Recent legislation, exemplified in statutes from California and Washington, creates new methods for resentencing defendants in old cases. These laws place controlling authority for resentencing in the hands of local officials, especially local prosecutors, and invite variation at the county level. While some new procedural channels for reducing the sentences of people convicted of past crimes are mandatory, in that they entitle certain defendants to resentencing if they were convicted of certain crimes or were subject to certain penalty enhancements that are no longer valid, other statutes create discretionary resentencing channels. In the discretionary channels, the chief local prosecutor has the authority both to decide whether to participate in the program and to select individual cases for review. Through original interviews and review of publicly available data, we highlight how this practice is working in California and Washington. We observe that when local prosecutors exercise their discretion under the new statute, they necessarily produce uneven results around the state, as some counties embrace resentencing practices, some use their power sparingly, and others leave it untouched. This local variation is fully consistent with the legislative design. In effect, these statutes grant to local officials certain powers previously associated with parole boards, but the practices are not synonymous with parole. The statutory design also opens up a gridlocked political process; this grant of authority empowers the state’s most change-oriented prosecutors to act while more cautious prosecutors wait and see. This flexible and localized approach in the resentencing arena comports with the dominant model of criminal law enforcement in the United States. In contrast to our European counterparts, we have long eschewed mandatory prosecution models and unified prosecutorial services in favor of letting local prosecutors decide what is best for their communities— subject only to constitutional rules and discipline at the ballot box.
