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| 4 | 4 | | |
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| 5 | 5 | | 2023 -- H 6139 |
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| 6 | 6 | | ======== |
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| 7 | 7 | | LC002310 |
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| 8 | 8 | | ======== |
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| 9 | 9 | | S TATE OF RHODE IS LAND |
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| 10 | 10 | | IN GENERAL ASSEMBLY |
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| 11 | 11 | | JANUARY SESSION, A.D. 2023 |
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| 12 | 12 | | ____________ |
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| 13 | 13 | | |
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| 14 | 14 | | A N A C T |
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| 15 | 15 | | RELATING TO CRIMINAL PROCEDURE – SECOND LOOK SENTENCING ACT |
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| 16 | 16 | | Introduced By: Representatives Casimiro, Cotter, Donovan, Ajello, Kazarian, Shallcross |
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| 17 | 17 | | Smith, Spears, Cruz, Tanzi, and Knight |
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| 18 | 18 | | Date Introduced: March 08, 2023 |
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| 19 | 19 | | Referred To: House Judiciary |
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| 20 | 20 | | |
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| 21 | 21 | | |
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| 22 | 22 | | It is enacted by the General Assembly as follows: |
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| 23 | 23 | | SECTION 1. Title 12 of the General Laws entitled "CRIMINAL PROCEDURE" is hereby 1 |
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| 24 | 24 | | amended by adding thereto the following chapter: 2 |
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| 25 | 25 | | CHAPTER 19.4 3 |
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| 26 | 26 | | SECOND LOOK SENTENCING ACT 4 |
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| 27 | 27 | | 12-19.4-1. Short title. 5 |
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| 28 | 28 | | This act shall be known and may be cited as the "Second Look Sentencing Act." 6 |
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| 29 | 29 | | 12-19.4-2. Findings. 7 |
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| 30 | 30 | | (1) The number of incarcerated individuals in the State of Rhode Island has increased over 8 |
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| 31 | 31 | | four hundred percent (400%) from 1980 to 2020. 9 |
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| 32 | 32 | | (2) Over forty percent (40%) of those incarcerated individuals in the State of Rhode Island 10 |
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| 33 | 33 | | are serving sentences of ten (10) years or more. 11 |
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| 34 | 34 | | (3) Long-term incarceration disproportionately impacts poor communities and 12 |
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| 35 | 35 | | communities of color. 13 |
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| 36 | 36 | | (4) The costs of long-term incarceration, social, cultural and economic, including a 14 |
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| 37 | 37 | | financial cost of sixty-eight thousand dollars ($68,000) and up to one hundred ten thousand dollars 15 |
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| 38 | 38 | | ($110,000) per inmate annually, cause additional harm to society and above the crime committed. 16 |
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| 39 | 39 | | (5) Research indicates that long prison sentences can increase, rather than reduce, 17 |
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| 40 | 40 | | recidivism. In addition, the potential for a later reduction in sentence encourages incarcerated 18 |
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| 41 | 41 | | individuals to engage in good behavior and take advantage of rehabilitative programming. 19 |
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| 42 | 42 | | |
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| 43 | 43 | | |
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| 44 | 44 | | LC002310 - Page 2 of 7 |
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| 45 | 45 | | (6) Sentences are not just served by the incarcerated individual; they are served by their 1 |
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| 46 | 46 | | families too. Research indicates that the children of incarcerated parents are six (6) to seven (7) 2 |
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| 47 | 47 | | times more likely to end up incarcerated themselves. 3 |
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| 48 | 48 | | (7) As the criminal legal system gains insight into the devastating impact of mass 4 |
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| 49 | 49 | | incarceration, it has also modified: its charging, plea bargaining and sentencing practices; its 5 |
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| 50 | 50 | | policies and law changes that reflect developments in scientific research about the youth brain; the 6 |
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| 51 | 51 | | impact of childhood, domestic and sexual abuse; the treatment of addiction and mental illness; and 7 |
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| 52 | 52 | | the penalty necessary to achieve the purposes of sentencing. 8 |
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| 53 | 53 | | (8) It is time as a society for us to take a bold step to redress the moral stain of people 9 |
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| 54 | 54 | | serving long sentences in prison that would not be imposed today, either because the sentence itself 10 |
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| 55 | 55 | | is subject to changed rules and procedures, or because the incarcerated individual has exhibited 11 |
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| 56 | 56 | | significant rehabilitation warranting of a second chance. 12 |
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| 57 | 57 | | 12-19.4-3. Second look for long-term incarcerated individuals. 13 |
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| 58 | 58 | | (a) Notwithstanding any other provision of law, including any applicable mandatory 14 |
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| 59 | 59 | | minimum sentence, an incarcerated individual who has served at least ten (10) years of their 15 |
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| 60 | 60 | | sentence may petition the sentencing judge or the presiding justice’s designee should the sentencing 16 |
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| 61 | 61 | | judge be retired, for a reduction of their sentence. 17 |
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| 62 | 62 | | (b) Where a petition for a reduction in a sentence under this chapter has been denied, the 18 |
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| 63 | 63 | | incarcerated individual may not file a successive petition until at least two (2) years have elapsed 19 |
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| 64 | 64 | | after the date of any denial of such a petition; provided, the court may require a longer waiting 20 |
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| 65 | 65 | | period, but no more than five (5) years after the date of the denial of any such petition. 21 |
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| 66 | 66 | | (c) Where a petition for a reduction in sentence under this chapter has been granted, the 22 |
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| 67 | 67 | | incarcerated individual may not file a successive petition until at least five (5) years have elapsed 23 |
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| 68 | 68 | | after the date the petition was granted. 24 |
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| 69 | 69 | | (d) Notwithstanding this section, an otherwise eligible incarcerated individual shall be 25 |
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| 70 | 70 | | deemed eligible to petition for a reduction in sentence upon consent of the department of attorney 26 |
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| 71 | 71 | | general. 27 |
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| 72 | 72 | | 12-19.4-4. Procedure. 28 |
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| 73 | 73 | | (a) Not more than thirty (30) days after the date on which the tenth year of imprisonment 29 |
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| 74 | 74 | | begins for an incarcerated individual sentenced to more than ten (10) years of imprisonment for an 30 |
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| 75 | 75 | | offense, the department of corrections shall provide written notice of this chapter to: 31 |
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| 76 | 76 | | (1) The incarcerated individual; 32 |
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| 77 | 77 | | (2) The sentencing court, the department of attorney general, and the office of the public 33 |
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| 78 | 78 | | defender. 34 |
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| 79 | 79 | | |
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| 80 | 80 | | |
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| 81 | 81 | | LC002310 - Page 3 of 7 |
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| 82 | 82 | | (b) A petition for a sentence reduction under this chapter may be filed six (6) months after 1 |
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| 83 | 83 | | the date on which the tenth year of imprisonment begins for an incarcerated individual sentenced 2 |
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| 84 | 84 | | to more than ten (10) years of imprisonment. 3 |
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| 85 | 85 | | (c) The petition shall be filed in writing in the superior court for the county in which the 4 |
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| 86 | 86 | | sentence was imposed and may include, but need not be limited to, affidavits, declarations, letters, 5 |
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| 87 | 87 | | prison records, or other written or electronic material in support of the petition. 6 |
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| 88 | 88 | | (d) Upon the court’s receipt of a petition under this chapter, the court shall promptly notify 7 |
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| 89 | 89 | | the department of attorney general and provide that department with a copy of the application and 8 |
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| 90 | 90 | | any exhibits appended thereto. 9 |
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| 91 | 91 | | (e) A petition under this chapter shall be referred for determination to the judge who 10 |
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| 92 | 92 | | imposed the original sentence or, if the judge is no longer available, to the presiding justice’s 11 |
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| 93 | 93 | | designee. 12 |
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| 94 | 94 | | (f) After the filing of the petition for a sentencing reduction under this chapter, the court 13 |
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| 95 | 95 | | may direct the parties to expand the record by submitting additional materials relating to the 14 |
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| 96 | 96 | | petitions. A petition filed under this chapter may be amended with leave of the court, which the 15 |
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| 97 | 97 | | court shall grant when justice so requires. 16 |
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| 98 | 98 | | (g) No waiver of the right to make an application for a resentencing under this chapter shall 17 |
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| 99 | 99 | | be permitted or honored by the sentencing court. 18 |
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| 100 | 100 | | 12-19.4-5. Hearing. 19 |
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| 101 | 101 | | (a) The court shall, upon request of the petitioner or the state, conduct a hearing on the 20 |
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| 102 | 102 | | petition, at which the petitioner and counsel for the petitioner shall be given an opportunity to 21 |
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| 103 | 103 | | present argument in support of the petition. Any such hearing shall be on the record and recorded 22 |
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| 104 | 104 | | or transcribed. 23 |
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| 105 | 105 | | (b) In a hearing under this section, the court may, but is not required to, allow parties to 24 |
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| 106 | 106 | | present evidence that the court deems relevant to the issue of the propriety of a reduction in 25 |
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| 107 | 107 | | sentencing. Such evidence may include documents, live testimony, tangible objects, or any other 26 |
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| 108 | 108 | | class of evidence or information pertinent to sentencing. The court shall have exclusive discretion 27 |
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| 109 | 109 | | to determine the relevance of any proposed evidence. At any hearing on a petition, the petitioner 28 |
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| 110 | 110 | | shall have the right to testify or to remain silent at their sole discretion. 29 |
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| 111 | 111 | | (c) The petitioner shall have the right to be present at any hearing on their petition absent 30 |
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| 112 | 112 | | an explicit waiver, in writing, by the petitioner. Alternatively, the petitioner may appear via video 31 |
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| 113 | 113 | | conference. 32 |
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| 114 | 114 | | 12-19.4-6. Decision - Factors to be considered by the court. 33 |
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| 115 | 115 | | (a) The court, after consideration of the arguments and evidence presented at the hearing 34 |
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| 116 | 116 | | |
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| 117 | 117 | | |
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| 118 | 118 | | LC002310 - Page 4 of 7 |
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| 119 | 119 | | on the petition, shall, either in open court or by written decision, or both, provide its decision and 1 |
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| 120 | 120 | | reasons for either granting or denying the petition. The court shall consider the following factors: 2 |
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| 121 | 121 | | (1) The age of the petitioner at the time of the offense and relevant research regarding 3 |
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| 122 | 122 | | development of youth brain; 4 |
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| 123 | 123 | | (2) The age of the petitioner at the time of the hearing and relevant research regarding the 5 |
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| 124 | 124 | | decline in criminal behavior as individuals age; 6 |
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| 125 | 125 | | (3) The nature of the offense, including changing societal attitudes regarding the propriety 7 |
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| 126 | 126 | | of criminalizing the offense and the appropriate sentence for the offense; 8 |
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| 127 | 127 | | (4) The circumstances of the offense, including the petitioner’s role in its commission, 9 |
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| 128 | 128 | | whether the petitioner was under the influence of another, or whether the petitioner was the victim 10 |
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| 129 | 129 | | of domestic or sexual abuse at the time of the offense, and whether such abuse was related to the 11 |
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| 130 | 130 | | petitioner’s participation in the offense and related conduct; 12 |
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| 131 | 131 | | (5) The history and characteristics of the petitioner at the time of the hearing, including 13 |
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| 132 | 132 | | rehabilitation demonstrated by the petitioner, the petitioner’s institutional disciplinary record, and 14 |
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| 133 | 133 | | the petitioner’s participation in educational, therapeutic, and vocational opportunities while 15 |
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| 134 | 134 | | incarcerated; 16 |
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| 135 | 135 | | (6) Medical records and reports from physical, mental, or psychiatric examinations of the 17 |
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| 136 | 136 | | petitioner conducted by any licensed health care professional; 18 |
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| 137 | 137 | | (7) Statements and impact statements provided by any victim or family member of any 19 |
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| 138 | 138 | | victim, pursuant to § 12-19.4-8, for which the petitioner is incarcerated. 20 |
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| 139 | 139 | | (8) Any evidence concerning whether the petitioner’s original sentence was enhanced 21 |
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| 140 | 140 | | because a petitioner exercised their right to a trial; 22 |
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| 141 | 141 | | (9) Any evidence that the petitioner was denied effective assistance of counsel at any stage 23 |
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| 142 | 142 | | of the case leading to the original sentence, including ineffective assistance of counsel at the plea-24 |
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| 143 | 143 | | negotiation stage; 25 |
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| 144 | 144 | | (10) Any exculpatory evidence and any evidence that the petitioner is factually innocent of 26 |
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| 145 | 145 | | the offense; and 27 |
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| 146 | 146 | | (11) Any other evidence that the court deems appropriate to consider before ruling on the 28 |
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| 147 | 147 | | petition. 29 |
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| 148 | 148 | | (b) In any case in which the petitioner is fifty (50) years of age or older on the date the 30 |
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| 149 | 149 | | petition is filed, there shall be a rebuttable presumption that the petitioner shall be released. 31 |
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| 150 | 150 | | (c) In calculating the new term to be served, the petitioner shall be credited for any period 32 |
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| 151 | 151 | | of incarceration awaiting trial as well as any period of incarceration credited toward the sentence 33 |
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| 152 | 152 | | originally imposed. 34 |
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| 153 | 153 | | |
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| 154 | 154 | | |
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| 155 | 155 | | LC002310 - Page 5 of 7 |
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| 156 | 156 | | 12-19.4-7. Right to counsel. 1 |
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| 157 | 157 | | (a) A petitioner who is unable to afford counsel is entitled to have counsel from the office 2 |
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| 158 | 158 | | of the public defender or other court appointed counsel, at no cost, to represent the petitioner in 3 |
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| 159 | 159 | | their application and in the proceedings permitted under this chapter. The right to counsel shall 4 |
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| 160 | 160 | | extend to any appeal filed by the petitioner following a denial of their petition. 5 |
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| 161 | 161 | | (b) A petitioner may be permitted to waive the right to counsel after being fully advised of 6 |
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| 162 | 162 | | their right to have counsel by the court. 7 |
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| 163 | 163 | | (c) A petitioner who proceeds without counsel and files a petition pro se but who 8 |
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| 164 | 164 | | subsequently retains or is appointed counsel by the court, shall be entitled to amend the petition at 9 |
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| 165 | 165 | | least once, as of right, with the assistance of counsel. Subsequent amendments may be permitted 10 |
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| 166 | 166 | | by leave of the court pursuant to § 12-19.4-4. 11 |
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| 167 | 167 | | 12-19.4-8. Victims' rights. 12 |
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| 168 | 168 | | (a) Upon receipt of any petition, the department of attorney general shall notify the victim 13 |
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| 169 | 169 | | or victim’s family and provide them a copy of the petition and all exhibits appended thereto. 14 |
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| 170 | 170 | | (b) The department of attorney general shall, if practicable, consult with victims in a 15 |
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| 171 | 171 | | homicide case prior to making any filing in relation to a petition filed under this chapter or 16 |
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| 172 | 172 | | consenting to the petition of an otherwise eligible petitioner. 17 |
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| 173 | 173 | | (c) The victim or victim’s family shall have a right to be present at any hearing held 18 |
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| 174 | 174 | | pursuant to this chapter and shall be permitted to provide statements, oral or written or both, 19 |
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| 175 | 175 | | regarding the impact of the offense and their position as to whether the petition should be granted 20 |
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| 176 | 176 | | or not. 21 |
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| 177 | 177 | | (d) If the court grants the petition and modifies the petitioner’s sentence, it shall not disturb 22 |
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| 178 | 178 | | any order of restitution entered by the court at the original sentencing. 23 |
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| 179 | 179 | | 12-19.4-9. Right to appeal. 24 |
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| 180 | 180 | | (a) An appeal from the court’s decision under this chapter may be taken by the petitioner 25 |
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| 181 | 181 | | or the department of attorney general on the following bases: 26 |
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| 182 | 182 | | (1) The resentencing was unlawful; 27 |
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| 183 | 183 | | (2) The modified sentence was imposed in an unlawful manner or was too lenient; or 28 |
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| 184 | 184 | | (3) The sentence is otherwise inappropriate in light of the purposes of sentencing, which 29 |
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| 185 | 185 | | include, but are not limited to, imposing appropriate punishment, providing educational and 30 |
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| 186 | 186 | | rehabilitative services to the defendant and individual and societal deterrence. 31 |
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| 187 | 187 | | (b) The right to appeal from a sentence modification under this section shall be as of right 32 |
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| 188 | 188 | | and on the same terms as a first appeal from an initial sentence at the time of conviction. 33 |
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| 189 | 189 | | 12-19.4-10. Reinvestment. 34 |
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| 190 | 190 | | |
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| 191 | 191 | | |
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| 192 | 192 | | LC002310 - Page 6 of 7 |
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| 193 | 193 | | (a) Twenty-five percent (25%) of savings realized as a result of this act, shall be designated 1 |
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| 194 | 194 | | to fund prison-based and community-based programs designed to counter recidivism through 2 |
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| 195 | 195 | | education, therapeutic intervention, maintenance of familial and social networks, restorative justice 3 |
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| 196 | 196 | | and successful post-custodial re-entry to society. 4 |
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| 197 | 197 | | (b) Ten percent (10%) of the savings realized as a result of this chapter shall be designated 5 |
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| 198 | 198 | | to fund dedicated personnel in the offices of the department of attorney general and the office of 6 |
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| 199 | 199 | | the public defender to represent, respectively, the state and any petitioners in proceedings under 7 |
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| 200 | 200 | | this chapter. 8 |
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| 201 | 201 | | 12-19.4-11. Construction with habeas corpus and other remedies. 9 |
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| 202 | 202 | | (a) This act shall not be construed to abridge or modify any existing remedy an incarcerated 10 |
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| 203 | 203 | | individual may have under habeas corpus, statutory or judicial post-conviction relief or any other 11 |
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| 204 | 204 | | legal framework. 12 |
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| 205 | 205 | | (b) A petition under this chapter shall not impact in any way or be impacted in any way by 13 |
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| 206 | 206 | | any pending habeas or other post-conviction proceeding, nor shall the denial of a petition under 14 |
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| 207 | 207 | | this chapter preclude such remedies being granted. 15 |
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| 208 | 208 | | SECTION 2. This act shall take effect upon passage. 16 |
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| 210 | 210 | | LC002310 |
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| 212 | 212 | | |
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| 213 | 213 | | |
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| 214 | 214 | | LC002310 - Page 7 of 7 |
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| 215 | 215 | | EXPLANATION |
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| 216 | 216 | | BY THE LEGISLATIVE COUNCIL |
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| 217 | 217 | | OF |
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| 218 | 218 | | A N A C T |
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| 219 | 219 | | RELATING TO CRIMINAL PROCEDURE – SECOND LOOK SENTENCI NG ACT |
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| 220 | 220 | | *** |
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| 221 | 221 | | This act would establish the second look act and would permit incarcerated individuals to 1 |
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| 222 | 222 | | petition the sentencing court to consider a motion to reduce a sentence after the defendant has 2 |
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| 223 | 223 | | served at least ten (10) years of the sentence. 3 |
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| 224 | 224 | | This act would take effect upon passage. 4 |
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| 225 | 225 | | ======== |
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| 226 | 226 | | LC002310 |
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