How much time in prison is enough? How long after completing a prison sentence must one be punished?
Some believe that warehousing people in prison is the answer to reducing crime (Steven Miller, the President’s Deputy Chief of Staff for Policy, once again advanced that argument only this past week, calling for “strict, clear, mandatory minimums” for fraudsters, who in his view should face “a very substantial prison sentence.” The rationale he offered was general deterrence, pure and simple: “That change alone would be a watershed for fighting fraud because it would mean that the Department of Justice would be able to, through prosecuting a few hundred or thousand cases in a year, be able to chill the criminal conduct of millions.”
“Law and Order” is a political platform frequently used and too often has led to Draconian sentencing laws. One solution to these harsh sentencing laws is to pass legislation recognizing that lengthy sentences imposed in the past require meaningful review. To this end, twenty-five states, the District of Columbia, and even the federal government have enacted “second look” judicial sentence review policies that allow judges to review sentences after a person has served a lengthy period.
The inclusion of the federal government is misleading, since there is no pending legislation in Congress to address these harsh sentences, prison overpopulation, and an aging prison population. Inmates in the federal system can avail themselves of a provision of law, “Compassionate Release,” and the First Step Act (FSA), which allows certain inmates (68 crimes are ineligible for FSA credits) to earn time reductions by taking courses. This programming does not reduce the inmate’s sentence; it only changes their release date from prison. Despite some modifications to the legal requirements to obtain compassionate release, it is rarely granted.
“Second look” legislation is not a panacea, nor a “get out of jail” card. Instead, it aims to evaluate past mistakes and offer a pathway to a solution. One of the compelling reasons that should be spurring the enactment of “second look” legislation is the impact of “retroactivity.”
When new laws are enacted, or court decisions change the law in ways that, if they had existed at the time of the original sentencing, would have resulted in a lesser sentence, whether those changes apply to those previously sentenced under the former laws is referred to as “retroactivity.” While changes to the law and court decisions would seem to offer a life preserver, in fact, very few changes are retroactive, meaning they are not available to those already sentenced. That circumstance leaves thousands serving longer sentences than they would if their sentences were imposed in 2026. If that seems unfair, it is because it is.
In the last 50 years, there has been a 500% increase in incarcerating people. Nearly 200,000 people are serving life sentences in the United States, meaning roughly one in every six prisoners is a lifer, nearly as many as there were in prison with any sentence in 1970. Over 56,000 individuals are serving life without the possibility of parole (LWOP), and approximately 97,000 are serving life with parole. While a precise, single multi-year census tracking everyone who has served 25+ continuous years is dynamic, it is estimated that over 200,000 people in U.S. prisons (about 1 in 7) are serving life or “virtual life” sentences (not likely to be completed in one’s lifetime) of 50 years or more, with hundreds of thousands more serving fixed long-term sentences exceeding 25 years (over 5,000% growth). Approximately 40% of people serving life sentences are 55 or older, totaling nearly 70,000 people. People of color, particularly Black Americans, are represented at a higher rate among those serving lengthy and extreme sentences than among the total prison population.
Perhaps the public believes that the parole system addresses these issues. It does not. Few know much about “parole,” and what they think they know is from movies, which has created a false narrative. Many states use a parole system that requires an inmate to have completed a designated portion of their sentence before they are eligible for parole. Once an inmate becomes eligible, a parole board determines whether the inmate is ready for reentry into society, but those parole systems (in the federal system, parole was eliminated in 1987) do not have the power to reduce existing sentences.
The incentive for the second-look movement began with state efforts to ensure compliance with two U.S. Supreme Court decisions, Graham v. Florida (2010) and Miller v. Alabama (2012), regarding the constitutionality of juvenile life-without-parole (“JLWOP”) sentences. The Supreme Court struck down life sentences for those who were juveniles at the time of their sentencing, thus making them eligible for release at some point in time.
Those Supreme Court decisions led California, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Maryland, Minnesota, New York, North Dakota, Oklahoma, Oregon, Utah, and Washington – as well as the District of Columbia -to implement changes to address potential resentencing.
Connecticut, Delaware, Maryland, Oregon, Florida, and North Dakota – and the District of Columbia permit a court to reconsider a sentence, usually under certain conditions such as age at the time of the offense and amount of time served.
California, Colorado, Georgia, Oklahoma, and New York – provide judicial reviews focused on specific populations such as military veterans, those sentenced under habitual offender laws, and domestic violence survivors, respectively.
Those serving sentences imposed in the District of Columbia may seek compassionate release based solely on one’s age.
California has taken an additional step: a resentencing statute permitting the Department of Corrections or the county district attorney to recommend that a person be resentenced for any reason, and, as of 2024, a judge may initiate resentencing proceedings if there has been a change in sentencing law since the original sentencing.
Illinois, Minnesota, Oregon, Washington, and Utah have enacted prosecutor-initiated resentencing laws that allow prosecutors to request the court to reconsider a sentence.
The courts in California, Connecticut, Florida, Illinois, Iowa, Louisiana, Ohio, Maryland, Michigan, Missouri, New Jersey, North Carolina, Tennessee, Washington, and Wyoming have found that sentences ranging from 40 to 112 years are unconstitutional under the U.S. Constitution and/or their respective state constitutions.
The Supreme Court of New Jersey has created a sentence review mechanism for youth after they have served 20 years.
Massachusetts, Michigan, and Washington have granted their courts authority under their state constitutions to extend the Miller holding to emerging adults. The Supreme Court of Massachusetts held that LWOP (both discretionary and mandatory) is unconstitutional when imposed upon those under 21.]
These changes are insufficient and only address a limited group of people. There are a plethora of reasons to increase the opportunity for incarcerated individuals, including:
Increasing those eligible for sentence review;
Permitting changes to the law to be retroactively applied; and
Granting additional judicial discretion and authority to reduce mandatory and plea-bargained sentences.
New York has some of the most rigid sentencing laws in the country, primarily from the “tough-on-crime” laws passed in the 1970s and 1990s, which disproportionately targeted Black and brown communities. Yet, surprisingly, New York has no law providing a “second look.” Once a judge imposes a sentence, the options for reducing it are limited. Those serving lengthy sentences have no opportunity to demonstrate to a judge that they have changed after years or decades in prison or that, given changed laws and norms, continued incarceration serves no legitimate purpose for public safety or justice.
Currently, the options for addressing a long sentence in New York include:
Direct appeal.
Executive clemency: The Governor of New York has the power to grant clemency, including commutation of sentence, pardon, and reprieve. Clemency is rarely granted, and the process is demanding.
CPL 440 motions: A motion under New York Criminal Procedure Law Section 440 allows defendants to challenge a conviction or sentence based on newly discovered evidence, constitutional violations, or other legal errors not raised on direct appeal.
Parole advocacy: While parole in New York is deeply flawed, preparing the strongest possible parole application with qualified legal assistance can make a difference, particularly in cases where a person has a strong record of rehabilitation and a compelling reentry plan. Parole in New York is an administrative process overseen by the Board of Parole, not a court. The Parole Board has broad discretion to deny release even to people who have served their minimum term, demonstrated extensive rehabilitation, and pose no credible public safety risk. Parenthetically, New York’s parole system has been widely criticized for its inconsistency, high denial rates, and a tendency to focus on the nature of the original crime rather than who the person is today.
Fortunately, there is legislation pending in the New York State legislature, the Second Look Act, that could change the playing field for many. Enacting that legislation seems like a “no-brainer,” but politicians are afraid of making changes for fear of losing an election. Some are willing to advocate for reform, but when bumps in the road arise in the execution of new legislation, those same politicians are prone to reverse those changes. A good example was the effort to change the Bail laws in New York in 2019. That legislation was intended to reduce the number of people who could not afford bail and would otherwise be incarcerated at Rikers Island Correctional Facility pre-trial. When negative publicity occurred after the law’s enactment -when some people committed crimes while out on bail- Governor Hochul, among others, applied the brakes and revised the bail legislation to avoid future political consequences. The will to pursue justice should prevail over politicians’ fear of losing their elected posts.
The Second Look Act seeks to implement changes. It will focus on people serving long sentences, particularly those who have already served a significant portion of their sentences and can demonstrate they no longer pose a threat to public safety. It would enable a court to consider factors including the person’s conduct and rehabilitation while incarcerated, their participation in educational, vocational, or treatment programs, their support network upon release, and the nature and circumstances of the original offense.
Why is the legislation so important? New York State has the third-largest population of people serving terms of life imprisonment in the country. Nearly 9,000 New Yorkers are currently serving life sentences. There are over 8,000 people today over the age of 50 in New York prisons, and 44% of New Yorkers in state prison struggle with a chronic health condition. Every year, nearly 1,000 people are sentenced to 10 or more years in prison, and over 5,000 people—more than 10% of people in prison—have been incarcerated for 15 years or longer. The lack of eligible relief has resulted in New York State correctional facilities largely becoming inadequate hospitals and long-term care facilities for thousands of sick and aging people.
The Second Look Act is particularly significant for those serving life sentences or what advocates call virtual life sentences, meaning maximum terms of 50 years or more. Nearly one in five incarcerated people under the Department of Corrections is serving a life or virtual life sentence, totaling over 9,000 people, and over 1,200 are serving a sentence of life without parole or a virtual life without parole sentence, effectively sentenced to die in prison without any individualized review or public safety assessment. These are the people the Second Look Act is most directly designed to reach.
The bill would also have significant implications for people who were juveniles at the time of their offense and received lengthy sentences that did not fully account for their age and capacity for change. Courts and legislatures across the country have increasingly recognized that youth is a mitigating factor in sentencing, and the Second Look Act would give New York judges a mechanism to apply that recognition retroactively to people who were sentenced before those principles were fully developed in the law.
The law would allow incarcerated people to apply for a resentencing hearing after they have served 10 years or half of their sentence (if the sentence is over a decade). If a person is otherwise ineligible, the prosecutor can consent to their resentencing application. It would also create a presumption that resentencing will be granted if the person is over 55 years old at the time of the resentencing hearing, or was under 25 years old at the time the crime occurred.
One of the most significant provisions would guarantee the right to counsel at every stage of second-look proceedings.
A judge reviewing a “Second Look” petition retains full discretion to deny it. The bill creates an opportunity to be heard, not a guarantee of any particular outcome. Victims and survivors would have the right to participate in the process and to make their voices heard before any decision is made. The judicial standard would require the court to consider public safety, the nature of the offense, and the impact on victims in its analysis.
As presently drafted, the law requires that the petition be filed with the judge who originally imposed the sentence, or with another judge if that judge is unavailable, and the court would have discretion to reduce, modify, or leave the sentence unchanged after considering the petition. This should be amended to allow applicants to have their applications heard by a judge other than the initial sentencing judge. This is important because the judges who imposed the original sentences rarely acknowledge that their sentences were too harsh.
There is a compelling need for the Legislature to pass this bill to address the overpopulation of prisons, the aging population and the costs of that aging population, and to engage in a meaningful review of the sentences imposed in years gone by.
Robert Simels hosts the podcast, “Injustice for All,” and serves as a consultant on criminal justice issues.