Punctuating the Sentence: Prison Terms Re-Examined

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The future of a pair of provocative criminal justice issues – parole for felons, and New York state’s strict drug laws – remains in the air, as a commission proposing sweeping prison sentencing changes announced it was split on two fundamental issues.

A report released last week by the Commission on Sentencing Reform opened the door for a pitched debate as the panel heads toward public hearings on the first comprehensive revision of the New York Penal Law in more than three decades. The Commission recommended effectively ending parole for most crimes, but three of the 11 commissioners did not support that view. And because commission members were unable to reach consensus on whether mandatory minimum prison sentences are appropriate for drug offenders, the panel largely put off discussion over whether to amend the Rockefeller drug laws.

Gov. Spitzer launched the commission in March to wrestle with issues that have been in the spotlight for years. From former governor George Pataki in 1995 to mayoral candidate Mark Green in 2001, politicians have called for severely restricting or ending parole. And opponents of the Rockefeller laws—named for Gov. Nelson Rockefeller and widely considered too severe—have been demanding reform for years.

The state’s last comprehensive revision of the Penal Law was in 1967; in the years since, the criminal statutes have evolved into an unwieldy web of convoluted and sometimes contradictory language. For example, there are no fewer than 11 different provisions for sentencing repeat offenders. Besides making it hard for victims, defendants and even lawyers to know what the law means, the dense language can deliver perverse results: A law passed in 2005 to punish crimes against police officers can actually treat a first offender more harshly than a recidivist.

One quirk of the Penal Law is that it calls for determinate sentences for some crimes and indeterminate sentences for others. A determinate sentence is for a fixed amount of time in prison, such as 10 years. An indeterminate sentence is a range, such as five to 15 years. Inmates serving indeterminate sentences are eligible for parole once they’ve served the minimum. Until they reach the release date linked to their maximum sentence, the State Parole Board decides when they get out. That decision can come anytime during a period spanning years or even decades.

The commission thinks that uncertainty is a problem. “Everyone, including the defendant and the victim, is left to guess when the defendant will be released,” reads the commission’s report, which calls for New York to switch to an almost totally determinate sentencing structure. While parole officers still would supervise inmates released early for good behavior, the State Board of Parole would no longer have a say in when most felons get out. (The only exceptions would be for top felonies like second-degree murder, for which people can be sentenced to terms such as 25 years to life.) The commission is still considering changes to the lengths of prison sentences to complement the proposed move to determinate sentencing.

George Alexander, chairman of the Board of Parole and a member of the sentencing commission, thinks the move is a mistake. The chance for early release is a major incentive for prisoners to participate in rehabilitative programs, he says. “Simply put, if an inmate’s programming bears little or no relation to his or her release, what motivation is there to have them participate in programs?” Alexander writes in a dissent to the commission’s report. Two other commission members also dissented but are not identified.

Disagreement among the commissioners was apparently even wider when it came to the Rockefeller Laws, measures signed by then-Gov. Rockefeller in 1973 that imposed mandatory prison sentences for possessing or selling as little as a few ounces of drugs. Reforms later in the 1970s and earlier this decade relaxed the laws somewhat, but defendants still face certain imprisonment if convicted of a first-time, Class B drug felony like possessing any amount of drugs “with intent to sell.”

Critics say the laws are unduly harsh, ignore the value of drug treatment and result in the incarceration of thousands of mostly black and Hispanic defendants. They also say the laws do little to target drug kingpins. “Most prisoners serving sentences for drug crimes are people who possess drugs for their own use, low level sellers, or couriers,” says a report by the Drug Policy Alliance.

But prosecutors defend the Rockefeller laws, linking them to today’s lower crime rate. Bronx District Attorney Robert Johnson testified before the commission that while the voices crying for drug law reform speak loudly, his office hears from people in tough neighborhoods complaining about drug dealers. “The amount of violence that is around drug sales cannot be minimized,” Johnson said. Prosecutors also claimed that the tough Rockefeller laws help them convince low-level dealers to identify their suppliers.

The panel was divided about what, if anything, to do about the drug laws, so it deferred a decision, saying it wants to study the issue further. “The Commission was unable to complete its review of these issues and fully debate the merits of the various arguments for and against additional drug law reform,” its report reads, adding: “It will be challenging to reconcile these opposing views.” The commission did recommend improving drug treatment options and allowing judges to waive mandatory minimums in cases where the judge, prosecutor and defense attorney all agree on an alternative sentence—but that effectively gives DAs veto power over whether someone can avoid prison.

After 34 years of experience with the Rockefeller laws, critics don’t believe more study is what’s needed. In a statement, New York Civil Liberties Union executive director Donna Lieberman chided the commission for failing to address the “racial bias and inefficiency caused by the Rockefeller Drug Laws,” adding, “It is disappointing that, after nine months of work, the commission is silent about this clear blight to our justice system.”

Some critics are especially disturbed by the prospect of state law shifting to determinate sentences while still requiring mandatory minimums. “Mandatory sentencing takes discretion away from the judges. Determinate sentencing takes discretion away from the Parole Board,” says Robert Gangi, executive director of the Correctional Association of New York. “You have created this one-size-fits-all system for administering justice.”

In other proposals, the commission recommended expanding the list of crimes where victims are entitled to weigh in on sentencing, better targeting of prison programs to individual inmates, and the use of alternative sanctions for parole violators who are returned to state prisons for breaking parole rules—but not for committing a new crime.

No firm timetable is set for the commission’s final report, although it’s not likely to be complete before winter’s end, according to the State Division of Criminal Justice Services, whose commissioner, Denise O’Donnell, served as chair. Other members are state leaders in criminal justice and court administration, lawyers and elected officials. Public hearings are planned for New York City and elsewhere (see below). Gangi says, however, that the commission is too beholden to prosecutors to push real reform. “The lesson for us as advocates of drug law repeal is to no longer focus our efforts on the commission, but to focus our efforts on the governor and the legislative leaders,” he says.

Striking a different note is Richard Koehler, a former three-star NYPD chief who was the city’s correction commissioner during the 1980s when crime was rampant. Now a labor lawyer, Koehler says the decline in crime is an argument against tinkering with any aspect of the state’s sentencing guidelines. “Everything they’re looking at—whether it’s crime, whether it’s recidivism—is working,” he says. “They forgot how bad it was.”

– Jarrett Murphy

Public hearings on the sentencing commission’s recommendations are scheduled for Tuesday, November 13, from 9:30 a.m. to 4:30 p.m. at the New York City Bar Association, 42 W. 44th Street, Manhattan. Written testimony can be submitted no later than one week after the hearing dates to Patricia.Greco@dcjs.state.ny.us.