Envisioning a second-look sentencing agenda for the US Sentencing Commission

With growing use and interest in sencond-look sentencing in state and federal systems, the time is right for research on, and expansion of, second-look best practices

Jul 12, 2024

Responding in part to the modern realities of mass incarceration and massively long sentences in the United States, I have long been an advocate for all sorts of second-look sentencing mechanism. As I have stressed in a number of past articles, various forms of second-look sentencing have been important parts of the American sentencing tradition. Executive clemency powers, enshired in the US Constitution and all state constitutions, is a mechanism for second-look sentencing. So too has been traditional parole review and release, which was a fundamental part of every American sentencing system through most of th 20th Century.

In the 21st Century, perhaps in part because of new restictions or diminished use of parole and clemeny, other mechanisms for second-look sentencing have emerged and been garnering great attention. In particular, reform advocates (including the American Law Institute and the American Bar Association) have urged jurisdictions to create or expand judicial authority to revisit past prison sentences, and a growing number of legislatures are enacting or actively considering judicial second-look sentencing authority. Notably, a number of different types of laws and concerns are often (properly) included within the “second look” sentencing discussion, ranging from compassionate release laws that allow for sentence review under certain special circumstances, to doctrines focused on giving youthful offenders serving extreme prison terms a chance for parole or sentence review, to laws allowing prosecutors to initiate resentencing for all prisoners for any reason, to laws requiring judges to review all long prison terms after a certain period.

For anyone interested in broader reading on these topics, I can recommend many new resources. The Sentencing Project has this new report on the “Second Look Movement” and has created a “Second Look Network.” The goup For the People, which is focused particularly on prosecutor-initiated resentencing, has assembled here publications and resources. Some notable long reading lists on these topics have been assembled by FAMM here and NACDL here and the Seattle Clemency Project here. And, for a somehwhat more dated and academic discussion of these topics, here is a partial sampling of some of my major second-look related writings:

I find all the recent reform and advocacy in the second-look space quite exciting, but also a bit overwhelming and now needing more systematic and sustained review. Though I view the general argument for many second-look sentencing mechanisms to be compelling, assessing the particulars and determining best practices conceptually and practically is quite challenging. For that reason (and others), I was very pleased to have the chance to work recently with Jeremy Haile, Director of Policy for For The People, and Erica Zunkel, Clinical Professor of Law at The Law School at The University of Chicago, on a letter we submitted to the US Sentencing Commission urging it to embrace “a robust ‘second look’ agenda.” Here is how our letter concludes, explaining what we have in mind:

In part because this Commission has recently given focused consideration to one aspect of sentence reconsideration through recent amendments to § 1B1.13, we believe this Commission is now uniquely positioned and able to develop and advance a robust “second look” sentencing agenda in the months and years ahead. Many activities might comprise such an agenda, and here we will propose just a few possibilities for Commission consideration:
• Convene a national second-look sentencing conference: To establish sentencing laws reflecting the “advancement of knowledge of human behavior as it relates to the criminal justice process,” 28 U.S.C. § 991(b)(1)(C), this Commission should hold a public conference in order to collect information about, and get stakeholder input about, the development and implementation of second-look sentencing mechanisms nationwide. Given the variety of “second look” laws being proposed and implemented in states and localities across the country – ranging from “traditional” compassionate-release laws to laws enabling resentencing of youthful offenders, to broad prosecutor-initiated and universal second-look resentencing laws – the policies and practices surrounding the review and reconsideration of prison sentences are quite dynamic and yet still quite opaque. A national convening conducted by the Commission to consider these laws would help not just this Commission, but also policy makers nationwide, have a more informed understanding of “second-look” best practices.
• Broadening federal resentence reductions: To effectuate the “purposes of sentencing” and to avoid “unwarranted sentencing disparities,” 28 U.S.C. § 991(b)(1)(A-B), this Commission should conduct workshops to assess and improve the functioning of the sentence reduction authority in 18 U.S.C. § 3582(c)(1)(A). Though Commission data indicate more sentence reductions motions have been filed since Congress sought to expand their use in the First Step Act of 2018, recent data also show that, on a monthly basis, far less than 0.05% of all federal prisoners are able to secure a sentence reduction. Particularly given data showing remarkably low recidivism rates for persons released early from federal prison during the COVID pandemic, Commission data suggest federal sentence reduction could and should be expanded. Potential approaches to expansion might include statutory reform for second looks for long-serving federal prisoners (as Senator Corey Booker proposed in 2019), reforms enabling federal prosecutors to initiate sentence reductions for a wide range of reasons, a right to counsel and funding for representation for federal prisoners bringing sentence reduction motions, careful study and review of Department of Justice opposition to sentence reduction motions, and further expansion of the Commission’s categories of cases in policy statement § 1B1.13 that can justify sentence reductions.
• Analyzing processes of federal sentence reductions: Though this Commission has started providing data about sentence reduction motions brought under 18 U.S.C. § 3582(c)(1)(A)(i) since Congress sought to expand their use in the First Step Act of 2018, these data raise a host of questions about who is seeking and who is securing sentence reductions. First, just when, how, and why federal prosecutors and/or BOP officials support or oppose these motions are unclear. Second, the patterns of grants and denial of these motions in different districts and circuits raise further questions about whether local cultures, rather than consistent national policies and practices, may unduly shape the outcome of sentence reduction motions. Third, federal prisoners do not have a constitutional right to counsel for bringing these motions, and it is unclear whether and how prisoners who may merit sentence reductions are obtaining sufficient representation. This Commission could and should produce a series of reports about ways to improve the sentence-reduction process and decision-making.
We can readily imagine a range of additional activities that could be part of a sound robust “second-look” sentencing agenda for this Commission. We sincerely hope you find some of these specific suggestions helpful, but the main goal of this letter is to urge this Commission to seize a leadership role in advancing research and sound policymaking with respect to resentencing opportunities for prisoners in both federal and state systems. Even if the United States did not have a massive prison population, such leadership on these issues would be valuable. Given that the federal prison system is the largest in a nation with a massive number of persons behind bars, we consider such leadership a true moral and constitutional imperative.

Sentencing Matters Substack

Discussion about this post