Second Chances Resource Library

New Jersey Governor Philip D. Murphy issued Executive Order No. 362, which sets out certain categories of pending or future clemency applications that will receive expedited review during the Murphy Administration. For example, individuals may receive expedited consideration for pardons for certain non-violent convictions if they have remained free from justice system involvement for sufficient time. Other examples of those receiving expedited consideration include individuals who are serving sentences that reflect an excessive trial penalty, and victims of domestic or sexual violence or sex trafficking who are incarcerated for committing a crime against the perpetrator. The fundamental goal underlying this initiative is to provide relief from inequities that have existed and been perpetuated in the criminal legal system.

The Executive Order also establishes a Clemency Advisory Board, which will be responsible for reviewing each clemency application and making recommendations to the Governor. The board will be the first of its kind in state history and will ensure that the Governor’s decisions regarding pardons and commutations are informed by the advice of individuals with diverse experiences and expertise relating to criminal justice and clemency.

The movement to end mass incarceration has largely concentrated on people serving shorter sentences for non-violent offenses. There has been less consideration for the 1 in 7 people in prison serving life sentences, overwhelmingly for violent offenses, including those serving juvenile life without parole (JLWOP). Recent U.S. Supreme Court decisions result in a pressing need for data on second chance considerations for JLWOP. This study tracks outcomes of the national population of juvenile lifers, cross-referencing data to identify the JLWOP population at the time of Miller (N = 2904) to build a demographic profile and track resentencing, release, and mortality statuses. Findings reveal more than 2500 individuals have been resentenced and more than 1000 have been released. There is notable state variation in the number of JLWOP sentences, the extent to which JLWOP is still allowed, sentence review mechanisms, and percentage of juvenile lifers released.

This white paper focuses on parole review for people serving long sentences for crimes committed under age 18. It discusses the constitutional dimensions of parole review for that cohort and describes relevant legislative reforms and litigation challenging parole processes and procedures. Finally, the white paper proposes model policies to support a realistic and meaningful opportunity for release on parole that is grounded in assessment of youth and post-crime maturity and rehabilitation. The policies address substantive bases for the release decision as well as procedures to support comprehensive and accurate parole review.

Part I describes the changes in law in the late 1980s and early 1990s that resulted in a marked increase in young people sentenced to life or life-like sentences, as well as the evolving understanding of psychosocial and neurological development that followed. Part II summarizes the U.S. Supreme Court’s Eighth Amendment jurisprudence on this topic. Part III discusses the subsequent changes that states across the country have made to the ways that they sentence people for crimes committed under age 18, the ensuing rise in parole-eligible life and life-like sentences for that cohort, and the ways in which existing parole systems fell (and continue to fall) short. Part IV explores the constitutional dimensions of parole review in this context and the judicial decisions that have begun to fill in the contours of the relevant requirements. Finally, Part V offers model policies, with commentary, addressing the substantive and procedural components of parole review for people sentenced for crimes committed under age 18. The model policies aim to ensure a realistic and meaningful opportunity for release that is based on assessment of youth and post-crime maturity and rehabilitation, with procedures to support decision-makers in comprehensive and accurate parole review.

The U.S. Census Bureau projects that by 2030, U.S. prisons will hold 400,000 older adults, who will comprise one-third of the total incarcerated population. These adults have a distinct set of healthcare needs that must be met, including aging-related cognitive impairments like dementia. Older adults behind bars are at a greater risk for developing cognitive impairment and carceral facilities are not properly staffed or equipped to recognize, assess, or care for incarcerated individuals with cognitive decline.

With few national standardized dementia trainings, screenings, and practices across carceral facilities, there is a pressing need to address the diagnostic, medical, and rehabilitative needs of the aging prison population. Importantly, none of the purposes of punishment—incapacitation, rehabilitation, retribution, and deterrence—are advanced by the continued incarceration of individuals living with dementia. Despite this, state programs providing for geriatric release or release based on cognitive decline are rare. This leaves many individuals living with dementia in prison, burdening states with hefty medical bills. Prison systems must provide adequate medical care to allow those living with cognitive decline to maintain their dignity and protection to prevent their victimization.

This report presents the evolution of the second look movement, which started with ensuring compliance with the U.S. Supreme Court’s decisions in Graham v. Florida (2010) and Miller v. Alabama (2012) on the constitutionality of juvenile life without parole (“JLWOP”) sentences. This reform has more recently expanded to other types of sentences and populations, such as other excessive sentences imposed on youth, and emerging adults sentenced to life without parole (“LWOP”). Currently, legislatures in 12 states, the District of Columbia, and the federal government have enacted a second look judicial review beyond opportunities provided to those with JLWOP sentences, and courts in at least 15 states determined that other lengthy sentences such as LWOP or term-of-years sentences were unconstitutional under Graham or Miller.

The Campaign for the Fair Sentencing of Youth (CFSY) is proud to release Unusual & Unequal: The Unfinished Business of Ending Life Without Parole for Children in the United States, a new report revealing alarming statistics about the continued imposition of juvenile life without parole (JLWOP) in the United States.

The imposition of juvenile life without parole is becoming increasingly unusual nationally, and it is applied in increasingly arbitrary and unequal ways. For over 12 years, hundreds of individuals serving JLWOP have not received a second look at their sentences despite the U.S. Supreme Court’s ruling in Miller v. Alabama mandating new sentencing considerations for youth. These individuals now make up two-thirds of the total JLWOP population, and as they await resentencing, racial disparities have worsened. Of all people sentenced to JLWOP since 2012, 77% are Black – up from 61% pre-Miller.

“The increasingly arbitrary imposition of JLWOP undermines the constitutionality of sentencing any child to life without parole and should compel states to categorically ban the sentence,” says Rebecca Turner, Associate Legal Director at the Campaign for the Fair Sentencing of Youth.  As of today, JLWOP remains a sentencing option in 22 states.

The criminal legal system needs many reforms, but this Article will focus on capping maximum prison sentences at twenty years for adult offenders, at fifteen years for people up to age twenty-five, and shifting sentences for all other offenses proportionately downward.

Life without parole (LWOP) sentences are politically popular in the United States because, on their face, they claim to hold prisoners incarcerated until they die, with zero prospect of release via the regularized channel of parole. However, this view is procedurally shortsighted. After parole there is generally another remedial option for lessening or abrogating punishment: executive clemency via pardons and commutations. Increasingly, U.S. legal jurisdictions also provide for the possibility of compassionate release for lifers, usually granted by a parole board.

On paper, pardon, commutation, and compassionate release are thus direct challenges to the claim that an LWOP sentence will inevitably and invariably lead to the prisoner’s death while incarcerated. Few previous studies, however, have examined the finality of LWOP empirically. In this Article, I present original empirical data on clemency covering the period 1990–2021 in order to investigate the relationship between LWOP sentences and the release mechanisms of executive clemency and compassionate release in both state and federal cases.

Ultimately, the results of this research reaffirm the finality of LWOP in the United States, despite the availability, on paper, of at least three potential release procedures. Only a handful of LWOP prisoners have received commutation or pardon from U.S. presidents, state governors, or pardons boards. Compassionate release has been granted almost as rarely. That said, some demographics tend to have benefited more than others. The findings presented within this Article are relevant not only to domestic clemency and end-of-life release policy but also to litigation dealing with a “right to hope” as a component of human dignity, and to the academic debate over LWOP as a global replacement for the death penalty and a form of “extreme” punishment of its own accord.

Expanding Second Look Addresses the Ineffectiveness of Parole Systems