Get Informed

Regular updates, analysis and context straight to your email

Close Newsletter Signup

A New Power for Prosecutors is on the Horizon—Reducing Harsh Sentences

Legislation in California would provide a direct route to resentencing, and a new tool for activists.

Arnulfo T. Garcia, whose story inspired the California legislation.
Aly Tamboura

A New Power for Prosecutors is on the Horizon—Reducing Harsh Sentences

Legislation in California would provide a direct route to resentencing, and a new tool for activists.

In 2017, Santa Clara District Attorney Jeff Rosen decided that Arnulfo Garcia did not belong in prison. Sentenced under California’s three-strikes law, Garcia was serving a life sentence for a residential burglary he committed while suffering from a heroin use disorder. During more than 16 years in prison, Garcia, then 64, had turned his life around. He became a prolific writer and editor-in-chief of the award-winning San Quentin News, a newspaper produced by incarcerated people and distributed throughout the California prison system. He completed drug treatment and led support groups for fellow prisoners. He organized forums with prisoners and prosecutors, helping to show those responsible for sending people to prison that even people who commit serious offenses are capable of profound change.

Rosen was among the prosecutors who attended Garcia’s meetings, returning on several occasions to discuss reforms to California’s criminal justice system. Rosen later told reporters that Garcia was “more than a model inmate”: He “was a better man, he was helping other people, using his talents in a productive way,” and “he’d served enough time.”

Rosen wanted to reopen Garcia’s case to reduce his sentence. But under state law, Rosen could not simply ask a judge to resentence Garcia without a legal basis for doing so, like new evidence or a change in sentencing law that would entitle Garcia to relief. It wasn’t enough to say that Garcia, while guilty of his crime and legally sentenced, was rehabilitated and deserved to go home.

It’s an issue faced by a growing number of reform-minded prosecutors around the country. As more elected prosecutors break with their tough-on-crime predecessors and pledge to reduce prison populations, more prosecutors have started to review old convictions to identify cases where, even if the conviction was sound, the punishment did not fit the crime. As reported by The Marshall Project, about two dozen prosecutors have announced plans to review old sentences, including Philadelphia District Attorney Larry Krasner, the former public defender and civil rights lawyer, who in March announced the creation of a formal sentence review program.

But identifying an excessive sentence is only the first step. In many states, prosecutors lack the legal authority to revisit sentences simply because they believe them to be unjust. Instead, they must devise creative workarounds. In some cases, prosecutors have joined prisoners’ clemency petitions or agreed to renegotiate prior sentences as though they were settlement agreements, options that may not be available in every case. In Garcia’s case, he was eventually released after Rosen supported his petition for a writ of habeas corpus, a complicated and lengthy process that required his own lawyer to concede ineffective assistance of counsel. (Garcia died in a car accident just two months later.)

“We had to do these legal gymnastics to get people resentenced,” Rosen said, “and realized the most straightforward way to make this happen would be to change the law.”

Now California is poised to do exactly that, with legislation on Governor Jerry Brown’s desk that its supporters say would be the first “legal vehicle” in the country to give prosecutors the power to recommend reducing sentences “in the interest of justice.” Rosen sponsored the bill and other Bay Area prosecutors—Alameda County District Attorney Nancy O’Malley and San Francisco County District Attorney George Gascón—joined organizations that advocate criminal justice reform, including the ACLU of California and the Ella Baker Center for Human Rights, to endorse the measure.

Once a prosecutor makes a recommendation, a judge would still have to impose the new sentence, and the sentence must be allowed by law. But just as prosecutors have enormous power to seek harsh penalties when a defendant is first sentenced, so too could prosecutors demand leniency after someone has already spent many years in prison.

The law could especially benefit prisoners whose sentences were lengthened when prosecutors tacked on sentence enhancements, Rosen’s office said. That would include sentences under California’s three-strikes law, which could be reduced if prosecutors withdraw a prior conviction (or “strike a strike”) from the court’s consideration. Other sentence enhancements, like those related to drugs or guns or alleged gang affiliations, could also fall by the wayside at the prosecutor’s discretion.

This would allow for resentencing not just in a case of clear rehabilitation, but also to keep up with modern sentencing practices. It doesn’t make sense to keep people in prison serving lengthy terms they would never receive today, Rosen said. “In my experience as a prosecutor, I’ve become aware of more cases from the Santa Clara DA’s office, or even that I prosecuted myself, where the person was convicted and was in prison for a very long sentence, and if we had to do it all over again today we would ask for a lower sentence.”

Rosen said the new law would do more than create a mechanism to reduce sentences—it would codify sentence review as part of the prosecutor’s job, making clear that prosecutors have a responsibility to see that no one sits in prison unnecessarily. “People think we use discretion to pile onto people,” he said, but “we can also use discretion to mitigate, and to show leniency and mercy in appropriate situations.”

The ‘next frontier’ of criminal justice reform

The legislation was the brainchild of Hillary Blout, a former prosecutor who has spent the last four years advocating criminal justice reform in California. Blout sees sentence review as the “next frontier” of reform: Securing justice for people still languishing in prison under long sentences imposed when the era of mass incarceration, defined by harsh sentencing laws and tough-on-crime prosecutors, was at its peak.

For decades, California was at the forefront of a national trend to send more people to prison for longer periods of time. From 1977 to 2007, the state’s prison population jumped nearly 900 percent, propelled by new sentencing laws—including an especially severe three-strikes law passed in 1994—and prosecutors that piled on sentence enhancements to obtain longer prison terms. Reforms over the last decade have pushed prison totals down, but the changes have been limited in scope, benefiting mainly low-level offenders convicted of nonviolent offenses.

The result is a prison population that, while about 25 percent smaller than it was 10 years ago, is still the second largest in the country and now has a higher proportion of prisoners serving long-term sentences. According to the most recent data from the California Department of Corrections and Rehabilitation, 25 percent of California’s 130,000 prisoners are serving a life sentence, and 31 percent are serving a sentence enhanced by either a second or third strike. As of September 2016, according to the Public Policy Institute of California, 80 percent of California’s prisoners carried a sentence enhancement of some kind.

Longer sentences also mean older prisoners. Since 1990, the share of California prisoners age 50 or older has jumped to 23 percent from 4 percent. That means the state’s prisons are increasingly filled with people who are among the most expensive to house and statistically least likely to commit crimes.

Advocates say that sentence review can be the impetus for more inclusive reform that reaches the prison population that has so far been left behind.

Keith Wattley, the executive director of UnCommon Law, which represents prisoners serving life sentences in parole hearings, says that taking another look at the people serving long-term sentences will challenge false distinctions that set boundaries on prior efforts to reduce incarceration. “Reforms come up,” Wattley said, and “people convicted of violent crimes are left out. People serving life sentences are left out.” They are based on “fundamental false premises—like there are differences between people who commit violent and nonviolent crimes, that one is redeemable while the other will always be too dangerous.” In reality, Wattley said, many people serving long-term sentences, even for violent offenses, remain in prison only because of outdated policies and pose no threat to public safety.

His view is supported by emerging research that lengthy prison terms do little to protect public safety or deter crime. A 2016 report from the Brennan Center for Justice, for example, summarized existing research and concluded that longer prison terms may actually produce higher recidivism rates, and at best provide diminishing returns for public safety. The report estimated that about 212,000 prisoners nationwide (14 percent of the U.S. prison population) convicted of serious offenses (including aggravated assault, murder, and “serious burglary”) could be released from prison without a threat to public safety.

Meanwhile, other research shows that long prison terms — and particularly the use of sentence enhancements and repeat offender laws — hit African Americans and other racial minorities the hardest.

California Assembly Member Phil Ting, who introduced the bill, said that California’s reliance on long sentences needs correction. “Looking at the last 30 years where we’ve overincarcerated people, we realized that longer prison sentences don’t really mean safer communities.” Giving prosecutors the discretion to reconsider these sentences, Ting said, “makes sense.”

An ‘organizing anchor’ for prosecutor accountability

Still, there remain questions of whether and how often prosecutors will use the law. The legislation does not mandate sentence review, but rather provides district attorneys with a tool to use at their discretion.

The district attorney offices in Santa Clara and San Francisco said they will formalize the process for sentence review under the new law. For example, according to a spokesperson, the San Francisco district attorney’s office will use the same “conviction review initiative” that investigates claims of wrongful convictions to identify excessive or disproportionate sentences.

Reform advocates are also preparing to maximize the law’s impact.

Blout has launched the Sentence Review Project, a new organization designed specifically to “spearhead implementation of the new law.” Blout says the Project will tackle everything from recommending criteria that district attorneys should consider when reviewing past sentences, to supporting prisoners who submit applications for sentence review, to advocating a reduced sentence in individual cases. The initial work will start with the Bay Area prosecutors who endorsed the legislation, with plans to expand around the state. “We will be inviting prosecutors to sit down with us,” Blout said, “and to join us on prison visits, restorative justice circles, and opportunities for DAs to the see the humanity in these men and women.”

Like Wattley, Blout wants this new legislation to expand the conversation around who deserves a chance at redemption. “California has made great strides in reform for nonviolent, nonserious offenders,” she said, “and the goal for this Project is to push that narrative to include redemption and second chances even for people who have committed serious or violent offenses.”

Raj Jayadev of Silicon Valley De-Bug, a hub of community organizing and criminal justice reform, said the new law “can be used as a tool to advance the work of prosecutorial accountability.” Jayadev plans to work directly with prisoners, their families, and their communities to make the case that people warehoused on long sentences deserve a chance at redemption. “These are elected DAs that are accountable to their communities,” he said, and “this project will give a tangible organizing anchor for communities to insist on the freedom of their loved ones.”

To Jayadev, sentence review is a logical extension of prosecutorial discretion. “Prosecutors have all the power to prosecute and punish people. If they have the power to get someone jailed for 50 years, they should have the power to say that doesn’t make sense and we should get this person home.”

How decriminalizing sex work became a campaign issue in 2018

State Senate candidate Julia Salazar explains how sex workers’ rights is a key part of reforming criminal justice in New York.

Julia Salazar speaks to canvassers in August.
Melissa Gira Grant/Anagraph

How decriminalizing sex work became a campaign issue in 2018

State Senate candidate Julia Salazar explains how sex workers’ rights is a key part of reforming criminal justice in New York.

“What is sex work?”

That was the question sex worker rights activists were expecting to hear often as they canvassed Brooklyn voters one drizzly August Sunday. At a gathering of about two dozen canvassers in a Williamsburg park, after the pizza and before knocking on doors, the activists circled under some trees to talk through how to answer that question. It was the first time this group had canvassed voters on sex workers’ rights, to talk with voters about the enforcement of prostitution laws, like anti-loitering policing that targets women of color and raids on massage businesses predominantly staffed by immigrants. It was the first time these activists had a candidate they could canvass on these issues for.

Julia Salazar, who is running for a New York state Senate seat representing north Brooklyn, arrived a few minutes later to send them off. She said sex workers—“my constituents”—are disproportionately criminalized in her district. Bushwick, for example, was among the top five New York City neighborhoods where police made “loitering for prostitution” arrests as of 2015. She referenced the Brooklyn courts, where 94 percent of those facing loitering for prostitution charges were Black. “That should disturb all of us,” she said.

Salazar argued that sex work policing was a central part of a bigger problem with Brooklyn’s approach to criminal justice. “Criminalizing sex work is a form of broken windows policing,” she said. “We shouldn’t tolerate it when it is used against sex workers.” If police gave out tickets for prostitution-related offenses instead of arresting people, she said, “this would actually go a long way in New York state toward decriminalization—toward full decriminalization.”

But how would she turn campaign promises into actual decriminalization? As Salazar explained in an interview with The Appeal, it will require identifying the issues where there’s a clear legislative path. She also plans to use her role and relationship to the movement to do “comprehensive political education” on sex work—like through Sunday’s canvass. Speaking “boldly and unapologetically” about sex workers’ rights helps destigmatize the issue, Salazar told The Appeal. “I think that is the most powerful work, and also it is the only way that ultimately we achieve legislative solutions as well.” Her campaign has provided a platform for sex workers to do some of that educational work, while offering a template for how the decriminalization fight could play out in other cities and states.

Salazar’s candidacy has been billed as part of a wave of young candidates on the left, many who have unseated veteran incumbent Democrats in their primaries. Her campaign has also generated intense scrutiny, with multiple news articles on her personal religious background, her political evolution, and most recently, allegations that in 2010 she stole from Mets player Keith Hernandez’s wife at the time. Police did not move forward with those charges, and Salazar received a settlement in a defamation lawsuit.

In its story on the allegations, the Daily Mail called Salazar a “socialist pin-up”. Salazar told The Appeal, “It’s sexist and repulsive for any reporter to call a woman running for office a ‘pin-up.’ They should also be ashamed for seeking to smear me when they can see that I was clearly viciously targeted by someone—and that I was given a settlement to resolve it.”

Salazar canvassing materials
Melissa Gira Grant

Her support for sex workers’ rights is unusual for a person running for office, though if 2018’s elections are any indication, that is starting to change rapidly. Alexandria Ocasio-Cortez, who defeated longtime incumbent Representative Joseph Crowley of New York in her primary fight and is expected to head to Washington in January, says she opposes SESTA/FOSTA, new federal legislation that has pushed sex workers offline and made sex work more dangerous. When Suraj Patel was running for Congress against New York Representative Carolyn Maloney, a SESTA/FOSTA co-sponsor, he held a town hall meeting on sex work run by sex worker rights activists. Patel, who lost the primary, stopped short of supporting the full decriminalization of sex work. Still, the critical races to watch—when it comes to removing anti-prostitution laws from the books—will be state and local level races like Salazar’s.

Federal legislation like SESTA/FOSTA is harmful, but state and municipal laws against prostitution have threatened sex workers for far longer. These are the laws Salazar focuses on in her platform, and if elected, these are laws she could help change. A bill to repeal New York’s “loitering for prostitution” law has already been introduced. Likewise, lawmakers in Albany could repeal the prostitution exemption in the state’s rape shield law, another Salazar priority; this would bar sex workers’ past charges and convictions from being considered evidence in a rape case. The state could also prohibit allowing the possession of condoms as evidence in prostitution cases through another bill that has already been introduced (though in the past, the NYPD has opposed it). Some of the changes Salazar and sex workers seek, though, don’t require action in Albany. Prosecutors could simply opt not to pursue prostitution-related charges. Police could be instructed to stop making such arrests.

Sex workers have already been pushing these changes in New York, challenging the loitering law and fighting to end condoms-as-evidence, and Salazar is quick to underscore that in taking up these issues, she is following people who have been “fighting for a long time.” The current wave of criminal justice reform around sex work grew from a nationwide movement of sex worker rights activists older than most of the activists on the Salazar canvass. One of those early activists, Margo St. James, emerged as a pro-decriminalization force in the 1970s. After a prostitution arrest, she went to law school and appealed her conviction. St. James later ran for a seat on the San Francisco Board of Supervisors in 1996. The city’s district attorney endorsed her, though she lost.

What differentiates this moment from earlier waves of sex worker rights organizing is that it’s finding support from multiple candidates in simultaneous races before they make it into office. Salazar told The Appeal that she was approached by sex worker rights activists like Lola Balcon, an organizer who helped lead Survivors Against SESTA, and a member of the Democratic Socialists of America (DSA), who Salazar knew from DSA’s Socialist Feminist Working Group. “I would say it didn’t require a lot of consideration,” she said, when it came to backing sex workers’ rights.

Salazar said her policy positions also draw from her four years as a domestic worker, caring for two kids on the Upper West Side and cleaning apartments to supplement that income, and as an activist on a campaign to pass a New York state Domestic Workers Bill of Rights. “Getting involved with the Caring Majority campaign, it became apparent to me that domestic workers really are uniquely mistreated. They are excluded from collective bargaining rights—at least as an industry—are excluded from the conversation most of the time about labor rights and about workers’ rights, and that exclusion is really rooted in both misogyny and a history of slavery,” she told The Appeal. Sex workers, she said, “face similar challenges, of being not, still, conventionally thought of as workers, and having their labor deeply undervalued, and even scorned.” Sex workers, like domestic workers, she said, need to be recognized by and protected under the law.

Eve, an escort and member of the DSA, canvassing for Salazar.
Melissa Gira Grant

Sex workers’ key difference from domestic workers, however, is that so many sex workers are criminalized. Sex workers’ labor rights issues are also criminal justice issues.

Salazar believes that the way forward is to tackle both kinds of issues together, and to do so, that will require getting the labor movement to see that criminal justice reform is “directly related to the mission of the labor movement as a whole and of labor unions.” Organized workers, community leaders, and elected officials, she said, “have a responsibility to demand that our labor movement institutions are focusing more on criminal system justice and reform as a whole and making the connection to workers rights.”

Sex workers are already working on making these connections, including while on the doorsteps of strangers. Eve, an escort and member of the DSA, told The Appeal that she had also knocked on doors for Ocasio-Cortez. If sex workers’ rights are having a coming-out moment in electoral politics, Salazar said that’s due to these workers and their organizing. This moment, she said, “it really is the result of long suffering relentless determination and building this movement. It’s really cool to finally see the fruits of that.”

And New York voters may finally be ready to listen. That Sunday with Salazar’s sex worker rights supporters, Eve bounded up six and seven flights of stairs with ease, in tenement walk-ups and doorman buildings. Her pitch was consistent, running quickly through Salazar’s support for affordable housing, abolishing ICE, and decriminalizing sex work. One voter, in a new building where few answered Eve’s knocks, did have some questions about what it would mean to abolish ICE. Another asked if she was his Uber driver. But none of the voters on the other side of those doors turned Eve away or even questioned her when she said she was a sex worker and that’s why she supported Salazar.

More in Explainers

Louisiana Attorney General May Run For Governor By Fearmongering Over Criminal Justice

Attorney General Jeff Landry has taken a number of extreme positions on policing and sentencing in response to reform.

Attorney General Jeff Landry
Chip Somodevilla/Getty Images

Louisiana Attorney General May Run For Governor By Fearmongering Over Criminal Justice

Attorney General Jeff Landry has taken a number of extreme positions on policing and sentencing in response to reform.

Louisiana Attorney General Jeff Landry said recently that he will most likely run for governor next year, mounting a challenge to Democrat incumbent John Bel Edwards, who has brought sweeping criminal justice reforms to the state and significantly reduced the prison population during his first term as governor.

“There’s no doubt if I run I will beat John Bel Edwards, and you can tell him I said that,” Landry told a reporter last month.

Edwards’s efforts to reform Louisiana’s notorious criminal justice system will most likely be a major flashpoint of the gubernatorial campaign. Though the two were elected to the same executive branch in 2015, Landry—a former sheriff’s deputy and police officer—has fought the governor’s policy agenda constantly, particularly over criminal justice issues.

During his nearly three years in office, Edwards has overhauled the state’s criminal justice system, to the point where Louisiana no longer holds the title of most incarcerated state in the nation. In 2017, he signed the most comprehensive criminal justice reform bill in the state’s history, reducing sentences for nonviolent offenses while encouraging the use of alternatives to prison. As of this year, the state’s prison population has dropped by over 7 percent. The effort has widespread bipartisan support from law enforcement, community organizations, and other advocates.

But Landry has stoked fears that reform is unleashing dangerous criminals on the streets. In a column in The Advocate in March, Landry and Senator John Kennedy called Edwards’s legislation a “disaster.” The two Republicans cited an example of a man convicted of burglary who then robbed several businesses after he was released through the new sentencing laws. He “was able to commit his latest string of crimes because Louisiana Gov. John Bel Edwards’ Louisiana Justice Reinvestment Act freed him early from prison,” they wrote.

The man was, in fact, released just two months earlier than his original sentence called for, according to Ken Pastorick at the Department of Correction. Nevertheless, they wrote, the Louisiana Justice Reinforcement Act “should be called the Louisiana Prisoner Release and Public Safety Be Damned Act.”

Through this lens, Louisiana’s criminal justice reform could face a grim future under a Landry administration. He would most likely strengthen efforts by other Republicans to roll back or repeal the reform.

In an extreme move that breaks with his own party, the attorney general has also recently come out against a November ballot initiative that would require juries in the state to reach unanimous verdicts to convict in felony cases. Louisiana is just one of two states that allow split-jury verdicts thanks to a Reconstruction-era rule explicitly intended to disempower Black jurors. (Oregon, which joined later, is the other state.) The state Republican Party and powerful conservative groups including the Koch brothers’ Americans for Prosperity are all supporting the initiative to make jury verdicts unanimous.

Landry did not respond to a request for comment from The Appeal and declined an interview with local press. But when asked about his position on split juries, his chief deputy said Landry believes “the non-unanimous jury law has a positive effect on the criminal justice system in Louisiana. We believe it makes for quicker and easier administration of the system.”

Governor John Bel Edwards
Joe Raedle/Getty Images

Landry took it upon himself to create a task force of state agents in New Orleans to tackle the rising rate of violent crime without coordinating with city officials. In a little under a year, the task force made at least 16 arrests, mostly for drug offenses, with significant controversy over its legal right to patrol the city. The chief of police told Landry that the attorney general actually has no jurisdiction to make arrests within a municipality, and Mayor Mitch Landrieu claimed that by not coordinating with the city police, Landry was endangering officers. The task force was disbanded roughly 11 months after its creation.

Landry has also been Louisiana’s most vocal critic of sanctuary cities and has targeted New Orleans, despite the mayor’s insistence that the city is fully compliant with federal immigration law.

Jim Craig, director of the New Orleans office of the Roderick & Solange MacArthur Justice Center, said Landry’s convictions about Edwards’s criminal justice reform package and his efforts in New Orleans point toward his end goal of higher office.

“It’s pretty clear that almost all of his criminal justice positions are posturing to secure the Republican nomination for governor next year,” Craig said. “He’s not trying to get votes from people in New Orleans. He’s trying to play off against New Orleans, which is a pretty racially coded message on his part, so that people outside New Orleans in rural Louisiana will see him as standing up against a majority Black and Black-run city.”

Landry and Edwards have also publicly sparred about other criminal justice issues, including the future of capital punishment in Louisiana. Edwards has avoided sharing his personal view on the death penalty, saying his job is to carry out the law. But since he took office, he has put executions on hold, citing the unavailability of lethal injection drugs and laws preventing the state from using other methods of execution. Louisiana has 71 inmates on death row but has not carried out an execution since 2010.

Landry, a capital punishment supporter, has said if that’s the case, the state should change the law. In mid-July, Landry wrote a letter claiming Edwards has not been aggressive enough on enforcing the death penalty. He claimed that because of Edwards’s inaction, “a large and growing number of victims’ families suffer in legal limbo waiting for justice to be carried out.”

The attorney general suggested legislation that would allow the Department of Corrections to choose other methods of capital punishment when drugs are unavailable, including hanging, firing squads, and electrocution. But during the legislative session, Landry didn’t take any action to move forward with those alternatives.

He also threatened that he will stop defending the state in litigation over its lethal injection protocol because he claims Edwards isn’t trying hard enough to acquire the necessary drugs. After a request by state officials working for Edwards, a judge recently extended an order blocking all executions in the state for 12 more months.

Landry has also earned enemies for his position on a state law banning strippers under the age of 21. He has argued that young dancers are prone to “secondary effects” of working at strip clubs, but in a federal lawsuit challenging the law, dancers have claimed that the law is overly vague, broad, and discriminatory. A federal judge sided with the dancers in 2016, but Landry appealed the ruling to the Fifth Circuit.

But Craig insists that Landry’s statements on criminal justice issues are largely aimed at a potential campaign for higher office, as he has done little to follow through with many of his threats and it’s unclear whether he would take action on justice issues if he were elected governor.

“Clearly he wants to distinguish himself from the Republican field,” he said. “As they say some places, he’s all hat and no cattle.”

More in Podcasts