Comments to the New York State Permanent Sentencing Commission Regarding the Determinate Sentencing Proposal for Non-Violent, Non-Sex, Non-Drug Felonies

 

The New York County Lawyers’ Association Criminal Justice Section (“the Section”) is an open membership committee comprising 150 defense attorneys, prosecutors, judges, and judicial personnel. The attorneys on our committee practice in both state and federal court, and our defense attorneys practice in both assigned counsel and retained counsel capacity. Our review of the New York State Permanent Sentencing Commission’s (“the Commission”) proposed sentencing scheme for non-violent, non-drug non-sex felony offender sentences raise several concerns. The most serious concern is that the proposed grid will result in people serving longer sentences. While the Commission has made clear that it does not seek to increase sentences, the Section raises grave concerns that this will be the unintended consequence of the wide sentencing ranges proposed. The Section additionally believes that expanded opportunities for rehabilitative activities are needed during incarceration.

 

There Is a Significant Risk that Time-Served Averages Will Increase

• The maximums are excessive.

 

The Commission has proposed a new determinate sentencing scheme for non-violent, non-drug, non-sex felony offender sentences based on data collected about the actual time served during the indeterminate sentencing structure in place between 1985 – 2009. However, there is not a single way to measure actual time served and there are many variables, not made clear by the pure numerical results, that go into the data that is being used by this Commission. Since the announcement of the meetings, the data being relied upon by the Commission has changed. These changes come from decisions being made about different types of sentences to include or exclude in the results, and the changes cause significant fluctuations in medians and modes. For instance, a few outlier sentences near the maximum are included in the data before the Commission. This inclusion results in substantially skewed averaging of sentences. While time served data is useful, it needs to be carefully and systematically analyzed so that the Commission does not rely on distorted tabulations that in turn do not provide an accurate picture of sentences.

 

As the only crimes subject to the potential change from indeterminate to determinate are non- drug, non-sex, non-violent offenses, they are by definition, some of the least serious offenses in the penal code. As such, it is particularly disproportionate to increase the potential sentences for those convicted of these charges. This is all the more unreasonable in light of a growing body of scholarship over the short- and long-term effects of incarceration on the mental and physical health of the incarcerated, their future employment opportunities, and the devastating overuse of solitary confinement. These ills will not be cured by saddling the system with longer sentences for relatively low-level felony offenders. Furthermore, when these troubling aspects of continued mass incarceration are weighed in conjunction with the budget woes of our state, it is illogical to propose any scheme that enhances potential sentencing ranges for offenders who simultaneously inflicted comparatively minimal damage on society and pose the least risk to it upon reentry.

 

The sentencing ranges should not be based on data including these outlier sentences. For each offense class, the vast majority of the actual time served by prisoners is in the lower ranges of the potential sentence, with very few people serving sentences in the higher ranges. These very few higher sentences should not control the sentencing ranges. A sound sentencing policy should not be based on outlier data, particularly when there is not a clear picture of what accounts for these small numbers of extreme sentences. While it is possible that the higher sentences are based on the seriousness of the offenses, it is equally possible that the higher sentences are being driven by other factors.

 

For example, in the category of class B felonies for first-time offenders, nearly all of the high- range sentences are for Conspiracy in the Second Degree. Conspiracy in the Second Degree is not a charge that exists absent other charges; it is conspiracy to commit conduct consisting of a class A felony. Based on information received from the Commission, the time-served data disseminated includes sentences where a person was serving a sentence concurrent to another sentence. It is possible that these long time-served numbers for Conspiracy in the Second Degree are accounted for because the person is serving a concurrent sentence for another crime, which is a longer sentence and thus the controlling sentence for calculation purposes. Therefore, these numbers would not be a reliable indicator of actual time served for the crime class.

 

The Commission has proposed singling out Conspiracy in the Second Degree with a special higher authorized sentence. But, for the reasons above, the Criminal Justice Section disagrees with singling out any offense for special maximum sentences. There is insufficient data to explain why these sentences are higher for this particular crime, or, indeed, why any particular crime corresponds to any particular sentence structure.

 

In addition, to the extent that future ranges are based on time-served averages, it must be acknowledged the ranges will be built upon a questionable foundation. In recent years, the parole process has been politicized to such an extent that parole-approval rates have fallen to extremely low levels. This decline in parole mirrors the national trend of politicized parole boards’ unwillingness to use parole as a rehabilitative tool. According to a recent report from the Sentencing Project, “For persons who have been sentenced to life but are parole eligible, prospects for release have become increasingly politicized in recent years. These developments trace back to the roots of the ‘tough on crime’ movement as parole became a target for policymakers by which their resolution could be measured.”

 

According to the New York State Division of Parole’s most recently available data, only 40% of applicants were granted parole in FY09-10, and only 22% of first applicants were approved. The approval rates were as low as 28% in 2007, and have been in steady decline “since 1991, when 64% of offenders were released….The numbers of [parole] interviews have continued to decrease, as has the rate of release from prison.” These long sentences are further inconsistent with the “concept of least restrictive use of criminal justice interventions,” which the Commission emphasized in its recommendation report.

 

In addition to ensuring fair sentencing, the Commission should further study how any sentencing change will have a disparate impact on people of color. Overly broad discretion to impose harsher sentences disproportionately affects individuals and communities of color: minorities are routinely subjected to longer sentences than their white counterparts. The New York County Lawyers’ Association—in partnership with the Association of Prosecuting Attorneys, the Brennan Center for Justice, the National Association of Criminal Defense Lawyers, and the Center for NuLeadership—recently convened a multi-day conference titled “Criminal Justice in the 21st Century: Eliminating Racial and Ethnic Disparities in the Criminal Justice System.” Racial disparities exist at every point of the criminal justice system, with the harshest results falling upon people of color. It is the responsibility of this Commission to study the racial impact of any proposal put forward.

• Under the proposed scheme, Courts will make all assessments about risk, rehabilitation, and public safety based on little information.

 

The Criminal Justice Section is very concerned that sentences and the average time served will rise under the proposed scheme because the risk assessments are made at the front of the correctional process, with little guiding information about the person sentenced. Under an indeterminate system, the amount of time a person serves is a bifurcated process; the Court sentences within a range, then parole makes a risk assessment about release later, using information they have about a person’s behavior in prison. In moving to a determinate scheme, all of the decision making is made at the front end of the process, by the Court. The Court has no information upon which to base a decision about future risk or potential for rehabilitation and will not be able to assess, later date in the prisoner’s sentence, whether he/she has availed himself/herself of education programs, drug treatment, or other opportunities offered in prison.

 

Often, the only two pieces of information the Court has before it are: (1) facts about the current crime charges, and (2) the pre-sentencing report written by the local Department of Probation.

 

Unfortunately, the reality is that pre-sentencing reports are sparse, at best. The statute governing pre-sentencing reports lacks clear mandates for what the reports must include. Generally, a pre- sentence report is little more than a recounting of the current charge, a defendant’s criminal history, and some basic demographic data obtained from the defendant. While recognizably problematic, the parole system does provide a safety valve that allows for the release of persons after sentence, taking into account the behavior while incarcerated and using a risk-assessment tool.

 

The Criminal Justice Section recommends that the Commission review what effect moving from an indeterminate to a determinate sentencing scheme has had on judicial decision making in sentencing by examining data from previous changes in violent, sex, and drug offense sentencing. This data could prove useful in determining whether switching from an indeterminate to determinate system caused an increase in either the sentences imposed or actual time served by prisoners. It would also be useful in determining the effect on time served on community supervision.

 

Greater Need for Incentivizing Rehabilitative Activities

 

Since determinate sentencing structures do not include the possibility of parole, alternative methods of incentivizing good behavior in prison are necessary, both to ensure the safety of prison facilities and to improve post-release conduct. Pre-release rehabilitative programs are essential to successful reentry, but fewer and fewer prisoners are finding these programs available to them.

 

Education and work training while in prison have been proven time and again to have positive impacts on recidivism rates: “Recidivism dramatically drops among formerly incarcerated people who have participated in higher education while in prison, averaging about 46% lower recidivism rates than those of formerly incarcerated people who have not participated in post- secondary classes.” Another study found that while in-prison programs like GED prep courses can help reduce recidivism, “completing an associate’s degree had a particularly significant impact, reducing the likelihood of re-incarceration by 62 percent.”

 

The Section recommends expansion of eligibility and capacity for Temporary Release. Currently, less than 1% of Temporary Release applications are approved, in spite of the remarkably low rates of absconders. Temporary release directly benefits the state through taxes paid by work-release participants: in 2011, participants paid nearly $1 million in taxes, and have paid more than $42 million since 1995. They also send significant earnings to their families and children ($300,000 in 2011), reducing their dependency on the state for public support. The state benefits indirectly from the stability that Temporary Release provides to departing prisoners, because they are released with savings they earned during their work release. In 2011, workers saved a total of $1.7 million, and have saved a total of $50 million since 1995.

 

The Criminal Justice Section has significant concerns about the proposed sentencing range, the excessive maximum in the ranges, and the real possibility that it will result in people serving longer sentences. We believe that a thorough review of existing data regarding outlier sentences in current time-served analyses, previous sentencing changes to determinate sentencing, and racial disparities in sentencing is necessary. We also urge that any change in sentencing must be accompanied by concurrent changes that expand opportunities for rehabilitation in prison.

 

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