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A06085 Summary:BILL NO A06085
SAME AS Same as S 2855
SPONSOR Aubry (MS)
COSPNSR Silver, Lentol, Weinstein, Farrell, Wright, Rivera P, Espaillat,
O'Donnell, Gottfried, McEneny, Weisenberg, Cook, Clark, Rosenthal,
Kavanagh, Scarborough, Pretlow, Peoples-Stokes, Benjamin, Perry
MLTSPNSR Barron, Bing, Brennan, Brodsky, Cahill, Christensen, Cymbrowitz,
DenDekker, Dinowitz, Glick, Heastie, Hooper, Hoyt, Jacobs, Jaffee,
Jeffries, John, Lavine, Lifton, Lopez V, Lupardo, Maisel, Millman,
Ortiz, Paulin, Peralta, Rivera N, Robinson, Russell, Schimel,
Skartados, Stirpe, Sweeney,
Amd SS2, 71, 851, 865 & 867, add S149-a, Cor L; amd SS1.20, 170.15, 170.40,
180.20, 210.40, 220.30, 410.91, 700.05, 160.60 & 450.10, rpld S410.91 sub 4,
add SS255.30, 440.46 & 160.65, CP L; amd SS296 & 259-i, add S837-s, Exec L; amd
SS211 & 212, Judy L; amd Pen L, generally; amd S1310, CPLR; amd S8, add SS97-j
& 97-k, St Fin L
Relates to drug law reform, drug treatment and crime reduction; relates further
to sentencing proceedings; sentences of parole supervision; combined law
enforcement and community strategy to eliminate street-level drug crime;
determinate sentences for certain drug offenses and the creation of new
offenses for criminal sale of a controlled substance to a child; trafficking
through a controlled substance organization; criminal possession of a weapon
while selling or attempting to sell a controlled substance; establishes the
crime reduction fund and the school drug abuse prevention fund.
A06085 Actions:BILL NO A06085
02/24/2009 referred to codes
02/25/2009 reported referred to ways and means
02/25/2009 reported referred to rules
03/04/2009 reported
03/04/2009 rules report cal.7
03/04/2009 ordered to third reading rules cal.7
03/04/2009 passed assembly
03/04/2009 delivered to senate
03/04/2009 REFERRED TO CRIME VICTIMS, CRIME AND CORRECTION
01/06/2010 DIED IN SENATE
01/06/2010 RETURNED TO ASSEMBLY
01/06/2010 ordered to third reading cal.423
01/19/2010 committed to codes
A06085 Votes:BILL: A06085 DATE: 03/04/2009 MOTION: YEA/NAY: 098/046
Abbate Y Cahill Y Englebr Y Hooper Y Maisel Y Powell ER Skartad Y
Alessi NO Calhoun NO Errigo NO Hoyt Y Markey Y Pretlow Y Spano Y
Alfano NO Camara Y Espaill Y Hyer-Sp Y Mayerso Y Quinn NO Stirpe Y
Amedore NO Canestr Y Farrell Y Jacobs Y McDonou NO Rabbitt NO Sweeney Y
Arroyo Y Carrozz ER Fields NO Jaffee Y McEneny Y Raia NO Tedisco ER
Aubry Y Castro ER Finch NO Jeffrie Y McKevit NO Ramos Y Thiele NO
Bacalle NO Christe Y Fitzpat NO John Y Meng Y Reilich NO Titone Y
Ball NO Clark Y Gabrysz Y Jordan NO Miller NO Reilly Y Titus Y
Barclay NO Colton Y Galef Y Kavanag Y Millman Y Rive J ER Tobacco NO
Barra NO Conte NO Gantt Y Kellner Y Molinar NO Rive N Y Towns Y
Barron Y Cook Y Gianari Y Kolb NO Morelle Y Rive PM Y Townsen NO
Benedet Y Corwin NO Giglio NO Koon NO Nolan Y Robinso Y Walker NO
Benjami Y Crouch NO Glick Y Lancman Y Oaks NO Rosenth Y Weinste Y
Bing Y Cusick NO Gordon Y Latimer Y O'Donne Y Russell Y Weisenb ER
Boyland Y Cymbrow Y Gottfri Y Lavine Y O'Mara NO Saladin NO Weprin Y
Boyle NO DelMont Y Greene Y Lentol Y Ortiz Y Sayward NO Wright Y
Bradley Y DenDekk Y Gunther Y Lifton Y Parment Y Scarbor Y Zebrows Y
Brennan Y Destito Y Hawley NO Lope PD NO Paulin Y Schimel Y Mr Spkr Y
Brodsky Y Diaz Y Hayes NO Lope VJ Y Peoples Y Schimmi NO
Brook-K Y Dinowit Y Heastie Y Lupardo Y Peralta Y Schroed Y
Burling NO Duprey NO Hevesi Y Magee Y Perry Y Scozzaf NO
Butler NO Eddingt Y Hikind NO Magnare Y Pheffer Y Seminer Y
A06085 Memo: BILL NUMBER: A6085
TITLE OF BILL : An act to amend the correction law, in relation to
drug abuse treatment in state prisons; to amend the criminal procedure
law, in relation to sentencing proceedings; to amend the executive
law, in relation to sentences of parole supervision and a combined law
enforcement and community strategy to eliminate street-level drug
crime; to amend the judiciary law, the penal law, the civil practice
law and rules and the state finance law, in relation to determinate
sentences for certain drug offenses and the creation of new offenses
for criminal sale of a controlled substance to a child, trafficking
through a controlled substance organization, and criminal possession
of a weapon while selling or attempting to sell a controlled
substance; to amend the state finance law, in relation to establishing
the crime reduction fund and the school drug abuse prevention fund;
and to repeal certain provisions of the criminal procedure law
relating thereto
PURPOSE OR GENERAL IDEA OF BILL :
To significantly reduce drug-related crime by addressing substance
abuse that often lies at the core of criminal behavior. The bill would
accomplish this goal by returning discretion to judges to tailor the
penalties of the penal law to the facts and circumstances of each drug
offense and authorizing the court to sentence certain non-violent drug
offenders to probation and drug treatment rather than mandatory prison
where appropriate. The bill will also strengthen in-prison drug
treatment and reentry services.
SUMMARY OF SPECIFIC PROVISIONS :
Drug Courts, Pre-trial Proceedings and Sentencing
The bill requires the designation of at least one drug court, with a
specially-trained judge, in every county of the state. Amendments to
the Criminal Procedure Law facilitate the transfer of certain criminal
cases to these courts. (Sections 12, 14, 27, 28)
In response to a request from the prosecution or defense, the court
may order that a defendant charged with a drug crime (Penal Law
Article 220 or 221) submit to an alcohol or substance abuse
assessment. The assessment would be conducted by a licensed
professional experienced in the treatment of alcohol and substance
abuse, or by a credentialed addiction and substance abuse counselor.
(Section 17)
The bill amends the Criminal Procedure Law concerning two evidentiary
presumptions in controlled substance cases. Existing law (CPL S
220.25) provides that, in certain circumstances, drugs found in a car
or room are presumed to be unlawfully possessed by every person in
such automobile or room. The bill changes this presumption to a
"permissible inference." The burden to prove knowing possession would
thus rest with the prosecution, but the jury would be able to infer
that the defendant knowingly possessed the controlled substance based
on his or her presence in the car or close proximity in the room.
(Section 46)
With regard to sentencing, the bill returns to judges much of the
sentencing discretion they had before the enactment of the so-called
Rockefeller Drug Laws, specifically: the discretion to sentence
certain non-violent defendants charged with first and second class B,
C, D or E felony controlled substance offenses to a local jail,
probation, or a "split" sentence (a sentence to local jail followed by
a period of probation supervision). Where probation is authorized,
violation of a term of probation supervision would result in the
imposition of sanctions that, for serious violations, could include a
state prison term up to the maximum statutory sentence. (Sections
29,31,32,34)
A conviction for certain specified offenses would disqualify the
defendant from eligibility for this alternative term of probation, a
jail term, or a split sentence. Conviction of the new crime involving
sale of a controlled substance to a minor would not qualify for
alternative sentencing. A second felony drug offender could not
receive an alternative sentence if he or she has a predicate felony
conviction for a violent felony offense, for sale of a specified
controlled substance to a minor, for the crime of possession of a
weapon while selling or attempting to sell a controlled substance, or
for anyone of a number of other specified crimes would disqualify the
defendant from the opportunity to receive such an alternative
(non-prison) sentence. (Sections 29, 31)
The available maximum sentences for controlled substance crimes (e.g.,
PL 70.70, subds; 2 a , 3 b ) are unchanged by this bill. The
legislation simply restores to judges the sentencing discretion judges
formerly had: to impose a local jail sentence, probation or a split
sentence on certain, specified class E, D, C or B drug offenders.
Thus, for example, any defendant convicted for a first-time class B
felony drug sale or possession crime could still be sentenced to up to
9 years in prison; any second time class B offender could be sentenced
to up 12 years in prison; and any second time class B offender with a
predicate violent felony conviction could be sentenced to up to 15
years in prison. The bill also does not change the court's existing
authority to impose consecutive sentences. (Sections 29, 31)
In cases involving certain defendants charged with class B, C, D or E
felony controlled substance offenses, the bill gives courts discretion
to sentence the defendant to the existing in-prison "Shock
Incarceration Program" operated by the Department of Correctional
Services. The defendant would serve six months in this military-style
boot camp prison. He or she would receive intensive, in-prison drug
abuse treatment and then be mandated to participate in additional drug
abuse treatment following release. (Sections 7, 8, 9, 10, 30)
The bill also gives courts the option to sentence certain persons
convicted of specified class D, class C and class B non-violent
offenses to the Department of Correctional Services Willard drug
treatment program. This sentence would include at least 90 days
imprisonment at the Department of Correctional Services Willard prison
facility (located near Seneca, New York), followed by supervision by
the Division of Parole and at least one year of post-release drug
abuse treatment. (Section 18)
CASAT (Comprehensive Alcohol and Substance Abuse Treatment) is an
in-prison drug and alcohol treatment program operated by the New York
State Department of Correctional Services. DOCS may currently enroll
an inmate in CASAT when the inmate is within two and a half years of
parole-eligibility or his or her determinate sentencing release date.
The bill would allow DOCS to enroll eligible inmates in CASAT who are
within three and a half years of their scheduled release date. The
bill also requires that alcohol and substance abuse counselors working
in the state's prisons be trained and certified by the state Office of
Alcoholism and Substance Abuse Services. (Sections 1-3)
The bill provides that the Department of Correctional Services shall
develop transitional services at all appropriate department
facilities, with the goal of facilitating the reentry of released
prisoners and thereby reducing recidivism and crime. It requires the
Department to assist prisoners unable to afford private insurance in
efforts to continue receiving prescribed medications and, where
necessary, enrolling in the Medicaid assistance program. (Section 5).
Unless determined to be inappropriate in an individual case, all
persons on parole, probation, in prison, or on post-release
supervision who have a documented history of substance abuse would be
required to participate in least one year of substance abuse
treatment. (Sections 25,33,34)
The bill authorizes judges to approve and/or recognize a defendant's
participation in a pre-judgment diversion program. A "diversion
program" is defined as an alcohol or substance abuse program approved
by the court after consultation with the local probation department
having jurisdiction, or such other public or private agency as the
court determines to be appropriate. Under current law, this same
definition is used to define the type of post-sentence program a judge
may order as a condition of probation. See CPL S 65.10 (2)(e).
Amendments to CPL SS 170.40 and 210.40 emphasize and encourage the
courts to consider using authority they already have: to dismiss a
drug charge in the interest of justice when the defendant has
successfully completed a diversion program. See generally People v;
Jenkins, II N.Y.3d 282 (2008). (Sections 11, 13, 15)
Bill section nineteen authorizes persons convicted of certain class B
controlled substance offenses to apply to the sentencing court for
conversion of a pre-2005 indeterminate (parole-eligible) sentence to a
new, fixed sentence consistent with the determinate sentencing grid
that was enacted in 2004 and took effect January 13, 2005.
Re-sentencing would not be considered for persons with certain
disqualifications, such as any conviction for a violent felony offense
or a felony sex offense. (Sections 19, 23)
The bill enacts procedures authorizing a judge, on motion of the
defendant with notice to the district attorney, to conditionally seal
a first-time drug felony conviction and no more than three drug
misdemeanor drug convictions if the defendant has remained crime-free
for a specified period or has completed a court-ordered treatment
program. Existing statutory requirements specifically barring
individuals convicted of such crimes from certain types of employment
or licensure would not be disturbed. (Section 21, 22, 23, 24)
New and Modified Crimes and Increased Sentences for Certain Offenses
Major drug traffickers are subject to strict penalties by the creation
of a new class A felony crime: "Trafficking Through a Controlled
Substance Organization." The penalty for conviction of this "kingpin"
crime is a mandatory indeterminate prison term of at least 15 years to
life, and up to 30 years to life. (Sections 35, 42, 43, 50)
The bill creates the new class B felony crime of "Criminal Sale of a
Controlled Substance to a Child." This elevates penalties for the sale
by an adult over age twenty-one of certain controlled substances to a
person under sixteen years of age (whether on school grounds or not).
The determinate prison sentence applicable to a class B felony noted
above (up to 9, 12 or 15 years in prison) is mandatory for this crime.
(Section 51)
The bill creates the new class C felony crime of "Criminal Possession
of a Weapon While Selling or Attempting to Sell a Controlled
Substance." This crime punishes a person who physically possesses a
loaded firearm, machine gun or disguised gun while selling or
attempting to sell a controlled substance. The crime is a violent
felony offense subject to a mandatory, five-year minimum determinate
sentence; the maximum term is up to fifteen years in prison.
(Sections 36, 37, 51.)
One of the key features of New York's drug laws is that many of the
most serious crimes are graded based on the weight of the substance
possessed, transferred or sold. Knowledge of the weight involved is
irrelevant. The initial 2004 drug law reform act increased the weight
thresholds for certain of the most serious cocaine and heroin
possession (class A-I and A-II) crimes. This bill in similar fashion
increases the weight thresholds for the class A-I and A-II controlled
substance crimes that were not adjusted in the 2004 law.
For example, unlawful possession of six hundred and twenty-five
milligrams of a hallucinogen (PL S 220.18 5 ) is a class A-II felony,
punishable by a determinate sentence of up to 10, 14 or 17 years. The
bill raises the minimum weight threshold for this crime to one
thousand, two hundred fifty milligrams, but retains the current
maximum prison terms of 10, 14 or 17 years. The class A-I felony grade
of this crime, PL S 220.21 (2), is punishable by up to 20, 24 or 30
years in prison.
Even after these changes, the weight thresholds for class A-I or A-II
felony possession or sale and the associated mandatory determinate
sentences in New York would continue to be relatively low: all such
class A-I and A-II quantities would remain small enough to fit in a
person's pocket, handbag or purse. (Sections 44-45, 47-48)
The bill eliminates parole eligibility for persons convicted of the
class B felony of Conspiracy in the Second Degree (PL 105. I 5) where
the crime that was the object of the conspiracy was a controlled
substance offense. Upon conviction, the person could be sentenced to a
determinate term, as noted above, of up to 9, 12 or 15 years in state
prison. (Section 38)
Quantifying Cost Savings: Developing Resources to Reduce Recidivism
The bill authorizes the State Comptroller to certify, on an annual
basis, the monetary savings resulting from decreases in inmate
admissions and length of stay generated by the enactment of the 2004
reform law, by the limited 2005 class A-II re-sentencing law and by
this bill. These funds would then be designated to fund drug
treatment, criminal justice and school drug prevention programs as
specified in the bill. (Sections 56-57.)
The bill also sets forth and establishes a pilot "Combined Law
Enforcement and Community Strategy Targeting Street-level Drug Crime
Program." Designed to work in partnership with law enforcement and
local social services agencies, the bill directs the use of
intelligence gathering, community relations strategies and advanced
crime mapping techniques (many of which are already available and in
use in the state) to target criminal justice resources (including
prosecutorial resources) toward high drug crime areas. The program
will also promote alternatives to unlawful activity in an effort to
reduce recidivism and help assure public safety in these communities
(Section 26.)
JUSTIFICATION :
New York has achieved great success in reducing the crime rate in
recent years, in part, by targeting heightened penalties on violent
felons. To achieve further dramatic success in reducing crime, our
state must make a concerted effort to eliminate the substance abuse
which lies at the core of most criminal behavior. Expanding the number
of nonviolent drug offenders that can be court ordered to drug abuse
treatment will help break the cycle of drug use and crime and make our
streets, homes and communities safer. This will make New York's
criminal justice policies not only tough -- but smart.
In 1993, the Assembly held hearings to mark the 20th Anniversary of
the Rockefeller Drug Laws and examine whether the mandatory
incarceration required by the laws had been effective at reducing drug
use and drug-related crime. The overwhelming sentiment among the
witnesses at the hearing was that the policy of incarceration and
punishment of non-violent drug users had failed and that major reforms
of the drug laws were urgently needed. Despite these calls for reform,
the laws continued unchanged for 11 more years until 2004 when modest
drug law reforms were enacted. However, the 2004 reforms did not
change the mandatory sentencing structure and did nothing to return
discretion to judges to allow for the diversion of non-violent drug
offenders to a period of probation as an alternative to incarceration.
The Assembly again held extensive public hearings in May, 2008, and
sought testimony from a broad range of witnesses to examine whether
the mandatory sentencing provisions of the Rockefeller Drug Laws have
been successful. Once again, the vast majority of witnesses presented
evidence demonstrating that the Rockefeller Drug Laws have failed to
deter drug use or drug-related crime in New York. Rather, the laws
have sent thousands of low-level drug offenders to state prison at
great fiscal cost to New York while offering little or no public
safety benefit. According to the Correctional Association, about 40%
of the drug offenders in New York State prisons, more than 5,300
people, are imprisoned for drug possession, as opposed to drug
selling. And, of all drug offenders sent to prison since 1999, 80%
have never been convicted of a violent felony.
Despite the harsh mandatory sentences required by the drug laws, the
overwhelming number of people sent to state prison continue to suffer
from unaddressed substance abuse issues. For example, according to the
2007 Identified Substance Abusers Report, produced by the Department
of Correctional Services, 83% of inmates in state prison had an
identified substance abuse need including 82% of male inmates and 88%
of female inmates. Similarly, at every stage of the criminal justice
system from arrest, through trial, incarceration, and parole, 70 to 80
percent of the people involved have a history of alcohol or drug use
and the Office of Alcoholism and Substance Abuse Services reports that
1.8 million New Yorkers are currently dealing with substance abuse
problems. Additionally, according to the National Household Survey on
Drug Use conducted by the U.S. Department of Health, illicit drug use
among New Yorkers has not abated since the passage of the Rockefeller
Drug Laws in 1973.
Numerous comprehensive studies indicate that drug abuse treatment is
significantly more effective -- and cost effective -- than
incarceration, as a means of reducing crimes committed by drug users.
A 1997 Rand corporation study, for example, found that drug treatment
was 15 times more effective at reducing serious crimes committed
against people and property by drug offenders than mandatory minimum
sentences. The Honorable Jonathan Lippman, in testimony before the
Legislature's budget committees, indicated that graduates of drug
court diversion programs operated by the court system commit
two-thirds fewer crimes than drug offenders who are simply
incarcerated for a period of time. Similarly, the National Institute
on Drug Abuse estimates that for every dollar spent on treatment
programs, there is a $4 to $7 reduction in the cost of drug related
crimes. With some outpatient programs, total savings can exceed costs
by a ratio of 12 to 1. Further, a 2006 study by the Justice Policy
Institute (JPI) demonstrated that reliance on treatment was associated
with a decrease in crime. Specifically, the JPI report found that in
eight out of twelve jurisdictions that made greater use of treatment,
crime rates have fallen by 10% or more since 2000 compared to just two
of the twelve that relied more heavily on incarceration.
In addition, the drug laws have had a disproportionately negative
impact on racial minorities, particularly African Americans and
Latinos. African Americans and Latinos have consistently represented
the overwhelming majority of people sent to prison under the drug
laws. Specifically, as of January 1, 2008, approximately 90% of drug
offenders in New York prisons were African-American or Latino -
African-Americans comprise 58.5% of drug offenders in state prison;
Latinos, 31.5% and whites, 8.9%. However, studies indicate that white
persons use and sell drugs at the same, or at an even higher rate,
than African American and Latino persons. A 2001 study by U.S.
Department of Health and Human Services looked at 1.8 million adults
in New York who reported using illegal drugs in the proceeding year.
Of these reported users of illicit drugs, 1.3 million or 72% were
white. Similarly, a 2004 federal report found that 8.1 percent of
white persons use illicit drugs compared to 7.2 percent of Hispanic
persons, and 8.7 percent of African American persons. Further, drug
use rates among youth ages 12 to 17 are higher for whites than for
African Americans and Latinos.
Further, research suggests that high incarceration rates in some urban
areas have destabilized neighborhoods and exacerbated the problems of
poverty, drug abuse, and the lack of fundamental supports for families
and children causing crime rates to rise.
In December, 2004, legislation was enacted (L. 2004, c. 738) that
changed, in part, the laws governing drug offender sentencing. New
York's drug sentencing scheme was changed from an indeterminate
sentencing system to a determinate sentencing system so that all drug
offenders would be sentenced to a fixed term, rather than a
parole-eligible sentencing range. The 2004 law generally lowered
available sentences for non-violent drug offenders but increased
sentencing ranges for drug offenders with a history of violent crimes.
In addition, the 2004 law allowed certain class A-I felony drug
offenders to apply for re-sentencing under the new, determinate
sentencing structure. The law also made it possible for certain
inmates sentenced for drug offenses to earn additional time reductions
by participating in drug abuse treatment and other prison programming,
and authorized judges to direct that drug offense-sentenced inmates
participate in prison based drug treatment programs. In August 2005,
legislation was enacted (L. 2005, c. 643) to allow certain eligible
class A-II felony drug offenders serving indeterminate sentences to
apply for re-sentencing to a determinate term of imprisonment.
While the 2004 law was an important step forward in moderating some of
the harshest sentences under the state's drug laws, it did not result
in dramatically reforming the state's Rockefeller drug laws.
Significantly, the 2004 law did not authorize judges to sentence
nonviolent drug offenders to probation as a potential alternative to a
mandatory state prison term; that vital reform, among others, would be
enacted by this bill.
Expanding the availability of drug abuse treatment programs would save
millions of taxpayer dollars, help many offenders turn their lives
around and reduce crime. This bill reforms New York's drug sentencing
laws by giving judges appropriate discretion to tailor the penalties
of the Penal Law to the facts and circumstances of each drug offense.
Long sentences would be retained for major drug traffickers, and,
indeed would still be available for all drug offenders. However,
judges would be given discretion to appropriately tailor a sentence to
fit the conduct and rehabilitative efforts of each offender.
Thirty-five years of a drug policy focused on punishing drug users and
spending billions of dollars on incarceration has failed to
significantly reduce the use of drugs or the commission of
drug-related crime. Instead, over the last three and a half decades,
large numbers of drug abusers have been imprisoned, families and
communities, particularly communities of color, have been harmed or
destroyed, and billions of dollars have been devoted to incarceration
while resources for prevention and treatment services have been
drained.
The dramatic and comprehensive reforms proposed by this legislation,
if fully enacted, would over time significantly reduce the number of
New Yorkers abusing and addicted to controlled substances and the
incidence of drug-related crimes.
PRIOR LEGISLATIVE HISTORY :
New bill.
FISCAL IMPLICATIONS :
When fully implemented, it is estimated that reduced prison admissions
and drug related crime reductions which would result from this bill
would save the state tens of millions of dollars annually.
EFFECTIVE DATE :
The bill's general effective date and the effective date for
prospective sentencing changes is sixty days after the bill has become
law. However, some of the bill's provisions take effect either
immediately or are phased in over a three year period.
2/24/09
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