Whose Eyes are Looking?: Discretionary Power in Second-look Sentencing

• In Event: Realities of Second Look Sentencing Reforms in California

Abstract

Second-look sentencing has emerged as a new mode of punishment restructuring. In California, the 2021 Penal Code 1172 reforms resulted in incarcerated individuals’ potential eligibility to be released from prison before their term is up. This law places the discretion for ‘taking a second look’ into the hands of judges, prosecutors, and CDCR officials. This raises questions about a re-assertion of judicial discretion. It also illuminates prosecutorial ‘looking’ and prison-official ‘looking.’ All of it adds up to a lot of power going in one direction: down. There are not 'eyes' from community organizations or for that matter juries, looking. Even the term being used--'second look'--implies an offhand glance by a sovereign-esque form of power. Of course, community or jury 'eyes' might be impractical, but that these constituencies are left out is important. This study relies on observations of public court hearings and interviews with practitioners and resentenced individuals to investigate how judges, prosecutors, and prison officials look at defendants seeking early release.

Author

• Paul Kaplan, San Diego State University