Reconsidering Who Is Kept In Prison: Considering Second Look Legislation

By Danielle Silva

The Justice Collaborative hosted a webinar on Second Look Legislation, methods that offer alternatives to incarceration early or later on in prison sentences.

Second Look Legislation ranges from the passing of laws to providing rehabilitative counseling to individuals in custody. This legislation focuses on addressing the issue of mass incarceration in the prison system and seeking further reform for a prison population that is made up of individuals who grow older and older as they serve their life sentences.

Nazgol Ghandnoosh, Ph.D. a Senior Research Analyst at the Sentencing Project, spoke on a national incarceration rate report from her organization. According to the report, at least 39 states have reduced their prison population in recent years but the current decarceration rate of  1% a year indicates the country will take 72 years to half the current prison population.

Ghandnoosh stated this low decarceration rate comes from focusing on diverting individuals who have committed non-violent offenses away from incarceration. However, at least half of the prison population are serving sentences for violent or serious offenses.

“1 in 7 people in prison nationwide is serving a life sentence,” Ghandnoosh said, “So that’s a sentence of life with the possibility of parole or without or what we consider a virtual life sentence or a sentence with 50 years or longer.”

She explained that there have been little to no attempts to reduce the individuals serving life, also known as lifers, in prison, and often times there’s a disconnect between the sentence as it is intended and what they become. According to an early 2000s survey from Michigan judges, most stated they believe an individual with a life sentence will only serving for 20 years when the actual average across individuals with life sentences is over 30 years.

“The growth in the lifer population has outpaced the overall growth in the prison population and it’s happened during a time when crime rates have been falling,” Ghandnoosh stated. “Crime rates are about half the rate that they used to be at in the 1990s… And yet we’ve only begun to make a dent in the number of people incarceration and have made no dent in reducing the lifer population.”

She shared how the high sentence rate for lifers makes 10 or 15-year sentences for cases like drug offenses resulting makes the sentence appear less harsh. The Sentencing Project has been running a campaign to end life imprisonment and limit prison sentencing to 20 years.

The 20 years comes from the viewpoint that the certainty of punishment is more effective than the severity of punishment and that “people can age out of crime.”

Ghandnoosh explained there is an age-crime curve where young men are more likely to commit crimes around the time of adolescence. Over time, they age out of crime and are less likely to offend, especially in considering recidivism rates.

In terms of certainty versus severity, Ghandnoosh notes that offenders often don’t know the sentence itself and knowing they have a higher chanced of being punished is a larger deterrent than people actually getting punished.

The American Law Institute recommended that state judicial legislature grants lifers a sentence reconsideration after 15 years of incarceration regardless of the crime. Some parole experts also argue that sentence reconsideration should be after 10 years.

She also argues that the more people in jail mean less funding for programs that help reduce crime as those funds are going to keeping those individuals in prison.

Ghandnoosh ended by stating that half of the lifer population is made up of African Americans, creating a racial disparity in sentences that are much longer and harsher.

J’Mel Carter, a Life Coach at the Anti-Recidivism Coalition, also shared his story as a previously incarcerated and his work at the Hope and Redemption Team, also known as HART, at the Anti-Recidivism Coalition. He and six other formerly incarcerated men guide currently incarcerated individuals through rehabilitation programs such as parole.

Carter shared that he received a 30-year sentence in 1994 for first-degree murder. At 32 years old, 12 years after he had been in prison, he was released after being granted an opportunity for early parole as a result of California’s “Youth Offender Parole” process. He stated that he grew more educated on his situation over time. He was released under California Senate Bill 261, which extended the age of youth parole board hearings to those under 23 years old.

He believes his work now at the moment allows him to help other individuals figure out to consider their personal defects and prepare for the board to address. Carter believes that the self-help programs help greatly and he is an example of that.

Jessica Brand, the Legal Director of the Justice Collaborative, discussed more generally the need for Second Look Legislation across the nation. She noted that prosecutors may look back at individuals they’ve prosecuted that were young and had no prior prison history and realize that they have limited procedural hooks to get those individuals out of prison. In these circumstances, having legislative fixes are crucial.

Brand noted Washington, D.C. as one location where movement is starting where the age of parole board hearings after 15 years is now extended to 21-year-olds. She considers this movement a success as there has been lots of community support and many people going home through this law. Brand points out, however, the age could be changed to 25 years old as that is the official age at which brain development stops.

Brand also notes that having these hearing dates appear earlier in sentences gives incarcerated individuals hope. By having such lengthy sentences and time before hearings happen, individuals are less motivated to participate in programs that could get them out. She reiterated the need to change the time served before petitioning for release to be changed to at least 10 years instead of 15.

Instead, there are many individuals in jail who have reached the age of 50 and are still in jail despite the recidivism rates, or likeliness of them committing another offense, being notably low.

Brand argues that states should consider their parole policies but also have prosecutors consider making changes for long sentences. In the case of plea-bargaining, for instance, she stated that putting pressure for a sentencing guideline ruling can help address adding to the lifer population.

Former California prosecutor Hillary Blout introduced information on Assembly Bill 2942, a law that allows district attorneys in California to recall a sentence and re-sentence a person who received a lengthy prison sentence. While originally working on getting the legislation passed, she decided to stick around for the implementation and now works with district attorneys across California in implementing the law in their offices.

She addressed the idea of the district attorney and how often DA’s look to the negative aspects of the person due to their role of prosecuting the individual. However, she believes that district attorneys should be more aware of the harm of their actions, especially in terms of considering the lengthy prison sentences they may request.

AB 2942 helps district attorneys reconsider sentences they may have placed on an individual and allows them to be more involved in helping address issues of mass incarceration. Blout notes that the bill has universal acceptance and district attorneys agree that people in prison don’t need to be there. AB 2942 acts less like a hurdle and assists in showing how harsh some sentences can be.

“The reality is prosecutors tend to only see people on their worst day and they don’t tend to give themselves opportunities to look back at decisions that were made,” Blout said. “It is very infrequent that they are able to look at cases and be able to see all the progress and consider the families that are waiting for people.”

Blout acknowledges that this is a large task for district attorneys’ offices but notes that many progressive prosecutors now are working on instilling sentencing units to look over cases. In addition, there are also community-based organizations that can help which allows more ownership of issues with the community.

Desmond McKinson, Jr., Director of Communications and Legislative Aide to Pennsylvania Senator Sharif Street (D-Philadelphia), addressed Senator Street’s SB 942, the bill currently going through the Pennsylvania legislature to provide a parole opportunity for those sentenced to LWOP.

Pennsylvania has the second most people sentenced to life without parole with a lifer population of over 5,000. Out of that population, over half are seniors. He noted there is currently legislation being considered due to the Coalition to Abolish Death by Incarceration’s campaign.

“You do not need to kill someone to die behind bars,” McKinson said.

He shared how the cost for keeping people behind bars is fiscally difficult and, “morally… we are warehousing a senior citizen facility.” McKinson also pointed out many prisoners also have mounting medical expenses.

Pennsylvania’s SB 942, authored by Senator Street, has gained bipartisan support. This includes support from Republican lawmakers. If all the seniors currently in the system were put on parole at this moment, they would instantly save $30 million as almost half of lifers are seniors that have medical needs.

SB 942 is currently at the midway point, waiting for the bill to move out of the judiciary committee.

In a question and answer section, two panelists addressed issues of restorative justice for victims who learned about resentencing.

One panelist shared that victims had actually expressed surprise that some individuals were in prison still, having forgotten about the case. According to Marcy’s Law, however, victims are entitled to be told if there are any further updates on a case. She noted that the district attorney is meant to represent the people, not the victim, and the victim’s opinion alone should not be the deciding factor in whether a person should go home or not. There are factors of age, time served and additional circumstances.

Another panelist shared that there is a need to encourage healing between the offender and the victim’s family. He notes accountability is an important step in healing. Remorse is also a known aspect needed to be shown during the parole board hearings.

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