Group 16: Criminal Law: Second Look and Prison Release
A spate of laws empowering courts to revisit the sentences of people convicted many decades ago, in directing judges to make release decisions based in significant part on evidence produced by correctional systems, risk undermining the very goals animating these laws.
The results of the so-called “tough on crime” era of the late 1980s and 1990s – a period in which states and the federal government sent record numbers of people to prison and harsh sentencing practices resulted in an explosion of the number of people serving extremely long sentences - are well-documented. Among these are extraordinary racial disparities in incarceration rates and sentence lengths, a rapidly aging prison population, and prison systems that are incapable of carrying out basic services. In response, and as a way to begin to redress the problem of over-incarceration, a number of states across the country are enacting so-called “second look” laws to provide sentencing relief for people serving extremely long sentences. This paper considers the unique challenges faced by people seeking release via these new laws who must rely on what I call “prison evidence” to prove that they have been rehabilitated during their incarceration.
In this Article, I argue that the overreliance of second look statutes on prison-created evidence including risk assessments, disciplinary violations, and psychosocial evaluations sets judges up to make resentencing decisions that are based on a materially false assumption: that prisons are generally places of rehabilitation and that a prison’s account of a defendant’s conduct, attitude and remorse are reliable. In this way, the efforts of the judicial resentencing movement to redress the effects of incarceratory practices that gave rise to mass incarceration risk repeating some of the same mistakes that gave rise to the need for these laws in the first place.
When the Record is Wrong: Revisiting the Crime in the Context of a Second Look
Alexandra Harrington, Buffalo
In this piece, I parse the problem of relying on a calcified narrative of the underlying crime in second-look proceedings. Second looks—resentencing and parole hearings, for example—entail revisiting the appropriateness of a given punishment and, often, also revisiting the underlying crime of conviction. This raises the question of what exactly defines the crime for the purposes of second-look review. Is it simply the proven or pleaded mens rea and actus reus? Or does the narrative of the case developed at trial or through a plea colloquy or in a pre-sentence report hold significance in this context. More often than not, the answer is the latter. This narrative tends to solidify as gospel. And any statement that deviates from such unassailable truth can be taken as evidence of incredibility, failure to accept responsibility, and lack of remorse that counsels against granting relief. Yet witnesses (and defendants) can lie or be mistaken; criminal cases proceed with incomplete information; and statements made for the purposes of securing a plea do not always match reality. This tension between the calcified narrative of the crime and subjective reality leaves the second-look applicant in an untenable position: contradict their own understanding of what happened and adopt a rendition of facts that has been set in stone at the original proceeding; or tell their truth and risk denial of relief. Instead, I argue, second looks ought to recognize the fallibility of—and on those grounds de-emphasize—the original narrative of the underlying crime.
Trapped: Barriers Faced by People with Mental Illness Navigating Prison Release Frameworks
In the age of mass incarceration, prisons have become warehouses for people with severe mental illness. It is estimated that two in five people currently incarcerated have a history of mental illness, twice as high as the general population. The inhumane conditions and lack of adequate care for people in prisons with mental illness is well documented. However, the barriers to release that mentally ill prisoners face are underexplored. Prison release mechanisms vary widely between jurisdictions and are often highly technical and complex. However, one unifying feature is that people with serious mental illness are disadvantaged within these frameworks.
This paper will explore the numerous barriers to release that people with severe mental illness face while serving a prison sentence. Barriers in this context can be divided into two general categories: stigma and accessibility. Release decisions are often ceded to back-end decision makers with little oversight and enormous power over the amount of time an individual person serves in prison. These decisions, which are highly discretionary and virtually unreviewable, are heavily influenced by inaccurate stereotypes of mentally ill people as dangerous. Additionally, the lack of adequate mental health care in prisons not only results in inhumane conditions but also a lack of access to resources that people with mental illness need to successfully navigate the release framework. The result is that people with mental illness spend longer in prison than others serving the same sentence, contributing to the mass incarceration of people with mental illness.