IRAA 3.0: Second Look Review for Adults

Today I am testifying on behalf of the Second Look Amendment Act of 2019, sometimes dubbed IRAA 3.0. The initial IRAA, the Incarceration Amendment Act, was designed to provide post-sentencing review to those who committed crimes as juveniles and were given life or near-life sentences. IRAA 2.0 extended eligibility and clarified some issues in the original bill, and the current incarnation is designed to provide that same post-sentencing review to those convicted of crimes from 18-25 years old.

I represent the Georgetown Pivot Program—a reentry program based at Georgetown University that began last year. I am also a DC resident, residing in Ward 4, and I support the Second Look Amendment Act.

No discussion of DC sentencing review can proceed without a few basic facts:

1. The US has the highest incarceration rate in the world. We have less than 5% of the world’s population and more than 20% of the world’s prisoners.[1]
2. Most of the march towards mass incarceration is driven by state-level policies rather than federal law. 83% of prisoners are incarcerated in state prisons and local jails.[2]
3. DC has the highest incarceration rate of any state or territory in the US: yes, we have a higher incarceration rate than Louisiana, Oklahoma, Mississippi, or Georgia. When it comes to imprisoning our citizens, DC is #1.[3]
4. The DC Council has repeatedly chosen policies that enhance sentences in a way that increases the number of our fellow citizens who are incarcerated, despite evidence that this is not making DC’s residents any safer. At the current incarceration rates, there is ample evidence that reducing sentencing at the margin would decrease crime.[4]
5. Today, our crime rate is near its fifty-five year low—and a small recent uptick should not be cause to repeat the disastrous policies of the 70s, 80s, and 90s that got us our #1 status.
6. Instead, we should work to reduce sentences across the board—we must become significantly less punitive or else continue to lose our fellow citizens to the Federal Bureau of Prisons.[5]
7. The Second Look bill currently being considered does this in a very small way. Its greatest weakness is that it countenances post-sentencing modifications ONLY for those whose crimes were committed before the age of 25, on the theory that the young adult brain is still developing. However, we really ought to offer post-sentencing modifications for everyone regardless of age since we are assessing rehabilitation, not the degree of culpability.[6]
8. The American Law Institute, an association of law faculty that maintain and amend the Model Penal Code, updated the MPC with Second Look post-sentencing review in 2017 in light of the inadequacies of parole board reviews. It behooves us to follow them, at least for those offenders who were 18-25 years old at the time of their offence.[7]
9. A Second Look is an evaluation of rehabilitation: it gives us an opportunity to live up to the ideal of prisons as correctional rather than merely retributive. Punishment is—and must be—predicated on the idea that the offender, like the victim, is a member of our community who will have the opportunity to be restored to full membership.

At the Pivot Program we have 15 Pivot Fellows studying entrepreneurship alongside a traditional liberal arts curriculum, including two IRAA 1.0 clients. Through my work with the Georgetown Prisons and Justice Initiative, the Prison Scholars Program, and the Paralegal Program I’ve had the opportunity to work with several IRAA 1.0 clients, as well as many who would qualify for post-sentencing review under the Second Look legislation.

We are incredibly lucky to have started our programs at around the same time that the IRAA clients were returning to DC—and I can report that our programs both inside and outside the Jail are desperate for more participants like the ones that IRAA has granted us. 

Kareem McCraney, Charles Fantroy, Tyrone Walker, Halim Flowers, Troy Burner, Mustafa Zulu, and Momolu Stewart: I have been working with incarcerated students for almost a decade and these are among the best students I have taught in all that time. But we are just as excited to work with students who would qualify  for review under the Second Look Act. In particular I would highlight the current mentors on the Young Men Emerging unit at DC’s Correctional Treatment Facility: Joel Caston and Michael Woody.

These men seem exceptional to all who meet them, and they are truly excellent students and teachers. But the truth is that there hundreds more like them among our fellow citizens imprisoned in the FBOP—men and women whose talents are currently unavailable to us here in the District, and slated to be wasted for decades longer, because they received very long sentences for crimes committed after their 18th birthday, yet while they were still too young to have the full cognitive capacities of adulthood.

I want to point to three challenges that will continue to plague returning citizens in DC, whether from IRAA-style post-sentencing reviews or the 5,000 citizens returning to the District every year:

1. Returning citizens still face significant obstacles to employment for crimes that are unrelated to the types of work they pursue. The stigma of incarceration is still far too great, and the best evidence suggests that merely “banning the box” without other supports extends this stigma to all young Black and Latino men. Thus we simply MUST find ways to create fewer returning citizens by incarcerating fewer of our fellow citizens in the first place, and to create positive employment signals for returning citizens that will combat this stigma. 
2. Housing insecurity is a major problem for returning citizens generally—and this has hit the Pivot Program in predictable ways, with several promising fellows losing significant class and internship time as formerly-secure housing situations became unsettled. The Pivot Fellows were DC residents before they were shipped off to the Federal Bureau of Prisons but they have returned to a rapidly and severely gentrifying city. Often their reentry plans require them to reside with family members who have left the District in the intervening years—and this effectively outsources our obligations to Virginia and Maryland. Allowing former DC residents to secure residency status through MORCA so that they can continue to access DC’s reentry programs while temporarily residing outside of the District is the least we can do for them. As I have tried to show, we otherwise risk losing some extraordinary human capital to other localities.
3. Finally, our program is highly dependent on the $10/hr subsidized training wage from DC DOES which supports both the Pivot Fellows’ education and work experience. The training wage is designed to be unpalatably low so as to incentive the search for full-time unsubsidized employment, which isn’t fully compatible with our program’s goal of keeping Pivot fellows engaged over the whole ten month program. At Georgetown we subsidize these stipends to raise the effective hourly rate to $15/hour. It would be helpful to our work if they were able to cover a living wage either as a base rate or as an incentive bonus for consistent performance. While we are happy to subsidize the DC DOES stipend in this cohort,  continuing to do so is a significant private philanthropy burden that will hamper our ability to scale. If DC is serious about raising the minimum wage, then training wages like those offered by Pivot and Project Empowerment must rise as well.

DC is in an enviable position: we are poised to do the right thing for all our fellow citizens. We should pass Second Look, end a significant injustice, and reap the dividends. Thank you for your time.

Footnotes (aka The Receipts)

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[1] Peter Wagner and Alison Walsh, States of Incarceration: The Global Context 2016, available at https://www.prisonpolicy.org/global/2016.html

[2] Wendy Sawyer and Peter Wagner, Mass Incarceration: The Whole Pie 2019, available at https://www.prisonpolicy.org/reports/pie2019.html

[3] Peter Wagner and Alison Walsh, States of Incarceration: The Global Context 2016, available at https://www.prisonpolicy.org/global/2016.html

[4] James Forman Jr., Locking Up Our Own: Crime and Punishment in Black America. (New York: Farrar, Straus, and Giroux, 2017) and Daniel Roodman, The Impacts of Incarceration on Crime, Open Philanthropy Project 2017, available at: https://www.openphilanthropy.org/files/Focus_Areas/Criminal_Justice_Reform/The_impacts_of_incarceration_on_crime_10.pdf

[5] Urban Institute, A Matter of Time, available at: http://apps.urban.org/features/long-prison-terms/a_matter_of_time_print_version.pdf

[6] Gideon Yaffe, The Age of Culpability: Children and the Nature of Criminal Responsibility. (Cambridge: Oxford University Press, 2018)

[7] Richard Frase, Second Look Provisions in the Proposed Model Penal Code Revisions, 21 Fed. Sentencing R. 194 (2009), available at http://scholarship.law.umn.edu/faculty_articles/522 and Meghan J. Ryan, Taking Another Look at Second-Look Sentencing, 81 Brook. L. Rev. (2015). Available at: http://brooklynworks.brooklaw.edu/blr/vol81/iss1/4