Commentary: Prosecutor-Initiated Resentencing Has Profound Limitations

Commentary: Prosecutor-Initiated Resentencing Has Profound Limitations

By Rory Fleming

Adhering to the 2018 passage of AB 2942, California’s to start with-in-the-nation “prosecutor-initiated resentencing” legislation, Hillary Blout started the Oakland-primarily based nonprofit For The People today to popularize and assistance the idea. Blout, a previous prosecutor who labored under Kamala Harris when she was the San Francisco District Attorney, experienced served draft the bill, and she and her firm have been operating to get it recognition.

At the close of 2021, For The People today released its report on how prosecutor-initiated resentencing has been undertaking so considerably. The report explains that, “As of November 2021, extra than 100 people today experienced been produced in California by PIR.” Which is everyday living-altering for these people today, and an admirable accomplishment as far as it goes. But nicely about 100,000 other individuals continue to be held in California’s condition prisons. Much more than double the variety introduced by way of PIR—242 people—died in the state’s prisons from COVID-19 in the course of a shorter time interval, as the report notes.

Prosecutor-initiated resentencing is not a undesirable thought, per se. Prosecutors, particularly the elected types who direct county places of work, arguably have a lot more electrical power than any other actors in the prison justice system. With the general absence of “second look” legal guidelines, judges deficiency the ability to unilaterally reopen criminal scenarios to minimize sentences. Even in the absence of other prosecutor-initiated resentencing legal guidelines, there is some evidence that prosecutors can reopen circumstances to negotiate lighter plea bargains where by they deem it fair. Prosecutors in Denver, Colorado and all through the state of Ga, have carried out just that in the latest years.

Nevertheless, any optimism for California’s prosecutor-initiated resentencing energy might have seriously overestimated the potential of the state’s elected prosecutors for mercy. With uncommon exceptions, California’s district attorneys have regularly opposed criminal justice reform, which includes milder variations like cannabis legalization.

Aspect of this opposition could be due to electoral pressures that reflect a political culture. Amongst blue states, California has one particular of the optimum incarceration premiums its charge for each capita is almost double that of Massachusetts. It is also property to a higher variety of nationally distinguished victims’ legal rights activists, these as Marc Klaas, Henry Nicholas and some others.

But the worldview and temperament of a precise elected prosecutor will always play a huge job, much too. That surely has held legitimate in the demise penalty context, wherever, for case in point, former Lexington County Solicitor Donnie Myers in South Carolina developed idiosyncratic justifications for consistently sending individuals to demise row. Myers, whose zealousness intensified right after he skilled illness-associated loved ones tragedy, as soon as stated of his pursuit of death sentences, “This is about all I’ve received. If I had to go property and be by myself, I would shoot my damn self.”

Nevertheless the prosecutorial culture of punishment reaches significantly deeper than any personal. Because prosecutors are potentially the most most likely felony legal technique actors to knee-jerk absent from allowing reformed prisoners go, reducing them out from the initiation of “second look” procedures is the formal stance of the American Regulation Institute, a very prestigious non-governmental entire body of legal professionals, judges and other industry experts.

ALI has specifically proposed that states undertake “second look” guidelines. Having said that, the organization’s design code on sentencing does not give prosecutors the electrical power to initiate resentencing, but alternatively states it should lie with a  “judicial panel or other judicial decisionmaker.”

This makes feeling, when prosecutors’ regular qualified investment decision in maximizing sentences amounts to a disincentive to cut down them. A criticism of For The People’s technique, therefore, could be that it sees the retrograde California DAs as companions, fairly than cynical politicians and tough-on-criminal offense ideologues who stand unflinchingly in the way of progress.

“It usually takes all actors on the ground to make a variation in this fight towards mass incarceration—from reentry, to preventative sources, to plan alterations,” For The People’s communications manager informed Filter. “As an corporation concentrated on Prosecutor-Initiated Resentencing, we are happy to see prosecutors viewing by themselves as part of the resolution with the objective of reuniting households and communities. We are grateful that a few new states have passed PIR legal guidelines soon after California (WA, OR, IL) with far more costs pending, and that the $18M California County Pilot Program is in complete effect, activating new counties to do this get the job done. We’re inspired by the motion we have observed so far, and are hopeful for what’s ahead.”

In the system of her operate, Blout has precisely lifted up prosecutors like Santa Clara District Attorney Jeff Rosen and Yolo County District Lawyer Jeff Reisig, the two of whom have deeply troubling baggage.

DA Rosen purports to support prison justice reform, inspite of refusing to back again various ballot initiatives intended to cut down California’s higher incarceration price. Just one of his recent moves was to charge a small with drug-induced homicide. Blout has featured her perform with Rosen in her reports, and she even endorsed him in the 2022 DA race. DA Rosen, it need to be observed, obtained an further $1,160,000 in the 2021-2022 state finances as a end result of their partnership.

DA Reisig, a specifically ardent opponent of criminal justice reform, has blamed community bail reform measures, intended to lower COVID-19 amongst persons held in jail, for criminal offense spikes. He also subverted the will of California voters by above-charging petty thefts, which are intended to be misdemeanors below current law, as felonies, using a statute with the Kafkaesque title of “conspiracy to commit a misdemeanor.”

While Blout did not endorse Reisig—perhaps mainly because he was a registered Republican ahead of registering as nonpartisan, whilst she has worked for many prominent Democrats—she did generate his campaign favourable push, and has featured him in her nonprofit’s studies.

A person hundred folks freed earlier than they or else would have been is excellent, but hardly dents the suffering and injustice of mass incarceration. Performing this at the kind of scale that is desperately wanted implies not relying on prosecutors to become agents of significant adjust.

Rory Fleming is a writer and licensed attorney.  Initially Printed by Filter Magazine.

Ferne Dekker

Learn More →