State v. Bischoff

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 STATE v. BISCHOFF—CONCURRENCE

ECKER, J., concurring in the judgment. In State v.
Kalil, 314 Conn. 529, 107 A.3d 343 (2014), this court
held that the principles animating the common-law ame-
lioration doctrine were ‘‘in direct contravention’’ of the
applicable Connecticut savings statutes governing the
retroactive application of repealed statutes1 and, there-
fore, did not permit a sentencing court to confer the
benefits of ameliorative legislation on a defendant
whose crime predated the ameliorative legislation’s
effective date, even when the sentencing itself took
place after that date. Id., 553; see id., 553–59. Due regard
for the policy of stare decisis compels me to concur in
the result reached by the majority on the basis of the
holding in Kalil. I do so reluctantly, however, because
I am convinced that Kalil was wrongly decided, and I
am not enthusiastic about reaffirming its holding.2 Jus-
tice Eveleigh cogently marshals the arguments why
Kalil was wrongly decided in his concurring and dis-
senting opinion in that case, with strong supplemental
support provided by case law from other jurisdictions
that have persuasively construed their own savings stat-
utes—statutory schemes no different from ours in sub-
stance, and motivated by precisely the same policy con-
cerns—to accommodate the amelioration doctrine.3 See
id., 559–70 (Eveleigh, J., concurring and dissenting);
see also E. Morrison, ‘‘Resurrecting the Amelioration
Doctrine: A Call to Action for Courts and Legislatures,’’
95 B.U. L. Rev. 335, 339 (2015) (arguing that courts
and legislatures should adopt amelioration doctrine and
follow example set by high courts in New York, Califor-
nia, Minnesota and Michigan, in particular). No purpose
is served by repeating or elaborating those argu-
ments here.
If we were writing on a clean slate—that is, if Kalil
had never been decided—the present case would pro-
vide a particularly strong occassion for adoption of the
amelioration doctrine in that the legislation at issue
was intended to implement precisely the kind of public
policy that the amelioration doctrine is designed to
promote. The idea underlying the amelioration doctrine
is that ‘‘[a] legislative mitigation of the penalty for a
particular crime represents a legislative judgment that
the lesser penalty or the different treatment is sufficient
to meet the legitimate ends of the criminal law.’’ People
v. Oliver, 1 N.Y.2d 152, 160, 134 N.E.2d 197, 151 N.Y.S.2d
367 (1956). With respect to Public Acts, Spec. Sess.,
June, 2015, No. 15-2 (Spec. Sess. P.A. 15-2), the argu-
ment for application of the doctrine is especially com-
pelling because the statutory amendment reflected the
legislature’s belief that the preexisting, stricter punish-
ment regime supplanted by the ameliorative legislation
was not merely unnecessary to meet the legitimate ends
of the criminal law but was affirmatively destructive
of those ends. Indeed, as the following discussion illus-
trates, the fundamental public policy driving the pas-
sage of Spec. Sess. P.A. 15-2 was the legislature’s deter-
mination that the preexisting sentencing regime
governing the criminal offenses committed by the
defendant, Haji Jhmalah Bischoff, caused ruinous peno-
logical results and, by the legislature’s own determina-
tion, must be torn out by the roots and replaced with
a fundamentally different and less punitive model ani-
mated by a radically contrasting conception of crime
and punishment in the particular context of drug pos-
session. I recount this legislative background to high-
light the irony inhering in our decision today, which
requires a trial court, in the name of deference to the
legislative will, to impose sentence on the defendant
under a statutory regime that the legislature itself con-
siders discredited and outmoded, rather than under the
new, more enlightened regime enacted by the legisla-
ture prior to the defendant’s sentencing.4
Section 1 of Spec. Sess. P.A. 15-2 was passed as part
of a large-scale criminal justice reform effort known as
the Second Chance Society initiative, which aimed to
reverse policies that had led to mass incarceration and
sought to treat rather than to punish drug users.5 Repre-
sentative William Tong, who introduced the legislation
in the House during the regular legislative session,
explained that incarcerating individuals for mere drug
possession had not ‘‘accomplished our goal of eradicat-
ing drug abuse and drug addiction.’’ 58 H.R. Proc., Pt.
24, 2015 Sess., p. 8100. Instead, ‘‘we have sent genera-
tions of young men, predominantly from our cities, to
jail.’’ Id. Representative Tong explained that the bill
constituted a landmark shift in public policy that ‘‘fun-
damentally remakes our criminal justice system and
our drug policy . . . .’’ Id., p. 8097. He also denounced
the state’s former strategy of mass incarceration of
nonviolent drug possessors: ‘‘[W]e want to be smarter
on crime, and we know that creating a generation of
felons and a strategy of mass incarceration of people
for simple possession just isn’t working.’’ 58 H.R. Proc.,
Pt. 25, June, 2015 Sess., pp. 8488–89. Representative
Tong characterized the Public Act as ‘‘a second chance
to get this right. We have a second chance to continue
to be tough on crime but to be smarter on crime. Today
we have a chance to take a major step in building a
smart and smarter drug policy and to get this right.’’
58 H.R. Proc., Pt. 24, 2015 Sess., p. 8102.
Senator Eric D. Coleman introduced the bipartisan
bill to the Senate during the regular session, explaining
that Spec. Sess. P.A. 15-2, § 1, ‘‘puts a greater emphasis
on alternatives to incarceration and . . . treatment—
perhaps hopefully a more rational treatment of nonvio-
lent offenders.’’ 58 S. Proc., Pt. 10, 2015 Sess., p. 3110.
According to Senator Coleman, ‘‘the bill . . . encour-
ages we as policymakers and we who are concerned
about the administration of criminal justice in our state
to treat mere drug possession as something that
requires medical treatment rather than criminal sanc-
tions.’’ 58 S. Proc., Pt. 12, June, 2015 Spec. Sess., p.
3542. The legislative history also makes clear that the
bill was intended to help drug-dependent individuals
reintegrate into society. Senator John A. Kissel noted:
‘‘What I think this bill is about is redemption and our
belief that most folks in our society may make a mistake,
may make two, may make more, but fundamentally we
believe people can turn their lives around.’’ Id., p. 3545.
In response to a question from Representative Charles
J. Ferraro regarding how the bill would reduce crime,
Representative Tong explained: ‘‘I think the most acces-
sible and most obvious [way] is that sentencing young
people or any person, frankly, for simple possession
for a mandatory minimum and a felony, has [the] poten-
tial and likelihood to ruin their life. . . . I think this is
about recidivism, giving people a shot after they’ve
made a mistake to get a job, [to] get on with their lives
and to do good.’’ 58 H.R. Proc., Pt. 24, 2015 Sess., p.
8160. Representative Richard A. Smith noted the change
from a punitive to a rehabilitative model: ‘‘I agree 1000
percent that I would rather see someone who has a
drug issue get treatment as opposed to [go] to jail. Jail
does not serve that person. Jail does not serve society.
It doesn’t bring him or her back in and make that person
a better person and a productive person.’’ Id., p. 8137.
Senator Martin M. Looney, the president pro tempore
of the Senate, remarked on the change in policy, noting
that ‘‘unfortunately in our society we have too many
people serving life prison sentences on the installment
plan; in, out, in, out, back again, never really establishing
themselves in society. And the difficulty is that those
who have their prospects in life blighted by an early
criminal conviction often, for a very minor drug offense,
wind up being haunted by that and having prospects
foreclosed for the rest of their lives.’’ 58 S. Proc., Pt.
10, 2015 Sess., p. 3126. Senator Catherine A. Osten, who
explained that she had worked in the Department of
Correction for twenty-one years, made similar remarks
and also noted the fiscal impact of over incarceration
in this state: ‘‘I think that this bill will finally take control
of a population that does not deserve to be inside our
correctional [system] and could actually be productive
citizens, which is something that would be wonderful
to see.’’ Id., p. 3114. She added: ‘‘In addition to that, I
think that this finally starts realizing the second event
that will happen as a result of this, and that is fiscal
control . . . over a burgeoning correctional budget.’’
Id.
These same sentiments were echoed by Governor
Dannel P. Malloy, who made clear when signing Spec.
Sess. P.A. 15-2 into law that the state was implementing
‘‘systematic change’’ and making a dramatic shift in its
approach to nonviolent drug possessors: ‘‘The cycle
our system currently encourages—one of permanent
punishment—hurts too many families and communi-
ties. When we should have been focusing on permanent
reform, we focused on permanent punishment. For too
long, we built modern jails instead of modern schools.
Because this bill passed, Connecticut has taken a giant
step into the future.’’ (Internal quotation marks omit-
ted.) D. Malloy, Press Release, Gov. Malloy Signs ‘‘Sec-
ond Chance Society’’ Bill To Further Reduce Crime and
Successfully Re-Integrate Nonviolent Offenders into
Society (July 9, 2015), available at https://portal.ct.gov/
Malloy-Archive/Press-Room/Press-Releases/2015/07
-2015/Gov-Malloy-Signs-Second-Chance-Society-Bill-to
-Further-Reduce-Crime-and-Successfully-ReIntegrate
-Non (last visited January 14, 2020). ‘‘[M]ost of all,’’ Gov-
ernor Malloy said, ‘‘these initiatives are focused on turn-
ing nonviolent offenders into productive members of
our society [who] can contribute to our economy, rather
than drain it.’’ (Internal quotation marks omitted.) Id.
Although there is no legislative history directly
addressing the retroactive application of Spec. Sess.
P.A. 15-2, there is strong circumstantial evidence that
the legislature intended the ameliorative provisions
contained therein to apply to individuals, like the defen-
dant, who had not yet been sentenced as of the amend-
ment’s effective date. In his remarks, Representative
Tong specifically included inmates like the defendant
whose cases were then pending among the individuals
who should not be incarcerated and who are part of a
generation whose lives have been ‘‘ruined’’ by the state’s
former policy: ‘‘By way of example, right now we have
500 [people] locked up in our state. . . . [T]he control-
ling offense, meaning the most serious offense is drug
possession. Two hundred of them are there because of
a sentence, 300 are in pretrial. There are estimated
[to be] about 1150 inmates, which includes parolees,
for whom the controlling offense was drug possession.
Over a generation, that’s thousands of people. Thou-
sands of people whose lives have been changed, and
you might say ruined, because they made a mistake
and because they were given a felony, and a mandatory
minimum. They went away for two years or longer, and
they’ve not been able to get their lives in the right
direction since.’’ (Emphasis added.) 58 H.R. Proc., Pt.
24, 2015 Sess., pp. 8100–8101. Likewise, there is evi-
dence that the fiscal savings expected by the legislature
and calculated by the Office of Fiscal Analysis were
based on the retroactive application of Spec. Sess. P.A.
15-2 to persons whose cases were pending on the stat-
ute’s effective date. See Office of Fiscal Analysis, Con-
necticut General Assembly, Fiscal Note, House Bill No.
7104, An Act Implementing Provisions of the State Bud-
get for the Biennium Ending June 30, 2017 Concerning
General Government Provisions Relating to Criminal
Justice.
The foregoing legislative history vividly reveals the
ironic dissonance inhering in this court’s decision to
reject the amelioration doctrine. Most immediately, I
find it ironic that we are required, in the name of defer-
ence to the will of the legislature, to defeat and frustrate
the will of the legislature as it relates to the sentencing
reform initiatives embodied in Spec. Sess. P.A. 15-2.6 I
agree with the majority that it is not necessarily
‘‘absurd’’ to believe that the legislature might have
deemed the prior sentencing scheme ruinous and
destructive but chose, at the same time, to apply its
reform measures prospectively only. But such a legisla-
tive choice, even if not outright absurd, strikes me at
the very least as exceedingly odd and counterintuitive
and, therefore, unlikely; were it not for the precedential
mandate of Kalil, I certainly would not presume from
the legislature’s silence in Spec. Sess. P.A. 15-2 regard-
ing retroactive application that it intended for any future
sentencing, occurring after the effective date of the
amendment, to implement the very sentencing regime
it had just denounced as inimical to good public policy.
The irony runs deeper still because, in my view, the
legislative will that Kalil claimed to be upholding is
based on a contested statutory construction of our own
making. This point follows from my view, shared by
scholarly commentators and a number of respected
high courts, that general savings statutes do not compel
the result reached in Kalil; instead, those statutes were
intended to avoid the untoward and unintended conse-
quences arising from strict application of the common-
law abatement doctrine (as it interacts with the consti-
tutional ex post facto doctrine) and were never actually
intended by the legislature to preclude retroactive appli-
cation of ameliorative amendments such as Spec. Sess.
P.A. 15-2. See State v. Kalil, supra, 314 Conn. 563–64
(Eveleigh, J., concurring and dissenting); see also E.
Morrison, supra, 95 B.U. L. Rev. 341–42 (‘‘General saving
statutes were meant to address the limited problem
of pardons resulting from the interplay between the
doctrine of abatement and the constitutional prohibi-
tion against ex post facto laws. . . . General saving
statutes were not intended to eliminate the amelioration
doctrine, which merely offered a defendant the benefit
of a reduction in penalty after a legislature amended
the charging statute.’’ (Footnotes omitted.)); footnote
3 of this opinion (citing cases). The expansion of the
savings statutes to encompass ameliorative amend-
ments within the scope of their presumption of prospec-
tive only application, in other words, is not the inelucta-
ble and unavoidable outcome of legislative design and
intention. Rather, it is the result of a series of decisions
of this court imposing our gloss on the relevant stat-
utes.7 The irony arises from the fact that we purport to
undertake and execute our role in the construction of
the savings statutes, and Spec. Sess. P.A. 15-2, under
what I take to be the self-concealing and ill-fitting cloak
of judicial restraint, as if the contested meaning, scope
and application of these statutes arise out of the unme-
diated exercise of legislative will embodied in the
‘‘plain’’ meaning of the laws under review. The reality
is that this court has played an active and important role
formulating the rule of statutory construction governing
the present case. Our holding in the present case
enforces the rule that we articulated in Kalil.
This final point returns me to the reason that I concur
in the judgment. The operative rule of statutory con-
struction—accurately stated by the majority as holding
‘‘that changes [including ameliorative changes] to the
sentencing scheme of a criminal statute are not retroac-
tive unless explicitly stated [in the amending legisla-
tion]’’; part I of the majority opinion—was made crystal
clear by this court in Kalil, a decision issued in 2014
and therefore available to the legislature when Spec.
Sess. P.A. 15-2 was debated and adopted. Under these
circumstances, my disagreement with Kalil is not a
sufficient reason to vote to reverse that precedent or
its construction of the relevant savings statutes. ‘‘The
doctrine of stare decisis counsels that a court should
not overrule its earlier decisions unless the most cogent
reasons and inescapable logic require it. . . . Stare
decisis is justified because it allows for predictability
in the ordering of conduct, it promotes the necessary
perception that the law is relatively unchanging, it saves
resources and it promotes judicial efficiency. . . . It is
the most important application of a theory of deci-
sionmaking consistency in our legal culture and . . .
is an obvious manifestation of the notion that deci-
sionmaking consistency itself has normative value.’’
(Internal quotation marks omitted.) State v. Salamon,
287 Conn. 509, 519, 949 A.2d 1092 (2008). The principles
underlying the doctrine of stare decisis are at their
zenith when we are asked to overturn ‘‘a decision that
involves the construction of a statute.’’ (Internal quota-
tion marks omitted.) Id., 520.
The arguments for and against the adoption of the
amelioration doctrine were analyzed and resolved in
Kalil. The defendant has not raised any new argu-
ments—he ‘‘has simply repeated the arguments that the
parties made and that this court rejected in [Kalil],
which does not justify a departure from principles of
stare decisis.’’ Spiotti v. Wolcott, 326 Conn. 190, 204,
163 A.3d 46 (2017). If the legislature wishes to reverse
the presumption established in Kalil for ameliorative
statutes, it may enact legislation to that effect, as has
been done in at least nine states.8 Accordingly, I reluc-
tantly agree with the majority that we are bound by
Kalil to hold that Spec. Sess. P.A. 15-2 does not apply
retroactively to the defendant. I therefore concur in the
judgment.
1
See General Statutes § 1-1 (t) (‘‘[t]he repeal of an act shall not affect
any punishment, penalty or forfeiture incurred before the repeal takes effect,
or any suit, or prosecution, or proceeding pending at the time of the repeal,
for an offense committed, or for the recovery of a penalty or forfeiture
incurred under the act repealed’’); General Statutes § 54-194 (‘‘[t]he repeal
of any statute defining or prescribing the punishment for any crime shall
not affect any pending prosecution or any existing liability to prosecution
and punishment therefor, unless expressly provided in the repealing statute
that such repeal shall have that effect’’).
2
I disagree with the majority to the extent that its review of our earlier
case law suggests that the outcome in Kalil was foreordained by ‘‘extensive
case law’’ dating back to Simborski v. Wheeler, 121 Conn. 195, 183 A. 688
(1936). Part I of the majority opinion; id. (opining that prior case law ‘‘lays
to rest any doubt’’ regarding applicability of savings statutes). I see no
evidence that this court, prior to Kalil, ever considered or adjudicated the
question of whether the amelioration doctrine could or should be adopted
as part of our laws governing the retroactive application of criminal statutes.
As of 2011, in fact, we expressly declined to rule on the question when
it was directly raised by a petitioner, leaving the issue unresolved. See
Castonguay v. Commissioner of Correction, 300 Conn. 649, 663 n.14, 16
A.3d 676 (2011) (‘‘[t]his court has not previously held that ameliorative
changes to criminal statutes apply retroactively and we express no opinion
on that question here’’). The Appellate Court rejected the doctrine in State
v. Graham, 56 Conn. App. 507, 511, 743 A.2d 1158 (2000), but provided no
analysis of the issue beyond declaring that adoption of the doctrine would
improperly ‘‘intervene in the legislative process to nullify by judicial fiat the
legislature’s savings statutes.’’
3
See, e.g., In re Estrada, 63 Cal. 2d 740, 745, 747–48, 408 P.2d 948, 48
Cal. Rptr. 172 (1965) (noting that general savings statute simply reflected
legislature’s ‘‘intent that an offender of a law that has been repealed or
amended should be punished’’ but did ‘‘not directly or indirectly indicate
whether [the offender] should be punished under the old law or the new
one,’’ and holding that ‘‘the [l]egislature must have intended that the new
statute imposing the new lighter penalty now deemed to be sufficient should
apply to every case to which it constitutionally could apply’’); People v.
Schultz, 435 Mich. 517, 529, 460 N.W.2d 505 (1990) (general savings statute
was intended ‘‘to prevent technical abatements from barring actions to
enforce criminal liability and thereby excusing offenders from punishment’’
but was not intended ‘‘to save the terms of punishment in effect on the date
of offense when an ameliorative amendment was subsequently enacted and
the case had not yet reached final disposition before [the state’s Supreme]
Court’’); People v. Oliver, 1 N.Y.2d 152, 159–60, 134 N.E.2d 197, 151 N.Y.S.2d
367 (1956) (general savings statute, which was intended ‘‘to preserve the
[s]tate’s right to prosecute offenses previously committed under the repealed
statute,’’ did not preclude application of ‘‘an ameliorative statute [that] takes
the form of a reduction of punishment for a particular crime’’).
4
The majority states that, because ‘‘the plain language of Spec. Sess. P.A.
15-2, § 1, clearly and unambiguously prohibits retroactive application,’’ we
have no need even to examine this legislative history. Part I of the majority
opinion. As the majority acknowledges elsewhere in its opinion, Spec. Sess.
P.A. 15-2 is silent on the question of retroactivity, and the meaning of
that silence only becomes ‘‘unambiguous’’ in light of the presumption of a
prospective only intent arising from our holding in Kalil. I agree that our
holding in Kalil is clear and unambiguous. I further agree that, in light of
Kalil, we must interpret Spec. Sess. P.A. 15-2 to apply only prospectively
under the operative savings statutes as construed in Kalil. My point is that
the legislative history of Spec. Sess. P.A. 15-2, which the majority feels
compelled to ignore under Kalil, should cause us to doubt the wisdom of
the holding in Kalil.
5
Senate Bill No. 952, as amended by Senate Amendment A, was introduced
during the regular legislative session. See Substitute Senate Bill No. 952,
Senate Amendment, Schedule A, LCO No. 9318, 2015 Sess. It passed the
Senate but then was passed only temporarily by the House. The same legisla-
tion was taken up during the June Special Session, where it passed both
chambers in the form of Spec. Sess. P.A. 15-2, § 1. The legislative background
I discuss refers to statements made during both the regular and the spe-
cial sessions.
6
To be clear, I am not suggesting that our holding today directly contra-
venes a deliberate, conscious, and articulated legislative intention to apply
Spec. Sess. P.A. 15-2 retroactively. Although it seems clear from the legisla-
tive record that one of the main sponsors of the legislation, Representative
Tong, almost certainly intended retroactive application to unsentenced viola-
tors, there is no evidence that the legislature as a whole gave the precise
question any thought. I agree with the majority that, as a result of this
legislative silence, our rules of construction since Kalil require us to presume
an intention of a prospective only application. My point is that the presump-
tions we make regarding a prospective only legislative intention have caused
the Judicial Branch in this case to impose and uphold a sentence that
fundamentally conflicts with the explicit policies, purposes and principles
animating the sentencing legislation that had been enacted at the time of
the defendant’s sentencing. Because that result is deeply counterintuitive,
I would prefer, if writing on a clean (pre-Kalil) slate, to apply a rule of
construction that employs the opposite presumption, namely, that the legisla-
ture intends ameliorative criminal statutes to apply retroactively.
7
The majority declines to accept responsibility for this court’s active role
in producing the operative rule—the rule that ameliorative changes to the
sentencing scheme of a criminal statute are not retroactive unless explicitly
stated in the amending legislation—by pointing to the mandatory regime of
statutory construction imposed by General Statutes § 1-2z, the so-called
plain meaning statute. Again, I agree that Kalil settled that question when
it held that the text of the savings statutes creates a plain and unambiguous
rule. See State v. Kalil, supra, 314 Conn. 553 (declining to adopt the ameliora-
tion doctrine ‘‘because the doctrine is in direct contravention of Connecti-
cut’s savings statutes’’). I do not agree, however, that Kalil settled the
question correctly. At a purely textual level, the controversial question is
what the savings statutes mean by the word ‘‘repeal.’’ Did those statutes,
when enacted, intend to include within their scope statutory amendments
that happen to be effectuated as a technical matter by the mechanism of a
repeal? See id., 563–64 (Eveleigh, J., concurring and dissenting) (‘‘[i]n my
view, these savings statutes do not apply because we are not dealing with
the repeal of a statute, as required by the savings statutes, rather, we are
dealing with an amendment to a statute’’). The answer may be yes or it may
be no, but the text standing alone does not resolve the question. In other
words, although the savings statutes are perfectly clear that repealing stat-
utes will not be construed to be retroactive unless they provide for retroac-
tive application in express terms, the scope of those savings statutes—that
is, whether they apply to ameliorative amendments such as Spec. Sess. P.A.
15-2—is not at all obvious without major interpretive work supplied by the
judiciary. Indeed, this is the whole point of the cases and commentators
opining that such savings statutes were never meant to preclude adoption
of the amelioration doctrine. See, e.g., E. Morrison, supra, 95 B.U. L. Rev.
341 (explaining historical origin of savings statutes and reason why those
statutes do not preclude adoption of amelioration doctrine). The point is
particularly salient in Connecticut because we know for a fact that the
legislature enacted our savings statutes in the late nineteenth century specifi-
cally ‘‘to counter the effect of the common-law abatement doctrine’’ in direct
response to this court’s decision in State v. Daley, 29 Conn. 272 (1860);
State v. Kalil, supra, 556; and not with any apparent intention to preclude
adoption of the amelioration doctrine. See id., 565–66 (Eveleigh, J., concur-
ring and dissenting). I refuse to believe that fidelity to the statutory text
requires us to blind ourselves to the particular historical context producing
that text.
8
See 5 Ill. Comp. Stat. 70/4 (West 2013) (‘‘[i]f any penalty, forfeiture or
punishment be mitigated by any provisions of a new law, such provision
may, by the consent of the party affected, be applied to any judgment
pronounced after the new law takes effect’’); Ky. Rev. Stat. Ann. § 446.110
(LexisNexis 2010) (‘‘[i]f any penalty, forfeiture or punishment is mitigated
by any provision of the new law, such provision may, by the consent of the
party affected, be applied to any judgment pronounced after the new law
takes effect’’); N.H. Rev. Stat. Ann. § 624:5 (2001) (‘‘[n]o offense committed
and no penalty or forfeiture incurred, under any of the acts repealed by
house bill no. 75 of the 1955 session of the general court, and before the
time when such repeal shall take effect, shall be affected by the repeal,
except that when any punishment, penalty, or forfeiture shall be mitigated
by the provisions of the Revised Statutes Annotated, such provisions may
be extended and applied to any judgment to be pronounced after such
repeal’’); Ohio Rev. Code Ann. § 1.58 (B) (West 2004) (‘‘[i]f the penalty,
forfeiture, or punishment for any offense is reduced by a reenactment or
amendment of a statute, the penalty, forfeiture, or punishment, if not already
imposed, shall be imposed according to the statute as amended’’); Tex.
Government Code Ann. § 311.031 (b) (West 2013) (‘‘[i]f the penalty, forfei-
ture, or punishment for any offense is reduced by a reenactment, revision,
or amendment of a statute, the penalty, forfeiture, or punishment, if not
already imposed, shall be imposed according to the statute as amended’’);
Vt. Stat. Ann. tit. 1, § 214 (c) (2015) (‘‘[i]f the penalty or punishment for any
offense is reduced by the amendment of an act or statutory provision, the
same shall be imposed in accordance with the act or provision as amended
unless imposed prior to the date of the amendment’’); Va. Code Ann. § 1-
239 (2017) (‘‘if any penalty, forfeiture, or punishment be mitigated by any
provision of the new act of the General Assembly, such provision may, with
the consent of the party affected, be applied to any judgment pronounced
after the new act of the General Assembly takes effect’’); W. Va. Code Ann.
§ 2-2-8 (LexisNexis 2018) (‘‘if any penalty or punishment be mitigated by
the new law, such new law may, with the consent of the party affected
thereby, be applied to any judgment pronounced after it has taken effect’’).