Why We Need Transparent Sentencing


Criminal sentencing in New York State is opaque and confusing. It is the result of years of ad hoc and piecemeal amendments that have contributed to a sentencing structure in which sentences for violent crimes, sex offenses and drug crimes are determinate, that is, fixed by the judge at sentencing; while those for non-violent offenses are indeterminate, with the date of the inmate's release determined by the Parole Board.

Each of the last two times state legislators in New York considered felony sentences—in 1995 and 2009—they chose to convert from indeterminate to determinate sentencing.

This week, New York State Chief Judge Jonathan Lippman proposed that the legislature move the state substantially further toward a fully determinate sentencing system.

Judge Lippman's proposed bill, which has been submitted to the legislature in Albany, the state capital, for action, is based on a series of recommendations made to him by the Permanent Commission on Sentencing that he established in 2010. Their report, following two years of deliberations and input from stakeholders including defense attorneys, prosecutors and advocacy organizations, urges the state to reform sentencing in several important ways.

First, the proposal calls for all remaining crimes not subject to determinate sentences to become determinate. The only crimes the Commission did not recommend for determinate sentencing are the homicides for which an indeterminate term with a maximum of life imprisonment is required. The Commission believes a person serving a life term should be periodically reevaluated.

The Commission offered time ranges for the felonies to become determinate, based on research into the actual time served by prisoners between 2000 and 2012. The Commission believes that actual time served reflects an implicit policy of the state as to how long is appropriate for the crimes involved.

The maximum terms proposed by the Commissioners “capture” the time actually served by the vast majority of all prisoners released during the first decade of the century. According to the Pew Public Safety Performance Project, New York prisoners serve some of the longest prison time in the nation.

The Commission concluded that to set maximum sentences longer than current time served would lead to increased prison populations, a result the Commission does not believe is desirable.

For example, the bill submitted to the legislature would set 12 years as the maximum determinate term for a Class B non-violent felony as compared to the current 8 1/3 to 25 allowed. Class E non-violent felonies would be subject to a maximum determinate term of not more than 2 ½ years as compared to the current allowable maximum of 1 1/3 to 4 years. (Felonies in New York are classified from least serious Class E, to most serious Class A offenses.)

Because the crimes included in the felony classes being addressed vary so widely, the Commission believed that several of the crimes should be reclassified to reflect their true seriousness. For example, Promoting Prostitution in the First degree, now a non-violent felony Class B offense, would become a violent felony offense Class C. Similarly, Intimidating a Victim or Witness 2d degree is moved up from a Class D non-violent felony to become a Class C non-violent felony.

Such a change insures that persons convicted of these serious offenses would receive sentences appropriate to their seriousness.

The Commission heard from individuals who asserted that victims often feel “betrayed” when an individual receiving an indeterminate term is released at the expiration of the minimum term. Commission members recognized that those prisoners sometimes feel similarly betrayed if, after complying with all the prison rules, they are denied release at the end of their minimum term.

Victims told the Commission that having to appear before the Parole Board on multiple occasions to make their feelings known each time a prisoner was eligible for release was exhausting and traumatic. The Commission took note that over the years, parole release rates have fluctuated depending on who the Governor was.

Justice demands that how long similarly situated prisoners serve for a crime should be the same, no matter when they are eligible for parole. Sentences should not be dependent on the vagaries of electoral politics.

The Commission restored some of the judicial discretion taken away in recent years by mandatory minimums superimposed on the original 1967 indeterminate sentencing structure. Chief Judge Lippman's bill recommends that alternative sentences to local jails be available to Class C felons, and that all authorized felony sentences be available as well to Class D and E second time felons.

Finally, taking note of recent research about what works in corrections, as well as evidence that long parole terms are not productive of public safety, the proposal calls for post-release supervision terms of no longer than three years for most felonies, and allows sentencing judges to set post-release supervision terms as short as one year.

Determinate sentences are transparent. They allow all the parties to predict with certainty the actual time an offender will serve in prison, and they allow for better and more precise planning for reentry leading to better outcomes.

Determinate sentences also facilitate plea negotiations by providing certainty to defendants, victims, prosecutors and defense attorneys. In the absence of empirical evidence that we can effectively distinguish the offender who is truly rehabilitated from those who merely “talk the talk” there is little reason to retain discretionary parole. As the New York Times wrote in 2014 “…parole decisions are inconsistent and largely unrelated to what a person has accomplished while incarcerated.” This proposal gives prisoners a real incentive to participate in rehabilitative programming because they always benefit from the time off they earn, unlike the current reality.

There will be differences of opinion about how long prisoners should serve. How much is enough and how much is too long are important public policy questions that deserve serious debate and consideration. With the proposal put forth this week, the Chief Judge begins that discussion.

It is a serious and carefully constructed proposal, and it deserves thoughtful debate. Ultimately it will be up to the elected representatives of the people, legislators and the Governor, to determine what the appropriate sentence lengths should be. Let the debate begin.

Martin Horn is executive director of the New York State Sentencing Commission, and a distinguished lecturer at John Jay College. He welcomes readers' comments.

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