Second Look Myopia: State Sentencing Reform and the Local Prosecutorial Response

This Article advises caution against over-reliance on local prosecutors’ offices to effect second-look reforms and to filter cases worthy of review. Using the lens of New York’s recent second-look law, the Domestic Violence Survivors Justice Act (DVSJA), I analyze the ways in which the local prosecutor can serve as a functional barrier to statewide implementation of sentencing reform. The New York State Legislature enacted the DVSJA—after advocacy from hundreds of directly impacted individuals, stakeholders, and organizations and after significant opposition from only the District Attorneys’ Association—to change the way the State sentences survivors of domestic violence. The DVSJA also allows incarcerated survivors to seek resentencing under a reduced sentencing scheme. Data from the cases decided in the ’DVSJA’s first five years of implementation suggests that consent from prosecutors is correlated with success in securing resentencing. It also suggests that this consent is unevenly distributed throughout the state. In some jurisdictions, the DA’s office has served almost entirely to obstruct the path to relief. Even in those counties where prosecutors have demonstrated an openness to taking a second look, some categories of cases expose the limits of their willingness to pursue reform. This, I argue, should give us pause about the power of the local prosecutor both to implement and to thwart such statewide resentencing efforts. It offers, in turn, reason to be skeptical about second-look measures that depend on prosecutorial initiation or consent.