S.1154, known as the Omnibus Crime Reduction and Sentencing Reform Act of 2010, is the product of a monumental effort by the South Carolina legislature to employ evidence-based practices in order to get smart on crime and curb unsustainable levels of mass incarceration that our cash-strapped state can hardly afford. S.1154 is commendable as a bipartisan effort to legislate on the basis of comprehensive data to reach a much-needed result that nevertheless might be unpopular with the traditional “tough on crime” base. S.1154 exemplifies the best of the legislative process. There’s just one problem: Nobody knows how it’s supposed to work.
The confusion, recently pointed out by Bobby Frederick over at South Carolina Criminal Defense Blog, is with S.1154′s savings clause. Because it is drafted in broad terms that reach far beyond S.1154′s content to cover several irrelevant scenarios, the clause is a bit vague about how the act should be applied to cases coming down the pipe. Its language suggests it should be applied prospectively, but the caselaw sends mixed signals and contradictory sections within the act further compound the confusion. The text of the savings clause is as follows:
The repeal or amendment by the provisions of this act or any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release, or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
It’s quite a mouthful, and it’s problematic for a few reasons. The most obvious source of confusion—and the easiest to clarify—is in the very first sentence. If you missed it the first time through, here’s a hint: What is the subject of that sentence? If you answered “the repeal or amendment,” then you get an A for effort, but those who think outside the box will note that the independent clause in this sentence should actually read “the repeal or amendment of any law” (and not “or any law”). You see, in typing up this clause, it appears that someone’s index finger landed a few clicks north of the the DZ—the ”F” key—and ended up in the no man’s land of the “R” key. As any law student can tell you, such errors lie beyond the saving grace of spellcheck (and instantly betray your disregard for relics of the old school like rough drafts and proofreading). Thus, we are left with the inchoate introduction: “The repeal or amendment by the provisions of this act or any law . . . does not affect . . . .” But hey, it’s no big deal. We all know what the legislature was trying to say, so all we have to do is agree to collectively substitute “of” in the place of “or” and bingo-bango: problem solved.
Of course, since the legislature was attempting to reuse a savings clause it’s been sprinkling on its bills lately, it could have avoided all of this confusion if only someone had been keen on the hot new “copy + paste” trend that’s been sweeping through the ranks of the techno-savvy computer enthusiast elite. Copy + paste legislative drafting certainly would have been a quick fix for our first problem, but it is also the cause of a second, more insidious source of confusion.
The use of boilerplate language is hardly novel in the legal profession—the fine print is quintessential amongst the lawyer’s tools. Similarly, attorneys are constantly engaged in the process of recycling familiar building blocks of legal writing. While the practice of pilfering previous writing may be rather innocuous, the wholesale importation of one-size-fits-all legislative drafting can cause problems. S.1154 has a big one of these problems.
In State v. Dickey, 669 S.E.2d 917 (S.C. Ct. App. 2008), the court held that a previous iteration of S.1154′s exact savings clause applied the act in that case prospectively to offenses occurring on or after the act’s effective date—which was upon approval of the Governor. At first glance this appears to be dispositive, but Dickey is easily distinguished. The act in Dickey, just as in S.1154, became effective “upon signature of the Governor,” but whereas that effective date controlled the entire act in Dickey, S.1154 became effective upon the Governor’s signature only as to Part I. Part II, on the other hand, “take[s] effect on January 1, 2011, for offenses occurring on or after that date.” The legislature’s inclusion of that qualifier can only mean that it intends Part II to be prospective and not apply to cases coming down the pipe. But if that is how the legislature manifests its intent for the act’s prospective application, why did it omit this qualifier from the sentence immediately preceding it regarding Part I? Furthermore, the vast majority of Part I is devoted to restructuring various offenses’ sentences. Surely the legislature recognized the importance of including an “on or after” qualifier for Part I if it intended that part to also apply prospectively given that the court has consistently held, most recently in State v. Varner, 423 S.E.2d 133 (S.C. 1992), that “a criminal defendant receives the benefit of punishment mitigated by legislative amendment . . . when the amendment becomes effective before sentence is pronounced.”
Unlike the clause’s typo, this is absolutely a big deal. We don’t know what the legislature was trying to say, and invariably, we aren’t all going to agree to collectively insert “for offenses occurring on or after that date” for the sentence reductions of Part I—especially considering the implications for both the state and defendants in cases pending as of June 2, 2010. The problem with the boilerplate savings clause in S.1154 isn’t that it should have been copied and pasted. The problem is that it shouldn’t have.