 95.
 U.S. reservations, declarations, and understandings, International Covenant on Civil and Political Rights, 138 Cong. Rec. S4781-01 (daily ed., April 2, 1992): “That because U.S. law generally applies to an offender the penalty in force at the time the offence was committed, the United States does not adhere to the third clause of paragraph 1 of article 15.”
 DE LA VEGA, supra note 4, at 69.
 Danforth v. Minnesota, 552 U.S. 264, 272 (2008).
 Id. at 273.
 Teague v. Lane, 489 U.S. 288 (1989).
 Id. at 303.
 Id. at 297-298.
 Teague, supra note 15, at 300.
 Danforth, supra note 13, at 289.
 Id. at 284.
 Id. at 280.
 Miller v. Alabama, 132 S. Ct. 2455 (2012) (holding that mandatory life without the possibility of parole for crimes committed when the defendant was a minor violates the 8th Amendment’s cruel and unusual clause).
 U.S. v. Peterson, 774 F.Supp. 2d 1024 (D.N.D. 2011). (holding that the Fair Sentencing Act did not apply to defendants who pled guilty prior to FSA enactment).
 S.B. 280, 2012 Gen. Assemb., Feb. Sess. (Ct. 2012). An Act Revising The Penalty for Capital Felonies: “To replace the death penalty of life imprisonment without the possibility of release for certain murders committed on or after the effective date of this act.”
 Connecticut Repeals the Death Penalty, THE HUFFINGTON POST (April 25, 2012), http://www.huffingtonpost.com/2012/04/25/connecticut-repeals-death-penalty_n_1453331.html (last visited March 2, 2013).