Potential Second Chances For Prisoners In D.C.

Spotlights like this one provide original commentary and analysis on pressing criminal justice issues of the day. You can read them each day in our newsletter, The Daily Appeal.

Last week, Washington D.C.’s Advisory Neighborhood Commission 4B voted unanimously to pass a resolution in favor of the city’s proposed second-look bill, which would let incarcerated people who committed crimes when they were young petition for a reduced sentence. This may sound like a small decision made by unpaid local representatives—and it was—but it’s part of a much larger debate that has seen science and compassion pitted against fearmongering and retribution.

The D.C. Council is considering legislation that would strengthen a 2016 law (the Incarceration Reduction Amendment Act or IRAA). The IRAA was passed in response to advancements in childhood development science showing that planning, working memory, and impulse control are among “the last areas of the brain to develop and may not be fully developed until the mid-twenties,” according to a D.C. Council committee report. The law also responded to a series of Supreme Court cases which, referring to the same scientific conclusions, held that children are less culpable than adults and should be spared our most severe punishments. The justices also held that people serving harsh sentences for acts committed as children should be given “a meaningful opportunity for release” if they have demonstrated maturity and rehabilitation since being incarcerated, explains James Zeigler in an opinion article. Zeigler represents people who were given extreme sentences as young people and are seeking relief under the IRAA.

The IRAA provides a chance at release for people who had been given extreme sentences in D.C. Superior Court for crimes committed before they were 18. The new bill, the Second Look Amendment Act, would expand eligibility to encompass those who were under 25 at the time of their offense. Zeigler notes that this range “is more consistent with the present science on when young people reach developmental maturity.”

Prosecutors have taken a different stance. The proposed bill, federal prosecutors warned in a statement, “now eliminates the nature of offense from the judge’s consideration, strips victims of their sense of finality, and upends decades of local and national efforts to ensure truth in sentencing. The proposed legislation ignores how painful this process is for victims and will drastically increase the number of victims who must be re-traumatized by expanding the age of eligible defendants.”

“Our communities are safer when we do a better job of rehabilitating offenders in our custody,” U.S. Attorney Jessie K. Liu said in the statement. “The victims of these crimes and the community at large should not be jeopardized by the Council’s rush to expand the IRAA.”

And in an editorial that read as if it were written by D.C.’s U.S. attorney’s office, the Washington Post’s editorial board wrote about the pending legislation that “common sense may be losing out to enthusiasm for reform.” The board, like the prosecutors, unabashedly spreads fear, describing some crimes committed by young people in sensationalist detail. Neither the Post nor the prosecutors mention that the bill would not guarantee anyone release, and would not stop judges from considering the circumstances of the original crime. “By stripping the law of the requirement that judges consider the original crime when weighing sentence reductions—and suggesting long sentences are rarely justified for youthful criminals ‘despite the brutality or coldblooded nature’ of their offense—the council assured that proceedings will tilt in favor of convicts,” the editorial board wrote, without any evidence. “Out the window would go transparency and truth in sentencing,” warned the Post. “By discouraging judges from considering the original crime when they weigh reducing sentences, the council is putting the public at increased risk, unnecessarily.” The Post provides no basis for this claim.

As law professor James Forman Jr. wrote in an opinion piece in the same newspaper, these worries are misplaced, and based on misleading arguments. “I am disappointed by the [U.S. attorney’s] office’s willingness to mislead the public in making its case,” he wrote. “Nothing in the law prevents judges from [considering the original crime’s circumstances], and several provisions still in force effectively require them to do just that. It appears that the U.S. attorney’s office wants to have it both ways. In court, prosecutors tell judges they are logically bound to consider the crime, while in the press and community meetings, they frighten voters by telling them that the law doesn’t allow that.”

Even though the law has the support of D.C.’s elected officials, the unelected U.S. attorney opposes it, he notes. He is, however, “not surprised by this opposition. Beginning with the Reagan administration, the U.S. attorney’s office has reliably supported laws that would send more D.C. residents to prison,” he wrote. “Most notoriously, when the D.C. Council considered eliminating racially discriminatory mandatory minimums for drug offenses, the U.S. attorney fought to keep those laws.”

And the need for the new bill is urgent. As D.C. Councilmember Charles Allen and D.C. Attorney General Karl Racine point out in a separate opinion piece, “The District’s incarceration rate is higher than any state in the nation—and any country. In large part, that’s owed to a period of excessive mandatory-minimum-sentencing guidelines, which disproportionately targeted people of color. In recent years, D.C. residents, speaking through their elected officials, have made it clear they want to address this problem. That’s why the D.C. Council enacted resentencing legislation for rehabilitated people who committed a serious crime.”

“The opposition to the bill is fairly limited,” Zeigler told the Daily Appeal, “consisting primarily of the Trump-appointed USAO [U.S. attorney’s office] and a couple of very vocal neighborhood commissioners, as well as right-wing organizations like the Heritage Foundation.” Zeigler wrote in the DC Line: “The opposition of the U.S. attorney’s office should be seen for what it is: an attempt to undermine the will and ability of D.C. residents to determine the District’s future, and an effort to reinforce mass incarceration. And those who oppose these reforms need to be honest about what they’re truly proposing: that we continue to keep people incarcerated for decades after they have rehabilitated themselves and no longer pose a threat to society.”

The popularity of the bill, however, is itself remarkable given how forward-thinking it is. Letting people out of prison has proven far less feasible politically than shortening sentences going forward.

But the threats are indeed overblown, something that jurisdictions around the country are discovering as they slowly embark on their own second-chance projects. In 2012, a Maryland court ordered the release of nearly 200 prisoners who had served sentences of more than 30 years, mostly for homicide and rape. Fewer than 1 percent have committed a crime in the years since release.

California is the only state in the country with a law that explicitly gives prosecutors the power to review old cases and recommend less time if they believe the original sentence was unduly harsh. Its law is not limited to the cases of young people. (Other states and localities are considering such measures as well.) In California, a judge must ultimately approve the revised sentence before a person can be freed. Last summer, the first man was freed pursuant to that law. Kent Joy Williams, 57, was sentenced to die in prison in 2003 after breaking into two houses and stealing a car. He had prior convictions, and under California’s now-revised “three strikes” law, Williams was sentenced to 50 years to life. “The Lord heard my cry,” Williams said when he walked free. “You’re talking to a grateful man today. I’m just so grateful for another chance.”