- S.7871: Eliminate Mandatory Minimums
- S.7872: Second Look Law
- S.7873: Earned Time Act
S.7871: Eliminate Mandatory Minimums
Seeking to end New York’s history of severe, unfair sentencing laws, legislation introduced in New York would significantly change the state’s criminal law sentencing system to undo many of the changes made in 1995. The sweeping reform bill proposes to repeal sections of the New York penal code that require mandatory minimum sentences and eliminates mandatory sentences for those defendants who used to be classified as prior felony offenders (“two-strike”) or persistent felony offenders (“three strike”). In fact, the new law completely eliminates the use of those terms.
In proposing the changes to sentencing, the legislature recognized that mandatory minimums had led to mass incarceration of persons, 75% of whom were persons of color. Additionally, it concluded that the current sentencing laws had led defendants to forfeit their right to trial and plead to lesser offenses that included lower mandatory minimums. Because of the prosecution’s threat to charge them with crimes with high mandatory terms, defendants pleaded guilty to charges 98% of the time instead of going to trial. Mandatory sentencing gave prosecutors, not judges, the power to set sentences. With this legislation, a judge would be able to consider a number of factors in setting a sentence.
Besides the elimination of mandatory minimum sentences, the law would create for future cases a presumption that imprisonment is not the appropriate sentence. Prosecutors would have to overcome the presumption by showing that the goals of sentencing and public safety require imprisonment of the defendant. This is an incredible turnaround from the mandatory imprisonment sentences that resulted from the 1995 laws.
Sentencing for Felonies: No Minimum Terms
The new law requires a court to sentence someone for a felony, other than a violent felony, to an “indeterminate term,” that is, a range of time. For example, a sentence of two to six years’ imprisonment is an indeterminate term. Under the new legislation, instead of having a mandatory minimum term and a maximum term, the sentence is as the judge decides as stated below in section 60.03. If the court finds that imprisonment is necessary, the court may sentence the person to an indeterminate term of one year to not more than one-third of the maximum term imposed, or the court may impose a definite sentence of imprisonment and fix a term of one year or less. The new law would do away with all minimum terms.
For violent felonies, a person would be sentenced to a determinate term, for example, five years. Again, the sentence imposed would not be based on some arbitrary mandatory minimum but as the judge decides under 60.03. If imprisonment is necessary to achieve the goals of sentencing, the person would be sentenced based on the class of felony committed, with a minimum of one year and limits on the maximum years of imprisonment.
All references to second felony offenders, second violent felony offenders, persistent felony offenders, and persistent violent felony offenders are deleted under the new law. This would do away with the mandatory enhancements of sentences based on previous felony convictions.
Presumption Against Imprisonment
Another significant change to New York’s sentencing laws comes through the addition of penal code section 60.03, Presumption Against Sentences of Imprisonment, which governs all sentencing and states in part:
- There shall be a presumption against sentences of imprisonment in all cases which may be overcome only in extraordinary circumstances.
- For any felony, an authorized sentence includes any sentence other than incarceration or a definite sentence of incarceration. The court may fix such authorized sentence for one year or less.
Overcoming the Presumption
Before a court may impose a sentence of imprisonment, it must hold a hearing to determine whether the prosecutor has overcome the presumption against incarceration. To do this, a prosecutor must show that no other means besides imprisonment exist to address the unlawful behavior and promote community safety.
At the hearing, the court hears testimony from witnesses and considers relevant evidence to make its decision. Factors relating to the crime, the harms of imprisonment, the cost to the state of incarceration, and the defendant’s particular circumstances are relevant to this determination. Importantly, the judge may not consider testimony of the defendant’s “prior bad acts.” The decision on imprisonment is made based on the circumstances of the charged crime.
If the prosecutor overcomes the presumption against imprisonment, the court must impose the “minimum term of imprisonment necessary” to achieve sentencing goals. If the presumption is not overcome, the court will impose a sentence that does not include incarceration.
Other Significant Changes
Besides eliminating minimum terms, creating a presumption against imprisonment, and doing away with second felony offenders and persistent felony offenders, the new law would make the following changes:
- Before a person on post-release supervision could be confined in a correctional facility, including a residential treatment facility, the court must hold a hearing.
- Lifetime probation would be eliminated.
- When a person is sentenced to probation, the term could be any term but no longer than five years, eliminating the mandatory three-, four-, or five-year term.
- The probation term for Class A felony drug offense would change from lifetime probation to any term of probation. Class B felony probation could not exceed 25 years.
- Deletes specific sentences for hate crimes and felony hate crimes.
- Assignment to a residential treatment facility would no longer be applicable to persons on parole or conditional release.
The new laws would radically change the way newly convicted defendants are sentenced. But what about those sentenced under the old, harsh sentences? New York has legislation pending that would allow a court to review these old sentences and, in many cases, reduce the sentence or release the defendant outright. This law is discussed below.
- S.7871: Eliminate Mandatory Minimums
- S.7872: Second Look Law
- S.7873: Earned Time Act
S.7872: Second Look Law
Recognizing that the sentences of many incarcerated individuals based on the old laws were unfair or severe in relation to the crime, the New York legislature is also proposing to review and, in some cases, reduce those sentences. The Second Look law would allow persons already imprisoned to apply to have their sentences reduced. This permits a court to take a “second look” at the sentence previously imposed. The proposed law “seeks to address the harms caused by overly harsh sentences, including those required by mandatory minimums,” by allowing a court to determine whether the initial sentence should be reduced in the interest of justice.
Persons Entitled to Apply for a Reduction
The Second Look law would apply to a person confined in a Department of Corrections Institution and who has served the lesser of:
- 10 years of their sentence;
- one-half of the minimum term of an indeterminate sentence for which the minimum term was 10 years or more; or
- one-half of a determinate sentence where the sentence was ten years or more.
Even a person who does not meet the criteria above may apply for a reduction in sentence if the prosecutor consents.
The Application
An application for a reduction of sentence is made to the court. The applicant may include affidavits, letters, declarations, records from the Department of Corrections and Community Supervision, or any other written or electronic material. A person seeking a sentence reduction is entitle to appointment of counsel to assist in the application.
Applications are randomly assigned to a judge for determination, but the judge cannot be same judge who imposed the sentence. This ensures an unbiased second look at a sentence.
Factors to Be Considered in Resentencing
The new law lists the factors that a court must consider in determining whether to reduce the sentence. These include:
- The history and characteristics of the applicant
- Any history of abuse, trauma, or involvement in the child welfare system
- The potential benefits to children and family members of reunification with the applicant
- Demonstrated rehabilitation
- Incarceration records
- Efforts to participate in any educational, therapeutic, and vocational opportunities
- The circumstances of the offense, including anything that would diminish the applicant’s culpability (responsibility for the crime)
- Doctors’ or other professionals’ reports on the applicant’s physical or mental health
- Statements by a victim of the crime or the victim’s family
- Any evidence that the sentence was enhanced because the defendant exercised his/her right to trial
Requirement and Presumption of Sentence Reduction
The proposed legislation calls for more than just a consideration of resentencing. The new law would require a judge hearing an application to reduce the term of imprisonment if the applicant meets the criteria for consideration and the court find that it is in the interest of justice to reduce the sentence. Going even further, the law would create a presumption that persons 55 or older have their sentences reduced. Likewise, if a person committed the offense when he or she was 25 or younger, that person is presumed to be entitled to a reduction in sentence.
In reducing a sentence, a court is required to reduce the sentence to such an extent that the applicant will be eligible for immediate release from prison, unless other factors weigh against immediate release.
Taken together, all the provisions and presumptions for reduction of sentences may undo some of the effects of many years of unfair and harsh sentencing.
- S.7871: Eliminate Mandatory Minimums
- S.7872: Second Look Law
- S.7873: Earned Time Act
S.7873: Earned Time Act
A third bill introduced in the New York legislature would drastically change the way “good-time credits” and “merit-time credits” are earned and applied. It used to be that such credits were discretionary with the Department of Corrections and Community Services; the inmate had no right to earn such credits, and credits could be canceled, withheld, or forfeited for bad behavior. Under the Earned Time Act, the Department must allow an inmate to earn both good-time credits and merit-time credits, and the circumstances under which credits can be withheld or forfeited are limited.
Good-Time Credits: Reducing the Maximum Term or Term of Imprisonment
Good-time credits, or “time allowances,” are credits that an inmate earns through, for example, good behavior, efficient and willing performance of duties assigned, and progress and achievement in assigned treatment programs. The credits earned reduce the maximum time that the inmate must serve (for indeterminate sentences) or the term imposed by the court (for determinate sentences).
The Earned Time Act would increase the good-time credit that an inmate may earn; for a person serving an indeterminate term, good time can be credited up to one-half of the maximum term imposed. For a person serving a determinate term, good time can be credited up to one-half of the term. The Act significantly increases the amount of good time that can be earned, reducing the time a person must spend in incarceration.
Prior to the Act, credits earned could be taken away for certain misbehavior. The Act would provide that at the end of a calendar year, the credits that an inmate earned become “vested” or permanent. They could not be forfeited, canceled, or withheld. Credits earned but not yet vested could be taken away only for a violation of institutional rules and only after the violation is established at a hearing.
Merit-Time Allowances: Reducing the Minimum Term or Term of Imprisonment
Merit time allowances under the new Act would be earned by an inmate who obtains or completes:
- a general equivalency diploma
- an alcohol and substance abuse treatment certificate
- a vocational trade certificate
- at least eighteen credits in a program registered by the state education department from a degree-granting higher education institution
- at least four hundred hours of service as part of a community work crew
- one or more “significant programmatic accomplishments”
Merit time further reduces the amount of time that an inmate must serve by crediting those inmates serving an indeterminate sentence with time against the minimum term that must be served. Merit time can be used to reduce the minimum term up to one-half of the minimum imposed by the court.
The Act would also allow those serving a determinate term to earn merit-time allowances that would be credited against the sentence imposed to reduce the sentence by up to one-quarter of the term. This reduction is in addition to the reduction for good-time credit.
The Earned Time Act also provides that:
- allowing an inmate to earn merit time is mandatory
- earning merit time applies to all incarcerated persons, regardless of the crime committed
- merit time cannot be canceled
- if the institution in which the inmate is incarcerated does not provide opportunities for every incarcerated person to earn merit time, the merit-time allowance would be automatically credited against the person’s sentence
One other important aspect of the Earned Time Act is that its provisions relating to merit time would be applied retroactively. Persons serving indeterminate or determinate sentences on the effective date of the Act would be entitled to have credit for merit time applied against his or her sentence.
The Earned Time Act seeks to encourage incarcerated individuals to pursue personal growth and to provide meaningful opportunities to do so, furthering the goal of rehabilitation. It encourages positive behavior and rewards an inmate’s pursuit of education and skills necessary to reintroduction into society, reducing recidivism.