Provides for granting of merit time allowance and release for prisoners with good behavior with certain limitations; provides commissioner of correctional services shall promulgate rules and regulations for merit time allowance to determine which inmates are good candidates for release.
STATE OF NEW YORK
________________________________________________________________________
2794
2011-2012 Regular Sessions
IN ASSEMBLY
January 20, 2011
___________
Introduced by M. of A. CLARK, GIBSON -- read once and referred to the
Committee on Correction
AN ACT to amend the correction law, the executive law and the penal law,
in relation to merit time allowance and release for prisoners accumu-
lating merit time allowance and to repeal certain provisions of the
correction law relating thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative intent. It is the purpose of this act to
2 strengthen the ability of the department of correctional services to
3 better manage its inmate population through the granting or withholding
4 of merit time allowance credits. This new system seeks to prevent the
5 early conditional release of ill-prepared inmates, while offering
6 release only to those inmates who have demonstrated a willingness and
7 ability to work in society through completion of therapeutic and treat-
8 ment programs prescribed by the department of correctional services.
9 § 2. Section 803 of the correction law is REPEALED and a new section
10 803 is added to read as follows:
11 § 803. Merit time allowance against indeterminate and determinate
12 sentences. 1. (a) Every person confined in an institution of the depart-
13 ment or a facility in the department of mental hygiene serving an inde-
14 terminate or determinate sentence of imprisonment, except a person serv-
15 ing a sentence with a maximum term of life imprisonment, may receive
16 time allowances against his or her sentence imposed by the court. Such
17 allowances may be granted for good behavior and efficient and willing
18 performance of duties assigned or progress and achievement in an
19 assigned treatment or education program, and may be withheld in whole or
20 in part for bad behavior, violation of institutional rules or failure to
21 perform properly in the duties or program assigned.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06562-01-1
A. 2794 2
1 (b) A person serving an indeterminate sentence of imprisonment may
2 receive time allowance against the maximum term of his sentence not to
3 exceed one-third of the maximum term imposed by the court.
4 (c) A person serving a determinate sentence of imprisonment may
5 receive time allowance against the term of his sentence not to exceed
6 one-seventh of the term imposed by the court.
7 (d) A person serving an indeterminate sentence of imprisonment may
8 receive merit time allowances against the maximum and minimum terms or
9 period of his or her sentence not to exceed in the aggregate one-third
10 of the term or period imposed by the court.
11 (e) A person serving a determinate sentence of imprisonment may
12 receive a merit time allowance against the term of his or her sentence
13 not to exceed one-third of the term imposed by the court.
14 (f) (i) Except as provided in subparagraph (ii) of this paragraph,
15 every person under the custody of the department or confined in a facil-
16 ity in the department of mental hygiene serving an indeterminate
17 sentence of imprisonment with a minimum period of one year or more or a
18 determinate sentence of imprisonment of one year or more imposed pursu-
19 ant to section 70.70 or 70.71 of the penal law, may earn a merit time
20 allowance.
21 (ii) Such merit time allowance shall not be available to any person
22 serving a sentence imposed for a violent felony offense as defined in
23 section 70.02 of the penal law.
24 (iii) Such merit time allowance may be granted when an inmate success-
25 fully participates in the work and treatment program assigned pursuant
26 to section eight hundred five of this article and when such inmate
27 obtains a general equivalency diploma, an alcohol and substance abuse
28 treatment certificate, a vocational trade certificate following at least
29 six months of vocational programming or performs at least four hundred
30 hours of service as part of a community work crew. Such allowance shall
31 be withheld for any serious disciplinary infraction.
32 2. If a person is serving more than one sentence, the authorized
33 allowances may be granted separately against the maximum, minimum and
34 determinate terms of each sentence or, where consecutive sentences are
35 involved, against the aggregated maximum, minimum and determinate terms.
36 In no case, however, shall the total of all allowances granted to any
37 such person under this section exceed one-third of the maximum time he
38 or she would be required to serve, computed without regard to this
39 section. No merit time allowance shall decrease the minimum term to less
40 than one year.
41 3. The commissioner shall promulgate rules and regulations for the
42 granting and withholding of merit time allowances authorized by this
43 section in accordance with the criteria specified in this section. Such
44 rules and regulations shall include provisions designating a merit time
45 allowance committee in each correctional institution delegated to make
46 discretionary determinations with respect to the allowances, the books
47 and records to be kept, and a procedure for review of the institutional
48 determinations by the commissioner. Such committee shall review the
49 record of each individual inmate every six months beginning from the
50 date of his or her entrance at such institution. The committee shall
51 then determine, based on the factors for which allowance time is grant-
52 ed, whether or not to grant allowance time to the inmate. For each six
53 month review period, an inmate may be granted merit time which may
54 reduce by up to one-third an inmate's minimum or determinate sentence
55 for that six month review period. If an inmate is not granted merit time
56 for the six month review period, he or she cannot earn additional merit
A. 2794 3
1 time in any subsequent six month review period to make up for merit time
2 which has not been granted. Additionally, an inmate who has been granted
3 merit time during a six month review period shall not lose such merit
4 time during a subsequent six month review period for bad behavior,
5 violation of institutional rules or failure to perform properly in the
6 duties or program assigned.
7 4. All merit time allowances earned pursuant to this section shall be
8 vested, on a one day for every three days basis, except as modified by
9 other provisions of this chapter.
10 5. Merit time allowances granted prior to any release on parole or to
11 post-release supervision shall be forfeited and shall not be restored if
12 the formerly incarcerated individual is returned to an institution under
13 the jurisdiction of the department for violation of parole or post-re-
14 lease supervision by reason of a conviction for a crime committed while
15 on parole or post-release supervision. A person who is so returned may,
16 however, subsequently receive merit time allowances against the remain-
17 ing portion of his or her maximum or aggregate maximum term or period
18 not to exceed in the aggregate one-third of such portion provided such
19 remaining portion of his or her maximum or aggregate maximum term or
20 period is more than one year.
21 6. Upon commencement of an indeterminate or determinate sentence the
22 provisions of this section shall be furnished to the person serving the
23 sentence and the meaning of same shall be fully explained to him or her
24 by a person designated by the commissioner to perform such duty.
25 7. Notwithstanding any other provision of law, whenever merit time
26 allowance is claimed against the minimum term or period of imprisonment,
27 it shall serve only to allow such person, in the sole discretion of the
28 state parole board, to be released on parole. Whenever merit time allow-
29 ance is claimed against the maximum term or period of imprisonment, and
30 the maximum term less accumulated merit time allowance credits equals
31 the person's time served, such person shall be released to parole super-
32 vision. Whenever merit time allowance is claimed against the term of a
33 determinate sentence, and the determinate term less accumulated merit
34 time allowance credits equals the individual's time served, such indi-
35 vidual shall be released to post-release supervision.
36 8. Every person except those excluded pursuant to subdivision one of
37 this section who is incarcerated on the effective date of this subdivi-
38 sion shall be entitled to no more than one month of merit time allowance
39 for every three months served to be credited against the minimum, maxi-
40 mum and determinate terms or periods of imprisonment. The amount of
41 credits actually awarded shall be determined by the merit time allowance
42 committee and applied retroactively starting from the first day of the
43 current incarceration. Every person who is incarcerated on the effective
44 date of this subdivision, and who has already served his or her minimum
45 term, shall be evaluated retroactively for earned eligibility certif-
46 ication. In that case an immediate parole board hearing shall give full
47 consideration to the merit time accumulated.
48 § 3. Paragraph (a) of subdivision 2 of section 259-i of the executive
49 law, as separately amended by section 11 of part E and section 9 of part
50 F of chapter 62 of the laws of 2003, is amended to read as follows:
51 (a) (i) Except as provided in subparagraph (ii) of this paragraph, at
52 least one month prior to the date on which an inmate may be paroled
53 pursuant to subdivision one of section 70.40 of the penal law less any
54 accumulated merit time allowance credits, a member or members as deter-
55 mined by the rules of the board shall personally interview such inmate
56 and determine whether he or she should be paroled in accordance with the
A. 2794 4
1 guidelines adopted pursuant to subdivision four of section two hundred
2 fifty-nine-c of this article. If parole is not granted upon such review,
3 the inmate shall be informed in writing within two weeks of such appear-
4 ance of the factors and reasons for such denial of parole. Such reasons
5 shall be given in detail and not in conclusory terms. The board shall
6 specify a date not more than twenty-four months from such determination
7 for reconsideration, and the procedures to be followed upon reconsider-
8 ation shall be the same. If the inmate is released, he or she shall be
9 given a copy of the conditions of parole or post-release supervision.
10 Such conditions shall where appropriate, include a requirement that the
11 [parolee] formerly incarcerated individual comply with any restitution
12 order, mandatory surcharge, sex offender registration fee and DNA data-
13 bank fee previously imposed by a court of competent jurisdiction that
14 applies to [the parolee] such individual. The board of parole or the
15 post-release supervisor shall indicate which restitution collection
16 agency established under subdivision eight of section 420.10 of the
17 criminal procedure law, shall be responsible for collection of restitu-
18 tion, mandatory surcharge, sex offender registration fees and DNA data-
19 bank fees as provided for in section 60.35 of the penal law and section
20 eighteen hundred nine of the vehicle and traffic law.
21 (ii) Any inmate who is scheduled for presumptive release pursuant to
22 section eight hundred six of the correction law shall not appear before
23 the parole board as provided in subparagraph (i) of this paragraph
24 unless such inmate's scheduled presumptive release is forfeited,
25 canceled, or rescinded subsequently as provided in such law. In such
26 event, the inmate shall appear before the parole board for release
27 consideration as provided in subparagraph (i) of this paragraph as soon
28 thereafter as is practicable.
29 § 4. Paragraph (a) of subdivision 2 of section 259-i of the executive
30 law, as amended by chapter 396 of the laws of 1987, is amended to read
31 as follows:
32 (a) At least one month prior to the expiration of the minimum period
33 or periods of imprisonment fixed by the court or board, less any accumu-
34 lated merit time allowance credits, a member or members as determined by
35 the rules of the board shall personally interview an inmate serving an
36 indeterminate sentence and determine whether he or she should be paroled
37 at the expiration of the minimum period or periods in accordance with
38 the guidelines adopted pursuant to subdivision four of section two
39 hundred fifty-nine-c of this article. If parole is not granted upon
40 such review, the inmate shall be informed in writing within two weeks of
41 such appearance of the factors and reasons for such denial of parole.
42 Such reasons shall be given in detail and not in conclusory terms. The
43 board shall specify a date not more than twenty-four months from such
44 determination for reconsideration, and the procedures to be followed
45 upon reconsideration shall be the same. If the inmate is released, he or
46 she shall be given a copy of the conditions of parole or post-release
47 supervision. Such conditions shall where appropriate, include a
48 requirement that the [parolee] formally incarcerated individual comply
49 with any restitution order and mandatory surcharge previously imposed by
50 a court of competent jurisdiction that applies to [the parolee] such
51 individual. The board of parole or post-release supervisor shall indi-
52 cate which restitution collection agency established under subdivision
53 eight of section 420.10 of the criminal procedure law, shall be respon-
54 sible for collection of restitution and mandatory surcharge as provided
55 for in section 60.35 of the penal law and section eighteen hundred nine
56 of the vehicle and traffic law.
A. 2794 5
1 § 5. Paragraph (c) of subdivision 2 of section 259-i of the executive
2 law, as separately amended by chapters 40 and 126 of the laws of 1999
3 and subparagraph (A) as amended by section 12 of part AAA of chapter 56
4 of the laws of 2009, is amended to read as follows:
5 (c) [(A)] (i) Discretionary release on parole shall not be granted
6 merely as a reward for good conduct or efficient performance of duties
7 while confined but after considering if there is a reasonable probabili-
8 ty that, if such inmate is released, he or she will live and remain at
9 liberty without violating the law, and that [his] such release is not
10 incompatible with the welfare of society and will not so deprecate the
11 seriousness of his or her crime as to undermine respect for law. In
12 making the parole release decision, the guidelines adopted pursuant to
13 subdivision four of section two hundred fifty-nine-c of this article
14 shall require that the following be considered: (i) the institutional
15 record including program goals and accomplishments, academic achieve-
16 ments, vocational education, training or work assignments, therapy and
17 interpersonal relationships with staff and inmates and the recommenda-
18 tions of the appropriate merit time allowance committee established
19 under subdivision three of section eight hundred three of the correction
20 law; (ii) performance, if any, as a participant in a temporary release
21 program; (iii) release plans including community resources, employment,
22 education and training and support services available to the inmate;
23 (iv) any deportation order issued by the federal government against the
24 inmate while in the custody of the department of correctional services
25 and any recommendation regarding deportation made by the commissioner of
26 the department of correctional services pursuant to section one hundred
27 forty-seven of the correction law; (v) any statement made to the board
28 by the crime victim or the victim's representative, where the crime
29 victim is deceased or is mentally or physically incapacitated; and (vi)
30 the length of the determinate sentence to which the inmate would be
31 subject had he or she received a sentence pursuant to section 70.70 or
32 section 70.71 of the penal law for a felony defined in article two
33 hundred twenty or article two hundred twenty-one of the penal law. The
34 board shall provide toll free telephone access for crime victims. In the
35 case of an oral statement made in accordance with subdivision one of
36 section 440.50 of the criminal procedure law, the parole board member
37 shall present a written report of the statement to the parole board. A
38 crime victim's representative shall mean the crime victim's closest
39 surviving relative, the committee or guardian of such person, or the
40 legal representative of any such person. Such statement submitted by the
41 victim or victim's representative may include information concerning
42 threatening or intimidating conduct toward the victim, the victim's
43 representative, or the victim's family, made by the person sentenced and
44 occurring after the sentencing. Such information may include, but need
45 not be limited to, the threatening or intimidating conduct of any other
46 person who or which is directed by the person sentenced. Notwithstanding
47 the provisions of this section, in making the parole release decision
48 for persons whose minimum period of imprisonment was not fixed pursuant
49 to the provisions of subdivision one of this section, in addition to the
50 factors listed in this paragraph the board shall consider the factors
51 listed in paragraph (a) of subdivision one of this section.
52 [(B)] (ii) Where a crime victim or victim's representative as defined
53 in subparagraph [(A)] (i) of this paragraph, or other person submits to
54 the parole board a written statement concerning the release of an
55 inmate, the parole board shall keep that individual's name and address
56 confidential.
A. 2794 6
1 § 6. Subparagraphs (ii), (iii) and (iv) of paragraph (a) of subdivi-
2 sion 1 of section 70.40 of the penal law, as amended by chapter 3 of the
3 laws of 1995, are amended to read as follows:
4 (ii) A person who is serving one or more than one determinate sentence
5 of imprisonment in accordance with section 70.02 of this article shall
6 be ineligible for discretionary release on parole.
7 (iii) A person who is serving one or more than one indeterminate
8 sentence of imprisonment and one or more than one determinate sentence
9 of imprisonment which run concurrently may be paroled at any time after
10 the expiration of the minimum period of imprisonment of the indetermi-
11 nate sentence or sentences, or upon the expiration of [six-sevenths]
12 two-thirds of the term of imprisonment of the determinate sentence or
13 sentences, whichever is later.
14 (iv) A person who is serving one or more than one indeterminate
15 sentence of imprisonment and one or more than one determinate sentence
16 of imprisonment which run consecutively may be paroled at any time after
17 the expiration of the sum of the minimum or aggregate minimum period of
18 the indeterminate sentence or sentences and [six-sevenths] two-thirds of
19 the term or aggregate term of imprisonment of the determinate sentence
20 or sentences.
21 § 7. Paragraph (b) of subdivision 1 of section 70.40 of the penal law,
22 as amended by chapter 1 of the laws of 1998, is amended to read as
23 follows:
24 (b) A person who is serving one or more than one indeterminate or
25 determinate sentence of imprisonment shall, if he so requests, be condi-
26 tionally released from the institution in which he is confined when the
27 total good behavior time allowed to him, pursuant to the provisions of
28 the correction law, is equal to the unserved portion of his term, maxi-
29 mum term or aggregate maximum term; provided, however, that (i) in no
30 event shall a person serving one or more indeterminate sentence of
31 imprisonment and one or more determinate sentence of imprisonment which
32 run concurrently be conditionally released until serving at least [six-
33 sevenths] two-thirds of the determinate term of imprisonment which has
34 the longest unexpired time to run and (ii) in no event shall a person be
35 conditionally released prior to the date on which such person is first
36 eligible for discretionary parole release. The conditions of release,
37 including those governing post-release supervision, shall be such as may
38 be imposed by the state board of parole in accordance with the
39 provisions of the executive law.
40 Every person so released shall be under the supervision of the state
41 board of parole for a period equal to the unserved portion of the term,
42 maximum term, aggregate maximum term, or period of post-release super-
43 vision.
44 § 8. This act shall take effect on the ninetieth day after it shall
45 have become a law, provided that;
46 1. the amendments to paragraph (a) of subdivision 2 of section 259-i
47 of the executive law made by section three of this act shall be subject
48 to the expiration and reversion of such paragraph pursuant to subdivi-
49 sion d of section 74 of chapter 3 of the laws of 1995, as amended, when
50 upon such date the provisions of section four of this act shall take
51 effect; and
52 2. the amendments to paragraphs (a) and (b) of subdivision 1 of
53 section 70.40 of the penal law made by sections six and seven of this
54 act shall not affect the expiration of such paragraphs and shall be
55 deemed to expire therewith.
