N.Y. Judicial Chief: ‘Return Judging to Our Judges’



UPDATE: Wednesday, May 27, 2015

New York State Chief Judge Jonathan Lippman said today that a proposal to eliminate indeterminate sentencing in the state “will benefit victims and offenders.”

“The crux of the proposal is the elimination of indeterminate sentencing for most crimes in our state,” Lippman said at the proposal’s announcement Wednesday at the John Jay College of Criminal Justice in New York City. “With these reforms, we will return judging to our judges, where it properly belongs.”

New York judge Juanita Bing-Newton, who was on the commission, said the goal is not to be soft on crime, but to clear up many of the state’s more confusing statutes.

“To be tough on crime doesn't mean you have to be dumb about the process,” Bing-Newton said.

Manhattan District Attorney Cyrus Vance, Jr., also a member of the commission, said he endorses the proposal because it “eliminates some inexplicable inequities.”

“I evaluate everything with two questions: ‘Is this going to make us safer? And is this going to enhance fairness?'” Vance said. “I think this achieves both goals”


A commission examining New York State's sentencing laws recommended Wednesday that the state eliminate the use of indeterminate sentences, in which judges remand offenders to prison without setting a release date.

The recommendation, which will be presented to state legislators as part of a package of sentencing reforms, puts New York at the center of continuing efforts across the nation to rethink the “tough on crime” approaches of previous decades that have resulted in massive increases in penal populations.

In its report, the New York State Permanent Commission on Sentencing calls the state's present approach to sentencing “ad hoc and piecemeal.”

Prison sentences in New York were once all “indeterminate.” Judges applied minimum and maximum terms but the actual time served for offenses was left intentionally ambiguous, because it was felt that parole authorities were best able to determine when a prisoner was sufficiently rehabilitated to earn early release.

Members of the commission noted in a panel following Lippman’s announcement that the state has been moving “incrementally” toward the use of determinate sentencing for two decades.

In 1995, legislators decided that felons convicted of a second violent offense should get fixed sentences (which still allowed them to use “good time credits” earned during imprisonment to win early release). This was later extended to first-time violent offenders, drug offenders and non-violent sex offenders. In 2009, the legislature replaced the punitive so-called “Rockefeller” mandatory minimum drug terms with shorter, determinate sentences.

Nevertheless, the vast majority of those sentenced to indeterminate terms in New York's prisons today are non-violent offenders, a situation that has given rise to troubling inequities, the commission said.

“No one looking at our current laws can help but be dismayed at their incoherence and complexity,” commissioners said in the report. “Ours is a structure that cries out for reform.”

The report said determinate sentences would fulfill Lippman's goal of transparency in sentencing when he appointed the commission in 2010 and asked it to review the state's sentencing laws. The new guidelines would allow victims and offenders to predict the time an offender will serve, the report said, adding that it would also speed up trials by facilitating plea bargaining.

“Plea bargaining has a bad name in some quarters,” the commission acknowledged, but it pointed out that less than four percent of felony cases actually are resolved by trial.

“Right now, New York's sentencing system is a crazy quilt of different provisions that were added at different points in time,” said Martin Horn, the commission's executive director, during an interview with The Crime Report. “Everybody feels betrayed by the system, and it produces malcontent.”

Horn said the commission concluded that indeterminate sentencing creates frustrations for victims and offenders, as well as criminal justice officials.

Things get even more confusing when a defendant faces multiple charges that each result in indeterminate sentences, Horn said.

After prison, an inmate's indeterminate sentence also affects the number of years that an inmate remains on parole. But the commission says New York's parole system, in which the length of supervision is equal to the amount of time between an offender's release and his maximum sentence, is illogical.

“If the offender is sentenced to an indeterminate term of three to nine years and is released after six years, he is on supervision for three years … that means that if an offender earns no good time credit and serves his full terms (nine years), he his released to no supervision, even though his poor prison adjustment suggests that he may need supervision the most,” the commission wrote.

Among the commission's proposals is to limit post-release supervision to three years. Horn said.

Tthat's because a study of parole violations found they tend to take place in the first three years.

“There's no evidence of an increased public service for more than three years,” Horn said. Adding that some former inmates can be on parole for more than a decade, and are at risk throughout that for getting sent back to prison for technical violations.

In addition to limits on post-release supervision, the commission is also proposing changes that would shorten the potential sentences for many types of crime.

Horn said the commission examined 10 years of sentencing data and found that it's very rare for inmates to serve the maximum term, or even through their “conditional release” dates, typically two-thirds of the way through their maximum terms.

The commission's recommendations on sentencing length are based on the amount of time inmates actually serve, instead of the potentially lengthy terms initially imposed.

“We basically say that historical practice has defined what the reasonable sentence length is … and this (was defined) during a time of crime decline,” Horn said.

The 21-member commission was co-chaired by New York District Attorney Cy Vance, Jr and Judge-elect Derek Champagne of the Franklin County (NY) Family Court.

Members of the commission will present their findings and recommendations at a special session tomorrow at John Jay College of Criminal Justice.

Graham Kates is deputy managing editor of The Crime Report. He welcomes readers' comments. He can be found on Twitter, @GrahamKates.

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