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A Second Look at Injustice

May 12, 2021
Nazgol Ghandnoosh
Ending mass incarceration and tackling its racial disparities require taking a second look at long sentences.

Lawmakers and prosecutors have begun pursuing criminal justice reforms that reflect a key fact: ending mass incarceration and tackling its racial disparities require taking a second look at long sentences.

Over 200,000 people in U.S. prisons were serving life sentences in 2020—more people than were in prison with any sentence in 1970.1)Nellis, A. (2021). No end in sight: America’s enduring reliance on life imprisonment. The Sentencing Project. https://www.sentencingproject.org/publications/no-end-in-sight-americas-enduring-reliance-on-life-imprisonment/ Nearly half of the life-sentenced population is African American. Nearly one-third is age 55 or older.

“There comes a point,” Senator Cory Booker has explained, “where you really have to ask yourself if we have achieved the societal end in keeping these people in prison for so long.”2)Lopez, G. (2016, May 17). Cory Booker: Senate bill is “in my lifetime the first reversal of mass incarceration.” Vox. https://www.vox.com/2016/5/17/11661858/cory-booker-criminal-justice-reform He and Representative Karen Bass introduced the Second Look Act in 2019 to enable people who have spent at least 10 years in federal prison to petition a court for resentencing.

Legislators in 25 states, including Minnesota, Vermont, West Virginia, and Florida, have recently introduced second look bills. A federal bill allowing resentencing for youth crimes has bipartisan support.3)United States Senate Committee on the Judiciary. (2021,March 26). Durbin, Grassley introduce bipartisan legislation
to advance the First Step Act’s goals [Press release]. https://www.judiciary.senate.gov/press/dem/releases/durbingrassley-introduce-bipartisan-legislation-to-advance-thefirst-step-acts-goals
And, over 60 elected prosecutors and law enforcement leaders have called for second look legislation,4)Fair and Justice Prosecution. (2021, April). Joint statement on sentencing second chances and addressing past extreme sentences [Press release]. https://fairandjustprosecution.org/wp-content/uploads/2021/04/FJP-Extreme-Sentences-and-Second-Chances-Joint-Statement.pdf with several prosecutors’ offices having launched sentence review units.

This report begins by examining the evidence supporting these reforms. Specifically:

  • Legal experts recommend taking a second look at prison sentences after people have served 10 to 15 years, to ensure that sentences reflect society’s evolving norms and knowledge. The Model Penal Code recommends a judicial review after 15 years of imprisonment for adult crimes, and after 10 years for youth crimes. National parole experts Edward Rhine, the late Joan Petersilia, and Kevin Reitz have recommended a second look for all after 10 years of imprisonment—a timeframe that corresponds with what criminological research has found to be the duration of most “criminal careers.”
  • Criminological research has established that long prison sentences are counterproductive to public safety. Many people serving long sentences, including for a violent crime, no longer pose a public safety risk when they have aged out of crime. Long sentences are of limited deterrent value and are costly, because of the higher cost of imprisoning the elderly. These sentences also put upward pressure on the entire sentencing structure, diverting resources from better investments to promote public safety.
  • Crime survivors are not of one mind and many have unmet needs that go beyond perpetual punishment. Ultimately, a survivor’s desire for punishment must be balanced with societal goals of advancing safety, achieving justice, and protecting human dignity.

The report presents in-depth accounts of three reform efforts that can be models for the nation:

  1. California’s 2018 law (Assembly Bill 2942) allows district attorneys to initiate resentencings.

    Elected prosecutors across the state have begun using the law to undo excessively long sentences. Los Angeles County District Attorney George Gascón announced a sentence review unit for all who have served over 15 years. Lawmakers have also advanced legislation to enable all who have served at least 15 years to directly petition for resentencing. California’s experience demonstrates the potential of reaching a bipartisan consensus among prosecutors on the principle that some are serving unjust prison sentences. California also underscores the need for dedicating resources and educating the courts to achieve broad application of sentence modifications.

  2. Washington, DC’s Second Look Amendment Act (2020) allows those who committed crimes as emerging adults—under age 25—to petition for resentencing after 15 years of imprisonment.

    Supported by a coalition of advocates and local leaders, the law builds on an earlier reform for youth crimes and makes up to 29% of people imprisoned with DC convictions eventually eligible for resentencing. Local media coverage of the success of those resentenced for youth crimes helped generate broad public support to overcome opposition from the U.S. Attorney’s Office. DC Attorney General Karl Racine, Council Judiciary Chair Charles Allen, and Corrections Director Quincy Booth have recommended expanding the reform to all who have served over 10 years in prison.

  3. New York State’s Elder Parole bill would allow people aged 55 and older who have served 15 or more years in prison to receive a parole hearing.

    This ongoing campaign, led by Release Aging People in Prison and allies, became especially urgent amidst the state’s reluctance to use medical parole or commutations to release people at risk of COVID-19. Brooklyn District Attorney Eric Gonzalez supports the bill, explaining: “If someone has gone through the process of changing themselves … there should be a mechanism for them to then appear before a parole board that will fully vet them.”5)Dorn, S. (2019, April 27). ‘Outrageous’ bill may release murderers, rapists back on city streets. New York Post. https://nypost.com/2019/04/27/outrageous-bill-may-release-murderers-rapists-back-on-city-streets/; Goldberg, N. (2019, April 29). A bill to increase parole for ‘elder’ inmates now has the Brooklyn DA’s support. Brooklyn Eagle. https://brooklyneagle.com/articles/2019/04/29/a-bill-to-increaseparole-for-elder-inmates-now-has-the-brooklyn-das-support/

To end mass incarceration and invest more effectively in public safety, The Sentencing Project recommends limiting maximum prison terms to 20 years, except in unusual circumstances.6)The Sentencing Project. Campaign to End Life Imprisonment. https://endlifeimprisonment.org  Achieving this goal requires abolishing mandatory minimum sentences and applying reforms retroactively. To implement a second look policy that can effectively correct sentencing excesses of the past, The Sentencing Project recommends instituting an automatic sentence review process within a maximum of 10 years of imprisonment, with a rebuttable presumption of resentencing, and intentionally addressing anticipated racial disparities.

Image: William Underwood, criminal justice reform advocate and survivor of 33 years in prison, with his daughter Ebony Underwood, founder of We Got Us Now and a member of The Sentencing Project’s Board of Directors. Photography provided by Underwood Legacy Fund.

Click here to read the full report.

 

Footnotes[+]

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