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.

This guide details Connecticut’s 53a-39 sentence modification process, and includes information on gathering and organizing the materials necessary to create the most compelling petition possible. It outlines the ways in which supporters can be most helpful to a person seeking a sentence modification and provides the information, templates, and official forms necessary to navigate the sentence modification process.

This article will explore the development of the inadequacy of medical care doctrine, from one judge’s decision to the Sentencing Commission including this factor as an enumerated ground for compassionate release in the sentencing guidelines. It will set the stage by reviewing the BOP’s history of inadequate medical care and history of neglecting compassionate release requests. This failure on the part of BOP led to the dramatic changes in the First Step Act which opened the door
for more compassionate release litigation. The article will then discuss how COVID changed everything and taught judges about the use of compassionate release as a lifeline for medically vulnerable people. It will then present and analyze some recent litigation that has raised issues of inadequate medical care. Finally, the article will end in the present—reflecting on the current, 2023, sentencing guidelines which include a ground for compassionate release based on inadequate medical care.

This Article argues that “Second Look” legislation is unnecessary: the same authority should already exist, under current doctrine, in the Federal Due Process Clause and (or) its state analogues. Though the Supreme Court’s approach to incarceration is anomalous as compared with
other fundamental rights, the Court has made clear that substantive due process requires that criminal confinement satisfy rational basis scrutiny. In the context of civil confinement, that same due process right to bodily liberty applies throughout the duration of a detainee’s confinement. Logic, along with the Court’s discussions of actual innocence and substantive retroactivity, indicates that the same ongoing protection should apply in the context of criminal confinement.

Just as a sentence can be irrational from the moment of issuance (as with an actually innocent defendant), a sentence can also become irrational over time. And there can be no rational basis for continuing to imprison a person when the branch of government responsible for identifying such a basis expressly disclaims it. In other words, any prosecutor who recognizes a sentencing injustice should, at any point in time, be able to trigger second look resentencing—a conclusion that provides a previously unexplored doctrinal basis for what some federal courts informally call the “Holloway Doctrine.”

Furthermore, just because a prosecutor asserts a rational basis does not mean that there is one. Rational basis scrutiny is forgiving, but it is not altogether toothless, and it offers additional values to social movements—including forcing adverse parties to give reasons for their actions. Incarceration must be supported by one of the recognized purposes of punishment, and there are instances in which none of those purposes meets the test. Courts themselves, therefore, have due process authority to release prisoners whose sentences have come to be irrational, regardless of the prosecutor’s position. Finally, if the Court ever resolves its fundamental rights anomaly and subjects prison sentences to strict scrutiny, that scrutiny should apply with equal force to ongoing incarceration.

The New York State Justice Task Force provides recommendations for changes to the criminal justice system to improve its fairness and effectiveness for all New Yorkers. It includes representatives from all participants in the criminal justice system – including judges, prosecutors, defense attorneys, members of law enforcement, legislators, executive branch officials, forensic experts, victim’s advocates, and legal scholars – from across the State.

In this report, the Task Force turns its attention to sentencing reform, specifically “Second Look” reforms that enable courts to review and reevaluate an incarcerated person’s sentence after the completion of the appellate process and after a period of time served to determine if the sentence is still necessary and in the interests of justice. After careful deliberation and study, the Task Force concluded overwhelmingly to endorse Second Look reform. In addition to supporting the concept of Second Look review, the Task Force endorsed 15 recommendations regarding the scope, elements, and process of a Second Look review, which are detailed in this report.

After advocates argued that circumstances attendant to late adolescent offenders make them less culpable for their offenses and better disposed for rehabilitation, the Massachusetts Supreme Judicial Court (SJC) held in January that it is unconstitutional to sentence 18 through 20 year olds to life without parole. Last summer, Connecticut passed legislation providing a “second look” opportunity for parole to those incarcerated for lengthy prison sentences for crimes that they committed before they were twenty-one years old. In 2021, Rhode Island decreased the amount of time that youthful offenders must serve before they become eligible for parole, but its highest court is currently interpreting disputed provisions. Efforts to reduce lengthy sentences for late adolescents are grounded in scientific literature showing that “emerging adults” have great propensity for rehabilitation, rendering extraordinarily long prison sentences inappropriate.

Recently, national conversation has focused on reducing the front-end of incarceration, by shrinking police presence and decriminalizing drug and other nonviolent crimes. Back-end decarceral efforts—so called “second look” sentencing and clemency initiatives—are either underappreciated or derided as reforms that legitimate a fundamentally unjust system. While I embrace the need to significantly shrink the quantity of people in prison, sentencing reforms for emerging adults can meaningfully reduce our carceral footprint. Also, disproportionality by race in extreme sentencing suggests that late adolescents are particularly likely to be sentenced based on systemic racism and implicit biases in policing, prosecution, and sentencing, rather than unique characteristics or facts of their crimes. Thus, effective “second look” efforts have the potential to address racial inequities.

This essay explores three state efforts to reduce the carceral terms of late adolescents, evaluating the advocacy strategies and compromises made to achieve meaningful reform. The Supreme Court recognizes that minors are less culpable, less deterrable, and more capable of rehabilitation than adults. Significant research supports extending these findings to “emerging adults”—individuals under the age of twenty-five years old. Should this rehabilitative lens, grounded in science, be effectively harnessed to the “back-end” reforms focused on those who commit crimes prior to the age of twenty-five, the potential decarceral effects can be widespread. In the area of emerging adults and serious crime, criminal law minimalism means coupling the science about late adolescents with effective advocacy strategies to reduce our carceral population.

This is a compilation of published findings regarding recidivism and other outcomes for people serving life or long sentences who have received second chances.

The Washington State Supreme Court and the Washington State Legislature have created some new opportunities for some prisoners serving long and life sentences to have their sentence and releasability (re)considered. The implementation of these reforms has led to the release of hundreds of people, some of whom expected to die behind bars. This report provides an inventory of the progress that has been made — as well as the work that remains to be done to ensure that the harm caused by excessive sentencing is comprehensively remedied in Washington State. The findings include:

• Many people who are serving long and life sentences have been denied a second look for
  arbitrary reasons.
• As of the end of 2022, an estimated 637 people have become potentially eligible for review  because of these recent reforms. An estimated 286 have been released from prison after serving many years behind bars ( a tiny fraction of nearly 7,000 people currently serving a sentence of ten years or longer).
• The recidivism rate among people who returned home after receiving a very long or life sentence for a crime they committed as a juvenile and who subsequently became eligible for a “second look” after serving twenty or more years is remarkably low. Just two of 98 people (2.1 percent) who became eligible for review because they committed their crime as a juvenile who have returned to the community have been convicted of a new felony crime. Another five (5.2 percent) have had their parole revoked and were returned to prison for technical violations (as opposed to new criminal violations).
• People who were released through second look processes after serving decades behind bars contribute importantly to their families and communities upon release from prison.
• The trauma of long-term incarceration continues to pose important challenge even for people who are employed, housed, and connected with loved ones.