Abstract

Excerpted From: Douglas A. Berman, Exploring Concerns About Discretion and Disparity in Second Look Sentencing, 59 Akron L. Rev. 595 (2026) (64 Footnotes) (Full Document)

A striking development in American criminal justice systems in recent years has been the emergence and expansion of what are often described as “second look” sentencing laws. As one recent report has detailed, “[t]wenty-five states, the District of Columbia, and the federal government have enacted “second look’ judicial sentence review policies to allow judges to review sentences after a person has served a lengthy period of time.” The potential impact and import of these laws on modern sentencing policy and practice may be hard to overstate.

At the federal level, since the First Step Act of 2018 authorized federal prisoners to file sentence reduction motions directly with district courts, tens of thousands of federal prisoners have sought sentence reductions, and federal judges nationwide have grappled with when and why prison terms can and should be shortened. At the state level, an increasing number of jurisdictions have enacted or expanded mechanisms for prosecutors, courts, or correctional agencies to revisit long prison sentences. Some states have established judicial sentencing review mechanisms focused on certain classes of offenders, while others have created broader “resentencing” procedures that empower prosecutors or the courts to initiate review and reassessment of sentences on a wide variety of grounds.

The legal rules and procedures that structure and shape second look sentencing opportunities nationwide are quite diverse. Who may initiate sentence review, when reviews can take place, which review procedures are required, and what substantive legal standards control resentencing varies, sometimes dramatically, from jurisdiction to jurisdiction. But a common element of diverse second look sentencing laws is broad and robust discretion. Though some second look laws place formal legal constraints on who is eligible to seek sentence review and when resentencing can be granted, these laws are universally built around providing prosecutors and judges nearly unlimited discretion regarding when to provide (or not provide) sentence review and relief. In other words, second look sentencing laws generally define when sentence review and change “may” be granted, but they never demand that sentence review or revision “must” occur.

This reality has led some to reasonably worry about disparities and unfairness in the application of second look laws. As I will explain in Parts I and II of this article, concerns about disparities in the operation of discretionary sentencing laws have a significant history and are justified for various reasons. Moreover, as advocates seek to further broaden eligibility for and access to discretionary resentencing, the risks of disparities may increase across a range of defendants.

Nevertheless, as I will explain in Part III of this article, there is a basis to hope and expect that second look sentencing efforts can serve as a corrective to past sentencing disparities. Generally, as second look reforms aspire to bring greater rationality and proportionality to the length of prison terms, reasonable disparity concerns do not justify significantly curtailing broad resentencing discretion. Ideally, second look mechanisms should be developed normatively, and can be expected to operate functionally, to remedy forms of disparity and arbitrariness found in sentencing regimes of the past. Still, the lessons of the past caution advocates for second look reforms to not unduly minimize the disparity risks from robust second look discretion nor resist sound efforts to regulate resentencing discretion.

In the end, I contend that risks of resentencing disparities, though real and somewhat unavoidable, should not diminish interest and excitement surrounding second look sentencing laws but should encourage study of the robust discretion usually associated with them. This reform movement has significant potential to correct excessive prison terms, to adapt our criminal laws to changing punishment norms, and to humanize an often overly rigid, overly punitive sentencing system. These potential benefits can outweigh inherent disparity concerns in discretionary sentencing systems, especially if we seek to advance access, transparency, and accountability values in the operation and review of second look sentencing laws.

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While this essay has focused on concerns about discretion and disparity in second look sentencing, it is important to conclude by recalling the moral and practical justifications for these laws. Sentencing involves judging a human being, imposed at a moment in time, based on always imperfect information. People change; new facts emerge; laws evolve; norms shift. A wise justice system must have mechanisms for temporal adjustment--to acknowledge that time and change can alter the meaning and value, the costs and benefits, of a wide range of punishments. Second look sentencing embodies this insight, offering a modest but vital recognition that fair and effective sentencing is not a one-time act and giving particularized attention to the unique modern American affinity for very lengthy terms of imprisonment.

Practically, prisons are always expensive, the caretaking requirements for aging prisoners are especially costly, and long-term incarceration often yields diminishing public safety returns. Second look mechanisms can help rationalize resource allocation while enhancing the legitimacy of the system in the eyes of the public and those it governs. A sentencing system that never reconsiders its prior punitive judgments risks not only bureaucratic sclerosis, but social stagnation and moral complacency in the deprivation of human freedoms.

In an era of punitive excess, second look sentencing signals a broader shift in criminal justice philosophy--from finality to flexibility, from punitiveness to possibility. Yet, as this essay has argued, that shift reawakens enduring questions about discretion and disparity. The lessons of sentencing reform history remind us that unchecked discretion invites inconsistency and injustice. Still, the risks of disparity must be assessed beside the harms of extreme and excessive prison punishments. The greater danger in our era of mass and massive incarceration lies not in granting sentencing reductions unevenly, but in refusing to grant them at all. A just and legitimate system must have room for re-evaluation, redemption, and second chances. The task ahead is to ensure that second looks are not arbitrary acts of grace, but principled expressions of sound and thoughtful reconsideration--transparent, reasoned, and available to all who merit them.

In the end, the measure of a sentencing system’s maturity may not lie in how it punishes, but in how it reconsiders punishment. Second look sentencing, if thoughtfully designed and carefully constrained, offers a way to make that reconsideration both humane and lawful--a new chapter in the never-ending story of American sentencing reform.

Newton D. Baker-Baker Hostetler Chair in Law, Moritz College of Law at The Ohio State University.