The annual State of the Judiciary address given yesterday by the chief judge of New York’s highest court, Rowan Wilson, is usually a mundane event, watched by few and noted by even fewer. Typically, the focus is on court operations and budget — the number of cases handled, number of cases resolved, and so on — with occasional platitudes about access to justice.
But Wilson’s address was a profound, unprecedented, and welcome departure from the typical, staid, recitation of facts and figures. Instead, the chief judge used the opportunity to issue a clarion call for judicial review of the massive sentences that have fueled the crisis of mass incarceration, exemplified by the almost 7,500 people serving life or long-term sentences in New York prisons. Across the nation, one in seven people in prison is serving a life sentence — either life without parole, life with the possibility of parole, or virtual life (50 years or more).
Court records are replete with judges sentencing people convicted of unquestionably violent crimes to decades in prison while proclaiming that the person before them is heartless, irredeemable, and will forever be a threat to society. And yet, judges are no better than anyone else at predicting the future. There are countless examples of people in prison transforming in stark contrast to these judicial prognostications.
Wilson shared the podium with people currently serving long prison terms, and they provided powerful evidence that a sentence once imposed does not remain just, necessary, and appropriate in perpetuity.
Wilson highlighted the comprehensive report of the task force he put together of judges, prosecutors, and defense attorneys to examine the need for judicial review, or what has come to be referred to as “second looks,” of long sentences. The report, calling for review of a sentence after a person has served five years regardless of the original sentence or crime of conviction, is a blueprint for addressing the hyper-punitive sentencing of the past several decades.
The legislation envisioned by the chief judge’s task force, like the Second Look Act in New York, is urged by no less a body than the American Bar Association, which passed a resolution urging all states and the federal government to provide a means for judicial review of all sentences after a person has served 10 years in prison.
Notably, the ABA’s Criminal Justice Section Council, the body responsible for the resolution, is comprised of prosecutors and judges, as well as defense attorneys. All agreed that the mere possibility of a “second look” would provide powerful incentive and motivation for people in prison to change their thinking and behavior, and in the process make prisons safer for everyone inside.
There is a familiar litany of generally accepted justifications for punishment — retribution, deterrence, incapacitation, and rehabilitation. What is missing is any mention of reconsideration of punishment after it is handed down. People change, victims and their families’ attitudes change, public attitudes change, and yet sentences remain static, set in stone. There are also numerous examples of people who have been behind bars for so long that their seemingly endless sentence in and of itself begs the question of when is enough punishment enough?
The rationale for some kind of second look, or reconsideration of decades of draconian sentencing, is also compelled by the stark racial disparities that are manifest in life and long-term sentences, disparities that increase with longer sentences. In New York, according to the 2020 census, 12% of the population is identified as Black and yet 49% of the people in New York State prisons are Black.
The disparity is even greater with respect to people serving the longest sentences. And there are 841 people in state prison serving indefinite life sentences for crimes committed when they were teenagers. Of those 841, 63% are Black. In contrast, while whites make up 62% of the state population, they are just 10% of that cohort of teenagers sentenced to life.
To be clear, a second look does not automatically mean a reduced sentence. All it provides is a chance, an opportunity, for a person to make their case for why they have earned a reduced sentence. What it does signal, however, is a willingness to recognize, value, and encourage transformation and redemption.
Zeidman is a professor at CUNY Law School and founder and co-director of the Second Look Project NY (secondlookprojectny.org).