2nd Look Law Needed To Fix Broken Criminal Justice System

By Sarah Martinson | November 22, 2020, 8:02 PM EST

Over the summer, people across the nation rallied around policing reform to address racism in our criminal justice system, but focusing solely on police reform ignores prisoners put behind bars as a result of existing policing practices, according to experts.

To address the mass incarceration that has resulted from older policing practices, which has disproportionately impacted Black men, federal and local governments should adopt so-called second look laws that allow incarcerated individuals to petition judges to reevaluate their sentences after a certain period of time, experts said Thursday at the American Bar Association's annual fall criminal justice conference.

Mary Price, general counsel at Families Against Mandatory Minimums, or FAMM, a nonprofit advocacy organization seeking to end mandatory sentencing, said that our criminal justice system has been addicted to putting people in prison to manage problems leading to mass incarceration, and this needs to stop.

"I don't think we are going to be able to achieve justice in the system until we not only reform the police and practices, but we also ensure that the legacy of older policing — in the form of people serving sentences that are way out of proportion with their conduct, and also people who are thrown away because the nature of the offense or the addiction — is also addressed," Price said.

Last year, Sen. Cory Booker, D-N.J., along with Rep. Karen Bass, D-Calif., introduced the Second Look Act of 2019 that proposes allowing any incarcerated individual who has served at least 10 years to request that their sentence be reevaluated to determine if they are eligible for early release or a sentence reduction, but the bill hasn't passed in the U.S. Senate or House of Representatives yet.

David Singleton, the executive director of the Ohio Justice and Policy Center, said during a panel titled Second Look & Incarceration with Price at the ABA conference that a challenge to getting a federal second look law passed is that lawmakers want carveouts that would exempt certain crimes, such as murder or sex offenses, from the law.

Singleton said carveouts defeat the purpose of the law because they leave people behind.

"We have to move away from these carveouts," Singleton said. "If we accept carveouts, the advocates of change, we are throwing people under the bus."

At the state level, second look statutes have been introduced in D.C., Florida, Maryland, New York and West Virginia, according to FAMM's website. Last year, California revised its law giving certain prisoners such as individuals sentenced as adults for crimes that they committed as minors an opportunity to petition for resentencing.

In absence of a federal second look law, Price said at her organization they have tried to use the Federal Bureau of Prisons' compassionate release program to get people out of prison who have overly long sentences. The program was expanded under the First Step Act that was designed to reduce the prison population and signed into law by President Donald Trump in 2018.

"We didn't know ... if the new law could be used to get people who are vulnerable to COVID out, and it turns out it was elastic enough to do that," Price said. "Now we are continuing to push the boundaries out even further to see if we can use compassionate release for things that were never traditionally considered to be compassionate release," such as getting incarcerated individuals "who have been left behind by reforms that were made retrospectively, but not made retroactive."

Norman Brown, a program manager and life coach for the D.C. Department of Youth and Rehabilitation Services, who was also on the second look panel, said that if society forgets about the incarcerated, it destroys their potential to be productive individuals. Brown was incarcerated with three life sentences in 1993 for a nonviolent drug offense, before former President Barack Obama commuted his sentence in 2015.

"If you have a fruit that stays past ripe, the next stage of that piece of fruit is rotting, and what happens is that the longer [incarcerated individuals] stay in — the more we forget about them — the rotter they become," Brown said, adding that rather than blaming the criminal justice system for destroying incarcerated individuals' talent by keeping them in prison for too long, we wrongly blame the individuals.

Booker reinforced the panelists' words during his keynote speech at the conference on Friday, saying that criminal justice reform needs to be throughout the country's entire justice system.

"We must commit ourselves to continuing the work of reforming a savagely broken system and that means everything — our policing to what happens with sentencing to what happens inside our prisons to what happens upon release," Booker said.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.

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