The phenomenon of mass incarceration changed criminal justice in important ways, particularly with sentencing policies. Ever younger defendants, treated as adults, received sentences that amounted to life. For many non-homicide crimes, courts handed out sentences longer than for homicide crimes.
A report on “The Second Look Movement: A Review of the Nation’s Sentence Review Laws” by the Sentencing Project detailed a California case, People v. Contreras, that resulted in a sentence of 50-years-to-life for kidnapping and sexual offenses and in which no one had died.
Such sentencing policies — and the irreversibily of the convictions — have produced an ever bigger and an everolder prison population, said the report. Motivated by the high cost of housing such populations, legislators and courts began to consider judicial review as a means to reassess lengthy sentences, starting a movement called “Second Look.”
The report defined “Second Look” as “Legislation authorizing judges to review sentences after a person has served a lengthy period of time has been referred to as a second-look law and more colloquially as ‘sentence review.’”
The report outlined two U.S. Supreme Court decisions as having helped the movement: Graham v. Florida in 2010, and Miller v. Alabama in 2012.
Graham deemed unconstitutional Juvenile Life Without Parole (JLWOP) sentences imposed for nonhomicide offenses because states must give youth offenders a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” The report said the ruling remained very small in scale, applying only to 123 incarcerated persons.
Somewhat larger in scale, the Miller ruling brought relief to about 2,000 persons incarcerated with JLWOP sentences. Miller pronounced mandatory JLWOP sentences for homicide as “cruel and unusual punishment.” Miller, though, did not prohibit the LWOP sentences for adults, said the report. The case also created a standard called “Miller factors” of “mitigating and transient factors of youth” that required judges to consider young defendants as “permanently incorrigible” before imposing the most severe sentence of life without parole.
To support the movement for reform, The Sentencing Project said it started the Second Look Network in 2023, with members including a variety of legal professionals and mitigation specialists who delivered direct postconviction representation to incarcerated persons. Groups as dissimilar as Fair and Just Prosecution, a network of local prosecutors, and the National Association of Criminal Defense Lawyers have come to play important roles. Many public defender offices and law school clinics have also joined.
According to the report, a list of over 100 contributors included the American Bar Association, the Council on Criminal Justice’s Task Force on Long Sentences, and the National Academies of Sciences, which researched racial disparities in incarceration.
In California, the network said it has aided the creation of two major achievements. In 2018, a new law made eligible for recall of sentences and re-sentencing any U.S. military veterans and current U.S. service members with determinate sentences for felonies, even if convicted by plea agreement.
Also in 2018, California enacted the nation’s first prosecutor-initiated re-sentencing law that allowed prosecutors to petition courts for sentence reductions. The report said the “nonprofit organization For The People touts that prosecutorinitiated re-sentencing (PIR) is a ‘powerful tool to help repair the damage’ of the disproportionate incarceration of Black and Brown people.”
To “improve consistency, clarity, and meaningful application based on a review of the current laws and court decisions,” the Sentencing Project’s report detailed 10 recommendations.
In summary, their first goal would increase eligibility for sentence review. The network said they also wanted to make certain that all provisions in the law would have full retroactivity.
Next, the network would like courts to have authority and discretion to reduce mandatory and plea-bargained sentences. Their next goals included shorter wait times between reviews, with a right to counsel for the petition and the hearing and make hearings into a right.
In hearings, the network would like to see enumerated factors the court should consider and to require courts to address enumerated factors either on the record or in a written decision.
The Sentencing Project would also like to ensure input from crime survivors. Finally, the Sentencing Project would want courts to have clear authority to reduce sentences.
The report said that in passing sentencing reform, “the California Legislature declared that the purpose of sentencing is ‘public safety achieved through punishment, rehabilitation, and restorative justice.’” Other state legislatures provided an additional rationale: “By providing a means to reevaluate a sentence after some time has passed, the legislature intends to provide the prosecutor and the court with another tool to ensure that these purposes are achieved.”
