Survey: A Majority Of Voters Support Review Of Extreme Sentences

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 month, the Mississippi Supreme Court upheld a 12-year prison sentence for Willie Nash, a man convicted of having a cell phone with him in a local jail. Nash’s sentence, even in a country and state seemingly inured to harsh sentencing, drew national attention. In a guest post at the blog Sentencing Law and Policy in which he discussed a motion for rehearing in the case, one of Nash’s attorneys wrote that, “It is no exaggeration to say that the Mississippi Supreme Court’s affirmance of that sentence shocked the world: the decision made headlines as far as way [sic] as New Zealand.”

The gulf between the United States’s use of incarceration and that of the rest of the world has been increasingly well-documented. Information about other countries’ far less punitive and far more rehabilitative approaches to criminal justice has been used to mobilize support for a different approach to crime and punishment as well as to safety and well-being, more broadly understood.

A new report and survey, published today, looks at popular support for two specific policies that would reduce the number of people in U.S. prisons. The policies—second-look legislation expanding release eligibility and sentencing review units in prosecutors’ offices—give prosecutors and judges the ability to revisit sentences handed down years, even decades, earlier. This is an option that many judges and at least some prosecutors have wanted. The survey was conducted by Data for Progress, and the report was the work of Data for Progress, the Justice Collaborative, and Fair and Just Prosecution. (The Justice Collaborative and The Appeal are projects of Tides Advocacy.)

In July, Senator Cory Booker of New Jersey and Representative Karen Bass of California, both Democrats, introduced the Second Look Act. The bill was considered groundbreaking because it expanded the opportunity to be considered for resentencing available to anyone in federal prison who has served at least 10 years. It also created a presumption in favor of release for anyone 50 years or older. Significantly, it did not exclude people who had been originally sentenced for violent crimes. One advocate, Kara Gotsch of the Sentencing Project, told the Daily Appeal shortly after the Second Look Act’s introduction in Congress that she hoped it would offer a model for states to emulate.

Of the voters surveyed this month, 69 percent support “states adopting laws that allow for the re-examination of old sentences to provide a second chance for people who have been in prison for more than 10 years and who can be safely returned to the community.” Support even among “very conservative” voters was above 60 percent, while support among “very liberal” voters was above 80 percent. Nearly two-thirds of Republican voters expressed support.

There were similar levels of support for the second policy on which voters were surveyed—sentence review by prosecutors. In jurisdictions including Brooklyn, Philadelphia, and Seattle, prosecutors have sought to remedy past injustices in the form of excessive sentences. In 2018, California passed a law giving prosecutors the power to recommend that judges reduce sentences “in the interest of justice.” Last year in New York, state Senator Zellnor Myrie introduced a bill to give similar power to prosecutors.

Despite a national movement to end mass incarceration, the pace of decarceration has been slow. In 2018, the Sentencing Project pointed out that, at the current rate, it would take 75 years just to cut the number of people in prison in the U.S. in half. And that would still leave more than a million people in prisons and jails.

The report’s authors describe the scale of the problem. Some of the most vivid illustrations of the United States’s outlier status are included: More people are sentenced to life in prison without the possibility of parole in Philadelphia than in every other country in the world. There are more people today condemned to die in prison than the entire prison population five decades ago. And nearly half of them are Black, a large overrepresentation not just relative to the general population but also to the population of people who are incarcerated. Nor do these millions of prison years mean greater public safety. A 2016 report from the Brennan Center for Justice posited that of the nearly 1.5 million people in state and federal prison, well over half a million of them could be immediately released or placed in programs instead.

The authors also review how we got here. In terms of policies, they write that, while the causes are manifold, “one key driver has been the use of excessive sentences and the failure to do anything about them.” A web of “mandatory minimums, ‘habitual offender’ and ‘three strikes’ sentence enhancements, and truth-in-sentencing laws” made sentences of extraordinary harshness possible for a wide array of crimes. The enormous discretion handed to prosecutors, and their willingness to use it in favor of incarceration, are other culprits.

Even amid a historical decline in crime, fearmongering around criminal justice reforms is the norm, as ongoing efforts to reverse recent reforms in New York demonstrate. Yet, the survey published today shows that for a majority of voters, of all ideological stripes, policies that allow prosecutors and judges to reassess a person’s sentence, in light of subsequent reforms and who that person is today, are common sense, not controversial.