Promote accountability and rehabilitation through selective second look opportunities
The Task Force recognizes that the relationship among sentencing, rehabilitation, and accountability is complex. Some individuals believe that accountability requires virtually all people sentenced to 10 years or more to serve the maximum term they received in court, regardless of behavior changes or other progress they make behind bars. Others think incarcerated people should have the opportunity to demonstrate that they have changed and earn a chance for release before their court-imposed sentence ends.
These conflicting notions of accountability often lead to more questions than answers. Is a judicial sentence a promise that the state makes to the public, and specifically to victims and survivors? Will providing an opportunity for release before the end of the sentence erode trust and legitimacy in the criminal justice system? How can public safety be assured if long sentences are shortened?
One way to ease this tension in the state and federal criminal justice systems is through “second looks.”1 A second look is a generic term for a statutory-based process that allows judges to review an individual's original sentence and, when merited, resentence and discharge someone based on their time served and evidence of their rehabilitation. At the time of this report’s publication, different forms of second looks, including prosecutor-initiated resentencing, existed in at least six jurisdictions and legislation to create such processes had been introduced in 25 additional states.2 While limited, national public polling suggests that second looks have strong levels of support, including for serious offenses, and the American Law Institute, the American Bar Association, and the Council on Criminal Justice Federal Priorities Task Force have endorsed the concept.3
From a public safety perspective, people who have served more than 10 years are promising candidates for second looks.4 Research definitively shows that although some people engage in criminal offending throughout their lives, and certain criminal activities like white collar or organized crime are not affected by aging in the same way as other crimes, most people become much less likely to offend as they grow older.5
While second looks are a relatively new release mechanism, evidence suggests that the kind of selective processes that second looks use can be highly effective at identifying those people most suitable for release. For example, in an analysis of more than 2,000 individuals in California who had been sentenced to life with parole and released between FY 2011-2015 through a process that mirrors second looks, fewer than 5% were convicted of a new misdemeanor or felony crime during the three-year follow-up period. Half of one percent (0.5%) of those released were convicted of a felony crime against persons (a violent crime).6
While Task Force members expressed a diversity of opinions on second looks, they agreed that many people serving long sentences may no longer present a danger to public safety and may have been held sufficiently accountable for their actions.
Long sentences are often imposed with an expectation that they will prevent some crime by incapacitating individuals and deterring them from engaging in future crime after release.
Research commissioned by the Task Force on Long Sentences based on Illinois data finds that the vast majority of the people serving long prison terms have “aged out” of criminal behavior near the end of their stays. Because these same individuals are serving the longest prison terms, they make up a disproportionate share of the incarcerated population. Shortening their prison terms can reduce the size of the prison population without significantly compromising public safety.
Many states maintain a parole system that allows for a governor-appointed board to make release determinations based on these and other considerations, but 16 states and the federal system have eliminated parole. In addition, the Task Force reviewed research showing that prison populations have grown faster in parole states, suggesting that chances for judicial sentence review are warranted in all jurisdictions.
The Task Force recommends that states and Congress explore creating selective second look opportunities for people serving long sentences, and that they do so in consultation with victims and survivors and other key stakeholders.
State legislatures, Congress, and policymakers should consider creating selective opportunities for people serving long sentences to receive judicial second looks consistent with the purposes of sentencing.
State legislatures, Congress, and policymakers in jurisdictions without mechanisms that allow people serving long sentences to request a sentence modification after serving at least 10 years of their sentence should consider developing proposals to create judicially based second looks that address:
- An individual’s current risk to public safety
- Determinations of risk should refer to assessments from actuarial instruments that are transparent, open to public scrutiny, and have been validated for predictive accuracy and responsivity, including race and gender, prior to use 7
- Where such a transparent and validated assessment instrument is not available for use, authorities should develop one
- The person’s behavior while incarcerated, including participation in rehabilitative and other programming
- The views of the victims and survivors of the crime(s)
- The incarcerated person’s likelihood of post-release success
- Any additional factors that relate to the nature of the offense, the culpability of the individual, changes in the law since the person was sentenced, and the interests of justice more generally
- A schedule for reapplication for sentence modification if the initial request is denied
- A term of supervised release for individuals who are released under second looks
- Procedures regarding hearings, appeals, the rights of crime victims, or other issues deemed appropriate
State and federal authorities should support ongoing data collection and analysis of second looks and publish detailed annual reports on cases heard. These reports should include information on:
- Offense and geographic information of petitions and rulings
- Demographic information—such as race, ethnicity, gender, age, etc.—on those who file petitions and the victims and survivors of the crime(s), including the resulting rulings
- Recidivism rates of people released through second looks, based on new convictions within the first three years post-release
- Surveys exploring perceptions of the public, crime victims and survivors, and people serving long sentences on the fairness of the second look system
- Factors associated with successful reintegration of people released through second looks, including employment and other pro-social factors