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February 28, 2020

Notable new survey and resources concerning sentencing second looks and second chances

Fair and Just Prosecution and The Justice Collaborative this week released a new survey and additional materials on the hot topic of sentencing reviews and how prosecutors might approach second-look sentencing. This report, titled "Policies & Polling On Reducing Excessive Prison Terms," has these passages in its Executive Summary setting out the context and previewing some of the contents:

In recent years, despite an emerging bipartisan consensus around the need for criminal justice reform, there has been insufficient action to address people serving lengthy sentences who no longer pose a serious risk to public safety.  To gauge popular support for policies that provide opportunities for people serving long prison terms to seek release and return to their communities, we conducted a national survey of American voters.

Our results indicate that such policies have overwhelming support among American voters, regardless of ideology or party affiliation.  Voters believe that sentencing policies and practices should be closely connected to public safety — and that people who can be safely returned to their communities should not be warehoused because of excessive prison terms that waste taxpayer dollars and fail to reflect current values.  Voters believe that people deserve a second chance, and they support sentence-review policies that can provide it.

On the whole, voters believe that reviewing and reducing lengthy sentences serves a variety of important policy goals, including: bringing U.S. sentencing more in line with international standards, addressing racial disparities, reducing costs, correcting older excessive sentences that are out of step with current practices, and ensuring that people who pose little risk of committing crimes are not growing old behind bars, separated from their families and communities.

We sought public sentiment on two policies for sentence review that are gaining increased attention and that are the subject of a new policy brief, “Revisiting Past Extreme Sentences: Sentencing Review and Second Chances,” released today by Fair and Just Prosecution.  Those mechanisms include “second-look” legislation (see Appendix A) and sentence review by elected prosecutors (see Appendix B).  The survey results found strong support for both of these reforms:

  • Overall, 69% of voters support “second look” legislation that allows for “the reexamination of old sentences to provide a second chance for people who have been in prison for more than ten years and who can be safely returned to the community.”
  • Support for these reforms is bipartisan and cuts across geography and ideology. Support among “very conservative” voters for second-look legislation is 63% while support among “very liberal” voters is 82%. These numbers track support along party lines, with 81% of Democrats and 64% of Republicans supporting.
  • Similarly, two-thirds (67%) of voters support “elected prosecutors reexamining past sentences to provide a second chance to people who have been in prison for ten years or longer and who can be safely returned to the community.”

In addition to the Fair and Just Prosecution's policy brief, The Justice Collaborative has also released another great document titled "Model District Attorney Sentence Review Guidelines."  Here I will provide links to these two important new second look documents:

I cannot help but note that some years ago I gave a keynote speech at a conference focused on the work of prosecutors that suggested they should be much more involved in reviewing past sentence.  That speech got published as Encouraging (and Even Requiring) Prosecutors to Be Second-Look Sentencers, 19 Temple Political & Civil Rights L. Rev. 429 (2010).  It is nice to see that it only took about a decade for this idea to come into vogue.

February 28, 2020 at 08:44 AM | Permalink


Parole was supposed to be the mechanism for giving offenders a second chance/second look. But parole ended up -- too often -- being a capacity control tool. As a result, inmates were too frequently paroled after only serving a short portion of their sentence. And, as a natural consequence of the perception that Parole Boards were letting inmates out too early, states -- with some federal funding to encourage it -- opted to place restrictions on parole.

I can't see this effort coming to a better end than parole has. Yes, at first, it is a way around tough restrictions on the Parole Board to let judges and prosecutors reconsider sentences and -- effectively -- allow earlier parole of offenders (or allow them to complete their sentences early. But, if it is used too frequently, you will have the same backlash with greater and greater restrictions imposed.

I am also unimpressed with the survey results. The question assumes that the inmates who would benefit from the program can be safely returned to the community. And most people would agree with that as a general proposition. It is figuring out who can safely return to the community that is the hard part.

Posted by: tmm | Mar 2, 2020 10:33:10 AM

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