• Nick Cheolas

A Look at the Second Look Act

Note: While I am an attorney, this is not legal advice. Rather, this is my attempt to provide an overview of (and a few of my thoughts on) the Second Look Act, in my role as Advisory Neighborhood Commissioner. End quasi-disclaimer.

If you're a DC resident, you might have heard of the "Second Look Amendment Act of 2019" (the "Second Look Act"). The DC Council is currently considering this bill - introduced by Ward 6 Councilmember Charles Allen - which is why there's a lot of information floating around out there. Some of that information is good. Some of that information is bad. This is my attempt to cut through all of that - take it for what it's worth.

What does the Second Look Act do?

In short: It amends the "Incarceration Reduction Amendment Act of 2016” (the “IRAA”). So to understand what the Second Look Act does, we first need to understand the IRAA.

So what does the IRAA do?

The IRAA created a procedure by which offenders who committed crimes before the age of 18, and had served at least 20 years in prison, could petition (fancy word for "ask") the DC Superior Court to have their sentences reviewed, and possibly reduced. The act also laid out a number of factors each offender must demonstrate before a court could reduce a sentence (more on that in a moment).

In early 2019, the Council amended the bill to allow offenders who had served 15 years (instead of 20) to petition the court for a sentence review.

So under current law: an individual who committed a crime before the age of 18, and has served at least 15 years in prison, can ask the DC Superior Court to review his or her sentence.

What does an offender have to do to get a sentence reduction?

Basically, offenders have to show that (1) they are not a danger to the community, and (2) that the "interests of justice" warrant a sentence modification.

The law also lists 11 factors that a judge must consider in reviewing a petition. These include:

  • (1) the offender's age at the time of the offense;

  • (2) "history and characteristics" of the offender;

  • (3) whether the offender has stayed out of trouble and has competed any educational/vocational training while in prison;

  • (4) the US Attorney's report and opinion;

  • (5) "whether the defendant has demonstrated maturity, rehabilitation, and a fitness to reenter society";

  • (6) the opinion of the victim, or a victim's family;

  • (7) physical or mental examinations of the offender;

  • (8) the offenders "family and community circumstances" at the time of the offense, including any abuse or trauma;

  • (9) the extent of the offender's role in the offense;

  • (10) "the diminished culpability of juveniles as compared to that of adults, and the hallmark features of youth, including immaturity, impetuosity, and failure to appreciate risks and consequences, which counsel against sentencing them to lengthy terms in prison, despite the brutality or cold-blooded nature of any particular crime"; and

  • (11) any other information the court deems relevant.

Under current law, if, after consideration of all of the above factors, a court determines that an offender is not a danger to the community and that the "interests of justice" warrant a sentence reduction, then the court "shall" reduce the offender's sentence.

Again: what does the Second Look Act do?

Basically one thing: instead of only allowing offenders who committed a crime before the age of 18 to petition the court for a sentence review, the Second Look Act would allow offenders who committed a crime before the age of 25 to petition the court for a review (after serving at least 15 years).

That's about it. You can read the (two page) bill here.

What are some of the arguments in favor of the IRAA and Second Look Act?

I'm simplifying here, so bear with me:

  • DC's incarceration rate is among the highest in the country (and the US incarceration rate is among the highest in the world).

  • Research suggests that people tend to age out of criminal behavior as they get older.

  • Neurological research suggests that the brain - and in particular, areas of the brain responsible for impulse control, risk assessment, etc. - do not fully develop until the mid 20s.

In other words, the argument is that we currently imprison many offenders (yes, even violent offenders) who are no longer a danger to society. The IRAA and the Second Look Act attempt to identify offenders who fall into this category and, in appropriate circumstances, allow courts to modify and reduce their sentences.

Over the past decade and a half, a series a Supreme Court decisions and state law amendments have recognized the above principles. Supporters of the Second Look Act argue that this is simply an extension of these principles. For more information, click here.

To read arguments for the Second Look Act by CM Allen and AG Karl Racine, click here. The Act is cosponsored by Councilmembers Kenyan McDuffie, Jack Evans, Robert White, Anita Bonds, David Grosso, and Brianne Nadeau, and also supported by the Mayor.

What are the arguments against the IRAA and Second Look Act?

Simplifying again, but my take:

  • (1) the DC Council has amended the law to make it too "favorable" to offenders.

  • (2) reducing an offender's sentence could re-traumatize victims.

  • (3) offenders should serve their "full" sentence.

  • (4) public safety would be at risk.

  • (5) some people committed really bad crimes and shouldn't have their sentences reduced.

  • (6) the DC Council is moving too fast.

More on these below.

Isn't the Second Look Act "soft on crime"? Doesn't it "help murderers and rapists"? With DC's homicide rate increasing, don't we need to be "tough on crime"?

I don't use those phrases, so I don't really know. Criminal justice reform is a really complex issue and deserves serious thought and consideration. These are sort of chintzy slogans. Let's try to debate the actual issue instead of hurling cheap catchphrases at each other.

So what's your take on the law?

I generally support the IRAA and Second Look Act. In short, the US - and DC in particular - locks up a tremendous number of people, many for really, really long periods of time. In some circumstances, that may be justified. In others, less so. The IRAA and Second Look Act attempt to identify circumstances in which continuing incarceration may not be justified, or a benefit to the public, and allows judges to reduce those sentences.

To expand on some of the arguments outlined above though, some thoughts:

  • If you believe that offenders should serve their "full" sentence, that's reasonable enough. But it's important to note that a "full" sentence varies widely. For example, say four individuals convicted of Second Degree Murder receive sentences of 10, 20, 30, and 40 years respectively. Are those sentences all "just"? Some of them? None of them?

  • Likewise, if you believe some offenders simply shouldn't be released, the law explicitly allows judges to consider any information they deem relevant, and the opinions of prosecutors and victims.

  • The law requires an offender to establish that he is not a danger to society, and lists nearly a dozen factors for a court to consider in making that determination. There is always a risk that a released offender will re-offend, but the law explicitly addresses and tries to minimize that risk.

  • In early 2019, the Council did amend the law in two meaningful ways: First, the Council removed a requirement that judges consider the "nature" of an offender's original offense, and changed the law to say that a court "shall" reduce a sentence if all of the factors are satisfied (instead of "may"). My view is that these changes made it slightly easier for offenders to get a sentence reduction, and that the bar to get a reduction remains high.

  • Crime victims (and families) absolutely deserve to be heard and considered. Current law *requires* that a court consider the opinion and voice of a crime victim, or the victim's family. That this may reactivate trauma for some victims and families is something supporters of these bills should grapple with. At the same time, it's important to note that victims and families do not have one way of thinking about crime and sentencing, and do not always agree on that point. I found this quote, from Bridgette Stumpf, executive director of the Network for Victim Recovery of D.C. (which works with victims and survivors of crime) persuasive:

“I’ve worked with clients who personally did not agree with harsh sentencing approaches. I’ve also worked with clients who really strongly believed in the person who harmed them not being released or being given leniency in sentencing. So what’s important for us is to make sure that the process of how IRAA rolls out creates a mechanism to hear from the individual who was harmed in a meaningful way,” [Stumpf] says.
“Victims don’t have just one way of thinking about crime,” he says. “What is important is they have to be listened to. Their input, their feedback has to be incorporated into a judge’s decision, and we legally require that it has to be. That’s what’s most important.”

In other words, there are certainly good faith arguments to be made against the IRAA and the Second Look Act. But the bills draw on recent scientific and legal developments, and create a reasonable framework and process that gives judges wide discretion to consider claims, and gives victims (and prosecutors) a legally-protected voice in the process.

Agree? Disagree? Questions? Comments?

Email me!

Some notes on the U.S. Attorney's Office for DC and the Second Look Act

The US Attorney's Office for the District of Columbia ("USAO") prosecutes most violent crime in DC, and has waged an unusual and pretty aggressive campaign against the Second Look Act and parts of the IRAA. In my view, it is reasonable for the USAO to weigh in on these bills under the circumstances - they would play a major and unique role in the process. But the manner in which they have done so has been (to be charitable) below the standards one would expect from that office. It has been disappointing.

On September 5th, the USAO hosted a meeting for "Community Leaders," including ANCs, ostensibly to "discuss" the Second Look Act. In the weeks before the meeting, ANC Commissioners received several emails, phone calls, and letters from the USAO about the Act and the September 5th meeting, and we were asked to share the information and invitation with others.

The night before the meeting, many Commissioners received notice that "due to an unanticipated overwhelming response" you "will also need to be on the RSVP list to gain entry to the meeting." Many ANCs arrived at the USAO's office on September 5th to find that they weren't on "the list," though the USAO community outreach team did their best to get Commissioners in the door.

We entered a room with seating for about 80; seated were about 50 ANCs, community leaders, and advocates, along with 20-30 crime victims and their families, surrounded by a standing ring of police and USAO officials lining the walls.

What followed was not a "discussion" or "informational meeting" in any sense of those words, but rather a coordinated lobbying performance against the Second Look Act. One of the opening lines from a USAO official - "I am sick of seeing children on an autopsy table instead of on the playground!" - set the tone for the evening.

All of which is fine enough, as it seem reasonable for the USAO to weigh in on this legislation, and they are entitled to their opinions.

But as the saying goes, they are not entitled to their own facts. And as the evening went on, the inaccuracies, misleading claims, and outright falsehoods began to pile up. A sampling below:

1) The USAO falsely claimed that the Second Look Act "precludes" and "prohibits" judges from considering an offender's original offense, or the nature of that offense. This is false, and was confirmed as false by the USAO's Special Counsel for Legislative Affairs. The Second Look Act does not preclude or prohibit judges from considering anything about the original offense, and current law in fact specifically allows judges to consider "any information" it deems relevant.

It is true that an earlier amendment (not the Second Look Act) removed a requirement that judges consider the "nature" of the original offense. But this is not the same as precluding judges from considering the nature of the original offense.

This false claim was included in messages to ANCs and other community leaders on 8/5 and 8/21. I asked the USAO for clarification on these claims by email on 8/21, 8/27, and 9/4. I was told I could ask for clarification at the 9/5 meeting, but did not get a chance to ask that question, since the USAO only took two questions from the community at the end of the event. I was able to confirm this information after the event.

This inaccurate claim seems particularly egregious because the IRAA and Second Look Act give judges wide discretion to consider the nuances of each claim, and *prohibiting* judges from considering certain facts would not, in my view, be right. These claims were also included in widely-distributed emails that the USAO asked us to share with our constituents. Finally, for what it's worth, in a letter sent to community leaders on August 21, 2019, the USAO stated that "the DC Council has already enacted legislation that removes consideration of the 'nature of the offense from the list of factors that a court must consider. This statement *is* accurate, but contradicts what the USAO repeatedly circulated to ANCs.

2) The USAO falsely told attendees that DC had one of the *lowest* incarceration rate in the country, then admitted that its data were wrong, then tweeted that the data were "under review," then deleted that tweet, then tweeted the same thing again, then finally admitted they were wrong again in a statement released at 11:52pm on Saturday night.

The claim that DC has one of the lowest incarceration rates in the country is, frankly, a bonkers claim that drew audible expressions of shock when it was made at the 9/5 meeting. DC has, in fact, one of (if not the) highest incarceration rates in the country.

3) A flyer provided by the USAO, for distribution to the community, contains misleading claims about eligibility for early release.

The USAO provided, and asked ANCs to circulate, the below flyer announcing the 9/5 meeting. This flyer is critically misleading. It states that the Second Look Act would "make over 500 murdered and rapists immediately eligible for early release."

This statement is, at best, misleading: the bill would make offenders who committed crimes between the ages of 18 and 24 eligible to apply to the court for early release. And, if those offenders demonstrated that they were no longer a danger to society, a judge could reduce their sentence. It *would not* make offenders "immediately eligible for early release."

In other letters and emails to ANCs, the USAO got it right. For example, in the 8/21 letter sent to Commissioners, the USAO wrote "this legislation...will give violent criminals (including individuals convicted of first-degree murder and first degree sexual assault) who were under the age of 25 at the time of their offenses an opportunity to move to reduce their sentences after serving 15 years in prison, regardless of their original sentences, if the court determines that they are not a danger to the safety of the community or to any person, and that the interests of justice warrant a sentence modification." That is fair, and accurate.

While we're on the topic of the flyer, is this how anybody thinks of DC?

DC and its seven(??) Wards in all their glory?

This is a map of DC's...police districts. This is the map of DC found on the USAO's meeting flyer and the cover of the program. Maybe I'm nitpicking. I don't know. I found it weird.

4) The USAO made false claims about its support for the release of DC drug kingpin, Rayful Edmond. At the conclusion of the meeting, my ANC 5E colleague, Commissioner Robert Brannum, asked the USAO to square its opposition to the Second Look Act with its support for reducing the sentence of Rayful Edmond. A USAO official responded that the petition for early release was being pursued by DC Attorney General Karl Racine.

That is not true. The USAO filed a motion to reduce Mr. Edmond's sentence in February 2019. They filed a subsequent, more specific request to do the same the day after the 9/5 meeting. DC AG Karl Racine was asked by a federal judge to gather input from DC residents. AG Racine did so in August, and explicitly did not take a position on whether a sentence reduction was warranted.

In short, the USAO's intense lobbying campaign against the Second Look Act has seemed sloppy, misleading, and riddled with incorrect claims. It's not that there aren't reasonable arguments against the Act - there certainly are. But too often, the reasonable arguments have been drowned out or overshadowed by inflammatory rhetoric and unnecessary inaccuracies.

As this debate moves forward, my hope is that, while our opinions may continue to differ, our view of the facts will not.

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