« Noting the notable challenge of defining "veteran" for various purposes connected to criminal justice systems | Main | Maine momentum for restoring parole as part of broader focus on rehabilitation »

February 9, 2023

"Public support for second look sentencing: Is there a Shawshank redemption effect?"

The title of this post is the title of this new article by multiple authors just published in Criminology & Public Policy.  Here is its abstract

Research Summary

Washington, DC has implemented second look sentencing.  After serving a minimum of 15 years in prison, those convicted of a serious offense committed while under the age of 25 years can petition a judge to take a “second look” and potentially release them from incarceration.  To examine both global and specific support for second look sentencing, we embedded experiments in a 2021 MTurk survey and in a follow-up 2022 YouGov survey.  Two key findings emerged.  First, regardless of whether a crime was committed under 18 years or under 25 years of age, a majority of the public supported second look sentencing.  Opposition to the policy was low, even for petitioners convicted of murder.  Second, as revealed by vignette ratings, respondents were more likely to support release when a petitioner “signaled” their reform (e.g., completed a rehabilitation program, received a recommendation from the warden) and had the support of the victim (or their family).

Policy Implications

The critique of mass imprisonment has broadened from a focus on the level of incarceration to the inordinate length of sentences being served by some prisoners.  Policies are being proposed to reconsider these long sentences and to provide opportunities for earned release.  Second look sentencing in DC is one of these reforms.  Our research suggests that many members of the public believe in a “Shawshank redemption” effect — that those committing serious crimes as a teenager or young adult can mature into a “different person” and warrant a second look, with the possibility of early release if they have earned it.  A key issue is likely to be how much weight is accorded to the preference of victims or their families in any release decision.

February 9, 2023 at 05:35 PM | Permalink


"Shawshank Redemption effect" is a strange name for it, given that the Stephen King story wasn't about a guilty prisoner being redeemed, but about an innocent prisoner escaping and fleeing the US -- and releasing incriminating information about the prison's warden.

Posted by: Keith Lynch | Feb 9, 2023 7:28:28 PM

Were they given full details of the crimes or only what they were convicted of? It seems like it would make a huge difference.

Posted by: TarlsQtr | Feb 9, 2023 8:43:01 PM

My biggest concern about such a program is that they had better build a track record of getting it right. For example, if two percent of the murderers they released went on to murder again, in my opinion that would call the entire program into question.

In addition, the severity of the crimes should matter. For example, I don't think Lee Malvo should have any chance of release, no matter what.

Along the same lines, a person given a lengthy sentence for non-homicide crimes should have a better chance than a killer.

Posted by: William C Jockusch | Feb 9, 2023 10:25:28 PM

This is a no-brainer especially as no one under 18 should be tried as an adult in my opinion.

Posted by: Anon | Feb 9, 2023 11:40:49 PM

I'm all for second look sentencing, provided it's not just a one-way ratchet in favor of criminals. If the second look shows he's truly a different and better person, then a reduction might well be warranted.

What if the second look shows he's even worse that when he went in (which the defense bar tells us all the time, because inmates just learn to be better criminals)? By identical logic, the pre-existing sentence deserves lengthening, no?

Posted by: Bill Otis | Feb 10, 2023 3:09:40 PM

That kind of "second look" happens all the time, Bill, when persons are on supervised release or probation or other sort of community supervision. Often folks on supervision can be sent back to prison for so-called "technical" violations (missing work/meetings), though often there is some allegation of criminal activity that leads to reimprisonment. That reimprisonment can and usually will happen without standard constitutional criminal procedures (indictment, proof BRD, etc.), though the SCOTUS ruling in Haymond (2019) found reliance on lax procedures to be unconstitutional in some cases. A recent Federal Sentencing Reporter issue covered these issues and related topics in the federal system: https://online.ucpress.edu/fsr/issue/34/5

Posted by: Doug B. | Feb 12, 2023 10:59:54 AM

Doug --

"That kind of "second look" happens all the time, Bill, when persons are on supervised release or probation or other sort of community supervision."

Wrongo. Supervised release and its conditions, and probation and its conditions, are part of the original sentence. That sentence is not increased or changed at all. All that happens is that its original contingencies get activated when the defendant breaches his agreement to follow its terms. There is no "second look" at the sentence itself; it remains exactly what it was when the judge spelled it out.

What I'm talking about is entirely different. If the original sentence per se can be decreased because of positive changes in the defendant's character and behavior, then the original sentence per se should be able to be INCREASED because of negative changes.

Posted by: Bill Otis | Feb 13, 2023 2:59:00 PM

Bill, in the federal system, judges have authority to impose terms of imprisonment for violations of supervised release (SR) that extend beyond the original term of SR because they do not need to give the person any credit for time already served on SR. (See 18 U.S. Code § 3583(e)(3) explaining prison terms for revoking SR can be imposed "without credit for time previously served on post­release supervision"). So, a defendant could serve 4 of 5 years on SR -- after serving 5 years in federal prison -- and then "get violated" and be ordered to serve 5 more years in prison. That person would be subject to 14 years of a sentence (10 in prison + 4 on SR) even though the original sentence was only 10 years (5 in prison + 5 on SR).

Beyond the fact you misunderstand federal law, if you think a shift from SR to prison is not an increase in an original sentence, then logically you should also not view a shift from prison to SR as a decrease. The situations are, in fact, often functionally quite parallel since persons released early from prison are often put on extended terms of supervision. And that’s my point — namely that there are rules that function to extended sentences to punish bad behavior as well as rules that sometimes reduce sentences reward good behavior. (Also, in Ohio, the lawfulness of prison officials extending a sentence based on bad prison behavior is currently being reviewed for its constitutionality.)

Posted by: Doug B. | Feb 14, 2023 12:43:09 AM

Doug --

"Beyond the fact you misunderstand federal law..."

Oh, OK. How many federal criminal cases did you win, and how many did I win?

As to specifics: Your own explanation of the workings of 18 U.S.C. § 3583(e)(3) shows that a violation of probationary terms DOES NOT INCREASE THE ORIGINALLY PRONOUNCED SENTENCE. It might (in unusual cases) add prison time, but that is by operation of pre-existing law, not because of any second evaluation of the original sentence by the judge. By contrast, that is exactly what you seek (but only in one direction) -- a re-evaluation, and lowering, of the original sentence by the judge.

I'll give you an example involving inmates behind bars. Prisoner A is a peaceful guy, takes classes, volunteers to help others, shows genuine contrition, does everything he can to make restitution. You want the judge to take a second look at his sentence and lower it. OK, I get that. Prisoner B gets in fights, spends all day playing pornographic video games, is an all-around bully and bad actor, has been caught three times with a cell phone, spends his time with other inmates known to be involved in trying to bring in drugs (although he's never been cited for that), writes mocking letters to his victims, and openly brags that when he gets out, he'll become the enforcer for his gang.

If we are to take a second look at A with an eye toward cutting his original term because he's improved himself, why shouldn't we take a second look at B with an eye toward increasing his original term because he's become even worse than he was at the time of the original sentence?

Second look sentencing may have merit, but not if it's used in only one direction for only one purpose.

Posted by: Bill Otis | Feb 15, 2023 12:14:18 AM

Bill: First, I was explaining the functional operation of federal supervised release revocation terms, not "probationary terms." And, functionally, because of the defendant's doing or failing to do something, the revocation of SR serves to increase the time a person is under state control and in prison. That is a kind of judicial second-look that produces a lengthening of the original sentence by the original judge based on a conclusion the defendant is not acting as a "better person." Or, to use your terminology, the revocation of SR is a way "the original sentence [can] be INCREASED because of negative changes."

Second, in systems with parole, what you suggest is functionally at work -- e.g., before the SRA, federal prisoners were eligible to be paroled after serving 1/3 of the original sentence (so the really good boys would get out 2 years into a 6-year term); the average prisoner served about 50% of the sentence (so the average boys would serve 3 years), and other would serve longer (so the poorly behaved served most of the 6 years). I think it would be a good idea to bring a more limited form of parole back into the federal system, though arguably the FIRST STEP Act functionally does for a small class of prisoners. Perhaps you agree.

Third, as I mentioned, Ohio's sentencing law after the Reagan Tokes Law enacted a few years ago functions in the way you urge because the law allows officials at the Ohio Department of Rehabilitation and Correction to decide whether to extend a defendant's sentence if they find an inmate is a continued threat to society. The law's constitutionality is currently before the Ohio Supreme Court.

Fourth, I do want to highlight that there are various differences in what is advocated for as a basis for a second look in mitigation as opposed to aggravation. Advocates for second looks in mitigation will often say a defendant's poor health or abuse by guards or changes in law and other factors not directly related to the defendant's behavior in prison could be a legitimate basis for a sentence reduction. I am not aware of many who would suggest these kinds of factors (or their inverse like really nice treatment by guards) ought to be a basis for a sentence increase.

Posted by: Doug B | Feb 15, 2023 9:11:36 AM

Doug --

But the revocation of SR was built into the original sentence, when the defendant was then and there on notice that, while he was being given the benefit of SR that easily could have been prison time within the existing statutory limit, he would forfeit that benefit if he abused the court's trust and violated the SR terms. When he does so, that is not a revision of his sentence. It is instead merely the activation of a condition in that sentence THAT WAS THERE FROM THE BEGINNING.

Again, let's go to my example. Under a second look system, Prisoner A would get a serious look and might get his sentence reduced. But under the theory that underlies such a system (i.e., that a prisoner can change) why shouldn't Prisoner B (who's never been out on SR and has been in the slammer the whole time) have his sentence increased? His behavior shows that he's more of a menace now than he was on his original sentencing date.

If inmates can change for the better, and should benefit from that, then why don't we recognize that they can also change for the worse and earn more incarceration time from that? The logic is identical.

Posted by: Bill Otis | Feb 15, 2023 2:56:36 PM

Bill, you are either misunderstanding or misrepresenting what SR is in the federal system. It is not parole by another name nor is it a "benefit" nor is it a "condition," it is a distinct period of community supervision that is imposed distinctly from the prison term a judge selects (and it will be imposed even if/when a judge gives the statutory max prison term). It is part of the original sentencing, but when a judge finds a violation he generally has broad discretion to add prison time in ways that are distinct from time previously in prison and previously on SR. You seem to be describing parole, not federal SR -- which was a novel creation by Congress in the Sentencing Reform Act when parole was formally abolished for the federal system. (As the USSC explains: "a term of supervised release does not replace a portion of the sentence of imprisonment, but rather is an order of supervision in addition to any term of imprisonment imposed by the court.”)

Those technicalities aside, I do not think we disagree much on the value of second looks in aggravation or mitigation. And, for a current example, look up Ohio's Reagan Tokes Law, which operates in the way you desire (except it is unclear whether you want sentencing judges or prison official to be in charge of increasing the prison sentence for bad behavior). As a general matter, I favor revising sentences up or down based on changed circumstances, and that's one of the reasons I think it was a mistake for the federal system to get rid of parole. But my SR point and Ohio point is that, in some settings, we do already have a second look working both ways. And since I think we agree on these basic principles, the challenge is figuring out precisely when and how often and under what processes should all sorts of "second looks" take place.

Posted by: Doug B | Feb 15, 2023 4:11:43 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB