Second Chances Resource Library

In this article, we offer the first scholarly assessment of a new practice emerging in many state criminal courts: prosecutor-initiated second look sentencing, also called resentencing. Attorneys working on resentencing matters consider the continuing integrity of a sentence imposed on a defendant years (or even decades) earlier, with an eye toward revising its terms. They assess numerous factors, such as whether the defendant still presents a public safety risk, whether the defendant has taken advantage of prison programming, and whether the original sentence now appears disproportionate due to a shift in community values. Second look sentencing thus offers great promise as a means to correct for the punishment excesses of the past.

But as we recount from our original interviews, there are some cracks beneath the surface. The defense and prosecutor roles in resentencing start from a structural power asymmetry that could weaken the spirit of cooperation that characterizes the early days of the practice. There are gaps (both real and perceived) between the lofty aspirations of prosecutorial rhetoric at the time of adoption and the more limited reality that emerges when prosecutors start making case-level decisions, subject to resource and political limits. Faced with this frustrating disconnect, some defenders return to their traditional adversarial role and refuse to enable or endorse what they see as programmatic failure. Left unchecked, these implementation roadblocks, combined with resource limits and political constraints, could delay the spread and blunt the effects of this innovative device.