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June 26, 2023

Spotlighting the development of prosecutor-led resentencing movement

Law360 has this notable and lengthy new article, headlined "Minnesota Joins Prosecutor-Led Resentencing Law Movement," highlighting an interesting and important trend in enabling prosecutors to have a role in what might be called "right-sizing" sentences.  I recommend the piece in full, and here are excerpts: 

The prosecutor-led resentencing law enacted by California in 2018 was the first of its kind in the nation.  It was aimed at providing relief to youth who had been charged as adults, aging prisoners who are no longer deemed a threat to public safety, and individuals whose sentences are far out of line with more recently adopted sentencing laws and guidelines.

Similar laws were later passed in Washington, Oregon, Illinois and Louisiana in recent years.  While prisoners have only limited avenues to challenge their sentences or to seek release, prosecutor-led resentencing laws give prosecutors new discretion to identify people they no longer believe need to be in prison, and to file motions in court recommending them for a resentencing hearing.

Judges can then resentence the prisoners to a shorter term or to "time-served," in which case they are released. In making resentencing decisions, courts can consider the age of prisoners when they committed their offenses, their rehabilitation efforts, and whether they pose a risk to others if released.

Last month, Minnesota became the latest state to allow prosecutor-led resentencing. A provision in an omnibus bill signed by Gov. Tim Walz, a Democrat, on May 19 gives prosecutors the authority to defendants deemed safe for release.  Minnesota Sen. Ron Latz, a Democrat who sponsored the legislation, said the measure gave prosecutors discretion to reevaluate sentences that may be considered too harsh by today's sentencing standards, or that might simply have been the product of overzealous judges or prosecutors. "It's another tool in the toolbox to seek justice in particular cases where the prosecuting authority thinks that justice will be served by a shorter sentence," he told Law360.

The law's enactment adds momentum to a nationwide movement that seeks to bolster the role of prosecutors in reducing incarceration and curbing what advocates say are excessive prison sentences.

Supporters of the resentencing movement say some incarcerated people can be safely released and that prosecutors are uniquely positioned to initiate the process to get them out of prison. "The justice system, and the role of the prosecutor, oftentimes feels like an assembly line," said John J. Choi, the district attorney of Ramsey County, Minnesota, which includes St. Paul.  "I think the prosecutor's role should not just end once we've finished processing a case. We should always be thinking about ensuring that there is justice for those who are rehabilitated [and] who have done everything that we have asked them to do."

Like the one enacted in Minnesota, prosecutor-led resentencing laws do not compel district attorneys to reconsider people's sentences; they only provide the authority to do so.  But elected officials who oppose the laws argue the resentencing process leaves victims of crimes powerless.  They also say that giving prosecutors the power to seek resentencing leaves them facing political pressure to use it.

California Assemblymember Tom Lackey, a Republican who once served as a California Highway Patrol officer, said he voted against the prosecutor-led resentencing bill because he deemed it unfair to victims.  "This bill and the energy behind it, and those associated with it, tip the scale of justice against victims of violent crime," he said.  "The victim is totally ignored in this decision-making process.  They are not included in this discussion on how that resentencing may impact them."

But Michael A. Hestrin, the conservative district attorney of Riverside County, California, who used the prosecutor-led process to resentence Smith, said his office always engages with victims of crimes, considering their input when making decisions on resentencing.  Ultimately, however, prosecutors should be trusted in their decisions....

More than 350 people have been released in California since the law passed, according to an estimate by For The People, a nonprofit advocating for prosecutor-initiated resentencing laws nationwide that spearheaded the efforts to get the law passed in the Golden State.

With proper funding and the participation of all 58 county prosecutor's offices, the group believes some 26,000 people could be released in California.  Nationally, the prosecutor-led process led to the resentencing of more than 450 people.  Hillary Blout, a former prosecutor at the San Francisco District Attorney's Office who founded For The People and conceptualized, drafted and secured the passage of the first prosecutor-initiated resentencing law in 2018, said the breakthrough in California has inspired prosecutors elsewhere to advocate for similar policies.

For The People's national policy manager, May Lim, said the organization assisted legislators in analyzing prison population data to help them understand the potential effects of prosecutor-initiated resentencing in the state.  They focused on prisoners' ages — comparing them to how old they were when they committed their offenses — as well as the length of their sentences and how much time they had already served....

For The People also told stakeholders that part of the process of a prosecutor seeking resentencing involves engaging with victims of crimes to get their input.  Most of the time, Blout said that victims are supportive of releasing perpetrators early through resentencing after learning that they have turned their lives around while in custody. "Some victims say, 'I didn't even know this person was still incarcerated'," she said.

June 26, 2023 at 01:46 PM | Permalink


It's undoubtedly true that when the prosecutor is in the pocket of the defense bar, he's going to do the bidding of the defense bar. this is pretty depressing but not exactly a surprise.

Posted by: Bill Otis | Jun 28, 2023 10:41:00 PM

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