Minnesota Joins Prosecutor-Led Resentencing Law Movement

By Marco Poggio | June 23, 2023, 7:00 PM EDT ·

A bald, fair-skinned Black man with a goatee, wearing a white dress shirt and a necklace smiles very happily.

After making long strides to reform himself while in prison, Alwin Smith earned his release two years ago thanks to a first-of-its-kind law allowing prosecutors to seek resentencing for individuals who have rehabilitated themselves. Since being enacted in California in 2018, similar laws have sprung up in other states around the country, including, most recently, a measure adopted in Minnesota last month. (Courtesy of For The People)

Twenty-one years into his 65-to-life sentence, Alwin Smith was given a chance to get out of prison.

Smith, who was convicted of two separate felony robberies and was later caught with cocaine, had made long strides to reform himself while behind bars. Over the course of three decades spent in three different correctional institutions, he went through drug rehabilitation, took anger management classes, studied the Bible, and became a model prisoner and facilitator helping other inmates.

And under a California law permitting prosecutors to seek resentencing for individuals who have shown successful rehabilitation efforts, Smith was able to walk free in July 2021.

"I was a thug, I was a criminal. I had criminal thought and mentality, and I did criminal things. You know, it was normal to me," he told Law360.

But that wasn't the person Smith was upon his release, he said.

"It was my change that got me out," he said. "It took all of my incarceration to do those things. This wasn't an overnight change."

The prosecutor-led resentencing law enacted by California in 2018 was the first of its kind in the nation. It was aimed at providing relief to youth who had been charged as adults, aging prisoners who are no longer deemed a threat to public safety, and individuals whose sentences are far out of line with more recently adopted sentencing laws and guidelines.

Similar laws were later passed in Washington, Oregon, Illinois and Louisiana in recent years.

While prisoners have only limited avenues to challenge their sentences or to seek release, prosecutor-led resentencing laws give prosecutors new discretion to identify people they no longer believe need to be in prison, and to file motions in court recommending them for a resentencing hearing.

Judges can then resentence the prisoners to a shorter term or to "time-served," in which case they are released. In making resentencing decisions, courts can consider the age of prisoners when they committed their offenses, their rehabilitation efforts, and whether they pose a risk to others if released.

Last month, Minnesota became the latest state to allow prosecutor-led resentencing. A provision in an omnibus bill signed by Gov. Tim Walz, a Democrat, on May 19 gives prosecutors the authority to defendants deemed safe for release.

Prosecutor-Initiated Resentencing Laws Gain Ground

Beginning with California in 2018, six states have enacted laws allowing prosecutors to petition courts to resentence prisoners. Six other states have considered similar legislation.

Click any colored state to see more information

  • Legislation passed

  • Legislation proposed

  • No legislation proposed
Source: Law360 analysis (as of June 2023)

Minnesota Sen. Ron Latz, a Democrat who sponsored the legislation, said the measure gave prosecutors discretion to reevaluate sentences that may be considered too harsh by today's sentencing standards, or that might simply have been the product of overzealous judges or prosecutors.

"It's another tool in the toolbox to seek justice in particular cases where the prosecuting authority thinks that justice will be served by a shorter sentence," he told Law360.

The law's enactment adds momentum to a nationwide movement that seeks to bolster the role of prosecutors in reducing incarceration and curbing what advocates say are excessive prison sentences.

Supporters of the resentencing movement say some incarcerated people can be safely released and that prosecutors are uniquely positioned to initiate the process to get them out of prison.

"The justice system, and the role of the prosecutor, oftentimes feels like an assembly line," said John J. Choi, the district attorney of Ramsey County, Minnesota, which includes St. Paul. "I think the prosecutor's role should not just end once we've finished processing a case. We should always be thinking about ensuring that there is justice for those who are rehabilitated [and] who have done everything that we have asked them to do."

Like the one enacted in Minnesota, prosecutor-led resentencing laws do not compel district attorneys to reconsider people's sentences; they only provide the authority to do so. But elected officials who oppose the laws argue the resentencing process leaves victims of crimes powerless. They also say that giving prosecutors the power to seek resentencing leaves them facing political pressure to use it.

California Assemblymember Tom Lackey, a Republican who once served as a California Highway Patrol officer, said he voted against the prosecutor-led resentencing bill because he deemed it unfair to victims.

"This bill and the energy behind it, and those associated with it, tip the scale of justice against victims of violent crime," he said. "The victim is totally ignored in this decision-making process. They are not included in this discussion on how that resentencing may impact them."

But Michael A. Hestrin, the conservative district attorney of Riverside County, California, who used the prosecutor-led process to resentence Smith, said his office always engages with victims of crimes, considering their input when making decisions on resentencing. Ultimately, however, prosecutors should be trusted in their decisions.

"We have to do what's right. A victim's input has to be considered, but it can't be a veto. In other words, I can't delegate the decision to the victim," Hestrin said. "If I believe it's justice to resentence someone, then I will reach out to those victims and I will have to stand and explain my decisions to the public. If I can't do that with a good conscience then I shouldn't make the decision."

To date, prosecutors in more than a dozen California counties have used that discretion under the recently enacted law. The district attorneys who have embraced the prosecutor-led process — including Jeff Reisig in Yolo County and Summer Stephan in San Diego County, both of whom have opposed other criminal justice reform efforts in the state, as well as Hestrin, a Republican who has won political backing from law enforcement — have done so to ensure the integrity of their offices and inspire trust in their constituencies.

Reisig recalled his reaction when the prosecutor-led resentencing process was first explained to him.

"I thought it was crazy," he told Law360.

But then, Reisig said, he thought about defendants he prosecuted earlier in his 27-year career who received sentences that were disproportionately longer than ones they would get today for the same crimes.

He said it helped him see the value in a process that would permit prosecutors to take a second look at those sentences.

"One of the prosecutor's obligations is to make sure that justice is fair. And that really doesn't stop even after the disposition, after conviction and sentence," Reisig said. "And so, just based on that very simple idea, I decided to start taking a look at some of the older cases that I had in my mind."

Reisig said the prosecutor-led resentencing process begins with identifying prisoners whose sentences warrant a review. Prosecutors then examine how they are behaving in prison and whether they've demonstrated that they have been rehabilitated. Then, he said, prosecutors will engage with those who have been affected by the prisoners' crimes.

Stephan, a registered Republican until 2019 and now an independent who described herself as "not a political person" in a recent interview with Law360, said her office has embraced the resentencing law as an opportunity to fulfill the prosecutor's role in seeking justice, independent of political pressure.

"I've seen those reunions, and it is an incredible human moment," she said of the people her office has gotten resentenced. "But, also, I'm safeguarding [the] victims and respecting their views."

More than 350 people have been released in California since the law passed, according to an estimate by For The People, a nonprofit advocating for prosecutor-initiated resentencing laws nationwide that spearheaded the efforts to get the law passed in the Golden State.

With proper funding and the participation of all 58 county prosecutor's offices, the group believes some 26,000 people could be released in California. Nationally, the prosecutor-led process led to the resentencing of more than 450 people.

Hillary Blout, a former prosecutor at the San Francisco District Attorney's Office who founded For The People and conceptualized, drafted and secured the passage of the first prosecutor-initiated resentencing law in 2018, said the breakthrough in California has inspired prosecutors elsewhere to advocate for similar policies.

"They were very interested in the way that this law could balance public safety, but also ensure that people who could be safely released could be reunited with their families and their communities," she said.

Choi, whose office has jurisdiction over a county with more than half a million people, said he relied on For The People's guidance and support when he became involved in advocating for a prosecutor-led resentencing process in his state shortly after California's law passed.

"As soon as we made that contact, we began working on a bill here in Minnesota," he said.

The first version of Minnesota's legislation was introduced in the state legislature in 2021, but failed to gain consensus. The bill resurfaced during the current legislative session, with versions introduced in both the upper and lower chamber, and was eventually tacked onto an omnibus bill that passed along strict partisan lines.

Rachel Aplikowski, communications director for the Minnesota Senate Republican Caucus, told Law360 that, despite recent overall decreases in crime in the state, the persistence of incidents such as carjackings, assaults, school fights and stabbings have given GOP elected officials pause.

"We still have a crime problem," she said. "We didn't think it was a good idea to go loose on crime right now."

Among the bill's supporters in the Minnesota legislature, where lawmakers are allowed to serve part-time while holding other jobs, are prosecutors.

Rep. Kelly Moller, who sponsored the bill in the state's House of Representatives, also serves as an assistant prosecutor in Hennepin County, home to Minneapolis. She told Law360 that prosecutor-led resentencing focuses on people who have already committed offenses, spent years in prison, and have fully rehabilitated themselves as members of society. She added that opponents of the prosecutor-led resentencing in her state overlook the cost of incarceration.

According to an analysis of 2015 data compiled by the Vera Institute of Justice through a 50-state survey, it costs on average more than $41,000 to keep a person incarcerated in Minnesota for one year, and the state spent nearly $400 million to keep up its prison system that year. The figures track those by the U.S. Department of Justice, which also collects data on states' prison expenditures

"Do they really want to have tax money spent on incarcerating people who are rehabilitated and no longer pose a risk to public safety?" Moller said. "I don't think that's a wise use of taxpayer dollars."

Other legislators who supported the Minnesota law pointed out that it ultimately leaves it up to prosecutors to decide whether to use it, and that judges have the final say in resentencing decisions.

"It's not the prosecutor's ultimate decision. It goes back in front of a judge in that sentencing venue," Latz said. "But at least now there's a path forward for these kinds of requests for relief."

Two of the Minnesota's largest coalitions of crime victims — Violence Free Minnesota and the Minnesota Coalition Against Sexual Assault — supported the legislation.

"Sentences imposed in the past may no longer be in the interest of justice, including what may be wanted by someone victimized by the crime," the organizations said in a joint letter to state legislators. "This legislation takes a step toward providing some support to victims/survivors by allowing locally elected prosecutors to recommend prison sentences for judicial review and downward adjustment based on the input of victims."

The Minnesota County Attorneys Association, an independent volunteer organization of top county prosecutors in the state, supported an earlier version of the bill that would have created a three-year pilot program of a prosecutor-initiated resentencing process in six counties, both urban and rural, to study its effects.

"The final bill that came out of the conference did not include our suggestion," Robert Small, the association's executive director, told Law360 in an email. The group opted neither to support nor oppose the version of the bill that ultimately passed.

For The People's national policy manager, May Lim, said the organization assisted legislators in analyzing prison population data to help them understand the potential effects of prosecutor-initiated resentencing in the state. They focused on prisoners' ages — comparing them to how old they were when they committed their offenses — as well as the length of their sentences and how much time they had already served.

"This information is often really helpful to officers that want to do this work, because they don't know exactly all those statistics until they have it presented to them," Lim said. "It helps them understand, 'If this policy were in place, if I had this tool, which cases could I look at?'"

Unlike California, Minnesota, which doesn't have a three-strike law and has few mandatory-minimum sentence requirements, has historically been a low-incarceration state.

According to data collected by the state's Department of Corrections, Minnesota's prison population totaled 8,152 as of the beginning of this year. About one in every five prisoners is 50 years old or older. Just over 600 were serving life sentences, including about 160 with no chance of parole.

Choi said that, despite the state being less carceral than others, some sentences imposed over the years might now be deemed excessive. By giving prosecutors a chance to correct them, he said that the law adds a sense of integrity to the justice system that would help instill trust in citizens.

"I know that there probably are people who are in our prisons who might have been subjected to certain prosecutions and imprisonment that today may not make sense," he said. "We should always be open to going backwards and looking at past convictions, so to speak, to make sure that we have integrity in the conviction so that the public can believe that what happens in the justice system is true."

Advocates said they've also had sessions with Minnesota prosecutors and members of the judiciary to instruct them about the resentencing process by sharing anecdotal knowledge gathered in California. They also said they helped assuage concern from officials that a similar reform in their state would overburden the courts.

Blout said the prosecutor-led process has been well received by judges in states that have implemented it. They felt empowered by the idea of playing a role in releasing fully rehabilitated prisoners, she said.

The National District Attorneys Association declined to comment on the laws.

For The People also told stakeholders that part of the process of a prosecutor seeking resentencing involves engaging with victims of crimes to get their input. Most of the time, Blout said that victims are supportive of releasing perpetrators early through resentencing after learning that they have turned their lives around while in custody.

"Some victims say, 'I didn't even know this person was still incarcerated'," she said.

Hestrin said that when he reached out to the victims of Smith's burglaries and explained the resentencing process, they were cooperative. Reisig said that in every case where he sought resentencing, victims didn't oppose the giving their offenders a second chance after learning about their rehabilitation and how the law works.

"We've never had a victim disagree with the idea that we would ask a judge to resentence," he said.

The district attorneys said they are careful in using the resentencing process, doing so only when the facts of a case warrant it, and generally not for people convicted of violent crimes. They warned against using it for political gains.

"Some DAs could be abusing it," Reisig said. "I think that's dangerous."

He mentioned San Francisco's former District Attorney, Chesa Boudin, who was ousted last year through a voters' recall amid a widespread perception that his progressive agenda interfered with him performing his duties, as an example of a prosecutor who sought resentencing in a high number of cases with little victim engagement.

"This is a great law if it's used appropriately, and if victims are engaged. But if you have a DA who has a reform agenda and just wants to get as many people out of prison as possible, this could be really abused," Reisig said.

A spokesperson from the San Francisco District Attorney's Office declined to comment.

Hestrin said his office doesn't use the process for people who were convicted of murder, rape or other crimes involving significant harm to others.

"This is not this is not something that I think should be used for political purposes," he said. "If the prosecutor uses this indiscriminately, then someone is going to get hurt, or the victims are going to feel that they were left out. And so it's got to be used carefully."

Stephan agreed.

"When prosecutors become political and they are not actually looking at the rule of law and their duties to all — to victims, to the accused and to the community — we lose our way," she said.

Two years after walking free under California's prosecutor-initiated resentencing process, Smith said that Minnesota's version of the law will give a second chance to people like him who have taken steps to leave their criminal lives behind and to redefine themselves while in prison.

Without such chances, he said that keeping fully rehabilitated people locked up presented a double cost to society.

"Not only is society paying for him to be where he's at," Smith said. "Society is also paying by not having what he has to offer now."

--Editing by Adam LoBelia.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

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