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Around the country, jurisdictions have begun enacting second-look resentencing statutes that allow individuals serving long prison sentences to seek reduced terms, presenting the opportunity to chip away at mass incarceration. However, implementation has stalled over failures of understanding. In particular, courts and prosecutors have difficulty hearing the experiences of incarcerated petitioners, leading to limited decarceration. Moreover, defense counsels, even if well-meaning, can bring their implicit (and even explicit) biases, privilege, and narrative chauvinism into their relationships with resentencing clients, impeding their ability to effectively present clients’ stories to these decisionmakers.

One solution is for defense counsels to embrace a suite of community-based strategies and partnerships that have already been appearing in the pre-sentence context. The disconnect between lawyers and clients can be epistemic, with attorneys at times failing to fully grasp what their clients are telling them, or, if they do understand, struggling to present those stories in a legible way to decisionmakers. This divide can be even more potent in the resentencing context than pre-sentence, when attorneys are representing clients who have spent years behind bars—an experience these lawyers rarely have shared. The power of these interventions, often termed “participatory defense practice,” is that they enable attorneys to leverage the expertise of those who know their clients best or with lived experience, helping to overcome these disconnects. The interventions this Article proposes for widespread adoption include (1) utilizing community-prepared mitigation packets during resentencing, (2) calling formerly incarcerated expert witnesses to testify about the experience of incarceration, (3) enlisting the help of peer navigators in reentry, and (4) relying on community-produced resentencing toolkits to present their cases most effectively. By putting these tools into widespread use in second-look resentencing, defense counsels can amplify client voices, improve the informational environment in which resentencings are occurring, and achieve better resentencing results. If brought to bear more broadly, these participatory practices have the potential to transform lawyering, shift common understandings about client life experience, and lead to decarceration.

Despite an increasing number of critiques from many commentators—abolitionists, social scientists, and fiscal conservatives among them—mass incarceration remains an ongoing crisis. Dealing with the wreckage of carceral overreach requires not just changing policies about what gets criminalized and how offenses are punished prospectively, but also unwinding the long sentences imposed during the past half- century and still being served. Among the mechanisms for decarcerating are second look acts, which a growing number of jurisdictions have passed or are considering.

Often these resentencing tools depend heavily on decisionmakers’ exercise of discretion. In rare instances, however, that discretion is constrained. Comparing two recent New York sentencing reforms, the Domestic Violence Survivors Justice Act and the 2004–2009 Drug Law Reform Acts—the former highly discretionary and the latter with a strong presumption in favor of resentencing—this Article notes the relative success rates of each statutory scheme, finding the less discretionary regime apparently more decarceratory. Critically, the exercise of discretion imposes a significant dignitary harm on applicants, who are required to prove their believability and moral worthiness to judges deciding whether to free them. As epistemic justice theory shows, those who are incarcerated and disproportionately members of marginalized identity groups face untenably difficult odds of doing so, as they are systematically discredited. In the process of inviting a judge to exercise discretion in their favor, these petitioners are often disbelieved, and the knowledge system is subsequently impoverished by discounting of petitioners’ experiences. Thus, if resentencings are going to begin to decarcerate at the rates necessary to bring the United States into line with comparable countries, and do minimal damage in the process, resentencing reforms should be categorical or presumptive rather than discretionary.