Aligning Safety with Justice: The Case for a Disability-Inclusive Sentence Review Statute

The Sentencing Project proposes that jurisdictions enact “disability second look” statutes to give people with disabilities serving long sentences the opportunity for sentence review.¹ People with disabilities (physical, cognitive, and social) are significantly overrepresented in jails and prisons in the United States. Studies have reported that those in state and federal prisons are about two and a half times as likely to report one or more impairments than adults in the general population (38% of those incarcerated versus 15% of those in the general population).²

Disabilities can affect a person’s behavior and functioning in ways that can lead them to be unfairly targeted by law enforcement officials,³ denied due process during criminal legal proceedings,⁴ and excluded from rehabilitative programming and access to reentry services.⁵ People with disabilities do not commit crime at a higher rate than those without disabilities, but those with disabilities are more likely to be arrested and convicted than those without.⁶  And, like those without disabilities, the risk of persons with a disability offending greatly declines with age.⁷ Research shows that for people with criminal records, after about seven years without arrests, the risk of re-arrest is almost indistinguishable from that of people with no record.⁸

Model Statute

Our proposed model statute would make eligible for second look people whose disabilities contributed to (1) the nature of the offense, (2) their behavior and/or misperceptions of their behavior before, during, and after their arrests, (3) their inability to fully access their due process rights during representation by counsel and courtroom legal proceedings, (4) their struggle while incarcerated, including being disciplined for infractions, being excluded from prison programming, or acquiring additional disabilities, or (5) obstacles to their developing reentry plans. The proposed second look statute mirrors existing laws that provide sentence review opportunities to other vulnerable individuals.

Rationale

People with disabilities deserve sentencing relief for the same reasons as others who are currently eligible for sentence review under second look laws, such as young people, survivors of domestic violence, and veterans. Fifteen state legislatures, the District of Columbia, and the federal government have provided judicial sentence review hearings to such people, but none of them have offered these opportunities to those with disabilities.⁹

Courts and lawmakers understand that the criminal legal system must account for circumstances and personal characteristics that reduce an individual’s culpability for an offense when subjecting them to the criminal process. Despite this recognition, second look opportunities have not been provided to people with disabilities. This is true even though a disability may reduce a person’s culpability and preclude the person from accessing programming they require to demonstrate their reformation and rehabilitation while incarcerated even when they are able to learn, grow, mature, reform, rehabilitate, and successfully reintegrate into the broader community upon release.

Training

In addition, we propose that a jurisdiction enacting a second look statute for those with disabilities also institute mandatory training for law enforcement officers, judges, prosecutors, and defense counsel on disability and the legal obligations under federal and state law to provide accommodations for those with disabilities who interact with the justice system.