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.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A2997
SPONSOR: Clark (MS) 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 § 803 and replaces it with
a new § 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 § 803.
Sections 6 and 7 makes technical changes to the Penal Law to comply with
the new language imposed by Correction Law § 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.
