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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.

Existing theories of discrimination focus on discrimination at the individual, societal, or organizational level. We highlight the importance of the dynamic relationship between different institutional actors who jointly give rise to discriminatory outcomes. This reveals that discrimination can be contagious: discrimination that would otherwise not occur at one institutional level can arise due to discrimination at another institutional level. Therefore, discrimination by some actors can trickle down and create disparate impacts in processes that would otherwise be free of discrimination. This phenomenon, which we term “contagious discrimination,” can manifest itself in various settings such as employment and commercial trade negotiations. To illustrate its importance, we focus on the dynamic relationship between plea-bargaining—a critical part of the criminal justice system—and policing. We demonstrate that a defendant who anticipates racially discriminatory arrest by the police may accept a less favorable plea-bargain from the prosecutor in comparison to a similarly situated defendant who does not expect such discrimination by the police. This occurs even when the prosecutor is completely race-blind, highlighting how discrimination by law enforcement can lead to discriminatory outcomes at the plea-bargaining stage, thereby illustrating that discrimination can be contagious. We discuss the implications for policies focused on defendants’ perceptions, plea-bargain reform, and legal representation.