ABKLaw IN THE NEWS: HON. BARRY KAMINS (Ret.) New York Law Journal / Law.com: “Sentencing Reform: The Next Criminal Justice Battleground”

#ABKLaw IN THE NEWS: HON. BARRY KAMINS (RET.) New York Law Journal / Law.com: Sentencing Reform: The Next Criminal Justic Battleground

Three bills have been introduced which would be transformative and, if enacted, would constitute the most comprehensive overhaul of sentencing laws in the last 50 years. In the midst of a bail reform backlash, it remains to be seen whether the Legislature will enact some or all of the above bills this session.

Over the past few years, battles have been fought in the Legislature on bail reform, discovery and parole reform; in the current session a new battle may be looming over sentencing reform. Three bills have been introduced which would be transformative and, if enacted, would constitute the most comprehensive overhaul of sentencing laws in the last 50 years.

Over half a century ago, the current Penal Law was enacted, bringing with it a refreshing simplicity in its sentencing provision. When the Penal Law became effective on Sept. 1, 1967, only two crimes carried a mandatory sentence of imprisonment—murder and kidnapping in the first degree. Since that time, an increasing amount of legislation was enacted to mandate and lengthen incarceration for certain groups of crimes. One commentator has opined that these sentencing statutes “have become a labyrinth not easily traversed by even the most experienced practitioner of the criminal law.” Donnino, Practice Commentary, PL 60.00.

At the outset, the Penal Law contained an indeterminate sentencing structure that allowed for the rehabilitation of a prisoner. This model was based on the theory that everything that needed to be known about an offender could not be known at the time of sentencing. Thus, while a minimum term of imprisonment was being served, the prisoner was working towards a parole release. If the offender was denied parole release after the minimum term, good time off the maximum sentence would provide a continued incentive for good behavior in prison.

The indeterminate model, however, lost favor with legislators and several Commissions called for the adoption of a determinate model with the goal of achieving proportionality and “truth-in-sentencing.” Legislators were drawn to that model because it allowed one to predict with reasonable certainty the time an offender will serve; for offenders and crime victims, it was argued, predictability is desirable.

The federal government provided additional incentives for the adoption of determinate sentencing by passing the Violent Crime Control and Law Enforcement Act of 1994. By adopting “truth-in-sentencing” laws, or determinate sentencing, New York received over 50 million dollars in federal funds.

Under current sentencing laws, there is a requirement of mandatory imprisonment for most violent felonies (with some exceptions at the lower range) and for the more serious non-violent felonies. In addition, there are provisions for mandatory minimum sentences that are fixed by statute.

In a recent national survey of attorneys, prosecutors and judges that was taken to determine the reason for a reduction in jury trials over the last few years, the dominant perceived source of decline was mandatory minimum sentences. Diamond and Salerno, Reasons for Disappearing Jury Trial: Perspectives from Attorneys and Judges, 81 La. L. Rev. (2020). A similar survey conducted by the New York State Association of Criminal Defense Lawyers (NYSACDL) produced similar conclusions. The New York State Trial Penalty: The Constitutional Right to a Trial Under Attack, 2021.

According to those who conducted these surveys, mandatory minimum sentences provide prosecutors “with the leverage to extract guilty pleas under the threat of vastly increased punishment upon those who assert their rights [to go to trial].” NYSACDL survey, at 3.

State Senator Zellnor Myrie has introduced a bill—the Eliminate Mandatory Minimum Act—that would create a sea change in New York sentencing. Senate Bill S7871. In his memo in support of the legislation, he argues that mandatory minimum sentences have contributed to the extremely high percentage of guilty pleas in New York, currently at anywhere from 96 to 98%, and that these harsh sentences “transfer sentencing power from judges to prosecutors and give them unfair and overwhelming leverage in plea negotiations.” Id.

As a result, the legislation creates a “presumption against sentences of imprisonment” and permits a court to impose a non-incarceratory sentence for any felony. It should be noted however, that judges would still be authorized to impose incarceratory sentences and could impose the same sentences that they could have imposed prior to the enactment of the legislation. The critical difference, however, is that the legislation would remove the leverage that prosecutors have in obtaining plea agreements which a court may find unfair or overly punitive.

Under current law, if a prosecutor offers a plea agreement on a lesser count of an indictment and a court views the proposed sentence as excessive, it has no authority to require the prosecutor to improve the offer. Under the proposed legislation, however, a defendant could plead guilty to the top count of the indictment and the court could impose whatever sentence the court deems appropriate, e.g., a lesser period of incarceration than offered by the prosecutor or even an alternative to incarceration. Thus, as Senator Myrie’s memo notes, the legislation lessens the possibility of prosecutorial abuse by eliminating the ability of a prosecutor to coerce an overly harsh prison sentence as part of a plea agreement.

In this manner, the legislation would restore to judges the unfettered discretion they had when the Penal Law was first enacted, by allowing them to choose either a prison sentence or alternatives to prison when sentencing a defendant convicted of a crime.

The legislation also provides a court with this same discretion after a defendant has been convicted after trial. In those instances, a defendant could request the court to conduct a hearing, provided under the new law, to “determine whether the presumption against incarceration has been overcome.” Id. at 60.03(3). At this hearing, the prosecutor must establish, by clear and convincing evidence, that there are “no means to address the defendant’s unlawful behavior and promote community safety other than imprisonment.” Id. In making its determination, a court would then consider a number of factors enumerated in the statute, including mitigating circumstances that bear on the manner in which the crime was committed and other factors that a court normally considers in determining an appropriate sentence.

A second bill, the Second Look Act (S.7872), would permit judges to review and reconsider lengthy sentences of individuals who have been incarcerated for at least 10 years. On a national level, this legislation has gained momentum; four states and the District of Columbia have passed similar bills and 22 other states are considering similar legislation. Last year New York enacted a type of “second look” legislation when it amended the Criminal Procedure Law to afford those defendants who are not granted youthful offender status a second chance to receive that benefit. Under the new law (L. 2021, Ch. 552, eff. 11/2/2021), a person who is initially denied youthful offender treatment, and who has not been convicted of a crime for at least five years since his sentence, would have the opportunity to apply to the sentencing court for a new determination.

Although appellate courts can consider the excessiveness of a sentence, currently there is no mechanism that permits a court to reconsider a sentence after all appeals have been exhausted. This Act would provide individuals serving lengthy sentences with the opportunity to convince a court that such a sentence is no longer appropriate based on the rehabilitation of an inmate while in prison.

Individuals may apply for a sentence reduction when they have served (1) 10 years of their sentence, or (2) one-half of the minimum term of an indeterminate sentence where the maximum term equals or exceeds 10 years, or (3) one-half of a determinate sentence where the sentence equals or exceeds 10 years, whichever is less. A prosecutor also has discretion to deem an individual eligible to apply for a sentence reduction who is otherwise ineligible under the statute.

The statute provides that the application for a sentence reduction be assigned to a judge other than the judge who imposed the original sentence. If the application is denied, the inmate must wait at least three years before filing another application. The inmate is also provided a right to appeal a denial of the application for a sentence reduction; if a sentence is reduced, the inmate can still appeal on the ground that the term of the new sentence is harsh or excessive. In making its determination, a court can consider any evidence pertinent to the issue of a sentence reduction including any plea offers made prior to trial. Should a court reduce an inmate’s sentence, it may impose a sentence less than the minimum sentence required by Article 70 of the Penal Law.

Finally, the statute creates a rebuttable presumption in favor of a sentence reduction if an eligible applicant is 55 years of age or older or the applicant was under the age of 25 on the date the crime was committed.

The third proposed sentencing reform permits a reduction of an inmate’s sentence by increasing “good time” and “merit time” allowances. Earned Time Act, S. 7873A. “Good time” credit is given to inmates for complying with institutional rules and performing duties assigned to them. Such time comes off the maximum term of an inmate’s sentence. “Merit time” credit is given to inmates who participate and complete specific programs and those allowances come off an inmate’s minimum sentence.

Under the proposed new law, good time allowances would be increased to one-half of an inmate’s maximum sentence. Merit time allowances would be increased to one-half of the minimum time for those serving an indeterminate sentence, and one quarter of the minimum term for those serving a determinate sentence. Thus, this law will dramatically increase the opportunity for incarcerated individuals to earn time off their periods of incarceration.

The above group of bills, if enacted, would constitute a sea change in New York’s sentencing laws. Almost a half century ago, the Appellate Division, First Department, reflected on the sentencing phase in a criminal case: “The proper imposition of sentence is probably the most difficult problem with which a trial judge is faced. The difficulty is not alleviated by the insistence of those who believe, simplistically, that long and severe sentences will provide the panacea for burgeoning crime … It would of course be, far easier to couple a particular punishment automatically with a particular crime, but such a sentence … would not, in most instances, be beneficial to society.” People v. Golden, 41 A.D.2d 242 (1973).

In the midst of a bail reform backlash, it remains to be seen whether the Legislature will enact some or all of the above bills this session. Criminal justice battles, however, are frequently waged over several legislative sessions, and the battle to restore discretion to the judiciary in sentencing matters may have only just begun.

Barry Kamins, a partner at Aidala, Bertuna & Kamins and author of New York Search and Seizure (Lexis/Nexis 2020), is a former New York Supreme Court Judge.

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