Why prosecutors should look back at a past sentence to ensure ongoing justice

Those in the legal profession know that the law is constantly evolving to ensure ongoing justice - hence why we call it the "practice" of law. This is certainly true for criminal law, where innovations have been adopted to address policies from youth incarceration, to evidence-based approaches to drug offenses, to three-strikes penalty reform. One area of law that still requires innovation? Long sentences based on outdated policies.

In large part due to policies enacted in the 1980s and 1990s, the United States has the highest incarceration rate in the world with nearly two million people behind bars. This number not only reflects how many people are sent to prison - but also the length of time they are kept there. In fact, today one in seven people in prison is serving a life sentence. And more than half of the people incarcerated have already served over 10 years. While sentence length has increased for both Black and white people, racial disparities in sentence length have actually widened. Today, many people serving long sentences are also part of an aging population that is far less likely to reoffend, and costly to keep incarcerated. Taxpayers spend more than $100,000 to incarcerate one person per year in California - public safety dollars that could go to effective preventative interventions.

One way to address outdated sentences is through actors in our justice system intimately involved in sentencing: prosecutors. As a former prosecutor, I know that many prosecutors can think of a case that merits a second look. And while prosecutors have not always played a leading role in reform, one exception has been the movement to address wrongful convictions, housed under Conviction Integrity Units. As prosecutors reviewed these cases, they found many instances where the person was guilty - but their same sentence would not be imposed under today's laws, or the person was rehabilitated. Until recently, prosecutors lacked tools to recommend such cases to the court for resentencing and release.

I saw this need first-hand, which is why in 2018, I worked in close consultation with prosecutors across California to conceptualize, draft, and secure the passage of the nation's first "Prosecutor-Initiated Resentencing" (PIR) law. I then started an organization - For The People - to help prosecutors launch and grow PIR initiatives in their offices.

What I have heard from prosecutors doing this work is that PIR supports their mission of seeking justice. As one elected District Attorney in a rural California county told me once: "This is the right thing to do no matter what side of the aisle you fall on. If people go to prison for a very long time and it doesn't seem just, or they've done a great job at rehabilitating themselves, why wouldn't we as prosecutors consider that?" Recently, the American Bar Association (ABA) agreed by passing a landmark resolution that urges governments to enact PIR laws - thereby empowering prosecutors in their roles as ministers of justice.

Working with prosecutors, I wanted to ensure the law had a central focus on victims, public safety, and rehabilitation, so included the following key characteristics:

First, PIR is discretionary, giving prosecutors complete discretion as to whether or not they will review or recommend a case. Second, victims are consulted and engaged throughout the process. Victims are afforded the same rights at this stage as the sentencing stage, which includes access to services, the right to attend the hearing and to give a statement. It is also important to note that the law does not mandate the types of cases prosecutors must review and there are no carve outs excluding certain categories of cases. Prosecutors can make these decisions based on the needs of their community.

Inherent to the law is also collaboration between prosecutors, defense, and the community. Defense attorneys and the community work with prosecutors to collect information helpful for the evaluation of an incarcerated person. It's a model unlike the typical adversarial relationship in the courtroom. In fact, motions are usually drafted collaboratively and both sides often advocate in unison at a resentencing hearing. Finally, the law provides the court with the ultimate jurisdiction to decide whether or not to grant the recommendation from the prosecutor, ensuring further checks and balances. However, the new sentence must be less than the original sentence.

Should a prosecutor choose to implement PIR in their jurisdiction, they would first undergo data analysis to understand their prison population, supported by technical experts like For The People. Then, the office would determine the initial case review criteria based on their populations' needs, and begin identifying cases that fall under their criteria. The core work of PIR involves prosecutors meticulously reviewing an incarcerated person's history, in-prison behavior, and robust reentry planning. Finally, and importantly, prosecutors receive input from victims. After an extensive review, the prosecutor files a motion with the Court supporting their recommendation to resentence. The judge then independently makes the decision.

In the last four years, I have been proud to see prosecutors implement PIR across several states - including California, Washington, Oregon, Illinois, Louisiana, and Minnesota. This has led to nearly 800 people being resentenced with a second chance as parents, neighbors, mentors, taxpayers, neighbors, and so much more.

One of these people is Alwin Smith, who was sentenced to 65-years-to-life for second-degree robbery and possession of a controlled substance. After 20 years of rehabilitation through programming, sobriety programs, mentorship, and spiritual leadership, Alwin's release was recommended by Riverside County District Attorney Michael Hestrin. Today, Alwin leads a ministry, manages a reentry home, spends time with his children and grandchildren - all while volunteering at youth detention centers to interrupt cycles of crime. Though Alwin is unique in his journey, I have heard many stories like his in doing this work. There are still many people like Alwin in our prisons whose cases merit a second look. And now, there is a tool that prosecutors can use to ensure ongoing justice: Prosecutor-Initiated Resentencing.