Works in Progress Group #18 Criminal Justice & Resentencing

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Session Type: Works-in-Progress

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Database Determinism

Technological advances in recent decades have led to the development of numerous databases that can change the course of people’s lives. This is especially true where there is no mechanism to challenge inclusion in or argue for removal from a database. Professor Freeman's article looks at two particularly problematic categories of databases—gang databases and sex offender registries— both of which frequently categorize, label, and stigmatize people for life. Although inclusion in a gang database often occurs before any touchpoints with the criminal justice system and inclusion on a sex offender registry takes place post-conviction, both databases suffer from similar flaws. This article argues that inclusion in a database for life essentially preordains the course of an individual’s life and is antithetical to the goals of the criminal justice system. It also challenges one of the underlying assumptions backing these databases—that individuals labeled as gang members or sex offenders cannot be rehabilitated and must forever be stigmatized.

Left Behind, Again: Intellectual Disability and the Age of Resentencing

Over the last several years, the movement towards resentencing as a means to dismantle the carceral state has increased in momentum. In many ways, this resentencing movement reflects a widespread understanding that the longest sentences should be reserved for the most culpable individuals. The conversation about resentencing, however, has largely excluded people with intellectual disabilities as a specific subgroup.

Professor Kronick's article examines the ways in which individuals with intellectual disabilities have been omitted from much of the movement to dismantle mass incarceration. Though the antecedent to the current resentencing movement can be traced back to Atkins v. Virginia, which held that executions of individuals with certain intellectual disabilities violates the Eighth Amendment, this case did not lead to the same proliferation of case law progeny as Roper v. Simmons, the seminal juvenile death penalty case. This article starts with an examination of the current resentencing movement, and then moves to an exploration of why people with intellectual disabilities have not featured more prominently but should. Though people with intellectual disabilities have not benefited from the resentencing movement because of many complex and nuanced issues, this article proposes concrete and targeted changes that could address these inequities. Changes to the implementation of and initiatives in the First Step Act could make more people with intellectual disabilities eligible for early release and resentencing. Though changes to the First Step Act are not a panacea for these challenges, they will ensure that intellectual disabilities are part of the resentencing movement conversation.