Second Chances Resource Library

Governor Maura Healey intends to use clemency to make the Commonwealth of Massachusetts more compassionate and more just. Accordingly, the Governor issued these modernized clemency Guidelines to center responsibility, compassion, fairness, equity, and accountability. These Guidelines are designed to provide parameters to petitioners seeking executive clemency and to assist the Advisory Board of Pardons with reviewing petitions for executive clemency.

The guidelines note factors to be considered in evaluating clemency requests, including racial disparities; sexual identity; the person’s age, maturity, and intellectual abilities and the time of the crime; and their rehabilitation. In addition, for commutation requests, the guidelines call for consideration of a person’s current age (for those over 50) and/or diminished health; as well as factors, such as being a survivor of sexual assault, that put people at heightened risk of harm and trauma while incarcerated.

The guidelines also set forth the procedure for processing clemency applications, including timeline requirements.

People experience severe forms of harm while incarcerated including medical neglect, prolonged solitary confinement, sexual and physical violence, and a host of other ills. But civil rights litigation under the Eighth Amendment—the most common vehicle through which people seek to redress these harms—presents significant practical and doctrinal barriers to incarcerated plaintiffs. Most notably, the Eighth Amendment’s “deliberate indifference” standard asks not whether a person has been harmed, but instead requires plaintiffs to demonstrate a criminally reckless mental state on the part of prison officials. Further, Eighth Amendment remedies are limited to damages or injunctions, which may not adequately redress a specific harm that a person is suffering. For these reasons, the Eighth Amendment has often fallen far short of providing litigants adequate relief.

At the same time, once a person is sentenced, the original sentencing judge generally has no control over whether a harm suffered in prison is remedied. However, since the passage of the First Step Act of 2018, people incarcerated in the federal system have a new vehicle for getting these kinds of claims into court: federal compassionate release. Compassionate release motions are heard by the original sentencing judge, who has the authority to reduce a person’s sentence if they can demonstrate, among other things, “extraordinary and compelling” reasons (ECRs) that warrant relief.

In April of 2023, the Federal Sentencing Commission adopted amendments to the Federal Sentencing Guidelines that drastically expanded the ECR definition to include claims based on the types of harms have been traditionally litigated under the Eighth Amendment. These changes represent a radical and potentially paradigm-shifting reform to federal sentencing law and give district courts enormous discretion to reexamine federal sentences. Given the challenge of redressing harms under the Eighth Amendment, this Article argues that the expansion of compassionate release ECRs to encompass harmful conditions of confinement makes doctrinal sense and allows for a more appropriate remedy to harms done in prison than traditional civil remedies.

This resolution by the American Bar Association urges federal, state, local, territorial, and tribal governments to adopt Prosecutor-Initiated Resentencing legislation that permits a court at any time to recall and resentence a person to a lesser sentence upon the recommendation of the prosecutor of the jurisdiction in which the person was sentenced.

The ACLU of New Jersey released a report, Decarcerating New Jersey: A Transformative Vision of Justice, which includes newly acquired statewide data on incarceration and policy recommendations that can serve as a national model for decarceration. After decades of dedicated advocacy, the ACLU-NJ has helped lay the foundation for reimagining the criminal legal system in New Jersey through policy change that has reduced the state’s prison population by more than 50 percent since 2011. Despite this historic reduction, New Jersey prisons continue to have the highest rate of racial disparity in the nation, making decarceration fundamental to racial justice here, and beyond. Second chances areas of focus within the report include categorical clemency and compassionate release.

People formerly sentenced to life without parole (LWOP) in the state of California have flourished since they have had an opportunity to return home. As changes in legislation and executive power have allowed new pathways for release, the vast majority of people who have been released after serving these sentences are volunteering in their communities, caring for family members, and mentoring youth.

The 53-page report, “‘I Just Want to Give Back’: The Reintegration of People Sentenced to Life Without Parole,” details what people who were once sentenced to die in California prisons have done with their second chances. Human Rights Watch surveyed more than three-quarters of those released since 2013 and found that 94 percent reported volunteering regularly, 84 percent said they financially assisted others, and 90 percent worked full or part-time, with 43 percent working in the nonprofit sector. Based on these findings, the report recommends that California government officials take steps toward eliminating the use of LWOP sentences.

This Article uses the District of Columbia’s Incarceration Reduction Amendment Act (“IRAA”) and legislation expanding IRAA to discuss the critical need for second look mechanisms, which combat mass incarceration by providing individuals serving lengthy sentences with meaningful opportunities to return home. Part II provides background on the history of mass incarceration, the harm it and lengthy sentences cause, and the legal framework that led to the passage of IRAA and its progeny. Using these laws as a backdrop, Part III analyzes the impact of second look mechanisms, explains the importance of continuing to expand second look laws nationwide, and provides practical considerations for jurisdictions enacting these types of laws. Part IV concludes the Article.

The Medical Justice Alliance is a non-profit organization that mobilizes physicians who volunteer to protect the rights of those who are incarcerated. As physicians working on compassionate release cases, they recommend these best medical practices that should be adopted nationwide. Specifically, they make recommendations regarding:

• Qualifying conditions, in particular how to define “terminal illness” and “significant disability/permanent incapacitation.”
• Broadening the categories of people who can initiate review, and in particular providing physicians in the community  a clear mechanism for initiating a compassionate release application.
• Establishing standards for written decisions and appeals

This Article examines the exclusion of individuals with intellectual disability from much of the current resentencing movement. Across the country, incarcerated individuals are filing motions in federal and state courts seeking release as part of a nationwide movement toward decarceration. These motions are possible because new legislation and case law have been moving away from the “law and order” policies that permeated the criminal legal system for the last several decades. Those eligible for release include individuals sentenced to long terms of imprisonment for non-violent drug offenses or offenses they committed as children. In addition, elderly and very sick incarcerated individuals can seek review of their sentences in many jurisdictions.

Although the current resentencing movement has its roots in Atkins v. Virginia—in which the Supreme Court held that execution of individuals with intellectual disability violated the Eighth Amendment—individuals with intellectual disability have not been an explicit part of this movement. The Article uniquely considers the role of practical concerns that impede incorporation of individuals with intellectual disability into the resentencing movement, such as difficulties identifying individuals with intellectual disability in the criminal legal system. This Article also examines the Court’s opinions both on proportionality in sentencing and individuals with intellectual disability to argue that the Court’s delay in defining “intellectual disability,” history of discriminatory opinions, and failure to extend Atkins beyond the death penalty context have contributed to individuals with intellectual disability’s exclusion from resentencing.

Finally, this Article proposes both litigation and legislative strategies to more explicitly include individuals with intellectual disability in resentencing and early release efforts. Relatively small changes can have a substantial impact on individuals with intellectual disability who are incarcerated and on the resentencing and criminal legal system reform movements.

“Left to Die in Prison: Emerging Adults 25 and Younger Sentenced to Life without Parole” finds that the peak age at conviction for people sentenced to LWOP was 23-years-old, falling well within the period of emerging adulthood. Emerging adults share many key developmental characteristics with adolescents under age 18. Despite their serious crimes, these individuals have tremendous potential for growth and opportunity.

The Sentencing Project analyzed nearly 30,000 life-without-parole (LWOP) sentences imposed over a 22-year period in 20 states, comprising approximately 70% of the total LWOP population. The study found:

• Two in five people sentenced to LWOP were 25 and younger at the time of their sentence, amounting to more than 11,000 people sentenced over this period.
• The peak age at conviction for people sentenced to LWOP was 23-years-old, falling well within the period of emerging adulthood.
• Two-thirds of those sentenced to LWOP as emerging adults were Black, revealing that being young and Black appears to be associated with a greater likelihood of receiving LWOP than the trends we observe among older people sentenced to LWOP.

U.S. courts have ruled that people under 18 should be protected against the cruelest sentences because of limits in their brain development. The report authors recommend extending this understanding to the full class of individuals who fall into this stage of development. Specifically, we recommend that the U.S. eliminate the use of LWOP and impose a sentence cap at 15 years for people 25 and younger.