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A02997 Summary:

BILL NO    A02997 

SAME AS    No same as 

SPONSOR    Clark (MS)

COSPNSR    

MLTSPNSR   Perry

Rpld & add S803, Cor L; amd S259-i, Exec L; amd S70.40, Pen L

Provides for granting of merit time allowance and release for prisoners with
good behavior with certain limitations; provides commissioner of corrections
and community supervision services shall promulgate rules and regulations for
merit time allowance to determine which inmates are good candidates for
release.
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A02997 Memo:

BILL NUMBER:A2997

TITLE  OF  BILL:   An act to amend the correction law, the executive law
and the penal law, in relation to merit time allowance and  release  for
prisoners  accumulating  merit  time  allowance  and  to  repeal certain
provisions of the correction law relating thereto

PURPOSE:
To enable the Department of Correctional Services to better control  the
behavior  of its inmates; to help the Department maintain an equilibrium
between new intakes and releases by determining which inmates  are  good
candidates  for  release; and preventing the release of inmates posing a
high risk.

SUMMARY OF PROVISIONS:
Section 1 provides the legislative intent which states that the  purpose
of  this  legislation  is to strengthen the ability of the Department of
Correctional Services to better manage its inmate population through the
granting or withholding of merit time allowance credits.

Section 2 repeals the current Correction Law S 803 and replaces it  with
a  new S 803. This section delineates those inmates who will be eligible
for merit time relief, and the circumstances under which merit time  may
be granted or denied, as follows:

* a person serving an indeterminate sentence of imprisonment may receive
merit time allowances against the maximum and minimum terms or period of
his  or her sentence not to exceed in the aggregate 1/3rd of the term or
period imposed by the court;

* a person serving a determinate sentence of imprisonment may receive  a
merit  time  allowance  against  the  term of his or her sentence not to
exceed 1/3rd of the term imposed by the court;

* a person serving an indeterminate sentence of imprisonment may receive
time allowance against the maximum term of his sentence  not  to  exceed
one-third of the maximum term imposed by the court;

*  a  person  serving a determinate sentence of imprisonment may receive
time allowance against the term of his sentence not to  exceed  one-sev-
enth of the term imposed by the court;

*  every  person  under  the  custody of the department or confined in a
facility in the department of mental hygiene, with  certain  exceptions,
serving  an indeterminate sentence of imprisonment with a minimum period
of 1 year or more or a determinate sentence of imprisonment of 1 year or
more imposed pursuant to section 70.70 or 70.71 of the  penal  law,  may
earn a merit time allowance;

* such merit time allowance shall not be available to any person serving
a sentence imposed for a violent felony offense;

*  such  merit time allowance may be granted when an inmate successfully
participates in the work and treatment program assigned  and  when  such
inmate  obtains  a general equivalency diploma, an alcohol and substance
abuse treatment certificate, a vocational trade certificate following at
least  6 months of vocational programming or performs at least 400 hours
of service as part of a community work crew; and

* such allowance shall be withheld for any serious disciplinary  infrac-
tion;

*  if  a person is serving more than one sentence, the authorized allow-
ances may be granted separately against the maximum, minimum and  deter-
minate  terms  of  each  sentence  or,  where  consecutive sentences are
involved, against the aggregate maximum, minimum and determinate terms.

Sections 3, 4 and 5 make technical  changes  to  the  executive  law  to
comply with the new language imposed by Correction Law S 803.

Sections 6 and 7 makes technical changes to the Penal Law to comply with
the new language imposed by Correction Law S 803.

Section 8 provides the effective date.

JUSTIFICATION:
This measure would introduce flexibility into the long sentences imposed
by  the  courts often as a result of mandatory penalties imposed by law.
These  sentences,  which  are  a  major  cause  of  costly  new   prison
construction,  have come under increasing criticism from law enforcement
professionals and the public. Since 1983, reports of  violent  crime  in
the state have increased from 150,000 to 200,000, while the inmate popu-
lation  has  jumped  from 30,000 to 54,000 and the Correctional Services
Operating Budget has gone from $500 million to $1.2 billion.    {1}  The
increasing  incidence  of violent crime, combined with the evidence that
Afro-American and Hispanic youth in large numbers  have  been  arrested,
found  guilty,  and  imprisoned or placed under court supervision under-
mines a critical premise of law and order advocates:    tough  sentences
deter crime.

"Domestic tranquility" has not been achieved and professionals are shar-
ply questioning whether arresting people solves social problems.  During
the  low  crime period that lasted for about thirty years after national
prohibition, approximately 100 out of every 100,000 people were in state
or federal prisons;  today  the  figure  is  fast  approaching  300  per
100,000. The Executive Director of the American Correctional Association
agrees that, "It is kind of a fraud, no doubt," to assert a relationship
between the incarceration rate and the level of violent crime. {2}

The  tough-sentences-deter-crime school has emphasized restricting judi-
cial discretion, particularly through mandatory  sentencing  provisions.
The  New  York  State Department of Corrections has criticized mandatory
sentences for filling prisons with non-violent  offenders  at  the  very
time violent crime is the dominant problem.

In  1987, the legislature established the Earned Eligibility Program and
shock incarceration which  accelerated  the  release  of  young  inmates
convicted of non-violent crime. These new laws combined a heavy emphasis
on  programs  and treatment. The new law also authorized DOCS to utilize
other service providers for residential and treatment services.

This legislation extends this trend to inmates serving longer sentences.
It  divides every inmate's term into six month periods. During this time
the inmate gains merit time and vests it. He or she can see the benefits
quickly of performing well. Or on the other hand, the inmate's  behavior
can  result in a loss of merit time and the penalties are equally appar-
ent. The system is open ended, the inmate starts each six  month  period
with  a  clean  slate. Thus, there is a constant opportunity for a fresh
start, and to reward the inmate who changes his or her behavior for  the
better.  This system offers constant incentive, constant review, immedi-
ate penalties and immediate awards. Merit time makes the  penalties  for
misbehavior  and  the  rewards for good behavior readily apparent to the
inmate.

DOCS personnel through the merit allowance committee continually monitor
inmate performance. A record is established which  charts  the  ups  and
downs  of  the inmate's behavior. This is particularly important for the
long time offender; it drastically reduces the risk of an  inmate  sham-
ming  reform  in the hopes of early release. The best protection against
fakery is long term observation.

The merit allowance system differs from the conditional  release  system
that  exists  under  current  law.  Sole  discretion  is vested with the
Commissioner of the Department  of  Correctional  Services  on  reducing
maximum  sentences,  and in practice, almost every inmate is released at
two-thirds of his or her maximum sentence. Presently, Section 804 of the
Correction Law provides for conditional release after two-thirds of  the
sentence  is  complete. Many prisoners realize that their initial parole
hearing will focus on their criminal history and the nature of the crime
that sent them to prison  with  relatively  little  attention  to  their
institutional adjustment and accomplishments. Under these circumstances,
many  prisoners ask "why bother," and spend their time in the yard doing
push-ups and shooting baskets content  to  wait  for  their  conditional
release.  The  current  law's  heavy emphasis on the crime that sent the
inmate to prison reduces the inmate's desire to  enter  programs,  while
the  merit  time  system  rewards desired behavior and increases partic-
ipation in programs.

Under the merit time system, an inmate can create the possibility  of  a
mandatory  discharge  before  two-thirds of the maximum by earning merit
time. But this merit time can not suddenly be created as an inmate nears
the two-thirds mark: it must be earned in six month increments. In  this
manner an inmate's record can be reviewed for trends showing good or bad
behavior  and  predictions  about an inmate's future conduct can be made
with some confidence. It can be expected that, unlike  now,  the  prison
stay  of  some  problem  inmate may be extended beyond their conditional
release date. It will be possible to  do  this  without  increasing  the

prison  population because other longterm inmates will leave early under
the merit time program.

This bill allows DOCS and the Parole Board to release prisoners who have
demonstrated  for  an  extended period of time their willingness to live
within the law. It uses  a  sound  mechanism  for  distinguishing  "good
risks" from other prisoners -- their conduct in prison and their partic-
ipation in vocational, educational and therapeutic programs. The experi-
ence  with earned eligibility demonstrates that Parole and DOCS can draw
distinctions between good and bad risks. Of the 13,847 inmates  reviewed
under  the  earned  eligibility  procedure  in 1988, 8,989 (or 65%) were
issued certificates of earned eligibility. Of those issued  the  certif-
icates,  1,642  were  denied release by the Parole Board and held for an
average of eight months. {3}

Merit time is the most reasonable approach for combining the concern for
public safety from released prisoners with  the  need  for  finding  new
space to combat violent crime while resources are severely limited.

PRIOR LEGISLATIVE HISTORY:
2001-2002 - S.2151 Died in Committee
2003-2004 - S.1688 Died inCommittee
2005-2006 - S.1701B Died in Committee
1/31/07   -  A.4103/S.2116  (Montgomery),  referred  to  Assembly/Senate
Corrections Committee
1/9/08 - A.4103, referred to Assembly/Senate Corrections Committee
1/27/09 - A.3508, referred to Assembly Corrections Committee
1/6/10 - A.3508, referred to Assembly Corrections Committee
01/20/11 - A.2794 referred to correction
01/04/12 - A.2794 referred to correction

FISCAL IMPLICATIONS:
Reduces the length of prison stays for certain inmates and  the  expense
of their incarceration while reducing pressure to build new prisons. The
measure  holds  out  the  promise  of  making a substantial contribution
towards having releases approach the number of  newly  arrived  inmates.
Housing  an  inmate  costs approximately $25,300 a year or $25,300,000 a
year for each thousand inmates. A new facility costs about $500 million,
and is financed by the state's limited  credit.  The  Urban  Development
Corporation,  which  provides  the  funding, was originally chartered to
increase low and moderate housing, but today its major "housing program"
is prison construction.

EFFECTIVE DATE:
Ninetieth day after becoming law.

{1} Imprisoned Generation: Young Men Under Criminal Justice  Custody  in
New  York  State, A Report by The Correctional Association of New York &
New York State Coalition for Criminal Justice, September, 1990.

{2} "More Cells for More Prisoners, But  to  What  End?"  by  Andrew  H.
Malcolm, p. B16, The New York Times, January 18, 1991.

{3} Earned Eligibility Statistical Report, 1988 Calendar Year, February,
1989.
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