Commentary: Prosecutor-Initiated Resentencing Has Profound Limitations

By Rory Fleming

Following the 2018 passage of AB 2942, California’s first-in-the-nation “prosecutor-initiated resentencing” law, Hillary Blout started the Oakland-based nonprofit For The People to popularize and support the concept. Blout, a former prosecutor who worked under Kamala Harris when she was the San Francisco District Attorney, had helped draft the bill, and she and her organization have been working to gain it recognition.

At the end of 2021, For The People released its report on how prosecutor-initiated resentencing has been doing so far. The report explains that, “As of November 2021, more than 100 people had been released in California through PIR.” That’s life-changing for those people, and an admirable achievement as far as it goes. But well over 100,000 others continue to be held in California’s state prisons. More than double the number released through PIR—242 people—died in the state’s prisons from COVID-19 during a shorter time period, as the report notes.

Prosecutor-initiated resentencing is not a bad idea, per se. Prosecutors, especially the elected ones who lead county offices, arguably have more power than any other actors in the criminal justice system. With the general absence of “second look” laws, judges lack the power to unilaterally reopen criminal cases to reduce sentences. Even in the absence of other prosecutor-initiated resentencing laws, there is some evidence that prosecutors can reopen cases to negotiate lighter plea deals where they deem it fair. Prosecutors in Denver, Colorado and throughout the state of Georgia, have done just that in recent years.

However, any optimism for California’s prosecutor-initiated resentencing effort may have severely overestimated the capacity of the state’s elected prosecutors for mercy. With rare exceptions, California’s district attorneys have consistently opposed criminal justice reform, including milder versions like cannabis legalization.

Part of this opposition may be due to electoral pressures that reflect a political culture. Amongst blue states, California has one of the highest incarceration rates; its rate per capita is nearly double that of Massachusetts. It is also home to a higher number of nationally prominent victims’ rights activists, such as Marc Klaas, Henry Nicholas and others.

But the worldview and personality of a specific elected prosecutor will always play a large role, too. That certainly has held true in the death penalty context, where, for example, former Lexington County Solicitor Donnie Myers in South Carolina developed idiosyncratic justifications for consistently sending people to death row. Myers, whose zealousness intensified after he experienced illness-related family tragedy, once said of his pursuit of death sentences, “This is about all I’ve got. If I had to go home and be by myself, I would shoot my damn self.”

Yet the prosecutorial culture of punishment reaches far deeper than any individual. Because prosecutors are perhaps the most likely criminal legal system actors to knee-jerk away from letting reformed prisoners go, cutting them out from the initiation of “second look” procedures is the official stance of the American Law Institute, a highly prestigious non-governmental body of lawyers, judges and other experts.

ALI has specifically recommended that states adopt “second look” laws. However, the organization’s model code on sentencing does not give prosecutors the power to initiate resentencing, but instead says it should lie with a  “judicial panel or other judicial decisionmaker.”

This makes sense, when prosecutors’ constant professional investment in maximizing sentences amounts to a disincentive to reduce them. A criticism of For The People’s approach, therefore, could be that it sees the retrograde California DAs as partners, rather than cynical politicians and tough-on-crime ideologues who stand unflinchingly in the way of progress.

“It takes all actors on the ground to make a difference in this fight against mass incarceration—from reentry, to preventative resources, to policy changes,” For The People’s communications manager told Filter. “As an organization focused on Prosecutor-Initiated Resentencing, we are glad to see prosecutors viewing themselves as part of the solution with the goal of reuniting families and communities. We are grateful that three new states have passed PIR laws after California (WA, OR, IL) with more bills pending, and that the $18M California County Pilot Program is in full effect, activating new counties to do this work. We’re encouraged by the movement we have seen so far, and are hopeful for what’s ahead.”

In the course of her work, Blout has specifically lifted up prosecutors like Santa Clara District Attorney Jeff Rosen and Yolo County District Attorney Jeff Reisig, both of whom have deeply troubling baggage.

DA Rosen purports to support criminal justice reform, despite refusing to back several ballot initiatives designed to reduce California’s high incarceration rate. One of his recent moves was to charge a minor with drug-induced homicide. Blout has featured her work with Rosen in her reports, and she even endorsed him in the 2022 DA race. DA Rosen, it should be noted, got an extra $1,160,000 in the 2021-2022 state budget as a result of their partnership.

DA Reisig, a particularly ardent opponent of criminal justice reform, has blamed local bail reform measures, designed to reduce COVID-19 among people held in jail, for crime spikes. He also subverted the will of California voters by over-charging petty thefts, which are supposed to be misdemeanors under current law, as felonies, using a statute with the Kafkaesque title of “conspiracy to commit a misdemeanor.”

While Blout did not endorse Reisig—perhaps because he was a registered Republican before registering as nonpartisan, whereas she has worked for several prominent Democrats—she did earn his campaign positive press, and has featured him in her nonprofit’s reports.

One hundred people freed earlier than they otherwise would have been is good, but barely dents the suffering and injustice of mass incarceration. Doing this at the kind of scale that’s desperately needed means not relying on prosecutors to become agents of meaningful change.

Rory Fleming is a writer and licensed attorney.  Originally Published by Filter Mag.

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Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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