Second Look Sentencing
While many individuals are behind bars for only a short time, the backbone of mass incarceration is people serving very lengthy sentences – often decades-long, and far longer than they would serve for comparable crimes elsewhere in the world. At the federal level alone, 53% are serving sentences of 10 years or more and 30% are serving sentences of 15 years or more (Federal Bureau of Prisons, 2021). Additionally, as of 2016, more than 200,000 people were serving life or virtual life sentences, over two-thirds of these individuals being people of color (The Sentencing Project, 2021).
Not only have lengthy sentences been shown to have no impact on an individual’s tendency to reoffend (Pew Charitable Trusts, 2012), there is strong evidence indicating that individuals tend to quickly “age out” of their high crime years (United States Sentencing Commission, 2017; The Sentencing Project, 2017). As of January 2021, 66% of the federal prison population was 36 years old or older, and nearly one in five individuals were over 50, well above the ages most at risk for crime (Bureau of Prisons, 2021).
Society’s emerging recognition that it has over-used imprisonment is exemplified in a wide range of new statutes, rollbacks of mandatory minimums, changes to sentencing guidelines, and updated charging and plea-bargaining policies in prosecutors’ offices. Changes have so far been most prevalent at the front end: reducing the potential for individuals to enter the criminal justice system. However, at the current pace of decarceration, it will still take 75 years to cut the total U.S. prison population by half, raising questions about what additional solutions should be pursued to accelerate reform (The Sentencing Project, 2018).To tackle the problem of mass incarceration at its core, reforms must also target those currently experiencing incarceration. Second Look legislation works to do just that, addressing the critical problem of harsh sentences head on by providing individuals with an opportunity for resentencing or a sentence reduction after they have served a certain amount of time in prison.
Consequences Associated with Extreme Sentences
NACDL strongly supports efforts to adopt Second Look legislation to combat the detrimental consequences of lengthy and harsh sentences. These excessive sentences are counterproductive to justice: producing a significant racially disparate impact and raising costs to taxpayers.
Significant Racial Disparities in Sentencing - The racial disparities in sentencing are overwhelmingly clear. In 2020, 46% of the approximately 203,000 individuals serving life and ‘virtual life’ sentences were African American, and 16% were Latinx (The Sentencing Project, 2021). Racial disparities are most pronounced among sentences for life without parole (LWOP), with African Americans making up at least two-thirds of the LWOP population in nine states (The Sentencing Project, 2018). These trends impact youth as well, with people of color making up over 80% of youth sentenced to life- and virtual-life, over half of them African Americans (The Sentencing Project, 2018).
Financial Costs of Incarceration - State and federal governments bear the financial burden of overincarceration. On average, states will spend $33,274 to incarcerate one person annually, ranging from a low of $14,780 in Alabama to a high of $69,355 in New York (Vera Institute for Justice, 2015). These costs only grow as those incarcerated age, increasing their need for specialized medical attention and support services (U.S. Department of Justice, 2016).
To assist lawmakers in adopting Second Look legislative reforms, NACDL released model legislation and an accompanying report – Second Look = Second Chance: The NACDL Model “Second Look” Legislation. The model legislation provides a vehicle for legislatures to safely reduce the number of individuals serving excessive, counterproductive sentences: guaranteeing all incarcerated individuals a “Second Look” once they have spent at least a decade in prison.
NACDL urges a threshold of ten years for reconsideration of lengthy sentences. With limited opportunities for rehabilitation in prison, ten years is a reasonable period of time to achieve the goal of sentencing while not eroding an individual’s long-term prospects for life on the outside.
As a practical matter, the right to petition for resentencing vests upon actual time served, making only those serving lengthy sentences eligible for a second look. Similarly, in order to safely and effectively maximize decarceration, NACDL recommends that states make resentencing available to every individual incarcerated, regardless of their underlying offense, or the age at which they committed that offense.
At the state level, Second Look reforms have primarily focused on youth, reflecting national efforts to provide those convicted before the age of 18 with an opportunity for a second chance. In Delaware, Florida, and Oregon, youth become eligible for a sentence modification or a second look hearing after serving anywhere between 20 years and half of their original sentence. In California, individuals convicted of crimes committed before the age of 18 who are sentenced to life without parole are eligibile for resentencing after serving 15 years, with certain exceptions based on the offense. As of January 2021, D.C. is the first to expand eligibility for sentence modification to those convicted before the age of 25 who have served 15 years in prison.
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Additionally, states and localities are exploring prosecutorial discretion as a tool for resentencing. In California and Washington, elected prosecutors have the authority to examine past cases, and, upon determining that a sentence no longer serves the purpose of justice, may recommend the individual for resentencing. District Attorneys, like Marilyn Mosby in Baltimore City, Maryland and George Gascón in Los Angeles, California, have adopted similar practices in their counties with plans to establish Sentencing Review Units to reevaluate sentences after a certain period of time.
In April 2021, Rep. Bruce Westerman (R-AR) introduced H.R. 2858, a bill that would allow individuals convicted of crimes as children to petition a judge for sentencing review after serving 20 years, thereby retroactively ending juvenile life without parole sentencing. The bill would also allow judges to depart from mandatory minimums when sentencing youth and would create safeguards against harsh sentences for children who commit acts of violence against individuals who are sexually abusing them.
In 2019, Sen. Cory Booker introduced the Second Look Act, which would have allowed any individual who had served at least 10 years in a federal prison to petition the court to take a “second look” at their sentence. At their resentencing hearing, the court would decide whether to provide the individual with a sentence reduction, with a presumption of release for petitioners aged 50 years or older.
Second Look = Second Chance: The Case for Reconsidering Lengthy & Other Extreme Sentences: At the current pace of decarceration, it will take 75 years to cut the total U.S. prison population by half. While most reform has focused on reducing the potential for individuals to enter the criminal justice system, dismantling mass incarceration will also require addressing those currently serving lenthy and extreme sentences. On March 11th, NACDL brought together practitioners and advocates for a discussion on “Second Look Sentencing,” an emerging legislative trend that seeks to provide individuals with the opportunity for resentencing after they have served a certain amount of time in prison. Please visit the link below to access the recording and other webinar resources.