In September, California became the first state in the nation to pass a law giving prosecutors the power to seek “resentencing” of people already serving time.Kyle C. Barry, “A New Power for Prosecutors is on the Horizon—Reducing Harsh Sentences,” The Appeal, September 7, 2018. The law, which was spearheaded by former prosecutor Hillary Blout, outlines procedures for prosecutors to recommend reduced sentences to judges “in the interest of justice.”California AB 2942 (2018). Proponents see it as a means to release people who have shown rehabilitation—and to transform excessively long sentences from the tough-on-crime era into fairer and proportionate ones that better reflect today’s practices.Barry, “A New Power for Prosecutors,” 2018. Before the law, resentencing was only possible in narrow instances, such as when a prosecutor could demonstrate to the court that errors were made or if a person was subsequently found innocent.Barry, “A New Power for Prosecutors,” 2018.
Santa Clara District Attorney Jeff Rosen sees such sentence review as an expansion of the traditional role of the prosecutor. “People think we use discretion to pile onto people,” Rosen said. “But we can also use discretion to mitigate, and to show leniency and mercy in appropriate situations.”Barry, “A New Power for Prosecutors,” 2018. The law could be used, for example, to remove a “strike” for someone sentenced under the state’s three strikes law or to eliminate sentence enhancements related to drugs, firearms, or gang affiliations.Barry, “A New Power for Prosecutors,” 2018.
Lead prosecutors outside of California are also exploring sentencing review programs. While a number of offices have conviction integrity review processes—seeking out errors of justice to release innocent people—these new programs look at the length of sentences, not guilt or innocence. Ordinarily, sentence review is only done when new sentencing laws are retroactively applied. But in Philadelphia, District Attorney Larry Krasner is planning a more comprehensive sentence review program, and nearly two dozen other prosecutors are working to create similar procedures to seek resentencing in appropriate cases.Eli Hager, “The DAs Who Want to Set the Guilty Free,” The Marshall Project, March 20, 2018.