Abstract Background

The Anticipated Law: The Second Look Amendment Act

The Special Litigation Division of the Public Defender Service for the District of Columbia is beginning work in preparation for the Second Look Amendment Act (SLAA).  SLAA is a D.C. Council bill that is currently pending review by the United States Congress.  The bill that included SLAA was signed by the Mayor on January 13, 2021, and transmitted to Congress on February 1, 2021.[1]  It does not become an effective law until the congressional review period is over.  The projected effective date of SLAA is May 17, 2021. 

The SLAA will change who is eligible for consideration under the Incarceration Reduction Amendment Act (IRAA, codified at D.C. Code § 24-403.03).  Currently, IRAA provides the possibility of a reduced sentence to people who were under 18 at the time they committed a crime after the person has served at least 15 years in prison.  The SLAA will allow people who were under 25 at the time of the crime (in other words, 24 years old or younger) and who have served at least 15 years of their sentence to ask the court for a reduced sentence. 

THE LEGAL WORK AND TIME INVOLVED IN SLAA / IRAA[2]

IRAA does not guarantee release, and instead requires people to submit motions asking for a reduced sentence.  After the motion is filed, the prosecutors respond, and a hearing is held.  Then a judge decides whether or not to reduce the person’s sentence. 

IRAA requires a judge to consider a number of specific factors in deciding whether the person is not a danger and the interests of justice support a reduction in the person’s sentence.  The specific factors cover, among other things, the person’s entire life, from their childhood through all of their years in prison.  Because the investigation has to cover decades of events, and often involves gathering and reviewing old records, attorneys and their teams often need months and sometimes more than a year to prepare an IRAA motion. 

After an IRAA motion is filed, the prosecutor often then takes months to prepare and file their response. Then the defense team gets to file a reply to what the prosecutor said; that reply and the court hearing on all of the motions are usually weeks or months after that.  The judge’s decision may come immediately at the hearing or may come some time after the hearing.  As a result, the entire process of an IRAA case typically takes more than a year and sometimes can take two years or more.

If the judge denies a person’s IRAA motion, the person can file again, but has to wait until three years after the motion was denied.  A person can file under IRAA up to three times total.  Because a denial means the person has to wait three years, and because a person only has three chances total, legal teams working on a person’s IRAA case must work hard and take the time necessary to make the first motion filed as good as it can possibly be.

THE EFFORTS TO HELP THOSE ELIGIBLE

The Public Defender Service, the Georgetown Law School’s Criminal Justice Clinic, the Second Look Project, and the Justice Policy Institute have been working together on plans to identify those people who are eligible to file motions for reduced sentences pursuant to the Second Look Amendment Act and IRAA.  The group is also working on plans to recruit, train, and consult with pro bono teams from law firms who are willing to work on Second Look IRAA cases. (These law firm legal teams will be volunteering and working on these cases free of charge). 

The process of pairing eligible people with pro bono legal teams will take considerable time and effort.  There will be several hundred people who immediately become eligible once the law becomes effective.  And there will be more eligible people than there are legal teams able to take the cases pro bono.  One key factor for priority will be the number of years an eligible person has been incarcerated, with greater priority given to those who have been incarcerated longer.  For example, a person who has been in prison for 30 years will likely have higher priority for a pro bono legal team than a person who has been in prison for 15 or 16 years. 

WHAT POTENTIALLY ELIGIBLE PEOPLE CAN DO WHILE THEY WAIT

While it may be a long time before an eligible person has a legal team, people who will become eligible do have the ability to work on things that can be helpful for an IRAA motion.  First, while this is far easier to say than to do, avoiding disciplinary incidents is important.  Second, while programming and other activities have largely been suspended during the pandemic, it is helpful to engage in programming, academic education (like earning a GED or taking college courses), work, and other positive activities like volunteering.  Third, staying connected with family or friends in the community is also helpful.

WHAT FAMILIES AND LOVED ONES CAN DO WHILE THEY WAIT

Families and loved ones of eligible people can also help by making sure that documents and records related to the eligible person are maintained in a secure place and not lost or thrown away.  Documents like the eligible person’s birth certificate, medical records, and school records (like report cards) may be particularly important.  Families can also gather and keep safe photographs of the eligible person, as well as photographs of their friends and family members through the years.  Photographs from the person’s childhood as well as photographs from any prison visits made by the family or friends can be particularly helpful.


[1] D.C. Act 23-568, B23-0127, Title VI “Comprehensive Youth Justice Amendment”. 

[2] The Second Look Amendment Act expanded who was eligible to file what we call an IRAA motion, which is a motion filed under D.C. Code § 24-403.03.  The rest of this paper explains how an IRAA motion works.