The mandatory sentencing law passed as part of the state budget represents the most significant change to sentencing laws in two decades. It will increase the amount of time violent felons spend in prison while allowing certain nonviolent drug offenders to avoid jail time at a Seneca County drug treatment center. But critics say the act could overload the state's already crowded prison system
After restoring the death penalty and ending work release for violent felons earlier this year, Gov. George Pataki continues to make good on his promise to get tough on crime. Passed as part of the state budget, the recent Sentencing Reform Act increases sentences for all violent crimes and eliminates parole eligibility for repeat violent offenders. Many experts agree that the reforms mark the most significant sentencing changes in more than two decades.
The act also appears to offer an olive branch to those who have long desired a less punitive approach to low-level, nonviolent drug offenders by diverting them to a 90-day treatment program at the former Willard Psychiatric Center in Seneca County. According to Paul Shechtman, Division of Criminal Justice Services commissioner and the law's main architect, The act provides a two-pronged approach by keeping violent offenders in prison for longer while also providing a treatment alternative for certain nonviolent offenders. Shechtman says that longer mandatory sentences will enable New York to qualify for federal crime dollars under the truth in sentencing provision of the 1994 crime law. The provision stipulates that repeat violent offenders must serve 85 percent of their sentences.
Longer mandatory sentences are likely to increase pressure on the state's rapidly expanding prison system. When the Rockefeller Drug Laws and Second Felony Offender Laws were passed in 1973, the state prison population stood at 12,500. The laws attempted to combat the worsening drug crisis with tough mandatory sentences, though their main effect has been to fuel prison growth. By 1985, the number of inmates had climbed to 31,000. Today, nearly 69,000 inmates are incarcerated in state correctional facilities—31 percent more than the system's design capacity, according to the Department of Correctional Services (DOCS). Meanwhile, the annual operating budget for corrections has more than tripled over the past decade and now stands at $1.8 billion.
It is not just the total number of prisoners that has changed, but also the composition of that population. In the early 1980s, two-thirds of the prison population were violent offenders. Today, two-thirds are nonviolent offenders, and nearly 50 percent of all new commitments are drug offenders, says Sen. Catherine Abate (D-L, Manhattan), head of the Senate Crime and Corrections Committee and former commissioner of both the New York City Probation Department and the city's Department of Corrections.
The most recent reforms try to reverse this trend by streamlining the prison population. The administration believes that diverting nonviolent drug offenders to the new treatment center at Willard will create enough space to keep violent offenders in jail longer. While there is widespread agreement about the need to address the inundation of state prisons with nonviolent felony offenders, the details of the sentencing reforms have sparked considerable controversy.
Both sides agree that the changes are going to have an enormous impact on the criminal justice system. All categories of violent felons will face longer jail terms. For example, in the past, a repeat offender convicted of armed robbery might serve a minimum of six to 12 years to a maximum of 12 1/2 to 25 years, and would be eligible for parole after serving the minimum. Now that same offender would receive a sentence of 10 to 25 years and be required to serve six-sevenths of the sentence.
Critics charge that longer sentences will cause prison costs to skyrocket. The New York State Defenders Association (NYSDA), which says the new laws will affect about 8,500 offenders annually, estimates that over the next two decades, the state will be forced to build between 19 and 27 750bed facilities, whose combined construction and operating costs could reach $18 billion to $22 billion.
While these figures do not include the anticipated savings realized through the diversion of nonviolent offenders to Willard, it is beyond anyone's wildest expectations to think that enough people can successfully be processed and diverted to compensate for the increased incarceration of violent offenders, says NYSDA attorney Al O'Connor. Add to that the additional local cost of prosecuting, defending and adjudicating violent offenses since the raised stakes lead more criminal defendants to seek expensive jury trials rather than plead guilty.
Few details surrounding Willard were made clear at the time of the law's passage, and the question of who will be diverted to the facility and on what basis remains to be answered. According to DOCS, the 90-day treatment program at Willard's 750-bed facility will allow up to 3,000 inmates to be diverted annually. However, the diversion of any inmate requires district attorney approval. Charles Hynes, Brooklyn district attorney and president of the State District Attorney's Association, claims there is support for diversion among prosecutors, but he is still negotiating the details of the new policy with the governor's office.
Critics flatly deny that enough inmates can be diverted to compensate for the sentencing increases. O'Connor estimates that 4,000 to 6,000 nonviolent felons need to be diverted each year for the state to break even. While approximately 9,000 nonviolent offenders are committed to state prisons each year under the Second Felony Offender Law, the reforms will affect potentially only 1,500 of them. At the same time the government is substantially increasing sentences for violent offenders, it has failed to modify the Rockefeller Drug Laws and made only a slight change in the Second Felony Offender Law, states O'Connor. In addition, he adds that DOCS's estimate fails to take into account the fact that as many as one-third of the nonviolent felons diverted to Willard may be reincarcerated later for violating parole.
DOCS spokesman James Flateau maintains that engaging in such future projections is a fruitless exercise since the numbers related to sentencing and bed space can be gathered only from year to year. The new act will certainly not have any major impact for at least two or three years, by which time other major changes in the criminal justice system may have been made to compensate for whatever impact the act has had, if it has had any impact at all, Flateau says. While O'Connor and others agree that it will take a few years before the impact of longer sentences are felt, they emphasize the need to look further down the road when making major changes to the criminal justice system.
Cost is not necessarily politicians' central concern when it comes to crime. Many see Pataki's campaign pledges to reduce government and protect citizens against violent crime as distinct and not to be confused with each other. While Sen. Dale Volker (R-C, Depew), chairman of the Senate Codes Committee, maintains that enough nonviolent felons can be diverted to Willard to keep prison costs stable, he prefers to stress that a principle is involved. No longer will violent felons walk our streets with impunity and thumb their noses at our judicial system while law-abiding citizens are forced to stay behind locked doors, he says.
Tougher sentences for violent crime may reflect accurately the public opinion, but are lawmakers misjudging what people ordinarily consider violent? Bob Gangi, head of the Correctional Association of New York, a not-for-profit prison watchdog group, questions whether an unarmed burglar who steals from a person's garage during the day, without encountering anyone during the crime, should be treated as a violent offender. The suggestion here is not that these people are outstanding individuals deserving of social acclaim, Gangi says. But-the question remains: Should they be given longer prison terms and then be denied access to work release, a program that might aid them in their return to a crime-free life in the community?
Determinate sentences also will limit the ability of judges to consider mitigating circumstances when handing down their decisions. This is one reason why critics say the reforms present such a danger to the system's integrity. "By resorting to mandatory sentences, the act strips key players of their discretion, tilts the balance of power toward the state and undermines the basis of the adversarial system, says Scott Christianson, executive director of the not-for-profit New York State Coalition for Criminal Justice. This has been echoed by the statewide Association of Justices of the Supreme Court, which has voiced concern that the changes will curtail judicial discretion.
Equally disturbing, some say, is the increasing reliance upon a punitive approach to violent crime. The belief that by jacking up sentences crime will take care of itself repeats the mistake of the Rockefeller laws and will only worsen the revolving door system of justice we now have, Christianson says.
Not only will convicted felons face longer sentences, but rehabilitative programs are being rolled back Pataki has 'eliminated the college tuition assistance program and reduced the prison vocational education program. Significant cuts to substance abuse programs and alternatives to incarceration were proposed originally by the governor, but were restored largely due to pressure in the Assembly.
While Gangi argues that ending work release for violent felons is a major mistake, critics view it as a dangerous, ineffective device used to clear prisons for violent criminals. Sen. Michael Nozzolio (R-C, Seneca Falls), chairman of the Senate Crime Victims, Crime and Corrections Committee, points to the fact that several thousand inmates have escaped from work release programs, many of whom are still at large.
But, Gangi says, The records of the state's Division of Parole show that parolees convicted of the most serious violent offense have the lowest rate of reconviction. Moreover, he argues that eliminating the possibility of parole removes any incentive for prisoners to better themselves.
There is also considerable concern about the effect of the new laws inside prisons. Due to current overcrowding, DOCS has started to put two inmates in six-foot by eight-foot cells in nearly 1,000 cells—originally designed for one person—at maximum security prisons throughout the state. Known as double celling, this practice is opposed by an array of correctional, medical and legal organizations. It is currently the subject of several legal challenges, including a suit brought by Council 82, the union representing more than 20,000 corrections officers statewide. While experts cite the danger of violence and disease, DOCS Acting Commissioner Philip Coombe insists that double-celling can be managed safely.
If, as many critics charge, the sentencing changes reflect a hastily negotiated compromise, the selection of Willard as the site for the drug treatment center bears the most obvious mark of a political deal. In fact, Willard has been something of a political football since it became one of five psychiatric hospitals targeted to close under the Community Mental Health Reinvestment Act of 1993. But Nozzolio, whose Senate district stood to lose hundreds of jobs if Willard closed, managed to ensure that the center would remain open until a viable alternative use was found. When Pataki first mentioned nonviolent second felony offender reform earlier this year, Nozzolio, chairman of the Senate Crime and Corrections Committee, whose approval was deemed essential for any sentencing reform, convinced the governor to put Willard on the bargaining table.
Nozzolio, who previously opposed nonviolent second felony offender reform, denies any quid pro quo, arguing instead that the act's passage was due to the governor's ability to put the question of such reform in perspective. Previously there was too much focus on decriminalization of drug use, which clouded the whole issue, he says. Whereas now the issue has been refocused to keep violent offenders off the street for a longer time while promoting rehabilitation in a constructive way. Willard, which has an annual operating budget of $10 million, also received strong support from Council 82 in anticipation of new corrections jobs at the center.
Although nonviolent second felony offender reform long has been a goal of many downstate Democrats, judicial reform think tanks and prison advocacy groups, the diversion provision has been greeted with modest praise at best. Gangi argues that the choice of Willard is illogical. It makes much more sense to use the money assigned to Willard to support proven drug treatment programs located in or near the inner city communities where most prisoners come from and return to, he says.
The lack of enthusiasm stems partly from the manner in which the bill's details were hammered out. According to Abate, The bill was passed in the middle of the night behind closed doors, and without any attempt to involve key members of the criminal justice department, including judges and the defense bar.
Abate adds that she rejects the administration's argument that the changes were needed to enable New York to comply with federal truth-in-sentencing" guidelines. While there needed to be some increase in determinate sentencing, there is no evidence that New York had to go this far, this fast, she says.
In Abate's view, the diversion program leaves a string of unanswered questions, including the adequacy of the treatment, degree of parole coordination, extent of district attorney approval and availability of community resources following inmate release. Basically, we missed a great chance for meaningful nonviolent second felony offender reform, and instead were stuck with a short-sighted patchwork solution whose enormous social and economic impact will be felt for years to come, she says.
Assemblyman Daniel Feldman (D-Brooklyn), chairman of the Assembly's Correction Committee, who has been an outspoken supporter of nonviolent second felony reform for years, has expressed only qualified approval of the changes. While overall this is a step forward, a much better law could have been drafted if a non-partisan commission had carefully studied the issues and recommended changes instead of subjecting these questions to the vicissitudes of the political process, he says.
Feldman emphasizes that the sentencing reforms may be only temporary due to the existence of a 10-year sunset provision in the legislation. By the time its effect really begins to be felt the law will have reached its limit, he says.
Jonathan Hafetz is a free-lance writer based in Brooklyn.