NYLJ: In the New Year, Take Another Look at Second Look
The author writes “For nearly as long as I have been a judge, I have firmly believed in the importance of what I call demystifying the judiciary — that is, helping the public understand what judges do, how they make decisions, and how they’re chosen for their positions. One aspect of this demystification is candidly discussing my background and upbringing because I believe that my formative experiences — humble as they were — have given me a perspective some judges may lack, including a deep appreciation of the value of second chances. This perspective makes it easy for me to understand the motivation behind the push to enact ‘Second Look’ legislation in New York.”
New York Chief Administrative Judge Joseph A. Zayas — January 13, 2025 at 10:00 AM
For nearly as long as I have been a judge, I have firmly believed in the importance of what I call demystifying the judiciary — that is, helping the public understand what judges do, how they make decisions, and how they’re chosen for their positions. One aspect of this demystification is candidly discussing my background and upbringing because I believe that my formative experiences — humble as they were — have given me a perspective some judges may lack, including a deep appreciation of the value of second chances. This perspective makes it easy for me to understand the motivation behind the push to enact “Second Look” legislation in New York.
I grew up in the Frederick Douglas Houses, a public housing project on the Upper West Side, and then moved, as a teenager, to Harlem. I was the second youngest of five brothers. My father had a serious mental illness, and as a result, my mother — who had my oldest brother when she was just 16 — had to raise us more or less on her own.
As a young teenager, I often hung out with one of my older brothers and an older cousin, and their friends. As you might imagine, these boys weren’t always the best influence on me. I still vividly remember a time when they decided that we should confront a kid from the East Side who had supposedly disrespected one of them, and that one of us — me, because I was the youngest, at only 13 or 14 years old, and thus the least likely to face serious consequences if we got caught — should carry a weapon.
Walking through Central Park that day with a machete wrapped in a brown paper bag, I was scared to death but did not have the courage to extricate myself from the situation; every step of the way, I prayed that we wouldn’t find the kid we were looking for. Fortunately, we didn’t, and it turned out to be one of those “there but for the grace of God go I” moments, which I had a lot of at that point in my life.
There are a number of lessons that I draw from experiences like these. One is that sometimes people, particularly impressionable and impulsive young people, do bad things because they end up in bad situations, which they lack the wherewithal and maturity to walk away from. Another is that whether a life-altering event actually happens is often just a matter of chance. Both of these notions support the conclusion that many people (and not just children) who commit crimes are not incorrigible, or beyond the capacity for change and redemption. They may have been young and reckless and in the wrong place at the wrong time, or addicted to drugs, or suffering from an untreated mental illness.
It is for these reasons that I have always embraced efforts to give individuals who have been charged with or convicted of crimes a second chance. For about six years, I had the gratifying experience of serving as a problem-solving court judge, a role that allowed me to step back from the ordinary process of adjudicating criminal cases, and to try, instead, to connect defendants with services and interventions that would hopefully address the reasons that they came into contact with the criminal justice system, so they wouldn’t find themselves in the same position in the future.
And a few years ago, when the Legislature enacted a modest sealing statute — section 160.59 of the Criminal Procedure Law, which gave judges the discretion to seal certain convictions once ten years had passed from either the conclusion of the case or the applicant’s release from prison — I applauded the law’s worthy goals but believed it had not gone far enough. The statute, for instance, categorically excludes the sealing of violent felony offenses. But an application I received from a woman who was convicted of an unarmed attempted robbery (a violent felony, under New York’s Penal Law) when she was a sixteen-year-old high school student, forcefully demonstrated the injustice of that approach.
This applicant was over fifty years old when she made her sealing motion. She hadn’t been convicted of any other crimes in the nearly three and a half decades since the robbery she committed as a teenager. So, when she underwent a criminal background check as part of an application for a job as a healthcare worker and learned that the conviction had never been sealed or expunged, she was frustrated and disappointed. It was that experience that prompted her sealing motion, which, regrettably, I had to deny, because the robbery charge to which she had pled guilty as an adolescent rendered her ineligible for that relief.
I chose to publish my decision, and explained why I felt this applicant was just the sort of person sealing statutes ought to benefit, and went on to urge the legislature to amend the law to allow for that possibility — which it did a few years later. And, even more consequentially, last year, with the support of a broad coalition that included reentry advocates, prosecutors and other law enforcement officials, leaders from the business and faith-based communities, and labor unions, the Clean Slate Act was signed into law, creating a robust “automatic” process that will seal certain criminal histories after specified waiting periods have been met.
Sealing criminal convictions benefits individuals who have fully served their sentences, and then satisfied a designated waiting period. So-called “second look” statutes provide an opportunity for a very different sort of second chance. These laws allow judges to reduce the length of a prison sentence that a defendant is currently serving, if the defendant can put forth evidence of rehabilitation, or otherwise show that the sentence that was originally imposed is no longer necessary to serve penological purposes, like deterrence and incapacitation.
New York does not have a second look provision, though efforts in both the Senate (S.321 – Salazar) and the Assembly (A.351 – Walker) to enact one have been gaining momentum. New York’s Justice Task Force has also endorsed the concept. As with other attempts to make significant reforms to our criminal justice system, when it comes to creating a fair, meaningful second look procedure — one that has the potential to engender broad public support — the devil is in the details. There are, indeed, a number of difficult choices that need to be made in drafting a statute of this sort.
To name just a few: What portion of a sentence must be served before the defendant can ask for it to be reduced? Are there any offenses that should be off the table altogether, and, if so, which ones? What relief should be available to the applicant — in other words, by how much should a judge be able to reduce a sentence: to the statutory minimum, or even below that? Who should decide these applications — the judge who originally sentenced the defendant, or a different judge, who maybe brings a fresh perspective? And what factors should the decisionmaker be required to consider?
I don’t have the answers to all of these questions. But I can say that, having been a trial judge for many years, and having imposed lengthy prison sentences in many serious cases, I would have welcomed the ability to consider whether, after the passage of an appropriate amount of time, some of those decisions warranted reconsideration. Judges, after all, are no more omniscient than anyone else. We make sentencing determinations based on the best information that we have at the time, but, of course, people change and evolve — and, hopefully, so too does our own understanding of what is fair and just.
Currently, judges have very little sense of what happens to the human beings they sentence once they begin serving their prison terms. Second look legislation would help address that structural blind spot. Judges would learn whether inmates are availing themselves of educational opportunities or job training programs, mentoring their peers, earning the trust and respect of the corrections officers with whom they interact on a daily basis, and so on. Then, with that information, judges could look inward, in the solitude of their chambers, and dispassionately evaluate the continuing wisdom of a sentence they imposed years ago.
Taking this sort of sober second look would, in my view, be a very worthwhile undertaking; it may even, ultimately, influence the sentences that judges impose going forward. As Judge Frederic Block recently observed — in applying the First Step Act, a federal statute enacted in 2018 with broad bipartisan support, which gives judges the authority to reduce the sentences of federal prisoners who can demonstrate “extraordinary and compelling reasons” — these statutes “not only give[] worthy prisoners second chances, but also give[] the country’s sentencing judges second chances.”
If we want to begin to restore confidence in a criminal justice system that so many Americans think is broken, we need to advance reforms that are consistent with public safety while also embracing the notion that many individuals who get caught up in our system are fundamentally decent people who deserve a second chance. Clean Slate was that kind of reform; a well-crafted version of Second Look would be too.
Hon. Joseph A. Zayas was appointed by Chief Judge Rowan Wilson in May 2023 as the Chief Administrative Judge of the New York State Unified Court System, the highest-ranking administrative position within the New York State Judiciary.