The Future of Sentencing in
New York State:

Recommendations for Reform

New York State
Commission on Sentencing Reform
January 30, 2009

Table of Contents
Page
Commission Members ......................................................................... iv
Commission Staff...................................................................................v
Acknowledgements .............................................................................. vi
Subcommittees .................................................................................... vii
Speakers ............................................................................................. viii
Executive Summary ............................................................................... I
Part One: Criminal Sentencing in New York State:
A Historical Overview .....................................................1
I.
II.
III.
IV.

The Early Days .....................................................................2
The Rise of the Rehabilitative Model: 1877-1970 ..............4
The Origins of the Determinate Model: 1970-Present ......11
Increased Correctional Control Over Time Served:
“Back End” Sentencing (1985-1995) ..............................18
V. Where We Are Today: The Current Hybrid System ........20
VI. Recommendations for Reform ..........................................23

Part Two: Greater Simplicity in Sentencing .......................................24
I.
II.
III.
IV.

Adopting a Predominately Determinate Sentencing
System in New York: Determinate Ranges ..................25
The Need for “Fair and Acceptable”
Determinate Ranges .......................................................28
Recommendation ...............................................................58
Targeted Simplification of New York’s
Sentencing Laws ...........................................................58

i

Part Three: A Measured Approach to Reforming New York’s
Drug Laws ...................................................................67
I.
II.

A Brief History of New York’s Drug Laws .......................69
Racial Disparity: The Disproportionate Impact
of New York’s Drug Sentencing Laws ..........................76
III. Overview of Existing Diversion Programs ........................80
IV. Expanding the Availability of Drug Diversion
in New York: The Case for Reform ..............................89
V. Principles of Reform .........................................................94
VI.
Proposals for Drug Law Reform .......................................96
VII.
Recommendation ............................................................131
Part Four: Using Evidence-Based Practices to Improve
Offender Outcomes ....................................................133
I.
II.
III.
IV.

Use of a Risk and Needs Assessment Instrument .............135
Responding to Parole Rule Violations .............................144
Reducing Recidivism Through Effective Re-entry ..........150
Recommendations for Improved Re-entry Success .........155

Part Five: Expanding Successful Department of Correctional
Services’ Programs .....................................................157
I.
II.
III.

Expanded Eligibility for Shock Incarceration ..................158
The Merit Time Program ..................................................162
Willard Drug Treatment ...................................................166

Part Six: Crime Victims and Sentencing ..........................................169
I.
II.

Introduction.......................................................................170
Proposals for Reform........................................................171

Part Seven: Planning for the Future: A Permanent Sentencing
Commission for New York .......................................178
Part Eight: Conclusion ......................................................................181
ii

Appendices
A:
B:
C:
D:
E:
F:
G:
H.

Executive Order No. 10 (2007) & Executive Order
No. 9 (2008) .....................................................................183
Non-Violent Penal Law Felony Offenses that Currently
Carry an Indeterminate Sentence .....................................192
Time-Served Data By Year For Non-Violent Felony Offenses:
Offenders Released January 1985 to December 2007 ......206
Comparison of Proposed Determinate Sentence Ranges for
Non-Violent Felony Offenses .........................................219
Disparate Incarceration Rates for Felony Drug Offenders ..232
Anomalies ............................................................................241
Application of the Judicial Diversion Model to a 2006
DOCS’ Admission Pool .................................................251
General Conditions of Parole ...............................................254

iii

Commission Members
Denise E. O’Donnell, Esq., Chair
Deputy Secretary to the Governor for Public Safety
Commissioner, New York State Division of Criminal Justice Services
Anthony Bergamo, Esq.
Chairman, Federal Law Enforcement Foundation, Inc.
Brian Fischer
Commissioner, New York State Department of Correctional Services
Michael C. Green, Esq.
Monroe County District Attorney
Joseph R. Lentol, Esq.
Member of the New York State Assembly
Michael P. McDermott, Esq.
O’Connell and Aronowitz
Judge Juanita Bing Newton
Deputy Chief Administrative Judge for Justice Initiatives
New York State Office of Court Administration
Felix Rosa
Executive Director, New York State Division of Parole
Eric T. Schneiderman, Esq.
Member of the New York State Senate
Tina Marie Stanford, Esq.
Chair, New York State Crime Victims Board
Cyrus R. Vance, Jr., Esq.
Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer
iv

Commission Staff
Gina L. Bianchi, Esq.
Executive Director
John P. Amodeo, Esq.
Counsel
Michael K. Barrett, Esq.
Assistant Counsel
Sharon Lansing, Ph.D.
Research Director
Patrizia Greco
Paralegal
Gabrielle Ballou
Administrative Assistant
We would like to thank the following individuals who provided
research or technical assistance in the preparation of this Report: Lisa
Marie Coppolo, Esq.; Richard Hunter; Adriana Fernandez-Lanier,
Ph.D.; Pamala Griset, Ph.D. * (historical introduction); Michael Hayes;
Leslie Kellam; Paul Korotkin; Robert Miller, Michele Staley; and
Maria Tcherni
We also wish to express a special thanks to our first Research
Director, Donna Hall, Ph.D., and recognize those individuals who
assisted with the Preliminary Report: Bruce Frederick, Ph.D.; James
Seymour; and Timothy Shevy, Esq.

*

Associate Professor, Department of Criminal Justice and Legal Studies, University
of Central Florida.

v

Acknowledgments
The Commission members and staff wish to thank all of the
individuals who have so generously assisted us in this endeavor.
While we have received assistance from sources too numerous to
mention, we would like to recognize those who appeared before and
spoke to the Commission on various topics (see, pages viii-xi), as well
as those persons who appeared at, or submitted testimony to, the
Commission’s public hearings.* We also wish to thank the
Subcommittee members who shared their knowledge in specific areas
and disciplines, as well as the Subcommittee chairs, who devoted
significant time and energy to this project (see, page vii).

*

The testimony from the Commission’s public hearings is available at
https://criminaljustice.state.ny.us/legalservices/sentencingreform.htm.

vi

Subcommittees
Sentencing Policy

Simplification

Chair:
Paul Shechtman, Esq.

Chair:
Anthony J. Girese, Esq.

Members:
Anthony J. Annucci, Esq.
Mark R. Dwyer, Esq.
William D. Gibney, Esq.
Michael C. Green, Esq.
Eric T. Schneiderman, Esq.
Tina Marie Stanford, Esq.
Cyrus R. Vance, Jr., Esq.

Members:
Richard de Simone, Esq.
Joseph R. Lentol, Esq.
Michael P. McDermott, Esq.
Cyrus R. Vance, Jr., Esq.
David E. Woodin, Esq.
Judge Michael J. Yavinsky

Incarceration and Re-Entry

Supervision in the Community

Chair:
Michael Jacobson, Ph.D.

Chair:
Robert M. Maccarone, Esq.

Members:
Anthony Bergamo, Esq.
Brian Fischer
Steve Goldstein, Esq.
Debbie Mukamal, Esq.
Karen Carpenter-Palumbo
Felix Rosa
Barbara Tombs

Members:
George B. Alexander
Martin F. Horn
Anne Jacobs
Willie Johnson
Craig McNair
Judge Juanita Bing Newton
Rocco Pozzi
Alan Rosenthal, Esq.
Paul Samuels, Esq.
Barbara Schuler
Anne J. Swern, Esq.
John R. Watson, Esq.

vii

Speakers
Anthony J. Annucci, Esq., Executive Deputy Commissioner, New
York State Department of Correctional Services
Justin Barry, Esq., Citywide Drug Treatment Court Coordinator, New
York City Criminal Court Administration
Mark H. Bergstrom, Executive Director of the Pennsylvania
Commission on Sentencing
Douglas A. Berman, Esq., William B. Saxbe Designated Professor of
Law at Ohio State University
Honorable Michael E. Bongiorno, former Rockland County District
Attorney
Bridget G. Brennan, Esq., New York City Special Narcotics
Prosecutor
Honorable John J. Brunetti, Judge of the Court of Claims and Acting
Justice of the Supreme Court, Criminal Term
Michael Buckman, Director of Policy Analysis, New York State
Division of Parole
Steven L. Chanenson, Esq., Associate Professor of Law at Villanova
University School of Law
Richard de Simone, Esq., Associate Counsel, Department of
Correctional Services, Office of Sentencing Review
Reagan Daly, Senior Research Associate, Vera Institute of Justice
Honorable Steven W. Fisher, Justice of the Appellate Division,
Second Department

viii

Speakers
Patricia Flaherty, Associate Counsel, New York State Office of
Alcoholism and Substance Abuse Services
Bruce Frederick, Ph.D., Senior Research Associate, Vera Institute of
Justice
William D. Gibney, Esq., Acting Director of The New York City
Legal Aid Society, Criminal Practice Special Litigation Unit
Anthony J. Girese, Esq., Counsel to Bronx District Attorney Robert T.
Johnson
Jonathan E. Gradess, Esq., Executive Director of the New York State
Defenders Association
Pamala Griset, Ph.D., Associate Professor, Department of Criminal
Justice and Legal Studies, University of Central Florida
Susan Herman, Esq., Associate Professor, Department of Criminal
Justice and Sociology, Pace University
Martin F. Horn, Commissioner of the New York City Departments of
Probation and Correction
Michael P. Jacobson, Ph.D., Director, Vera Institute of Justice
Angela Jimenez, Director, Downstate Field Operations, New York
State Division of Parole
Honorable Robert T. Johnson, Bronx County District Attorney
Honorable Judith Harris Kluger, Deputy Chief Administrative Judge
for Court Operations and Planning for New York State
Paul Korotkin, Director of Program Planning, Research & Evaluation
for the Department of Correctional Services
ix

Speakers
Janet Koupash, Director of the Office of Victim Services at the
Department of Correctional Services
Edward J. Latessa, Ph.D., Professor and Head of the Division of
Criminal Justice at the University of Cincinnati
Robert M. Maccarone, Esq., State Director for the New York State
Division of Probation and Correctional Alternatives
Thomas Nightingale, Associate Commissioner, New York State
Office of Alcoholism and Substance Abuse Services
Timothy O’Brien, Director, Upstate Field Operations, New York State
Division of Parole
Maggie Peck, Program Associate, Vera Institute of Justice
Rich Podguski, Director, Bureau of Offender Reentry, Pennsylvania
Board of Probation and Parole
Rocco A. Pozzi, Commissioner of the Westchester County
Departments of Probation and Correction
John Prevost, Director, Office of Criminal Justice Research, Georgia
Board of Pardons and Paroles
Donna Reback, MSW, Social Policy Consultant
Felix Rosa, Executive Director, New York State Division of Parole
Terry Salo, Deputy Commissioner, Office of Justice Research and
Performance, New York State Division of Criminal Justice Services
Gabriel Sayegh, Director of the State Organizing and Policy Project of
the Drug Policy Alliance

x

Speakers
Paul Shechtman, Esq., Stillman, Friedman and Shechtman
Anne J. Swern, Esq., First Assistant District Attorney, Kings County
District Attorney’s Office
Barbara Tombs, Senior Fellow, Center on Sentencing and Corrections
at the Vera Institute of Justice
Terrence X. Tracy, Esq., Counsel, New York State Division of Parole
Jeremy Travis, Esq., President of John Jay College of Criminal Justice
Tracy Velázquez, Senior Program Associate,Vera Institute of Justice
Bruce Western, Professor of Sociology and Director of the
Multidisciplinary Program in Inequality and Social Policy at Harvard
University

xi

EXECUTIVE SUMMARY

I

Executive Summary
I.

Overview

New York’s sentencing laws are rarely examined in a
comprehensive manner and have not undergone a thorough revision in
more than 40 years. The sentencing statutes have, however, been
subjected to piecemeal and ad hoc revisions over the years, ranging
from minor amendments to the revision of entire articles of law. The
result today is an incredibly complex sentencing structure capable of
confounding even the most experienced practitioners. Against this
backdrop, the New York State Commission on Sentencing Reform was
established by Executive Order on March 5, 2007, and charged with
conducting a full review of the State’s sentencing structure and
practices and making recommendations for reform to all three
branches of government.
Throughout its tenure, the Commission strived to gain an indepth understanding of the myriad issues surrounding New York’s
sentencing laws, and to devise a series of recommendations, both
experience-based and data-driven, to simplify, streamline and make
more equitable the State’s overly complicated system of sentencing.
The Commission heard from state and national sentencing experts, and
formed subcommittees to explore and make recommendations on
sentencing policy, simplification of the current sentencing structure,
re-entry, and supervision of offenders in the community. It organized
focus groups and conducted public hearings throughout the State to
obtain feedback on these issues from judges, sentencing experts,
criminal justice professionals, elected officials, practitioners, crime
victims, formerly incarcerated individuals, advocacy groups and
others.
In the Commission’s October 15, 2007 Preliminary Report, a
substantial majority of members recommended the adoption of a
mostly determinate sentencing structure for New York State and
proposed other targeted reforms to help simplify the State’s
labyrinthine sentencing structure. The Report called for a
comprehensive review of the State’s mandatory drug sentencing laws

II

for certain non-violent felony offenders to determine whether further
reforms would be appropriate and consistent with public safety,
particularly with respect to the diversion of drug-addicted non-violent
felony offenders from prison to community-based treatment. It also
recommended the broader use of evidence-based sentencing and
correctional strategies to reduce crime and enhance public safety, as
well as the development of more efficient and cost-effective ways to
use the State’s limited correctional and community-supervision
resources. In addition, it recommended streamlining and strengthening
the State’s statutory framework for crime victims and, finally,
proposed the creation of a permanent sentencing commission for New
York.
Relying on an extensive body of data, the Commission, in its
Final Report, offers an expanded and more detailed series of proposals
and recommendations for simplification of New York’s sentencing
structure, reform of the State’s drug laws, implementation of evidencebased practices and other reforms in the areas of re-entry and
community corrections.
Part One of the Report provides a detailed history of sentencing
law in New York as an important focal point for understanding the
critical role of sentencing in New York’s criminal justice system and
the influences that have shaped it over time.
Part Two of the Report calls for simplification of New York’s
sentencing structure by adoption of a primarily determinate sentencing
system and offers extensive sentencing data to guide the State in
establishing fair and workable sentencing ranges for more than 200
non-violent felony offenses that currently carry indeterminate
sentences.
Part Three of the Report examines positions both for and
against additional drug law reform, the disproportionate impact of drug
sentencing on persons of color, the success of drug courts and drug
diversion programs, and data regarding the availability of diversion
programs throughout the State. The Commission provides
recommendations for the future direction of drug law reform and
offers a menu of options to expand the ability to divert prison-bound,
III

drug-addicted, non-violent felony offenders into treatment and to
impose alternative, non-prison, sentences for certain first-time felony
drug offenders.
Part Four reiterates the Commission’s call for a more evidencebased approach to sentencing, inmate programming, re-entry planning
and community supervision through the use of a common, validated,
risk and needs assessment methodology. The Commission also
recommends that Parole adopt a system of “graduated responses” for
parole rule violators and that New York continue to expand recent reentry initiatives designed to facilitate the seamless transition of
formerly incarcerated persons from prison back to the community.
Part Five of the Report includes proposals to expand eligibility
for the Department of Correctional Services’ (“DOCS”) successful and
cost-effective Shock Incarceration and Merit Time programs, as well
as recommendations to improve the program at the Willard Drug
Treatment Campus.
Part Six offers several victim-related proposals, including
recommendations designed to improve the ability of crime victims to
meaningfully participate in sentencing-related matters and to enhance
the collection of restitution from an offender when ordered by a court.
Finally, Part Seven urges the creation of a permanent
sentencing commission to better respond to emerging sentencing
trends in New York.
As was the case with the Commission’s Preliminary Report,
not every proposal and recommendation described in this Final Report
enjoyed the support of all the Commissioners, but the members did
reach unanimous, or near-unanimous, agreement on most proposals.
The lack of unanimity in these instances reflects the weighty and
complex nature of the subject matter and the deliberate approach taken
by the Commission members to their charge.

IV

II.

Greater Simplicity in Sentencing
A.

Adopting a Predominately Determinate Sentencing
System: Determinate Ranges

Sentencing experts and practitioners alike stressed to the
Commission the difficulties of navigating a system of sentencing that
has not been comprehensively revised in more than four decades.
Operating in a hybrid system where most violent, sex and drug
offenses are punished by determinate sentences while hundreds of
non-violent, non-sex, non-drug offenses are punished by indeterminate
sentences makes sentencing in New York needlessly complex.
Determinate sentencing has been the unmistakable trend in New York,
with the Legislature recently adding all felony drug and sex offenses to
the list of crimes carrying a determinate, rather than indeterminate,
sentence.
As a step toward greater simplification in sentencing, the
Commission, in its Preliminary Report, recommended converting from
indeterminate to determinate the authorized prison sentences for more
than 200 non-violent, non-sex, non-drug felony offenses. Supported
by all but two members, the Commission’s recommendation was based
on the belief that, as compared to indeterminate sentencing, the
determinate model promotes greater uniformity, fairness and “truth-insentencing.” The determinate model facilitates more informed plea
bargaining and allows the parties, the court, and the victim to have a
clearer picture of the actual time the defendant is likely to spend under
custody.
The challenge for the Commission was to arrive at a set of fair
and workable sentencing ranges for these offenses. Most members
agreed that, given the extremely diverse types of crimes included in
this “catch-all” group of non-violent felony offenses, the
Commission’s proposed determinate ranges should preserve the fairly
broad range of prison sanctions currently available to sentencing
judges under the indeterminate structure, while taking into account the
very different ways these two types of sentences are calculated. These
Commissioners further believed that the new determinate ranges
should be informed by time-served data for the various crimes so the
V

conversion to determinate sentences does not result in appreciably
longer or shorter periods of incarceration than for offenders serving
sentences under the existing indeterminate model.
In what may be the first such effort in the State’s history, the
Commission conducted a comprehensive review of DOCS’ prison
release data over a 23-year period (1985 to 2007) to determine the
actual prison time served by offenders sentenced under the existing
indeterminate scheme for each of the targeted Class B through Class E
non-violent felony offenses.
The Commission examined three distinct models for
establishing determinate ranges for these offenses:
x

A Conditional Release-Based (“CR-based”) model that
establishes the maximum determinate sentence by matching, as
closely as possible, the conditional release point of the
proposed maximum determinate sentence to the conditional
release point of the current maximum indeterminate sentence.

x

A “Time-Served” (or “98%”) model that uses time-served data
for the 23-year DOCS’ release group to determine the point at
which 98% of all releasees in a given classification level (e.g.,
98% of all Class B felons) had been released on their
indeterminate sentences; that number is then used to fix the
proposed maximum determinate sentence.

x

A “Determinate Drug” model that adopts the same sentence
ranges for these 200-plus non-violent felony offenses that were
established by the Legislature when it converted prison
sentences for all felony-level drug offenses from indeterminate
to determinate in 2004.

Most Commissioners preferred the CR-based model because they
agreed that it came closest to the stated goal of preserving the scope of
prison sanctions available to judges under current law. Under this
model, the minimum determinate term for Class B through Class E
first-time felony offenders would be fixed at one year, and the
maximum terms would be fixed at 16, 12, 5 ½ and 3 years,

VI

respectively. For second felony offenders, the minimum terms for
Class B through Class E felony offenses would be fixed at 5, 3½, 2
and 1½ years, respectively, and the maximum terms would be identical
to those for first-time felony offenders. Both first and second-time
felony offenders would be required to serve a post-release supervision
period of one to three years as directed by the judge.
Although some of the proposed ranges under the time-served
model were comparable to those of the CR-based model, the timeserved proposal was rejected by most Commission members in part
because it would call for the reclassification of one, and possibly two,
more serious offenses to a higher felony classification level to avoid
having to fix unduly long ranges for the remaining, less serious,
crimes.
While two Commissioners strongly supported adoption of the
determinate drug model, the remaining members felt that the drug
ranges were simply not broad enough at the higher end of the
sentencing spectrum to account for the wide variety and potential
seriousness of the criminal conduct encompassed by the more than 200
offenses targeted for conversion. These members noted that the
express purpose of the 2004 drug reform legislation was to
substantially reduce prison sentences for drug offenders, not convert
existing indeterminate drug ranges to comparable determinate ranges.
As a critical component of any system of criminal justice, a
State’s sentencing structure must be intelligible, honest and fair. The
public, as well as the defendant and the victim, must have a clear
understanding of the actual term of the sentence to be served. The
Commission believes that the transition to a determinate sentencing
structure in New York will provide more clarity and fairness in
sentencing, and thereby further streamline New York’s complex
hybrid system of indeterminate and determinate State prison sentences.
B.

Targeted Simplification of New York’s Sentencing
Laws

In addition to proposing determinate sentencing ranges for nonviolent felony offenses, the Commission believes that adopting
VII

additional targeted reforms would help to simplify and clarify New
York’s overly complicated sentencing laws. Accordingly, the
Commission proposes amendments to existing law to: replace the
sometimes misleading “violent felony offense” designation in Penal
Law §70.02 with “aggravated felony offense” while retaining all
sentencing and other statutory requirements pertaining to these crimes;
replace the special indeterminate sentencing provision for domestic
violence-induced first-time violent felony offenders with a comparable
determinate sentencing provision; simplify the Penal Law §§70.25 and
70.30 rules regarding consecutive and concurrent sentences and the
Penal Law §70.30 consecutive sentence “cap” provisions; move (or
cross-reference) all “back-end” sentencing provisions such as those
relating to good time, merit time and Shock Incarceration to a single
article of law; provide for an exception to existing Criminal Procedure
Law (CPL) plea bargaining restrictions where the court and parties
agree; and address existing anomalies in the Penal Law and CPL.
III.

A Measured Approach to Reforming New York’s Drug
Laws
A.

The Rockefeller Drug Laws and the 2004 Drug Law
Reform Act

In 1973, then-Governor Nelson Rockefeller, in response to a
burgeoning heroin epidemic and a rising tide of substance abuse and
drug-related crime, introduced and obtained passage of comprehensive
legislation to overhaul the State’s drug laws. The new laws required a
minimum sentence of 15-years-to-life for a first-time conviction for
selling one ounce, or possessing two ounces of a controlled substance,
and mandated incarceration for all Class A, B and C drug felonies.
Collectively, New York’s “Rockefeller” drug laws were considered
the toughest in the nation at the time of their enactment.
Amendments to the State’s drug laws in 2004 and 2005
reflected the view of the Legislature and Governor that the lengthy
mandatory minimum terms and long maximum prison sentences
associated with the Rockefeller drug laws were unnecessarily harsh for
many non-violent felony drug offenders. By converting sentences
from indeterminate to determinate, fixing significantly shorter ranges
VIII

for most of these crimes, raising the minimum required weights for
certain Class A felony drug possession offenses and allowing the
resentencing of certain felony drug offenders serving life sentences,
the 2004 Drug Law Reform Act (DLRA), and follow-up legislation in
2005, ameliorated some of the more onerous aspects of the decadesold drug statutes. Although these revisions were seen by many as a
long overdue change in New York’s drug sentencing policy, their
enactment did not quell the drug reform debate. To the contrary, in
public hearings, focus group sessions and Commission meetings,
defense advocates and others argued that the reforms did not go far
enough, while law enforcement officials voiced strong opposition to
further reform of the drug laws.
B.

Examining the Data: The Case For Reform

Consistent with its approach to sentencing reform generally,
the Commission examined the emotionally and politically charged
issue of drug law reform from a data-driven perspective. The
Commission reviewed data to assess the impact of the DLRA and
found that a growing number of drug offenders have benefitted from
reduced sentences as a result of the 2004-2005 drug law changes. As
of December 31, 2008, a total of 252 Class A-I felony drug offenders
have been resentenced pursuant to the DLRA and released from
DOCS’ custody an average of 50 months prior to their previously
calculated earliest release dates. A total of 232 Class A-II felony drug
offenders have been resentenced and, on average, released 13 months
prior to their previously calculated earliest release dates. Three years
after the DLRA was enacted, the average minimum term for new drug
commitments, as well as the average time served in custody, decreased
by approximately six months. Significantly, this has been achieved
without a detrimental impact on public safety: crime continued to fall
to historic lows in 2006 and 2007.
The Commission focused, in particular, on data relating to the
diversion of drug-addicted non-violent felony drug offenders from
prison to community-based treatment, and questioned whether New
York’s broad network of existing diversion programs provided equal
access to diversion for non-violent drug-addicted offenders in all parts
of the State. The Commission began by conducting an in-depth
IX

examination of the State’s large and successful network of felony drug
treatment courts and proven prosecutor-based diversion programs like
the flagship Drug Treatment Alternative-to-Prison (DTAP) program in
Kings County. It reviewed eligibility criteria, program characteristics,
retention, completion and recidivism rates and other details of these
established diversion models to learn how they operate and what
makes them successful. The Commission came away with a strong
appreciation of the effectiveness of these programs and their
successful use of “legal coercion” to motivate non-violent felony
offenders whose criminal behavior is precipitated by their addiction to
enter and remain in long-term treatment.
To shed light on the question of equal access to diversion
alternatives, the Commission compared data on the likelihood of
receiving a State prison sentence on a felony drug indictment or
superior court information in 18 counties around the State. It found
that for similarly-situated offenders who were indicted following a
Class B felony drug arrest, the chances of receiving a sentence to State
prison could vary dramatically, in some cases by a factor of five or
even seven, depending on the county where the case was prosecuted.
The Commission also studied drug admission and “under custody”
data from DOCS and, consistent with national data on admissions to
prison for drug crimes, found disturbing racial and ethnic disparities.
In each of the last five years, African Americans constituted a
dramatically higher percentage of total DOCS’ admissions for drug
offenses than did whites. The DOCS’ data show that, from 2003 to
2007, white offenders, on average, made up 10% of total drug
admissions to DOCS, while African Americans made up 55%. During
the same five-year period, Hispanic drug offenders constituted, on
average, 34% of total DOCS’ drug admissions. While African
Americans and Hispanics comprised 32% of the State’s population
ages 16 and older in 2008, they accounted for nearly 90% of all
offenders in DOCS custody for a drug offense that year.
Finally, the Commission noted well-documented disparities in
the availability of substance abuse treatment providers, especially
between rural and urban areas of the State, as well as in eligibility
criteria for existing diversion programs. For example, while some
upstate and suburban New York City jurisdictions operate substantial
X

second felony offender diversion programs similar to DTAP, many
counties have only a limited program or no program at all for second
felony offenders. While all but five counties in the State currently
have a felony-level drug treatment court, many of these courts target
primarily first-time felony offenders and some do not accept offenders
charged with drug sale offenses. The result is what might best be
characterized as a “patchwork” system for diverting drug-addicted
non-violent felony offenders from prison into treatment.
C.

Principles of Reform

Based on this data, and on information gathered from
Commission meetings, focus groups and public hearings held around
the State, the Commission reached near-unanimous agreement on
several key principles in the area of drug law reform.
First, as noted in its Preliminary Report, “the judicious use of
community-based treatment alternatives to incarceration to address an
underlying drug, alcohol or other substance abuse problem can be an
effective way to end the cycle of addiction and the criminal behavior
that inevitably follows.” Stated differently, community-based
substance abuse treatment -- especially when applied in a “legally
coerced” criminal justice setting where the addicted offender faces
swift and certain punishment for failure in treatment -- does work, and
should be a readily available option in every region of the State.
Second, New York’s existing network of diversion programs
and drug courts is well-established and effective for thousands of nonviolent drug-addicted offenders who have seized the opportunity to
turn their lives around by choosing treatment in lieu of prison. As
such, the Commission believes that any uniform diversion model
adopted in the State should supplement, not supplant, these proven
models and must be carefully structured to avoid undermining or
negatively impacting them.
Third, despite the availability of drug treatment courts and
other diversion programs such as DTAP, there is evidence that a
sizeable number of potentially eligible non-violent drug-addicted
felony offenders may be “slipping through the cracks” of the existing
XI

diversion network, ending up in prison instead of community-based
treatment. As a matter of simple fairness, diversion options should be
made available to drug-addicted, non-violent felony drug offenders
regardless of the county or region of the State in which their case is
prosecuted. Nearly all Commission members agree that by creating
uniform standards for determining which offenders are drug addicted
and would benefit from treatment, and giving courts additional
authority to divert such offenders into treatment, fewer offenders who
are otherwise suitable for diversion will be overlooked or denied the
opportunity for treatment.
Fourth, the Commission recognizes that no drug diversion
program exists in a vacuum. Unless the necessary treatment beds and
other community-based resources are in place and adequately funded,
no diversion model, no matter how well-designed or operated, can
succeed. As such, the Commission reiterates its earlier call for a
comprehensive plan to provide statewide access to treatment programs
and eliminate identified gaps in treatment services.
Finally, the Commission believes that New York must continue
to reserve costly prison resources for high-risk, violent offenders while
making greater use of community-based alternatives to incarceration
for non-violent felony drug offenders. Over the last decade, New
York has made substantial progress in that direction. While many
states continue to face exploding prison populations and increases in
crime, New York enjoys the distinction of having significantly reduced
its prison population and the percentage of non-violent drug offenders
in DOCS’ custody while simultaneously improving public safety.
Against this backdrop, the Commission believes that while it is
important to continue to reform New York’s drug laws, such reforms
should be carefully tailored so that the State’s significant gains in
public safety are not lost.
D.

Proposals For Reform

To further the goal of establishing a uniform statewide model
for diverting drug-addicted non-violent felony offenders from prison to
treatment, the Commission examined a series of new and existing
diversion proposals, including a “Court Approved Drug Abuse
XII

Treatment” (“CADAT”) model contained in a sweeping drug reform
measure (A. 6663-A/S. 4352-A [2007]) which was introduced in the
New York State Senate and passed by the State Assembly, and a
Commission-devised proposal for “Judicial Diversion.” It also
reviewed two drug reform proposals for first-time Class B felony drug
offenders that would allow imposition of a local jail or probation
sentence in lieu of the current mandatory minimum one-year State
prison sentence for these offenders without regard to whether the
offender suffered from or was in need of treatment for drug addiction.
Although the Commission was unable to reach unanimous
agreement on any one reform proposal, a majority of the
Commissioners agreed that the Judicial Diversion model was the most
promising in that it struck an appropriate balance between the need to
give judges expanded authority to divert drug-addicted non-violent
felony offenders into treatment and the need to ensure public safety.
Even those supporting Judicial Diversion recognized, however, that
there were certain drawbacks to the model and certain positive and
negative features of the other models. In the end, it was agreed that
the best approach, and the one most likely to advance the cause of real
drug law reform in New York, was to provide a “menu” of options,
laying out the specifics of the various models considered, together
with a frank and informed discussion of the advantages and
disadvantages of each, for the benefit of the Governor, Legislature and
Judiciary.
1. Judicial Diversion
Under the Judicial Diversion proposal, certain drug-addicted,
first-time and repeat non-violent felony offenders would be eligible for
diversion provided the offender’s criminal history does not include
certain disqualifying offenses and he or she is found to be in need of
treatment for substance dependency. Under this proposal,
prosecutorial consent is not required. Both first-time and second
felony offenders would be required to complete 12 to 24 months of
drug treatment, with second felony offenders required to spend a
minimum of six months in intensive residential treatment. First-time
felons would be required to complete outpatient or residential
treatment under the supervision of the local probation department as
XIII

part of an “interim probation” disposition. Second felony offenders
would complete treatment as part of a five-year probation sentence or,
at the discretion of the judge, would be supervised by the State
Division of Parole as part of a newly created “interim parole
supervision” disposition. Consistent with the drug court model, all
offenders, during periods of outpatient treatment, would be required to
appear regularly before the judge, who would use a system of
graduated sanctions to respond to relapses or other negative behavior.
Offenders who ultimately fail in treatment or violate another
significant condition of supervision would face a sentence of
imprisonment; those who successfully complete treatment and
probation (or parole) supervision would avoid prison and have the case
record sealed.
To measure the possible impact of the Judicial Diversion
proposal, the Commission applied the proposal’s legal eligibility
criteria to a pool of felony drug offenders admitted to DOCS in 2006.
Based on its analysis, the Commission estimated that as many as 3,000
additional felony offenders might be diverted from prison into
treatment each year under the model. Notably, 89% of these
potentially eligible offenders were African American or Hispanic.
Further, the felony drug offenders in this potentially eligible pool of
3,000 represent nearly half (46%) of all felony drug admissions to
DOCS in 2006.
Some prosecutors and drug court judges were concerned that
implementation of Judicial Diversion could lead to “program
shopping” by defense attorneys in search of the “best deal” for drugaddicted clients, and this could threaten the very existence of proven
diversion options like DTAP and drug courts. Some Commissioners
who were generally supportive of the Judicial Diversion proposal also
were concerned that the State’s existing network of intensive
residential treatment and community residence beds is already strained
and cannot accommodate the additional volume of offenders that
would likely be diverted under the model. They noted that the
situation almost certainly would be exacerbated by the State’s
economic crisis, which is likely to have an immediate and lasting
impact on funding for probation departments and treatment programs.
These members recommended that, as a matter of public safety,
XIV

Judicial Diversion for second felony offenders be deferred until more
intensive residential treatment beds, halfway houses and other
necessary treatment and supervision resources are in place throughout
the State.
2. Judicial Diversion on Consent of the Parties
Consistent with the views of a majority of the State’s
prosecutors, one Commission member argued in favor of adopting the
Judicial Diversion proposal for first-time and second felony offenders,
but with the added requirement that diversion be permitted only where
the prosecutor consents to the disposition. While agreeing that the
concept of an additional, statewide, diversion model has merit, it was
argued that the decision to divert a particular offender into treatment
should be a shared decision, and should not be left to the judge alone.
Although there are sound reasons for requiring that the court and the
prosecutor both agree that a particular offender be diverted to drug
treatment, a large majority of Commission members believe that, as
reflected in the Judicial Diversion proposal, judges should make the
final decision about whether an offender should be diverted.
3. Court Approved Drug Abuse Treatment
Under the CADAT model, certain first-time and repeat felony
drug offenders would be eligible to apply to the court for a CADAT
diversion order. Persons currently or previously convicted of a violent
felony offense, sex offense or one of a number of other disqualifying
crimes would be ineligible for CADAT. Upon application of an
apparently eligible defendant, the court would order an alcohol and
substance abuse assessment and adjourn the matter for 21 days to
allow a prosecutor to make a determination as to the defendant’s
suitability for diversion. If it appears to the court that the defendant
also may be a person with a mental illness, the court must order that
the assessment include a mental health examination to be conducted by
an examining physician or certified psychologist. The court would be
authorized to issue a CADAT order for a period of not less than one
nor more than two years, with possible additional periods of up to six
months. In the court’s discretion, a CADAT order could be issued
either prior to the entry of a guilty plea -- in which case all discovery
XV

requests, pre-trial motions and other proceedings in the case would be
automatically stayed pending the offender’s completion of treatment -or following a guilty plea, in which case sentencing on the plea would
automatically be deferred pending completion of treatment.
Upon ordering CADAT, a court would impose reasonable
conditions related to supervision and treatment and direct that the local
probation department or another entity supervise the defendant. Such
treatment must include a period of residential treatment unless the
court finds it unnecessary. As with Judicial Diversion, the court would
be required to employ a system of graduated responses or sanctions
designed to address inappropriate behaviors. A defendant sentenced
for a conviction following a termination of CADAT could receive up
to the maximum term that the court would have imposed had the
defendant not participated in CADAT. Upon the defendant’s
successful completion of CADAT, the court would be required to
comply with the terms and conditions it set for final disposition, which
may include vacatur of any guilty plea entered prior to issuance of the
CADAT order.
Those who preferred the CADAT model stressed that the
proposal had fewer criminal history exclusions and would result in
more diversions of qualified offenders from prison into treatment.
They further noted that the proposal, as part of a much more
comprehensive drug law reform measure that had already passed the
Assembly, had been fully vetted through public hearings and
legislative debate and was supported by many drug law reform
advocates. Opponents of CADAT argued that, unlike the Judicial
Diversion proposal, the model categorically excludes from diversion
non-violent second felony offenders charged with non-drug felony
offenses, and allows judges to divert offenders without first requiring a
plea of guilty, thereby creating potential problems for prosecutors
who, following a failure in treatment, may have to proceed to trial
months or even years after the initial CADAT order was issued.

XVI

4. Eliminating the Mandatory Minimum Prison
Sentence for First-Time Class B Felony Drug
Possession and Sale Offenses
Two proposals considered by the Commission would allow
judges, without regard to a defendant’s addiction status or need for
treatment, to sentence certain first-time Class B felony drug sale and
possession offenders to a probation or local jail sentence in lieu of the
current mandatory minimum prison sentence of one year.
Under the first proposal, dubbed the “aggravated sale and
possession” model, a judge would be authorized to impose this
alternative sentence upon a first-time felony offender convicted of the
Class B felony of criminal sale of a controlled substance in the third
degree or criminal possession of a controlled substance in the third
degree. The proposal would, however, create new “aggravated”
versions of these crimes that could be charged in cases where the
defendant either sold drugs to a minor or, at the time of the sale or
possession or the arrest thereon, possessed a loaded or unloaded
firearm or other gun. Defendants convicted of the aggravated offense
would be ineligible for the alternative, non-prison, sentence.
The second proposal would simply eliminate the mandatory
minimum prison sentence for first-time Class B felony drug sale and
possession offenders without creating “aggravated” versions of these
crimes.
These proposals received only limited support among
Commission members. Commissioners heard from drug court judges
and prosecutors that enacting a non-prison sentencing alternative for
first-time Class B felony drug offenders could have a detrimental
impact on existing drug courts, which hold the promise of a non-prison
disposition as the “carrot” to entice drug-addicted first-time felony
offenders to undergo the rigors of long-term treatment. Moreover,
because the proposals allow for a reduced sentence for felony drug
offenders without requiring a dependency assessment of the defendant
or treatment for those found to be drug dependent, many
Commissioners felt that the proposals would do little to end the cycle
of addiction and could result in an entirely new class of drug-addicted
XVII

predicate felons who, upon commission of a subsequent felony drug
offense, would face a 3½-year mandatory minimum prison sentence.
5. Recommendation
Despite New York’s established network of successful
diversion programs and drug courts, evidence suggests that a
significant number of non-violent felony offenders who could benefit
from diversion to community-based treatment for substance
dependence are not provided this potentially life-changing alternative
to prison. A majority of Commissioners agree that establishing a
uniform statewide diversion program for drug-addicted non-violent
felony offenders would help close this gap in access to diversion and
would benefit, in particular, those African American and Hispanic
offenders whose non-violent criminal behavior is rooted in addiction.
The Commission recognizes that this will require an investment in
additional resources for evaluation, treatment, referrals and
supervision of offenders and that finding these resources will be a
challenge given New York’s current fiscal crisis. The Commission
believes, however, that in the long run this investment will result in
substantial savings in judicial, law enforcement, correctional and
supervision resources by reducing the costly cycle of addiction and
recidivism. More importantly, it will offer much needed relief to those
families and communities adversely impacted by disproportionate drug
incarceration rates by transforming formerly drug-addicted offenders
into productive family and community members.
IV.

Using Evidence-Based Practices to Improve Offender
Outcomes

New York is one of the few states in the nation that has
continually reduced crime while simultaneously decreasing its prison
population. While this is an impressive achievement, the State’s
criminal justice policymakers must continue to identify areas that can
yield further gains in public safety while reducing reliance on costly
prison resources.
Data show that more than one in three offenders (39%) who are
released from incarceration in the State return to prison within three
XVIII

years of release. While New York has taken significant steps to
increase the likelihood of successful offender re-entry, more can be
done. The Commission recommends, for example, that DOCS, the
Division of Parole and the Division of Probation and Correctional
Alternatives adopt a common risk and needs assessment methodology
to help identify those who pose the greatest risk to public safety and
are most likely to re-offend. The Commission further recommends
that Parole and Probation concentrate their resources in the earliest
stages of supervision and reserve intensive supervision for those
offenders who pose the highest risk of re-offending. Adopting these
policies will allow supervisory agencies to effectively allocate limited
resources to the population of offenders most in need of those
resources, and will focus resources on that initial period of supervision
when offenders are most likely to recidivate.
Another area where New York can significantly improve the
chances for successful re-entry and reduce recidivism is in the way it
deals with parole rule violators. As the most expensive resource,
prison should be reserved for those offenders who pose the greatest
threat to public safety. In 2006, more than 12,000 parolees were
returned to incarceration in New York State for violating a condition
of parole (an 11% increase from 2005). More than 40% of those
returns occurred in the absence of a new criminal charge.
The Commission was committed to finding an alternative to
the all-or-nothing approach of responding to parole rule violators.
With the assistance of the Division of Parole and the Vera Institute of
Justice, the Commission examined New York State offender data
pertaining to parolees returned to prison and reviewed how other states
respond to such violations. The Commission determined that by
creating a comprehensive system of graduated responses, parole
officers throughout the State will be able to quickly and
proportionately respond to parole violations. The application of
graduated responses, such as curfews, electronic monitoring, and
increased reporting, coupled with the use of a risk and needs
assessment instrument, will allow parole officers to impose the
appropriate community-based sanction, not based solely on the
condition that was violated, but also on the assessed risk posed by the
individual offender. These tools will help parole officers reserve
XIX

incarceration for those offenders who pose the highest risk, without
unduly jeopardizing re-entry progress made by low-risk offenders.
New York should implement these policies to make immediate gains
in public safety and re-entry, while reducing reliance on expensive
prison resources for low-risk offenders.
Finally, the Commission recommends expanding upon the
recently established re-entry initiatives in New York State, such as the
county re-entry task forces, the Orleans Re-entry Unit and the
Edgecombe pilot program for parole violators in need of drug
treatment.
V.

Expanding Successful DOCS’ Programs and Improving
Willard

The Commission examined programs operated by DOCS that
not only reduce the amount of time offenders are incarcerated and
thereby reduce prison costs, but also prepare those same offenders for
successful transition back into the community. DOCS’ Shock
Incarceration Program combines a rigorous regimen of physical
activity, discipline and drug treatment within a structured, military-like
environment. After applying the statutory eligibility criteria, DOCS
screens each eligible inmate for program suitability. The recidivism
rates for Shock participants have yielded better results than for
comparison groups. Moreover, the program has saved the State an
estimated $1.06 billion since the program began in 1987. The
Commission believes that the State can further capitalize on DOCS’
proven expertise in running this cost-effective program and its success
in screening out inmates who are inappropriate for Shock participation.
Accordingly, the Commission recommends extending the statutory age
of eligibility for Shock participation to those who are under 50 years of
age; currently inmates must be under 40 to enter Shock. Additionally,
the Commission recommends expanding Shock eligibility criteria to
allow inmates to be admitted who are otherwise eligible for the
program but do not meet the current statutory requirement that they be
within three years of their parole eligibility date (for indeterminate
sentences) or conditional release date (for determinate sentences) at
the time they are initially received at a DOCS’ reception center. This
proposal would, for the first time, allow DOCS to recruit suitable
XX

Shock participants from general confinement into the program when
they come within the three-year eligibility timeframe.
Similarly, DOCS’ Merit Time Program aims to prepare eligible
inmates serving sentences for non-violent felony offenses for
successful re-entry through the opportunity to earn a one-sixth time
allowance off the minimum period of their sentence (one-seventh for
determinate drug sentences) by engaging in beneficial programming
while incarcerated. The Commission believes that a flat six-month
merit credit also should be made available to violent offenders (other
than sex offenders), as well as certain Class A-I non-drug felony
offenders, who demonstrate a likelihood of rehabilitation in prison and
successfully complete specified enhanced DOCS’ program
requirements.
In its Preliminary Report, the Commission recommended that
DOCS and OASAS work together to improve the quality of drug
treatment within DOCS and, in particular, at the Willard Drug
Treatment Campus in Seneca, New York. Since then, DOCS and
OASAS have collaborated on key recommendations to improve
Willard’s 90-day intensive substance abuse treatment program. These
include conducting smaller therapy groups of no more than 15
offenders, increased one-on-one counseling and updated curricula
including a concentration on re-entry issues during the final 30 days of
the program. The Commission supports these joint recommendations.
VI.

Crime Victims and Sentencing

New York has enacted a number of statutes that reflect the
critical role played by victims in the criminal justice process and, in
particular, in sentencing-related matters. The Commission learned that
in some instances there is a disconnect between the many rights
granted crime victims under the law and the actual exercise of those
rights by victims. The Commission believes that this is due, in part, to
the sheer complexity of the numerous statutory provisions governing
crime victims’ rights and the absence of any effective means of
enforcing those rights. In order to streamline and make more
accessible to judges, lawyers and crime victims the multitude of
statutory and regulatory provisions governing the rights of crime
XXI

victims in the State, the Commission recommends that these
provisions be moved to a single article of law or that a crossreferencing chart or other similar resource tool be created and
incorporated into the Criminal Procedure Law or Penal Law and be
periodically updated so that crime victims, and the criminal bench and
bar, can easily access a list of all victim-related statutes.
The Commission further recommends that the statutorilyrequired training of prosecutors and judges in the area of victims’
rights be expanded and enhanced to ensure that they are made fully
aware of their obligations with respect to victim notification and the
substantive rights of crime victims. Of particular importance are the
obligations that prosecutors and judges have in preserving the
restitution-related rights of crime victims. The Commission also finds
that certain existing rights, such as the right to seek and collect
restitution or reparation from an offender, might be significantly
advanced through relatively minor amendments to existing law,
including the addition of a provision allowing offenders to pay
restitution by credit card. Finally, the Commission finds that the
existing statutes establishing the rights of crime victims in the area of
sentencing may be unduly narrow and that expansion of those rights
should be considered.
VII.

Permanent Sentencing Commission

Based on testimony presented to the Commission by
policymakers, practitioners, academics and advocates, it has become
clear that criminal justice in general, and sentencing in particular, are
areas where law, practice, research and policy are constantly evolving.
There was a consensus among members of the Commission that the
State should give serious consideration to the creation of a permanent
body dedicated to the ongoing evaluation of relevant sentencing laws
and policy. A permanent sentencing commission would serve as an
advisory body to the legislative and executive branches of government
and would review and comment on proposed sentencing legislation.

XXII

VIII. Conclusion
The sentencing function is arguably the most critical in any
criminal prosecution. The judge’s sentencing decision has immediate
and often dramatic consequences for the offender and the victim and
profound consequences for the community over the long term. The
principal recommendations in the Commission’s Final Report -- to
clarify and streamline the sentencing laws and expand the ability of
judges to divert drug-addicted non-violent felony offenders from
prison into community-based treatment -- reflect these principles and
are intended to improve a sentencing system that is overdue for
reform.
The Commission recognizes that sentencing in the broadest
sense does not end with the judge’s pronouncement at the conclusion
of a criminal case. In most instances, this pronouncement marks the
beginning, rather than the end, of a lengthy journey toward successful
reintegration of the offender as a productive and law-abiding member
of society. In recommending further reforms aimed at expanding the
use of proven programs and evidence-based methods to improve the
transition of offenders from prison back into the community, the
Commission believes New York can reduce its reliance on costly
prison resources while enhancing public safety.
In fulfilling its broad mandate, the Commission has a historic
opportunity to have a positive and lasting effect on criminal justice
policy in the State. The Commission respectfully submits this Final
Report to the Governor, Legislature and Judiciary with the expectation
that it will serve as a roadmap for future sentencing reform and help
make New York’s sentencing system the standard by which all others
are measured.

XXIII

PART ONE
CRIMINAL SENTENCING IN NEW YORK:
A HISTORICAL OVERVIEW

1

Part One
Criminal Sentencing in New York State:
A Historical Overview
Two major themes reoccur throughout the history of sentencing
in New York State. First, sentencing authority has generally been
allocated in accordance with policymakers’ beliefs about the
appropriate purposes of the criminal sanction. The three main crime
control purposes are rehabilitation, incapacitation and deterrence.
Retribution, the fourth traditional purpose of punishment, does not try
to control crime in the future; instead, retribution is simply the
punishment deserved for the crime. The relative priority to which
policymakers have accorded these four objectives of the criminal
sanction has varied throughout history and, generally, that variation
has been driven by changes in social perceptions about crime and
punishment.
The second recurring theme is that sentencing laws rarely have
been systematically and comprehensively revised. Instead, a pattern of
piecemeal and ad hoc change characterizes the history of sentencing in
New York. Today’s sentencing laws are overly complex, but this is
not surprising since it has been more than 40 years since the last
comprehensive revision of the sentencing laws. During that time,
opinions and policies also have shifted, and shifted back again, on
whether a determinate or indeterminate sentencing structure best
achieves whatever goals and objectives predominate at a particular
time. New York currently has a hybrid system, employing both
determinate and indeterminate sentences within the same code.
I.

THE EARLY DAYS

Deterrence was the central objective of penal policy in colonial
New York as well as during the early years of statehood. The severity
of the criminal sanction was intended to frighten, and thereby deter,
the would-be offender from committing a crime. Following the
European tradition, punishment in New York consisted of a variety of
sanctions: stocks, pillories, and other forms of public shaming; fines

2

and restitution orders; banishment from the jurisdiction; flogging,
branding, and other types of corporal punishment; and the gallows.1
Individuals were subject to the death penalty for more than 200 crimes,
ranging from pick pocketing to horse stealing to murder.2 The State
was not in the business of incarcerating convicted felons; neither were
the localities. County jails were reserved primarily for pre-trial
detainees and debtors. Changing conceptions of the efficacy of
extreme punishment culminated in the nineteenth century movement
away from capital punishment and the creation of the “fortress”
prison.3
The New York State Legislature adopted a new penal code in
1796. It abolished corporal punishment, reserved the gallows for
murderers and traitors and established the State’s prison system.4
Sentences were determinate: offenders served their entire term unless
released early by executive clemency or pardon. Determinate
sentencing was thus adopted in New York for the first time but, unlike
its later manifestations, this early version was designed primarily to
achieve the crime control purpose of deterrence.
During the early days of the prison era (1823-1877), the crime
control emphasis shifted from deterrence to reformation, the precursor
to rehabilitation. Similar to the reform movement led by the Quakers
in Pennsylvania, New York’s new sentencing system was premised on
the belief that crime was caused by the criminal’s corrupt
environment. The penitentiary, home of the “penitent,” was perceived
as the State’s optimal response to criminal behavior. It was thought
that by forcing offenders to conform to an orderly routine and by
1

See generally, Executive Advisory Committee on Sentencing, Crime and
Punishment in New York: An Inquiry Into Sentencing and the Criminal Justice
System (March 1979); Orlando F. Lewis, The Development of American Prisons and
Prison Customs, 1776-1845 (Prison Association of New York 1922); David J.
Rothman, The Discovery of the Asylum: Social Order and Disorder in the New
Republic (Little, Brown & Co. 1971).
2
See, Executive Advisory Committee on Sentencing, supra, note 1; J. Goebel, Jr.
and T.R. Naughton, Law Enforcement in Colonial New York: A Study in Criminal
Procedure (1664-1776) (New York 1944).
3
Rothman, The Discovery of the Asylum, supra, note 1.
4
W. David Lewis, From Newgate to Dannemora: The Rise of the Penitentiary in
New York, 1796-1848 (Cornell University Press 1965).

3

isolating them from temptation -- and from each other -- the
penitentiary would lead the way out of crime.
The New York State Penitentiary at Auburn was completed in
1823; two years later the prisoners from Auburn traveled down the
Hudson River to build Sing Sing Prison in Ossining. Those two
structures became early monuments to the reform paradigm. New
York’s penal institutions were run under the “silent system”: prisoners
slept alone in small cells at night and congregated silently during the
day to work and eat. Forbidden to even glance at one another, inmates
were expected to contemplate their wayward pasts, do penance and
emerge reformed.
In practice, the operation of the prisons fell far short of the
ideals that inspired their creation. Once prisoners became long-term
residents, the problems of maintaining the silent system became
painfully apparent. Guards enforced discipline with lashes and cat
o’nine tails; hanging prisoners by their thumbs was routine, as were
other bizarre and brutal punishments such as dunking them in the
infamous water cribs.5 It was again time for reform; the social climate
was ripe for the emergence of a new approach.
II.

THE RISE OF THE REHABILITATIVE MODEL: 18771970

From the late 1800s to the early 1970s, the emphasis moved
toward crime control through rehabilitation. Policymakers in this era
believed that their predecessors had been wrong in assuming that all
offenders could be reformed through the ubiquitous prison routine.
Simultaneously, there was a shift away from determinate sentencing
and toward indeterminate sentencing. Progressive era reformers
argued that a case-by-case approach to sentencing was best, with
punishment tailored to the needs of each offender. A medical
analogue was frequently invoked: just as the doctor could not predict
the date on which the patient would be restored to health, the
5

Rothman, The Discovery of the Asylum, supra, note 1; David J. Rothman,
Sentencing Reform in Historical Perspective, Crime and Delinquency (October
1983), at 633.

4

sentencing judge could not predict when an offender would be
rehabilitated. The reformers shared a basic trust in the state and a faith
that criminal justice experts could be relied upon to benevolently
exercise their unlimited discretion.6
The change sought by the reformers squared poorly with the
existing determinate sentencing system. The new model required
maximum flexibility; rules could not be made in advance. Because
each case was different, each required a different response. The first
application of indeterminate sentencing in the United States is traced
to an experiment in 1877 at the Elmira Reformatory. First-time male
offenders between the ages of 16 and 30 who, according to the
sentencing judge, were likely candidates for rehabilitation were
sentenced “until reformation, not exceeding five years.”7 With
instructions in moral as well as academic subjects, inmates were
rewarded for good behavior with early release. The Board of
Managers at Elmira determined the release date and members of the
New York Prison Association, a prestigious philanthropic society,
provided services in the community to the releasees. The legacy of the
progressive era’s innovations in criminal justice is far-reaching:
probation, parole, indeterminate sentencing, diversion and juvenile
courts all rose to prominence under this model.
In time, release decisions shifted from prison authorities to
parole authorities. By 1901, indeterminate sentencing and parole
release were available in New York for first-time offenders with
sentences of five years or less.8 The indeterminate sentence was
extended in 1907 to all first-time offenders, except murderers.9 By
1922, 37 states had adopted some form of indeterminacy and 44 states
had parole boards.10
6

David J. Rothman, Conscience and Convenience: The Asylum and its Alternatives
in Progressive America (Little, Brown & Co. 1980).
7
Lindsey, Historical Sketch of the Indeterminate Sentence and Parole System, 16 J.
Crim L. & Criminology 1 at 21 (1925); see also, Lawrence Travis, III and Vincent
O’Leary, Changes in Sentencing and Parole Decision Making: 1976-78 (National
Parole Institute and Parole Policy Seminars 1979).
8
Laws of 1901, ch. 260.
9
Laws of 1907, ch. 737.
10
Malcolm Feely, Court Reform on Trial, at 116 (Basic Books 1983).

5

A.

The Model Penal Code Movement

In the 1950s and 1960s, the American Law Institute’s (ALI)
Model Penal Code inspired a national movement for reform of the
criminal law. In 1955, Wisconsin became the first state to
comprehensively revise its criminal laws based on the Model Penal
Code; more than 30 states ultimately passed derivative criminal codes,
including New York.11
Sentencing reform was an integral part of the national code
revision effort and the rehabilitative ideal was the glue that tied the
national reform movement together. The code revisionists were
committed to the prevailing indeterminate sentencing philosophy. The
Model Penal Code drafters allocated sentencing authority among the
different criminal justice functionaries according to the “type of power
and responsibility that each is best equipped to exercise, given the time
when it must act, the nature of the judgments called for at that stage,
and the type of information that will be available for judgment and the
relative dangers of unfairness and abuse.”12
B.

The Bartlett Commission

The Temporary Commission on Revision of the Penal Law and
Criminal Code (“the Bartlett Commission”)13 was a result of
discussions undertaken in the early phases of Nelson A. Rockefeller’s
first term as governor.14 The Bartlett Commission devoted its
attention first to drafting a Penal Law, which was submitted as a study
bill in 1964 and adopted by the Legislature in 1965, with an effective
date of 1967. Thereafter, it drafted the Criminal Procedure Law,
which took effect in 1971. A progeny of the ALI’s Model Penal Code,
New York’s new code was deemed “the most sophisticated legislation

11

Herbert Wechsler, Codification of Criminal Law in the United States: The Model
Penal Code, 68 Colum. L. Rev. 1428 (1968); Laws of 1965, ch. 1030.
12
American Law Institute, Model Penal Code, Tentative Draft No. 2, at 24 (1954).
13
Laws of 1961, ch. 346.
14
Schwartz, Criminal Law Revision Through a Legislative Commission: The New
York Experience –An Interview with Richard Bartlett, 18 Buff. L. Rev. 213 (1968).

6

yet achieved in the evolution of a twentieth century criminal code.”15
It might be said, however, that the State has rested on its laurels; not
since 1967 has New York enacted a comprehensively revised
sentencing code.
1.

The Pre-1967 Penal Law

The Bartlett Commission confronted a penal code that had not
been substantially revised in more than 50 years. The Field
Commission, working in the 1860s and 1870s, had codified many of
the State’s criminal laws and, in 1881, its work was reflected in a new
Penal Code and Code of Criminal Procedure.16 Crimes were classified
into broad categories (e.g., crimes against persons, crimes against
property), and minimum and maximum prison terms were assigned to
each crime category.
In 1909, the Penal Code was replaced with the Penal Law, with
the most significant change being the abandonment of the categorical
structure in favor of an alphabetical listing of crimes.17 A multiplicity
of separate crimes was created for each offense type, resulting in
crimes dealing with similar subject matter rarely being located in the
same place, which rendered charging decisions arbitrary and
cumbersome. Continuous piecemeal amendments yielded a prolixity
of narrow and highly specific offense definitions, many of which
overlapped.
Labeling the 1909 restructuring “a hodgepodge conglomerate
of amendment upon amendment,”18 the Bartlett Commission observed
that “[i]nstead of a modern set of guidelines to help effectuate the
deterrence of crime and the segregation and reformation of criminals,

15

George, A Comparative Analysis of the New Penal Laws of New York and
Michigan, 18 Buff. L. Rev 233 (1968).
16
Laws of 1881, ch. 680.
17
New York Temporary Commission on Revision of the Penal Law and Criminal
Code, Interim Report of the State of New York Temporary Commission on Revision
of the Penal Law and Criminal Code, at 8 (1962); Laws of 1909, ch. 88.
18
Schwartz, supra, note 14, at 213-214.

7

the State of New York has a modern procedure engrafted by
amendments upon a structure designed for a retributive system.”19
2.

Focus on Sentencing

Sentencing reform was high on the list of the Bartlett
Commission’s priorities. After re-examining the rehabilitative
sentencing structure, the Bartlett Commission heartily endorsed the
indeterminate model and parole release. Instead of the three offense
categories recommended by the ALI’s Model Penal Code, the New
York drafters recommended five felony categories, three misdemeanor
categories, and one category for violations.
The Bartlett Commission acknowledged the lack of scientific
evidence linking sentencing and crime control. Then, as now, it was
relatively rare for social scientists to find statistically significant
correlations between sentences and deterrence, incapacitation or
rehabilitation. Nevertheless, the pragmatists on the Bartlett
Commission reasoned that the best course was to “construct a system
that allows adequate scope for the accomplishment of these
objectives.”20 The Bartlett Commission endeavored to distribute
authority consistent with the purposes of punishment sought by each
component of the system. The Legislature would serve the retributive
function by establishing the maximum sanction for broad classes of
criminal conduct, reflecting society’s view of the seriousness of that
type of offense. Judges, as well as correctional and parole officials,
would serve their “proper purpose and, within [their] special sphere of
competence * * * fashion an appropriate sentence.”21
The calculation of good time credit was changed by the Bartlett
Commission to afford “a better distribution of control between the
Department of Correctional Services (“DOCS”) and the Division of
19

New York Temporary Commission on Revision of the Penal Law and Criminal
Code, Interim Report of the State of New York Temporary Commission on Revision
of the Penal Law and Criminal Code, at 27 (1963).
20
New York Temporary Commission on Revision of the Penal Law and Criminal
Code, Proposed New York Penal Law, at 272 (1964).
21
Id. at 276-277.

8

Parole.”22 Under the pre-1967 law, a one-third good time allowance
was deducted from the minimum term, lowering the offender’s parole
eligibility date. Also, pursuant to a 1962 amendment, an additional
one-sixth good time allowance was deducted from the maximum term.
The Bartlett Commission recommended that good time be deducted
from the maximum sentence only. Good time and parole release
would then function as part of an integrated plan, each to be employed
at the proper place to effectuate the achievement of the overall goal.
The Bartlett Commission’s vision of the allocation of power led it to
reason that while the minimum term was being served, the prisoner
was working toward parole release. If the offender was denied parole
release at the minimum term, good time off the maximum sentence
would provide a continued incentive for good behavior in prison.
Mandatory sentences of any kind were antithetical to the
rehabilitative ideal endorsed by the Bartlett Commission. Legislatures
should deal with broad principles it said, and not prescribe mandatory
sentences applicable to individual cases. With the exception of a oneyear minimum prison term, which was viewed as an institutional
necessity, the Bartlett Commission rejected mandatory sentences for
all but the Class A felony offenses of murder and kidnapping. The
Commission reasoned that if “the court is to be entrusted -- as it should
be -- with authority to decide whether to impose a sanction, it can
certainly be entrusted with authority to decide whether a minimum
period of imprisonment in excess of one year is necessary.”23
The Bartlett Commission applied the same logic to second
felony offenders: no mandatory sentences. For persistent felony
offenders, mandatory sentences could be imposed provided that strict
sequentiality rules stemming from the rehabilitative ideal were
followed. The Bartlett Commission explained that “only those who
persist in committing serious crimes after repeated exposure to penal
sanctions”24 and their rehabilitative influence would be eligible for
mandatory sentences. The pre-1967 law specified when concurrent
and consecutive sentences could be imposed although, in practice,
22

Id. at 299.
Id. at 280.
24
Id. at 285.
23

9

most multiple sentences were consecutive. The Bartlett Commission
reversed that presumption: where the court failed to specify how
multiple sentences were to be served, the sentences would run
concurrently.
3.

Passage of the New Penal Law

The Bartlett Commission’s proposals were well received by the
State Legislature. Only three areas of controversy were raised: the
decriminalization of certain consensual crimes; the abolition of the
death penalty; and gun control. The legislative opponents of these
three provisions prevailed and the Bartlett Commission’s proposal was
amended accordingly.25
On approving chapters 1030 and 1031 of the Laws of 1965,
which enacted the bulk of the Bartlett Commission’s Penal Law
proposals, then-Governor Nelson Rockefeller announced that “a new
scheme of sentencing is provided affording ample scope for both the
rehabilitation of offenders and the protection of society.”26 The
statutory modernization of the rehabilitative model was coupled with
changes in the post-conviction structure of the criminal justice system.
Another commission, this one headed by Paul McGinnis, then
Commissioner of DOCS, and Parole chairman Russell Oswald was
established in 1966 and charged with the bureaucratic modernization
of the indeterminate system. The McGinnis-Oswald Commission’s
recommendations27 led to the merger of parole and corrections in
1970, but the blending of the two post-conviction bureaucracies was
short-lived. Ironically, just as the refinement of the rehabilitative
structure was being completed, the dominance of the reigning
sentencing paradigm was challenged.

25

Schwartz, supra, note 14, at 255-256.
Governor’s Mem approving Laws of 1965, ch. 1030, 1965 NY Legis Ann at 2120.
27
Preliminary Report of the Governor’s Special Committee on Criminal Offenders
(June 1968).
26

10

III.

THE ORIGINS OF THE DETERMINATE MODEL:
1970-PRESENT
A.

Introduction

Pure indeterminacy did not last long in New York. Discontent
with the “medical model” of sentencing spread rapidly and, within the
span of a few years, a remarkable shift in social perceptions occurred.
The determinate ideal of punishment captured the imagination of a
generation of jurists, social activists, policymakers and academics.
Liberals, conservatives, defense advocates and law enforcement
professionals all claimed that the rehabilitative philosophy was
theoretically and empirically flawed.
The indeterminate model’s threshold assumption, that
everything that needed to be known about the offender could not be
known at the time of sentencing, yielded the opposite assumption.
Faith in the expertise and ability of government to do the right thing
gave way to deep-seated suspicion of official actions. Rehabilitation
was cast aside in favor of retribution and incapacitation as the most
valid purposes of sentencing. Confidence in the provident exercise of
discretion by criminal justice officials eroded as mandatory sentencing
provisions proliferated.
Influential treatises such as the American Friends Service
Committee’s Struggle for Justice,28 Judge Marvin Frankel’s Criminal
Sentences: Law Without Order,29 Norval Morris’ The Future of
Imprisonment,30 and the Committee for the Study of Incarceration’s
Doing Justice,31 shaped opinions in New York and around the nation,
arguing against indeterminate sentencing and discretionary parole
release.
28

American Friends Service Committee. Struggle for Justice (New York: Hill and
Wang, 1971).
29
Marvin E. Frankel. Criminal Sentences: Law Without Order (New York: Hill and
Wang, 1972).
30
Norval Morris. The Future of Imprisonment (Chicago: University of Chicago
Press, 1974).
31
Andrew Von Hirsch. Doing Justice: Report of the Committee for the Study of
Incarceration (New York: Hill and Wang, 1975).

11

The determinate ideal was based on two fundamental
principles. First, punishment should be proportionate to the
seriousness of the instant offense and the offender’s prior conviction
record. Similarly situated offenders should be treated alike to protect
the public and to put an end to gross disparities in punishment. The
second fundamental principle was that the sentence served should
match the sentence imposed in court, minus limited good time.
1.

A Move Toward Determinacy

Even before the national interest in determinate sentencing
became widespread, new sentencing laws in New York had begun to
chip away at the indeterminate structure. Under the so-called
“Rockefeller drug laws,” judges were no longer permitted to exercise
discretion over whether to incarcerate or impose an alternative
sanction for certain drug cases; mandatory incarceration was required
for all Class A, B and C drug offenses.32 The “Rockefeller” drug laws
created three categories of Class A felonies based on the quantity of
drugs sold or possessed: A-I, A-II and A-III. The maximum for all
Class A felonies was life, and a variety of minimum minimums,
maximum minimums, minimum maximums, and maximum
maximums were prescribed for felony drug sentences.33 Plea
bargaining also was severely restricted by the “Rockefeller” drug
laws.34
Also in 1973, mandatory second felony offender laws were
grafted onto the indeterminate structure.35 While much of the effect of
the drug laws has been diluted by subsequent legislative amendments,
the second felony offender laws, which passed virtually unnoticed in
the furor surrounding the drug debate, continue to shape the State’s
sentencing policy. In 1978, a second group of mandatory sentences,
the juvenile offender and the violent felony offender laws,36 was added
to what was rapidly evolving into a hybrid sentencing scheme.
32

Laws of 1973, ch. 276, §6 (amending Penal Law §60.05 [which has since been
amended]).
33
Laws of 1973, ch. 276, §§9, 10.
34
Laws of 1973, ch. 276, §25.
35
Laws of 1973, ch. 277, §9.
36
Laws of 1978, ch. 481.

12

2.

Several New York Commissions Call for an End to
Indeterminacy
a. The McKay Commission

Forty-three people --32 inmates and 11 correctional personnel-died in the prison riot at Attica Correctional Facility in September
1971. The Special Commission on Attica, also known as the McKay
Commission, was formed in the immediate aftermath of the Attica riot
and charged with reconstructing the events surrounding the riot.
Although the Commission was not asked to make recommendations
for sentencing reform, it felt obligated to speak out against the litany
of problems it had uncovered. The McKay Commission questioned
the quintessential features of the rehabilitative paradigm:
indeterminate sentencing and parole release. The Commission
denounced indeterminate sentencing and parole release as “unfair * * *
inequitable and irrational.”37 The McKay Commission rejected the
rehabilitationists’ emphasis on individualized sentencing, and saw
disparity as the central evil: “disparities in sentences imposed for
identical offenses leave those who are convicted with a deep sense of
disgust and betrayal.” While stopping short of advocating for the
overthrow of the indeterminate system, the McKay Commission
nevertheless echoed what would become a growing national rejection
of the rehabilitative system.
b. The Citizens’ Inquiry on Parole and Criminal
Justice
In 1975, the New York’s Citizens’ Inquiry on Parole and
Criminal Justice (CIP), chaired by Ramsey Clark, former Attorney
General under Lyndon Johnson, criticized New York’s parole system,
characterizing it as “oppressive and arbitrary”38 and essentially beyond
reform. The CIP endorsed the then-prevalent liberal ideology of
37

New York State Special Commission on Attica. Attica: The Official Report of the
New York State Special Committee on Attica (New York: Bantam Books 1972), at
xviii.
38
Citizens’ Inquiry on Parole and Criminal Justice. Report on New York Parole, at
290 (1974).

13

punishment: fewer and shorter prison sentences, more alternatives to
incarceration and additional voluntary programs for inmates.
The CIP made both short and long-term recommendations for
reform. The transitional recommendations included shifting the
burden of proof in release decision-making to the Parole Board,
requiring it to provide specific reasons why an inmate was denied
release, and reducing parole supervision to one year. The long-term
recommendations included abolishing parole release, enacting shorter
sentences, increasing alternatives to incarceration, opening all
sentencing procedures to public scrutiny and developing a wide range
of programs for offenders.39
c. The Staff Report of the Assembly Codes Committee
While the recommendations of the McKay and Citizens’
Commissions did not result in the abolition of parole release, their
complaints may, nevertheless, have had an impact on lawmakers. An
influential report in 1976 by the staff of the Assembly Codes
Committee recommended an overhaul of parole release decisionmaking. The Staff Report made two primary recommendations, both
of which were enacted the following year. First, it argued for an
independent Division of Parole in the Executive Department. The
logic was that prisons were concerned primarily with security and,
thus, Parole’s continued ties to corrections hindered the achievement
of rehabilitation. Ironically, parole and corrections had been merged
in 1970 to facilitate rehabilitation; later they were severed to facilitate
rehabilitation.
The Staff Report’s second recommendation resulted in the
enactment of the Parole Reform Act of 1977,40 which required the
Board to adopt written guidelines for the exercise of its discretion in
fixing minimum periods of incarceration and in making parole release
decisions. By articulating release standards, the parole guidelines
were intended to provide inmates and the public with a clearer
understanding of the parole process.
39
40

Id. at 197.
Laws of 1977, ch. 904.

14

With the help of outside advisors, including developers of the
federal parole guidelines, the Board created a two-dimensional grid,
with offenses arrayed according to severity on the vertical axis, and
criminal history scores arrayed along the horizontal axis. In signing
the Parole Reform Act, then-Governor Carey said that the legislation
was aimed at eliminating disparity: “[T]he bill is intended primarily to
reform the paroling process in this State to remove the inequities that
numerous studies have cited * * * [and to ensure] that similarlysituated offenders are treated similarly.”41 The mandatory sentencing
provisions of the Rockefeller drug, second felony offender, juvenile
offender, and violent felony offender laws had law-and-order origins,
while parole guidelines owed their creation to a more liberal view of
punishment. Yet, each signaled a weakening of the rehabilitative idea.
d. The Executive Advisory Committee on Sentencing
Responding to national and local interest in determinate
sentencing, then-Governor Hugh Carey created the Executive
Advisory Committee on Sentencing in 1977 and appointed New York
County District Attorney Robert M. Morgenthau as chair.42 The
Morgenthau Committee endorsed the mainstay of the liberal
determinate ideal: the parsimony principle. Sentences should be “the
least severe sanction necessary to achieve legitimate sentencing
objectives.”43 Like many other anti-rehabilitationists, the members of
the Morgenthau Committee elevated retributive purposes of sentencing
over crime-control objectives. While rehabilitation had been widely
accepted as the primary purpose of punishment in New York until the
late 1960s, the Committee’s report noted that the consensus behind it
had crumbled in the 1970s. The Morgenthau Committee proclaimed
indeterminacy a failure and parole release a charade. By using parole
guidelines, the Parole Board had already abandoned rehabilitation
since parole guidelines were based on the seriousness of the offense
and the offender’s prior record – facts having nothing to do with a
behavioral change during incarceration.

41

McKinney’s 1977 Session Laws of New York, Governor Memorandum, at 2538.
Executive Advisory Committee on Sentencing, supra, note 1.
43
Id. at 137 (emphasis in original).
42

15

The Morgenthau Committee recommended that the Legislature
create a sentencing commission to devise a sentencing guidelines grid.
The guidelines would specify a narrow range of sentences for each
combination of offense and prior criminal record category, with the
higher term not exceeding the lower term by more than 15%. Good
time would be limited to 20% and all releasees would be subject to
fixed periods of parole supervision. The guideline sentences were not
mandatory: judges could depart and impose a different sentence if
aggravating or mitigating factors were found. The Morgenthau
Committee opposed unlimited departure, recommending that the
sentencing commission establish a narrow range for departure
sentences.
e. The Liman Commission
In his annual message to the Legislature in 1981,44 thenGovernor Carey endorsed the Morgenthau Committee’s report, but
instead of creating a sentencing guidelines commission, the Governor
formed two more blue-ribbon study panels. The initial one, the
Executive Advisory Commission on the Administration of Justice,45
was headed by Arthur Liman, a prominent New York City attorney
and member of both the McKay Commission and the Morgenthau
Committee.
Growth in prison population was a direct result of sentencing
policy, the Liman Commission reasoned. Sentencing policies had
“vacillated between periods of tough, but unenforceable, mandatory
sentencing laws and periods of nebulous indeterminate sentences. The
present sentencing laws combine the worst aspects of each
approach.”46 The Liman Commission criticized the lack of standards,
without which, it said, sentencing decisions would remain
idiosyncratic, oscillating with the predilections of individual judges.

44

1981 State of the State Address.
Executive Advisory Commission on the Administration of Justice,
Recommendations to Governor Hugh L. Carey Regarding Prison Overcrowding
(1982).
46
Id. at 7.
45

16

f. The McQuillan Commission
The second commission formed by Governor Carey, the
Advisory Commission on Criminal Sanctions,47 was chaired by Judge
Peter McQuillan, former counsel to the Bartlett Commission. The
Governor wanted the Commission to develop advisory sentencing
standards for judges, but it refused, arguing that to provide such
guidelines would be a purely normative exercise, based on “our
collective but personal evaluations.”48 Rather than recommending
guidelines, the McQuillan Commission recommended that judges
apply their own perceptions of the appropriate sentence.
During the remainder of Governor Carey’s administration, the
policy issue of determinate sentencing remained in limbo. It was not
until the 1982 election of Governor Mario M. Cuomo that determinate
sentencing was again on the policymakers’ formal agenda. Shortly
after his election, Governor Cuomo directed his staff to negotiate a
sentencing guidelines commission bill with the Legislature. The
result, chapter 711 of the Laws of 1983, was passed by an
overwhelming margin in the Senate and Assembly and signed into law
by the Governor.
g. Committee on Sentencing Guidelines: 1983-1985
The Committee on Sentencing Guidelines (“COSG”) was
charged with recommending specific statutory changes necessary to
implement a determinate sentencing structure; in other words, its task
was to resolve the “devil in the details” and directly address the myriad
issues that previous study commissions had not fully examined.49
However, a variety of problems surfaced in trying to write specific
language to convert the indeterminate structure to a determinate
structure with the goal of achieving proportionality and “truth-insentencing.” The COSG had 14 members, six appointed by then47

Advisory Commission on Criminal Sanctions, Report of the Advisory Commission
on Criminal Sanctions (1982).
48
Id. at 97.
49
Laws of 1983, ch. 711.

17

Governor Cuomo, six by legislative leaders and two by the Chief
Judge of the New York State Court of Appeals. Committee members
represented a wide spectrum of personal and professional interests and
ideologies and included liberals and conservatives, Democrats and
Republicans, prosecutors and defense attorneys, judges and academics,
and politicians and administrators. Many members thought that the
existing sentences were too severe; others thought they were too
lenient. Some thought that judges should have more power; others
thought that they should have less. These different perspectives
proved irreconcilable when the COSG tried to agree on grid ranges,
departure policy, re-classification of offenses, mandatory sentences,
good time policy and many other issues related to sentencing
guidelines.
The final report of the COSG, which was riddled with
dissenting opinions, was delivered on March 29, 1985.50 Eight of the
14 members issued dissents to various parts of the report. Judges said
the proposal took away their power; prosecutors said it gave judges too
much power. The State’s mayors and sheriffs were concerned about
shifting the burden of housing more offenders to local jails. Governor
Cuomo submitted a bill to the Legislature based on the report, but it
received a negative reaction. The sentencing bill was never reported
out of legislative committee.
IV.

INCREASED CORRECTIONAL CONTROL OVER
TIME SERVED: “BACK END” SENTENCING (19851995)

In the aftermath of the failure of the sentencing guidelines
effort, several early-release programs were authorized that allowed
DOCS to release many offenders before the expiration of their
minimum sentences. With prison populations rising and revenues
shrinking, an ad hoc approach to sentencing policy was developed.
The politically difficult challenge of repealing mandatory sentencing
50

New York State Committee on Sentencing Guidelines (COSG), Determinate
Sentencing: Report and Recommendations (1985). A preliminary report was issued
by the COSG in January 1985 for the purpose of public comment and, thereafter,
public hearings were held in New York City, Albany and Buffalo.

18

largely fell by the wayside and the matter was handled through a series
of incremental amendments.
Shock incarceration was instituted in 1987 for inmates age 24
or under;51 subsequent revisions extended the age to those under 40.52
If selected by DOCS for participation in the six-month program,
inmates were virtually guaranteed parole release. That same year, an
“earned eligibility” program was created to increase the rate of release
on parole at first eligibility.53 In 1989, Comprehensive Alcohol and
Substance Abuse Treatment (“CASAT”) was established and allowed
participants to be released from a conventional prison and placed in a
community release facility up to 18 months before the expiration of
their minimum sentences.54
Work release, while not new, was significantly expanded
during this period. Between 1991 and 1992, while the State was
experiencing severe fiscal shortfalls, work release grew by 43%.55
Historically, work release inmates were free in the community for up
to 14 hours each day and returned at night to community-based work
release facilities. Beginning in 1990, in order to save money, work
release beds were double encumbered; that is, one inmate slept in the
bed for three nights and another for four nights. At the end of 1990, as
part of the State’s deficit reduction plan, day reporting was added.
Selected inmates who had not yet served their minimum sentence were
allowed to live at home every day, provided they reported regularly to
a work release facility for drug testing and counseling.
Decision making about all of these early release programs
rested entirely with prison officials. While many of these treatment
programs may have had positive impacts on offenders and saved
money, they also represented a back-door approach to sentencing
policy and, in some instances, raised serious public safety issues.
51

Laws of 1987, chs. 261, 262 (enacting Correction Law Art. 26-A). The Shock
Incarceration Program is described in greater detail in Part Five, infra, at 158-162.
52
Laws of 1999, ch. 412, Pt. B, §1.
53
9 NYCRR §8002.1(b).
54
Laws of 1989, ch. 338.
55
New York State Department of Correctional Services, Temporary Release
Program: 1992 Annual Report (1992).

19

V.

WHERE WE ARE TODAY: THE CURRENT HYBRID
SYSTEM
A.

The Sentencing Reform Act of 1995

History shows that a change at the gubernatorial level can
herald a change for sentencing policy. In his campaign for governor,
George Pataki backed determinate sentencing and criticized
discretionary parole release, as had Governor Mario Cuomo. Unlike
the attempt during Governor Cuomo’s tenure, however, during
Governor Pataki’s first year in office, the Sentencing Reform Act of
1995 (“the Act”) was enacted. The Act instituted determinate
sentences for second violent felony offenders and second felony
offenders convicted of violent felonies.56 This was not a sentencing
guidelines type of determinacy, such as the guidelines used by the
federal government. Nor was it designed to limit the discretion of
prosecutors or judges or to provide guidance for limiting unwarranted
disparities. Instead, the Act largely maintained the broad sentencing
ranges used in the old indeterminate structure. The sentencing ranges
left prosecutors with wide discretion in plea bargaining; in cases where
a guilty verdict was rendered after trial, judges selected a specific
determinate sentence from the broad range.
Offenders sentenced under the new determinate sentencing law
would be required to serve slightly more than 85% of their courtimposed determinate term.57 Discretionary parole release was
abolished for these offenders.58 The Act also doubled the minimum
periods for persistent (third-time) violent felony offenders and
increased the minimum period of the indeterminate sentence from onethird to one-half the maximum for first-time violent felony offenders.
The federal government provided additional incentives to New
York and other states during this period through the Violent Crime
Control and Law Enforcement Act of 1994, which authorized
incentive grants to states that adopted “truth-in-sentencing” laws. The
56

Laws of 1995, ch. 3, §§5; 7 (adding Penal Law §70.06[6]).
Correction Law §803(1)(c), as amended by Laws of 1995, ch. 3, §27.
58
Penal Law §70.40(1)(a)(ii), as amended by Laws of 1995, ch. 3, §18.
57

20

federal funds were earmarked for building or expanding prisons and
jails to increase correctional capacity to accommodate longer
sentences for violent offenders. Toward this end, New York received
almost $25 million in 1996, and in excess of $28 million in 1997.59
B.

More Layers of Determinacy Added

While the Act established determinate sentencing for certain
second felony offenders and for second violent felony offenders, a
1998 law extended determinate sentencing to first-time violent felony
offenders, with the caveat that certain cases involving domestic
violence would remain indeterminate.60 Also, the 1998 legislation
added specific “post-release supervision” periods for offenders
sentenced to a determinate term.61 In 2000, sentences were enhanced
for second child sexual assault felony offenders62 and hate crimes.63 In
2004, determinate sentencing was established for drug offenders64 and,
in 2007, determinate sentencing was authorized for those felony sex
offenses classified as non-violent felonies.65
The result of these and other piecemeal changes is that today
there is a separate indeterminate sentencing scheme for first-time nonviolent, non-drug, non-sex felony offenders, generally with broad
sentence ranges for each of the existing six felony classes (A-I, A-II,
B, C, D and E).66 A separate determinate sentencing scheme exists for
first-time violent felony offenders,67 with the exception of certain
cases involving domestic violence which remain indeterminate.68 A
different set of rules applies when ascertaining the applicable
59

United States General Accounting Office, Truth in Sentencing: Availability of
Federal Grants Influenced Laws in Some States, at 4 (1998). New York State
received a total of $216 million for this initiative from 1996 through 2001.
60
Laws of 1998, ch. 1 (amending Penal Law §70.00 [6] and adding Penal Law
§60.12).
61
Laws of 1998, ch. 1 §15 (adding Penal Law §70.45).
62
Laws of 2000, ch. 1 (adding Penal Law §70.07).
63
Laws of 2000, ch. 107 (adding Penal Law Article 485).
64
Laws of 2004, ch. 738 (adding Penal Law §§70.70; 70.71).
65
Laws of 2007, ch. 7 (adding Penal Law §70.80).
66
Penal Law §70.00.
67
Penal Law §70.02.
68
Penal Law §60.12.

21

range for second non-violent felony offenders whose prior offense was
also non-violent.69 Likewise, another scheme, this one determinate, is
used for second felony offenders whose present offense is violent and
whose prior offense was non-violent, 70 as well as for second violent
felony offenders whose prior and present offenses are violent.71 Yet
another set of sentencing rules, involving both determinate and
indeterminate sentences, applies to second child sexual assault felony
offenders.72 Separate charts need to be consulted when sentencing
non-violent felony sex offenders, again depending on whether they are
first-time felony offenders, second felony offenders with a prior nonviolent felony conviction, or second felony offenders with a prior
violent felony conviction.73 Felony drug offense sentences, which are
determinate, also are differentiated by the number (i.e., no priors or
one prior) and type (i.e., violent felony or non-violent felony) of prior
felony convictions.74 Finally, different indeterminate schemes are
used for persistent felony offenders, persistent violent felony offenders
and juvenile offenders.75
Today, New York’s sentencing system is a mix of
indeterminate and determinate punishments. It is difficult to articulate
a rationale for these different approaches to the State’s punishment
policy. As the Honorable William C. Donnino has observed in his
Practice Commentary to the Penal Law, the myriad amendments to the
Penal Law over the last few decades “have been so substantial that the
sentencing statutes have become a labyrinth not easily traversed by
even the most experienced practitioner of the criminal law.”76 Indeed,
the current structure is replete with anomalies and absurdities – a
veritable object lesson in the law of seemingly unintended
consequences.77
69

Penal Law §70.06.
Penal Law §70.06(6).
71
Penal Law §70.04.
72
Penal Law §70.07.
73
Penal Law §70.80.
74
Penal Law §§70.70; 70.71.
75
Penal Law §§70.10; 70.08; 70.05.
76
Donnino, Practice Commentaries, McKinney’s Cons. Laws of NY, Book 39, Penal
Law Article 70.00, at 56.
77
See, Part Two, infra, at 24.
70

22

VI.

RECOMMENDATIONS FOR REFORM

Despite the complicated and convoluted structure of New
York’s current “patchwork” sentencing scheme, and the need to
simplify that structure to make it more fair, more transparent and more
comprehensible to practitioners, judges, victims and defendants, New
York’s sentencing and correctional systems are “not in a state of
absolute crisis [as are those of] so many other states.”78 Indeed, New
York is the safest large state in the nation and the fourth safest
overall.79 While other states have experienced dramatic increases in
their prison populations -- by as much as 11% in Ohio, 23% in
Pennsylvania, and 38% in Florida -- New York is the only large state
to see a consistent decrease in crime, offender recidivism and prison
population over the last several years.80
In order to achieve even greater progress in those areas, a
consensus of the Commission believes that the State’s goal should be
to implement additional sentencing reforms, including adoption of a
predominately determinate sentencing structure;81 simplification,
correction, streamlining and compilation of sentencing statutes;
correction of various anomalies in the existing law; and
implementation of substantial drug law sentencing reforms. New York
State also should place greater emphasis on the utilization of evidencebased practices, the use of graduated sanctions for probation and
parole violations, and enhanced re-entry programs in order to continue
its success in maintaining and enhancing public safety in the State.
Although not every proposal and recommendation in this
Report enjoyed the support of all Commissioners, the members did
reach unanimous, or near unanimous, agreement on most proposals.
In instances in which it occurred, the lack of unanimity reflects the
weighty and complex nature of the subject matter and the deliberate
approach taken by the Commission members to their charge.
78

Commission on Sentencing Reform, Transcript of July 18, 2007 Meeting, at 183.
U.S. Department of Justice, Crime in the United States 2006 (Washington, D.C.:
U.S. Department of Justice, Federal Bureau of Investigation 2006).
80
Bureau of Justice Statistics, Prisoners in 2007. Since December 1999, the New
York State prison population has been reduced by slightly more than 11,000.
81
Two members of the Commission did not support this recommendation.
79

23

PART TWO
GREATER SIMPLICITY IN SENTENCING

24

Part Two
Greater Simplicity in Sentencing
I.

ADOPTING A PREDOMINATELY DETERMINATE
SENTENCING SYSTEM IN NEW YORK:
DETERMINATE RANGES

The Commission recommends a series of targeted reforms
aimed at simplifying, and making more comprehensible, New York’s
overly complicated felony sentencing structure. The most significant
of these reforms is a proposal to replace the current hybrid system of
indeterminate and determinate sentences with a mostly determinate
sentencing structure. Noting that a number of “ad hoc and piecemeal”
amendments to the State’s sentencing statutes have resulted in a
confusing “mix of determinate and indeterminate sentences * * * [that]
adds to an already convoluted [sentencing] structure,”82 the
Commission, in its Preliminary Report, specifically recommended83
converting from indeterminate to determinate the authorized prison
sentences for more than 200 non-violent, non-sex, non-drug felony
offenses currently subject to indeterminate sentencing,84 while
retaining indeterminate sentences only for certain persistent felony
82

“The Future of Sentencing in New York State: A Preliminary Proposal for
Reform,” New York State Commission on Sentencing Reform, October 15, 2007
(“Preliminary Report”), at 15.
83
Three members of the Commission withheld their support for this
recommendation. One member rejected the determinate model outright in favor of
the “rehabilitative ideal of indeterminate sentencing” (see, Preliminary Report, at
66). A second withheld support because the Commission had, at the time of the
Preliminary Report, neither discussed nor agreed to specific determinate ranges for
these 200-plus non-violent felony offenses, and a third member believed the proposal
warranted further study (see, Preliminary Report, at 17, n. 106). Under current law,
indeterminate sentences are reserved primarily for those Class B through Class E
non-violent, non-sex, non-drug felony offenses listed in Appendix A, as well as
Class A-I and Class A-II non-drug felonies, certain first-time violent felony
offenders whose crimes are the product of domestic violence (Penal Law §60.12);
juvenile offenders (Penal Law §70.05); persistent violent felony offenders (Penal
Law §70.08); persistent felony offenders (Penal Law §70.10); and certain second
child sexual assault felony offenders (Penal Law §70.07[4]).
84
A list of these felony offenses is set forth in Appendix B.

25

offenders and a relatively small number of non-drug Class A felony
offenses that now carry a life maximum.85
The Commission’s recommendation to move toward a mostly
determinate felony sentencing structure was based, in large part, on its
belief that as compared to indeterminate sentencing, the determinate
model promotes greater uniformity, fairness and “truth-in-sentencing.”
As explained in detail in the Preliminary Report, a person serving a
determinate sentence typically will have no more than two potential
release dates prior to the maximum expiration date of the sentence: a
“conditional release” date when six-sevenths of the full determinate
term has been served (assuming the inmate has not forfeited any
portion of his or her one-seventh “good time” allowance),86 and, for
felony drug offenders, a “merit release” date when five-sevenths of the
determinate term has been served (assuming the inmate has earned a
one-seventh merit time87 allowance and has not forfeited any “good
time”).88
A person serving an indeterminate sentence, on the other hand,
may have as many as four potential release dates prior to the maximum
expiration date of the sentence: a supplemental merit time date for
most drug offenses when two-thirds of the minimum period has been
served;89 a merit eligibility date when five-sixths of the minimum
period has been served; a parole eligibility date when the entire
minimum period has been served; and a conditional release date when
85

See, Preliminary Report, at 17.
See, Correction Law §803(1)(c).
87
See, Correction Law §803(1)(d).
88
See, Preliminary Report, at 15. Like the 1/3 “good time” allowance applied to the
maximum term of an indeterminate sentence, the 1/7 “good time” allowance applied
to the term of a determinate sentence can be forfeited, in increments, by an inmate
for a poor disciplinary record or failure to perform adequately in an assigned
program. In contrast, a merit time allowance cannot be earned, or forfeited, in
increments. An inmate either earns the full 1/6 (indeterminate) or 1/7 (determinate)
merit time allowance or gets no merit time allowance at all.
89
Supplemental merit time applies only to certain inmates serving indeterminate
sentences for felony drug or marihuana offenses committed prior to implementation
of the Drug Law Reform Act of 2004 (Laws of 2004, ch. 738). As discussed infra, at
70-71, that Act created an exclusively determinate sentencing scheme for those
offenses.
86

26

two-thirds of the maximum term has been served.90 Thus, for
example, under the indeterminate model, when a defendant is
sentenced to 8ѿ to 25 years, everyone, including the defendant and the
victim, is left to guess when the defendant will be released.
“Assuming [the] inmate earns good time credit, it remains unknown
whether he or she will serve 8ѿ years or 16Ҁ years or somewhere in
between. Determinate sentencing, on the other hand, allows the
parties to leave the courtroom with a greater understanding of the
length of the sentence. By providing a maximum good time allowance
of only one-seventh of the full term rather than one-third (as in the
indeterminate model), and by eliminating entirely the subjective
assessments and release decisions of an intervening parole board, the
determinate model necessarily reduces the possibility that like
offenders will be treated differently with regard to time actually
served, thereby promoting greater fairness and overall uniformity.”91
Determinate sentencing also allows for more informed plea
bargaining, with both the parties and the court having a clearer picture
of the actual time the defendant is likely to spend under custody on the
agreed-to sentence, and virtually eliminates the possibility that an
inmate who has “followed the rules” and earned the maximum good
time and merit time allowances while in custody will be
inappropriately or inexplicably denied release by the Board of Parole.
In short, determinate sentencing promotes greater “truth-insentencing,” results in a more fair and predictable outcome for both
victims and offenders, and sends a clear message to incarcerated
offenders that complying with institutional rules and participating in
beneficial programming has a direct effect on the length of
confinement.
Finally, determinate sentencing has been the unmistakable
trend in New York, with the Legislature recently adding all felony
drug92 and sex93 offenses to the list of crimes carrying a determinate,
90

See, Preliminary Report, at 15-16.
Id. at 16.
92
See, Laws of 2004, ch. 738.
93
See, Laws of 2007, ch. 7.
91

27

rather than indeterminate, sentence. This trend has, in turn, resulted in
fewer and fewer “hybrid” sentencing situations, where a single
offender serves a complicated mix of concurrent and consecutive
determinate and indeterminate sentences. Calculating the aggregate
maximum and potential release dates for these “hybrid” sentences can
become a question of higher mathematics to accurately determine
when an inmate serving multiple hybrid sentences is eligible or
required to be released.
In sum, the Commission believes that as a matter of fairness,
greater simplicity and sound criminal justice policy, it makes sense to
continue this positive trend by moving even closer to an all
determinate felony sentencing structure in New York.
II.

THE NEED FOR “FAIR AND ACCEPTABLE”
DETERMINATE RANGES

The Commission recognized in its Preliminary Report that the
proposed conversion from indeterminate to determinate sentencing
was “inextricably linked with the adoption of fair and acceptable
[determinate] sentencing ranges”94 for the more than 200 non-violent,
non-sex, non-drug felony offenses targeted for conversion.
Immediately following submission of the Report, the Commission
began the process of devising appropriate determinate ranges for these
crimes.
A. The Current Indeterminate Ranges
As a preliminary matter, the Commission considered the
adequacy and appropriateness of the current indeterminate ranges for
the targeted crimes. Except for some relatively minor amendments,
these ranges, as set forth in Penal Law §70.00, have been the
controlling ranges for this group of Class B through Class E nonviolent felony offenses for more than 35 years. The Commission
focused, in particular, on the considerable breadth of the existing
ranges, especially at the higher (i.e., Class B and Class C) felony
classification levels. Under current law, for example, a first-time felon
94

Preliminary Report, at 17.

28

convicted of a Class B non-violent, non-sex, non-drug felony offense
is subject to a minimum indeterminate sentence of 1 to 3 years and a
maximum sentence of 8ѿ to 25 years, and a second felony offender
convicted of a Class B felony in this category faces a minimum
indeterminate sentence of 4½ to 9 years and a maximum sentence of
12½ to 25 years.95 Similarly, a first-time felon convicted of a Class C
non-violent, non-sex, non-drug felony offense is subject to a minimum
indeterminate sentence of 1 to 3 years and a maximum of 5 to 15
years, and a second felony offender faces a minimum indeterminate
sentence of 3 to 6 years and a maximum of 7½ to 15 years.96
The Commission believes that these comparatively broad
indeterminate ranges serve an important sentencing function by
allowing judges to appropriately address the multiplicity of crimes
included in the equally broad, catch-all category of non-violent, nonsex, non-drug felony offenses. Included, for example, among the
Class C felonies in this group are offenses as diverse as criminal
possession of a forged instrument in the first degree97 (uttering or
possessing specified types of forged instruments with the intent to
defraud, deceive or injure another); promoting prostitution in the
second degree98 (advancing prostitution of a person less than 16 or by
compulsion through force or intimidation); manslaughter in the second
degree99 (recklessly causing the death of another person) and criminal

95

See, Penal Law §70.00(2) and (3).
Id. While DOCS’ sentencing data indicate that the overwhelming majority of
indeterminate sentences imposed on first-time felony offenders have a minimum
period that is fixed at exactly one-third of the maximum term, the law does not
require it. Penal Law §70.00(3)(b) provides that, for a first-time felony offender, the
minimum period of an indeterminate sentence must be “not less than one year nor
more than one-third” of the maximum term imposed (Penal Law §70.00[3][b]
[emphasis supplied]). Thus, for example, a first-time felony offender convicted of a
Class B non-violent felony offense could, under current law, receive an
indeterminate sentence with a minimum period of one year and a maximum term of
up to 25 years. Similarly, a first-time felony offender convicted of a Class C nonviolent felony offense could receive an indeterminate sentence with a minimum
period of one year and a maximum term of up to 15 years.
97
Penal Law §170.30.
98
Penal Law §230.30.
99
Penal Law §125.15.

96

29

sale of a firearm to a minor100 (unlawfully selling or giving a firearm
to a person who is or reasonably appears to be less than 19 years of
age). Despite sharing the same Class C non-violent felony
designation, each of these offenses targets dramatically different
felony-level criminal conduct. Indeed, the Class C non-violent felony
category alone includes 26 separate felony offenses drawn from 18
different articles of the Penal Law.101
This is in contrast to more homogeneous sentencing categories
such as felony drug offenses102 and felony sex offenses.103 The former
category includes primarily drug sale and possession offenses derived
from Penal Law Articles 220 and 221 and the latter includes sex
offenses defined primarily in a single article of the Penal Law, Article
130.104 While it may be appropriate, given the common nature of the
offenses, to have a relatively narrow range of prison sanctions for
“felony sex offen[ses]” or “felony drug offense[s],”105 the Commission
believes that sentencing courts must -- under an indeterminate or
determinate model -- have a sufficiently broad range of available
100

Penal Law §265.16.
The class B felony category includes 15 separate non-violent felony offenses
drawn from 12 different articles of the Penal Law.
102
Penal Law §70.70(1)(a).
103
Penal Law §70.80(1)(a).
104
The recently created crime of “sexually motivated felony,” though defined in
Penal Law Article 130, incorporates a number of enumerated “specified offenses”
from several different Penal Law articles, committed “in whole or substantial part”
for the “direct sexual gratification” of the offender (see, Penal Law §130.91).
105
The Legislature appears to have followed this logic when, in 2004, it converted all
State prison sentences for “felony drug offenders” from indeterminate to determinate
(see, Laws of 2004, ch. 738). For first felony drug offenders in particular, the
determinate ranges the Legislature established were considerably narrower (and, in
many instances, much less onerous) than the indeterminate ranges they replaced (see,
Penal Law §§70.00 and 70.70[2]). Notably, however, in converting the similarly
“homogeneous” group of non-violent felony sex offenses from indeterminate to
determinate in 2007, the Legislature fixed fairly broad ranges (see, Laws of 2007,
ch.7; see also, Penal Law §70.80). It can be argued, of course, that by carving out
felony drug and non-violent felony sex offenses from the larger group of non-violent
felony offenses subject to indeterminate sentencing and creating a separate,
determinate, sentencing scheme for each offense type, the Legislature made even
more complicated an already “Byzantine” sentencing structure (see, Preliminary
Report, at 2-3, 12-13, 15-16).
101

30

prison sanctions to address the diverse collection of non-violent
offenses targeted by this proposal.
Broad sentence ranges under the existing indeterminate model
further a second important sentencing objective: they allow judges to
impose a State prison sentence in a particular case that reflects the
specific aggravating and mitigating circumstances of the crime and the
criminal history of the offender. As an example, a sentencing judge
might properly determine that the minimum State prison sentence of 1
to 3 years (or, perhaps, a non-incarceratory sentence) is appropriate for
a first-time felony offender with no prior criminal record who commits
the Class C non-violent felony of grand larceny in the second degree106
by pocketing $60,000 of his employer’s retail sales proceeds over an
extended period. That same judge might determine that a sentence
closer to the maximum (5 to 15 years) is appropriate where a first-time
felon with a lengthy misdemeanor record for fraud-related theft
offenses commits the same Class C felony offense by defrauding
several elderly victims, through a “Ponzi scheme,” of ten times that
amount ($600,000), thereby depriving them of their entire life savings.
Though both of these offenders stand convicted of the same statutory
offense (i.e., grand larceny in the second degree), the sentencing judge
is currently able to choose from a sufficiently broad range of prison
sanctions to ensure that “the punishment fits the crime.”
With regard to the adequacy of the current indeterminate
ranges, it is worth noting that in the more than two decades since New
York’s Committee on Sentencing Guidelines issued its call for a
radical new “guidelines” system of felony sentencing,107 there has
been no concerted effort -- legislative or otherwise -- to replace, or
even substantially modify, the longstanding indeterminate ranges for
this diverse group of crimes. Indeed, when the Legislature -- in 2004
and 2007, respectively -- made significant changes to prison sentences
for non-violent felony drug and sex offenses by converting them from
106

Penal Law §155.40 provides, in relevant part, that a person is guilty of grand
larceny in the second degree when he or she steals property and the value of the
property exceeds fifty thousand dollars.
107
See, New York State Committee on Sentencing Guidelines, Determinate
Sentencing: Report and Recommendations (1985); see also, Preliminary Report, at
10.

31

indeterminate to determinate, it left the sentences (and ranges) for all
the remaining non-violent felonies untouched. It is not surprising then
that while several of the sentencing experts and advocates who
addressed the Commission at its “information-gathering” sessions and
public hearings argued against the existing scheme of “mandatory
minimum” prison sentences for certain first-time and second nonviolent felony offenders,108 there was virtually no discussion or
criticism of the existing ranges for these crimes.
After considering all of the above factors, the consensus view
of the Commission was that the determinate ranges proposed should,
to the greatest extent possible, preserve the existing scope of available
prison sanctions.109 Stated differently, the proposed ranges should
enable the State’s criminal courts to impose sentences that -- at both
the low and high end of the sentencing spectrum -- result in roughly
the same periods of imprisonment (or potential imprisonment) as
under the existing indeterminate model.
B. The Importance of “Time-Served” Data
To obtain a more accurate picture of prison time actually
served for the 200-plus non-violent felony offenses targeted for
conversion, the Commission conducted a comprehensive examination
of “time-served” data for these crimes. The Commission reviewed
prison release data from DOCS showing, over a 23-year period (19852007), the amount of prison time served by offenders sentenced under
the existing indeterminate scheme for each of the targeted Class B
through Class E non-violent felony offenses. A summary of this time108

See, e.g., Penal Law §60.05(4) (requiring the imposition of an indeterminate
sentence of imprisonment for first-time felony offenders convicted of certain
enumerated Class C non-violent felony offenses); Penal Law §70.06 (requiring the
imposition of an indeterminate sentence of imprisonment for non-violent second
felony offenders). A discussion of the Commission’s proposals relating to the
current “mandatory minimum” sentences for certain drug-addicted non-violent
felony offenders in need of treatment appears in a separate section of this Report
(see, infra, at 96-131).
109
As discussed, infra, at 53-58, two members of the Commission were in favor of
adopting what would amount to shorter available prison sanctions by applying the
2004 “determinate drug” ranges to the targeted group of non-violent felony offenses.

32

served data, divided into one-year increments by felony classification
level and offender recidivist status, appears in three separate charts in
Appendix C. The first chart (“Chart C-1A”) summarizes the timeserved data for the cohort of first-time felons and second felony
offenders released from DOCS between January 1985 and December
2007 on indeterminate sentences for Class B, non-violent, non-sex,
non-drug felony offenses. The second chart (“Chart C-1B”)
summarizes this release data for Class C felony offenders in that
cohort. The third chart (“Chart C-2”) summarizes the time-served data
for the cohort of first-time felons and second felony offenders released
during the same period on indeterminate sentences for Class D and
Class E non-violent, non-sex, non-drug felony offenses.110
Charts C-1A and C-1B, for example, include the following
relevant information regarding Class B and Class C felony offenders in
the 1985-2007 release cohort:
x

Of the 1,056 first-time Class B felony offenders in the cohort,
1,045 (99.0%) served less than 10 years, 99.5% served less
than 13 years and 100% served less than 17 years.111

x

Of the 178 Class B second felony offenders in the cohort, 68
offenders (38.2%) served at least three years and less than five

110

Also included in Appendix C are four related charts (Charts C-3 through C-6),
which, for Class B and Class C felonies only, display the time served data for this
1985-2007 DOCS release cohort by length of sentence served. Due to space
restrictions, only the most frequently occurring sentence lengths are represented in
these four additional charts. The shaded column headings in Charts C-1A through
C-6 (e.g., “0/lt 1,” “1/lt 2,” “2/lt 3”) refer to the time (in years) actually served prior
to release. Thus, for example, “0/lt 1” refers to releasees in the cohort who served
less than (“lt”) one year, and “1/lt 2” refers to releasees in the cohort who served at
least one year but less than two years.
111
A total of 752 (71.2%) of the 1,056 first-time class B felony offenders in this
release cohort were serving a sentence for the class B non-violent felony of
conspiracy in the second degree. As defined in Penal Law §105.15, this crime
includes, among other things, conspiracy to commit murder and conspiracy to
commit any class A felony drug offense. Of the five offenders in that first felony
offender cohort who served 14 years or more, four were serving a sentence for
conspiracy in the second degree (see, Appendix C, Chart C-1A).

33

years, and all but three offenders (1.7%) served less than 15
years.112
x

With regard to the 2,586 first-time Class C felony offenders in
the cohort, 2,574 (99.5%) served less than 11 years, and only
three of the remaining 12 offenders served 13 years or more.113

x

Of the 727 Class C second felony offenders in the cohort, 263
offenders (36.2%) served at least two years and less than four
years, and 719 (98.9%) served less than 12 years.114

With respect to the Class D and Class E felony offenders in the
1985-2007 release cohort, Chart C-2 shows that:
x

Of the 14,481 first-time Class D felony offenders in the cohort,
14,407 (99.5%) served less than five years.115

x

Of the 18,689 Class D second felony offenders in the cohort,
12,399 (66.3%) served at least one year and less than three
years, and 18,526 (99.1%) served less than six years.116

x

With regard to the 14,625 first-time Class E felony offenders in
the cohort, 3,628 (24.8%) served less than one year,117 8,176

112

Of the 178 Class B second felony offenders in the release cohort, 123 offenders
(69.1%) were serving a sentence for conspiracy in the second degree. Of the three
offenders in this Class B second felony offender cohort who served 15 or more years,
all three were serving a sentence for conspiracy in the second degree, and two of the
three served at least 17 but less than 18 years.
113
All three of these offenders were serving a sentence for manslaughter in the
second degree under Penal Law §125.15.
114
The remaining 1% (a total of eight offenders) who served 12 or more years were
serving a sentence for manslaughter in the second degree.
115
See, Appendix C, Chart C-2.
116
Id.
117
Id. Although the lowest permissible minimum period for an indeterminate
sentence imposed on a first-time felony offender convicted of a Class B, C, D or E
felony offense is one year, there are several “early release” mechanisms under
existing law that can result in an offender’s serving less than the statutory minimum
period. These include, but are not limited to, early release under DOCS’ Shock

34

(55.9%) served at least one year and less than two years, and
all but 239 offenders (1.7%) served less than three years.
x

Of the 31,054 Class E second felony offenders in the cohort,
27,694 (89.2%) served at least one year and less than three
years, and 1,686 (5.4%) served at least three years and less than
four years.118

In reviewing the raw data that formed the basis for these three
summary charts, the Commission noted that offenders convicted of
certain crimes, such as the Class B non-violent felony offense of
conspiracy in the second degree (particularly where the charge was
based on a conspiracy to commit the crime of murder) and the Class C
non-violent felony of manslaughter in the second degree, tended to fall
at the higher end of the time-served spectrum.119 It also was noted that
a relatively large percentage of the Class B first-time and second
felony offender releasees in the 23-year cohort were serving a sentence
for conspiracy in the second degree (71.2% and 69.1%,
respectively).120 It was suggested that, rather than propose
unnecessarily broad determinate ranges for all Class B and Class C
felony offenses in the targeted pool to accommodate the potential need
for harsher sentences for these two crimes, the crimes themselves
should simply be reclassified at a higher felony offense level.121 As
discussed in greater detail below, these “reclassification” proposals
were ultimately rejected by the Commission.
C. Weighing the Options: The Three Determinate Models
In attempting to devise determinate ranges that take into
account currently available prison sanctions and time actually served
Incarceration Program, merit release and early release for deportation purposes
(Executive Law §259-i(2)(d); Correction Law §§803; 807[4]).
118
See, Appendix C, Chart C-2.
119
See, Appendix C, Charts C-1A and C-1B.
120
See, Appendix C, Chart C-1A.
121
Specifically, the proposal was to reclassify conspiracy in the second degree (a
Class B non-violent felony) as a Class C violent felony, and manslaughter in the
second degree (a Class C non-violent felony) as a Class B non-violent felony,
thereby subjecting each offense to a higher determinate sentence range.

35

for the more than 200 targeted non-violent felony offenses, the
Commission reviewed three distinct determinate sentencing “models,”
weighing the pros and cons of each before recommending a single
model for adoption.122 As explained below, each of these models
provides for a minimum determinate sentence of one year for all Class
B through Class E first-time felony offenders who are sentenced to
State prison. Because there was early agreement among the members
on this proposed one-year minimum, most of the Commission’s debate
122

A series of charts (Charts D-1 through D-4) comparing each of the models to the
existing indeterminate ranges appear in Appendix D of this Report. Chart D-1,
which applies to first-time felony offenders only, compares the proposed minimum
and maximum determinate terms for each of the three models with the existing
indeterminate terms, and Chart D-2 provides comparable information for second
felony offenders. Chart D-3, which applies to first felony offenders only, compares
the proposed maximum determinate terms under the three models with the existing
maximum indeterminate terms and presents additional time-served comparison data
from the 1985-2007 DOCS release cohort. Chart D-4 contains comparable
information for second felony offenders. To allow for a more meaningful
comparison of the existing indeterminate and proposed determinate ranges, each of
the four charts also includes a “release type” column. This column allows for a
direct comparison of the “hypothetical” release point (in years) under the three most
commonly applied early release mechanisms: “merit release,” parole release (for
indeterminate sentences only) and conditional release. For the current indeterminate
model, the “merit” release point (designated “merit” on the charts) assumes the
offender has earned a 1/6 merit time allowance, which is deducted from the
minimum period of the sentence and, thus, allows the offender to be considered for
release by the Board of Parole after he or she has served 5/6 of the minimum period.
For the proposed determinate models, the “merit” release point assumes the offender
has earned a 1/7 merit time allowance and a 1/7 “good time” allowance, both of
which are deducted from the full determinate term. Thus, the “merit” release point
for each determinate model reflects the offender’s serving 5/7 of the full determinate
term. The parole release point (designated “parole” on the charts) applies only to the
current indeterminate model and occurs upon the offender’s serving the minimum
period of the sentence. This release point assumes the offender either did not earn a
1/6 merit time allowance, forfeited a previously earned merit allowance or earned the
allowance and was simply denied release by the Board of Parole on the “merit”
release date. The conditional release point (designated “CR” on the charts) for the
current indeterminate model assumes the offender was denied release by the Board at
the merit date, parole date and all subsequent dates, but has not forfeited the 1/3
“good time” allowance deducted from the maximum term of the sentence. The
conditional release (“CR”) point for the determinate model assumes the offender has
not forfeited the 1/7 “good time” deduction and that the offender either did not earn a
1/7 merit time allowance or forfeited a previously earned merit allowance.

36

in this area focused on the question of the appropriate maximum
determinate ranges for both first and second felony offenders. The
following is an overview of the various range models discussed and a
summary of the Commission’s thoughts and conclusions with regard
to each.
1.

Prior “Conversion” Legislation

The Legislature has, on four prior occasions, converted entire
categories of felony offenses from indeterminate to determinate
sentences. On three of those four occasions,123 the Legislature, in lieu
of devising new maximum ranges for the determinate sentences,
simply “borrowed” the existing indeterminate maximums and
established those as the new determinate maximums for each
corresponding felony classification level. This occurred in 1995 and
1998, respectively, when the Legislature converted prison sentences
for all first and second-time violent felony offenders from
indeterminate to determinate, and again in 2007 when it converted
prison sentences for nearly all non-violent felony sex offenses from
indeterminate to determinate. In each instance, the Legislature simply
“grafted” the maximum terms under the existing indeterminate model
onto the new determinate sentencing scheme. Thus, for example,
where the permissible maximum indeterminate term for a first or
second-time felon convicted of a Class B violent felony offense or a
Class B non-violent felony sex offense had been 25 years, the new
maximum determinate term became (and, with certain exceptions, still
is) 25 years.124
The Commission rejected this conversion approach early on. It
recognized that simply “borrowing” the existing indeterminate
maximum terms and applying them as the new determinate maximum
sentences for the targeted offenses could lead to longer time-served
figures, especially for offenders sentenced at the higher end of the
determinate spectrum. This is due primarily to fundamental
123

As discussed infra, at 53-54, the fourth such indeterminate-to-determinate
“conversion” occurred in 2004 and applied to sentences for all felony-level drug
offenses.
124
See, Penal Law §§70.02, 70.04, 70.06(6) and 70.80.

37

differences in the way indeterminate and determinate sentences are
structured. For example, unlike its indeterminate counterpart, a
determinate sentence has no minimum or maximum term and lacks a
discretionary parole release mechanism. While both models allow for
“merit release” and “conditional release” under certain circumstances,
the merit time and good time allowances underlying these early release
mechanisms are applied and calculated quite differently for
determinate and indeterminate sentences.
As an example, a first-time Class B non-violent felony offender
serving the current maximum indeterminate sentence of 8ѿ to 25 years
would be eligible for merit release by the Board of Parole after serving
five-sixths of the 8ѿ-year minimum period (i.e., 6.9 years), and, if
denied merit release, would be eligible for discretionary release on
parole after serving the full 8ѿ-year minimum period. Even if denied
both merit release and parole release, the offender would continue to
be eligible for discretionary release by the Board and, if not released
sooner, would be entitled to “conditional release” after serving twothirds of the 25-year maximum term (i.e., 16.7 years).125 In contrast,
the same offender serving a 25-year determinate sentence would have
no possibility of release on parole at any point in the sentence.
Instead, the offender would be entitled to merit release, assuming he or
she earns the available one-seventh merit time allowance, only after
serving five-sevenths of the 25-year determinate term (i.e., 17.9 years).
If the offender fails to earn a merit allowance, or forfeits a previously
earned allowance, he or she would be required to be “conditionally
released” after serving six-sevenths of the full determinate term (i.e.,
21.4 years).
A review of the time-served data in Charts C-3 and C-4126
suggests that the Commission’s concerns with this conversion method
are well founded. Chart C-3, for example, shows that of the 22 firsttime Class B felony offenders in the 23-year DOCS’ release cohort
who were sentenced to the current maximum indeterminate sentence
of 8ѿ to 25 years, 86.4% actually served less than 13 years. As noted,
125

This assumes that the offender has not forfeited any of the one-third “good time”
allowance.
126
See, Appendix C.

38

if the Commission were to simply adopt the current indeterminate 25year maximum as the new determinate maximum sentence for this
category of offenders, 100% of the first-time Class B felony offenders
sentenced to the maximum would be required to serve at least 17.9
years, and those offenders who failed to earn a one-seventh merit
allowance would be required to serve at least 21.4 years.
Similarly, Chart C-5 shows that more than three-fourths
(76.0%) of the 287 first-time Class C felony offenders in the release
cohort who were sentenced to the current maximum indeterminate
sentence of 5 to 15 years actually served less than 10 years. If the
Commission were to adopt the current 15-year indeterminate
maximum as the new determinate maximum sentence, 100% of those
first-time felony offenders sentenced to the maximum would be
required to serve at least 10.7 years, and those offenders who failed to
earn a one-seventh merit allowance would be required to serve at least
12.9 years.
The Commission is aware that sentencing judges, under a
determinate sentencing scheme with no Parole Board component, have
a much greater say in the time actually served by a convicted offender.
Thus, the concern that by adopting the current maximum indeterminate
terms as the new determinate maximum sentences, more offenders will
end up serving more time than under the existing sentencing scheme
is, to some extent, a theoretical one. Stated differently, a sentencing
judge under a new determinate sentencing model could simply impose
a sentence that is less than the available maximum and thereby
eliminate the possibility that an offender will serve more time than he
or she would have under the comparable indeterminate maximum
sentence. Nonetheless, the Commission believes that the better and
more responsible approach is to fix determinate ranges for these nonviolent felony offenses that take into account the significant
differences between the indeterminate and determinate structures, thus
making it less likely that the sentences imposed will be greater under
the new determinate sentencing model.

39

2.

The “Conditional Release-Based” Model
a. Proposed Ranges

The first of the three determinate range models considered, and
the one supported by most of the Commissioners,127 utilizes a
theoretical approach to fixing determinate sentence lengths for the
more than 200 non-violent, non-sex, non-drug felony offenses in the
conversion pool. Under this Conditional Release-Based (“CR-based”)
model, maximum sentence length was determined by matching, as
closely as possible, the conditional release point on the proposed
maximum determinate sentence to the existing conditional release
point of the current maximum indeterminate sentence.128
Under this model, for example, a first-time Class C felony
offender would face a proposed maximum determinate term of 12
years. Assuming the offender forfeits none of his or her one-seventh
good time allowance,129 the offender would be entitled to conditional
release after 10.3 years. This approximates the conditional release
point of 10.0 years on the comparable maximum indeterminate
sentence of 5 to 15 years. Similarly, under the model, a first-time
Class D felony offender would face a proposed maximum determinate
127

Members could support more than one model.
The sole exception is at the Class B felony level. For these offenders, the
maximum term (for both first-time and second felony offenders) was fixed to yield a
conditional release point slightly lower than the existing indeterminate conditional
release point for that classification level. This was based on the Commission’s
analysis of time-served data for the 1985-2007 DOCS’ release cohort, which reveals
that only a very small number of offenders actually served more than the proposed,
slightly lower, maximum term.
129
As with the other two determinate sentencing models considered by the
Commission (i.e., the “time-served” and “determinate drug” models), all offenders
serving a determinate sentence under the proposed CR-based model would, subject
to existing statutory restrictions governing eligibility and forfeiture, be permitted to
earn a one-seventh merit time allowance, and would also be entitled to a one-seventh
“good time” allowance, both of which would be deducted from the full term of the
determinate sentence. The general provisions governing eligibility for merit time,
and the earning and forfeiture of merit time allowances, are set forth in Correction
Law §803. In a separate proposal in this Report, the Commission recommends
expanding eligibility for merit time to include certain offenders currently ineligible
to earn a merit allowance (see, infra, at 162-166).
128

40

sentence of 5½ years. Assuming no forfeiture of “good time,” the
offender would be entitled to conditional release after 4.7 years. This
matches exactly the conditional release point of 4.7 years on the
comparable maximum indeterminate sentence of 2ѿ to 7 years.130
The minimum determinate sentence for Class B through Class
E first-time felony offenders under the CR-based model would be one
year.131 The minimum terms for second felony offenders would, with
just one exception, be established by fixing the point of merit release
and conditional release for the proposed minimum terms as closely as
possible to the current indeterminate merit release and parole release
points, respectively.132 This approach ensures that for an offender
sentenced to the minimum determinate term, the earliest possible
release points on that sentence (i.e., the merit and conditional release
points) will approximate the earliest possible release points for the
comparable minimum sentence under the existing indeterminate model
(i.e., the merit and parole release points).
For example, under the CR-based model, the proposed
minimum determinate term for a Class B second felony offender is
five years.133 This term would yield a merit release point of 3.6 years,
which is comparable to the 3.7-year merit release point on the
minimum indeterminate Class B second felony offender sentence of
4½ to 9 years. Similarly, this five-year minimum determinate term
would yield a conditional release point of 4.3 years, which is
comparable to the 4.5-year parole release point on the current
130

The proposed minimum and maximum ranges for the CR-based model are set
forth below and in comparison Charts D-1 through D-2, which appear in Appendix
D.
131
As noted, both the time-served and determinate drug models also propose a oneyear minimum determinate sentence for first-time felony offenders.
132
The sole exception is at the Class D felony level. For Class D second felony
offenders, the Commission agreed to a slightly lower minimum sentence of two
years rather than 2½ years. As reflected in Chart D-2, the 2½-year minimum
sentence proposed for Class D second felony offenders under the competing time
served model would yield both merit release and conditional release points that more
closely approximate the merit and parole release points for the existing Class D
second felony offender minimum indeterminate sentence of 2 to 4 years (see,
Appendix D).
133
Id., Chart D-2.

41

minimum indeterminate sentence of 4½ to 9 years.134 As with nearly
all other determinate sentences, each determinate sentence under the
proposed CR-based model would be required to be imposed in whole
or half years.135 Further, under the model, each sentence would
include a mandatory period of post-release supervision (PRS) of from
1 to 3 years, the specific period to be determined by the judge at the
time of sentencing.136 The following charts set forth the proposed
minimum and maximum determinate ranges under the CR-based
model, and the current indeterminate ranges, for each felony
classification level. As with Charts D-1 through D-4 in Appendix D,
these charts also provide a comparison of the calculated “merit
release” and “conditional release” points under the proposed
determinate ranges, and the corresponding release points under the
existing indeterminate model.

134

Id. In comparing these hypothetical release dates under the two models, it is
important to remember that under the current indeterminate model, the Board of
Parole is the ultimate arbiter of whether an offender who has earned a one-sixth
merit time allowance will be granted “merit release” to parole supervision after
serving five-sixths of the minimum period or parole release after serving the full
minimum period (see generally, Executive Law §259-i[2][c][A]). In contrast, the
Board plays no role whatsoever in the release of the offender under the determinate
model. Accordingly, an offender serving a determinate sentence who has earned a
one-seventh merit time allowance and has forfeited neither that allowance nor the
one-seventh “good time” allowance is not subject to Parole Board approval and, as a
general rule, must be “merit released” after serving five-sevenths of the determinate
term. If no merit allowance is earned, or an earned merit allowance is later forfeited,
the offender would be entitled to “conditional release” after serving six-sevenths of
the determinate term, provided the offender has forfeited none of his or her oneseventh “good time” allowance.
135
See, e.g., Penal Law §§70.02(2); 70.04(2); 70.70(2); 70.71(2); 70.80(3).
136
See, PRS discussion, infra, at 47-49.

42

Chart 1
Conditional Release-Based Model: First-Felony Offenders
Felony Range and
Class Release Types

B

C

D

E

a

Current
Indeterminate
(in years)
Min
Max

Proposed
Determinate
(in years)a
Min
Max

Sentence Range
Earliest Release
Range
Ŷ Merit
Ŷ Parole
Ŷ CR

1–3

8ѿ – 25

1

16

0.8
1.0
2.0

6.9
8.3
16.7

0.7
-0.9

11.4
–
13.7

Sentence Range
Earliest Release
Range
Ŷ Merit
Ŷ Parole
Ŷ CR

1–3

5 – 15

1

12

0.8
1.0
2.0

4.2
5.0
10.0

0.7
–
0.9

8.6
–
10.3

Sentence Range
Earliest Release
Range
Ŷ Merit
Ŷ Parole
Ŷ CR

1–3

2ѿ – 7

1

5½

0.8
1.0
2.0

1.9
2.3
4.7

0.7
–
0.9

3.9
–
4.7

Sentence Range
Earliest Release
Range
Ŷ Merit
Ŷ Parole
Ŷ CR

1–3

1ѿ – 4

1

3

0.8
1.0
2.0

1.1
1.3
2.7

0.7
–
0.9

2.1
–
2.6

Note that under the proposed model, every determinate sentence would be followed by a postrelease supervision period of 1-3 years to be specified by the judge at sentencing.

43

Chart 2
Conditional Release-Based Model: Second Felony Offenders
Felony Range and
Class Release Types

B

C

D

E

Current
Indeterminate
(in years)
Min
Max

Proposed
Determinate
(in years)a
Min
Max

Sentence Range
Earliest Release
Range
Ŷ Merit
Ŷ Parole
Ŷ CR

4½–9

12 ½ – 25

5

16

3.7
4.5
6.0

10.4
12.5
16.7

3.6
–
4.3

11.4
–
13.7

Sentence Range
Earliest Release
Range
Ŷ Merit
Ŷ Parole
Ŷ CR

3–6

7 ½ – 15

3½

12

2.5
3.0
4.0

6.2
7.5
10.0

2.5
–
3.0

8.6
–
10.3

Sentence Range
Earliest Release
Range
Ŷ Merit
Ŷ Parole
Ŷ CR

2–4

3½–7

2

5½

1.7
2.0
2.7

2.9
3.5
4.7

1.4
–
1.7

3.9
–
4.7

Sentence Range
Earliest Release
Range
Ŷ Merit
Ŷ Parole
Ŷ CR

1½–3

2–4

1½

3

1.2
1.5
2.0

1.7
2.0
2.7

1.1
–
1.3

2.1
–
2.6

a
Note that under the proposed model, every determinate sentence would be followed by a postrelease supervision period of 1-3 years to be specified by the judge at sentencing.

44

b.

Rationale

In selecting the CR-Based model for this diverse pool of more
than 200 non-violent, non-sex, non-drug felony offenses, the
Commission, during its deliberations, pointed to several key aspects of
the proposal. First, of the three models considered, the proposed
minimum and maximum ranges of the CR-based model are, in the
Commission’s view, fair and reasonable, and will provide judges with
maximum flexibility to impose terms of imprisonment that, at both the
low and high end of the sentencing spectrum, are comparable to those
of the existing indeterminate model.
Thus, where a sentencing judge under current law believes that
a first-time Class C felony offender should receive the maximum
indeterminate sentence of 5 to 15 years (pursuant to which the
offender would be entitled to conditional release after serving 10
years), the judge, under the CR-based model, can mirror that result by
imposing the proposed maximum determinate sentence of 12 years
(which has a conditional release point of 10.3 years). On the other
hand, a judge inclined to impose the lowest permissible prison
sentence of 1 to 3 years on a first-time Class C felony offender under
the existing indeterminate model can closely approximate that result
by imposing a one-year determinate sentence under the CR-based
model. As reflected in Charts 1 and 2,137 the respective 0.7 and 0.9
merit and conditional release points on the one-year determinate
sentence closely track the 0.9 and 1.0 respective merit and parole
release points under the indeterminate model. Moreover, with the
noted exception of first-time Class B felony offenders, a similar result
is achieved under the CR-based model throughout the various offender
classification levels and designations (i.e., first and second felony
offenders).138
137

See, supra, at 43-44.
The conditional release points for the proposed maximum determinate ranges
under the time-served model also, at certain classification levels, come quite close to
the comparable conditional release points under the current indeterminate model. As
reflected in Charts D-3 and D-4, however, the time-served model is much less
consistent in this regard (see, Appendix D). For example, the conditional release
point of 6.8 years for the proposed maximum (8-year) determinate sentence for firsttime Class C felony offenders under the time-served model is considerably lower
138

45

Second, although the CR-based model takes a more theoretical
approach to fixing maximum ranges and, unlike the time-served
model, is not based solely on an analysis of time-served data, the
maximum ranges it proposes conform closely to that data at all four
felony classification levels. Indeed, when the 1985-2007 DOCS’
release cohort139 is considered, with only one exception, no proposed
maximum term under the CR-based model would “cover” less than
95% of the cohort releasees at that felony classification level, and
several would cover a greater percentage.140 As an example, the timeserved data in Chart D-3141 show that 99.5% of the 1,056 first-time
Class B felony offenders in the DOCS’ release cohort actually served
13.7 years or less, with 13.7 years representing the conditional release
point on the proposed maximum (16-year) determinate sentence under
the CR-based model. Similarly, 99.3% of the 2,586 first-time Class C
felony offenders in the DOCS’ release cohort actually served 10.3
years or less, with 10.3 years representing the conditional release point
on the proposed maximum determinate sentence of 12 years. Finally,
of the 14,481 first-time Class D felony offenders in the cohort, 99.3%
served 4.7 years or less, with 4.7 years representing the conditional
release point on the proposed maximum sentence of 5½ years.142

than the 10-year conditional release point for the current maximum (5 to 15-year)
indeterminate sentence. In contrast, the conditional release point of 5.1 years for the
proposed maximum (6-year) determinate sentence for Class D second felony
offenders under the time served model is slightly higher than the 4.7-year conditional
release point for the current maximum (3½ to 7-year) indeterminate sentence.
139
As noted, a summary of the time-served data for this 23-year release cohort
appears in Charts C-1A, C-1B and C-2 of Appendix C.
140
The exception relates to the proposed maximum term for Class E second felony
offenders. The CR-based model fixes a maximum determinate sentence of three
years for Class E second felony offenders, resulting in a conditional release point of
2.6 years. The time-served data in Chart D-4 show that 89.3% of the 31,054 Class E
second felony offenders in the 1985-2007 release cohort actually served 2.6 years or
less. Stated differently, nearly 11% of Class E second felony offenders in the cohort
actually served more than the 2.6 years that would be required to be served under the
proposed maximum determinate sentence of three years (see, Appendix D).
141
See, Appendix D. The relevant time-served data in Charts D-3 and D-4 appear
under the heading “All cases: % With Time Served Falling At or Below the Point of
Proposed CR.” This time-served data is based on the same 1985-2007 DOCS’
release cohort that forms the basis of Charts C-1A and C-2 in Appendix C.
142
See, Appendix D, Chart D-3.

46

Third, by fixing higher maximum sentences for first-time and
second Class C felony offenders than are proposed under the timeserved model (but still well below the high end of the indeterminate
ranges currently in effect), the CR-based model would cover 99.3% of
the first-time Class C felony offenders and 96.8% of the Class C
second felony offenders in the DOCS’ release cohort, thereby
eliminating the need to reclassify the crime of manslaughter in the
second degree as proposed under the time-served model.
Finally, by using a formula based on the conditional release
points of the existing indeterminate scheme, the CR-based model
results in identical proposed maximum terms for first and second
felony offenders at each classification level. Under the model, for
example, the proposed maximum determinate sentence for both firstand second-time Class B felony offenders is 16 years. This mirrors the
current indeterminate scheme (which also fixes maximum terms at
each felony classification level that are the same for first-time and
second felony offenders), and would add a degree of simplicity that is
lacking in the time-served and determinate drug models.
c. Post-Release Supervision Periods
As noted, under the CR-based model, every determinate
sentence imposed on a conviction for a targeted offense would be
followed by a mandatory period of post-release supervision (“PRS”) of
between one and three years. This would apply to both first and
second felony offenders. At sentencing, the judge would be required
to specify on the record the specific PRS period imposed. The
provisions of Penal Law §70.45, governing the commencement,
calculation, conditions, violation and revocation of PRS periods
generally, would apply to any period of PRS imposed on a determinate
sentence for a targeted offense.
In reviewing the options for a PRS model in these non-violent
felony cases, the Commission closely examined the existing statutory
provisions governing PRS.143 For first violent felony offenders (other
than sex offenders), the sentencing judge must select from a range of
143

See, Penal Law §70.45.

47

available PRS periods (generally from 1½ to 5 years, depending on the
classification level of the violent felony offense). All second violent
felony offenders (other than sex offenders) must receive a PRS period
of five years.144 Pursuant to Penal Law §70.45, all felony sex
offenders receiving a determinate sentence, including those convicted
of an offense that is also classified as a violent felony offense under
Penal Law §70.02, are subject to enhanced PRS periods. These
periods range from 3 to 10 years for a first felony offender convicted
of a non-violent Class E felony sex offense, to 10 to 25 years for a
repeat felony offender convicted of a Class B (violent or non-violent)
felony sex offense.145
All Class A felony drug offenders who receive a determinate
sentence must serve a PRS period of five years. First felony offenders
convicted of a Class D or Class E drug felony and sentenced to a
determinate sentence must serve a one-year period of PRS. For all
other felony drug offenders receiving a determinate sentence, the
sentencing judge must select from a range of available PRS periods
(generally from one to three years, depending on the classification
level of the felony drug offense and whether the offender is a repeat
felon).
The Commission’s decision to allow the sentencing judge in
these targeted non-violent felony cases to choose a specific PRS period
from a relatively short range of available periods (i.e., one to three
years) is based on three primary considerations. First, creating a PRS
model with a single range, for both first and second felony offenders,
to be applied to all felony classification levels, is simple and avoids
further complicating an existing sentencing structure that has been
aptly described as convoluted and labyrinthine.
Second, while simplicity is important, it is also important to
avoid a “one size fits all” approach to PRS that would require the
judge to impose a fixed (e.g., two-year) PRS period in every case. As
previously discussed, the pool of more than 200 non-violent felony
offenses targeted by this proposal covers a wide variety of criminal
144
145

Id.
Id.

48

conduct defined in numerous articles of the Penal Law, and judges
should have an appropriate menu of PRS options in imposing this
critical supervisory portion of the determinate sentence. The proposed
PRS model provides an appropriate balance between these two
competing considerations. Though simple in application, it would
allow the court in each of these cases to choose from a range of PRS
periods the specific period that best suits the supervision needs of the
offender and maximizes public safety.
Finally, and perhaps most important, research in the area of
offender re-entry consistently shows that offenders returning to the
community from prison are most likely to recidivate during the first 30
months following release, and that those who do not recidivate during
that period pose a much lower risk of recidivating thereafter.146
Accordingly, limiting the permissible PRS period to no more than
three years for this group of non-violent felony offenses will, in the
Commission’s view, further the proper allocation of limited Parole
resources in a manner that is consistent with public safety.
3.

The “Time-Served” (98%) Model

The Commission also considered a second determinate
sentencing model, dubbed the “time-served” (or “98%”) model. This
proposal uses time-served data for the 1985-2007 DOCS’ release
cohort to determine the cumulative point at which 98% of all releasees
in a given classification level (e.g., 98% of all first-time Class B felons
in the cohort) had been released on their sentences.147 That point is
146

See, Figure 2, infra, at 143.
Like the CR-based model, the time-served model would fix a one-year minimum
determinate term for first-time felony offenders. It would fix the following
maximum determinate terms for these offenders: 10 years for class B felonies; 8
years for Class C felonies; 5 years for Class D felonies and 3½ years for Class E
felonies. The time-served model would fix the following minimum and maximum
determinate sentences for second felony offenders: 5 to 17 years for Class B felonies;
3½ to 10½ years for Class C felonies; 2½ to 6 years for Class D felonies and 1½ to
3½ years for Class E felonies. Note that the proposed minimum determinate terms
for second felony offenders under the time-served model are not based on an analysis
of time-served data. As with the CR-based model, minimum terms were determined
by setting the point of proposed merit release and conditional release as close as
possible to the current indeterminate merit release and parole release points,
147

49

then used to fix the proposed conditional release (“CR”) point of the
new maximum determinate sentence for that classification level, and
the maximum sentence itself is established by simply dividing the CR
point by six-sevenths (.857).148 Using this formula, the time-served
model fixes maximum ranges for all four felony classification levels
that reflect the actual time-served figures for roughly 98% of the
releasees in the 23-year cohort.
For example, the time-served comparison data in Chart D-3149
show that 98.5% of the 1,056 first-time Class B felony offenders in the
23-year release cohort actually served 8.6 years or less. By fixing a
determinate maximum sentence of 10 years for first-time Class B
felony offenders (thereby creating a conditional release point of 8.6
years), the “time-served” model reflects that no more than 1.5% of the
1,056 first-time Class B felony offenders in the cohort actually served
more than they would have been required to serve (i.e., more than the
conditional release point) under the proposed maximum determinate
sentence.
The time-served data in Charts D-3 and D-4 further illustrate
the rationale behind this model. Chart D-3, for example, shows that
97.9% of the 14,481 first-time Class D felony offenders in the release
cohort actually served 4.3 years or less, with 4.3 years representing the
conditional release point of the proposed maximum determinate
sentence of 5 years for first-time Class D felons. Similarly, Chart D-3
shows that 98.6% of the 14,625 first-time Class E felony offenders in
respectively. The proposed minimum and maximum ranges for the time-served
model are also set forth in comparison Charts D-1 and D-2, which appear in
Appendix D.
148
As previously discussed, one-seventh is the potential amount of “good time” an
offender serving a determinate sentence can obtain on that sentence. Thus, an
offender who forfeits none of his or her good time is entitled to “conditional release”
when he or she has served six-sevenths of the full determinate term. The formula
underlying the time served model assumes that the overwhelming majority of
offenders serving a determinate sentence will not lose their one-seventh “good time”
allowance and will be released on or near their scheduled conditional release (“CR”)
date.
149
This comparison data appear in Charts D-3 and D-4 in the column designated “All
Cases: % With Time Served Falling At or Below the Point of Proposed CR” in
Appendix D. The data are set forth in a monthly format in Charts D-5 through D-8.

50

the release cohort actually served 3.0 years or less, with 3.0 years
representing the conditional release point of the proposed maximum
determinate sentence of 3½ years for first-time Class E felons. The
time-served data in Chart D-4 show a similar result for second felony
offenders. According to that chart, 97.9% of the 18,689 Class D
second felony offenders in the release cohort actually served 5.1 years
or less, with 5.1 years representing the conditional release point of the
proposed maximum determinate sentence of 6 years for Class D
second felony offenders. Similarly, 97.7% of the 31,054 Class E
second felony offenders in the release cohort actually served 3.0 years
or less, with 3.0 years representing the conditional release point of the
proposed maximum determinate sentence of 3½ years for Class E
second felony offenders.
Due to the comparatively high time-served figures for the Class
C non-violent felony offense of manslaughter in the second degree,150
that offense would, under the time-served model, be re-classified as a
Class B non-violent felony. This re-classification would raise the
proposed determinate sentence ranges for this crime to 1 to 10 years
for first-time felony offenders and 5 to 17 years for second felony
offenders (i.e., the proposed ranges for Class B felony offenders under
the time served model), and would render it ineligible for a probation
or local jail sentence.151
The impetus for this proposed re-classification is clearly
reflected in the time-served data for the 1985-2007 DOCS’ release
cohort. The data in Chart C-1B show, for example, that of the 2,586
first-time Class C felony offenders in the cohort, 2,574 (99.5%) served
less than 11 years, and only three of the remaining 12 offenders served
13 or more years. All three were serving a sentence for manslaughter
in the second degree.152 Similarly, of the 727 Class C second felony
offenders in the cohort, 719 (98.9%) served less than 12 years, and the
remaining 1% (a total of 8 offenders) who served 12 or more years
150

Penal Law §125.15.
As with many other Class C non-violent, non-sex, non-drug felony offenses, a
conviction for manslaughter in the second degree currently does not require the
imposition of a State prison sentence (see, Penal Law §§60.01(2)(a); 60.04[4],
60.05[4]; 65.00).
152
See, Appendix C, Chart C-1B.
151

51

were all serving a sentence for manslaughter in the second degree.153
Further, of the 1,123 first-time Class C felony offenders in the release
cohort serving a sentence for manslaughter in the second degree, only
77.4% were actually released at or prior to the proposed conditional
release (“CR”) point of 6.8 years (i.e., the CR point on the proposed
Class C felony maximum sentence of 8 years).154 When only those
first-time felony offenders serving a sentence for a Class C felony
offense other than manslaughter in the second degree are considered,
98.4% of those offenders were actually released at or prior to the
proposed CR point of 6.8 years.155
Several members expressed concern with the portion of the
time-served model that would require the reclassification of
manslaughter in the second degree as a higher level (i.e., Class B nonviolent) felony offense. In discussing the proposed reclassification, it
was suggested that, as a way to further bolster the time served model,
the existing Class B non-violent felony of conspiracy in the second
degree also might be reclassified. Under this proposal, the current
conspiracy offense would be divided into two separate crimes, with
conspiracy to commit any Class A drug felony retaining its current “B
non-violent” classification, and conspiracy to commit murder (or any
similarly egregious Class A felony such as arson or kidnapping in the
first degree) being reclassified as a separate offense at a level that
would permit or require a harsher prison sanction than is currently
available. One suggestion was to reclassify these latter conspiracy
offenses as Class C violent felony offenses, thereby increasing the
mandatory minimum determinate sentence for first-time felony
offenders from one year (as proposed in the time-served model) to 3½

153

Id.
See, Appendix D, Chart D-3.
155
Id., Chart D-4. The data for Class C second felony offenders reveals a similar
disparity. Only 80.5% of the second felony offenders serving a sentence for
manslaughter in the second degree were actually released at or prior to the proposed
CR point of 9.0 years (i.e., the CR point on the proposed Class C felony maximum
sentence of 10½ years). When only those second felony offenders serving a sentence
for a Class C felony offense other than manslaughter in the second degree are
considered, 97.6% of those offenders actually were released at or prior to the
proposed CR point of 9.0 years.
154

52

years as required by the existing violent felony offender sentencing
law.156
In the end, the consensus view of the Commission was that the
more straightforward CR-based model was preferable to the timeserved model because it establishes maximum determinate ranges that
reflect currently available prison sanctions, and is consistent with the
time-served data, without the need to reclassify one or more of the
targeted felony offenses. For these reasons, there was strong support
among Commission members for the CR-based model.
4.

The “Determinate Drug” Model

The last of the three proposed determinate range models
considered by the Commission would adopt the ranges established by
the Legislature when it converted prison sentences for all felony-level
drug offenses from indeterminate to determinate in 2004.157 A
response to the perceived harshness of the State’s longstanding
“Rockefeller” drug laws,158 the 2004 legislation established maximum
determinate ranges that, as previously noted, were considerably lower
than the existing indeterminate maximum terms.
As a general rule, the new determinate maximum terms were
fixed for first felony drug offenders at roughly one-third of the
permissible maximum indeterminate terms, and, for second felony
156

See, Penal Law §70.02. The proposed reclassification of certain conspiracy in the
second degree offenses as violent felony offenses also would have the effect of
subjecting repeat offenders to the second violent felony offender and mandatory
persistent violent felony offender sentencing statutes (see generally, Penal Law
§§70.04; 70.08).
157
See, Laws of 2004, ch. 738. The indeterminate sentence ranges that were the
subject of the 2004 drug legislation were, for nearly all Class B through Class E
felony drug offenses, identical to the existing indeterminate ranges for the 200-plus
non-violent felony offenses that are the subject of this proposal.
158
According to the New York State Assembly’s Memorandum in Support of the
2004 drug legislation, the measure represented “an important first step towards
reforming” New York’s Rockefeller drug laws, which, according to the
Memorandum, “provide inordinately harsh punishment for low level non-violent
drug offenders,” and “have been the subject of intense criticism for many years”
(see, Sponsor’s Mem, McKinney’s 2004 Session Laws of NY, at 2179).

53

drug offenders, at roughly one-half of the permissible maximum
indeterminate terms (i.e., at roughly the equivalent of the parole
eligibility date for each category of offense). Thus, for example,
where the permissible maximum indeterminate term for a first felony
drug offender convicted of a Class B felony drug offense had, prior to
2004, been 25 years, the legislation fixed the new permissible
determinate maximum term at 9 years, or roughly one-third of the
indeterminate maximum. Similarly, where the permissible maximum
indeterminate term for a second felony offender convicted of a Class B
felony drug offense was 25 years, the Legislature fixed the permissible
determinate maximum term at 12 years, or roughly one-half of the
indeterminate maximum.159 Except for certain schoolyard-related
offenses, the new determinate minimum sentence for all Class B
through Class E first felony drug offenders was fixed at one year.160
The specific proposal before the Commission would adopt the
current “determinate drug” ranges for both first and second-time Class
B through Class E felony drug offenders by applying these existing
ranges to the corresponding Class B through Class E non-violent, nonsex, non-drug felony offenses targeted for conversion. Thus, under the
proposal, first-time felony offenders would be subject to a one-year
minimum determinate term and the following maximum determinate
terms: 9 years for Class B felonies; 5½ years for Class C felonies; 2½
years for Class D felonies and 1½ years for Class E felonies. For
second felony offenders, the determinate ranges would be as follows:
3½ to 12 years for Class B felonies; 2 to 8 years for Class C felonies;

159

Higher terms were fixed for offenders whose prior conviction was for a violent
felony offense. Under the prior, indeterminate, sentencing scheme for felony drug
offenses, a first felony drug offender serving the maximum indeterminate sentence of
8ѿ to 25 years on a conviction for a Class B felony drug offense would be eligible
for parole after serving 8ѿ years (i.e., exactly ѿ of the maximum) (see, Penal Law
§70.00[3][b]). A second felony drug offender serving the maximum indeterminate
sentence of 12½ to 25 years on a conviction for a Class B felony drug offense would
be eligible for parole after serving 12½ years (i.e., exactly ½ of the maximum) (see,
Penal Law §70.06[4][b]).
160
See, Penal Law §70.70(2). This one-year minimum determinate sentence replaced
the prior 1 to 3-year minimum indeterminate sentence for these drug offenses.

54

1½ to 4 years for Class D felonies and 1½ to 2 years for Class E
felonies.161
Two members of the Commission favored applying these 2004
determinate drug ranges to the targeted non-violent felony offenses.
The Commission members supporting the model argued, in substance,
that the vast majority of the 200-plus non-violent felony offenses
targeted for conversion are, in terms of “moral reprehensibility” and
relative risk to public safety, comparable to felony drug offenses.
These non-violent offenses, they argued, should therefore be subject to
the same determinate ranges as felony drug offenses. The proponents
further claimed that, while certain of the non-violent felony offenses in
the 1985-2007 DOCS’ release cohort tended to skew the time-served
numbers toward the higher end of the scale, the numbers for most
offenders in the cohort are much closer to the middle and lower ranges
of the available time-served spectrum. As such, it was argued, the
maximum ranges under the determinate drug model are sufficient.
Those opposed to the proposal felt that the determinate drug
ranges were simply not broad enough -- especially at the higher end of
the sentencing spectrum -- to account for the wide variety and
potential seriousness of the criminal conduct encompassed by the more
than 200 non-violent felony offenses in the conversion pool. These
members pointed to the fact that the express purpose of the 2004 drug
legislation was to substantially reduce prison sentences for most felony
drug offenders, not maintain the status quo by merely converting the
existing indeterminate ranges to comparable determinate ranges. They
argued that in the absence of evidence that the current indeterminate
ranges for the targeted offenses tend to yield unduly harsh prison
sentences, or sentences that are disproportionate to the crime
committed, it would be inappropriate to dramatically reduce the
available prison sanctions for these crimes.
161

See, Appendix D, Charts D-1 and D-2. Under the determinate drug model, the
proposed ranges for second felony offenders would track the existing ranges for
Class B through Class E second felony drug offenders whose prior conviction was
for a non-violent felony offense (see, Penal Law §70.70[3]; see also, Penal Law
§70.70[4] [establishing higher determinate ranges for Class B through Class E
second felony drug offenders whose prior conviction was for a violent felony
offense]).

55

The data in Charts D-3 and D-4162 support the notion that, if
adopted, the determinate drug ranges could result in a significant
reduction in time actually served compared to the existing
indeterminate model. Chart D-3 for example, shows that, if the
proposed 5½ year maximum determinate sentence for a first-time
Class C felony offender under the determinate drug model were
adopted, it would yield a conditional release point of 4.7 years. This is
the point at which an offender who has forfeited none of his or her
one-seventh good time allowance would be required to be released.
This contrasts with a conditional release point of 10 years for the
comparable maximum sentence of 5 to 15 years under the existing
indeterminate model.163 More importantly, the time-served data in
Chart D-3 show that, of the 2,586 first-time Class C felony offenders
in the 1985-2007 DOCS release cohort, 76.4% were released at or
before 4.7 years. That means that approximately 23.6% of the 2,586
first-time Class C felony offenders in the release cohort actually served
more than the 4.7 years that would be required to be served on the
proposed 5½-year maximum determinate sentence under the
determinate drug model.
The result is similar for certain second felony offenders under
the determinate drug model. Chart D-4, for example, shows that
approximately 18.1% of the 18,689 Class D second felony offenders in
the release cohort actually served more than the 3.4 years that would
be required to be served on the proposed four year maximum sentence
under the determinate drug model. 164 Similarly, more than half
(51.7%) of the 31,054 Class E second felony offenders in the release
cohort actually served more than the 1.7 years that would be required
to be served on the proposed two year maximum sentence under the
determinate drug model. These numbers offer a stark contrast to the
CR-based model which, with the exception of Class E second felony
162

See, Appendix D.
As also reflected in Chart D-3, a first-time Class C felony offender sentenced to
the current maximum of 5 to 15 years would be eligible for merit release by the
Board of Parole after serving 4.2 years, and, if denied merit release, would be
eligible for release on parole after serving 5 years.
164
See, Appendix D.
163

56

offenders, fixes proposed maximum sentences that capture no less than
95% of the DOCS’ release cohort at every classification level.
Several Commission members were particularly concerned that
the proposed maximum ranges would leave too many Class B felony
offenders in the 1985-2007 DOCS’ release cohort “uncovered.” For
example, adopting the proposed nine-year maximum determinate
sentence for first-time Class B felony offenders under the determinate
drug model would mean that 3.8% of the first-time Class B felony
offenders in the release cohort actually served more than the calculated
conditional release point of 7.7 years. Similarly, for Class B second
felony offenders, 6.7% of those offenders in the release cohort actually
served more than the calculated 10.3-year conditional release point
under the determinate drug model’s proposed 12-year maximum
sentence. Although at the Class B felony level in particular, the raw
number of offenders who make up these “uncovered” pools is
concededly small, DOCS’ inmate data reviewed by the Commission
show that the often egregious crimes and criminal histories represented
by this small pool of “outliers” make these offenders more than just
“aberrations” on the time-served continuum. A number of these
outliers, for example, were serving sentences for conspiracy in the
second degree based on a conspiracy to commit murder or other
similarly egregious crimes.
With regard to the proposed minimum determinate sentences
for second felony offenders under the determinate drug model, all but
two Commission members agreed that the ranges were simply too low
to maintain the “status quo,” especially at the Class B and Class C
felony levels. As reflected in Chart D-2, for example, the proposed
minimum sentence of 3½ years for a Class B second felony offender
under the determinate drug model would result in a merit release point
of 2.5 years. That is more than one full year earlier than the merit
release point of 3.7 years on the current minimum indeterminate
sentence of 4½ to 9 years. Moreover, the proposed 3½ year
determinate sentence would yield a conditional release (“CR”) point of
3 years, which is 1½ years earlier than the parole release point on the
comparable 4½ to 9-year minimum indeterminate sentence. In effect,
then, a Class B second felony offender sentenced to the minimum
determinate term under the determinate drug model would be virtually
57

guaranteed release a full 1½ years earlier than a comparably sentenced
Class B second felony offender would be eligible for release (on
parole) under the existing indeterminate model.
This discrepancy is similar for Class C second felony offenders
under the determinate drug model. As reflected in Chart D-2, a Class
C second felony offender sentenced under the determinate drug model
to the minimum determinate sentence of two years would be required
to be “merit” released after 1.4 years and conditionally released
(assuming he or she earns no merit allowance or forfeits a previously
earned allowance) after 1.7 years. On the other hand, a Class C second
felony offender sentenced to the current minimum indeterminate
sentence of 3 to 6 years would merely be eligible for merit release by
the Parole Board after 2.5 years and, if denied release, would be
eligible for parole release after 3 years.
III.

RECOMMENDATION

As a critical component of any system of criminal justice, a
State’s sentencing structure must be intelligible, honest and fair. The
public, as well as the defendant and the victim, must have a clear
understanding of the actual term of the sentence to be served. The
Commission offers these new, conditional release-based, determinate
sentence ranges as a way to provide more clarity and fairness in
sentencing and thereby further streamline New York’s complex hybrid
system of indeterminate and determinate sentences. The ranges are the
direct result of the Commission’s in-depth and well-documented
analysis of both the current sentencing structure and time actually
served by offenders under that structure over a period spanning more
than two decades. The Commission hopes that these recommendations
and the extensive data supporting them will provide a solid framework
for future legislative action.
IV.

TARGETED SIMPLIFICATION OF NEW YORK’S
SENTENCING LAWS

In addition to proposing a mostly determinate sentencing
scheme for New York through the adoption of determinate sentencing
ranges for hundreds of non-violent felony offenses, the Commission
58

believes that adopting the following additional reforms would help to
further simplify and clarify New York’s overly complex sentencing
laws.
A. Creating a More Accurate Designation for “Violent Felony
Offenses”
Penal Law §70.02(1) currently defines a “violent felony
offense” by simply listing, by name and Penal Law section number,
those offenses that are to carry the “violent felony” designation.165
The legal impact of categorizing a crime as a “violent felony offense”
is significant in that offenders charged with or convicted of these
crimes are generally subjected to higher mandatory prison sentences,
tighter plea bargaining restrictions, fewer alternatives to incarceration
and more limited eligibility for DOCS’ inmate programming and early
release, to name just a few.
Notably, some of the crimes currently defined as “violent
felony offenses” do not require the use, or even the threatened use, of
actual violence or force. Falsely reporting an incident in the second
degree,166 for example, is a Class E violent felony, but does not require
proof of actual violence or the threat of violence or force; nor does
burglary in the second degree,167 a Class C violent felony offense. The
use of the “violent felony” designation for these offenses creates a
perception that the crimes are inherently violent when they are not.
While the Commission fully agrees with the notion of having a
separate category of particularly egregious crimes subject to enhanced
sentences and more restrictive plea bargaining and other statutory
requirements, it believes that the designation “violent felony offense”
can be misleading in certain circumstances and should be changed.
Accordingly, the Commission recommends changing the “violent
felony offense” designation to “aggravated felony offense” in Penal
Law §70.02 and in all other statutes where the term “violent felony
offense” currently appears, while leaving all enhanced sentencing
165

See, Penal Law §70.02(1).
Penal Law §240.55.
167
Penal Law §140.25.
166

59

requirements and other statutory provisions that currently apply to
these offenses unchanged. With regard to future legislative additions
to the list of “aggravated” offenses, the Commission further
recommends that only those especially serious crimes that clearly
warrant the kind of enhanced punishment and narrower plea
restrictions currently reserved to “violent felony offenses” be
considered.
B. Simplifying the Penal Law §60.12 “Domestic Violence”
Sentencing Exception
As previously noted, the ever-increasing number of special
sentencing categories and exceptions in New York law has contributed
to an already complicated State sentencing structure. In 1998, when
determinate sentences were authorized for first-time violent felony
offenders, the Legislature created a special indeterminate sentencing
scheme for defendants who were the victims of domestic violence and
whose abuse was a factor in precipitating their crimes.168 At the time,
it was believed that the shift to determinate sentencing would mean
harsher sentences, and these indeterminate sentences were intended to
mitigate that harshness for domestic abuse victims. At present,
however, no one is incarcerated on an indeterminate sentence under
this domestic violence provision. This fact militates in favor of
replacing that provision with a comparable ameliorative provision that
would allow for the imposition of a less harsh, determinate, sentence
in such cases. One possibility would be to replace this special
indeterminate sentencing provision with a provision that would allow
the judge, upon finding that the existing statutory criteria have been
met, to sentence the offender as if he or she were convicted of a
violent felony offense one classification level lower than the offense of
conviction. This would eliminate the need for a special indeterminate
sentencing chart for this category of “domestic violence-induced” firsttime violent felony offenders, while still allowing judges to impose a
less harsh prison sentence in cases where the offender is himself or
herself a victim of past domestic violence.169
168

Penal Law §60.12.
For offenders convicted of a Class E violent felony offense and sentenced in
accordance with the proposal, the Legislature could create a lesser determinate
169

60

C. Updating Offense Descriptors
In the Penal Law, each substantive felony offense has a
“descriptor” at the end of the offense definition that describes the
classification level of the felony (e.g., “Robbery in the first degree is a
Class B felony”). Many of these descriptors are now obsolete to the
point that they are affirmatively misleading. The Commission
recommends that they be updated to reflect, for example, whether the
offense, or a particular subdivision thereof, is a violent or non-violent
(or an “aggravated” or “non-aggravated”) felony offense.
D. Sentence Cap Provisions
The “cap” provisions of Penal Law §70.30, which regulate the
actual maximum length of consecutive sentences, are particularly
confusing and obtuse. The following is an example of the complexity:
Except as provided in subparagraph (ii), (iii), (iv), (v),
(vi) or (vii) of this paragraph, the aggregate maximum
term of consecutive sentences, all of which are
indeterminate sentences or all of which are determinate
sentences, imposed for two or more crimes, other than
two or more crimes that include a Class A felony,
committed prior to the time the person was imprisoned
under any of such sentences shall, if it exceeds twenty
years, be deemed to be twenty years, unless one of the
sentences imposed was for a class B felony, in which
case the aggregate maximum term shall, if it exceeds
thirty years, be deemed to be thirty years. Where the
aggregate maximum term of two or more indeterminate
consecutive sentences is reduced by calculation made
pursuant to this paragraph, the aggregate minimum
period of imprisonment, if it exceeds one-half of the
aggregate maximum term as so reduced, shall be

sentence of, for example, 1 to 3 years to be imposed in lieu of the “regular” Class E
violent felony determinate sentence of 1½ to 4 years.

61

deemed to be one-half of the aggregate maximum term
as so reduced.170
In fairness to the drafters, complexity here was somewhat
inevitable. With each change in the structure of sentencing (e.g., the
creation of determinate sentencing) it became necessary to create new
provisions and exceptions to those provisions. Nevertheless, these cap
provisions have become so complex that they are difficult to decipher
and Penal Law §70.30 simply needs to be re-written.
E. Consecutive and Concurrent Sentences
New York’s rules governing consecutive and concurrent
sentences are also extremely complicated. Incidental references to
concurrent sentencing appear in Articles 60 and 65 of the Penal Law,
but the substantive rules are in Penal Law §§70.25 and 70.30.171 The
general rule is that a sentencing court has discretion to decide whether
to make a sentence for a crime run consecutively or concurrently to
another sentence imposed at the same time, or with an “undischarged”
term imposed at an earlier time.172 If the judge fails to speak on the
matter, an indeterminate sentence or a determinate sentence will be
deemed to run concurrently to all other terms and a definite sentence
will be deemed to run concurrently with terms imposed at the same
time, but consecutive to any other terms.173 While the general rule
grants discretion to sentencing courts, there are specified situations
where a court cannot impose a sentence to run concurrently with
another sentence. These include cases where a repeat felony offender
is subject to an undischarged term of imprisonment imposed prior to
the date on which the present crime was committed.174
For the past 30 years, if the sentencing court was silent, DOCS
would calculate the sentences as running consecutively. A concurrent
calculation would result in the new sentence being credited with the
170

Penal Law §70.30(1)(e)(i).
See, e.g., Penal Law §§60.01(2)(d); 65.15(1); 70.25(2); 70.30.
172
Penal Law §70.25(1).
173
Penal Law §70.25(1).
174
See, Penal Law §70.25(2-a); see also, Penal Law §70.25(2-b), (2-c), (2-d), (5).
171

62

entire period that had been served at DOCS under the predicate
sentence. In February 2008, however, the Appellate Division, Third
Department ruled that when the sentencing court is silent, DOCS lacks
the authority to calculate such sentences as running consecutively.175
Shortly before this Report was printed, the New York State Court of
Appeals heard oral arguments in the appeal of this case, which could
impact the sentences of thousands of predicate felony offenders.176
Regardless of the outcome of the Court of Appeals’ decision, the
Commission believes that these rules are needlessly complex,
engender unnecessary litigation, and should be re-examined and
simplified.
F. “Back-End” Sentencing Provisions
As discussed in other sections of this report, numerous “backend” sentencing provisions that provide mechanisms for early release
from State prison, such as “good time,”177 “merit time,”178 and
“supplemental merit time,”179 are currently defined outside the Penal
Law. Other non-Penal Law provisions establish early release
programs or mechanisms, including the temporary release program,180
the presumptive release program for non-violent inmates,181 “shock
incarceration,”182 early parole for deportation183 and medical parole.184
For example, a defendant convicted of a drug offense and sentenced to
a determinate sentence of seven years is eligible for a good time
reduction of one-seventh -- a provision that appears in the Correction
Law -- and an additional one-seventh off in merit time for completing
certain DOCS’ programs -- a provision that also appears in the
Correction Law.
175

See, People ex rel Gill v. Greene, 48 A.D.3d 1003 (3d Dept. 2008), lv. granted
Third Department (June 26, 2008). This case was argued before the Court of
Appeals on January 6, 2009.
176
Id.
177
Correction Law §803(1)(b), (c).
178
Correction Law §803(1)(d).
179
Laws of 2004, ch. 738, §30; Laws of 2005, ch. 644, §1.
180
Correction Law §851 et seq.
181
Correction Law §806.
182
Correction Law §865 et seq.
183
Executive Law §259-i(2)(d).
184
Executive Law §259-r.

63

Although there are scattered references in various sections of
the Penal Law to good time;185 merit time;186 medical parole;187 early
parole for deportation;188 shock incarceration;189 and presumptive
release,190 there are no references to any of these “back-end” release
mechanisms in the substantive Penal Law sections that define the
sentences for specific crimes. This structure makes it difficult for
defendants, practitioners and victims to easily determine the actual
length of a prison sentence. Particularly with regard to merit time and
good time, an appreciation of these provisions is critical to
determining the most likely length of a prison sentence. Accordingly,
the Commission recommends that some or all of these non-Penal Law
“back-end” sentencing provisions be merged into a single article of the
Penal Law or be cross-referenced in a single section of Penal Law
Article 70 (“Sentences of Imprisonment”).
G. Plea Restrictions
The Criminal Procedure Law includes numerous, mostly postindictment, restrictions that limit the parties’ ability to negotiate plea
bargains.191 For example the Penal Law provides that “[w]here the
indictment charges a * * * Class B violent felony offense which is also
an armed felony offense then a plea of guilty must include at least a
plea of guilty to a Class C violent felony offense.”192 None of these
plea restrictions existed in 1971 when the Criminal Procedure Law
was enacted, but they have proliferated ever since. When the parties
and the court conclude that a plea agreement is in the interest of
justice, it seems misguided that a categorical plea restriction should
frustrate that outcome. Moreover, plea restrictions are easily evaded,
either by plea bargaining before an indictment is returned or by
dismissing the indictment (or certain charges contained therein) so that

185

Penal Law §70.30(4).
Penal Law §70.40(1)(a)(i).
187
Penal Law §70.40(1)(a)(v).
188
Penal Law §70.40(1)(a)(v).
189
Penal Law §70.40(1)(a)(v).
190
Penal Law §70.40(1)(c).
191
CPL 220.10(5).
192
CPL 220.10(5)(d)(i).
186

64

the restriction will no longer apply, and then proceeding under a
different accusatory instrument.
Supporters of plea restrictions argue that such restrictions are
necessary to limit the ability of the parties and the court to
inappropriately plea serious offenses down to lesser offenses in
response to large caseloads. However, experienced lawyers know
their way around the plea restrictions and this results in defendants
with less experienced or overburdened counsel being most
disadvantaged by such restrictions. Other supporters argue that the
elimination of the restrictions would discourage pre-indictment pleas.
Notably, nothing prevents a District Attorney’s office from
establishing its own plea guidelines or from favoring defendants who
resolve their cases expeditiously.
Accordingly, the Commission recommends creating an
exception to the plea restriction provisions of the Criminal Procedure
Law in cases in which the prosecutor puts on the record the reasons
why, in the interest of justice, permitting a plea outside of the
restrictions is appropriate in a particular case and the court makes a
finding on the record that it is in the interest of justice to do so.
H. Anomalies
New York’s mostly ad hoc approach to amending its
sentencing and penal statutes over the past four decades has resulted in
a sentencing structure that lacks clarity and cohesiveness. Enlisting
the help of experienced criminal practitioners, judges and sentencing
experts, the Commission was able to identify a number of ambiguities
and inconsistencies in the existing sentencing laws that are the
inevitable -- and wholly unintended -- byproduct of this piecemeal
approach. These include statutes that create higher permissible
maximum sentences for first-time felony offenders than for repeat
felons convicted of the same crime; sentencing options for certain nonviolent felony offenses that allow for the imposition of a fine or
probation on one hand and a 15-year State prison term on the other,
but prohibit a more “middle ground” sentence of local jail; and plea
restrictions for certain violent felony offenses that are apparently
intended to prevent overly lenient dispositions but fall short of that
65

goal. A complete discussion of some of the most glaring anomalies in
the existing sentencing statutes can be found in Appendix F.

66

PART THREE
A MEASURED APPROACH TO REFORMING
NEW YORK’S DRUG LAWS

67

Part Three
A Measured Approach to Reforming New York’s
Drug Laws
Drug law reform is an emotionally and politically-charged
issue in New York that raises a variety of public policy questions that
impact public safety and public health.193 Because of the importance of
this issue, the Commission closely examined New York’s drug laws,
sentencing practices and enforcement policies and held public hearings
around the State. It also formed “focus groups” to obtain feedback
from prosecutors, judges, defense attorneys, sentencing experts and
drug law reform advocates on the merits of revising the current drug
laws. Although no one reform proposal was entirely acceptable to all
members, 194 the Commission reached general consensus on certain
core principles in the area of drug law reform. It recognized the
importance of an evidence-based, data-driven approach and, thus,
examined existing diversion programs, as well as outcome data, before
discussing specific proposals for reform. The Commission ultimately
concluded that the best approach was to memorialize the most
promising proposals it studied, together with a discussion of the
strengths and weaknesses of each, for the benefit of the Governor,
Legislature and Judiciary.

193

The Commission made two recommendations regarding drug law sentencing
reform in its 2007 Preliminary Report. First, the Commission recommended that
New York’s drug sentencing laws be modified to codify existing practice by
expressly permitting courts to send non-violent drug-addicted felony offenders to
community-based treatment in lieu of prison where the parties and the court agree
that such is an appropriate resolution of the case. As noted in the Preliminary
Report, there is nothing in the existing Penal Law or Criminal Procedure Law that
expressly permits the parties and the court to agree to a non-incarceratory,
community-based treatment alternative to an otherwise mandatory State prison
sentence for a non-violent drug-addicted second felony offender. Second, the
Commission found that in order to ensure the successful diversion of these offenders
in a manner consistent with public safety, the State must improve both the quality
and accessibility of substance abuse treatment and other community-based
programming (see, Preliminary Report, at 23-26).
194
See, infra, at 96-97.

68

I.

A BRIEF HISTORY OF NEW YORK’S DRUG LAWS
A.

The Rockefeller Drug Laws

In 1973, then-Governor Nelson Rockefeller, in response to a
burgeoning heroin epidemic195 and an “ever rising tide” of substance
abuse and drug-related crime,196 introduced and obtained passage of
comprehensive legislation to overhaul the State’s drug laws. The new
laws required a sentence of 15-years-to-life for a first-time conviction
for selling one ounce or possessing two ounces of a controlled
substance, and mandated incarceration for all Class A, B and C drug
felonies. In addition, three new categories of Class A drug felonies
were created to reflect the quantity of drugs sold or possessed (A-I, AII and A-III), with a maximum of life in prison for each, together with
a variety of mandatory minimum sentences and various restrictions on
plea bargaining.197 Adopted as a companion measure to the drug laws,
the “second felony offender” statutes eliminated the ability of judges
to impose non-prison sentences for repeat felony offenders, and
required the imposition of mandatory minimum sentences in all such
cases.198 Collectively, New York’s “Rockefeller” drug laws were
considered the toughest in the nation at the time of their enactment.199

195

See, Confronting the Cycle of Addiction and Recidivism: A Report to Chief Judge
Kaye by the New York State Commission on Drugs and the Courts (June 2000), at 9.
196
Griset, Pamala L. Determinate Sentencing: The Promise and the Reality of
Retributive Justice, State University of New York Press (1991), at 63.
197
Laws of 1973, ch. 276, §§9, 10, 25.
198
Laws of 1973, ch. 277, §9. Under these laws, a person who commits a felony
offense under the Penal Law (including a drug or other non-violent felony offense)
within 10 years of being sentenced on a prior felony conviction must, with only a
few narrow exceptions (see, e.g., Penal Law §§70.06(7); 70.70[3][c]), receive a State
prison sentence within the ranges established by the Legislature (see generally, Penal
Law §§60.04[5]; 60.05[6]; see also, Griset, Determinate Sentencing, supra, note 196,
at 66-67).
199
Some of the effect of the original drug laws was diluted by subsequent legislative
amendments. For example, the minimum required weights for Class A-I sales and
possessions were doubled to two ounces and four ounces, respectively, in 1979.
Other ameliorative changes were made at the same time, including raising the
weights for conviction of the A-II possession and sale crimes, lowering the minimum
sentence for an A-II felony conviction from six years to three years, and eliminating
the “A-III” felony drug crimes. The original Rockefeller Drug Laws required the

69

Over the course of the next several decades, in the face of rising prison
populations and shrinking revenue,200 legislative efforts were
undertaken to address the lengthy prison sentences that resulted from
the Rockefeller drug laws. Programs such as Shock Incarceration and
merit time201 were introduced to provide “back-end” early release
mechanisms for drug and other non-violent felony offenders.202
B.

The Drug Law Reform Act

In order to ameliorate the harsher elements of the Rockefeller
drug laws, the Legislature enacted the Drug Law Reform Act (DLRA)
in 2004.203 The DLRA eliminated life sentences for Class A felony
drug offenses and doubled the weights for certain Class A felony drug
possession crimes, while making all drug sentences determinate with
generally shorter available ranges.204 The DLRA also relaxed plea
restrictions,205 required a period of post-release supervision upon
same sentences for sale and possession of certain amounts of marijuana, but those
provisions also were repealed in 1979.
200
See, Preliminary Report, at 10.
201
Initially, A-I felony drug offenders serving indeterminate sentences under prior
law were ineligible for merit time. This was changed in 2003 to allow such
offenders to earn merit time in the amount of one-third, in contrast to all other drug
offenders who could earn a one-sixth merit time reduction. DOCS reports that, as of
December 31, 2008, there have been 116 Class A-I felony drug merit releases from
State prison. These A-I drug offenders left prison an average of 38 months before
their parole eligibility dates.
202
Other such “back-end” early-release mechanism programs included Work Release
and Comprehensive Alcohol and Substance Abuse Treatment (“CASAT”).
203
See, Laws of 2004, ch. 738.
204
For example, the minimum sentence for an A-I felony drug offender with no
prior felony convictions dropped from an indeterminate term of 15 years to life, to a
determinate term of eight years. For first-time Class B felony drug offenders, a
determinate term of 1 to 9 years replaced the prior indeterminate range of 1 to 3
years (minimum) up to 8ѿ to 25 years (maximum). The DLRA preserved the
authority of sentencing courts to impose an alternate definite sentence of up to one
year, or a non-jail sentence such as probation, for Class C, D and E first-felony drug
offenders.
205
Plea restrictions were modified to allow a defendant indicted for a Class A-I drug
felony to plead down to a Class B felony (as opposed to a Class A-II felony). And,
in those instances where an individual provides material assistance to a district
attorney, the DLRA made available a 25-year term of probation (replacing the prior
lifetime probation term) for first-time Class B felony drug offenders.

70

completion of the determinate sentence, and allowed newly sentenced
felony drug offenders to earn an additional one-seventh merit time
allowance.206 The DLRA provided retroactive relief to inmates
currently serving a 15-year-to-life or greater indeterminate sentence
for a Class A-I felony drug offense by allowing such offenders to
move for re-sentencing in accordance with the new determinate
sentencing scheme, and allowed other felony drug offenders serving
indeterminate sentences to be eligible for an additional one-sixth merit
time allowance by accomplishing certain objective goals in prison.207
In 2005, the Legislature extended re-sentencing opportunities to
certain Class A-II felony drug offenders serving indeterminate
sentences under the prior law.208
C.

The Need for Further Drug Law Reform

Those seeking drug law reform repeatedly argued to the
Commission that the 2004 and 2005 drug law changes did not go far
enough in reversing the harsh effects of the Rockefeller drug laws.
Specifically, the reform advocates noted that thousands of Class B
drug felons serving lengthy sentences under the Rockefeller drug laws
remain ineligible for re-sentencing under the DLRA.209 They further
206

Merit time can be earned by accomplishing certain objective goals in prison (e.g.,
earning a GED, engaging in vocational training or substance abuse treatment). This
is in addition to the one-seventh good time credit authorized for all determinate
sentences.
207
This additional one-sixth merit time reduction, which is applied to the minimum
term of the indeterminate sentence, enabled drug offenders to cut their minimum
term by one-third. Through December 2008, supplemental merit time allowed a total
of 2,686 Class A-II through Class E felony drug offenders serving indeterminate
sentences to be released an average of 6.8 months prior to their merit eligibility
dates.
208
See, Laws of 2005, ch. 643.
209
A 2005 report on the DLRA by the New York City Legal Aid Society called for
adoption by the Legislature of retroactive resentencing for inmates serving long
indeterminate sentences for class B felony drug offenses: “We should also adopt
retroactive relief that would reduce sentences for those now serving B level drug
offenses in state prison * * * [R]eform has allowed the A-I and some of the A-II
offenders to apply to be re-sentenced. But the DLRA did not reach those serving B
drug felonies. This has resulted in a disjointed system in which B felons sentenced
for street sales under the old law are serving sentences as long as 8ѿ to 25 years for a
first felony, while those serving time on the more serious A-I cases may now have

71

noted that the amendments left unchanged the requirement that nearly
all first-time Class B and second felony drug offenders be sentenced to
State prison.210 The New York City Legal Aid Society strongly
criticized the powerful role of prosecutors in drug cases, arguing that:
Under the Rockefeller Drug Laws and continuing with
the DLRA, the sentencing judge has very little
independent authority to place a drug offender into
treatment * * * * The prosecutor effectively determines
who enters a treatment program and who does not. In
our adversary system of justice a sentence mechanism
as crucial as drug treatment * * * should be equally
available to the judge, the one objective person
involved in the criminal case.211
During public hearings and in focus groups, prosecutors and
law enforcement officials voiced strong opposition to further reform of
New York’s drug laws. Prosecutors criticized the DLRA’s lower
sentencing ranges and repeated their opposition to altering the
“mandatory minimum” and “second felony offender” laws by arguing
that these laws have “played a vital role in providing * * * the
framework which has led to the tremendous and historic reduction in
crime we have [seen] since about 1993.”212 Reform advocates argued
sentences as low as 8 years” (Legal Aid Society, One Year Later: NewYork’s
Experience with Drug Law Reform, December 14, 2005, at 13).
210
Under current law, a first-time felony offender convicted of a Class B felony drug
offense, such as criminal sale of a controlled substance in the third degree (Penal
Law §220.39) or criminal possession of a controlled substance in the third degree
(Penal Law §220.16) must -- unless the offender has provided or is providing
“material assistance” to the prosecutor and receives a 25-year probation term in
accordance with Penal Law §65.00(1) and (3) -- receive a determinate sentence of
imprisonment of 1 to 9 years (or from 2 to 9 years if the drug sale occurred on a
school bus or in or near school grounds) (see, Penal Law §70.70[2][a][i]). A definite
or intermittent sentence of up to one year in local jail, “split sentence” of up to six
months in local jail followed by a period of probation supervision, “straight”
probation sentence or another non-incarceratory sentence such as a conditional
discharge or fine are, except as noted above, not available for first-time Class B
felony drug offenders.
211
Legal Aid Society, supra, note 209, at 10-11.
212
Commission on Sentencing Reform, Transcript of July 18, 2007 Meeting, at 135.

72

that inasmuch as the Rockefeller Drug Laws have been in place since
the early 1970s, and were in effect during the same decades when drug
crime in New York was at its peak, there is little correlation between
the enactment of these laws and the decrease in crime rates.213
Prosecutors stressed that the mandatory sentencing statutes encourage
cooperation in the prosecution of higher-level drug traffickers and
provide a strong incentive for non-violent drug-addicted offenders to
participate in treatment programs. Both prosecutors and reform
advocates voiced concerns that the additional resources for drug
treatment and diversion anticipated as part of the DLRA were never
fully funded.
Law enforcement officials took exception to the notion that
drug reform efforts were directed toward low-level non-violent drug
offenders. New York City Special Narcotics Prosecutor Bridget
Brennan published a study which concluded that of the 65 inmates
convicted by her Office of a Class A-I drug felony who had their
sentences reduced under the DLRA, only one offender fit the profile of
a “low-level” courier doing the bidding of a major trafficker -- an
often-cited example of the underlying rationale for enactment of the
DLRA.214 Prosecutors also repeatedly highlighted the strong link
between drug sales and violence, and the use of the drug laws to
prosecute violent gang members. They argued that the consent of the
District Attorney should be required for an offender to be diverted to
drug treatment because prosecutors often have access to confidential
informant information regarding drug organizations and are in the best
position to decide which offenders can be diverted without a
significant risk to public safety. Finally, they argued that it is
important to consider the views of those who live in communities
afflicted by drug dealers who repeatedly urge law enforcement to rid
their neighborhoods of illegal drug markets.

213

New York State Commission on Sentencing Reform, Transcript of New York
City Public Hearing (November 13, 2007), at 175-184.
214
Office of the Special Narcotics Prosecutor for the City of New York, The Law of
Unintended Consequences: A Review of the Drug Law Reform Acts of 2004 and
2005 (June 27, 2006), at 5.

73

Cognizant of these divergent views on drug law reform, and in
an effort to reach an evidence-based conclusion about the need for
additional reform, the Commission decided to examine data regarding
the impact of the DLRA. Contrary to public perception of the impact
of the 2004 and 2005 drug law changes, the data indicate that the
amendments have had a significant effect on drug sentencing policies
in New York. Notably, a growing number of felony drug offenders
have benefited from a reduction in the sentences imposed under the
Rockefeller drug laws. As of December 31, 2008, a total of 252 Class
A-I felony drug offenders have been resentenced pursuant to the
DLRA and released from DOCS’ custody an average of 50 months
prior to their previously calculated earliest release dates.215 A total of
232 Class A-II felony drug offenders have been resentenced and, on
average, released 13 months prior to their previously calculated
earliest release dates.216 Through November 2008, the provision in the
DLRA allowing an additional one-sixth supplemental merit time
reduction for drug offenders allowed a total of 2,686 Class A-II
through Class E felony drug offenders serving indeterminate sentences
to be released an average of 6.9 months prior to their merit eligibility
dates. Three years after the DLRA was enacted, the average minimum
term for new drug commitments, as well as the average time served in
custody, decreased by approximately six months.217 Significantly, this
has been achieved without a detrimental impact on public safety since
crime continued to fall to historic lows in 2006 and 2007.218
215

A total of 377 inmates convicted of Class A-I felony drug offenses have been
resentenced under the DLRA.
216
As of December 31, 2008, a total of 360 inmates convicted of Class A-II felony
drug offenses have been resentenced under the 2005 legislation.
217
The average minimum term was reduced from 34.9 months to 29.0 months. Not
surprisingly, the percentage of felony drug offenders entering DOCS with a
determinate (as opposed to indeterminate) sentence has increased dramatically since
enactment of the DLRA. DOCS reports that offenders with a determinate sentence
made up 38% of new drug commitments in 2005, 82% of such commitments in 2006
and 91% in 2007. Sentences for first-felony drug commitments declined from an
average of 30.2 months to 23.6 months and second-felony drug commitments
declined from an average of 38.0 months to 33.2 months. For first-felony drug
offenders, the average time served declined by approximately seven months. The
average time served by second felony offenders committed for a drug offense
decreased by approximately 4½ months.
218
See, infra, note 280.

74

A review of the legislative history of the DLRA reveals that, at
the time of enactment, it was viewed as a first step toward more
comprehensive changes to New York’s drug laws. In its
memorandum in support,219 the New York State Assembly articulated
that the 2004 legislation “represents only the initial step towards
reforming the drug laws. Several other reforms are urgently needed
* * * [including giving] judges * * * the discretion to decide whether
or not to send non-violent low level addicted offenders to drug
treatment programs as an alternative to prison.” The Assembly
memorandum pointed out that “[d]rug treatment programs for criminal
and non-criminal offenders should also be enhanced,” emphasizing
that numerous studies have shown that drug treatment is more
effective than incarceration in eliminating substance abuse and its
associated criminality.220 A similar sentiment was echoed by the
Senate Majority Leader presiding at the time of the DLRA debate.221
The Commission acknowledges the legitimate and compelling
positions on both sides of the drug reform debate, but believes that in
addition to the significant reforms of 2004 and 2005, further reforms
should be enacted to ensure that drug-addicted non-violent felony
offenders who are appropriate candidates for drug treatment are
diverted from State prison. Additionally, while tough mandatory
minimum sentences may well be appropriate and necessary for drug
dealers and repeat and persistent offenders who are either not drug
addicted or fail to take advantage of drug treatment, such sentences
may be unduly harsh for first-time non-violent felony drug offenders.
Careful consideration should be given to alternative sentences,
including probation, “split” sentences and local jail sentences for firsttime felony drug offenders, particularly when combined with
conditions that include drug treatment.

219

Mem of NYS Assembly in Support of A. 11895 (2004).
Id.
221
Senate Debates, December 7, 2004, at 6309-6312.
220

75

II.

RACIAL DISPARITY: THE DISPROPORTIONATE
IMPACT OF NEW YORK’S DRUG SENTENCING
LAWS

Between 1995 and 2003, the number of people in state and
federal prisons incarcerated for drug offenses increased by 21%, from
280,182 to 337,872.222 This growing rate of incarceration for drug
crimes has not been borne equally by all members of society.223 As of
2003, twice as many African Americans as whites were incarcerated
for drug offenses in state prisons in the United States. African
Americans made up 13% of the total U.S. population, but accounted
for 53% of sentenced drug offenders in state prisons in 2003.224
A recent study by the Justice Policy Institute (JPI) of 2002 drug
admissions to state prison from the nation’s most populous counties
showed that African Americans are far more likely than whites to be
admitted for drug offenses at the county level. The 198 counties
studied (including nine counties in New York State) have populations
of 250,000 or more and account for more than half (51%) of the total
U.S. population.225 According to the JPI study, there were more than
twice as many African Americans (62,087) as whites (28,314)
admitted to prison for drug offenses from large-population counties in
the U.S. in 2002. What’s more, the rate of admission to prison for drug
offenses was more than 10 times greater for African Americans
(262.16 per 100,000) than for whites (24.85 per 100,000).226
Recent DOCS’ admission and “under custody” data for felony
drug offenders paint a disturbingly similar picture of racial disparity in
New York. In each of the last five years, African Americans
constituted a dramatically higher percentage of total DOCS’
admissions for drug offenses than whites. The DOCS’ data show that,
from 2003 to 2007, white offenders, on average, made up 10% of total
222

Justice Policy Institute, The Vortex: The Concentrated Racial Impact of Drug
Imprisonment and the Characteristics of Punitive Counties (December 2007), at 2.
223
Id.
224
Id.
225
The 110,522 offenders admitted to state prisons for drug offenses in 2002
represented about 60% of the 175,000 drug admissions reported that year (id., at 10).
226
Id.

76

drug admissions to DOCS, while African Americans made up 55%.
During the same five-year period, Hispanic drug offenders constituted,
on average, 34% of total DOCS’ drug admissions. Moreover, while
African Americans and Hispanics comprised 32% of New York
State’s population ages 16 and older in 2008,227 they accounted for
nearly 90% of all offenders in DOCS custody for a drug offense that
year.228
At public hearings and meetings, the Commission heard
moving testimony from drug law reform advocates, criminal justice
professionals and sentencing experts on the need to reduce racial and
ethnic disparities in the State’s criminal justice system in general, and
particularly in drug cases. In a presentation to the Commission, noted
Harvard professor and sociologist Bruce Western detailed the farreaching social and economic consequences of imprisonment and its
impact, in particular, on families and communities of color. These
comments are captured in a recent article by Dr. Western:
There are now 2.3 million people in U.S. prisons and
jails, a fourfold increase in the incarceration rate since
1980. * * * Blacks are seven times more likely to be
incarcerated than whites, and large racial disparities can
be seen for all age groups and at different levels of
education. One in nine black men in their twenties is
now in prison or jail. Young black men today are more
likely to do time in prison than serve in the military or
graduate college with a bachelors degree. The large
black-white disparity in incarceration is unmatched by
most other social indicators. Racial disparities in
unemployment (two to one), nonmarital childbearing
(three to one), infant mortality (two to one), and wealth
(one to five) are all significantly lower than the seven to
one black-white ratio in incarceration rates.
***
The social penalties of imprisonment also spread
through families. Though formerly incarcerated men
227
228

Woods and Poole Economics, Inc.
Department of Correctional Services, 2008 Under Custody File.

77

are just as likely to have children as other men of the
same age, they are less likely to get married. Those
who are married will most likely divorce or separate.
The family instability surrounding incarceration persists
across generations. Among children born since 1990, 4
percent of whites and 25 percent of blacks will witness
their father being sent to prison by their fourteenth
birthday. Those children, too, are to some extent drawn
into the prison nexus, riding the bus to far-flung
correctional facilities and passing through metal
detectors and pat-downs on visiting day. In short, those
with prison records and their families are something
less than full members of society. To be young, black,
and unschooled today is to risk a felony conviction,
prison time, and a life of second-class citizenship. In
this sense, the prison boom has produced mass
incarceration – a level of imprisonment so vast and
concentrated that it forges the collective experience of
an entire social group.229
The Commission is troubled by the data showing broad racial
and ethnic disparities in the State’s prison admissions for felony drug
offenders, and is unanimous in its belief that racial and ethnic disparity
can lead to public mistrust of the criminal justice system and impede
the ability to promote public safety.230 The members agree that if
unwarranted racial disparities can be reduced, the justice system will
gain credibility and be more effective in both preventing and
responding to crime.231 The Commission recognizes, however, that
the causes of such disparities are myriad and complex and cannot be
remedied through changes in sentencing policy alone. Racial
disparities can infect a system of criminal justice at virtually any stage,
from the very earliest point of initial police involvement in the arrest

229

Western, Bruce, Reversing Mass Imprisonment, Boston Review.net (July/August
2008), at 1-2.
230
See, The Sentencing Project, Reducing Racial Disparities in the Criminal Justice
System: A Manual for Practitioners and Policymakers (2d ed. 2008), at 1.
231
Id.

78

and charging decision to the very latest point of post-sentence
decision-making by a corrections, parole or probation official.
With respect to matters within the purview of the Commission,
a majority of Commissioners agree that in the area of felony drug
sentencing, establishing a uniform statewide diversion program for
drug-addicted non-violent felony offenders would likely have a greater
impact on African-American and Hispanic drug offenders. This is, in
many ways, a matter of simple mathematics, since the overwhelming
majority of drug offenders entering State prison in New York each
year are persons of color. Providing courts with a new procedure in
statute to divert more drug-addicted felony offenders from prison into
treatment regardless of the quality of the offender’s legal
representation, socio-economic status or economic resources, would
almost certainly help to reduce the “social penalties of imprisonment”
described by Dr. Western and have a beneficial long-term impact on
the families and communities of those African-American and Hispanic
individuals who, through diversion to treatment, succeed in ending the
cycle of addiction and crime.232
In examining options for a uniform diversion model, the
Commission looked at several different proposals for possible
inclusion in this Report, and took great care to assess their impact on
existing drug diversion programs in the State. It is there that we begin
our analysis.

232

Evidence of this benefit can be found in the Commission’s analysis of the 2006
DOCS’ admission pool of felony drug offenders that was used to estimate the
number of additional offenders that might be eligible for diversion annually under its
Judicial Diversion proposal. This analysis revealed that approximately 1,200 firsttime felony offenders, and approximately 1,800 second felony offenders, admitted to
DOCS in 2006 might have been eligible for diversion to community-based treatment
under the proposal (see, “Projected Impact of the Judicial Diversion Model,” infra, at
108-109). Notably, eighty-two percent of the 1,200 potentially eligible first-time
felony offenders were African American or Hispanic and 17% were white. Of the
1,800 potentially eligible second felony offenders, 93% were African American or
Hispanic and 6% were white. Overall, 89% of the 3,000 potentially eligible offenders
in the 2006 admission pool were African American or Hispanic.

79

III.

OVERVIEW OF EXISTING DIVERSION PROGRAMS

One of the often overlooked achievements in drug law policy
in New York is the expansion and success of drug courts and other
drug diversion programs. There are three principal models in the State
to divert substance-abusing, non-violent felony offenders into
community-based treatment: Drug Treatment Alternative-to-Prison
(DTAP), Structured Treatment to Enhance Public Safety (STEPS) and
Drug Treatment Courts. Because these programs target offenders
facing mandatory prison sentences, all three generally require
prosecutorial consent for diversion. Each program utilizes different
eligibility criteria. Some, for example, accept primarily first felony
offenders while others target predicate felons, and most, but not all,
exclude offenders with current charges or histories of violent felonies
or sex offenses. The length and type of required drug treatment -residential, outpatient or a combination of both -- also varies
depending on the program and the specific treatment needs of the
offender.
Not all drug-addicted felony offenders receiving communitybased treatment for substance abuse are participants in one of these
three diversion programs. Pursuant to Penal Law §65.10(2)(e), any
criminal court may require a defendant sentenced to probation to
“participate in an alcohol or substance abuse program” as a condition
of the sentence. Some drug treatment courts require drug-addicted
first-time felony offenders to complete substance abuse treatment as
part of a five-year probation sentence. Probation also is widely used
by other courts (i.e., non-drug courts) as a vehicle for ensuring that
these offenders receive and complete treatment. A recent review of
data regarding individuals under probation supervision showed that
more than 25% of felony probationers had participation in a drug
treatment program required as a condition of probation.233

233

Integrated Probation Registrant System as of January 18, 2009. This calculation
excludes agencies that do not report conditions of probation.

80

A.

Drug Treatment Alternative-to-Prison (DTAP)

Created in 1990 by the Kings County District Attorney, the
DTAP drug treatment program234 is recognized as one of the nation’s
most successful diversion models. The DTAP program targets nonviolent, drug-addicted second felony offenders and employs several
features that have been identified as proven attributes of effective
treatment models, including: (1) using mandatory prison sentences as
an incentive for success in treatment;235 (2) lengthy residential
treatment requirements; (3) re-admission to the program for “qualified
failures;”236 (4) the careful screening of offenders; and (5) an emphasis
on employment counseling and job placement.237
To be considered for DTAP, a defendant must be at least 18
years of age, be charged with a felony-level offense, and have at least
one prior felony conviction.238 In addition, the defendant must be drug
addicted and the crime must have been precipitated by that
addiction.239 Defendants initially identified as DTAP-eligible must
undergo a screening process that includes a review of the defendant’s
criminal history and the facts of the case. Many defendants evaluated
for DTAP commonly face charges for drug sale or possession, as well
234

All references to “DTAP” in this section are, unless otherwise noted, to the Kings
County DTAP program.
235
The effectiveness of “legal coercion” in improving treatment program retention
rates is well documented (see, e.g., Young, D., Impacts of Perceived Legal Pressure
on Retention in Drug Treatment, Criminal Justice and Behavior 29, at 27-55 (2002);
Young, D., and Belenko, S., Program Retention and Perceived Coercion in Three
Models of Mandatory Drug Treatment, Journal of Drug Issues 32, at 297-328 (2002);
see also, Kings County District Attorney’s Office, Drug Treatment Alternative-toPrison, Seventeenth Annual Report (May 2008), at 53.
236
Under DTAP’s “selective readmission” policy, defendants who relapse or
experience setbacks in treatment are generally re-admitted to DTAP if they express a
genuine desire to continue treatment and pose no threat to the treatment provider or
the community (see, id., at i).
237
Id. at 6.
238
Drug-addicted offenders in Kings County who are facing only a misdemeanor
charge or a first felony charge, while not eligible for DTAP, may be eligible for
diversion into treatment through one of Brooklyn’s three court-run drug parts:
Misdemeanor Brooklyn Treatment Court, Brooklyn Treatment Court and the
Screening and Treatment Enhancement Part (id., at 8, note 9).
239
Id. at 7.

81

as theft-related charges, and those who are rejected for the program are
typically believed to be major drug traffickers and/or have a significant
history of violence.240 Candidates who are not rejected following this
“legal screening” then receive a clinical assessment by Treatment
Alternatives for a Safer Community (TASC), a not-for-profit criminal
justice case management organization, to verify the defendant’s
substance abuse history and match the defendant to the most
appropriate treatment facility.241
Following TASC’s assessment, DTAP’s Warrant Enforcement
Team conducts a field investigation of each candidate to determine
whether there are factors that may make placement in the program
inappropriate.242 Those who exhibit violent tendencies, an
unwillingness to participate in treatment or have no roots in the
community are generally not diverted into treatment.243 Another
objective of the field investigation is to ensure that a defendant who
absconds from treatment can be located quickly and returned to
court.244 In addition, by speaking directly to the addicted person’s

240

Id. at 7-8.
TASC also performs several case management-related functions in the Brooklyn
DTAP model after a defendant is accepted into the program, including conducting
site visits, clinical interventions for offenders who are not complying with treatment,
drug testing and providing monthly reports to the court, prosecutor and defense
attorney regarding the defendant’s progress. Once the defendant successfully
completes the residential portion of treatment, TASC is charged with monitoring the
defendant’s aftercare and re-entry, including employment, housing and maintaining a
drug-free lifestyle (id., at 8).
242
Id. at 9.
243
Id.
244
DTAP reports that 90% of all program absconders have been returned to court in
a median time of 21 days for imposition of the previously agreed-upon prison
sentence. Because DTAP participants are made aware that the enforcement team has
verified their contact information and is prepared to quickly return any absconders to
court, the participants presumably feel increased pressure to remain in and complete
the program (id.). Indeed, research conducted by the Vera Institute of Justice has
shown that these enforcement efforts have been successful in instilling a fear of
rearrest in DTAP participants, and that this perception is as important as actual
enforcement capacity in increasing retention among DTAP participants (see,
Confronting the Cycle of Addiction and Recidivism, supra, note 195, at 55).
241

82

friends and family, the DTAP investigator can enlist their support in
convincing the defendant to enter and remain in treatment.245
Prior to being accepted into DTAP, defendants are required to
plead guilty to a felony charge and have their sentence deferred while
undergoing 15 to 24 months of intensive residential drug treatment and
aftercare. The plea agreement includes a specific prison term to be
imposed by the judge in the event of failure in treatment while
individuals who successfully complete DTAP are able to withdraw the
plea and have their charges dismissed. The judge and the District
Attorney’s Office closely monitor the offender’s program compliance
and the court, in consultation with the parties, applies sanctions and
rewards to help modify the offender’s behavior.246 When an offender
successfully completes the drug treatment plan and other criteria
required for graduation, TASC, in consultation with the offender’s
treatment provider, will recommend to the Kings County District
Attorney’s Office that the offender be considered as having completed
DTAP.
This “tough and compassionate” approach to the drug-addicted
criminal population has yielded positive results.247 In 2001, a fiveyear recidivism study revealed that drug offenders who completed
DTAP were re-arrested at a rate of 30% compared to a 56% re-arrest
rate for a comparison group of otherwise eligible drug offenders who
served prison terms.248 DTAP participants, who are typically longtime drug abusers, also remain in treatment for a median of 17.8
months, which is six times longer than the national average for the
drug treatment population.249 DTAP graduates are also three and one245

See, King County District Attorney’s Office, supra, note 235.
Id. at 10.
247
Id.
248
Research findings pertaining to the Kings County DTAP program discussed in
this paragraph are based on research that examined the case outcomes of participants
that entered this program during 1995-1996. It is important to note that, at that time,
the DTAP program was a deferred-prosecution program. DTAP moved to its current
deferred-sentencing program in 1998. Consequently, the criminal history and
demographic profiles of offenders who entered DTAP in the mid-nineties may differ
from those for offenders who have entered the program since 1998.
249
National Center on Addiction and Substance Abuse (CASA) at Columbia
University, Crossing the Bridge: An Evaluation of the Drug Treatment Alternative246

83

half times more likely to be employed than they were before entering
DTAP.250 Also, when compared to a similar non-DTAP group, DTAP
graduates were less likely to return to prison than the matched
comparison group two years after that group left prison.251
Researchers further concluded that DTAP’s results were achieved at
approximately half the average cost of incarceration.252
Based on the recognized successes of the Kings County DTAP
program, New York State allocated Federal Anti-Drug Abuse Act
monies in fiscal year 1992-93 to support and replicate the program in
other New York City jurisdictions.253 While the Brooklyn DTAP
program served as a model for these newer initiatives, eligibility
criteria vary by county, as well as the process and structure of the
programs. Moreover, not every program has access to the same level
of treatment, housing, employment and other community-based
resources. They all, however, are prosecutor-driven deferredsentencing programs that generally require offenders to participate in
15 to 24-month treatment protocols with an initial nine to 12 months in
a residential treatment facility. Although the retention and recidivism
rates vary by county,254 the evidence strongly suggests that program
graduates are re-arrested at a lower rate than comparable groups of
offenders who are not subjected to the “legally coerced” long-term
treatment regimen that is the cornerstone of the DTAP model.255

to-Prison (DTAP) Program, A CASA White Paper (2003), at ii. The overall
completion rate for DTAP participants over the 17-year history of the program is
approximately 50% (Kings County District Attorney’s Office, supra, note 235, at
24).
250
Id. at ii.
251
Id.
252
Id.
253
Id. at 21. New York County and the New York City Special Narcotics Prosecutor
established their own DTAP programs in 1992, followed by Queens County in 1993.
The District Attorneys in Bronx and Richmond Counties established DTAP
programs in 1998 and 1999, respectively.
254
See, Confronting the Cycle of Addiction and Recidivism, supra, note 195, at 5156.
255
Id. at 56.

84

B.

Structured Treatment to Enhance Public Safety
(STEPS)

In an effort to expand the DTAP diversion model to counties
outside New York City, the Division of Criminal Justice Services
(DCJS) launched a prosecutor-based diversion program in 2003 known
as “Road to Recovery.” Later renamed “STEPS” (Structured
Treatment to Enhance Public Safety),256 the aim remained to divert
both first-time and repeat non-violent drug-addicted felony
offenders257 into long-term substance abuse treatment as an alternative
to incarceration.
Participating prosecutors can choose from three different
STEPS treatment models, each of which requires minimum stays of
either six or nine months in an “intensive residential” treatment
setting, followed by three months at a community residence (i.e., a
halfway house) where the participant continues in an outpatient
treatment program followed by an additional three months of ongoing
outpatient care.258 Much like DTAP, the district attorney plays a
256

Though it specializes in drug cases and shares a similar acronym, the Screening
Treatment Enhancement Part in Kings County is not affiliated with DCJS’ STEPS
program.
257
A 2005 analysis of the STEPS program by DCJS showed that, at arrest, 40.9% of
STEPS participants were charged with property offenses (burglary, 16.7%; larceny,
11.3%; forgery, 7.5%; and “other” property, 5.4%), 22.6% with DWI offenses, and
22.0% with drug offenses. Violent and other offenses accounted for only 5.9% and
3.8%, respectively, of top-charge arrest offenses. Criminal history statistics showed
that 83.3% of participants had at least one prior felony arrest and 64.0% had at least
one prior felony conviction. Furthermore, 71.0% of participants were previously
sentenced to periods of incarceration -- 28.5% had served at least one prior prison
sentence; 56.5% had served at least one prior jail sentence; and 33.9% had received
at least one jail-probation (i.e., “split”) sentence. Findings also revealed that 77.4%
of the STEPS participants had prior drug and/or alcohol arrest or conviction charges.
One-half (49.5%) of the participants had at least one prior arrest and/or conviction
for a drug-related offense, and 47.8% had at least one prior arrest and/or conviction
for a DWI-related offense. The program currently operates in 16 counties outside of
New York City (Data provided by DCJS [2009]).
258
The first option is a 15-month program that involves a “deferred sentence”
disposition similar to DTAP, and the second option is shorter (12 month) version of
that program. Under the third option, the defendant receives a parole supervision
sentence that involves a three-month stay at the Willard Drug Treatment Campus

85

pivotal role throughout the entire process, from conducting the initial
“legal screening” to determining suitability for diversion, as well as
making the ultimate decision regarding individual success or program
failure.
Several issues have plagued the STEPS program since its
inception. Despite research indicating that STEPS has been effective
in lowering recidivism rates among graduates,259 there has been
reluctance by some district attorneys to participate in the program.
Additionally, the type of offender targeted for program participation
varies greatly by county; some counties divert alcohol-addicted
offenders but not felony drug offenders.260 It is difficult to tell to what
extent, if any, these issues have had an effect on program results.
Despite efforts to expand the program, seven of the 16 district
attorneys’ offices that operate STEPS programs fell below their
agreed-upon minimum diversion targets in 2007, and the 2009-2010
Executive Budget recommends that DCJS funding for STEPS be
discontinued due to the State’s current fiscal crisis. The Budget
proposes that $4 million be added to the Office of Alcoholism and
Substance Abuse Services’ (“OASAS”) budget to continue to support
diversion for felony drug offenders in upstate and suburban New York
City counties.
C.

Drug Treatment Courts

Drug Treatment Courts are dedicated court parts that provide
non-violent drug-addicted offenders an opportunity to reduce or avoid
criminal sanctions if they are successful in treatment.261 The drug
(see, Part Five, infra, at 166-168) followed by 12 months of community-based
treatment as a condition of parole.
259
According to an April 2007 recidivism analysis of the STEPS program by DCJS,
re-arrest rates for the one-year and two-year periods following program completion
were 13.7% and 18.2%, respectively. These rates are comparable to those reported
by the Kings County DTAP program for the same “at-risk” periods, 10% and 19%,
respectively.
260
As of April 2007, approximately 19% of all STEPS diversions involved DWI
offenders.
261
See, Confronting the Cycle of Addiction and Recidivism, supra, note 195, at 33. Adult
drug treatment courts are part of the Judiciary’s large network of “problem-solving” courts,
which also include Family Treatment, Integrated Domestic Violence, Domestic Violence,

86

court model involves intensive judicial monitoring of the program
participant, thus allowing the judge to react quickly to errant behavior
or non-compliance and promptly acknowledge and reward positive
behavior.
For many [drug court] participants, the close attention paid to
them by the [d]rug [c]ourt judge, and the positive
reinforcement they obtain for succeeding, may be the first time
that they have experienced this kind of enhancement of their
self-esteem. The [d]rug [c]ourt judge becomes a single,
reliable authority figure who will immediately hold participants
accountable when they fail, and who will acknowledge their
progress when they succeed. This undoubtedly puts a different
face on the criminal justice system for most substance abusers,
and it seems to play an important role in achieving positive
results in treatment.262
In the most commonly used drug treatment court model, a
guilty plea is accepted and sentencing is adjourned pending the
outcome of drug treatment and the completion of other drug court
program requirements.263 Once a plea agreement is reached, a
voluntary contract outlining specific outcomes for success and failure
is entered into by the offender, defense counsel, the prosecutor and the
court. Participants regularly report back to court, sometimes as often
as once a week, to be drug tested and have their progress monitored by
the judge.264 If the offender remains drug-free and continues to make
progress in treatment, the judge provides positive reinforcement and
may permit the offender to progress to the next phase of the program.
Mental Health, Sex Offense, Youthful Offender Domestic Violence and Community Courts
(see, http://www.courts.state.ny.us/courts/problem_solving/).
262
Confronting the Cycle of Addiction and Recidivism, supra, note 195, at 40.
263
In certain upstate drug treatment courts, sentencing is not deferred for first-time
felony offenders. Instead, the offender is required to participate in drug court and
successfully complete treatment as specific conditions of a five-year probation
sentence. In these cases, the sentence is imposed “up front” (i.e., following entry of
the guilty plea). If successful in treatment and in complying with all other conditions
of probation, the offender í though burdened with a permanent felony conviction í
avoids a violation of probation and any resulting jail or prison sanction.
264
Confronting the Cycle of Addiction and Recidivism, supra, note 195.

87

Successful program completion usually results in a withdrawal of the
felony guilty plea and dismissal of the charges or a plea to a nonfelony offense.
With the help of a resource coordinator or case manager, drug
treatment courts provide a broad range of services to participants,
including access to education, job training, mental health services,
public benefits, housing and other resources, and monitor the
offender’s progress in obtaining such services.265 As with the DTAP
model, graduation from drug court is contingent upon remaining drugfree for the prescribed period as well as compliance with requirements
that encourage a drug-free lifestyle, such as maintaining employment
or securing a G.E.D. or a vocational certificate.266 While relapses are
generally addressed with graduated sanctions, the ultimate sanction for
non-compliance is dismissal from the program, along with the
imposition of an incarceratory sentence.
A three-year recidivism study of six New York State adult drug
courts by the Center for Court Innovation (CCI) found that drug court
graduates were “far less likely” to recidivate than a comparison group
of defendants who did not participate in drug court.267 The study
further found that drug court involvement led to a lower probability of
recidivism three years after the initial arrest, with an average
recidivism reduction of 29% relative to a comparison group of
offenders who did not participate in drug court. Notably, a sizeable
percentage of felony-level drug treatment courts in the State currently
accept only first-time felony offenders. This reduces the number of
offenders for whom drug court may be an available alternative.268
265

Id. at 39.
Id.
267
Center for Court Innovation, The New York State Adult Drug Court Evaluation:
Policies, Participants and Impacts, at xi (October 2003). Note that of the six adult
drug courts participating in this study, three also handled misdemeanor cases (id., at
15).
268
According to OCA, a total of 48,890 individuals have participated in drug
treatment court programs since the first drug court was implemented in 1995 (id., at
6) and 19,761 have graduated. The remaining 29,129 individuals include both
program failures and those still in treatment. OCA reports that as of October 1, 2008
there were 171 drug treatment courts in the State (in all but five counties) and
another 26 in the planning stages.
266

88

IV.

EXPANDING THE AVAILABILITY OF DRUG
DIVERSION IN NEW YORK: THE CASE FOR
REFORM

While most counties have one or more proven diversion
options available,269 data examined by the Commission suggest that
there are a substantial number of drug-addicted non-violent felony
offenders being sentenced to State prison who could benefit from
diversion options that include treatment without negatively impacting
public safety.
A. Disparate Incarceration Rates for Drug Offenders
Throughout the State
The Commission examined the likelihood of being sentenced
to State prison following a Class B felony drug arrest that resulted in
an indictment or superior court information.270 The focus was limited
to counties with a sufficient number of such cases for comparison
purposes.271 To ensure that only “similarly situated” drug offenders
were being compared, the analysis took into account offenders’
criminal histories, age and gender.272 The likelihood that a prison
sentence would be imposed in a given county was compared to that in
269

Each of the five counties with DTAP programs, and all but one of the 16 counties
with STEPS programs, also have felony and misdemeanor drug courts. The majority
of the remaining 41counties have both felony and misdemeanor drug courts.
270
This analysis examined all Class B felony sale (Penal Law §220.39) and
possession (Penal Law §220.16) top-charge arrest cases disposed during the threeyear period spanning from 2004 to 2006. It was limited to these two arrest charges
because they accounted for more than 70% of the controlled substance arrests that
resulted in prison sentences during the study period. The analysis was not limited to
conviction cases only because a substantial number of arrests resulted in dismissal
where offenders successfully completed treatment programs; the identification of
such cases was not possible.
271
As reflected in Charts 3 and 4, 18 counties were examined in this analysis (see,
Appendix E, infra).
272
The analysis controlled for indictment, conviction and underlying arrest charges
that involved violent felony offenses or weapons charges; the legal seriousness of
pending prior arrest cases; number and type of prior arrests; prior types of sentences;
offender age at the time of case disposition or sentencing and county of disposition.
A white paper describing the research methods used in the analysis was prepared by
DCJS in January 2009.

89

Kings County because Kings has a long-established system of drug
diversion programs – principally, drug courts and DTAP – that serve
both first felony and second felony offenders.
The Commission found that there was substantial variation in
the likelihood of a prison sentence across the counties examined. For
example, Chart 3 shows that for first felony drug possession offenders
in Bronx, Erie, Queens and Westchester Counties, the likelihood of a
State prison sentence was approximately half that in Kings County,
whereas the likelihood was almost five times as great in Albany and
Oneida Counties.273 For second felony drug possession offenders, the
likelihood of a State prison sentence in Bronx County was only onethird that of Kings County, but was approximately twice as great in
Broome, New York and Oneida Counties.
With respect to drug sale arrests, Chart 4 shows that the
likelihood of a State prison sentence for first felony drug sale
offenders in Nassau and Westchester Counties was roughly half that of
Kings County, but twice as great in Onondaga County and more than
seven times as great in Monroe and Schenectady Counties. For second
felony drug sale offenders, the likelihood of a State prison sentence, as
compared to Kings County, was two times as great in Onondaga
County, almost three times as great in Albany and Rensselaer counties,
five times as great in Orange County, and more than seven times as
great in Suffolk County. The Commission was not able to determine
through its analysis whether these dramatic differences in county
prison rates were the result of a reluctance to divert Class B felony
drug arrest cases to treatment programs, a shortage of treatment slots
for such diversions, local plea bargaining practices or other factors.
Nonetheless, the data suggest that for similarly situated indicted felony
drug offenders, the likelihood of being diverted from prison can differ
significantly depending on the county of prosecution.

273

As reflected in Appendix E, it is important to note that, in some counties, the odds
of receiving a prison or one-year felony jail sentence are lower than the odds for a
prison sentence only.

90

Chart 3
Class B Felony Drug Possession (Penal Law §220.16) Arrests Involving Males Age 19 or Older
That Resulted in Felony Indictments or Superior Court Informations, Disposed 2004-2006:
a
Modeled Odds of a Prison Sentence by County
Second-Felony Offenderb
(Any Prior Felony Conviction)

First-Felony Offender
(No Prior Felony Conviction)
Disposition County
(Sorted by Prison Odds)

Odds of Prisonc
Compared to Kings

N of
Cases

Disposition County
(Sorted by Prison Odds)

Ŷ
Ŷ
Ŷ
Ŷ

Queens
Bronx (thru 10/31/04 only)
Westchester
Erie

0.4
0.5
0.5
0.6

417
319 d
230
331

Ŷ
Ŷ
Ŷ
Ŷ
Ŷ

Suffolk
Monroe
Nassau
Kings/Brooklyn
New York/Manhattan

0.7
0.8
0.9
1.0
1.2

242
289
184
401
779

Ŷ
Ŷ
Ŷ
Ŷ

Broome
Onondaga
Albany
Oneida

2.1
2.1
4.7
4.9

102
265
143
136

3.4

932

Ŷ Average Odds for

All Other Countiese
Total

Ŷ Bronx (thru 10/31/04 only)
Ŷ Monroe

Odds of Prisonc
Compared to Kings

N of
Cases

0.3
0.5

303 d
255

Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ

Erie
Kings/Brooklyn
Nassau
Queens
Onondaga
Westchester

0.8
1.0
1.3
1.3
1.4
1.4

233
454
184
288
219
180

Ŷ
Ŷ
Ŷ
Ŷ
Ŷ

Suffolk
Albany
New York/Manhattan
Broome
Oneida

1.6
1.7
1.9
1.9
2.0

221
193
819
113
103

2.0

751

Ŷ Average Odds for

All Other Countiese

4,770

Total

4,316

a

The binary logistic regression model used to estimate the modeled odds controlled for (1) any VFO or weapons charge (arrest,
indictment, or conviction; top or underlying); (2) the most serious pending prior arrest charge (misdemeanor; VFO, felony drug, other
felony); (3) the number of prior VFO, felony drug, and other felony arrests, as well as the number of prior misdemeanor drug arrests,
(4) the most serious prior sentence, including number of prior jail or prison sentences; age at arrest; and county of case disposition.

b

The "second-felony offender" category includes any case involving an offender with a prior felony conviction rather than only those
defined as second-felony offenders in PL §70.06(1).

c

Cases involving direct parole-supervision sentences that required placement in the DOCS Willard facility were counted as non-prison
sentences. Logit odds for combined prison-Willard sentences are presented in Appendix E for second felony offenders, as are the
logit odds for combined prison or one-year felony jail sentences for first-felony offenders.

d

Excludes Bronx indicted/SCI arrest cases for which the court of disposition (criminal versus supreme) could not be determined.

e

An individual county could have a much higher or lower “odds" of prison than the average for "all other counties."

Data Source: The New York State Division of Criminal Justices Services, Computerized Criminal History (CCH) System and the
New York State Department of Correctional Services.

91

Chart 4
Class B Felony Drug Sale (Penal Law §220.39) Arrests Involving Males Age 19 or Older
That Resulted in Felony Indictments or Superior Court Informations, Disposed 2004-2006:
Modeled Oddsa of a Prison Sentence by County
Second-Felony Offenderb
(Any Prior Felony Conviction)

First-Felony Offender
(No Prior Felony Conviction)
Disposition County
(Sorted by Prison Odds)
Ŷ Westchester
Ŷ Nassau

Odds of Prisonc
Compared to Kings

N of
Cases

0.4
0.5

117
323
1,485
589
914
372
108

Ŷ
Ŷ
Ŷ
Ŷ
Ŷ

New York/Manhattan
Queens
Kings/Brooklyn
Suffolk
Richmond

0.9
1.0
1.0
1.0
1.2

Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ

Chautauqua
Broome
Bronx (thru 10/31/04 only)
Onondaga
Rensselaer
Albany
Monroe
Schenectady
Orange

1.5
1.7
1.7
2.0
2.3
3.3
7.1
7.4
14.4

121
94
814 d
94
85
150
126
108
123

3.8

805

Ŷ Average Odds for

All Other Counties
Total

Odds of Prisonc
Compared to Kings

N of
Cases

Ŷ Bronx (thru 10/31/04 only)

0.6

1,036

Ŷ Richmond
Ŷ Kings/Brooklyn
Ŷ Broome

0.9
1.0
1.1

126
1,135
122

1.4
1.5
1.6
2.1
2.4
2.5
2.5
2.8
2.9
4.4
5.1
7.3

569
105
120
92
2,548
392
91
128
226
127
83
420

2.6

572

Disposition County
(Sorted by Prison Odds)

Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ

Queens
Westchester
Chautauqua
Onondaga
New York/Manhattan
Nassau
Monroe
Rensselaer
Albany
Schenectady
Orange
Suffolk

Ŷ Average Odds for
e

6,428

e

All Other Counties
Total

7,892

a

The binary logistic regression model used to estimate the modeled odds controlled for (1) any VFO or weapons charge (arrest,
indictment, or conviction; top or underlying); (2) the most serious pending prior arrest charge (misdemeanor; VFO, felony drug, other
felony); (3) the number of prior VFO, felony drug, and other felony arrests, as well as the number of prior misdemeanor drug arrests,
(4) the most serious prior sentence, including number of prior jail or prison sentences; age at arrest; and county of case disposition.

b

The "second-felony offender" category includes any case involving an offender with a prior felony conviction rather than only those
defined as second-felony offenders in PL §70.06(1).

c

Cases involving direct parole-supervision sentences that required placement in the DOCS Willard facility were counted as non-prison
sentences. Logit odds for combined prison-Willard sentences are presented in Appendix E for second felony offenders, as are the
logit odds for combined prison or one-year felony jail sentences for first-felony offenders.

d

Excludes Bronx indicted/SCI arrest cases for which the court of disposition (criminal versus supreme) could not be determined.

e

An individual county could have a much higher or lower “odds" of prison than the average for "all other counties."

Data Source: The New York State Division of Criminal Justices Services, Computerized Criminal History (CCH) System and the
New York State Department of Correctional Services.

92

d

B. Limited Program Options and Inconsistent Program
Criteria
The Commission recognizes that there are well-documented
disparities in the availability of substance abuse treatment providers,
especially between rural and urban areas of the State, creating a
“patchwork” system for diverting drug-addicted non-violent felony
offenders from prison into treatment. Even in jurisdictions where
community-based treatment programs are available, there still may be
insufficient court or prosecutor-based diversion options for felonylevel drug offenders. For example, while some upstate and suburban
New York City jurisdictions operate substantial second felony
offender diversion programs similar to DTAP, many counties have
only a limited program or no program at all for second felony
offenders. While all but five counties in the State currently have a
felony-level drug treatment court,274 many of these courts target
primarily first-time felony offenders, and some do not accept offenders
charged with drug sale offenses.275
The Commission believes that, as matter of simple fairness,
diversion options should be made available to non-violent felony drug
offenders regardless of the county in which a case is prosecuted. To
further the goal of creating equal access to community-based treatment
for addicted, non-violent offenders throughout the State, a statewide
program for judicial diversion should be codified. The Commission
strongly believes, however, that this requires a delicate balance to
ensure that any such reforms supplement, rather than supplant, the
State’s large network of successful diversion programs. Indeed, it
would be an unfortunate setback if, in an effort to reform the drug
laws, we were to destroy the many successful programs that currently

274

Information provided by the Office of Court Administration (January 2009).
In its 2003 evaluation of 11 New York State drug treatment courts, the Center for
Court Innovation concluded that there is no single drug court model, and that
policies “vary widely” among the courts with regard to such factors as legal
eligibility (e.g., felony vs. misdemeanor charges; drug vs. non-drug charges and
permissible prior criminal history) and level of addiction (e.g., “casual” drug use;
drug abuse or substance “dependence”) (see, Center for Court Innovation, supra,
note 267, at 285).
275

93

divert drug-addicted offenders from prison to community-based
alternatives.
V.

PRINCIPLES OF REFORM

Upon completing a review of the relevant data, hearing from
“focus group” participants, and gaining a comprehensive
understanding of the diversion programs currently operating in the
State, the Commission reached near-unanimous agreement on five key
principles in the area of drug law reform.
First, as noted in the Preliminary Report, “the judicious use of
community-based treatment alternatives to incarceration to address an
underlying drug, alcohol or other substance abuse problem can be an
effective way to end the cycle of addiction and the criminal behavior
that inevitably follows.”276 Stated differently, community-based
substance abuse treatment -- especially when applied in a “legally
coerced” criminal justice setting where the addicted offender faces
swift and certain punishment for failure in treatment -- does work, and
should be a readily available option in every region of the State.277
Second, New York’s existing network of diversion programs is
well-established and effective for thousands of non-violent drugaddicted offenders who have seized the opportunity to turn their lives
around by choosing treatment in lieu of prison. As such, the
Commission strongly urges that any additional diversion programs
adopted in response to recommendations contained in this Report be
carefully structured in such a way as to avoid undermining or
negatively impacting existing programs.

276

Preliminary Report, at 26.
Although the primary focus here is the diversion of felony-level drug offenders, it
is worth noting that a significant number of first-time felony offenders entering State
prison on felony drug convictions have a history of misdemeanor arrests and
convictions. DCJS’ data show, for example, that, on average, first-time felony drug
offenders admitted to State prison in New York in 2006 had 3.7 prior misdemeanor
arrests and 2.2 prior misdemeanor convictions leading up to their felony drug arrest.
This data suggest a need to more closely examine the State’s existing resources for
screening and treating drug-addicted misdemeanor offenders.
277

94

Third, despite the availability of drug treatment courts and
other diversion programs, there is evidence that a sizeable number of
potentially eligible non-violent drug-addicted felony offenders may be
“slipping through the cracks” of the existing diversion network, ending
up in prison instead of community-based treatment. Nearly all
Commission members agree that by creating uniform standards for
determining which offenders are drug addicted and would benefit from
treatment and giving courts additional authority to divert such
offenders into treatment, fewer offenders who are otherwise suitable
for diversion will be overlooked or denied the opportunity for
treatment.
Fourth, the Commission recognizes that no drug diversion
program exists in a vacuum. Unless the necessary treatment beds and
other community-based resources are in place and adequately funded,
no diversion model, no matter how well-designed or operated, can
succeed or reach its full potential. As such, the Commission reiterates
its earlier call for “a comprehensive plan to provide statewide access to
treatment programs and eliminate identified gaps in treatment
services.”278
Finally, the Commission believes that New York must continue
to reserve costly prison resources for high-risk violent offenders while
making greater use of community-based alternatives to incarceration
for non-violent felony drug offenders. Over the last decade, New
York has begun to make substantial progress in that direction. Recent
DOCS’ “under custody” inmate population statistics show that, with
the exception of a 0.9% increase from 2005 to 2006, the total DOCS’
inmate population has declined steadily each year since 1999, falling
from a record high of 71,538 inmates to 60,081 inmates at the end of
2008. Less than 20% of the DOCS’ inmate population are drug
offenders, the lowest proportion in over two decades. Significantly,
between 1992 and 2008, the annual number of new drug commitments
to DOCS declined by 54%.279
278

Preliminary Report, at 27.
This decline is due, in part, to the substantial decrease in felony drug arrests
during this period. Annual commitments to DOCS for drug offenses have decreased
overall, but did increase slightly from 2004 to 2007 due to an increase in drug
279

95

As previously noted, while many states continue to face
exploding prison populations and increases in crime, New York has
become the safest large state in the nation and the fourth safest state
overall.280 New York enjoys the distinction of having significantly
reduced its prison population and the percentage of non-violent drug
offenders in DOCS’ custody while simultaneously improving the
public safety of its citizens. Against this backdrop, the Commission
believes that, while it is important to continue to reform New York’s
drug laws, such reforms should be carefully tailored so that the State’s
significant public safety gains are not lost.
VI.

PROPOSALS FOR DRUG LAW REFORM

The Commission identified and scrutinized new and existing
proposals for reform, but was unable to reach unanimous agreement on
any one proposal. The primary hurdle was that no one proposal
captured all of the benefits associated with diversion without also
commitments from counties outside New York City. In 2004, there were 5,657 new
drug commitments, which rose to 5,835 new commitments in 2005, an increase of
178 inmates. In 2006, there were 6,039 new drug commitments, an increase of 204
inmates. In 2007, there were 6,148 drug commitments, an increase of 109 inmates.
In 2008, however, new drug commitments to DOCS reached a 21-year low with
5,191 commitments. From 2004 to 2008, the total number of drug offenders in
custody declined each year from 15,486 in 2004, to 14,249 in 2005, to 13,928 in
2006, to 13,427 in 2007, to 11,936 in 2008, a decrease of 3,550 inmates over the
four-year period. DOCS reports that this is a result of shorter sentences imposed on
drug offenders and the increased opportunities for early release.
280
Over the past decade, the crime rate in New York has declined steadily. The rate
of FBI-categorized “index” crimes (e.g., murder, forcible rape, robbery, aggravated
assault, larceny, burglary and motor vehicle theft) per 100,000 residents in New
York has declined 33% since 1998. More specifically, the rate of violent crimes
(murder, rape, robbery and aggravated assault) fell 35%, and property crimes
(burglary, larceny and motor vehicle theft) were down 33%. New York also has
recorded a significant reduction in the actual number of crimes reported. Since
1998, the number of major crimes reported has fallen every year to the lowest levels
recorded since statewide reporting began nearly 40 years ago. In 2007, there were
188,870 fewer crimes reported than in 1998, while the population of the State has
increased by over one million since 1998. It must be noted, however, that while 63%
of the State’s violent crimes occurred in New York City in 2007 (down from 74% in
1998), that region reported a 41% drop in violent crimes since 1998, while the nonNew York City counties reported a decline of just 2% (DCJS, Crime in New York
State, 2007 Final Data, September 15, 2008).

96

presenting elements that could jeopardize public safety or prove too
costly or unworkable. While this lack of consensus was initially
cause for concern, the Commission ultimately concluded that offering
several well-reasoned proposals for reform, along with a discussion of
the virtues and vulnerabilities of each, could prove to be the most
beneficial to those who will finally decide the scope and direction of
further drug law reform in New York. This alternative to simply
recommending a single proposal will allow criminal justice
policymakers to evaluate the advantages and disadvantages of the
various proposals before making a decision on future drug reform
legislation.
While the Commission did not reach unanimous agreement,
most Commission members agreed that the “Judicial Diversion” model
outlined below strikes the most promising balance between the need to
enhance the ability to divert drug-addicted non-violent felony
offenders into community-based treatment and the overarching need to
ensure public safety. The Commission offers four additional proposals
that it believes should rightfully be part of the drug law reform
discussion.
A.

“Judicial Diversion” of Non-Violent Felony Offenders
in Need of Treatment

Drug court judges and DTAP prosecutors emphasized to the
Commission that many of their most successful diversion cases
involve offenders with multiple prior felony convictions who, tired of
years of a dysfunctional lifestyle on the streets and repeated stays in
jail or prison, successfully complete the long and arduous process of
recovery. A majority of members recognize the importance of
including second felony offenders in any expanded statewide drug
diversion program. As such, the “Judicial Diversion” proposal
provides the possibility of diversion for both first-time non-violent
Class B felony drug offenders and non-violent second felony
offenders. The following are the principal components of the model:

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1.

First-Time Felony Offenders

Under the “Judicial Diversion” model, drug-addicted nonviolent first-time felony offenders indicted for a Class B felony drug
sale281 or possession282 offense would be eligible to be placed on
“interim probation supervision”283 following a plea of guilty to the
drug charge. The defendant’s successful completion of a long-term
substance abuse treatment program would be made a condition of
interim probation. Upon successful completion of treatment, the
felony conviction would be sealed or the offender would be permitted
to withdraw the felony guilty plea and either plead guilty to a lesser
charge or have the charges dismissed outright.284 This would represent
a significant change to current law, which generally requires any
defendant so convicted to receive a determinate State prison sentence
of one to nine years.285
a.

Eligibility

In order to be eligible for diversion under the Judicial
Diversion model, a first-time felony drug offender must be indicted for
a Class B felony drug sale or possession offense,286 and must not have
281

Penal Law §220.39.
Penal Law §220.16.
283
See, CPL 390.30(6) (providing, in relevant part, “In any case where the court
determines that a defendant is eligible for a sentence of probation, the court, after
consultation with the prosecutor and upon the consent of the defendant, may adjourn
the sentencing to a specified date and order that the defendant be placed on interim
probation supervision. In no event may the sentencing be adjourned for a period
exceeding one year from the date the conviction is entered. When ordering that the
defendant be placed on interim probation supervision, the court shall impose all of
the conditions relating to supervision specified in subdivision three of section 65.10
of the penal law and may impose any or all of the conditions relating to conduct and
rehabilitation specified in subdivisions two, four and five of section 65.10 of such
law * * * * The defendant’s record of compliance with such conditions * * * shall be
included in the presentence report * * * and the court must consider such record and
information when pronouncing sentence” [id.]).
284
In both instances, the record would be sealed.
285
See, Penal Law §70.70(2)(a)(i).
286
Under existing CPL plea restrictions, a defendant wishing to dispose of an
indictment by guilty plea must, absent prosecutorial consent, plead guilty to every
charge in the indictment (see, CPL 220.10[4]; see also, Penal Law §65.00[1]
282

98

been adjudicated a youthful offender (YO) in the preceding 10-year
period287 for: (1) a felony sex offense enumerated in Correction Law
§168-a;288 (2) a felony homicide offense defined in Penal Law Article
125; or (3) a “violent felony offense” as defined in Penal Law
§70.02(1). These exclusion criteria reflect the majority view of the
Commission that felony offenders with a history of violence pose too
great a risk based on their prior criminal conduct to be diverted to
community-based treatment in a non-secure setting. Some
Commission members were strongly opposed to using prior YO
adjudications as exclusion criteria. They argued that it is inappropriate
and unfair to allow a prior sealed YO adjudication, which by law does
not constitute a “conviction,”289 to have a preclusive effect in
determining eligibility for diversion to treatment.
b.

Mandatory Assessment of Treatment Need

Upon application of an eligible offender, the court would be
required to order a dependency assessment to be conducted by an
OASAS-certified agency or treatment provider or by another courtapproved entity or professional with expertise in the area of substance
abuse assessment and treatment. In order to be eligible for diversion,
the assessment must show that the offender is in need of, and would
benefit from, treatment for substance dependency. A judge would be
precluded from diverting any offender who is determined not to be in
need of such treatment.

[providing that, except in cases involving imposition of a “split” sentence, a court
shall not “impose a sentence of probation in any case where it sentences a defendant
for more than one crime and imposes a sentence of imprisonment for any one of the
crimes”]). As such, a defendant who also is indicted for a crime that requires a
sentence to State prison upon conviction would, as a practical matter, be precluded
from Judicial Diversion.
287
As with the 10-year “look-back” currently used to determine an offender’s status
as a “second felony offender” or “second felony drug offender” under Penal Law
§§70.06 and 70.70, respectively, the 10-year YO “look-back” would exclude any
time the offender spent in jail or prison.
288
Correction Law §168-a contains a list of the offenses requiring registration as a
“sex offender” pursuant to Correction Law Article 6-C.
289
See, CPL 720.20.

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c.

Required Court Findings

Following a determination that the offender is in need of
treatment, the court would be required to make additional findings
relating to the defendant’s suitability for diversion and the possible
impact a diversion disposition would have on public safety. These
findings would be similar to those required under current law for a
sentence of probation or a Willard “parole supervision” sentence.290
Prior to making such findings on the record, both sides would have an
opportunity to be heard and make a motion to adjourn the matter for a
specified period, not to exceed 21 days, in order to present evidence in
support of, or in opposition to, a drug diversion disposition.291
d.

Interim Probation Supervision

Upon making the required findings, the court would be
authorized, upon the defendant’s entry of a plea of guilty,292 to issue an
order placing the defendant on “interim probation supervision”
pursuant to CPL 390.30(6). Under the proposal, that section would be
amended to require that the conditions of interim probation
supervision in Judicial Diversion cases include the defendant’s
completion of a 12 to 24-month program of residential or outpatient
290

Under the proposal, the judge, having regard to the nature and circumstances of
the crime and to the history, character and condition of the defendant, would be
required to find that: (1) institutional confinement is not necessary for the protection
of the public; (2) the defendant has a history of substance dependency that is a
significant contributing factor to his/her criminal conduct; (3) the defendant is in
need of long-term residential or outpatient treatment for substance dependency that
can be effectively administered through interim probation supervision; and (4)
placing the defendant on interim probation would not have an adverse effect on
public confidence in the integrity of the criminal justice system (see, Penal Law
§65.00[1]; CPL 410.91[3]).
291
This adjournment provision is modeled after a similar “mandatory stay” provision
in the Court Approved Drug Abuse Treatment (“CADAT”) diversion proposal.
Under the CADAT proposal, the court is generally prohibited from issuing a
diversion order for a minimum period of 21 days from arraignment. This is intended
to give the prosecutor an opportunity to investigate the circumstances of the alleged
crime and the defendant’s background to determine if he or she is an appropriate
candidate for diversion (see, the CADAT model, infra, at 120-126).
292
This presumably would include a plea not only to the Class B felony drug sale or
possession charge, but also to any other probation-eligible charges in the indictment.

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substance abuse treatment at an OASAS-certified program as specified
by the court.293 During this period of interim probation, the defendant
would be under the direct supervision of the local probation
department and, during any period of outpatient treatment, would be
required to make regular appearances before the court in order to allow
the judge to monitor his or her progress in treatment, as is currently the
procedure in the State’s drug courts. Requiring offenders in treatment
to regularly come before the judge reinforces the need to comply with
treatment and allows the judge to quickly respond to errant behavior,
while providing rewards for reaching milestones in the program.
e.

Disposition Options: Successful Completion vs.
Failure in Treatment
i. Successful Completion

In first-time felony cases where the defendant is successful in
treatment and satisfies all other conditions of interim probation, the
court would permit the offender to withdraw his or her felony guilty
plea and either: (1) accept a plea of guilty to a misdemeanor or
violation and sentence the offender to a non-jail sentence such as a
conditional or unconditional discharge; or (2) dismiss the case and seal
the record. This disposition is similar to one currently used in drug
courts, DTAP and STEPS programs around the State. In the
alternative, the Legislature may consider creating an entirely new
disposition option that would permit the court, following the
offender’s successful completion of treatment and interim probation,
to sentence the offender on the felony drug conviction to an
abbreviated period of probation supervision (e.g., from one to three
years), a conditional or unconditional discharge294 or “time-served,”295
293

CPL 390.30(6) also would be amended to extend the permissible maximum
period of interim probation supervision in these drug diversion cases from the
current one-year maximum to two years, and to eliminate the implicit requirement
that offenders placed on interim probation be sentenced at the expiration of the
interim supervision period.
294
See generally, Penal Law §§65.05; 65.20.
295
In this context, “time-served” refers to the total period of time a defendant may
have served in local jail prior to entering a plea of guilty and during the period of
interim probation supervision and treatment.

101

and permit the record of the case to be sealed upon successful
completion of the sentence.296 Another option would be to make the
sealing conditional, so that if the defendant is re-arrested for a new
offense in the future, the record of the drug diversion case would be
unsealed pending final disposition of the new criminal case.297
ii. Failure in Treatment
If the defendant fails to complete treatment or violates a
condition of interim probation, the court would be authorized to
impose the agreed-upon sentence of imprisonment on the offender’s
Class B felony drug conviction. Under current law, the authorized
State prison sentence for a first-time felony offender convicted of a
Class B (non-schoolyard) drug sale or possession offense is a
determinate sentence of one to nine years.
Those Commission members who favor the “Judicial
Diversion” proposal agree that in order to provide sufficient impetus
for drug-addicted offenders to remain in and successfully complete
long-term treatment, there should be no alternative (e.g., local jail)
sentence for offenders who ultimately fail in treatment or violate
another condition of interim probation. The Commissioners
recommend, however, that the existing law governing interim
probation supervision be modified to allow judges, during the period
of supervision, to use relatively short periods of local jail as one of a

296

If, upon the defendant’s successful completion of interim probation, the court
imposes a sentence, such as a conditional discharge or an abbreviated probation
term, which requires the defendant’s continued compliance with conditions fixed by
the court, a violation of those conditions could result in the defendant’s being
resentenced to a term of imprisonment in accordance with the terms of the original
plea agreement.
297
The concept of sealing the record of a standing felony conviction and allowing for
a “springback” of that sealed conviction under certain circumstances does not
currently exist under New York law (but see, CPL 720.35[1], [4]). Under this
“springback” alternative, the record of the drug case, once unsealed, would remain
open and would be automatically resealed only where the new arrest case results in a
disposition subject to sealing under existing law. If the new arrest results in a felony
conviction, the previously sealed felony conviction could operate as a “predicate”
felony for sentencing purposes pursuant to Penal Law §70.06.

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series of “graduated sanctions” designed to address relapses or other
negative conduct.
2.

Second Felony Offenders

Under the “Judicial Diversion” proposal, certain drug-addicted,
non-violent second felony offenders also would be eligible for
diversion. 298 In the case of second felony offenders, the offender
would be required to serve a term of intensive residential substance
abuse treatment, under the supervision of the local probation
department or the New York State Division of Parole (“Parole”), for a
minimum of six months. By successfully completing treatment and
complying with any other conditions imposed by the court, the
offender could avoid a sentence to State prison. As with first felony
offenders, this would constitute a significant reform of current law,
which requires second felony offenders to receive a sentence to State
prison.299
a.

Eligibility

Under the Judicial Diversion proposal, second felony offenders
indicted for a Class B, C, D or E felony drug300 or marihuana301
offense, or a Class D or Class E felony “Willard eligible”302 offense,
are eligible for diversion.303 An offender whose status as a second
298

For purposes of this discussion, the term “second felony offender” includes
second felony drug offenders as defined in Penal Law §70.70(1)(b).
299
See generally, Penal Law §§60.04(5); 60.05(6).
300
Penal Law Article 220.
301
Penal Law Article 221.
302
The list of Class D and Class E drug and non-violent felony “specified offenses,”
a conviction of which can result in a so-called “Willard” parole supervision sentence,
is set forth in CPL 410.91(5). In addition to low-level drug offenses, the list includes
primarily non-violent property and larceny-based crimes such as grand larceny,
criminal possession of stolen property, criminal mischief and forgery.
303
A defendant charged in the same or another pending indictment with any other
felony offense would, unless the charge is reduced to a misdemeanor, dismissed, or
otherwise disposed of under an existing provision of the Criminal Procedure Law, be
ineligible for diversion. Under existing CPL plea and sentencing restrictions, a
defendant seeking to dispose of a multi-count indictment by guilty plea must, unless
the prosecutor consents, plead guilty to every charge in the indictment. A second

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felony offender is the result of a predicate felony conviction for a
violent felony offense, or for any offense other than one of the
enumerated diversion-eligible crimes, would, by virtue of such prior
conviction, be rendered ineligible for diversion under the proposal. As
with first-time felony offenders, an otherwise eligible second felony
offender who had been adjudicated a youthful offender in the
preceding 10 years for a felony sex offense enumerated in Correction
Law §168-a, a felony homicide offense or a “violent felony offense” as
defined in Penal Law §70.02(1) would thereby be rendered ineligible
for diversion.304
Like the eligibility criteria and exclusions for first-time felony
offenders, the above criteria and criminal history-based exclusions
reflect the view of the majority of Commission members that violent
felony offenders are not appropriate candidates for diversion to nonsecure community-based treatment programs, and their inclusion
would jeopardize public safety.
b.

Mandatory Assessment of Treatment Need

As with first-time felony offenders, upon application of an
eligible second felony offender, the court would be required to order a
dependency assessment by an OASAS-certified agency or treatment
provider or by another court-approved entity or professional with
expertise in the area of substance abuse assessment and treatment. For
the offender to be eligible for diversion, the assessment must show that
he or she is in need of, and would benefit from, treatment for
substance dependency.

felony offender facing an indictment containing any diversion ineligible felony
offenses would be required to be sentenced to State prison if convicted, by guilty
plea or otherwise, of those crimes.
304
This 10-year YO “look-back” period would exclude any time the offender spent
in jail or prison. As with the YO exclusion for first-time felony offenders, some
Commission members were strongly opposed to using prior YO adjudications as
exclusion criteria, even for second felony offenders.

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c.

Required Court Findings

The court would be required to make certain additional
findings regarding the offender’s overall suitability for diversion and
the possible impact diversion would have on public safety. With one
important exception, the procedures and required findings for second
felony offenders would generally mirror those for first felony
diversions.305 The exception would require the court -- based on its
own analysis of the facts and circumstances of the case, the offender’s
criminal and substance abuse history and the results of the assessment
of treatment need -- to find that the offender “is in need of and would
benefit from residential treatment including a minimum six-month
period in an intensive residential treatment facility.” Similar to
Brooklyn’s DTAP model, the focus here is on non-violent repeat
felony offenders whose substance dependence has reached the point
where it is, in effect, driving their criminal behavior and for whom
intensive residential drug treatment is the only viable solution.
d.

Sentence

Where a second felony offender satisfies the above criteria and
has entered a plea of guilty to a diversion-eligible offense, he or she
would be sentenced in accordance with the plea agreement to one of
the following:
i. Five-Year Probation Term
Under this sentencing option, the court would impose a fiveyear probation sentence together with a mandatory condition that the
offender successfully complete 12 to 24 months of substance abuse
treatment which would include a minimum of six months in an
OASAS-certified intensive residential treatment facility, followed by
additional community-based drug treatment, education, counseling,
305

For second felony offenders, for example, the court would be required to find,
among other things, that imposing a five-year probation sentence (or imposing
interim parole supervision followed by a parole supervision sentence) would not
have an adverse effect on public confidence in the integrity of the criminal justice
system.

105

vocational training or employment as directed by the court. Upon
completion of residential treatment, the offender would be required to
report regularly to the court to allow the judge to monitor progress in
treatment. Upon successful completion of treatment, the record of the
case would be sealed. As with successful first felony diversions, the
Legislature might consider making the sealing conditional. If the
defendant fails in treatment or violates another condition of probation,
the court, following a violation of probation hearing,306 would impose
the sentence of imprisonment agreed to at the time of the plea. For
relapses during treatment and other less serious violations of the terms
of the sentence, the court would be authorized to impose a series of
“graduated sanctions” that could include short periods of incarceration
in local jail.
ii. Interim Parole Supervision
In order to avoid placing the responsibility of supervision on
already strained local probation departments, another possible
sentencing option would require the creation of a new parole-based
version of interim probation supervision that would permit the court to
defer sentencing and place the second felony offender on “interim
parole supervision” for a period of up to two years, while the offender
completes the 12 to 24-month treatment phase of the program. As
with the five-year probation sentence, an offender placed on interim
parole supervision would be required to spend a minimum of six
months in intensive residential treatment. One advantage of this
option is that the court could direct that the offender complete an
initial stay of up to 90 days at the Willard Drug Treatment campus
prior to commencing residential treatment in cases where there is no
residential treatment bed available at the time of case disposition.
Following residential treatment, the offender would be required to
report regularly to the court to allow the judge to monitor his or her
progress in outpatient treatment.
Upon failure to complete treatment or violating any other
significant condition of interim parole supervision, the offender would
face a determinate sentence of imprisonment imposed by the court.
306

See, CPL 410.70.

106

For relapses in treatment or other less serious violations, the court
would be authorized to use graduated sanctions, including short
periods of local jail time, to address the violation.
If the defendant successfully completes both residential and
outpatient treatment and complies with the conditions of supervision,
the court would terminate “interim supervision” and relinquish
jurisdiction of the case to Parole by imposing a “regular” parole
supervision sentence in accordance with the plea agreement.307 Any
future violations of supervision would then be addressed by Parole in
accordance with existing law.308 Upon successful completion of the
parole supervision sentence, the record of the case would be subject to
the same sealing requirement described above.
e.

Deferring Enactment of Judicial Diversion for
Second Felony Offenders

Some Commission members who generally were supportive of
the Judicial Diversion proposal expressed concern that the State’s
existing network of intensive residential treatment and community
residence beds is already strained and simply cannot accommodate the
additional volume of offenders that would likely be diverted under that
model.309 This situation, they argued, will most certainly be
exacerbated by the State’s economic crisis, which is likely to have an
immediate and lasting impact on funding for probation departments
and treatment programs. They stressed that creating a mechanism for
Judicial Diversion, especially for second felony offenders, without first
ensuring that adequate treatment and supervision resources exist could
pose a threat to public safety.
These thoughts were echoed by Kings County District Attorney
Charles J. Hynes, the creator of the original DTAP diversion model.
In a 2007 letter to the Commission, District Attorney Hynes cautioned
that “unless high-quality treatment providers are adequately funded so
that they can be easily and quickly accessed by offenders in both rural
307

See generally, CPL 410.91.
See, CPL 410.91(8).
309
See, infra, at 109-113.
308

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and urban jurisdictions, diversion will either not occur or, if it does
occur, will not be effective in reducing substance abuse and criminal
recidivism.”310
In view of these concerns, several Commissioners
recommended that only the first felony provisions of the model be
adopted, and that enactment of Judicial Diversion for second felony
offenders be deferred until more intensive residential treatment beds,
halfway houses and other necessary treatment and supervision
resources are in place throughout the State. It was noted that deferring
the second felony offender proposal would provide an opportunity to
monitor the effectiveness of the first felony diversion model, as well as
its impact on public safety and community-based and corrections
resources.
3.

Projected Impact of the Judicial Diversion Model
a.

Application of the Model to a 2006 DOCS
Admission Pool

To estimate the number of additional offenders who might be
diverted from prison to community-based treatment each year under
the Judicial Diversion proposal, the Commission applied the eligibility
criteria in the proposal to offenders newly admitted to DOCS for
diversion-eligible crimes in 2006.311 The Commission’s analysis
identified a pool of approximately 1,200 non-violent first-time felony
drug offenders and approximately 1,800 non-violent second felony
offenders admitted to DOCS in 2006 who might have been eligible for
diversion to community-based treatment under criteria set forth in the
proposal. Notably, the 2,778 felony drug offenders in this pool of
3,000 potentially eligible offenders represent nearly half (46%) of all
felony drug admissions to DOCS in 2006.312 Moreover, as previously
310

Letter from Kings County District Attorney Charles J. Hynes to DCJS
Commissioner Denise E. O’Donnell (October 11, 2007), at 1.
311
See, Appendix G.
312
This figure is based on DCJS’ 2006 Crimestat Report which shows a total of
6,064 new admissions for felony drug offenses that year. Note that some of the
3,000 potentially eligible offenders in the 2006 pool were admitted for non-drug
“specified” Willard-eligible offenses.

108

noted, 89% of the 3,000 potentially eligible offenders were African
American or Hispanic. In view of state and national data indicating
that a significant percentage of state prison inmates serving sentences
for felony drug and property crimes have a substance abuse
problem,313 the Commission believes that the majority of the 3,000
“legally eligible” offenders in the 2006 DOCS’ admission pool likely
would have met the additional “addiction” criteria required for
diversion under the proposal.314
b.

Need for Additional Drug Treatment Resources

The Commission recognizes that overcoming drug addiction is
extremely difficult, and typically requires multiple attempts to
succeed. As previously noted, data provided by DCJS indicate that, on
average, first-time felony drug offenders admitted to State prison in
New York in 2006 had 3.7 prior misdemeanor arrests and 2.2 prior
misdemeanor convictions leading up to their felony drug arrest.315
Despite frequent involvement with the criminal justice system,
repeated contacts with the courts, probation and treatment providers
have proved to be ineffective for these offenders, who continue to use
drugs and often commit crimes to support their addiction. Thus, a
principal focus of the Commission has been how to end the cycle of
addiction for these long-term drug-addicted offenders.
313

See, Mumola, Christopher J. and Karberg, Jennifer C. Drug Use and
Dependence, State and Federal Prisoners, 2004, U.S. Department of Justice, Office
of Justice Programs, Bureau of Justice Statistics Special Report, Revised 1/19/07;
Belenko, Steven and Jordon Peugh. Estimating Drug Treatment Needs Among State
Prison Inmates, Journal of Drug and Alcohol Dependence (2005), vol. 7, at 269-281.
314
DOCS publishes an annual report on substance abuse among those under custody,
which provides statistics on drug and alcohol use derived from inmate interviews and
formal assessments involving standardized screening instruments. DOCS estimates
that approximately 94% of the inmates admitted on felony drug convictions in 2006
were administratively classified as having substance abuse needs. According to the
most recent DOCS’ report, at the end of 2007 approximately 86% of those inmates
for whom data were available had used or abused drugs or abused alcohol and the
rate exceeded 95% for those committed for drug charges (see, Humphrey, Elaine.
Identified Substance Abuse 2007, State of New York Department of Correctional
Services, Executive Summary, at i). Only one-sixth of the 51,748 inmates identified
as substance abusers in 2007 were classified in the “alcohol abuse only” category
(id., at 4).
315
See, supra, note 277.

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As described above, the extensive experience of the State’s
drug courts and DTAP programs provides a rich source of information
about what works for seriously drug-addicted offenders. It is clear
from the data that the quality and length of the treatment component is
critical to the success of these programs. The course of treatment also
varies depending on the offender’s history of addiction and the
frequency and severity of the offender’s criminal conduct. The vast
majority of misdemeanor and first-time felony drug offenders are
treated in non-residential settings, which is the least costly and
restrictive mode of treatment. For those who fail in treatment and for
second felony offenders who typically have longer histories of drug
addiction and drug-related offenses, successful recovery more often
depends on removing the offender from the community and addressing
his or her underlying addiction in an intensive residential treatment
setting. The success of these intensive programs lies in the ability to
assist offenders in focusing on the underlying causes of their addiction,
in severing negative community influences and contacts, and in
teaching offenders new skills to enable them to succeed when they
return to the community. While these treatment modalities work, they
do not come without a cost. OASAS estimates that the “per-person”
cost of treatment is approximately $26,300 per year for intensive
residential programs, $30,700 per year for community residential
programs and $13,900 per year for outpatient treatment.316
Although New York State now has one of the largest networks
of drug treatment programs in the country, it is clear that adoption of
the Judicial Diversion proposal, with its requirement of a minimum
six-month stay in intensive residential treatment and follow-up care for
second felony offenders, would create a need for a substantial number
of additional intensive residential and community residence beds. As
noted, it is estimated that as many as 1,800 second felony offenders
might be diverted annually under the proposal, and all diverted second
316

Data provided by OASAS (January 2009). The Commission recognizes that, in
the long run, the State could achieve significant savings by diverting more nonviolent drug-addicted offenders from prison to community-based treatment, provided
a substantial number of offenders are diverted each year, the prison system is
downsized accordingly, and a significant number of those offenders who are diverted
are not ultimately returned to prison. These savings, however, would not be realized
immediately.

110

felons would be required to serve a minimum of six months in
intensive residential treatment. Many of these offenders would require
follow-up care in a community residence (“halfway house”)consistent
with the continuity of care model practiced in STEPS/Road to
Recovery, thereby creating increased demand for additional
community residence beds.
Moreover, a portion of the State’s existing intensive residential
treatment capacity likely will be absorbed by some of the estimated
1,200 first-time felony offenders who might be diverted annually
under the Judicial Diversion proposal. Although intensive residential
treatment is not required for these offenders under the model, the
Commission anticipates that, based on treatment-related data from
drug courts,317 New York City-based diversion programs318 and the
STEPS program,319 a certain percentage of first-time felony offenders
would likely be placed in that higher level of care (and/or in
community residence beds) for at least a portion of the court-mandated
treatment period.
317

See, Center for Court Innovation, supra, note 267, at 39, 54. According to the
CCI report, the percentage of placements into residential treatment programs ranged
from 12% to 53% across the four New York City-based felony drug courts studied.
In the three upstate drug courts examined (Buffalo, Rochester and, Syracuse), where
20% to 24% of participants were facing felony charges, only 3% to 6% of all drug
court participants began in residential treatment. The Suffolk County Drug
Treatment Court had a somewhat higher proportion of felony cases (34%), but only
18% of all participants entered residential care. It was noted in the report that,
among the 11 total misdemeanor and felony drug courts examined across the State,
“over half of participants begin in an outpatient modality, in all but two courts. When
clinically feasible, most [drug] courts prefer to begin participants in outpatient
treatment and then upgrade to inpatient in response to relapses or other compliance
problems. Characteristics generally indicating a higher probability of inpatient care
are primary drug of choice (heroin), living situation (homeless), employment status
(unemployed) and age (younger defendants)” (id., at xiv [emphasis in original]).
318
E.A.C., Inc., Criminal Justice Division New York City TASC: An Examination of
Treatment Placements, January 1, 2007 – December 31, 2007 (April 2008), at 1, 4.
In 2007, New York City TASC, which works closely with prosecutors in the four
boroughs outside of Manhattan, facilitated 1,599 first-time felony and second felony
offender treatment placements. Eighty percent of the second felons and 47% of the
first-time felony offenders were initially placed in residential programs.
319
Although DCJS’ STEPS program primarily diverts second felony offenders, all
first-time and second felony offenders participating in STEPS begin in intensive
residential treatment.

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OASAS reports that as of September 2008, intensive
residential bed capacity was 8,034 and community residential
(“halfway house”) capacity was 1,992.320 Intensive residential
programs were operating at an average capacity of 88% and
community residential programs were at 90% of capacity from July
2007 through June 2008.321 The data suggest there is only limited
room within the existing OASAS system to serve additional Judicial
Diversion clients, and that enactment of the proposal could, absent an
infusion of more residential treatment beds for these offenders, pose a
significant strain on existing residential treatment resources.322
4.

Critique of the Judicial Diversion Model
a.

Need for Additional Prosecutorial and CourtBased Diversion Resources

The Commission recommends that any Judicial Diversion
program replicate, to the extent feasible, practices and policies that
have proven successful in DTAP programs and felony drug treatment
courts. DTAP employs an intensive screening process to identify
offenders who are motivated to participate in diversion. The Brooklyn
DTAP program uses a Warrant Enforcement Team that conducts field
investigations of DTAP candidates and is responsible for returning
absconding offenders back to court.323 Moreover, DTAP, through its
affiliation with TASC, offers its participants a broad array of
educational, vocational, mental health, employment and related
resources to ensure that those who are able to succeed in treatment
have the follow-up support they need to remain drug free.

320

Data provided by OASAS (December 2008).
Id.
322
A detailed analysis comparing potential diversions and available treatment
resources by geographic region would likely be required for a more complete
assessment of the Judicial Diversion proposal’s projected impact on treatment
resources.
323
Young, Douglas and Belenko, Steven, Program Retention and Perceived
Coercion in Three Models of Mandatory Drug Treatment, 32 J. Drug Issues 297, 321
(2002).
321

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Many of the State’s adult drug treatment courts share these
same attributes and boast additional features such as specially trained
judges, professional case managers and resource coordinators and, in
most courts, on-site drug testing. Under the Judicial Diversion model,
which requires courts to screen and select appropriate candidates for
diversion, monitor their progress in treatment and provide case
management and other services similar to those provided by drug
courts, additional judicial resources would be required to
accommodate new diversion cases.
The proposal would use the community supervision resources
of probation and parole to supplement the resources available through
the courts. By utilizing the existing probation and parole
infrastructures, the Judicial Diversion model helps to ensure that
offenders who abscond or otherwise violate the terms and conditions
of treatment can be promptly returned to court. The Commission also
recommends that if Judicial Diversion is adopted, the Office of Court
Administration (“OCA”) consider administering the model within its
broad network of felony drug treatment courts, and that drug court
resources continue to be expanded so that drug-addicted felony
offenders -- particularly repeat offenders -- will have ready access to
the critical resources that are the hallmark of these specialized courts.
The Commission also recognizes that DTAP and other
successful drug diversion programs work, in part, because significant
resources are available for investigators, attorneys and support staff
necessary to properly screen, evaluate and monitor cases to ensure that
treatment alternatives are offered to as many offenders as possible
without jeopardizing public safety. Currently, there appears to be a
wide disparity in the resources available for drug treatment diversion
programs. Under the Judicial Diversion model, additional resources
would have to be made available to ensure that all parties have the
necessary tools to allow for meaningful participation and to minimize
public safety risks.

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b.

Need for Additional Probation Resources

Commission members expressed additional concern that by
requiring probation officers to supervise first and second-time felony
offenders diverted from prison to community-based treatment, the
Judicial Diversion model will place additional burdens on local
probation departments already stretched thin due to high caseloads and
shrinking resources. A 2007 Report of the Chief Judge’s Task Force
on the Future of Probation in New York State highlighted the perilous
state of probation funding:
[f]ew, if any, New York probation departments are
funded adequately in terms of having reasonable
caseload sizes for either adult or juvenile probationers.
Many lack the necessary resources to pay for the
essential community based services needed to prevent
recidivism such as drug treatment, job and vocational
training and placement, and mental health services.
Again and again, the Task Force heard from probation
directors and other experts that almost all probation
departments constantly struggle to control caseload size
and triage necessary services with little or no budget
growth. Average caseloads for probation officers are
frequently well over a hundred to one, far above any
acceptable national standard. While this state of affairs
is a national phenomenon, it is especially pronounced in
New York State, where over the last two decades the
State has systematically disinvested in probation.324
Many of the second felony offenders diverted to treatment
under the proposal likely would require intensive probation
supervision, thereby further straining limited probation resources. To
address these concerns and ensure the success of Judicial Diversion, it
was proposed that in implementing the model, additional State funding

324

See, 2007 Report of the Task Force on the Future of Probation in New York State
(Phase I), at 11.

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be made available to local probation departments to allow them to
address these increased resource needs.325
c.

Impact on Existing Programs

At focus group sessions, public hearings and Commission
meetings, prosecutors and judges repeatedly voiced concern that
enacting a uniform statewide Judicial Diversion model could lead to a
form of “program shopping” by defense attorneys in search of the
“best deal” for drug-addicted clients which, they claimed, could
eventually threaten the very existence of proven diversion programs
like DTAP and drug courts. They cautioned that defendants would be
inclined to select diversion programs with the shortest required period
of residential treatment and post-treatment supervision, and may turn
down offers from prosecutors in DTAP or drug court in the hope of
securing a less onerous diversion option from the court.
Several prosecutors also argued that this “program shopping”
problem is made even worse by the fact that the Judicial Diversion
model sets no limit on the number of times an offender can be diverted
from prison into treatment. Thus, it was noted, both offenders who
successfully complete Judicial Diversion and those who fail and are
sentenced to prison can return to court on subsequent arrests for
diversion-eligible crimes and seek Judicial Diversion again and again.
It was suggested that the problem could be addressed, at least
in part, by inserting a provision in the Judicial Diversion model that
would preclude from diversion any defendant who, in a particular case,
was offered and refused an opportunity to participate in an existing
diversion program. The Commission failed to reach agreement on this
proposed solution, which was criticized by some defense
representatives as unworkable.

325

The impact of the proposal on local probation departments would be reduced to
the extent that judges elect to use the alternative, interim parole supervision
sentencing option in second felony offender cases.

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d.

Other Concerns with the Judicial Diversion Model

One Commission member voiced concern that to the extent the
Judicial Diversion proposal would allow a judge to vacate a
defendant’s plea entirely or vacate the plea and allow a plea to a lesser
charge upon successful completion of the program, the proposal would
single out participants of this program for significantly different
treatment than other similarly situated defendants. For example, in
some jurisdictions, drug-addicted defendants arrested for the Class B
felony of Criminal Possession of a Controlled Substance in the Third
Degree326 who are not second felony offenders, are routinely offered
the opportunity to plead guilty to a Class C, D, or E felony drug
offense with a sentence of five years probation and drug treatment as a
condition of probation. The defendant who successfully completes
probation, including drug treatment, would not get the same
consideration as the defendant who completes Judicial Diversion. The
same argument could be made for drug-addicted offenders convicted
of non-drug, non-violent felonies who successfully complete treatment
as a condition of probation. It was argued that issues such as this,
which ultimately relate to the collateral consequences of a felony or
criminal conviction, should be dealt with separately and universally,
instead of carving out small groups of offenders for disparate
treatment.
This Commissioner also raised the concern that insofar as the
proposal gives judges the power to offer a defendant a plea to a
reduced charge after successful completion of drug treatment over the
prosecutor’s objection, it would alter the balance of power between
prosecutors and judges by allowing the latter to exercise authority that,
heretofore, has been within the province of the prosecutor.
The Commission recognizes that if the Legislature adopts
this diversion model for first-time Class B felony drug offenders, it
would presumably have to develop a comparable disposition option for
drug-addicted first-time felony offenders charged with lesser (i.e.,
Class C, D and E) felony drug offenses. Although these lower level
drug offenses differ from the Class B crimes in that they do not require
326

Penal Law §220.16.

116

a State prison sentence upon conviction, it would be patently unfair to
allow offenders charged with the higher (Class B) drug offense to
obtain a plea to a lesser charge or outright dismissal upon successful
completion of treatment while denying this same advantage to
offenders charged with lesser felony drug crimes.
B.

Judicial Diversion on Consent of the Parties

Echoing the concerns of a majority of the State’s prosecutors,
one Commission member argued in favor of adopting the Judicial
Diversion proposal for first and second-time felony offenders, but with
the added requirement that diversion be permitted only where the
prosecutor consents to the disposition. While agreeing that the
concept of an additional, statewide, diversion model is a sound one, it
was argued that the decision to divert a particular offender into
treatment should be a shared decision, and should not be left to the
judge alone.
At focus group sessions and public hearings, law enforcement
professionals stressed the integral role that prosecutors have played in
successful diversion programs such as DTAP, STEPS and drug court.
They argued that prosecutors often possess confidential information
identifying gang members, or are aware of an offender’s involvement
in crimes of violence which make the offender unsuitable for
diversion. They further argued that the historic reductions in crime in
New York could be reversed if persistent drug dealers are not
incarcerated and removed from the community. In testimony before
the Commission, New York County District Attorney, and former
Chair of the 1977 Executive Advisory Committee on Sentencing,
Robert Morgenthau, summarized these concerns:
Drug sentences have already been reduced as a result of
the Drug Reform Act of 2004. Further reductions are
likely to be counterproductive. As any resident of a
drug-infested neighborhood can tell you, there is a link
between illegal drug trafficking and unlawful behavior,
including violent crimes. Significant mandatory
sentences are still needed to ensure that serious offenses
and repeat offenders receive appropriate punishment.
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They are also essential if we want to keep crime down.
Mandatory sentences also provide a meaningful
incentive for defendants to accept demanding long-term
residential treatment as an alternative to prison.327
Although there are sound reasons for requiring that the court
and the prosecutor both agree that a particular offender be diverted to
drug treatment, a majority of Commission members believe that, as
reflected in the Judicial Diversion model, judges should make the final
decision about whether an offender should be diverted. They cite
several reasons for this. First, the model uses objective criteria
including drug screening by an outside expert to determine eligibility
for the program. Second, the proposal excludes individuals with a past
history of violence, and gives prosecutors an ability to be heard and to
oppose diversion of offenders who pose a risk to public safety.
Finally, they believe that courts are in the best position to oversee the
diversion program, relying on the existing infrastructures of probation
and parole, and the ability to integrate diversion of felony drug
offenders into the existing network of drug treatment courts
throughout the State.
C.

Comprehensive Reform of the Drug Laws: A. 6663-A
(Aubry) / S. 4352-A (Schneiderman) (2007-2008)
1. Background

Two members of the Commission, echoing the views of reform
advocates, were in favor of broader drug law reform as embodied in a
bill passed by the New York State Assembly and introduced in the
New York State Senate.328 In addition to creating in statute a new drug
diversion option, Court Approved Drug Abuse Treatment
(“CADAT”), the bill doubles the existing weight requirements for
most Class A felony drug sale and possession crimes; makes first-time
Class B felony drug offenders, other than those previously convicted

327

New York State Commission on Sentencing Reform, Transcript of New York
City Public Hearing (November 13, 2007), at 49-50.
328
See, A. 6663-A (Aubry) / S. 4352-A (Schneiderman 2007).

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of a “disqualifying” offense,329 eligible for a sentence of probation or a
local jail sentence of up to one year in lieu of State prison; and makes
drug-addicted second felony drug offenders, other than those
convicted of a Class A felony drug or “disqualifying” offense, found to
have one-eighth ounce or less of a narcotic drug, eligible for a
sentence of probation with a mandatory condition of drug treatment.
Under a separate “judicially imposed” Shock incarceration provision,
judges would be authorized to sentence certain drug-addicted first and
second felony drug offenders directly to DOCS’ Shock incarceration
program, to be followed by mandatory drug abuse treatment upon
release. Certain offenders serving indeterminate sentences for
enumerated felony drug or drug-related conspiracy offenses would be
eligible to apply for resentencing to a new determinate sentence
consistent with the provisions of the bill and the 2004 DLRA.
Offenders convicted of a “disqualifying” offense would be ineligible
for resentencing.
The proposal also would significantly expand eligibility for
Willard “parole supervision” sentences, and would require that all
offenders sentenced to probation (or subject to parole, conditional
release or post-release supervision) who have a documented substance
abuse dependency undergo substance abuse treatment for at least one
year or the balance of the supervision period. Mandatory substance
abuse treatment also would be required for juveniles with substance
abuse problems who are placed in Office of Children and Family
Services’ facilities.
The bill would enhance existing penalties for certain felony
drug offenses by creating a new Class A-I felony “drug kingpin”
329

The following are among those considered disqualifying offenses under the bill:
(1) a violent felony offense, except where the court finds the defendant was the
victim of domestic abuse perpetrated by the victim of the violent felony offense and
such abuse was a factor in the commission of such offense; (2) any other merit time
ineligible offense, i.e., any A-I non-drug felony, manslaughter in the second degree,
vehicular manslaughter in the first or second degree, criminally negligent homicide,
a sex offense defined in Penal Law Article 130, incest, an offense defined in Penal
Law Article 263 (sexual performance by a child), or aggravated harassment of an
employee by an inmate; and (3) certain enumerated drug sales to minors committed
on school grounds.

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offense punishable by a mandatory prison term of up to 30 years to
life; a new Class C violent felony of criminal possession of a weapon
while selling or attempting to sell a controlled substance, punishable
by an enhanced determinate sentence of 5 to 15 years (compared to 3½
to 15 years for most other Class C violent felonies) and a new Class B
felony offense of criminal sale of a controlled substance to a child,
which has the effect of increasing the available penalty for specified
Class C drug sale offenses where the seller is over 21 and the buyer is
less than 16 years of age.330
Finally, the bill requires the State Comptroller to certify, on
an annual basis, the monetary savings generated by the enactment of
the DLRA and this reform measure, both of which would yield
expected decreases in inmate admissions and length of stay. This
savings then would be used to fund drug treatment and criminal justice
programs to reduce crime.
In addition to their strong support for diverting drug-addicted
offenders to treatment, as embodied in the CADAT model described
below, the Commission members supporting this measure also felt that
it was important to bring the State’s drug sentencing laws more in line
with sentences for other crimes. They argued that New York’s felony
drug sentencing laws are among the harshest in the nation and should
be more closely aligned with sentences for drug crimes in other states.
2. The CADAT Model
Many of the provisions of the CADAT diversion model in the
legislative bill are similar to those of the Judicial Diversion proposal,
but there are some notable differences. Under the CADAT model,
first-time felony offenders charged with a Class B felony drug offense,
and repeat felony offenders charged with a Class B, C, D or E felony
drug or marihuana offense, may apply to the court for a CADAT
330

Other significant provisions of the bill would: (1) create a new “transitional
services program” in DOCS to help inmates prepare for successful reintegration into
the community and (2) impose additional requirements on DOCS to enhance the
provision of comprehensive alcohol and substance abuse treatment services to
inmates in need of such treatment.

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diversion order.331 Persons currently or previously convicted of a
“disqualifying offense,” including any violent felony offense other
than a violent felony found to have been committed by certain victims
of domestic abuse, would be ineligible for CADAT.332 Upon
application of an apparently eligible defendant, the court would order
an alcohol and substance abuse assessment333 and adjourn the matter
for 21 days to allow a prosecutor to make a non-binding determination
as to the defendant’s suitability for diversion.334 If it appears to the
court that the defendant also may be a person with a mental illness, the
court must order that the assessment include a mental health
examination to be conducted by an examining physician or certified
psychologist.335
Prior to issuing a CADAT order, a court would be required to
find that the defendant has a history of dependence on one or more
controlled substances, and that participation in a drug abuse treatment
regimen could effectively address such dependence, making it less
likely that the defendant would commit a crime. Following its review
of the substance abuse assessment and the prosecutor’s suitability
determination, the court would be authorized to issue a CADAT order
for a period of not less than one nor more than two years, with possible
additional periods of up to six months. In the court’s discretion, a
CADAT order could be issued either prior to the entry of a guilty plea
-- in which case all discovery requests, pre-trial motions and other

331

With only a few exceptions, all of the eligibility requirements and other
procedures governing CADAT dispositions appear in the bill in a proposed new CPL
Article 218 (“Court Approved Drug Abuse Treatment”).
332
See, supra, note 329.
333
The assessment must include: (1) an evaluation as to whether the defendant has a
history of alcohol and/or substance abuse dependence (and, where so ordered, a
mental illness) and the factual basis for such evaluation; (2) a recommendation as to
whether the defendant’s substance dependence and, if applicable, mental illness
could be addressed by CADAT; and (3) a recommendation as to the types of
treatment which could be effective.
334
The provision in the Judicial Diversion proposal requiring a pre-diversion
adjournment for up to 21 days if requested by either party is modeled after this
“automatic stay” provision.
335
Mental Hygiene Law §§1.03(8); 1.03(9).

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proceedings in the case would be automatically stayed336 pending the
offender’s completion of treatment -- or following a guilty plea, in
which case sentencing on the plea would automatically be deferred
pending completion of treatment.337
Upon ordering CADAT, a court would impose reasonable
conditions related to supervision and treatment and direct that the local
probation department or another entity, where appropriate, supervise
the defendant during the period of drug abuse treatment. Such
treatment must include a period of residential treatment unless the
court finds it unnecessary. During the CADAT period, the court
retains jurisdiction of the defendant and could, at any time, order the
defendant to appear before the court. Failure to appear as ordered
without reasonable cause would constitute a violation of the conditions
of CADAT. The court would be required to employ a system of
graduated and appropriate responses or sanctions designed to address
inappropriate behaviors, protect public safety and facilitate, where
possible, successful completion of the course of treatment. Where the
court determines that the defendant has violated one or more
conditions of the CADAT order, it may, after hearing from the
defense, prosecution and treatment provider, modify the conditions,
reconsider any order of recognizance or bail, or terminate CADAT and
order the criminal action or proceeding restored to the calendar, in
which case the action or proceeding must proceed. A defendant
sentenced for a conviction following a termination of CADAT may be
sentenced up to the maximum term that the court would have imposed
upon the defendant if he or she had not participated in CADAT.
Upon the defendant’s successful completion of CADAT, the
court would be required to comply with the terms and conditions it set
for final disposition, including vacatur of any guilty plea entered prior
to issuance of the CADAT order. In cases where the court fails to set
336

The proposal would allow for the temporary lifting of the stay, on application of
either party, where the court finds that the stay could result in irreparable harm to
either party through the potential loss of evidence or unavailability of witnesses.
337
The proposal requires that where a CADAT-eligible defendant is also charged
with a CADAT-ineligible offense, “adjudication of such non-eligible offense shall
proceed,” notwithstanding the provisions of CPL Article 218 (the new CADAT
article).

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the terms and conditions for final disposition, the proposal requires the
court either to dismiss the accusatory instrument with prejudice or
order that the charges be reduced to a misdemeanor and allow the
defendant to enter a plea to the reduced charge.338
3. Critique of the CADAT Proposal
During public hearings and in focus groups, calls for drug law
reform focused overwhelmingly on those offenders serving mandatory
State prison sentences for felony drug offenses who were largely
bypassed by prior drug reform efforts. Based on repeated testimony
from former drug offenders, their family members and drug reform
advocates, those offenders whose crimes were committed to support,
or as a result of, their addictions were considered by many
Commissioners to be most deserving of relief from these mandatory
sentences. Accordingly, in considering this drug reform bill, the major
focus of the Commission’s attention was on the CADAT proposal,
which was recognized as a diversion model that shares many common
features with the Judicial Diversion proposal. The substantial
similarities between CADAT and Judicial Diversion suggest that there
is “common ground” on many elements of a statewide diversion
program. Both proposals, for example, are designed to divert prisonbound, non-violent, drug-addicted first-time and second felony
offenders to treatment in lieu of State prison, and both categorically
exclude offenders who, due to their criminal histories, are deemed
inappropriate for diversion to community-based treatment.
Similarly, both models require an independent drug
dependency assessment and permit diversion only after the prosecutor
has had an opportunity to investigate and be heard on the offender’s
suitability for diversion. Both models also involve supervision of the
offender by an independent agency, such as Probation or Parole, and
338

Under the proposal, these “default” dispositions are triggered only where the court
fails, at the time of the CADAT order, to set the terms of the final disposition. There
is nothing in the proposal (or in the existing Criminal Procedure Law) that would
expressly permit the court to dismiss the charge or accept a misdemeanor plea in a
non-default context. The Commission assumes that this was inadvertent, and that the
drafters intended to give judges the authority to dismiss the charge or accept a
misdemeanor plea in any case where the defendant successfully completes CADAT.

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require judges to use “graduated” sanctions to respond to drug relapses
and similar negative behavior. Finally, both Judicial Diversion and
CADAT require an offender to participate in a one to two-year period
of community-based treatment, the successful completion of which
would result in a dismissal, sealing or other disposition that would
allow the offender to begin his or her reintegration into society without
the stigma of a felony drug conviction.339
Despite these similarities, some Commission members were
troubled by features of the CADAT model not found in the Judicial
Diversion proposal. Under CADAT, for example, a judge, including a
local criminal court judge,340 could issue a diversion order without first
requiring the entry of a guilty plea to the felony drug charge.
Although the model does not preclude a judge in any given case from
insisting on the entry of a guilty plea as a condition of participating in
CADAT, these members were nonetheless concerned that, where no
plea is entered and the defendant ultimately fails the program after
several months (or even years) in treatment, the prosecutor might have
difficulty locating witnesses or securing the evidence needed to
proceed. This would have far reaching effects on the orderly
prosecution of drug cases and could result in many felony drug cases
being dismissed. Certain Commission members argued that CADAT’s
“deferred prosecution” approach is less effective than the “deferred
sentencing” approach in the Judicial Diversion model because the
certainty of a prison sentence upon program failure has been removed
under the CADAT model, thereby lessening the offender’s motivation
to succeed in treatment. They noted that the Kings County DTAP
339

Although both models provide for sealing the case record where the ultimate
disposition results in a dismissal of the charges, only the Judicial Diversion proposal
allows for the sealing of a felony conviction where the offender is successful in
treatment. As previously discussed, the Legislature could consider creating a
mechanism to allow the sealed conviction to “spring back” in the event of a
subsequent arrest (see, supra, note 297).
340
Under the Judicial Diversion proposal, only a superior court judge could order
diversion and only on a pending indictment (assuming there is no prosecutorial
consent for a superior court information under CPL 195.10[1][c]). In contrast, the
CADAT proposal would appear to allow the issuance of a “deferred prosecution”
CADAT order on a pending felony complaint by a judge of a city court, district court
or even a local “justice court,” provided the latter court has been designated a “drug
court” by the Office of Court Administration.

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program reported significantly higher retention rates after switching
from a “deferred prosecution” to a “deferred sentencing” approach in
1998, a result supported by research suggesting that “progressively
higher levels of perceived legal pressure [on the part of treatment
program participants] can increase treatment retention.”341
Commissioners supporting the CADAT approach maintained
that an addicted defendant should not have to give up the right to
challenge the legality of a search and seizure or his or her
constitutional right to a trial by pleading guilty in order to be afforded
drug treatment instead of a State prison sentence. They further argued
that giving a judge the opportunity to defer prosecution prior to entry
of a guilty plea mitigates unintended immigration consequences that
may follow a guilty plea -- even a plea that is later withdrawn.342 They
noted that a number of provisions are built into the CADAT model,
such as an “automatic stay” of motions, discovery demands and other
pre-trial proceedings, and a provision to preserve testimony or other
evidence that might be lost during the period the defendant is in
treatment, to enable the prosecution to proceed if there is a failure in
treatment.
Another difference between the models is that, unlike Judicial
Diversion, the CADAT proposal precludes second felony offenders
charged with non-drug, non-violent property and theft offenses from
participating in the program. Given that many drug-addicted
offenders, and especially repeat offenders, frequently commit these
non-violent offenses to feed their addiction, the Judicial Diversion
model encompasses these offenders. Notably, sponsors of the
CADAT bill who are members of the Commission were open to
expanding the proposal to include these non-drug felony offenders.

341

Kings County District Attorney’s Office, supra, note 235, at 53.
See generally, In re Roldan-Santoyo, 22 I. and N. Dec. 512 (BIA), 1999 WL
126433 (US Board of Immigration Appeals, 1999) vacated on other grounds sub
nom., Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000); Lujan-Armendariz v.
INS, 222 F.3d 728 (9th Cir. 2000); Chavez-Perez v. Ashcroft, 386 F.3d 1284 (9th Cir.
2004); Murillo-Espinoza v. Immigration and Naturalization Service, 261 F.3d 771
(9th Cir. 2001); Delatorre-Solis v. Mukasey, 266 Fed. Appx. 628, 2008 WL 410368
(9th Cir. 2008).
342

125

There are a number of features in the Judicial Diversion model
including screening requirements, different treatment modalities for
first and second-time felony offenders, and new supervision and
sentencing options which the majority of Commissioners believe make
that model preferable.
D.

The “Aggravated Sale and Possession” Model

Another drug reform proposal considered by the Commission
would allow for a probation sentence for first-time felony offenders
charged with the Class B felony offense of criminal sale of a
controlled substance in the third degree or criminal possession of a
controlled substance in the third degree.343 This proposal offers a
relatively simple “offense-based” approach to alternative sentencing
for these Class B felony drug offenders.
1.

Proposal

Many drug reform advocates urge that mandatory minimum
sentences for felony drug offenders be repealed and that judges be
given the discretion to sentence first-time felony offenders convicted
of Class B felony sale or possession crimes to a probation sentence in
lieu of State prison. There was limited support for this view on the
Commission. Commissioners recognize, however, that there are
certain aggravating circumstances where a mandatory or enhanced
sentence is appropriate. For example, under current law, sale of a
controlled substance on school grounds or a school bus is an
343

See, Penal Law §§220.39; 220.16. The existing Class B felony offense of criminal
sale of a controlled substance in the third degree can be committed in any one of nine
different ways, each defined in a separate subdivision of Penal Law §220.39. The
most commonly charged offense under Penal Law §220.39 is the knowing and
unlawful sale of any amount of a “narcotic drug” under subdivision one. Similarly,
the existing Class B felony offense of criminal possession of a controlled substance
in the third degree can be committed in any one of 13 different ways, each defined in
a separate subdivision of Penal Law §220.16. The most commonly charged offense
under Penal Law §220.16 is the knowing and unlawful possession of any amount of
a narcotic drug “with intent to sell it” under subdivision one. In general, a first-time
felony offender convicted under either of these sections faces a mandatory prison
sentence of one to nine years.

126

aggravating factor which carries a more serious sentence than that
applied to regular (i.e., non-schoolyard) drug sales.344
Following that reasoning, the proposal calls for eliminating the
mandatory minimum one-year State prison sentence for first-time
felony drug offenders convicted of a Class B sale or possession
offense under Penal Law §220.39 or 220.16, thereby allowing these
offenders to be sentenced to a five-year probation sentence, local jail
sentence of up to one year or a “split” sentence of jail followed by
probation.345 The proposal contains an additional recommendation,
however, that the Legislature create new “aggravated” Class B sale
and possession offenses in circumstances which pose a greater risk to
public safety when: (1) the defendant possessed a loaded or unloaded
firearm or other gun at the time of the drug sale or possession crime
(or at the time of arrest on the drug offense);346 or (2) the sale of drugs
under Penal Law §220.39 was to a person under 21 years of age by a
defendant who was at least 21 years old at the time of the sale.347
Persons convicted of the new “aggravated” sale or possession crime
would face a mandatory minimum one-year State prison sentence and
could receive up to nine years in State prison.

344

Pursuant to Penal Law §220.44, a first-time felony offender who sells drugs in
violation of specified subdivisions of Penal Law §220.39 while on school grounds, a
school bus or the “grounds of a child day care or educational facility” is guilty of a
separate Class B felony “schoolyard” sale offense and is subject to a two-year
mandatory minimum determinate sentence instead of the one-year mandatory
minimum determinate sentence that applies to non-schoolyard sales.
345
The judge would retain the discretion to impose a State prison sentence of one to
nine years in these cases.
346
The possession of a loaded firearm outside a defendant’s home or place of
business is currently a Class C violent felony offense punishable, for first-time
felony offenders, by a mandatory determinate State prison sentence of 3½ to 15
years. As such, the proposed “gun possession” aggravator under the proposal would
likely be applied by prosecutors in drug sale and possession cases involving the
possession of an unloaded firearm, a loaded firearm found in the defendant’s home
or place of business, or a loaded or unloaded rifle or shotgun.
347
Penal Law §220.39(9) currently prohibits sale of a “narcotic preparation” to a
person less than 21 years of age. As such, a person age 21 or older who commits a
sale offense under that section could, in the discretion of the prosecutor, be charged
under either the new aggravated or current non-aggravated statute.

127

This proposal would result in substantial drug reform for firsttime Class B felony drug offenders and afford judges wide discretion
in sentencing such offenders, while still providing a mandatory prison
sentence in aggravated circumstances which pose a greater danger to
public safety.348
2.

Critique of the “Aggravated Sale and Possession”
Proposal

The most prevalent concern with regard to the aggravated sale
and possession model is its potential to negatively impact the operation
of existing diversion programs, particularly drug courts. Both
prosecutors and drug court judges voiced concern that allowing “nonaggravated” first-time Class B felony offenders to receive a straight
five-year probation or local jail sentence in lieu of State prison would
create a disincentive for addicted offenders to undergo the rigors of
long-term substance abuse treatment in drug court. Some Commission
members also were concerned that allowing drug-addicted Class B
felony offenders to receive a probation sentence without participating
in drug treatment would do little to end the offender’s cycle of
addiction, and could result in an entirely new class of drug-addicted
future predicate felons who, upon commission of their next drug sale
offense, would face a mandatory minimum sentence of 3½ years and
up to 12 years in State prison.
To minimize a drug-addicted defendant’s incentive to avoid a
drug court disposition, it was suggested that the proposal be modified
simply to eliminate the possibility of a local jail sentence. Addicted
offenders would then be required to serve at least a five-year probation
or “split” sentence, a condition of which could include successful

348

As with existing Penal Law §220.44 “schoolyard” drug sales, under the proposal
the penalty for a second felony offender convicted of the new aggravated sale or
possession crime would be the same as for a second felony offender convicted of the
non-aggravated crime (see, Penal Law §70.70[3] and [4]). Also, the proposal would
have no impact on existing sentences for other Class B drug felonies in Penal Law
Article 220 (see, e.g., Penal Law §220.75 [unlawful manufacture of
methamphetamine in the first degree]; Penal Law §220.44 [criminal sale of a
controlled substance in or near school grounds]).

128

completion of drug treatment.349 At least one Commission member
strongly opposed this suggested modification on the grounds that it
was both unworkable and unnecessary, especially given the fact that
not all first-time felony drug offenders are drug addicted or otherwise
appropriate candidates for a probation sentence, and that a local jail
sentence may be the most appropriate sentence in those cases. As a
way to implement this diversion model in larger counties with multiple
felony-level court parts, it also was suggested that OCA could
establish a mechanism to direct all felony drug cases before a single
judge who could evaluate the case and the defendant’s drug
dependency status and determine whether transfer to the county drug
court is warranted.350
E.

Eliminating the Mandatory Minimum State Prison
Sentence for First-Time Class B Felony Drug Sale
and Possession Offenses

The final drug reform proposal considered by the Commission
is based on the simple notion that the possession or sale of a relatively
small quantity of drugs by a first-time felony offender should not
require a State prison sentence.351 Like the “aggravated sale and
possession” model, this proposal would eliminate the existing one-year
mandatory minimum State prison sentence for first-time felony
offenders convicted of a Class B felony drug sale352 or possession353
crime. In lieu of prison, it would allow for an alternative five-year
probation sentence, local jail sentence of up to one year, or a “split”
sentence of up to six months in jail followed by probation. While it
would create non-prison sentencing alternatives for these Class B
felony drug offenses, the proposal differs from the “aggravated sale

349

See, Penal Law §65.10(2)(e).
Kings County reportedly employs a similar procedure in order to “universally
screen” all felony drug defendants for addiction and steer these cases to the
appropriate court part (e.g., to a DTAP or drug court part).
351
Under existing law, sale by a first-time felony offender of less than one-half
ounce of a narcotic drug or possession of less than four ounces of a narcotic drug are
Class B felony offenses punishable by a State prison sentence of 1 to 9 years.
352
See, Penal Law §220.39
353
See, Penal Law §220.16.
350

129

and possession” model in that it would not establish “aggravated”
versions of the two crimes.
Proponents of the model argued that in terms of “moral
reprehensibility” and potential impact on public safety, possessing or
selling relatively small quantities of drugs are far less serious offenses
than crimes like manslaughter in the second degree, criminally
negligent homicide and vehicular manslaughter in the first degree, all
of which carry a possible sentence of probation or local jail for firsttime felony offenders.354 The model, they maintained, also recognizes
that there may be reasons other than drug addiction that warrant
imposition of a non-prison sentence in these cases.
Although this proposal provides a simple, straightforward
approach to drug law reform, it has a number of drawbacks which kept
it from receiving support from a majority of the Commission. It is
recognized that while Class B possession and sale offenses typically
involve small quantities of drugs, there is a well-documented culture
of violence that permeates the illegal drug trade. Eliminating the
“mandatory minimum” sentence for all low-level drug offenders,
including those involved in violent aspects of the drug trade, could
lead to an escalation in drug-related violence in our communities.
Further, a majority of Commissioners prefer a diversion approach
wherein drug-addicted non-violent felony offenders may receive a
sentence that includes drug treatment in lieu of a sentence to State
prison. This proposal lacks even a minimal drug screening or
treatment component. Thus, while judges could sentence addicted
offenders to complete drug treatment as a condition of a five-year
probation sentence,355 there is no formal mechanism for screening
offenders and no requirement that addicted offenders sentenced to
probation complete treatment as a condition of that sentence.
Similarly, addicted offenders who receive a local jail sentence under
the proposal may avoid any semblance of drug treatment and re-enter
the system on their next felony arrest as an addicted predicate felon
facing mandatory State prison.

354
355

Penal Law §§125.15; 125.10; 125.13.
See, Penal Law §65.10(2)(e).

130

Finally, as noted, enacting a non-prison sentencing alternative
for drug-addicted first-time Class B felony drug offenders could have a
detrimental impact on existing drug courts, which hold the promise of
a non-prison disposition as the “carrot” to entice addicted offenders to
undergo the rigors of long-term treatment.
VII.

RECOMMENDATION

For some non-violent felony drug offenders, incarceration in
State prison is a costly and oftentimes unnecessary response to
criminal behavior that is rooted in addiction. By addressing the
underlying drug dependence that precipitates this behavior, greater
gains can be made in reducing recidivism and improving public safety.
While New York enjoys the benefit of an established network of drug
diversion programs, the Commission recommends that the Legislature
adopt a uniform, statewide drug diversion program to divert
appropriate drug-addicted non-violent offenders from prison to
community-based treatment where such diversion can be effected
without jeopardizing public safety.
The Commission recognizes that this action will require an
investment in additional resources for evaluation, treatment, referrals
and supervision of offenders. It will be a challenge to find these
resources given New York’s current fiscal crisis. However, in the long
run, this investment will result in substantial savings in judicial, law
enforcement, correctional and supervision resources by significantly
reducing the costly cycle of addiction and recidivism for the State’s
drug-addicted felony offenders. It also will offer much needed relief
to families and communities adversely impacted by disproportionate
incarceration rates by transforming formerly drug-addicted offenders
into productive family and community members.
The three proposals described in sections A through C above
provide well-considered options for a uniform statewide diversion
model. In sections D and E, the Commission advances two alternative
proposals which, though not directed toward drug-addicted offenders,
merit further study. These latter proposals would allow judges to

131

sentence first-time Class B felony drug offenders to probation or local
jail in lieu of a mandatory State prison sentence.356
The Commission is hopeful that its far-reaching efforts to
examine the past, present and future direction of drug law reform in
New York will prove to be a meaningful step forward for the State’s
criminal justice policymakers.

356

These proposals are set forth, supra, at 126-131.

132

PART FOUR
USING EVIDENCE-BASED PRACTICES TO
IMPROVE OFFENDER OUTCOMES

133

Part Four
Using Evidence-Based Practices to Improve
Offender Outcomes
Approximately 250,000 offenders are either incarcerated or
being supervised on parole or probation throughout New York State.357
The time offenders spend in prison or under community supervision
provides an opportunity, through effective programming, to correct
deficiencies that lead to criminal behavior. Notwithstanding this fact,
research reveals that 39% of offenders return to prison within three
years of their release from incarceration.358 This high rate of reincarceration prompted the Commission to review the policies and
practices of correctional and supervisory agencies in an attempt to
identify ways to improve offender outcomes. In its Preliminary
Report, the Commission proposed a number of recommendations to
reduce recidivism, including an overarching recommendation to begin
capitalizing on more than 30 years of research by introducing
identified components of effective offender interventions, commonly
referred to as evidence-based practices.359
States throughout the nation have utilized evidence-based
practices to guide the development of correctional programming. 360 It
357

New York State Division of Criminal Justice Services, New York State Criminal
Justice Crimestat Report 2006 (Albany, NY [2007])
http://www.criminaljustice.state.ny.us/pio/annualreport/2006crimestatreport2-907.pdf.
358
New York State Department of Correctional Services, 2002 Releases: ThreeYear Post Release Follow-up Report (Albany, NY 2007).
359
An “evidence-based practice” implies that the practice is measurable and
repeatedly has been shown, through high-quality research, to reduce offender
recidivism. For a further discussion, see, Crime & Justice Institute, Implementing
Evidence-Based Practice in Community Corrections: The Principles of Effective
Intervention (Washington, DC: National Institute of Corrections, Community
Corrections Division, U. S. Department of Justice [2004]); see also, Preliminary
Report, at 34-40.
360
Indeed, some states, such as Oregon and Washington, have enacted laws requiring
that programs and systems comport with the aforementioned principles (see, ORS
182.525 [2003]; Offender Accountability Act [Washington State, ESB 5421]
[1999]).

134

is essential that New York’s policymakers harness this growing body
of knowledge of what works in corrections and infuse our institutional
and community programming with scientifically validated, evidencebased practices, including the following principles of effective
correctional programming: (1) using intensive intervention for
offenders with the highest risk of recidivism (the “risk” principle); (2)
targeting offender needs that are most closely tied to criminality (the
“need” principle); (3) having a human services orientation; (4)
enhancing intrinsic motivation; (5) utilizing “cognitive-behavioral”
programming that focuses on attitudes, interpersonal skills, anger
management, thinking style, moral reasoning and the link between
thought and behavior; (6) delivering program content in a way that can
be understood and will be accepted by the recipient (the “responsivity”
principle); (7) implementing programming in a way that is consistent
with the program design (the “fidelity principle”); (8) providing
relapse prevention services for those completing the program; and (9)
employing routine monitoring and quality control procedures.361 By
adopting scientific principles at critical stages, New York’s criminal
justice agencies will be able to better address the very offender
characteristics that are responsible for criminal behavior and reduce
recidivism as a result.
I.

USE OF A RISK AND NEEDS ASSESSMENT
INSTRUMENT

The cornerstone of evidence-based practices is the use of a
validated risk and needs assessment instrument. Such an instrument
can help supervising agencies accurately assess the risk posed by an
offender, identify the personal deficits that have contributed to an
offender’s criminality, and capitalize on an offender’s strengths during
the re-entry process. The use of a risk and needs instrument is not
meant to replace professional judgment but, rather, to maximize the
effectiveness of programming and supervision and thus improve public
safety.
361

Crime and Justice Institute, supra, note 359; Andrews, A., Bonta, J. and Wormith,
J., The Recent Past and Near Future of Risk and/or Need Assessment, 52 Crime and
Delinquency 1, at 7-27 (2006); New York State Commission on Sentencing Reform,
Working Paper: “What Works” in Correctional Programming (Albany, NY [2007]).

135

Indeed, important decisions are made for each offender
throughout the criminal justice continuum, including: the type of
sentence that should be imposed; if a jail or prison sentence is
imposed, the length of incarceration; the intensity and type of
programming an offender will receive while incarcerated; the type of
preparatory and transitional programming that is needed to facilitate
successful re-integration into the community; and the intensity and
length of community supervision that will be most effective while the
offender is on parole or probation. New York’s criminal justice
workforce remains dedicated to the goal of increasing public safety
through offender programming. Criminal justice personnel, however,
are routinely challenged by heavy workloads that require them to
address the public safety risks posed by the large number of offenders
under their supervision, while simultaneously helping those offenders
become productive members of society by addressing their individual
needs. A risk and needs assessment instrument can help supervising
agencies become more effective by allowing them to focus efforts on
those who pose the highest risk.
The “risk” principle focuses on who should be targeted for
intervention, and is based on predicting which offenders are going to
recidivate absent intensive intervention. Pursuant to this principle, the
most intensive correctional treatment and intervention programs
should be reserved for higher-risk offenders. Risk is largely assessed
based on “static” characteristics that are associated with the likelihood
of re-arrest, such as age, gender and criminal history. Risk assessment
information does not tell a supervising agent how to reduce the risk of
recidivism; it simply provides insight into the probability of
recidivism.
Risk assessments guard against the use of intensive
interventions with low-risk cases, which is critical because numerous
studies show that intensive intervention in low-risk cases can actually
increase recidivism.362 While practitioners intuitively understand that
362

Andrews, D. and Bonta, J., The Psychology of Criminal Conduct (Cincinnati,
Ohio: Anderson Publishing [2006]; Lowenkamp and Latessa, Understanding the
Risk Principle: How and Why Correctional Interventions Can Harm Low-Risk

136

the length and diversity of an offender’s criminal history and
characteristics, such as age, will affect the offender’s likelihood of
recidivism, risk instruments significantly improve upon the predictive
accuracy of that assessment. That is, when practitioners use these
instruments they are much more likely to accurately predict who will
succeed and who will fail under regular supervision than if they rely
upon professional judgment alone.
The Division of Criminal Justice Services (“DCJS”) developed
a static risk assessment methodology based on a study of 26,000
offenders released from DOCS in 2002. The DCJS risk methodology
scores offenders leaving prison into deciles of risk, ranging from one
(lowest) to ten (highest), based upon age, gender and criminal and
correctional history. The methodology was developed to provide
offender risk scores to local re-entry task forces funded by DCJS. The
instrument calculates the probability of re-arrest within two years of
release. The solid line on the graph in Figure 1 represents the rate at
which offenders at each level of risk were re-arrested within two years
of release, and the dotted line shows the predicted rate of re-arrest by
risk level.
As indicated in Figure 1, the predictive accuracy of the static
risk assessment instrument is quite high. For example, the rate of rearrest for any crime within two years of release was 18% for released
offenders who scored at the lowest level of risk (Level 1); the actual
re-arrest rate for these same offenders was 14%. At the other end of
the spectrum, those assessed as Level 10 (highest risk) were expected
to be re-arrested at a rate of 85% within two years of release and
actually were re-arrested at a rate of 83%.363

Offenders, Topics in Community Corrections, at 3-8 (Washington DC: National
Institute of Corrections [2004]).
363
The correlations between DCJS risk scores and subsequent re-arrest are
comparable or slightly stronger than those typically produced by the leading risk
assessment instruments used throughout the United States and Canada.

137

Figure 1

While the DCJS risk scores provide important information
regarding the likelihood of re-arrest, they offer no guidance regarding
the nature of an offender’s deficits (or strengths) which tend to cause
failure (or success). A large number of research studies have
identified critical deficits that can contribute to recidivism (also called
“criminogenic needs” or “dynamic risk factors”), including criminal
personality traits such as impulsivity and aggressiveness; criminal
attitudes; absence of pro-social peers and mentors; low educational
achievement; low employment; and substance abuse. Thus, the second
principle of effective intervention is the accurate identification and
targeting of individual deficits that contribute to criminal behavior (the
“needs principle”). While correctional personnel and supervising
agents intuitively understand the importance of these factors to an
offender’s success, the use of a scientific risk and needs instrument
helps to ensure comprehensive assessments and supervision plans.

138

Risk and needs assessment instruments are used by correctional
systems throughout the country. Many states (and counties) use these
instruments to guide probation and parole supervision decisions. In
Virginia, a risk instrument is used to guide sentencing decisions, while
Kansas uses an instrument to guide programming in prison, and
Pennsylvania employs such instruments to assist with parole board
decisions.
A comprehensive risk and needs assessment conducted as part
of the pre-sentence (or pre-plea) investigation can provide the
sentencing judge with a clear picture of offender risk, deficits and
strengths. The assessment made during the pre-sentence investigation
also should be made by DOCS during its intake process. Currently,
DOCS uses a pre-sentence report prepared by the local probation
department as its primary document to determine programming for an
inmate. However, DOCS cannot control the sufficiency, accuracy or
comprehensiveness of such a report and most pre-sentence reports are
not sufficient to guide programming and other important decisions
regarding an inmate. A validated risk and needs instrument can be an
invaluable tool for conducting a comprehensive intake assessment
which, in turn, should drive offender programming. To the extent
indeterminate sentencing is continued in the State, the Division of
Parole also should use a risk and needs instrument to help determine,
which offenders are appropriate for release into the community and
which offenders continue to pose a significant threat to public
safety.364 Based on the foregoing, the Commission strongly
recommends that DOCS, Parole and the Division of Probation and
Correctional Alternatives (“DPCA”) adopt and utilize a common,
validated, risk and needs assessment instrument throughout the
criminal justice system.
Notably, DPCA has implemented the use of the COMPAS
Risk/Needs instrument in probation departments across the State.
Also, since the publication of the Commission’s Preliminary Report,
Parole has made substantial progress in implementing the use of a risk
and needs instrument, recently completing a validation study for the
364

This may require a change in the statute regarding how the Board of Parole is
authorized to make release decisions.

139

COMPAS Risk/Needs instrument for New York’s parolee population,
an important first step in implementing a risk and needs assessment
tool statewide.
A. Align Parole and Probation Supervision With Level
of Risk
Currently, all offenders released on parole supervision in New
York who are not on a specialized caseload365 are placed on “intensive
supervision” for the first 12 months and supervised at an average
caseload ratio of 1:40. After the successful completion of 12 months
of intensive supervision, parolees are moved to “regular supervision”
at an average caseload ratio of 1:100. Such an undifferentiated system
of supervision demands tremendous resources without accounting for
often dramatic differences in risk of re-offense among those being
supervised.
A better approach would be to assign probation and parole
supervision resources so that they are aligned with the offender’s
predicted risk level.366 A risk and needs assessment instrument can
help determine which offenders are most in need of intensive
supervision, thus permitting the supervising agency to target offenders
who pose the greatest risk of committing new crimes and who have the
greatest needs. Such an instrument also can identify parolees for
whom intensive supervision is less critical, thus eliminating inefficient,
and perhaps even counterproductive, supervision requirements for
low-risk offenders. Washington State, for example, uses a validated
risk and needs tool to determine where to concentrate the State’s
365

A “specialized caseload” is used for a small portion of the parolee population,
including sex offenders, certain violent offenders, domestic violence offenders, and
mentally ill offenders.
366
Lowenkamp, Latessa and Holsinger, The Risk Principle in Action: What Have We
Learned from 13,676 Offenders and 97 Correctional Programs? 52 Crime and
Delinquency 1, at 77-93 (2006); Burke, Peggy, Parole Violations Revisited: A
Handbook to Strengthen Parole Practices for Public Safety and Successful Offender
Transition (Washington DC: National Institute of Corrections 2004); Petersilia, Joan,
When Prisoners Come Home: Parole and Prisoner Reentry (New York: Oxford
University Press 2003); Petersilia, Joan, Reforming Probation and Parole in the 21st
Century (Lanham, MD: American Correctional Association, 2002); Andrews, D.,
Bonta, J. and Wormith, J., supra, note 361.

140

supervision resources by sorting individuals into four categories.367
Those at the highest risk of re-offense are designated as “A,” while
those representing the lowest risk are classified as “D.” Those
classified as “C” or “D” report to their parole officers electronically
and generally only receive active supervision if there is a violation of
the conditions of release.
The New York City Department of Probation currently uses a
“kiosk” reporting system for probationers who have been identified as
low risk. Low-risk probationers are initially referred for a 90-day
“stabilization” period during which a needs assessment is conducted to
determine whether a referral to community-based services is
necessary.368 At the completion of this stabilization period, low-risk
offenders are directed to report on a monthly basis to kiosks located in
probation offices throughout the City. In 2008, approximately 30,000
New York City probationers (59% of the City’s probation population)
were reporting to kiosks each month. An empirical study assessing the
impact of kiosk use for low-risk offenders in New York City showed
that public safety was not adversely affected.369 As a risk and needs
assessment instrument becomes more widely implemented in New
York State, Parole and DPCA should consider utilizing kiosk reporting
in appropriate jurisdictions for low-risk offenders. Doing so will
permit supervision resources to be focused on high-risk offenders and
will minimize the impact of reporting on the re-integration of low-risk
offenders back into the community.
Research demonstrates that placing low-risk offenders into
structured programming with high-risk offenders can lead to an
increase in failure rates because of the negative influences created by
the high-risk offenders. Further, placing low-risk offenders in
intensive programming tends to disrupt their pro-social networks,
which are the very attributes (e.g., school, employment, family) that
make them low risk.370
367

Offender Accountability Act, supra, note 360.
See, supra, note 324, at 45.
369
Wilson, J.A., Naro, W. and Austin, J.F. “Innovations in Probation: Assessing
New York City’s Automated Reporting System” (Washington, DC: The JFA Institute,
2007).
370
Lowenkamp, Latessa and Holsinger, supra, note 366.
368

141

Because Parole has limited resources and not all parolees pose
the same risk to public safety or have the same criminogenic, social
and economic needs, there is a need to, in effect, “triage” the
supervised population. Research demonstrates that correctional
programs that target high risk offenders better reduce recidivism than
programs that do not differentiate offenders based on risk level.371
Because “dynamic” factors routinely change, parole and probation
officials should use the risk and needs instrument to decrease or
increase the level of supervision according to an offender’s progress or
regress.
B. Concentrate Resources During the First Year of
Supervision
The Division of Parole appropriately provides more intensive
supervision during the first year following release from prison because
studies show that, for many offenders, the likelihood of failure is
greatest during that period.372 New York State offender data indicates
that the risk of re-arrest is highest during the first few months after
release, significantly declines between the sixth and twelfth months,
and continues to decrease through to the thirtieth month following
release.373
While parolees are in the greatest need of resources at the
beginning of their re-integration process, data also indicate that the
likelihood of failure at any point in time is highly affected by the
offender’s risk level at the time of release. Figure 2 shows the
monthly risk of re-arrest after release from prison displayed by
offender risk level at the time of release.374 The monthly risk of rearrest is presented in six-month segments and shows the percentage of
offenders entering a given time period who were then re-arrested
371

Id.
See generally, Travis, Jeremy. But They All Come Back: Facing the Challenges
of Prisoner Reentry (Washington DC: The Urban Institute, 2005).
373
See Figure 2, at 143.
374
Data in Figure 2 was provided by DCJS’ Office of Justice Research and
Performance and represents the re-arrest activity of 53,000 offenders released from
DOCS in 2004 and 2005.
372

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during that time period. The data indicate that the risk level and “time
on the street” both contribute to the likelihood of re-arrest.

Figure 2

Percent Expected To Be Arrested in A Given Month (%)

Monthly Risk of ReͲarrest Over Time
Given No Arrest to Date
8%

7%

6%

Offender
Risk Level

5%

High Risk
4%

Medium Risk
Low Risk

3%

2%

1%

0%
0

6

12

18

24

30

Months Without Arrest Since Release From Prison

The re-arrest rates in Figure 2 indicate that low-risk offenders
should receive the least intensive supervision from the moment they
are released from prison. These rates also show that high-risk
offenders should receive more intensive supervision which should be
reduced over time if the offender has remained arrest free. On
balance, however, more weight should be given to risk level because
high-risk offenders who remain arrest-free for more than two years are
still more likely to be arrested than are lower-risk offenders who are
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recently released from prison. By providing offenders with increased
access to programs and services when it is most beneficial, they have
the best opportunities for successful re-integration back into society.
Accordingly, resources should be “frontloaded” to the first 12 months
and both supervision and programming may be decreased after that
time.
The same principles apply to probation supervision. Probation
departments should assess individual risk and needs in order to
effectively align their limited resources as well. Concentrating
supervisory resources early in the supervision process, particularly for
high-risk offenders, supports the dual purpose of promoting successful
re-entry and reducing recidivism by simply re-allocating existing
resources.
II.

RESPONDING TO PAROLE RULE VIOLATIONS

The Commission, in its Preliminary Report, also recommended
that the State examine alternatives for dealing with the thousands of
parole rule violators who are returned to DOCS annually, and
suggested that “parole officers use effective alternatives to an all-ornothing response to parole rule violations.”375 Toward that end,
Parole partnered with the Vera Institute of Justice (“Vera”) to analyze
agency practices, as well as New York State offender data, and worked
with the Commission to make recommendations to reduce the number
of parolees who are returned to State prison for technical parole
violations.
Parole rule violators are a significant source of prison
admissions. In 2006, 9,474 parolees were returned to DOCS’ custody
for rule violations, and 2,799 parolees were ordered to Willard. 376
Surprisingly, many of these returns occurred absent new criminal
behavior by the parolee.377 In light of this data, as well as other
375

Preliminary Report, at 40-41.
DCJS Crimestat Report (December 30, 2008).
377
With respect to 2006 parole rule violators returned to prison, 25% had a new
felony arrest and 24% had a new misdemeanor arrest. For those sent to Willard,
13% had a new felony arrest and 27% had a new misdemeanor arrest.
376

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considerations, criminal justice policymakers have recognized that
incarceration is a costly and oftentimes avoidable response to certain
violations of parole.
This realization is by no means a criticism of the individual
parole officer who continues to face the challenging decision of how to
respond when a parolee violates a condition of supervision. Without
the availability of realistic and effective alternatives, a parole officer
has the option to do nothing or to commence a revocation proceeding
for the purpose of returning a parolee to prison. Arguably, in most
cases, neither option is satisfactory. Imposing no sanction at all would
send a message that violating a condition of parole is acceptable. On
the other hand, sending a parolee back to prison for a rule violation
generally provides little or no benefit to public safety while being
extremely costly to the State. Moreover, using incarceration to
respond to a technical violation can have a detrimental effect on any
successful re-integration made to date, including disrupting
employment, housing and family re-unification.
A. Comprehensive System of Graduated Responses
During the course of its review, the Commission heard
presentations from experts from Pennsylvania and Georgia, two states
that currently utilize a comprehensive system of graduated responses.
These experts described how their states, as well as others, have used a
system of graduated responses to reduce the number of parolees who
are returned to prison for technical violations, as well as to promote
statewide consistency in responding to similar violations. While many
parole officers do use a number of alternative sanctions in New York,
the process for using graduated responses is not set forth in written
procedures and guidelines and implementation varies throughout the
State. Moreover, there is little guidance, other than a parole officer’s
individual judgment, as to when and under what circumstances a
graduated response should be utilized and, in such cases, which
response is appropriate. In order to improve uniformity throughout the
State in responding to rule violations, the Commission recommends
that Parole develop and implement a comprehensive formal scheme of
graduated responses for use statewide.

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The types of responses that are made available to parole
officers vary among states that utilize a system of graduated responses.
However, certain sanctions continue to appear as hallmarks of any
comprehensive approach, including the imposition of a curfew, or a
stricter curfew if one is already in place; increased reporting by the
parolee; use of Global Positioning Systems or electronic monitoring;
restrictions on travel and home confinement; as well as ordering the
parolee to attend substance abuse treatment or increasing the intensity
of existing treatment. Such an array of options will enable parole
officers to assign a proportional response to errant behavior when
incarceration is not appropriate, thus responding to the violation
without reversing any re-entry gains made to date.
In addition to the use of sanctions for non-compliance with
conditions of supervision, experts in the field of correctional
supervision advocate for the use of positive rewards as a way of
reinforcing good behavior and improving re-entry success. When a
parole officer communicates to an offender that extended compliance
with the rules of parole may result in a relaxed curfew or increased
travel privileges, it creates a positive goal with a reward that the
parolee can work toward as opposed to simply complying to avoid reincarceration.378 For these reasons, the Commission believes that
parole officers should be equipped with various options to quickly and
proportionately address violative behavior, as well as to positively
reinforce compliance.379
Nearly half of the parole agencies throughout the country have
developed some form of response “grid” as a way of consistently
administering a formalized graduated sanctions policy. A grid
provides a list of options available to a parole officer, and is designed
to be proportional to the violative behavior in an effort to guide the
officer’s response.380 A recent study by Ohio’s Adult Paroling
Authority found that its progressive sanctions grid was an important
378

Rewards may also be given for success in drug treatment or maintaining full-time
employment.
379
See generally, Travis, Jeremy, supra, note 372; Burke, Peggy, supra, note 366;
Petersilia, Joan, supra, note 366.
380
Unpublished research by the Vera Institute of Justice, 2008.

146

and cost-effective tool for use in making revocation and incarceration
decisions.381 An effective grid typically takes into account the risks
and needs of the offender; the past behavior of the individual while
under supervision; the length of time on supervision; and the parole
officer’s individual judgment. It is important to emphasize that any
such grid should operate to guide, rather than replace, the judgment of
a well-trained and experienced parole officer. As such, the
Commission recommends that an appropriate and effective behaviorresponse grid be designed in a way that preserves a parole officer’s
discretion to the greatest extent possible.
B. Graduated Responses Should Include the Use of a
Risk/Needs Instrument
Building upon its earlier review of the benefits of evidencebased practices, the Commission recommends that any system of
graduated responses incorporate the use of a risk and needs instrument.
Indeed, all parolees do not pose the same risk to public safety, nor do
they have the same criminogenic needs. Risk and needs assessments
provide reliable means for differentiating high-risk offenders from
low-risk offenders. An appropriate response to a parole violation
should not depend solely on which condition was violated, but also
should take into consideration the individual risk presented by a
parolee. As an example, in Washington State, parole officers are
asked to reserve incarceration for high and moderate risk offenders.382
Utilizing risk to facilitate decision-making will help parole officers
determine which offenders should be returned to incarceration for a
rule violation and which offenders are more appropriately punished
using a community-based sanction. Considering offender risk in all
decision making will improve public safety while efficiently utilizing
limited resources.

381

Martine, B. and Van Dine, S. Examining the Impact of Ohio’s Progressive
Sanctioning Grid (Ohio Department of Rehabilitation and Correction, August 2008).
382
Offender Accountability Act, supra, note 360.

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C. Expeditious Response to Rule Violations
Another benefit that a system of graduated responses provides
is the ability to respond quickly to violations of parole conditions.
Currently, when a parole officer decides to violate a parolee, the
parolee is immediately detained. However, the officer must then wait
for a hearing, which often takes place at a time far removed from the
date of the errant behavior. Such a system is an ineffective approach
to correcting violative behavior and re-directing the parolee toward
compliance.
Research has shown that swift and certain responses to
violations of community supervision are most effective. When
sanctions are immediate, the violation has an enhanced deterrent effect
on future violations. For example, in relation to drug violations, a
group of methamphetamine-using probationers in Hawaii with records
of poor compliance were put on a drug-testing and swift-sanctions
program. Overall, the rate of missed and positive drug tests went
down by more than 80%. For the 685 probationers who were in the
program for at least three months, the missed appointment rate fell
from 13.3% to 2.6%, and positive drug tests fell from 49.3% to 6.5%.
There is also evidence that providing the supervising officer
with the authority to issue swift responses increases accountability and
effectiveness because the officer knows that certain immediate actions
can be taken, thus decreasing the likelihood that violations will be
accumulated before a warrant is ultimately issued. The availability of
a system of graduated responses is not, in and of itself, going to
improve outcomes; appropriate community-based responses must be
implemented swiftly and competently in order for any nonincarceratory sanction to be effective. Accordingly, the Commission
recommends that once a parole officer determines that a violation has
occurred, action be taken as quickly as possible.
D. Conditions of Parole Should Be Correlated With Public
Safety
Prior to release by the Parole Board or release to post-release
supervision, an inmate receives certain “general conditions” of parole,
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which are rules that must be followed while under supervision. These
conditions are standard for every offender supervised by Parole and
include limitations such as not leaving the State without permission
and not fraternizing with anyone with a criminal record.383 In addition
to the “general conditions,” there are also “special conditions” of
supervision which may be imposed by a parole officer or the Parole
Board based upon the parolee’s specific situation. The special
conditions may include rules such as complying with a curfew or not
using alcohol. Parolees who violate any general or special conditions
may face disciplinary action, including re-incarceration.
It is not uncommon for many parolees to have as many as 20 or
more conditions of supervision. Arguably, by decreasing the sheer
number of conditions under which a parolee is supervised, it
immediately decreases the likelihood that the offender will be returned
to prison for a technical violation. However, because parole
conditions are meant to enhance public safety, no condition should be
eliminated if the condition has been correlated with an increase in
public safety. Also, to avoid the unnecessary imposition of additional
conditions, the Commission believes that any special conditions
imposed should be based on the risks and needs of the individual
parolee. This will create greater consistency and effectiveness with
respect to the use of special conditions.
It is also important to re-evaluate whether certain general or
special conditions are unrealistic. As one example, the prohibition
against having contact with other formerly incarcerated persons may
be impractical for certain parolees who are returning to low-income,
urban neighborhoods, or for those offenders who have a formerly
incarcerated family member. Revising certain conditions may be an
important measure in facilitating positive outcomes by improving a
parolee’s chances for a successful re-entry. Therefore, the
Commission recommends that Parole regularly review its conditions
by correlating each condition with its potential impact on public safety
and eliminating those that are deemed unnecessary.

383

There are thirteen general conditions of parole in New York State (see, Appendix
H, infra).

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Similarly, parole revocation guidelines should be modified so
that they incorporate an individual’s level of risk. Currently, when an
individual’s parole is revoked, an Administrative Law Judge (“ALJ”)
follows response guidelines that are based primarily on the crime for
which the offender is under supervision. While criminal history is
certainly one component of an individual’s risk of re-offending, it is
not the only factor. Use of a risk assessment will enable ALJs to tailor
revocation decisions to the risks and needs of the offender in order to
judiciously utilize re-incarceration while responding to low-risk
offenders who violate technical conditions of parole with a
community-based sanction.
Together these recommendations provide the framework for
the establishment and implementation of a comprehensive system of
graduated responses to assist parole officers in responding to parolee
conduct. If implemented correctly, this system can facilitate
successful re-integration by providing a methodical approach that
promotes uniformity, consistency and swift responses to both positive
and negative behavior, taking into account the individual risk and
needs of an offender.
III.

REDUCING RECIDIVISM THROUGH EFFECTIVE REENTRY

Each year approximately 26,000 offenders are released from
prison to communities throughout New York State. As noted, more
than one in three offenders are returned to prison within three years of
release. The Commission recognizes that successful offender re-entry
is a significant public safety initiative because it results in reduced
crime and fewer victims. In its Preliminary Report, the Commission
recommended a number of ways to improve the effective transition of
formerly incarcerated persons back to the community.384 A number of
these recommendations have been implemented, while others are the
subject of proposed legislation. Also, in the interim, Congress passed
the Second Chance Act385 to promote successful re-entry on a national
level, and New York State has urged Federal funding for this effort as
384
385

Preliminary Report, at 47-52.
H.R. 1593 (110th Congress, 2007-2008).

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one way of expanding ongoing re-entry efforts in light of the State’s
severe financial crisis.
A.

Transition from Prison to Community Initiative

New York is one of eight states participating in a technical
assistance program sponsored by the National Institute of Corrections
(“NIC”), known as the Transition from Prison to Community Initiative
(“TPCI”). The TPCI model is based on emerging research on effective
interventions with offenders to reduce recidivism. It stresses
collaboration among criminal justice and human services agencies, as
well as the formation of strategic partnerships with local governments
and not-for-profit agencies to integrate and coordinate re-entry policies
and programs. In addition to the adoption of evidence-based practices,
information sharing across agencies helps to facilitate comprehensive
case management. A basic premise of the TPCI model is that funding
should be targeted at high-risk offenders and programming should
seek to alter the criminogenic thinking and behaviors of offenders.
Through this initiative, the NIC and the Center for Effective Public
Policy have brought experts from other states to share best practices
with New York’s re-entry partners.
B.

Interagency Re-entry Task Force

New York’s system-wide re-entry efforts are coordinated by
the New York State Interagency Re-entry Task Force.386 The Task
Force consists of commissioners and directors from State agencies
whose vision is to create “a safer New York resulting from the
successful transition of offenders from prison to living law-abiding
and productive lives in their communities.” 387 To accomplish its
386

The Task Force meets quarterly and meetings are webcast and available at
http://criminaljustice.state.ny.us/.
387
The members of the Task Force are the Division of Criminal Justice Services;
Department of Correctional Services; Division of Parole; Board of Parole; Division
of Probation and Correctional Alternatives; New York City Department of
Corrections; Office of Mental Health; Office of Alcoholism and Substance Abuse
Services; Department of Labor; Division of Housing and Community Renewal;
Division of the Budget; Department of Health; Office of Temporary and Disability
Assistance; Office of Mental Retardation and Developmental Disabilities; Office of

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vision, the Task Force developed four working groups to implement
re-entry programs: risk/needs assessment working group; transitional
accountability planning group; implementation group for Medicaid
suspension legislation;388 and a group dedicated to removing barriers
to successful re-entry.
C.

County Re-entry Task Forces

DCJS coordinates and supports County Re-entry Task Forces
(CRTFs) throughout the State to promote re-entry efforts consistent
with national best practices and the TPCI model. The CRTFs seek to
coordinate and strengthen community response by: (1) providing
coordinated local services to address the needs of high-risk offenders;
(2) collaborating with State criminal justice and human service
agencies to develop transition plans for high-risk offenders; and (3)
expanding the capacity of local jurisdictions to provide services.
Currently, there are CRTFs in 13 of the 17 high-crime Operation
IMPACT jurisdictions in New York.389 Each task force is staffed with
a re-entry coordinator and a CRTF chair. Since the establishment of
the CRTFs, additional funding has been used to help support not-forprofit agencies expand re-entry programs and services in the
participating counties.
D.

New York State Re-entry Advisory Council

New York is home to many of the country’s leading re-entry
programs which provide transitional housing, vocational and
educational programs, substance abuse treatment, mentoring, and
Children and Family Services; Department of State; Division of Veterans Affairs;
and Department of Education.
388
In its Preliminary Report, the Commission urged DOCS and Parole to continue to
work toward achieving a pre-release determination of benefits, including Medicaid
(Preliminary Report, at 50-52). This recommendation was based, in large part, on
the recent legislative change that merely suspended Medicaid benefits for
incarcerated individuals and provided for the immediate reinstatement of such
benefits upon release (Laws of 2007, ch. 355).
389
The County Re-entry Task Forces are located in Albany, Dutchess, Erie, Monroe,
Nassau, Niagara, Oneida, Onondaga, Orange, Rensselaer, Rockland, Suffolk and
Westchester Counties. DCJS also provides funding for the Upper-Manhattan Reentry Task Force.

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parenting and family reintegration programs to formerly incarcerated
persons. Some of these programs, such as the Fortune Society and the
Osborne Society, are run primarily by formerly incarcerated persons.
Others, like the Doe Fund and the Center for Employment
Opportunities, provide subsidized employment and job skills training.
Brooklyn’s ComALERT Program is the first re-entry program in the
country operated by a prosecutor’s office.390 In order to leverage the
services provided by these not-for-profit re-entry programs, many of
which have years of experience working with the returning offender
population, New York established the Service Provider Advisory
Council (SPAC) in 2008. SPAC is charged with reviewing New
York’s pilot re-entry programs and advising the State on re-entry
policy.391
E.

Re-entry Units

As part of New York’s statewide plan, the transition process
begins at DOCS’ reception. However, the “nuts and bolts” of re-entry
planning begins in the last three months of incarceration when an
inmate enters the final phase of the State’s transitional services
program. This phase of transitional planning includes programming
related to employment and job readiness, family re-integration and
community preparedness. One of the difficulties that DOCS and
Parole have experienced in implementing transitional planning is the
390

The Community and Law Enforcement Resources Together program
(ComALERT) was created in 1999 by District Attorney Charles T. Hynes to assist
formerly incarcerated individuals make a successful transition from prison to the
community by providing drug treatment, mental health treatment and counseling,
GEDs, housing and employment services.
391
Those participating in the Service Provider Advisory Council (SPAC) include:
Prisoners Are People Too, Inc.; Group Ministries, Inc.; Prison Families of New
York, Inc.; Project Family Connect of CASA; The Osborne Association; The
Thruway Alliance; Roots, Inc.; Women’s Prison Association; Legal Action Center;
The Fortune Society; Student Minister, The Nation of Islam Prison Reform Ministry;
JJ College of Criminal Justice, CUNY; Prison Fellowship; CUNY Graduate Center;
Medgar Evers College; The College Initiative; The Bronx Defenders; Kings Co.
DA’s Office – ComALERT; Center for Employment Opportunities; The Doe Fund,
Inc.; New York Therapeutic Communities, Inc.; Center for Community Alternatives;
NADAP, Inc.; and St. Joseph’s Rehabilitation Center.

153

often significant distance between where transitioning inmates are
incarcerated and the communities to which they are returning.
Accordingly, New York has introduced the concept of
transitional facilities to improve re-entry outcomes. DOCS and Parole
are currently piloting the Orleans Reentry Unit (“ORU”), which is a
re-entry facility for offenders returning to Erie and Monroe Counties.
While in the ORU, offenders have an opportunity to work with DOCS,
Parole, and OASAS counselors, as well as community agencies, to
design a re-entry plan addressing individual needs upon release.
Individualized re-entry plans and skill sets provided at the ORU are
designed to respond to each inmate’s most pressing post-release needs
which, in turn, will increase the likelihood that offenders will make a
successful transition into the community. The ORU utilizes learning
modules dedicated to practicing behavioral responses surrounding
drug treatment, employment, and family reunification. Individualized
progress is monitored and shared with Parole and community partners,
and a number of benchmarks are established to determine whether
goals have been met. Plans are underway to develop transitional
programs similar to the ORU at the Hudson Correctional Facility for
offenders returning to Rensselaer and Albany Counties; a transitional
facility for women is being planned for the Bayview facility in
Manhattan.
F.

Edgecombe Pilot Program

The Edgecombe Parole Violator Facility (“Edgecombe”)
opened in 2008 and is operated jointly by Parole, DOCS and OASAS
as a 30-day intensive inpatient drug treatment program for New York
City-based parolees facing parole violations for drug use or failure to
attend drug treatment. Edgecombe serves as an alternative to State
prison, with an emphasis on re-entry services, particularly drug
treatment with aftercare services. The program is in its early stages
and the program’s design is being carefully developed and monitored
by participating agencies and DCJS.

154

IV.

RECOMMENDATIONS FOR IMPROVED RE-ENTRY
SUCCESS

New York State has made tremendous strides in re-entry over
the past several years. The Commission strongly believes that more
can be done to further reduce recidivism, including expanding
educational and vocational training in New York State prisons. Such
programs equip inmates with new skills and information to help them
sustain employment upon release from prison. The limited research
that exists on this topic shows that participation in vocational and
educational programming in prison is associated with a 5% to 10%
reduction in recidivism.392 Moreover, the Commission believes that
DOCS should be commended for its commitment ensuring that every
inmate entering its facilities without a general equivalency diploma
(“GED”) or its equivalent either works toward, or receives, a GED
prior to release. The Commission believes, however, that DOCS
should provide more educational opportunities for those who enter
with a GED or high school diploma. While obtaining a GED will
realize modest reductions in recidivism, post-secondary educational
programs have been shown to reduce recidivism by approximately
40%.393
The Commission recognizes that two of the key elements to
successful re-entry are an offender’s ability to secure housing and
employment. The stigma of a criminal conviction, along with an
employer’s legitimate need to carefully screen applicants, often means
that ex-offenders have difficulty obtaining lawful employment. While
some barriers may be necessary to ensure public safety, others may
not, and should be eliminated to pave the way toward gaining lawful
employment. Additionally, those barriers to securing adequate
housing that are not necessary to ensure public safety also should be
removed because of the significant link between adequate housing and
successful re-entry.

392

New York State Commission on Sentencing Reform, Working Paper: “What
Works” in Correctional Programming (Albany, NY 2007).
393
Id.

155

The Commission strongly urges policymakers to continue to
expand upon these existing re-entry efforts, notwithstanding the
State’s daunting fiscal challenges. Doing so will assuredly result in
fewer victims, lower recidivism rates, and the continuation of New
York’s role as a national leader in crime reduction efforts.

156

PART FIVE
EXPANDING SUCCESSFUL DEPARTMENT
OF CORRECTIONAL SERVICES’
PROGRAMS

157

Part Five
Expanding Successful Department of Correctional
Services’ Programs
Prison is an expensive resource. In 2008, the average
estimated cost of confining an inmate in State prison in New York,
including the costs related to fringe benefits and capital construction,
is $50,000 per year. New York State taxpayers benefit when prison is
reserved for offenders who pose the greatest risk to public safety.
Successful programs that shorten prison terms, while simultaneously
increasing the ability of offenders to succeed after release, should be
expanded and replicated when practicable. Accordingly, the
Commission is recommending that the Legislature expand two such
programs: the Shock Incarceration Program and the Merit Time
Program.394
I.

EXPANDED ELIGIBILITY FOR SHOCK
INCARCERATION

The Legislature created the Shock Incarceration Program in
1987 and directed DOCS to develop a rigorous scheme of physical
activity, intensive regimentation, discipline, and drug rehabilitation at
special facilities for young, non-violent felony offenders. In response,
DOCS created a six-month intensive program emphasizing discipline,
academic education, substance abuse treatment, and group and
individual counseling, all within a military-like structure that has
become the largest “boot-camp” style program for sentenced felony
offenders in the nation.
Currently, in order to be eligible for Shock participation,
inmates must be first-time commitments under the age of 40 who are
sentenced to a term of imprisonment for which the inmate will become
eligible for release on parole within three years. 395 Inmates who have
394

Expansion of these programs was advanced in an Article VII bill as part of the
2009-2010 Executive Budget.
395
The age limitation has been increased several times since inception of the
program. Originally, Shock was available only to otherwise eligible inmates under

158

a prior felony conviction for which they received a prison sentence are
not eligible for Shock; also, certain crimes of conviction, including all
violent offenses, currently preclude eligibility.396 In addition to the
statutory criteria, the law requires DOCS to establish criteria that
further restrict program participation. These suitability criteria impose
restrictions based on the medical, mental health, security classification
or criminal histories of otherwise legally eligible inmates. For
example, those inmates who have outstanding warrants, disciplinary
records or an alien status may create a security risk, which would
preclude them from Shock participation. Similarly, information in an
inmate’s pre-sentence report, or other official documentation, may lead
to disapproval.
The Shock Program has developed into a considerable
success.397 The National Institute of Justice published a report in 2003
that reflected a decade of research on correctional boot camps
operating throughout the country and concluded that, unlike New
York’s Shock Program, many programs failed to meet the goals of
reducing bed space demand and lowering recidivism. DOCS’ Shock
program incorporates all of the identified critical components for a
successful boot-camp style program, including: (1) careful selection of
participants by correctional officials after entry into prison; (2)
commitment to high quality programs and services; (3) longer program
24 years of age. In 1988, eligibility was expanded to those under 26 years of age,
and a year later was raised to those under 30. In 1992, the program was again
expanded to allow those under the age of 35 to apply for participation and, most
recently, in 1999, the Legislature expanded eligibility to include inmates who are
younger than 40 when they enter DOCS’ reception.
396
Offenses that are excluded from Shock eligibility include: a violent felony
offense; an A-I felony offense; manslaughter in the second degree; vehicular
manslaughter in the second degree; vehicular manslaughter in the first degree;
criminally negligent homicide; rape in the second degree; rape in the third degree;
criminal sexual act in the second degree; criminal sexual act in the third degree;
attempted sexual abuse in the first degree; attempted rape in the second degree;
attempted criminal sexual act in the second degree; any escape or absconding offense
defined in Article 205 of the Penal Law; and a Class B second felony drug offense
with a determine sentence of 3½ years or more (see, Correction Law §865[1]).
397
Various members of the Commission went on a site visit to the Summit Shock
Incarceration Facility in Schoharie County in order to get a firsthand understanding
and appreciation for how Shock works. Members were impressed with the militarylike structure of the program and the demeanor of inmates.

159

duration; and (4) intensified post-release supervision. These
components, coupled with the incentive for an early release, create a
prison environment that is conducive to positive change.398
A. Recidivism Rates for Shock Participants
Between July 1987 and September 2006, a total of 94,552 nonviolent inmates were screened for participation in Shock. From this
pool of candidates, a total of 51,522 inmates were sent to Shock
facilities and 35,102 graduated and were granted early release to
parole supervision.399
Research by DOCS found that Shock graduates are more likely
than a comparison group of parolees to succeed on parole supervision
despite remaining at risk for a longer period of time. A total of 32,492
Shock graduates were compared to 43,191 “eligible but not sent
offenders” (“EBNS”). After one year, 92% of the Shock group
remained in the community, compared to 84% of EBNS offenders.
After two years, the Shock success rate (78%) was significantly higher
than the EBNS group (68%). After three years, Shock graduates had a
success rate of 69% compared to 60% for the EBNS offenders.400
B. Fiscal Analysis of the Shock Program
The Shock program is cost effective. On average, Shock
graduates are released approximately one year prior to completion of
their court-determined minimum period of incarceration. The 35,102
Shock releases through September 2006 would have spent an
estimated average of 570 days in prison from the date they were
admitted to DOCS until their parole eligibility date if the program did
not exist. These releasees actually served an average of 225 days in
DOCS’ custody. Thus, for the average Shock graduate, there is a
saving of 345 days -- or 11.3 months – which represents the period
398

Fewer misbehavior reports have been written at Shock facilities compared to
minimum and medium security facilities.
399
2007 Shock Incarceration Report (Albany, NY: New York State Department of
Correctional Services [2007]).
400
Id.

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from the actual date of release from Shock to what would have been
the earliest eligible release date. For every 100 Shock releases, it is
estimated that DOCS saves $3.01 million, which it otherwise would
have spent for the care and custody of these inmates. Thus, for the
35,102 releases from the Shock program, there was an estimated
savings of $1.06 billion.401
C. Recommendation to Expand Participation in the Shock
Program
With more than 20 years experience operating and refining the
Shock Program, DOCS has a solid record of successfully screening out
unsuitable candidates. Because of the success of the program, the
Legislature continues to extend the maximum age of eligibility for the
Shock program. Each time the Legislature voted to extend the age
eligibility criteria, the program continued to succeed with a greater
number of offenders able to benefit from participating in the program.
As such, the Commission recommends that the age limitation again be
extended to individuals who are 49 years of age or younger. In the
case of older inmates, DOCS’ existing medical criteria should ensure
that inmates approved for participation are physically capable of
successfully completing the program.
The Commission also recommends allowing otherwise eligible
inmates to be recruited from general confinement facilities when, in
the case of an indeterminate sentence, they become eligible for release
on parole within three years; or in the case of a determinate sentence,
they become eligible for conditional release within three years.402
Under current law, an inmate must be within the three-year window
when received at a DOCS’ reception center. For example, an inmate
with a 4-to-12 year indeterminate sentence would not be eligible at
reception, and could not thereafter become eligible. However, if this
recommendation is adopted, such an inmate would become eligible for
Shock after spending one year in general confinement.

401

These savings do not account for the cost of housing inmates who started Shock
but did not complete the program.
402
One member did not support this recommendation.

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The Commission believes that allowing inmates to become
eligible for Shock after they have served a portion of their sentence in
general confinement will not undermine the fundamental tenets of the
program or negatively affect its positive outcomes. At the same time,
it will allow more inmates to benefit from the discipline and effective
programs that Shock offers.
II.

THE MERIT TIME PROGRAM

In its Preliminary Report, the Commission began to examine
the concept of expansion of the merit time program within DOCS.403
Merit time provides an opportunity for an inmate to earn time off of a
sentence for engaging in certain beneficial programming that helps
prepare an inmate for successful re-entry into the community.404 Merit
time is separate and distinct from good time, pursuant to which an
inmate can be released prior to his or her maximum expiration date if
the inmate’s institutional record reflects positive behavior and a
willingness to participate in assigned programs. The Commission
carefully considered whether DOCS’ merit time program, which
currently is not available to inmates serving a determinate sentence for
a violent felony offense, should be expanded to allow certain violent
offenders, who demonstrate a likelihood of rehabilitation in prison and
a willingness to obey institutional rules, to participate.
The Commission heard several presentations and reviewed a
significant amount of data on the DOCS’ merit time program. It was
noted that nearly every correctional administrator in the country would
attest to the fact that maintaining safe correctional institutions is
directly related to the balanced ability to punish negative behavior and
poor program participation and reward positive behavior and good
program participation. A correctional system that disproportionately
relies on one approach to the detriment of the other will not be nearly
as safe or successful as a system that relies on a balanced approach.

403
404

Preliminary Report, at 31-32.
See, Correction Law §803.

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A.

The Existing Program

Under the current merit time system, qualified, non-violent
offenders serving indeterminate sentences can earn a reduction of onesixth from their minimum sentences. Class A-I drug offenders serving
an indeterminate sentence, however, can earn a one-third reduction
from the minimum period. In a similar fashion, all drug offenders
serving determinate sentences can earn a one-seventh merit reduction
from the fixed term. Current law does not provide a means by which
offenders serving a determinate or indeterminate sentence for violent
felony offenses, or offenders serving indeterminate sentences for nondrug Class A-I felony offenses, can earn any type of merit reduction
from their sentences. As a general rule, many of these offenders tend
to receive much longer sentences than the typical non-violent inmates
who currently qualify for merit time. However, there is no
institutional program to reward exceptional programming and efforts
by these inmates.
Undeniably, many violent felony offenders have committed
egregious criminal acts that would argue against eligibility for a merit
time release. By the same token, DOCS’ experts point out that a
number of these offenders have demonstrated, over a span of many
years, a deep sense of remorse, recognition of the harm they have
caused, a strong determination to reform their lives and a desire to
serve the common good by becoming law-abiding citizens. In some
instances, these same offenders have made themselves available in
peer counseling programs at DOCS to counsel young, at-risk
individuals from making the same mistakes they made in their own
lives.
As articulated in the seminal treatise on re-entry authored by
the President of John Jay College of Criminal Justice, Dr. Jeremy
Travis, regardless of the nature of the offense, and with few
exceptions, “they all come back [to the community].”405 On balance,
the Commission finds that affording a merit time incentive to
incarcerated offenders with a past history of violence for participation
in programs likely to lead to a change in criminogenic attitudes and
405

Travis, Jeremy, supra, note 372.

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better prepare them to lead law-abiding lives after release is a positive
public safety measure that should be implemented in New York.
Furthermore, the merit criteria requiring that such offenders also
refrain from any serious disciplinary infractions will help to foster a
safer correctional environment for the more than 31,000 men and
women who work within DOCS’ facilities, as well as the undercustody population of more than 60,000 inmates.
B.

Expansion of the Merit Program

The Commission believes that in order to achieve the desired
public safety outcome, the requirements for an expanded merit time
program for offenders with a history of violent behavior must be
rigorous and designed to promote life-changing behaviors. In order
for an inmate to be eligible for the contemplated benefit, the
Commission recommends that the program criteria should be
significantly more demanding than the present merit time criteria for
non-violent offenders. Thus, only offenders participating in
exceptional programming aimed at changing criminogenic behaviors
would be eligible for merit time. This programming would include:
two or more years of college,406 a masters of professional studies
degree,407 service as an inmate program associate for no less than two
years,408 a certification from the State Department of Labor for

406

A limited number of privately-funded or federally-funded college programs are
available at 17 different correctional facilities within DOCS. To be eligible, an
inmate must have a high school diploma or equivalency; other requirements vary
depending on the on-campus policies of the college. In 2008, approximately 1,150
inmates per semester participated in a college program.
407
This is a one-year program of graduate study delivered by the New York
Theological Seminary at Sing Sing Correctional Facility. In 2007, 27 degrees were
awarded.
408
An Inmate Program Association (IPA) is a five-day-per-week paid assignment
which involves providing assistance to Program Services’ staff in the direct
provision of services to inmates. To qualify, an inmate must: possess a high school
diploma or the equivalent, successfully complete the training program and be willing
to tutor other inmates. A supervisor of volunteer training selects inmates pursuant to
standards in the IPA Policy and Procedure Manual in accordance with an inmate’s
interest, knowledge and skills. IPA programs exist at approximately 27 different
correctional facilities.

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successful completion of a job skills or apprenticeship program,409 or
service as an inmate hospice aid for a period of two or more years.410
Like the existing merit time criteria, the Commission recognizes that
maintenance of a positive disciplinary record should continue to be a
requirement.
The Commission recommends that a merit time incentive of six
months be afforded to offenders who participate in such beneficial
programs. This will not substantially alter any sentence or minimize
the seriousness of a violent felony offense, but will recognize the vital
importance of effective programming for these offenders. Given the
benefits of such a program, the Commission recommends that most,
but not all, offenders who are currently ineligible for merit time be
included. This includes all non-drug Class A-I felony offenders, with
the exception of anyone convicted of murder in the first degree or an
attempt or conspiracy to commit such offense.411 It also would include
409

This program combines on-the-job experience with classroom instruction to
ensure that every inmate who becomes a registered apprentice receives the skill and
knowledge necessary to be an efficient journeyman; it leads to a Department of
Labor certification in a particular trade or craft. The objective is to provide qualified
inmates with trade skills suitable for obtaining gainful employment upon release.
Vocational education, in conjunction with facility maintenance assignments,
Division of Industries’ experiences, and other DOCS’ programs, enhances the
abilities and aptitudes of qualified inmates. An apprenticeship program requires
between two to five years of intensive full-time training for completion; they are
offered in auto mechanics, computer repair, horticulture, printing, building
maintenance, floor covering, electrical trades, small engine repair, cabinet making,
drafting, food services, plumbing and welding.
410
This program is designed to provide hospice/palliative care to inmates with a
terminal diagnosis who are not expected to live beyond six months in order to ensure
that no inmate ever dies alone. The program strives to address a terminally ill
patient’s comfort, psychosocial and spiritual needs by utilizing selected inmates to
provide spiritual, emotional and supportive care to other inmates. Inmates are
supervised by Security, Program Services and Health Services’ staff.
411
Because all Class A-I felony offenders are serving maximum life terms and
cannot be conditionally released, the merit time benefit would be applied against the
minimum period. For example, an individual with a 15-to-life sentence who
qualifies would be able to be released to parole by the Board of Parole after serving
14½ years. For all other eligible offenders, the benefit would be applied against the
conditional release period. For example, in the case of a person serving an
indeterminate sentence of 7 to 21 years, if eligible, the offender could be merit
conditionally released after 13½ years, which is six months sooner than the regular

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any offender convicted of a violent felony offense defined in Penal
Law §70.02, with the exception of those offenses which are sex
offenses defined in Penal Law Article 130. Finally, in addition to
covering those homicide offenses which are defined as violent felony
offenses, it would apply to all other homicide offenses.412
The Commission believes that the creation of a limited, but
meaningful, merit time program for the State’s highest risk offenders
will significantly enhance institutional safety in New York’s prisons
and improve the chances that eligible offenders will live as lawabiding citizens upon release to the community.
III.

WILLARD DRUG TREATMENT

The Willard Drug Treatment Campus in Seneca County
(“Willard”) is operated by DOCS in collaboration with Parole and
OASAS.413 It was created in 1995 as a sentencing option for low-level
second felony drug and property offenders and as a revocation option
for parole rule violators. This unique DOCS-operated, OASAScertified, co-ed, 916-bed intensive residential drug treatment center, is
based on the Shock Incarceration model. It provides courts with the
option of sentencing certain offenders to Willard for 90 days of drug
treatment, followed by parole supervision in the community for the
balance of the indeterminate or determinate term.414 In a limited
number of cases, offenders sentenced to Willard are placed in the

conditional release date. Similarly, in the case of an eligible offender serving a
determinate sentence of 21 years, such offender could be merit conditionally released
after 17½ years--six months earlier than the conventional conditional release date.
412
The recidivism rate for persons convicted of murder is extremely low. The most
recent three-year follow-up study conducted by DOCS showed that 69 offenders
convicted of murder were released in 2004. Of these, none were returned to prison
for a new crime within three years of release.
413
Willard operates as a 90-day intensive drug treatment program that focuses on
recovery and decision-making skills in the context of a therapeutic community and is
usually followed by outpatient treatment in the community.
414
Pursuant to Penal Law §70.06(7) and CPL 410.91, a “Willard” sentence is
actually a determinate or indeterminate sentence that, at the court’s discretion, is
executed as a “sentence of parole supervision” commencing with a 90-day placement
at Willard.

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“extended Willard” program in which a three-month Willard stay is
followed by six months of residential treatment in the community.
Courts currently have the authority to sentence certain second
felony offenders convicted of either Class E felony drug offenses or
enumerated non-violent Class E felony property offenses to Willard
without prosecutorial approval.415 In addition, courts, with
prosecutorial approval, can sentence second felony offenders
convicted of either Class D felony drug offenses or enumerated nonviolent Class D felony property offenses to Willard. Because most
felony drug arrests are for higher level offenses (e.g., Class B felony
drug offenses), prosecutors retain significant control over which
second felony offenders are sentenced to Willard. Fewer than 500
offenders enter Willard annually as direct sentences; approximately
80% of Willard participants are parole revocation admissions.
Some of the reluctance of prosecutors and courts to use Willard
appears to stem from the short length of program treatment. Research
indicates that treatment of less than three months in length is not
effective, and at least nine months of treatment is usually required to
significantly control substance dependency and associated
criminality.416 Many research studies have shown that prison-based
drug treatment can effectively reduce offender recidivism when
coupled with post-release treatment and relapse prevention services in
the community.417
DOCS’ research on Willard graduates who completed the
program in 2001 and 2002 reveals that graduates who were admitted to
the Willard program as parole violators returned to DOCS within three
415

To be eligible, an offender cannot have previously been convicted of a violent
felony offense or a Class A or B felony offense and cannot be subject to an
undischarged sentence of imprisonment (CPL 410.91[2]).
416
Knight, K. and Farabee, D., Treating Addicted Offenders: A Continuum of
Effective Practices (Civic Research Institute: Kingston, New Jersey 2004); Wexler,
H., Falkin, G. and Lipton, D., Outcome Evaluation of a Prison Therapeutic
Community for Substance Abuse Treatment, 17 Criminal Justice and Behavior 1, at
71-72 (1990).
417
New York State Commission on Sentencing Reform, Working Paper: “What
Works” in Correctional Programming (2007).

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years at a rate of 53%. However, only 11% were commitments for
new crimes, while 43% were parole rule violators. In comparison,
judicially-sentenced offenders who entered the regular Willard
program were returned to DOCS at a rate of 43% within three years
(32% were parole violators and 11% were commitments for new
crimes). Return rates for those in “extended Willard” were similar
(41% over three years), although “extended Willard” returns were less
often associated with new convictions (6%).418
In its Preliminary Report, the Commission recommended that
DOCS and OASAS work together to improve the quality of drug
treatment within DOCS and, in particular, at Willard. Since then,
DOCS and OASAS have collaborated on key recommendations to
improve Willard’s 90-day intensive substance abuse treatment
program provided to parolees and certain parole violators with a
history of alcohol or substance abuse dependence. The Willard
program currently offers weekly evaluations and is followed by a
Division of Parole-designed individualized Continuing Care Plan that
involves intensive parole supervision and continuing treatment with
OASAS-certified day treatment or outpatient providers. Extended
Willard has proven to be an effective alternative to incarceration,
reducing the rate of new felony convictions for those who complete
that program by nearly half.419
DOCS and OASAS have recommended improvements to
Willard to include smaller therapy groups no larger than 15 offenders,
increased one-on-one counseling, updated curricula including a
concentration on re-entry issues during the final 30 days of the
program, new OASAS standards that reflect Willard program
offerings, designation of an OASAS staff member as a liaison with
Willard, and enhanced documentation of progress in treatment. The
Commission fully supports these joint recommendations to improve
Willard.
418

Document prepared by the Office of Program, Planning and Research (New York
State Department of Correctional Services, 2007).
419
Testimony of DOCS’ Commissioner Brian Fischer on the Impact of the
Rockefeller Drug Laws to the Assembly Codes, Judiciary, Correction, Health,
Alcoholism and Drug Abuse, and Social Services Committees (May 8, 2008).

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PART SIX
CRIME VICTIMS AND SENTENCING

169

Part Six
Crime Victims and Sentencing
I.

INTRODUCTION

Executive Order No. 10 requires that the Commission ensure
that appropriate consideration be given to the impact of New York’s
sentencing laws on crime victims, their families and the community. It
is indisputable that with the possible exception of the defendant, no
one has a more direct stake in the just outcome of a criminal case -and the propriety of any sentence imposed -- than the crime victim.
Accordingly, in order to fulfill the mandate required by the Order, the
Commission closely examined the complex web of State statutes and
regulations establishing the rights of crime victims during the criminal
justice process. The Commission focused on those statutes and
regulations giving crime victims in New York the right to be notified
and consulted regarding certain judicial proceedings in the course of
the criminal case; to provide a statement to the court at sentencing in
certain cases (and to the Board of Parole prior to the offender’s
scheduled release); to receive restitution or reparation from the
offender; and to have the court, where appropriate, issue a final order
of protection at the time of conviction. The Commission received
guidance from state and national experts on the rights of crime victims,
as well as recommendations on how these rights in New York might
be strengthened and better enforced.
New York has established a solid statutory foundation in the
area of victim rights, a foundation that recognizes the critical role
played by victims in the criminal justice process and, in particular,
sentencing-related matters. There is, however, a troubling discrepancy
between the many rights granted to crime victims under the law, and
the actual exercise of those rights by victims. In testimony before the
Commission and discussions at Subcommittee and Commission
meetings, it became clear that despite the numerous provisions
scattered throughout the Executive Law, Criminal Procedure Law
(“CPL”) and Penal Law designed to ensure that victims are made fully

170

aware of their rights, far too many crime victims remain uninformed
and, as such, are never afforded a meaningful opportunity to
participate in the criminal justice process. Thus, the Commission finds
that while New York has enacted a number of laws and regulations
intended to give crime victims a meaningful voice in decisions relating
to case disposition (e.g., plea and sentencing) and parole release, and
has enacted a series of statutes intended to timely notify victims of
those rights, many victims in this State still have little or no knowledge
of their basic rights under the law.420 The Commission concludes that
this is due, at least in part, to the sheer complexity of the statutory
scheme governing crime victims’ rights and the absence of any
effective means of enforcing those rights. The Commission further
finds that certain rights, such as the right to seek and collect restitution
or reparation from an offender, and the ability to have a final order of
protection issued upon conviction made available to the appropriate
law enforcement or correctional authorities, might be significantly
advanced through relatively minor amendments to existing law.
Finally, the Commission believes that the existing statutes establishing
the rights of crime victims in the area of sentencing may be unduly
narrow and that expansion of those rights should be considered.
II.

PROPOSALS FOR REFORM
A.

Consolidating Victim Statutes and Enhancing
Training

As noted, part of the problem is the complexity of the State’s
statutory and regulatory scheme for crime victims. To effectively
apply the existing laws governing the rights of crime victims in New
420

See generally, Executive Law Article 23 (Fair Treatment Standards for Crime
Victims); CPL 390.30 (right to submit victim impact statement prior to sentence);
CPL 440.50(1) (right to notice of final case disposition); CPL 380.50(2) and
390.50(2)(b) (right to make statement at time of sentence); CPL 380.50(4), (6) (right
to be notified of defendant’s release or escape from custody and of petition for name
change); CPL 440.50(1) (right to meet with or submit written or recorded victim
impact statement to Board of Parole); CPL 530.12(5) and 530.13(4) (right to have
the court, where appropriate, issue a final order of protection upon conviction); Penal
Law §60.27 and CPL 420.10 (right to seek restitution or reparation); 9 NYCRR Part
6170; 22 NYCRR Part 129.

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York, judges, prosecutors, victims and their advocates must, at a
minimum, be familiar with all of Executive Law Article 23, including
the “fair treatment” standards promulgated pursuant to Executive Law
§§640 and 645, as well as several sections of the CPL and Penal Law
scattered throughout no fewer than six articles of those chapters. In
order to streamline and make more accessible to judges, lawyers and
crime victims the multitude of provisions of New York law governing
the rights of crime victims, the Commission recommends that these
provisions be moved to a single article of law, preferably in the CPL or
Penal Law. In the alternative, the Commission recommends that a
cross-referencing chart (or other similar resource tool) be created and
incorporated into the CPL or Penal Law and be regularly updated so
that crime victims, and the criminal bench and bar, can easily find, in a
single location, a list of all victim-related statutes.
In addition, the Commission recommends that the statutorilyrequired training of prosecutors and judges in the area of victims’
rights be expanded and enhanced to ensure that they are made fully
aware of their obligations with respect to victim notification and the
substantive rights of crime victims.421 Of particular importance are the
obligations that prosecutors and judges have in preserving the
restitution-related rights of crime victims. In addition to expanded
training, restitution “desk-references” should be developed for use by
prosecutors and the judiciary in criminal cases and restitution matters.
B.

Orders of Protection

Victim advocates advised that one of the most serious obstacles
to the enforcement of orders of protection was that in cases in which
an offender is sentenced to State prison or jail and an order of
protection is issued, it was not uncommon for that offender to be
delivered to the appropriate prison or jail facility without a copy of the
order. To promote victim safety and ensure that prison and jail
officials charged with the custody and control of inmates subject to an
order of protection are fully aware of the content of those orders, the
Commission recommended that the law be amended to require that a
copy of an order of protection issued by the court be attached to the
421

See, e.g., Executive Law §§642(5); 647(4).

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commitment order and delivered with that order to the appropriate
correctional facility and that DOCS be required to timely forward a
copy of any order of protection it receives to the Division of Parole.
Notably, in 2008 the Legislature adopted the changes
suggested by the Commission.422 Amendments were made to the
Executive Law, the CPL, the Correction Law, and the Family Court
Act, in relation to establishing a Witness Protection Program, and a
copy of any order of protection or temporary order of protection must
now accompany an offender to State prison and local jail. In addition,
where the individual is under probation or parole supervision, the
supervising entity also must receive a copy of such order.
The Legislature also enhanced statutory protections afforded to
victims by expanding the definition of “members of the same family or
household,” for purposes of the issuance of orders of protection and
temporary orders of protection, as well as the concurrent jurisdiction
of family courts and criminal courts, to former spouses whether or not
living together and unrelated persons who continually or at regular
intervals reside in the same household or have done so in the past, and
to persons who are or have been in a dating or intimate relationship
whether or not they have ever lived together.423
C.

Payment of Restitution by Credit Card

The Commission also recommends that a defendant ordered to
pay restitution or reparation to a crime victim be able to satisfy that
obligation directly with the court by use of a credit card.424 This
would simplify and expedite the collection of restitution by crime
victims in those cases. Specifically, the Commission recommends that
Judiciary Law §212 and CPL 420.05 and 420.10 be amended to
authorize direct payment to the court by credit card of restitution or
422

These changes were adopted in the 2008-2009 State Budget (Laws of 2008, ch.
56, Part D).
423
Laws of 2008, ch. 326.
424
This proposal appears in the 2007 Report of the Chief Administrative Judge’s
Advisory Committee on Criminal Law and Procedure. During the 2007-2008
Legislative Session, CVB Departmental Bill #8 was introduced in the New York
State Senate (S. 4114). It passed the Senate in 2007 and 2008.

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reparation imposed as part of a sentence in a criminal case.425 In light
of concerns that this proposed change in law could, at least in some
cases, have significant adverse financial consequences for the families
of certain offenders, the Commission further recommends that the
Legislature consider imposing a reasonable “cap” on the amount of
restitution that could be paid in a given case from a single credit card
account.
D.

Restitution Orders for Juvenile Delinquents Placed
with a Family Member

In 2008, a Clinton County Family Court judge identified a
“statutory void” in Family Court Act §353.6(2), which precludes a
court from ordering that a juvenile delinquent pay restitution when
placed with a relative; that is, a court may order restitution only when
a juvenile delinquent is placed with an agency.426 In order to preserve
the right of restitution to all victims of crime, and to ensure that all
crime victims are treated equally, it is recommended that this void be
addressed. Appropriate amendments to the Family Court Act are
necessary to permit courts to order restitution in instances when a
juvenile delinquent is placed with a family member.
E.

Expanding the Rights of Victims in Sentencing and
Related Matters

Certain laws governing the rights of crime victims in New
York limit the duty of courts and prosecutors to provide notice, consult
with, and consider the views of crime victims to only certain offenses.
For example, the requirement in Executive Law §642(1) that the
prosecutor consult with and obtain the views of the victim or the
victim’s family regarding disposition of the case by dismissal, plea or
trial, and the parallel requirement in Executive Law §647(1) that the
court consider the views of the victim or the victim’s family
concerning certain discretionary decisions and sentencing options,
425

Legislation permitting payment of restitution by credit card has been proposed in
the 2009-2010 Executive Budget, which was introduced in the Legislature in the
2009 Legislative Session (S. 56 /A. 156).
426
In the Matter of Dylan AA. (19 Misc. 3d 206, 849 N.Y.S.2d 770 [2008]).

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apply only where the crime charged is: (1) a violent felony offense;
(2) a felony involving physical injury to the victim; (3) a felony
involving property loss or damage in excess of $250; or (4) a felony
involving larceny against the person.
Similarly, the requirement in CPL 440.50(1) that the prosecutor
inform the victim by letter of a final disposition within 60 days of that
disposition applies (absent a specific victim request) only to cases
where the disposition includes a conviction of a violent felony offense
as defined in Penal Law §70.02 or an offense defined in Penal Law
Article 125 (homicide and related offenses). Section 380.50(4) of the
CPL, moreover, limits a victim’s right to automatic notification of the
defendant’s subsequent release or escape from custody, to only those
cases in which the defendant is committed to the custody of DOCS on
a conviction for a violent felony offense or a Penal Law Article 125
offense.427 Finally, the requirement in CPL 440.50(1) that the
prosecutor notify the victim of his or her right to meet with, or submit
a written or recorded victim impact statement to Parole applies, absent
a specific victim request, only where the conviction is for a violent
felony offense or a Penal Law Article 125 felony offense.
Provided such rights are not inconsistent with a defendant’s
rights under the State and Federal Constitutions, a crime victim’s right
to notification of proceedings and to have a meaningful voice in the
criminal justice process should not depend on whether the defendant is
accused or convicted of a violent or non-violent felony or a
misdemeanor under a particular article of the Penal Law. Accordingly,
the Commission supports an examination of the existing statutory
scheme governing the rights of crime victims in New York to
determine whether expansion of those rights is warranted.
Next, while the VINE (Victim Information and Notification
Everyday) system allows certain victims to be notified regarding
offender escape, absconding, discharge, parole, conditional release or
release to post-release supervision,428 there are no similar notification
rights available to a victim when an offender is under community
427
428

Penal Law Article 125 includes homicide and related offenses.
CPL 380.50 (4), (5).

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supervision by a local probation department. Accordingly, the
Commission recommends consideration of amendments to the law to
include notification of an offender’s early release from probation
supervision obligations.
Finally, the Commission believes that further study of a number
of victim-related issues is warranted, including whether CPL 420.10
and corresponding statutes should be amended to require that restitution
to victims be paid first when multiple financial obligations (e.g.,
restitution, fine, mandatory surcharge, DNA databank fee, sex offender
registration fee and supplemental sex offender victim fee) are ordered
by the court at sentencing. Currently, the only statute that addresses
priority of payment in restitution cases is CPL 420.10(1)(b), which
provides that when the court imposes both restitution and a fine and
"imposes a schedule of payments, “the court must direct that payment
of restitution” take priority over the payment of the fine."
In that same vein, the Commission recommends that a review be
undertaken of measures to enhance the ability of crime victims to
collect restitution, including an examination of the Vermont restitution
model where the victim is paid the first $10,000 of any restitution order
through a revolving fund established by the State. A comprehensive,
“all-agency” approach also should be examined to use the powers of the
State (e.g., State income tax return intercept, wage garnishment,
interception of lottery winnings, withholding of professional or
recreational licenses) to enforce outstanding restitution payments.
Finally, the Commission recommends studying options for expanding
grievance procedures to provide an effective mechanism for victims to
assert complaints when denied rights under the law.
While the Commission has made numerous suggestions for
sentencing-related reforms, it would be remiss if it failed to note the
great strides that have been made in the past two years with regard to
enhancing the rights of, and services offered to, victims. The Safe
Harbour for Exploited Children Act429 requires local social service
districts to provide crisis intervention services and community-based
programming for sexually exploited youth. The law regarding Human
429

Laws of 2008, ch. 569.

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Trafficking,430 in addition to creating new crimes, allows victims of
human trafficking who were previously ineligible for social services to
qualify for such assistance. Also, recently enacted legislation
authorizes courts to order a defendant indicted for certain sexual assault
crimes to submit to an HIV test, thus helping the victim of a sex crime
deal with at least the physical trauma of such an assault in a more
expeditious manner.431 Recognizing the financial hardship that the
parents or guardians of a child victim may suffer, the law was amended
in 2008 to allow for the inclusion, in a crime victim award from the
State Crime Victims Board, the loss of earnings experienced by parents
or guardians while caring for a child victim due to injuries sustained as
a direct result of a crime.432 Finally, a court can now issue an order
allowing for the termination of a residential lease of a domestic
violence victim when there is sufficient cause to believe that the victim
may be in danger.433
The Commission believes that the Legislature should continue
to build upon these protections in an effort to continue to address the
rights and needs of all crime victims.

430

Laws of 2007, ch. 74.
Laws of 2007, ch. 571.
432
Laws of 2008, ch. 162.
433
Laws of 2007, chs. 73, 616.
431

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PART SEVEN
PLANNING FOR THE FUTURE:
A PERMANENT SENTENCING COMMISSION
FOR NEW YORK

178

Part Seven
Planning for the Future:
A Permanent Sentencing Commission for
New York
Based on testimony presented to the Commission by
policymakers, practitioners, academics and advocates, it has become
clear that criminal justice in general, and sentencing in particular, are
areas where law, practice, research and policy are constantly evolving.
The Commission strongly believes that if the sentencing of offenders
is to be thoughtfully and effectively addressed in the future, the State
should give serious consideration to the creation of a permanent body
dedicated to the ongoing evaluation of relevant sentencing laws and
policy. A permanent sentencing commission would serve as an
advisory body on sentencing policy to the legislative and executive
branches of government.434
There are currently 23 active sentencing commissions
nationwide.435 Historically, many of these commissions were created
to develop and implement sentencing guidelines. Over time, however,
434

In his Practice Commentary to the Penal Law, the Hon. William C. Donnino
points out that in enacting the current Penal Law in 1965, the Legislature “excis[ed]
from the Penal Law the hundreds of offenses (325 or 27% of the former Penal Law’s
sections) which were narrow, specialized, or regulatory in character and related to
other bodies of the consolidated laws. Those offenses were transferred to the
appropriate consolidated law. Thus, those offenses * * * became more readily
identifiable to those concerned with the particular subject matter of each
consolidated law and the Penal Law was more effectively organized to define the
offenses of general application” (Donnino, Practice Commentaries, McKinney’s
Cons Laws of NY, Book 39, Penal Law §145.50, at 137-138). Chapter 1031 of the
Laws of 1965 transferred all of those statutes, and a table of the statutes was
published in 1967 in the first set of McKinney's Penal Law. The Commission
believes that it would be valuable to have an authoritative and up-to-date list of the
criminal offenses defined in non-Penal Law statutes, an undertaking that might best
be suited to a permanent sentencing commission.
435
National Association of State Sentencing Commissions at
http://www.ussc.gov/states.htm. The State of Minnesota created the nation’s first
sentencing commission in 1978. Since then, 21 states, the District of Columbia, and
the federal government have established sentencing commissions.

179

the purview of such commissions has evolved to include all other
issues pertaining to sentencing. The need for a permanent state
sentencing commission was emphasized by several of the experts who
addressed the Commission. As stated by Professor Douglas A.
Berman, a national expert on sentencing issues:
I think just about every academic who looks at this field
ultimately concludes that having a permanent
sentencing commission, a body with the unique,
distinctive and committed responsibility to monitor,
assess and advise all of the sentencing players helps the
system operate effectively long term. No matter how
effectively you put a model in place, things are going to
change in a way that only a permanent body
endeavoring to stay abreast of this and to help all other
bodies involved is going to be in a position to work
with it effectively.436
Additionally, Barbara Tombs, Senior Fellow at the Center on
Sentencing and Corrections at the Vera Institute of Justice, indicated
that it is not unusual for commissions that begin as temporary study
commissions, as New York’s has, to evolve into permanent sentencing
commissions since “good sentencing policy needs continual
monitoring” to respond to emerging trends.437
In order to continue the progress that New York State has made
in crime reduction, all but one Commission member strongly
recommends that New York join the growing number of states that
benefit from the existence of a permanent sentencing commission.438

436

Commission on Sentencing Reform, Transcript of July 18, 2007 Meeting, at 183.
Commission on Sentencing Reform, Transcript of July 11, 2007 Meeting, at 97.
438
In light of the restrictions that the New York State Constitution imposes on,
among other things, the appointment process for a permanent commission (NY
Const art III, §1; art V, §§3, 4), it might be more advantageous to create a
“temporary” state commission on sentencing, the continuation of which would be
subject to legislative review.
437

180

PART EIGHT
CONCLUSION

181

Part Eight
CONCLUSION
The sentencing function is arguably the most critical in any
criminal prosecution. The judge’s sentencing decision has immediate
and often dramatic consequences for the offender and the victim and
profound consequences for the community over the long term. The
principal recommendations in this Report -- to clarify and streamline
the sentencing laws and expand the ability of judges to divert drugaddicted non-violent felony offenders from prison into communitybased treatment -- reflect these principles and are intended to improve
a sentencing system that is overdue for reform.
The Commission recognizes that sentencing in the broadest
sense does not end with the judge’s pronouncement at the conclusion
of a criminal case. In most instances, this pronouncement marks the
beginning, rather than the end, of a lengthy journey toward successful
reintegration of the offender as a productive and law-abiding member
of society. In recommending further reforms aimed at expanding the
use of proven programs and evidence-based methods to improve the
transition of offenders from prison back into the community, the
Commission believes New York can reduce its reliance on costly
prison resources while enhancing public safety.
In fulfilling its broad mandate, the Commission has a historic
opportunity to have a positive and lasting effect on criminal justice
policy in the State. The Commission respectfully submits this Final
Report to the Governor, Legislature and Judiciary with the expectation
that it will serve as a roadmap for future sentencing reform and help
make New York’s sentencing system the standard by which all others
are measured.

182

APPENDIX A
EXECUTIVE ORDER NO. 10 (2007) &
EXECUTIVE ORDER NO. 9 (2008)

183

EXECUTIVE ORDER
No 10: ESTABLISHING THE NEW YORK STATE COMMISSION ON
SENTENCING REFORM

WHEREAS, criminal sentences should appropriately reflect the seriousness of
the offender’s crime, and should meet the multiple objectives of punishment,
deterrence, rehabilitation, retribution, and isolation; and
WHEREAS, an equitable system of criminal justice must ensure that crimes of
similar seriousness result in similar sanctions for similarly situated offenders;
and
WHEREAS, significant disparities in how similar crimes are treated diminishes
the public’s trust and faith in our criminal justice system; and
WHEREAS, the system of criminal sanctions in New York State has grown
increasingly complex; and
WHEREAS, a comprehensive review of New York’s sentencing structure will
provide the State with crucial guidance to ensure the imposition of appropriate
and just criminal sanctions, and to make the most efficient use of the
correctional system and community resources;
NOW, THEREFORE, I, Eliot Spitzer, Governor of the State of New York, by
virtue of the authority vested in me by the Constitution and the Laws of the
State of New York, do hereby order as follows:
1. There is hereby established the New York State Commission on Sentencing
Reform (“Commission”).
2. The Commission shall consist of eleven members appointed by the
Governor, including: (a) the Commissioner of the Department of Correctional
Services, the Chairman of the Board of Parole, the Commissioner of the
Division of Criminal Justice Services and the Chair of the Crime Victims Board,
who shall serve ex officio; (b) four members appointed on the recommendation
of the legislative leaders, one each by the Speaker of the Assembly, the
Temporary President of the Senate, the Minority Leader of the Assembly, and
the Minority Leader of the Senate; and (c) three additional members appointed
by the Governor, including one judge or former judge with substantial
experience presiding over courts of criminal jurisdiction, one member of the
bar with significant experience in the prosecution of criminal actions, and one
member of the bar with significant experience representing defendants in
criminal actions.

184

3. The Governor shall select a Chair of the Commission from among the
members. A majority of the members of the Commission shall constitute a
quorum, and all recommendations of the Commission shall require approval of
a majority of the total members of the Commission.
4. The Commission shall conduct a comprehensive review of New York’s
current sentencing structure, sentencing practices, community supervision, and
the use of alternatives to incarceration, including a review and evaluation of:
(a) the existing statutory provisions by which an offender is sentenced to or
can be released from incarceration, including but not limited to indeterminate
sentences, determinate sentences, definite sentences, sentences of parole
supervision, merit time, supplemental merit time, shock incarceration,
temporary release, presumptive release, conditional release, and maximum
expiration;
(b) the existing sentencing provisions as to their uniformity, certainty,
consistency and adequacy;
(c) the lengths of incarceration and community supervision that result from the
current sentence structure, and the incentives or barriers to the appropriate
utilization of alternatives to incarceration;
(d) the extent to which education, job training and re-entry preparation
programs can both facilitate the readiness of inmates to transition into the
community, and reduce recidivism;
(e) the impact of existing sentences upon the state criminal justice system,
including state prison capacity, local jail capacity, community supervision
resources, judicial operations and law enforcement responsibilities;
(f) the relation that a sentence or other criminal sanction has to public safety
and the likelihood of recidivism; and
(g) the expected future trends in sentencing.
5. In undertaking its review, the Commission may request documents, conduct
public hearings, hear the testimony of witnesses, and take any other actions it
deems necessary to carry out its functions.
6. The Commission shall make recommendations for amendments to state law
that will maximize uniformity, certainty, consistency and adequacy of a
sentence structure such that: (a) the punishment is aligned with the
seriousness of the offense; (b) public safety is protected through the deterrent
effect of the sentences authorized and the rehabilitation of those that are
convicted; and (c) appropriate consideration is accorded to the victims of the
offense, their families, and the community. Reports of the Commission shall
include, but not be limited to, an evaluation of the impact that existing

185

sentences have had on length of incarceration, the impact of early release, the
impact of existing sentences on the length of community supervision,
recommended options for the use of alternatives to incarceration, and an
analysis of the fiscal impact of the Commission’s recommendations.
7. The Commission shall issue an initial report of its findings and
recommendations on or before September 1, 2007, and a final report on or
before March 1, 2008. All reports shall be submitted to the Governor, the Chief
Judge of the Court of Appeals, the Temporary President of the Senate, the
Speaker of the Assembly, the Minority Leader of the Senate, and the Minority
Leader of the Assembly.
8. No member of the Commission shall be disqualified from holding any public
office or employment, nor shall he or she forfeit any such office or employment
by virtue of his or her appointment hereunder. Members of the Commission
shall receive no compensation for their services but shall be allowed their
actual and necessary expenses incurred in the performance of their functions
hereunder. All members of the Commission shall serve at the pleasure of the
Governor and vacancies shall be filled in the same manner as original
appointments.
9. Every agency, department, office, division or public authority of this state
shall cooperate with the Commission and furnish such information and
assistance as the Commission determines is reasonably necessary to
accomplish its purposes.
G I V E N under my hand and the Privy Seal of the State this fifth day of March
in the year two thousand seven.
Eliot Spitzer, Governor
Richard Baum, Secretary to the Governor

186

EXECUTIVE ORDER
No 9: REVIEW, CONTINUATION AND EXPIRATION OF PRIOR
EXECUTIVE ORDERS
WHEREAS, an initial review has been completed of those Executive Orders and
amendments thereto that are in effect as of this date; and
WHEREAS, during the course of that review, it has been determined that
certain Executive Orders are unnecessary, outdated, or otherwise should not
be continued; and
WHEREAS, it also has been determined that other Executive Orders address
ongoing issues and should be continued; and
WHEREAS, it is important to identify for the public those Executive Orders that
remain in effect and those that are no longer valid;
NOW, THEREFORE, I, David Paterson, Governor of the State of New York, by
virtue of the authority vested in me by the Constitution and laws of the State
of New York, do hereby order that upon due consideration, deliberation and
review, all Executive Orders issued by previous Governors are hereby repealed,
cancelled and revoked in their entirety, with the exception of the Executive
Orders set forth below and any amendments thereto, which shall remain in full
force and effect until otherwise revoked, superseded or modified; and IT IS
FURTHER ORDERED that a review of prior Executive Orders shall continue to
determine whether additional orders should be revoked, superseded or
modified.
EXECUTIVE ORDERS BEING CONTINUED
A. Executive Orders of Governor Nelson A. Rockefeller
Executive Order No. 42, issued October 14, 1970 (Relating to procedures for
submission and settlement of certain grievances of State employees).
B. Executive Orders of Governor Mario M. Cuomo
Executive Order No. 2, issued January 11, 1983 (Establishing the position of
State Director of Criminal Justice);
Executive Order No. 5, issued February 16, 1983 (Establishing the Women's
Division in the Executive Chamber);
Executive Order No. 6, issued February 18, 1983 (Assigning responsibilities of
the State Department of Civil Service, and certain State agencies for insuring
equal employment opportunity for minorities, women, disabled persons and
Vietnam era veterans in State government and establishing the Governor's
executive committee for affirmative action);
Executive Order No. 7, issued February 18, 1983 (Establishing a Governor's
Advisory Committee for Hispanic Affairs);
Executive Order No. 8, issued February 25, 1983 (Directing State agencies to
consider labor relations practices when awarding State contracts);
Executive Order No. 11, issued April 26, 1983 (Expanding the membership and
powers of the Securities Coordinating Committee);

187

Executive Order No. 12, issued May 3, 1983 (Directing the State Office for the
Aging to review and comment upon policies affecting the elderly);
Executive Order No. 17, issued May 31, 1983 (Establishing State Policy on
Private Institutions which Discriminate);
Executive Order No. 19, issued May 31, 1983 (New York State Policy
Statement on Sexual Harassment in the Workplace);
Executive Order No. 23, issued September 1, 1983 (Establishing the Office of
New York State Ombudsman);
Executive Order No. 26, issued October 7, 1983 (Directing the State Office of
Advocate for the Disabled to review comment upon policies affecting persons
with disabilities);
Executive Order No. 34, issued January 13, 1984 (Establishing the New York
State Human Rights Advisory Council);
Executive Order No. 46, issued August 28, 1984 (Naming the State Office
Building Campus in Albany the Governor W. Averell Harriman Campus State
Office Building Campus);
Executive Order No. 56, issued December 20, 1984 (Establishing the New York
State Task Force on Life and the Law);
Executive Order No. 66, issued June 5, 1985 (Establishing a Governor's
Advisory Committee for Black Affairs);
Executive Order No. 77, issued October 31, 1985 (Establishing membership of
the Martin Luther King, Jr. Commission);
Executive Order No. 80, issued March 21, 1986 (Juvenile justice planning);
Executive Order No. 82, issued May 2, 1986 (Establishing the Governor's Office
for Hispanic Affairs);
Executive Order No. 95, issued April 15, 1987 (Designating the Disaster
Preparedness Commission as the State Emergency Response Commission);
Executive Order No. 96, issued April 27, 1987 (Promoting a New York State
policy against age discrimination in the workplace);
Executive Order No. 97, issued April 27, 1987 (Designating the Governor's
Traffic Safety Committee as the State Agency to coordinate and approve State
highway safety programs);
Executive Order No. 98, issued May 13, 1987 (Establishing a new State Council
on Graduate Medical Education);
Executive Order No. 100, issued August 31, 1987 (Naming the Watertown
State Office Building the Dulles State Office Building);
Executive Order No. 111, issued August 11, 1988 (Directing the Attorney
General to inquire into matters of bias-related crimes);
Executive Order No. 114, issued December 9, 1988 (Naming the Poughkeepsie
State Office Building the Eleanor Roosevelt State Office Building);
Executive Order No. 125, issued May 22, 1989 (Establishing a council of
contracting agencies);

188

Executive Order No. 130, issued December 4, 1989 (Creating a crime proceeds
strike force to investigate and prosecute certain economic activities
constituting penal, tax, and banking law violations relating to money
laundering);
Executive Order No. 131, issued December 26, 1994 (Establishment of
administrative adjudication plans);
Executive Order No. 135, issued February 27, 1990 (Prescribing Procedures to
Allocate the State Low Income Housing Credit Under the Tax Reform Act of
1986 as amended);
Executive Order No. 147, issued July 31, 1991 (Establishing an Office of Indian
Relations);
Executive Order No. 150, issued October 9, 1991 (New land use and
development by State agencies within the Adirondack Park);
Executive Order No. 158, issued June 23, 1992 (Naming the New Scotland
Avenue Laboratory Building the David Axelrod Institute for Public Health);
Executive Order No. 169, issued March 22, 1993 (Directing State Agencies to
Act consistently with the Upper Delaware River Management Plan);
Executive Order No. 170, issued March 24, 1993 (Establishing Uniform
Guidelines for Determining the Responsibility of Bidders);
Executive Order No. 170.1, issued June 23, 1993 (Establishing Uniform
Guidelines for Determining the Responsibility of Bidders); and
Executive Order No. 179, issued December 30, 1993 (Establishing the New
York State Commission on National and Community Service).
C. Executive Orders of Governor George E. Pataki
Executive Order No. 20, issued November 30, 1995 (Establishing the Position
of State Director of Regulatory Reform);
Executive Order No. 26.1, issued September 28, 1996 (Incorporating the
National Incident Management System as the Management System for
Emergency Response);
Executive Order No. 40, issued July 26, 1996 (Ordering State Agencies to
Register Emission Reduction Credits);
Executive Order No. 45, issued November 13, 1996 (Establishing the Position
of State Director of Consumer Protection);
Executive Order No. 49, issued February 12, 1997 (Establishing Procedures to
Consider, in its Proprietary Capacity, the utilization of One or More Project
Labor Agreements);
Executive Order No. 50, issued October 1, 1996 (Establishing a Governmental
Commission to Investigate the Recovery of Holocaust Victims' Assets);
Executive Order No. 51, issued May 20, 1997 (Activities of State Agencies
Within the New York City Watershed);
Executive Order No. 57, issued October 23, 1997 (Establishing the New York
City Watershed Protection and Partnership Council);

189

Executive Order No. 83, issued July 1, 1998 (Establishing the Jackie Robinson
Empire State Freedom Medal and the Jackie Robinson Empire State Freedom
Medal Commission);
Executive Order No. 86, issued August 19, 1998 (Establishing the New York
City Watershed Inspector General);
Executive Order No. 109, issued May 9, 2001 (Establishing a Special
Prosecutor to Investigate and Prosecute Criminal Acts Relating to Fraudulent
Motor Vehicle Insurance claims);
Executive Order No. 111, issued June 10, 2001 (Directing State Agencies to be
More Energy Efficient and Environmentally Aware: "Green and Clean State
Buildings and Vehicles");
Executive Order No. 116, issued January 7, 2002 (Reconstituting the State
Drought Management Task Force);
Executive Order No. 117, issued January 28, 2002 (Establishing the Position of
Chief Information Officer (CIO) of the State of New York);
Executive Order No. 125, issued March 24, 2003 (Directing State Officials to
Ensure that the Appropriate Protections and Benefits are Extended to Members
of the Reserve Armed Forces of the United States and the Organized Militia of
New York State);
Executive Order No. 128, issued June 16, 2003 (Designation of Lower
Manhattan Development Corporation to Carry Out Environmental Impact
Review and to Fulfill Requirements For Receipt of Federal Assistance in
Connection With the Redevelopment of Lower Manhattan Following the
Terrorist Attacks of September 11, 2001);
Executive Order No. 133, issued November 22, 2004 (Establishing the Lower
Manhattan Construction Command Center);
Executive Order No. 142, issued November 21, 2005 (Directing State Agencies
and Authorities to Diversify Transportation Fuel and Heating Oil Supplies
Through the Use of Bio-Fuels in State Vehicles and Buildings); and
Executive Order No. 144, issued February 21, 2006 (Establishing the New York
State Abraham Lincoln Bicentennial Commission).
D. Executive Orders of Governor Eliot L. Spitzer
Executive Order No. 3, issued January 1, 2007 (Promotion of Public Access to
Government Decisionmaking);
Executive Order No. 8, issued February 18, 2007 (Establishing the MWBE
Executive Leadership Council and the MWBE Corporate Roundtable);
Executive Order No. 9, issued March 5, 2007 (Ordering the Commissioner of
the Department of Correctional Services to Bar Certain Offenders from
Participating in Temporary Release Programs);
Executive Order No. 10, issued March 5, 2007 (Establishing the New York State
Commission on Sentencing Reform);
Executive Order No. 11, issued April 23, 2007 (Establishing the New York State
Commission on Local Government Efficiency and Competitiveness);

190

Executive Order No. 12, issued May 8, 2007 (Representation of Child Care
Providers);
Executive Order No. 13, issued May 18, 2007 (Establishing the New York State
Council on Food Policy);
Executive Order No. 15, issued May 29, 2007 (Establishing the New York State
Commission to Modernize the Regulation of Financial Services);
Executive Order No. 16, issued June 12, 2007 (Establishing the Governor’s
Children’s Cabinet);
Executive Order No. 17, issued September 5, 2007 (Establishing the Joint
Enforcement Task Force on Employee Misclassification);
Executive Order No. 19, issued October 22, 2007 (Requiring the Adoption of
Domestic Violence and the Workplace Policies);
Executive Order No. 20, issued December 4, 2007 (Establishing the Governor’s
Smart Growth Cabinet);
Executive Order No. 21, issued January 11, 2008 (Providing for Investigation
Into the Deaths of Arlene Tankleff and Seymour Tankleff and Prosecution of
Offenses in Connection Therewith); and
Executive Order No. 22, issued January 23, 2008 (Appointing the New York
State Commission on Property Tax Relief).
GIVEN under my hand and the Privy Seal of the State in the City of Albany this
eighteenth of June in the year two thousand eight.
David A. Paterson
Governor

Charles O'Byrne
Secretary to the Governor

191

APPENDIX B
NON-VIOLENT PENAL LAW FELONY
OFFENSES THAT CURRENTLY CARRY AN
INDETERMINATE SENTENCE

192

NON-VIOLENT PENAL LAW FELONY OFFENSES
THAT CURRENTLY CARRY AN INDETERMINATE
SENTENCE439
CITATION

TITLE

PL 100.08

Criminal solicitation in the third degree

PL 100.10

Criminal solicitation in the second degree

PL 100.13

Criminal solicitation in the first degree

PL 105.10

Conspiracy in the fourth degree

PL 105.13

Conspiracy in the third degree

PL 105.15

Conspiracy in the second degree

PL 115.01

Criminal facilitation in the third degree

PL 115.05

Criminal facilitation in the second degree

PL 115.08

Criminal facilitation in the first degree

PL 120.01
PL 120.03

Reckless assault of a child by a child day care
provider
Vehicular assault in the second degree

PL 120.04

Vehicular assault in the first degree

PL 120.04-a

Aggravated vehicular assault

PL 120.12

Aggravated assault upon a person less than
eleven years old

439

OFFENSE
LEVEL
Class E
felony
Class D
felony
Class C
felony
Class E
felony
Class D
felony
Class B
felony
Class E
felony
Class C
felony
Class B
felony
Class E
felony
Class E
felony
Class D
felony
Class C
felony
Class E
felony

This list excludes Class A felonies, as well as felony drug and sex offenses which
are currently punishable by a determinate sentence. This list also excludes felonylevel attempts to commit the listed crimes, as well as non-violent felony offenses
defined outside the Penal Law.

193

CITATION

TITLE

PL 120.13

Menacing in the first degree

PL 120.25

Reckless endangerment in the first degree

PL 120.30

Promoting a suicide attempt

PL 120.55

Stalking in the second degree

PL 120.60 (2)

Stalking in the first degree

PL 120.70

Luring a child

PL 125.10

Criminally negligent homicide

PL 125.12

Vehicular manslaughter in the second degree

PL 125.13

Vehicular manslaughter in the first degree

PL 125.14

Aggravated vehicular homicide

PL 125.15

Manslaughter in the second degree

PL 125.40

Abortion in the second degree

PL 125.45

Abortion in the first degree

PL 135.10

Unlawful imprisonment in the first degree

PL 135.35

Labor trafficking

PL 135.50

Custodial interference in the first degree

440

OFFENSE
LEVEL
Class E
felony
Class D
felony
Class E
felony
Class E
felony
Class D
felony
Class E
felony440
Class E
felony
Class D
felony
Class C
felony
Class B
felony
Class C
felony
Class E
felony
Class D
felony
Class E
felony
Class D
felony
Class E
felony

It is a class E felony unless the underlying offense that the defendant intended to
commit was a Class A felony, then the offense of luring a child shall be a Class C
felony and if the underlying offense that the defendant intended to commit was a
Class B felony, then the offense of luring a child shall be a Class D felony.

194

CITATION

TITLE

PL 135.55

Substitution of children

PL 135.65

Coercion in the first degree

PL 140.17

Criminal trespass in the first degree

PL 140.20

Burglary in the third degree

PL 145.05

Criminal mischief in the third degree

PL 145.10

Criminal mischief in the second degree

PL 145.12

Criminal mischief in the first degree

PL 145.20

Criminal tampering in the first degree

PL 145.23

Cemetery desecration in the first degree

PL 145.26

PL 150.05

Aggravated cemetery desecration in the second
degree
Aggravated cemetery desecration in the first
degree
Tampering with a consumer product in the first
degree
Arson in the fourth degree

PL 150.10

Arson in the third degree

PL 155.30

Grand larceny in the fourth degree

PL 155.35

Grand larceny in the third degree

PL 155.40

Grand larceny in the second degree

PL 155.42

Grand larceny in the first degree

PL 145.27
PL 145.45

195

OFFENSE
LEVEL
Class E
felony
Class D
felony
Class D
felony
Class D
felony
Class E
felony
Class D
felony
Class B
felony
Class D
felony
Class E
felony
Class E
felony
Class D
felony
Class E
felony
Class E
felony
Class C
felony
Class E
felony
Class D
felony
Class C
felony
Class B
felony

CITATION
PL 156.10
PL 156.25
PL 156.26
PL 156.27
PL 156.30
PL 156.35
PL 158.10
PL 158.15
PL 158.20
PL 158.25
PL 158.35
PL 158.40
PL 158.45
PL 158.50
PL 160.05
PL 165.06
PL 165.07
PL 165.08

OFFENSE
LEVEL
Computer trespass
Class E
felony
Computer tampering in the third degree
Class E
felony
Computer tampering in the second degree
Class D
felony
Computer tampering in the first degree
Class C
felony
Unlawful duplication of computer related
Class E
matter
felony
Criminal possession of computer related matter Class E
felony
Welfare fraud in the fourth degree
Class E
felony
Welfare fraud in the third degree
Class D
felony
Welfare fraud in the second degree
Class C
felony
Welfare fraud in the first degree
Class B
felony
Criminal use of a public benefit card in the first Class E
degree
felony
Criminal possession of public benefit cards in
Class E
the third degree
felony
Criminal possession of public benefit cards in
Class D
the second degree
felony
Criminal possession of public benefit cards in
Class C
the first degree
felony
Robbery in the third degree
Class D
felony
Unauthorized use of a vehicle in the second
Class E
degree
felony
Unlawful use secret scientific material
Class E
felony
Unauthorized use of a vehicle in the first degree Class D
felony
TITLE

196

CITATION

TITLE

PL 165.10

Auto stripping in the second degree

PL 165.11

Auto stripping in the first degree

PL 165.15

Theft of services (certain services only)

PL 165.45

PL 165.72

Criminal possession of stolen property in the
fourth degree
Criminal possession of stolen property in the
third degree
Criminal possession of stolen property in the
second degree
Criminal possession of stolen property in the
first degree
Trademark counterfeiting in the second degree

PL 165.73

Trademark counterfeiting in the first degree

PL 170.10

Forgery in the second degree

PL 170.15

Forgery in the first degree

PL 170.25

PL 170.40

Criminal possession of a forged instrument in
the second degree
Criminal possession of a forged instrument in
the first degree
Criminal possession of forgery devices

PL 170.60

Unlawfully using slugs in the first degree

PL 170.65

Forgery of a vehicle identification number

PL 170.70

Illegal possession of a vehicle identification
number plate
Fraudulent making of an electronic access
device in the second degree

PL 165.50
PL 165.52
PL 165.54

PL 170.30

PL 170.75

197

OFFENSE
LEVEL
Class E
felony
Class D
felony
Class E
felony
Class E
felony
Class D
felony
Class C
felony
Class B
felony
Class E
felony
Class C
felony
Class D
felony
Class C
felony
Class D
felony
Class C
felony
Class D
felony
Class E
felony
Class E
felony
Class E
felony
Class D
felony

CITATION

TITLE

PL 175.10

Falsifying business records in the first degree

PL 175.25

PL 175.40

Tampering with public records in the first
degree
Offering a false instrument for filing in the first
degree
Issuing a false certificate

PL 176.15

Insurance fraud in the fourth degree

PL 176.20

Insurance fraud in the third degree

PL 176.25

Insurance fraud in the second degree

PL 176.30

Insurance fraud in the first degree

PL 176.35

Aggravated insurance fraud

PL 177.10

Health care fraud in the fourth degree

PL 177.15

Health care fraud in the third degree

PL 177.20

Health care fraud in the second degree

PL 177.25

Health care fraud in the first degree

PL 178.15

PL 180.03

Criminal diversion of prescription medications
and prescriptions in the third degree
Criminal diversion of prescription medications
and prescriptions in the second degree
Criminal diversion of prescription medications
and prescriptions in the first degree
Commercial bribing in the first degree

PL 180.08

Commercial bribe receiving in the first degree

PL 175.35

PL 178.20
PL 178.25

198

OFFENSE
LEVEL
Class E
felony
Class D
felony
Class E
felony
Class E
felony
Class E
felony
Class D
felony
Class C
felony
Class B
felony
Class D
felony
Class E
felony
Class D
felony
Class C
felony
Class B
felony
Class E
felony
Class D
felony
Class C
felony
Class E
felony
Class E
felony

CITATION

TITLE

PL 180.15

Bribing a labor official

PL 180.25

Bribe receiving by a labor official

PL 180.40

Sports bribing

PL 180.45

Sports bribe receiving

PL 180.51

PL 180.57

Tampering with sports contest in the first
degree
Impairing the integrity of a pari-mutual betting
system in the second degree
Impairing the integrity of a pari-mutual betting
system in the first degree
Rent gouging in the first degree

PL 187.10

Residential mortgage fraud in the fourth degree

PL 187.15

Residential mortgage fraud in the third degree

PL 187.20
PL 187.25

Residential mortgage fraud in the second
degree
Residential mortgage fraud in the first degree

PL 190.26

Criminal impersonation in the first degree

PL 190.30

Unlawfully concealing a will

PL 190.40

Criminal usury in the second degree

PL 190.42

Criminal usury in the first degree

PL 190.65

Scheme to defraud in the first degree

PL 190.76

Criminal use access device in the first degree

PL 180.52
PL 180.53

199

OFFENSE
LEVEL
Class D
felony
Class D
felony
Class D
felony
Class E
felony
Class E
felony
Class E
felony
Class D
felony
Class E
felony
Class E
felony
Class D
felony
Class C
felony
Class B
felony
Class E
felony
Class E
felony
Class E
felony
Class C
felony
Class E
felony
Class E
felony

CITATION
PL 190.79
PL 190.80
PL 190.80-a
PL 190.82
PL 190.83
PL 190.86
PL 195.07
PL 195.08
PL 195.20
PL 200.00
PL 200.03
PL 200.04
PL 200.10
PL 200.11
PL 200.12
PL 200.20
PL 200.22
PL 200.25

OFFENSE
LEVEL
Identity theft in the second degree
Class E
felony
Identity theft in the first degree
Class D
felony
Aggravated identity theft
Class D
felony
Unlawful possession of personal identification
Class E
information in the second degree
felony
Unlawful possession of personal identification
Class D
information in the first degree
felony
Unlawful possession of a skimmer device in the Class E
first degree
felony
Obstructing governmental administration the
Class E
first degree
felony
Obstructing governmental administration by
Class D
means of a self-defense spray device
felony
Defrauding the government
Class E
felony
Bribery in the third degree
Class D
felony
Bribery in the second degree
Class C
felony
Bribery in the first degree
Class B
felony
Bribe receiving in the third degree
Class D
felony
Bribe receiving in the second degree
Class C
felony
Bribe receiving in the first degree
Class B
felony
Rewarding official misconduct in the second
Class E
degree
felony
Rewarding official misconduct in the first
Class C
degree
felony
Receiving a reward for official misconduct in
Class E
the second degree
felony
TITLE

200

CITATION
PL 200.27

TITLE

PL 200.45

Receiving a reward for official misconduct in
the first degree
Bribe giving for public office

PL 200.50

Bribe receiving for public office

PL 200.55
PL 205.10

Impairing the integrity of a government
licensing examination
Escape in the second degree

PL 205.15

Escape in the first degree

PL 205.17
PL 205.19

Absconding from temporary release in the first
degree
Absconding from community treatment facility

PL 205.25

Promoting prison contraband in the first degree

PL 205.60

Hindering prosecution in the second degree

PL 205.65

Hindering prosecution in the first degree

PL 210.10

Perjury in the second degree

PL 210.15

Perjury in the first degree

PL 210.40
PL 215.00

Making an apparently sworn false statement in
the first degree
Bribing a witness

PL 215.05

Bribing receiving by witness

PL 215.11

Tampering with a witness in the third degree

PL 215.12

Tampering with a witness in the second degree

201

OFFENSE
LEVEL
Class C
felony
Class D
felony
Class D
felony
Class D
felony
Class E
felony
Class D
felony
Class E
felony
Class E
felony
Class D
felony
Class E
felony
Class D
felony
Class E
felony
Class D
felony
Class E
felony
Class D
felony
Class D
felony
Class E
felony
Class D
felony

CITATION

TITLE

PL 215.13

Tampering with a witness in the first degree

PL 215.15
PL 215.19

Intimidating a victim or witness in the third
degree
Bribing a juror

PL 215.20

Bribing receiving by a juror

PL 215.40

Tampering with physical evidence

PL 215.51

Criminal contempt in the first degree

PL 215.52

Aggravated criminal contempt

PL 215.56

Bail jumping in the second degree

PL 215.57

Bail jumping in the first degree

PL 215.70

Unlawful grand jury disclosure

PL 225.10

Promoting gambling in the first degree

PL 225.20
PL 230.05

Possession of gambling records in the first
degree
Patronizing a prostitute in the second degree

PL 230.25

Promoting prostitution in the third degree

PL 230.30

Promoting prostitution in the second degree

PL 230.32

Promoting prostitution in the first degree

PL 230.33

Compelling prostitution

PL 230.34

Sex trafficking

202

OFFENSE
LEVEL
Class B
felony
Class E
felony
Class D
felony
Class D
felony
Class E
felony
Class E
felony
Class D
felony
Class E
felony
Class D
felony
Class E
felony
Class E
felony
Class E
felony
Class E
felony
Class D
felony
Class C
felony
Class B
felony
Class B
felony
Class B
felony

CITATION

TITLE

PL 235.06

Obscenity in the second degree

PL 235.07

Obscenity in the first degree

PL 235.21

PL 240.06

Disseminating indecent material to minors in
the second degree
Disseminating indecent material to minors in
the first degree
Riot in the first degree

PL 240.15

Criminal anarchy

PL 240.31

Aggravated harassment in the first degree

PL 240.32

Aggravated harassment of an employee by an
inmate
Criminal nuisance in the first degree

PL 235.22

PL 240.46
PL 240.71
PL 241.05

Criminal interference with health care services
or religious worship in the first degree
Harassment of a rent regulated tenant

PL 242.15

Harming a service animal in the first degree

PL 250.05

Eavesdropping

PL 250.45

Unlawful surveillance in the second degree

PL 250.50

Unlawful surveillance in the first degree

PL 250.60
PL 255.15

Dissemination of an unlawful surveillance
image in the first degree
Bigamy

PL 255.25

Incest in the third degree

203

OFFENSE
LEVEL
Class E
felony
Class D
felony
Class E
felony
Class D
felony
Class E
felony
Class E
felony
Class E
felony
Class E
felony
Class E
felony
Class E
felony
Class E
felony
Class E
felony
Class E
felony
Class E
felony
Class D
felony
Class E
felony
Class E
felony
Class E
felony

CITATION

TITLE

PL 260.00

Abandonment of a child

PL 260.06

Non-support of a child in the first degree

PL 260.32

Endangering the welfare of a vulnerable elderly
person in the second degree
Endangering the welfare of a vulnerable elderly
person in the first degree
Use of a child in sexual performance

PL 260.34
PL 263.05
PL 263.10

PL 263.15

Promoting an obscene sexual performance by a
child
Possessing an obscene sexual performance by a
child
Promoting a sexual performance by a child

PL 263.16

Possessing a sexual performance by a child

PL 263.30

PL 265.16

Facilitating a sexual performance by a child
with a controlled substance or alcohol
Criminal possession of a weapon in the third
degree
Manufacture, transport, disposition and
defacement of weapons and dangerous
instruments or appliances (certain weapons,
dangerous instruments or appliances only)
Criminal sale of a firearm to minor

PL 265.35(2)

Prohibited use of weapons

PL 263.11

PL 265.02(1),
(2) and (3)
PL 265.10

PL
Unlawfully dealing with fireworks and
270.00(2)(b)(iii) dangerous fireworks
PL 270.20
Unlawful wearing of a body vest
PL 270.30

Unlawful fleeing a police officer in a motor
vehicle in the second degree

204

OFFENSE
LEVEL
Class E
felony
Class E
felony
Class E
felony
Class D
felony
Class C
felony
Class D
felony
Class E
felony
Class D
felony
Class E
felony
Class B
felony
Class D
felony
Class D
felony

Class C
felony
Class D or E
felony
Class E
felony
Class E
felony
Class E
felony

CITATION
PL 270.35

TITLE

PL 460.20

Unlawful fleeing a police officer in a motor
vehicle in the first degree
Manufacture of unauthorized recordings in the
first degree
Manufacture or sale of an unauthorized
recording of a performance in the second
degree
Advertisement or sale of unauthorized
recordings in the first degree
Unlawful operation of a recording device in a
motion picture or live theater in the first degree
Failure to disclose the origin of a recording in
the first degree
Unpermitted use of indoor pyrotechnics in the
first degree
Aggravated unpermitted use of indoor
pyrotechnics in the second degree
Enterprise corruption

PL 470.05

Money laundering in the fourth degree

PL 470.10

Money laundering in the third degree

PL 470.15

Money laundering in the second degree

PL 470.20

Money laundering in the first degree

PL 470.21

Money laundering support of terrorism in the
fourth degree
Money laundering support of terrorism in the
third degree
Money laundering support of terrorism in the
second degree
Money laundering support of terrorism in the
first degree

PL 275.10
PL 275.20

PL 275.30
PL 275.34
PL 275.40
PL 405.14
PL 405.16

PL 470.22
PL 470.23
PL 470.24

205

OFFENSE
LEVEL
Class D
felony
Class E
felony
Class E
felony
Class E
felony
Class E
felony
Class E
felony
Class E
felony
Class E
felony
Class B
felony
Class E
felony
Class D
felony
Class C
felony
Class B
felony
Class E
felony
Class D
felony
Class C
felony
Class B
felony

APPENDIX C
TIME-SERVED DATA BY YEAR FOR
NON-VIOLENT FELONY OFFENSES:
OFFENDERS RELEASED JANUARY 1985
THROUGH DECEMBER 2007

206

Chart C-1A
Non-Violent Class B Felony Offenders With Non-Consecutive Sentences
Released January 1985 Through December 2007: Time Served by Crime Type
Time
Served:
Years
All Offenses
0 lt 1
1 lt 2
2 lt 3
3 lt 4
4 lt 5
5 lt 6
6 lt 7
7 lt 8
8 lt 9
9 lt 10
10 lt 11
11 lt 12
12 lt 13
13 lt 14
14 lt 15
15 lt 16
16 lt 17
Total

First-Felony Offenders
Number
Percent
Cumulative
of Cases
Distribution
Percent
181
364
201
127
57
60
22
13
16
4
3
2
1
0
2
1
2
1,056

17.1%
34.5%
19.0%
12.0%
5.4%
5.7%
2.1%
1.2%
1.5%
0.4%
0.3%
0.2%
0.1%
0.0%
0.2%
0.1%
0.2%
100.0%

17.1%
51.6%
70.6%
82.7%
88.1%
93.8%
95.8%
97.1%
98.6%
99.0%
99.2%
99.4%
99.5%
99.5%
99.7%
99.8%
100.0%

Excluding Conspiracy 2nd
0 lt 1
64
1 lt 2
120
2 lt 3
59
3 lt 4
23
4 lt 5
14
5 lt 6
15
6 lt 7
2
7 lt 8
1
8 lt 9
2
9 lt 10
0
10 lt 11
1
11 lt 12
2
12 lt 13
0
13 lt 14
0
14 lt 15
1
15 lt 16
0
16 lt 17
0
Total
304

21.1%
39.5%
19.4%
7.6%
4.6%
4.9%
0.7%
0.3%
0.7%
0.0%
0.3%
0.7%
0.0%
0.0%
0.3%
0.0%
0.0%
100.0%

21.1%
60.5%
79.9%
87.5%
92.1%
97.0%
97.7%
98.0%
98.7%
98.7%
99.0%
99.7%
99.7%
99.7%
100.0%
NA
NA

Time
Served:
Years
All Offenses
0 lt 1
1 lt 2
2 lt 3
3 lt 4
4 lt 5
5 lt 6
6 lt 7
7 lt 8
8 lt 9
9 lt 10
10 lt 11
11 lt 12
12 lt 13
13 lt 14
14 lt 15
15 lt 16
16 lt 17
17 lt 18
18 lt 19
19 lt 20
20 lt 21
21 lt 22
22 lt 23
23 lt 24
24 lt 25
Total

3
16
19
29
39
19
12
14
8
3
6
3
2
1
1
0
0
2
0
0
0
0
0
0
1
178

1.7%
9.0%
10.7%
16.3%
21.9%
10.7%
6.7%
7.9%
4.5%
1.7%
3.4%
1.7%
1.1%
0.6%
0.6%
0.0%
0.0%
1.1%
0.0%
0.0%
0.0%
0.0%
0.0%
0.0%
0.6%
100.0%

1.7%
10.7%
21.3%
37.6%
59.6%
70.2%
77.0%
84.8%
89.3%
91.0%
94.4%
96.1%
97.2%
97.8%
98.3%
98.3%
98.3%
99.4%
99.4%
99.4%
99.4%
99.4%
99.4%
99.4%
100.0%

Excluding Conspiracy 2nd
0 lt 1
2
1 lt 2
13
2 lt 3
14
3 lt 4
9
4 lt 5
9
5 lt 6
2
6 lt 7
2
7 lt 8
1
8 lt 9
0
9 lt 10
0
10 lt 11
1
11 lt 12
0
12 lt 13
1
13 lt 14
0
14 lt 15
1
15 lt 16
0
16 lt 17
0
17 lt 18
0
18 lt 19
0
19 lt 20
0
20 lt 21
0
21 lt 22
0
22 lt 23
0
23 lt 24
0
24 lt 25
0
Total
55

3.6%
23.6%
25.5%
16.4%
16.4%
3.6%
3.6%
1.8%
0.0%
0.0%
1.8%
0.0%
1.8%
0.0%
1.8%
0.0%
0.0%
0.0%
0.0%
0.0%
0.0%
0.0%
0.0%
0.0%
0.0%
100.0%

3.6%
27.3%
52.7%
69.1%
85.5%
89.1%
92.7%
94.5%
94.5%
94.5%
96.4%
96.4%
98.2%
98.2%
100.0%
NA
NA
NA
NA
NA
NA
NA
NA
NA
NA

Continued on next page.

207

Second-Felony Offenders
Number
Percent
Cumulative
of Cases
Distribution
Percent

Chart C-1A
Non-Violent Class B Felony Offenders With Non-Consecutive Sentences
Released January 1985 Through December 2007: Time Served by Crime Type
Time
Served:
Years

First-Felony Offenders
Number
Percent
Cumulative
of Cases
Distribution
Percent

Conspiracy 2nd Only
0 lt 1
1 lt 2
2 lt 3
3 lt 4
4 lt 5
5 lt 6
6 lt 7
7 lt 8
8 lt 9
9 lt 10
10 lt 11
11 lt 12
12 lt 13
13 lt 14
14 lt 15
15 lt 16
16 lt 17
Total

117
244
142
104
43
45
20
12
14
4
2
0
1
0
1
1
2
752

15.6%
32.4%
18.9%
13.8%
5.7%
6.0%
2.7%
1.6%
1.9%
0.5%
0.3%
0.0%
0.1%
0.0%
0.1%
0.1%
0.3%
100.0%

Time
Served:
Years

Second-Felony Offenders
Number
Percent
Cumulative
of Cases
Distribution
Percent

Conspiracy 2nd Only
0 lt 1
1 lt 2
2 lt 3
3 lt 4
4 lt 5
5 lt 6
6 lt 7
7 lt 8
8 lt 9
9 lt 10
10 lt 11
11 lt 12
12 lt 13
13 lt 14
14 lt 15
15 lt 16
16 lt 17
17 lt 18
18 lt 19
19 lt 20
20 lt 21
21 lt 22
22 lt 23
23 lt 24
24 lt 25
Total

15.6%
48.0%
66.9%
80.7%
86.4%
92.4%
95.1%
96.7%
98.5%
99.1%
99.3%
99.3%
99.5%
99.5%
99.6%
99.7%
100.0%

1
3
5
20
30
17
10
13
8
3
5
3
1
1
0
0
0
2
0
0
0
0
0
0
1
123

0.8%
2.4%
4.1%
16.3%
24.4%
13.8%
8.1%
10.6%
6.5%
2.4%
4.1%
2.4%
0.8%
0.8%
0.0%
0.0%
0.0%
1.6%
0.0%
0.0%
0.0%
0.0%
0.0%
0.0%
0.8%
100.0%

0.8%
3.3%
7.3%
23.6%
48.0%
61.8%
69.9%
80.5%
87.0%
89.4%
93.5%
95.9%
96.7%
97.6%
97.6%
97.6%
97.6%
99.2%
99.2%
99.2%
99.2%
99.2%
99.2%
99.2%
100.0%

Note: This table includes all inmates with only non-consecutive prison sentences and a top-offense (i.e., the offense with the longest
sentence) other than a violent, sex or drug offense. Time served includes any local jail time served on a sentence prior to entering
NYSDOCS and runs through an inmate's first release on that sentence from DOCS (i.e., it excludes any additional time served
on a sentence by an inmate returned to prison on technical violations). There are also a certain percentage of inmates included in this
table whose NYSDOCS sentence appears to have been credited with time served on concurrent sentences imposed by courts in other
states or by federal courts; time served was not adjusted for these cases because the amount of time served in other jurisdictions is
unknown. With respect to second felons, time served was capped at the maximum allowable sentence for those whose time served
exceeded the maximum; among the reasons for this occurrence was time owed on prior NYSDOCS prison sentences.
Sources: NYS State Department of Correctional Services data; table prepared by the NYS Division of Criminal Justice Services.

208

Chart C-1B
Non-Violent Class C Felony Offenders With Non-Consecutive Sentences
Released January 1985 Through December 2007: Time Served by Crime Type
Time
Served:
Years
All Offenses
0 lt 1
1 lt 2
2 lt 3
3 lt 4
4 lt 5
5 lt 6
6 lt 7
7 lt 8
8 lt 9
9 lt 10
10 lt 11
11 lt 12
12 lt 13
13 lt 14
14 lt 15
15 lt 16
Total

First-Felony Offenders
Number
Percent
Cumulative
of Cases
Distribution
Percent

Time
Served:
Years

Second-Felony Offenders
Number
Percent
Cumulative
of Cases
Distribution
Percent

314
767
446
331
207
174
86
60
43
83
63
8
1
1
1
1
2,586

12.1%
29.7%
17.2%
12.8%
8.0%
6.7%
3.3%
2.3%
1.7%
3.2%
2.4%
0.3%
0.0%
0.0%
0.0%
0.0%
100.0%

12.1%
41.8%
59.0%
71.8%
79.9%
86.6%
89.9%
92.2%
93.9%
97.1%
99.5%
99.8%
99.9%
99.9%
100.0%
100.0%

All Offenses
0 lt 1
1 lt 2
2 lt 3
3 lt 4
4 lt 5
5 lt 6
6 lt 7
7 lt 8
8 lt 9
9 lt 10
10 lt 11
11 lt 12
12 lt 13
13 lt 14
14 lt 15
15 lt 16
Total

12
79
111
152
95
90
69
38
18
29
17
9
3
3
1
1
727

1.7%
10.9%
15.3%
20.9%
13.1%
12.4%
9.5%
5.2%
2.5%
4.0%
2.3%
1.2%
0.4%
0.4%
0.1%
0.1%
100.0%

1.7%
12.5%
27.8%
48.7%
61.8%
74.1%
83.6%
88.9%
91.3%
95.3%
97.7%
98.9%
99.3%
99.7%
99.9%
100.0%

Excluding Manslaughter 2nd
0 lt 1
294
1 lt 2
612
2 lt 3
271
3 lt 4
143
4 lt 5
62
5 lt 6
45
6 lt 7
13
7 lt 8
6
8 lt 9
10
9 lt 10
3
10 lt 11
4
11 lt 12
0
12 lt 13
0
13 lt 14
0
14 lt 15
0
15 lt 16
0
Total
1,463

20.1%
41.8%
18.5%
9.8%
4.2%
3.1%
0.9%
0.4%
0.7%
0.2%
0.3%
0.0%
0.0%
0.0%
0.0%
0.0%
100.0%

20.1%
61.9%
80.5%
90.2%
94.5%
97.5%
98.4%
98.8%
99.5%
99.7%
100.0%
NA
NA
NA
NA
NA

Excluding Manslaughter 2nd
0 lt 1
12
1 lt 2
76
2 lt 3
106
3 lt 4
108
4 lt 5
64
5 lt 6
47
6 lt 7
27
7 lt 8
9
8 lt 9
6
9 lt 10
6
10 lt 11
4
11 lt 12
1
12 lt 13
0
13 lt 14
0
14 lt 15
0
15 lt 16
0
Total
466

2.6%
16.3%
22.7%
23.2%
13.7%
10.1%
5.8%
1.9%
1.3%
1.3%
0.9%
0.2%
0.0%
0.0%
0.0%
0.0%
100.0%

2.6%
18.9%
41.6%
64.8%
78.5%
88.6%
94.4%
96.4%
97.6%
98.9%
99.8%
100.0%
NA
NA
NA
NA

Continued on next page.

209

Chart C-1B
Non-Violent Class C Felony Offenders With Non-Consecutive Sentences
Released January 1985 Through December 2007: Time Served by Crime Type
Time
Served:
Years

First-Felony Offenders
Number
Percent
Cumulative
of Cases
Distribution
Percent

Manslaughter 2nd Only
0 lt 1
20
1 lt 2
155
2 lt 3
175
3 lt 4
188
4 lt 5
145
5 lt 6
129
6 lt 7
73
7 lt 8
54
8 lt 9
33
9 lt 10
80
10 lt 11
59
11 lt 12
8
12 lt 13
1
13 lt 14
1
14 lt 15
1
15 lt 16
1
Total
1,123

1.8%
13.8%
15.6%
16.7%
12.9%
11.5%
6.5%
4.8%
2.9%
7.1%
5.3%
0.7%
0.1%
0.1%
0.1%
0.1%
100.0%

Time
Served:
Years

Second-Felony Offenders
Number
Percent
Cumulative
of Cases
Distribution
Percent

Manslaughter 2nd Only
0 lt 1
0
1 lt 2
3
2 lt 3
5
3 lt 4
44
4 lt 5
31
5 lt 6
43
6 lt 7
42
7 lt 8
29
8 lt 9
12
9 lt 10
23
10 lt 11
13
11 lt 12
8
12 lt 13
3
13 lt 14
3
14 lt 15
1
15 lt 16
1
Total
261

1.8%
15.6%
31.2%
47.9%
60.8%
72.3%
78.8%
83.6%
86.6%
93.7%
98.9%
99.6%
99.7%
99.8%
99.9%
100.0%

0.0%
1.1%
1.9%
16.9%
11.9%
16.5%
16.1%
11.1%
4.6%
8.8%
5.0%
3.1%
1.1%
1.1%
0.4%
0.4%
100.0%

0.0%
1.1%
3.1%
19.9%
31.8%
48.3%
64.4%
75.5%
80.1%
88.9%
93.9%
96.9%
98.1%
99.2%
99.6%
100.0%

Note: This table includes all inmates with only non-consecutive prison sentences and a top-offense (i.e., the offense with the longest
sentence) other than a violent, sex or drug offense. Time served includes any local jail time served on a sentence prior to entering
NYSDOCS and runs through an inmate's first release on that sentence from DOCS (i.e., it excludes any additional time served
on a sentence by an inmate returned to prison on technical violations). There are also a certain percentage of inmates included in this
table whose NYSDOCS sentence appears to have been credited with time served on concurrent sentences imposed by courts in other
states or by federal courts; time served was not adjusted for these cases because the amount of time served in other jurisdictions is
unknown. With respect to second felons, time served was capped at the maximum allowable sentence for those whose time served
exceeded the maximum; among the reasons for this occurrence was time owed on prior NYSDOCS prison sentences.
Sources: NYS State Department of Correctional Services data; table prepared by the NYS Division of Criminal Justice Services.

210

Chart C-2
Non-Violent Class D and E Felony Offenders With Non-Consecutive Sentences
Released January 1985 Through December 2007: Time Served by Offense Class
Time
Served:
Years

First-Felony Offenders
Number
Percent
Cumulative
of Cases
Distribution
Percent

Time
Served:
Years

Second-Felony Offenders
Number
Percent
Cumulative
of Cases
Distribution
Percent

Class D Felony
0 lt 1
1 lt 2
2 lt 3
3 lt 4
4 lt 5
5 lt 6
6 lt 7
7 lt 8
Total

3,868
7,228
2,288
667
356
50
19
5
14,481

26.7%
49.9%
15.8%
4.6%
2.5%
0.3%
0.1%
0.0%
100.0%

26.7%
76.6%
92.4%
97.0%
99.5%
99.8%
100.0%
100.0%

Class D Felony
0 lt 1
1 lt 2
2 lt 3
3 lt 4
4 lt 5
5 lt 6
6 lt 7
7 lt 8
Total

908
4,915
7,484
3,425
1,399
395
113
50
18,689

4.9%
26.3%
40.0%
18.3%
7.5%
2.1%
0.6%
0.3%
100.0%

4.9%
31.2%
71.2%
89.5%
97.0%
99.1%
99.7%
100.0%

Class E Felony
0 lt 1
1 lt 2
2 lt 3
3 lt 4
4 lt 5
Total

3,628
8,176
2,582
213
26
14,625

24.8%
55.9%
17.7%
1.5%
0.2%
100.0%

24.8%
80.7%
98.4%
99.8%
100.0%

Class E Felony
0 lt 1
1 lt 2
2 lt 3
3 lt 4
4 lt 5
Total

1,523
20,951
6,743
1,686
151
31,054

4.9%
67.5%
21.7%
5.4%
0.5%
100.0%

4.9%
72.4%
94.1%
99.5%
100.0%

Note: This table includes all inmates with only non-consecutive prison sentences and a top-offense (i.e., the offense with the longest
sentence) other than a violent, sex or drug offense. Time served includes any local jail time served on a sentence prior to entering
NYSDOCS and runs through an inmate's first release on that sentence from DOCS (i.e., it excludes any additional time served
on a sentence by an inmate returned to prison on technical violations). There are also a certain percentage of inmates included in this
table whose NYSDOCS sentence appears to have been credited with time served on concurrent sentences imposed by courts in other
states or by federal courts; time served was not adjusted for these cases because the amount of time served in other jurisdictions is
unknown. With respect to second felons, time served was capped at the maximum allowable sentence for those whose time served
exceeded the maximum; among the reasons for this occurrence was time owed on prior NYSDOCS prison sentences.
Sources: NYS State Department of Correctional Services data; table prepared by the NYS Division of Criminal Justice Services.

211

Chart C-3
Class B First Felons· Sentence length and Time Served For Non-Violent, Non-Drug, Non-Sex Offenses, 1985·2007 Releases

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216

Chart C-6

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218

APPENDIX D
COMPARISON OF PROPOSED
DETERMINATE
SENTENCE RANGES FOR
NON-VIOLENT FELONY OFFENSES

219

Chart D-1
First-Felony Non-Violent, Non-Drug, Non-Sex Offender:
Current and Proposed Sentence Ranges

Felony Range and
Class
Release Types

Sentence
B

Release Type
Ŷ Merit
Ŷ Parole
Ŷ CR
Sentence

C

Release Type
Ŷ Merit
Ŷ Parole
Ŷ CR
Sentence

D

Release Type
Ŷ Merit
Ŷ Parole
Ŷ CR
Sentence

E

Release Type
Ŷ Merit
Ŷ Parole
Ŷ CR

Current
Indeterminate
(in years)a
Min
Max

Proposed Determinate Sentence Models (in years)
Determinate
CR-Based
Drug
Time-Served
Modelb
Model
Modelb
Min
Max
Min
Maxc
Min
Maxd

1–3

8ѿ – 25

1

9

1

10

1

16

0.8
1.0
2.0

6.9
8.3
16.7

0.7
–
0.9

6.4
–
7.7

–
–
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7.1
–
8.6

–
–
0.9

11.4
–
13.7

1–3

5 – 15

1

5½

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8e

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12

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–
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–
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–
6.8

–
–
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–
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1–3

2ѿ – 7

1

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1–3

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1

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3

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–
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2.5
–
3.0

–
–
0.9

2.1
–
2.6

a

When an inmate is released on parole or conditionally released on an indeterminate sentence, the inmate is under parole
supervision until he or she reaches the maximum expiration date or receives a merit termination of sentence under
Executive Law 259-j.

b
Note that every determinate sentence would be followed by a post-release supervision period of 1-3 years to be specified
by the judge at sentencing.
c
Maximum sentence length was determined using time served data. Maximum sentence length was established by
determining at what point in the range of monthly time-served data the cumulative percentage of cases reached 98%. This
point was used to establish the proposed conditional (CR) point. The maximum sentence was determined by dividing that
point by .857 – the point at which inmates become eligible for CR.
d
Maximum sentence length was determined by setting the point of the proposed CR as close as possible to the
indeterminate CR with one exception – the B felony maximum sentence was lowered because of the very small number of
cases with time served greater than 16 years.
e

Excludes the consideration of Manslaughter 2 cases.

Sources: NYS Department of Correctional Services data; table prepared by the NYS Division of Criminal Justice
Services.

220

Chart D-2
Second-Felony Non-Violent, Non-Drug, Non-Sex Offender:
Current and Proposed Sentence Ranges

Felony Range and
Class
Release Types

Sentence
B

Release Type
Ŷ Merit
Ŷ Parole
Ŷ CR
Sentence

C

Release Type
Ŷ Merit
Ŷ Parole
Ŷ CR
Sentence

D

Release Type
Ŷ Merit
Ŷ Parole
Ŷ CR
Sentence

E

Release Type
Ŷ Merit
Ŷ Parole
Ŷ CR

Current
Indeterminate
a
(in years)
Min
Max
4 ½ – 9 12 ½ – 25

Proposed Determinate Sentence Models (in years)
Determinate
Drug
Time-Served
CR-Based
b
b
Model
Model
Model
c
d
e
Max
Min
Max
Min
Max
Min
3½

12

5

17

5

16

3.7
4.5
6

10.4
12.5
16.7

2.5
–
3.0

8.6
–
10.3

3.6
–
4.3

12.1
–
14.6

3.6
–
4.3

11.4
–
13.7

3–6

7 ½ – 15

2

8

3½

10½

f

3½

12

2.5
3.0
4.0

6.2
7.5
10.0

1.4
–
1.7

5.8
–
6.9

2.5
–
3.0

7.5
–
9.0

2.5
–
3.0

8.6
–
10.3

2–4

3½–7

1½

4

2½

6

2

5½

1.7
2.0
2.7

2.9
3.5
4.7

1.1
–
1.3

2.8
–
3.4

1.8
–
2.1

4.3
–
5.1

1.4
–
1.7

3.9
–
4.7

1½ – 3

2–4

1½

2

1½

3½

1½

3

1.2
1.5
2.0

1.7
2.0
2.7

1.1
–
1.3

1.4
–
1.7

1.1
–
1.3

2.5
–
3.0

1.1
–
1.3

2.1
–
2.6

a

When an inmate is released on parole or conditionally released on an indeterminate sentence, the inmate is under parole
supervision until he or she reaches the maximum expiration date or receives a merit termination of sentence under
Executive Law 259-j.
b
Note that every determinate sentence would be followed by a post-release supervision period of 1-3 years to be specified
by the judge at sentencing.
c
Minimum sentence length was determined by setting the point of the proposed merit release and CR as close as possible
to the indeterminate merit release and parole release points, respectively.
d
Maximum sentence length was determined using time served data. Maximum sentence length was established by
determining at what point in the range of monthly time-served data the cumulative percentage of cases reached 98%. This
point was used to establish the proposed conditional (CR) point. The maximum sentence was determined by dividing that
point by .857 – the point at which inmates become eligible for CR.
e
Maximum sentence length was determined by setting the point of the proposed CR as close as possible to the
indeterminate CR with one exception – the B felony maximum sentence was lowered because of the very small number of
cases with time served greater than 16 years.
f

Excludes consideration of Manslaughter 2 cases.
Sources: NYS Department of Correctional Services data; table prepared by the NYS Division of Criminal Justice
Services.

221

Chart D-3
First-Felony Non-Violent, Non-Drug, Non-Sex Offender:
Current and Proposed Maximum Sentences
Current
Indeterminate
Maximum
Sentences and
Release Points
(in years)
8ѿ – 25

Determinate
Drug
Model
9

Time-Served
Modela
10

CR-Based
Modelb
16

6.9
8.3
16.7

6.4
–
7.7

7.1
–
8.6

11.4
–
13.7

5 – 15

5½

8c

12

C

Max Sentence
Release Type
Ŷ Merit
Ŷ Parole
Ŷ CR

4.2
5.0
10.0

3.9
–
4.7

5.7
–
6.8

8.6
–
10.3

2ѿ – 7

2½

5

5½

D

Max Sentence
Release Type
Ŷ Merit
Ŷ Parole
Ŷ CR

1.9
2.3
4.7

1.8
–
2.1

3.6
–
4.3

3.9
–
4.7

1ѿ – 4

1½

3½

3

E

Max Sentence
Release Type
Ŷ Merit
Ŷ Parole
Ŷ CR

1.1
1.3
2.7

1.1
–
1.3

2.5
–
3.0

2.1
–
2.6

All Cases: % With Time Served Falling At or
Below the Point of Proposed CR
Ŷ B Felony: Overall (N=1,056)
Excluding Consp. 2 (N=304)
Conspiracy 2 Only (N=752)

–
–
–

96.2%
97.7%
95.6%

98.5%
98.7%
98.4%

99.5%
99.7%
99.5%

Ŷ C Felony: Overall (N=2,586)
Excluding Man. 2 (N=1,463)
Manslaughter 2 (N=1,123)

–
–
–

76.4%
93.2%
54.5%

89.3%
98.4%
77.4%

99.3%
99.9%
98.3%

Ŷ D Felony (N=14,481)
Ŷ E Felony (N=14,625)
Cases With Maximum Sentences:
% of Cohort That Served Less Than
Proposed Determinate Merit Date
Ŷ B Felony: 8ѿ – 25 (N=22)
Ŷ C Felony – Exc. Man 2: 5 – 15 (N=44)
Ŷ D Felony: 2ѿ – 7 (N=1,034)
Ŷ E Felony: 1ѿ – 4 (N=3,486)

–
–

80.7%
49.2%

97.9%
98.6%

99.3%
95.6%

15.4%
22.7%
24.8%
12.4%

15.4%
2.3%
25.5%
12.4%

26.9%
65.9%
78.0%
62.4%

84.6%
77.3%
78.7%
56.5%

Felony Maximum Sentence
Class and Release Type
Max Sentence
Release Type
B
Ŷ Merit
Ŷ Parole
Ŷ CR

Proposed Determinate Sentence Models:
Maximum Sentence and Release Points (in years)

a
Maximum sentence length was determined using time served data. Maximum sentence length was established by determining
at what point in the range of monthly time-served data the cumulative percentage of cases reached 98%. This point was used to
establish the proposed conditional (CR) point. The maximum sentence was determined by dividing that point by .857 – the
point at which inmates become eligible for CR.
b
Maximum sentence length was determined by setting the point of the proposed CR as close as possible to the indeterminate
CR with one exception – the B felony maximum sentence was lowered because of the very small number of cases with time
served greater than 16 years.
c

Excludes Manslaughter 2 cases.

Sources: NYS Department of Correctional Services data; table prepared by the NYS Division of Criminal Justice Services.

222

Chart D-4
Second-Felony Non-Violent, Non-Drug, Non-Sex Offender:
Current and Proposed Maximum Sentences
Current
Indeterminate
Maximum
Sentences and
Release Points
(in years)
12 ½ – 25

Determinate
Drug
Model
12

Time-Served
a
Model
17

CR-Based
b
Model
16

10.4
12.5
16.7

8.6
–
10.3

12.1
–
14.6

11.4
–
13.7

Max Sentence
Release Type
Ŷ Merit
Ŷ Parole
Ŷ CR
Max Sentence
Release Type
Ŷ Merit
Ŷ Parole
Ŷ CR

7½ – 15

8

10½

6.2
7.5
10.0

5.8
–
6.9

7.5
–
9.0

8.6
–
10.3

3½ – 7

4

6

5½

2.9
3.5
4.7

2.8
–
3.4

4.3
–
5.1

3.9
–
4.7

Max Sentence
Release Type
Ŷ Merit
Ŷ Parole
Ŷ CR

2–4

2

3½

3

1.7
2.0
2.7

1.4
–
1.7

2.5
–
3.0

2.1
–
2.6

All Cases: % With Time Served Falling At or
Below the Point of Proposed CR
Ŷ B Felony: Overall (N=178)
Excluding Consp. 2 (N=55)
Conspiracy 2 Only (N=123)

–
–
–

93.3%
96.4%
91.9%

98.3%
100.0%
97.6%

97.2%
98.2%
96.7%

Ŷ C Felony: Overall (N=727)
Excluding Man. 2 (N=466)
Manslaughter 2 (N=261)

–
–
–

83.4%
94.4%
64.4%

91.5%
97.6%
80.5%

96.8%
99.6%
92.7%

Ŷ D Felony (N=18,689)
Ŷ E Felony (N=31,054)
Cases With Maximum Sentences:
% of Cohort That Served Less Than
Proposed Determinate Merit Date
Ŷ B Felony: 12½ – 25 (N=10)
Ŷ C Felony – Exc. Man 2: 7½ – 15 (N=13)
Ŷ D Felony: 3½ – 7 (N=1,588)
Ŷ E Felony: 2 – 4 (N=5,257)

–
–

81.9%
48.3%

97.9%
97.7%

96.0%
89.3%

30.0%
0.0%
12.4%
11.7%

10.0%
0.0%
3.5%
5.4%

40.0%
23.1%
54.9%
82.0%

40.0%
23.1%
63.2%
50.1%

Felony Maximum Sentence
Class and Release Type
Max Sentence
Release Type
B
Ŷ Merit
Ŷ Parole
Ŷ CR

C

D

E

Proposed Determinate Sentence Models:
Maximum Sentence and Release Points (in years)

c

12

a
Maximum sentence length was determined using time served data. Maximum sentence length was established by determining
at what point in the range of monthly time-served data the cumulative percentage of cases reached 98%. This point was used to
establish the proposed conditional (CR) point. The maximum sentence was determined by dividing that point by .857 – the
point at which inmates become eligible for CR.
b
Maximum sentence length was determined by setting the point of the proposed CR as close as possible to the indeterminate
CR with one exception – the B felony maximum sentence was lowered because of the very small number of cases with time
served greater than 16 years.
c

Excludes Manslaughter 2 cases.

Sources: NYS Department of Correctional Services data; table prepared by the NYS Division of Criminal Justice Services.

223

Chart D-5

Time-Served for Class-B Felony Offenses, DOCS 1985-2007 First-Release Cohort:
Monthly and Cumulative Monthly Percent Distributions by Offender Status

Class B First-Felony Offenders
Percent
N of
Distri- Cumulative
Time Served
Years Months Cases
bution
Percent
0.1
1
3
0.3%
0.3%
0.2
2
10
0.9%
1.2%
0.3
3
3
0.3%
1.5%
0.3
4
2
0.2%
1.7%
0.5
6
1
0.1%
1.8%
0.6
7
10
0.9%
2.7%
0.7
8
15
1.4%
4.2%
0.8
9
10
0.9%
5.1%
0.8
10
10
0.9%
6.1%
0.9
11
117
11.1%
17.1%
1.0
12
80
7.6%
24.7%
1.1
13
16
1.5%
26.2%
1.2
14
24
2.3%
28.5%
1.3
15
16
1.5%
30.0%
1.3
16
12
1.1%
31.2%
1.4
17
40
3.8%
34.9%
1.5
18
16
1.5%
36.5%
1.6
19
31
2.9%
39.4%
1.7
20
22
2.1%
41.5%
1.8
21
8
0.8%
42.2%
1.8
22
8
0.8%
43.0%
1.9
23
91
8.6%
51.6%
2.0
24
42
4.0%
55.6%
2.1
25
5
0.5%
56.1%
2.2
26
5
0.5%
56.5%
2.3
27
11
1.0%
57.6%
2.3
28
8
0.8%
58.3%
2.4
29
34
3.2%
61.6%
2.5
30
12
1.1%
62.7%
2.6
31
9
0.9%
63.5%
2.7
32
10
0.9%
64.5%
2.8
33
14
1.3%
65.8%
2.8
34
9
0.9%
66.7%
2.9
35
42
4.0%
70.6%
3.0
36
27
2.6%
73.2%
3.1
37
6
0.6%
73.8%
3.2
38
3
0.3%
74.1%
3.3
39
25
2.4%
76.4%
3.3
40
11
1.0%
77.5%
3.4
41
6
0.6%
78.0%
3.5
42
1
0.1%
78.1%
3.6
43
7
0.7%
78.8%
3.7
44
4
0.4%
79.2%
3.8
45
3
0.3%
79.5%
3.8
46
5
0.5%
79.9%
3.9
47
29
2.7%
82.7%
4.0
48
16
1.5%
84.2%
4.1
49
13
1.2%
85.4%
4.2
50
1
0.1%
85.5%
4.3
51
5
0.5%
86.0%
4.3
52
2
0.2%
86.2%

Model
Maximum
CR Point*

Class B Second-Felony Offenders
Percent
N of
Distri- Cumulative
Time Served
Years Months Cases
bution
Percent
0.8
9
1
0.6%
0.6%
0.8
10
1
0.6%
1.1%
0.9
11
1
0.6%
1.7%
1.1
13
2
1.1%
2.8%
1.2
14
2
1.1%
3.9%
1.4
17
3
1.7%
5.6%
1.5
18
4
2.2%
7.9%
1.7
20
1
0.6%
8.4%
1.8
22
1
0.6%
9.0%
1.9
23
3
1.7%
10.7%
2.0
24
4
2.2%
12.9%
2.4
29
4
2.2%
15.2%
2.5
30
1
0.6%
15.7%
2.6
31
3
1.7%
17.4%
2.8
33
1
0.6%
18.0%
2.8
34
2
1.1%
19.1%
2.9
35
4
2.2%
21.3%
3.0
36
3
1.7%
23.0%
3.1
37
1
0.6%
23.6%
3.3
39
2
1.1%
24.7%
3.3
40
1
0.6%
25.3%
3.4
41
2
1.1%
26.4%
3.7
44
13
7.3%
33.7%
3.8
45
2
1.1%
34.8%
3.8
46
1
0.6%
35.4%
3.9
47
4
2.2%
37.6%
4.0
48
2
1.1%
38.8%
4.1
49
8
4.5%
43.3%
4.2
50
5
2.8%
46.1%
4.3
51
1
0.6%
46.6%
4.3
52
1
0.6%
47.2%
4.4
53
13
7.3%
54.5%
4.5
54
5
2.8%
57.3%
4.8
57
1
0.6%
57.9%
4.9
59
3
1.7%
59.6%
5.0
60
7
3.9%
63.5%
5.3
63
1
0.6%
64.0%
5.3
64
1
0.6%
64.6%
5.4
65
1
0.6%
65.2%
5.7
68
1
0.6%
65.7%
5.8
69
1
0.6%
66.3%
5.9
71
7
3.9%
70.2%
6.0
72
4
2.2%
72.5%
6.1
73
1
0.6%
73.0%
6.3
75
1
0.6%
73.6%
6.3
76
1
0.6%
74.2%
6.4
77
2
1.1%
75.3%
6.5
78
1
0.6%
75.8%
6.6
79
2
1.1%
77.0%
7.0
84
2
1.1%
78.1%
7.1
85
1
0.6%
78.7%

Continued on next page

224

Model
Maximum
CR Point*

Chart D-5

Time-Served for Class-B Felony Offenses, DOCS 1985-2007 First-Release Cohort:
Monthly and Cumulative Monthly Percent Distributions by Offender Status
Class B First-Felony Offenders
Percent
Model
N of
Distri- Cumulative Maximum
Cases
bution
Percent CR Point*
3
0.3%
86.5%
3
0.3%
86.7%
3
0.3%
87.0%
3
0.3%
87.3%
8
0.8%
88.1%
15
1.4%
89.5%
3
0.3%
89.8%
1
0.1%
89.9%
6
0.6%
90.4%
2
0.2%
90.6%
2
0.2%
90.8%
1
0.1%
90.9%
4
0.4%
91.3%
4
0.4%
91.7%
22
2.1%
93.8%
7
0.7%
94.4%
1
0.1%
94.5%
1
0.1%
94.6%
1
0.1%
94.7%
1
0.1%
94.8%
2
0.2%
95.0%
1
0.1%
95.1%
2
0.2%
95.3%
6
0.6%
95.8%
2
0.2%
96.0%
1
0.1%
96.1%
1
0.1%
96.2% Determ. Drug
1
0.1%
96.3%
8
0.8%
97.1%
1
0.1%
97.2%
3
0.3%
97.4%
7
0.7%
98.1%
2
0.2%
98.3%
2
0.2%
98.5% Time Served
1
0.1%
98.6%
1
0.1%
98.7%
1
0.1%
98.8%
2
0.2%
99.0%
1
0.1%
99.1%
1
0.1%
99.1%
1
0.1%
99.2%
1
0.1%
99.3%
1
0.1%
99.4%
1
0.1%
99.5% CR-Based
1
0.1%
99.6%
1
0.1%
99.7%
1
0.1%
99.8%
1
0.1%
99.9%
1
0.1%
100.0%
1,056 100.0%

Time Served
Years Months
4.5
54
4.6
55
4.8
57
4.8
58
4.9
59
5.0
60
5.1
61
5.2
62
5.3
63
5.4
65
5.5
66
5.6
67
5.8
69
5.8
70
5.9
71
6.0
72
6.1
73
6.2
74
6.3
76
6.4
77
6.6
79
6.7
80
6.8
82
6.9
83
7.0
84
7.3
88
7.5
90
7.8
93
7.9
95
8.0
96
8.3
99
8.3
100
8.4
101
8.6
103
8.9
107
9.3
112
9.6
115
9.9
119
10.3
124
10.5
126
10.8
130
11.0
132
11.9
143
12.2
146
14.0
168
14.9
179
15.8
190
16.6
199
16.7
200
Total

Class B Second-Felony Offenders
Percent
Model
N of
Distri- Cumulative Maximum
Cases
bution
Percent CR Point*
2
1.1%
79.8%
1
0.6%
80.3%
1
0.6%
80.9%
1
0.6%
81.5%
2
1.1%
82.6%
4
2.2%
84.8%
2
1.1%
86.0%
2
1.1%
87.1%
1
0.6%
87.6%
1
0.6%
88.2%
1
0.6%
88.8%
1
0.6%
89.3%
1
0.6%
89.9%
1
0.6%
90.4%
1
0.6%
91.0%
1
0.6%
91.6%
3
1.7%
93.3% Determ. Drug
1
0.6%
93.8%
1
0.6%
94.4%
1
0.6%
94.9%
1
0.6%
95.5%
1
0.6%
96.1%
1
0.6%
96.6%
1
0.6%
97.2% CR-Based
1
0.6%
97.8%
1
0.6%
98.3% Time Served
1
0.6%
98.9%
1
0.6%
99.4%
1
0.6%
100.0%
178
78.7%

Time Served
Years Months
7.3
88
7.4
89
7.5
90
7.8
93
7.8
94
7.9
95
8.0
96
8.1
97
8.3
99
8.3
100
8.7
104
8.9
107
9.0
108
9.3
112
9.4
113
10.0
120
10.3
124
10.4
125
10.7
128
11.0
132
11.1
133
11.8
142
12.5
150
12.6
151
13.9
167
14.4
173
17.0
204
17.4
209
24.3
291
Total

* See percent of time served falling at or below the point of proposed conditional release (CR) in Chart D-3 for first-felony offenders and
Chart D-4 for second-felony offenders.
Sources: NYS Department of Correctional Services data; table prepared by the NYS Division of Criminal Justice Services.

225

Chart D-6

Time-Served for Class-C Felony Offenses Other Than Manslaughter 2, DOCS 1985-2007
First-Release Cohort: Monthly and Cumulative Monthly Percent Distributions by Offender Status

Class C First-Felony Offenders
Percent
N of
Distri- Cumulative
Time Served
Years Months Cases
bution
Percent
0.1
1
2
0.1%
0.1%
0.2
2
2
0.1%
0.3%
0.3
3
4
0.3%
0.5%
0.3
4
3
0.2%
0.8%
0.4
5
1
0.1%
0.8%
0.5
6
4
0.3%
1.1%
0.6
7
25
1.7%
2.8%
0.7
8
14
1.0%
3.8%
0.8
9
25
1.7%
5.5%
0.8
10
15
1.0%
6.5%
0.9
11
199
13.6%
20.1%
1.0
12
123
8.4%
28.5%
1.1
13
28
1.9%
30.4%
1.2
14
25
1.7%
32.1%
1.3
15
38
2.6%
34.7%
1.3
16
24
1.6%
36.4%
1.4
17
65
4.4%
40.8%
1.5
18
33
2.3%
43.1%
1.6
19
48
3.3%
46.3%
1.7
20
19
1.3%
47.6%
1.8
21
18
1.2%
48.9%
1.8
22
12
0.8%
49.7%
1.9
23
179
12.2%
61.9%
2.0
24
69
4.7%
66.6%
5
0.3%
67.0%
2.1
25
2.2
26
7
0.5%
67.5%
2.3
27
15
1.0%
68.5%
2.3
28
10
0.7%
69.2%
2.4
29
45
3.1%
72.2%
2.5
30
11
0.8%
73.0%
2.6
31
12
0.8%
73.8%
2.7
32
2
0.1%
74.0%
2.8
33
15
1.0%
75.0%
2.8
34
12
0.8%
75.8%
2.9
35
68
4.6%
80.5%
3.0
36
24
1.6%
82.1%
3.1
37
5
0.3%
82.4%
3.2
38
2
0.1%
82.6%
3.3
39
23
1.6%
84.1%
3.3
40
8
0.5%
84.7%
3.4
41
6
0.4%
85.1%
3.5
42
2
0.1%
85.2%
3.6
43
4
0.3%
85.5%
3.7
44
3
0.2%
85.7%
3.8
45
5
0.3%
86.1%
3.8
46
7
0.5%
86.5%
3.9
47
54
3.7%
90.2%

Model
Maximum
CR Point*

Class C Second-Felony Offenders
Percent
N of
Distri- Cumulative
Time Served
Years Months Cases
bution
Percent
0.3
4
1
0.2%
0.2%
0.6
7
1
0.2%
0.4%
0.7
8
3
0.6%
1.1%
0.8
9
2
0.4%
1.5%
0.9
11
5
1.1%
2.6%
1.1
13
5
1.1%
3.6%
1.2
14
4
0.9%
4.5%
1.3
15
4
0.9%
5.4%
1.4
17
25
5.6%
10.9%
1.5
18
8
1.7%
12.7%
1.6
19
2
0.4%
13.1%
1.7
20
4
0.9%
13.9%
1.8
21
2
0.4%
14.4%
1.9
23
21
4.5%
18.9%
2.0
24
5
1.1%
20.0%
2.1
25
2
0.4%
20.4%
2.2
26
1
0.2%
20.6%
2.3
27
2
0.4%
21.0%
2.3
28
2
0.4%
21.5%
2.4
29
28
6.0%
27.5%
2.5
30
3
0.6%
28.1%
2.6
31
12
2.6%
30.7%
2.7
32
1
0.2%
30.9%
2.8
33
3
0.6%
31.5%
2.8
34
4
0.9%
32.4%
2.9
35
43
9.2%
41.6%
3.0
36
29
6.2%
47.9%
3.1
37
3
0.6%
48.5%
3.3
39
10
2.1%
50.6%
3.3
40
2
0.4%
51.1%
3.4
41
8
1.7%
52.8%
3.5
42
0
0.0%
52.8%
3.6
43
3
0.6%
53.4%
3.7
44
5
1.1%
54.5%
3.8
45
2
0.4%
54.9%
3.9
47
46
9.9%
64.8%
4.0
48
13
2.8%
67.6%
4.1
49
8
1.7%
69.3%
4.2
50
4
0.9%
70.2%
4.3
52
2
0.4%
70.6%
4.4
53
7
1.5%
72.1%
4.5
54
2
0.4%
72.5%
4.6
55
5
1.1%
73.6%
4.7
56
1
0.2%
73.8%
4.8
57
2
0.4%
74.2%
4.8
58
8
1.7%
76.0%
4.9
59
12
2.6%
78.5%

Continued on next page

226

Model
Maximum
CR Point*

Chart D-6

Time-Served for Class-C Felony Offenses Other Than Manslaughter 2, DOCS 1985-2007
First-Release Cohort: Monthly and Cumulative Monthly Percent Distributions by Offender Status

Class C First-Felony Offenders
Class C Second-Felony Offenders
Percent
Model
Percent
Model
Time Served
Time Served
N of
Distri- Cumulative Maximum
N of
Distri- Cumulative Maximum
Years Months Cases
bution
Percent CR Point*
Years Months Cases
bution
Percent CR Point*
4.0
48
15
1.0%
91.3%
5.0
60
5
1.1%
79.6%
4.1
49
12
0.8%
92.1%
5.1
61
2
0.4%
80.0%
4.2
50
1
0.1%
92.1%
5.3
63
17
3.6%
83.7%
4.3
51
1
0.1%
92.2%
5.3
64
5
1.1%
84.8%
4.3
52
1
0.1%
92.3%
5.4
65
3
0.6%
85.4%
4.4
53
4
0.3%
92.5%
5.5
66
1
0.2%
85.6%
4.5
54
5.7
68
0
0.0%
92.5%
2
0.4%
86.1%
4.6
55
8
0.5%
93.1%
5.8
69
0
0.0%
86.1%
4.7
56
1
0.1%
93.2% Determ. Drug
5.8
70
1
0.2%
86.3%
4.8
57
0
0.0%
93.2%
5.9
71
11
2.4%
88.6%
4.8
58
3
0.2%
93.4%
6.0
72
13
2.8%
91.4%
4.9
59
16
1.1%
94.5%
6.1
73
1
0.2%
91.6%
5.0
60
10
0.7%
95.1%
6.2
74
0
0.0%
91.6%
5.1
61
3
0.2%
95.4%
6.3
75
0
0.0%
91.6%
5.2
62
6.3
76
3
0.2%
95.6%
1
0.2%
91.8%
5.3
63
2
0.1%
95.7%
6.4
77
0
0.0%
91.8%
5.3
64
0
0.0%
95.7%
6.5
78
2
0.4%
92.3%
5.4
65
1
0.1%
95.8%
6.6
79
7
1.5%
93.8%
5.5
66
0
0.0%
95.8%
6.7
80
1
0.2%
94.0%
5.6
67
0
0.0%
95.8%
6.8
81
0
0.0%
94.0%
5.7
68
1
0.1%
95.8%
6.8
82
1
0.2%
94.2%
5.8
69
2
0.1%
96.0%
6.9
83
1
0.2%
94.4% Determ. Drug
5.8
70
7.0
84
1
0.1%
96.0%
0
0.0%
94.4%
5.9
71
7.1
85
22
1.5%
97.5%
1
0.2%
94.6%
6.0
72
4
0.3%
97.8%
7.3
87
0
0.0%
94.6%
6.1
73
0
0.0%
97.8%
7.3
88
1
0.2%
94.8%
6.2
74
1
0.1%
97.9%
7.4
89
2
0.4%
95.3%
6.3
75
0
0.0%
97.9%
7.5
90
0
0.0%
95.3%
6.3
76
1
0.1%
97.9%
7.6
91
0
0.0%
95.3%
6.4
77
0
0.0%
97.9%
7.7
92
1
0.2%
95.5%
6.6
79
5
0.3%
98.3%
7.8
93
0
0.0%
95.5%
6.7
80
7.9
95
0
0.0%
98.3%
4
0.9%
96.4%
6.8
81
1
0.1%
98.4%
8.0
96
1
0.2%
96.6%
6.8
82
0
0.0%
98.4% Time Served
8.1
97
1
0.2%
96.8%
6.9
83
1
0.1%
98.4%
8.2
98
0
0.0%
96.8%
7.0
84
2
0.1%
98.6%
8.3
99
0
0.0%
96.8%
7.3
87
0
0.0%
98.6%
8.4
101
1
0.2%
97.0%
7.4
89
0
0.0%
98.6%
8.5
102
1
0.2%
97.2%
7.5
90
0
0.0%
98.6%
8.6
103
1
0.2%
97.4%
7.7
92
8.7
104
1
0.1%
98.6%
0
0.0%
97.4%
7.8
93
8.8
106
0
0.0%
98.6%
0
0.0%
97.4%
7.8
94
0
0.0%
98.6%
8.9
107
1
0.2%
97.6%
7.9
95
3
0.2%
98.8%
9.1
109
1
0.2%
97.6% Time Served
Continued on next page

227

Chart D-6

Time-Served for Class-C Felony Offenses Other Than Manslaughter 2, DOCS 1985-2007
First-Release Cohort: Monthly and Cumulative Monthly Percent Distributions by Offender Status

Class C First-Felony Offenders
Percent
Model
N of
Distri- Cumulative Maximum
Time Served
Years Months Cases
bution
Percent CR Point*
8.0
96
3
0.2%
99.0%
8.1
97
0
0.0%
99.0%
8.2
98
1
0.1%
99.1%
8.3
99
0
0.0%
99.1%
8.3
100
0
0.0%
99.1%
8.4
101
1
0.1%
99.2%
8.6
103
1
0.1%
99.2%
8.7
104
0
0.0%
99.2%
8.8
105
1
0.1%
99.3%
8.8
106
0
0.0%
99.3%
8.9
107
3
0.2%
99.5%
9.0
108
0
0.0%
99.5%
9.1
109
0
0.0%
99.5%
9.2
110
0
0.0%
99.5%
9.5
114
0
0.0%
99.5%
9.6
115
0
0.0%
99.5%
9.8
118
0
0.0%
99.5%
9.9
119
3
0.2%
99.7%
10.0
120
3
0.2%
99.9%
10.1
121
0
0.0%
99.9%
10.2
122
0
0.0%
99.9%
10.3
123
0
0.0%
99.9%
10.3
124
0
0.0%
99.9% CR-Based
10.4
125
0
0.0%
99.9%
10.5
126
0
0.0%
99.9%
10.7
128
1
0.1%
100.0%
Total
1,463 100.0%

Class C Second-Felony Offenders
Percent
Model
N of
Distri- Cumulative Maximum
Time Served
Years Months Cases
bution
Percent CR Point*
9.3
111
2
0.4%
98.1%
9.3
112
2
0.4%
98.5%
9.4
113
2
0.4%
98.9%
9.5
114
0
0.0%
98.9%
9.9
119
0
0.0%
98.9%
10.0
120
0
0.0%
98.9%
10.1
121
0
0.0%
98.9%
10.3
123
1
0.2%
99.1%
10.3
124
2
0.4%
99.6% CR-Based
10.5
126
0
0.0%
99.6%
10.6
127
0
0.0%
99.6%
10.7
128
1
0.2%
99.8%
10.9
131
0
0.0%
99.8%
11.0
132
0
0.0%
99.8%
11.3
135
0
0.0%
99.8%
11.5
138
1
0.2%
100.0%
Total
466 100.0%

* See percent of time served falling at or below the point of proposed conditional release (CR) in Chart D-3 for first-felony offenders and
Chart D-4 for second-felony offenders.
Sources: NYS Department of Correctional Services data; table prepared by the NYS Division of Criminal Justice Services.

228

Chart D-7

Time-Served for Class-D Felony Offenses, DOCS 1985-2007 First-Release Cohort:
Monthly and Cumulative Monthly Percent Distributions by Offender Status
Class D First-Felony Offenders
Percent
Model
N of
Distri- Cumulative Maximum
Cases
bution
Percent CR Point*
2
0.0%
0.0%
6
0.0%
0.1%
13
0.1%
0.1%
5
0.0%
0.2%
9
0.1%
0.2%
10
0.1%
0.3%
30
0.2%
0.5%
277
1.9%
2.4%
425
2.9%
5.4%
460
3.2%
8.5%
453
3.1%
11.7%
2,178
15.0%
26.7%
1,469
10.1%
36.9%
440
3.0%
39.9%
345
2.4%
42.3%
692
4.8%
47.1%
438
3.0%
50.1%
641
4.4%
54.5%
372
2.6%
57.1%
465
3.2%
60.3%
224
1.5%
61.8%
176
1.2%
63.0%
150
1.0%
64.1%
1,816
12.5%
76.6%
457
3.2%
79.8%
130
0.9%
80.7% Determ. Drug
109
0.8%
81.4%
294
2.0%
83.5%
197
1.4%
84.8%
93
0.6%
85.5%
52
0.4%
85.8%
419
2.9%
88.7%
57
0.4%
89.1%
41
0.3%
89.4%
82
0.6%
90.0%
357
2.5%
92.4%
59
0.4%
92.8%
44
0.3%
93.1%
50
0.3%
93.5%
96
0.7%
94.1%
32
0.2%
94.4%
38
0.3%
94.6%
17
0.1%
94.7%
11
0.1%
94.8%
12
0.1%
94.9%
22
0.2%
95.1%
36
0.2%
95.3%
250
1.7%
97.0%

Time Served
Years Months
0.0
0
0.1
1
0.2
2
0.3
3
0.3
4
0.4
5
0.5
6
0.6
7
0.7
8
0.8
9
0.8
10
0.9
11
1.0
12
1.1
13
1.2
14
1.3
15
1.3
16
1.4
17
1.5
18
1.6
19
1.7
20
1.8
21
1.8
22
1.9
23
2.0
24
2.1
25
2.2
26
2.3
27
2.3
28
2.4
29
2.5
30
2.6
31
2.7
32
2.8
33
2.8
34
2.9
35
3.0
36
3.1
37
3.2
38
3.3
39
3.3
40
3.4
41
3.5
42
3.6
43
3.7
44
3.8
45
3.8
46
3.9
47

Continued on next page

229

Class D Second-Felony Offenders
Percent
Model
N of
Distri- Cumulative Maximum
Cases
bution
Percent CR Point*
1
0.0%
0.0%
9
0.0%
0.1%
5
0.0%
0.1%
4
0.0%
0.1%
6
0.0%
0.1%
5
0.0%
0.2%
11
0.1%
0.2%
123
0.7%
0.9%
186
1.0%
1.9%
188
1.0%
2.9%
174
0.9%
3.8%
196
1.0%
4.9%
165
0.9%
5.7%
124
0.7%
6.4%
120
0.6%
7.0%
101
0.5%
7.6%
71
0.4%
8.0%
203
1.1%
9.1%
120
0.6%
9.7%
745
4.0%
13.7%
207
1.1%
14.8%
118
0.6%
15.4%
90
0.5%
15.9%
2851
15.3%
31.2%
1653
8.8%
40.0%
224
1.2%
41.2%
179
1.0%
42.2%
157
0.8%
43.0%
180
1.0%
44.0%
1101
5.9%
49.9%
437
2.3%
52.2%
1946
10.4%
62.6%
244
1.3%
63.9%
232
1.2%
65.2%
429
2.3%
67.4%
702
3.8%
71.2%
408
2.2%
73.4%
171
0.9%
74.3%
108
0.6%
74.9%
589
3.2%
78.0%
184
1.0%
79.0%
533
2.9%
81.9% Determ. Drug
280
1.5%
83.4%
126
0.7%
84.0%
100
0.5%
84.6%
139
0.7%
85.3%
177
0.9%
86.3%
610
3.3%
89.5%

Time Served
Years Months
0.0
0
0.1
1
0.2
2
0.3
3
0.3
4
0.4
5
0.5
6
0.6
7
0.7
8
0.8
9
0.8
10
0.9
11
1.0
12
1.1
13
1.2
14
1.3
15
1.3
16
1.4
17
1.5
18
1.6
19
1.7
20
1.8
21
1.8
22
1.9
23
2.0
24
2.1
25
2.2
26
2.3
27
2.3
28
2.4
29
2.5
30
2.6
31
2.7
32
2.8
33
2.8
34
2.9
35
3.0
36
3.1
37
3.2
38
3.3
39
3.3
40
3.4
41
3.5
42
3.6
43
3.7
44
3.8
45
3.8
46
3.9
47

Chart D-7

Time-Served for Class-D Felony Offenses, DOCS 1985-2007 First-Release Cohort:
Monthly and Cumulative Monthly Percent Distributions by Offender Status
Class D First-Felony Offenders
Percent
Model
N of
Distri- Cumulative Maximum
Cases
bution
Percent CR Point*
54
0.4%
97.4%
10
0.1%
97.5%
33
0.2%
97.7%
28
0.2%
97.9%
7
0.0%
97.9% Time Served
28
0.2%
98.1%
5
0.0%
98.2%
138
1.0%
99.1%
25
0.2%
99.3% CR-Based
6
0.0%
99.3%
7
0.0%
99.4%
15
0.1%
99.5%
6
0.0%
99.5%
3
0.0%
99.6%
1
0.0%
99.6%
3
0.0%
99.6%
2
0.0%
99.6%
6
0.0%
99.6%
4
0.0%
99.7%
5
0.0%
99.7%
4
0.0%
99.7%
2
0.0%
99.7%
14
0.1%
99.8%
2
0.0%
99.8%
1
0.0%
99.9%
4
0.0%
99.9%
1
0.0%
99.9%
1
0.0%
99.9%
2
0.0%
99.9%
1
0.0%
99.9%
7
0.0%
100.0%
5
0.0%
100.0%
14,481 100.0%

Class D Second-Felony Offenders
Percent
Model
N of
Distri- Cumulative Maximum
Cases
bution
Percent CR Point*
464
2.5%
92.0%
48
0.3%
92.3%
53
0.3%
92.6%
79
0.4%
93.0%
94
0.5%
93.5%
93
0.5%
94.0%
42
0.2%
94.2%
280
1.5%
95.7%
65
0.3%
96.0% CR-Based
41
0.2%
96.3%
53
0.3%
96.5%
87
0.5%
97.0%
147
0.8%
97.8%
20
0.1%
97.9% Time Served
19
0.1%
98.0%
18
0.1%
98.1%
31
0.2%
98.3%
58
0.3%
98.6%
15
0.1%
98.7%
16
0.1%
98.7%
10
0.1%
98.8%
13
0.1%
98.9%
12
0.1%
98.9%
36
0.2%
99.1%
52
0.3%
99.4%
4
0.0%
99.4%
7
0.0%
99.5%
7
0.0%
99.5%
2
0.0%
99.5%
8
0.0%
99.6%
3
0.0%
99.6%
2
0.0%
99.6%
1
0.0%
99.6%
8
0.0%
99.6%
5
0.0%
99.7%
14
0.1%
99.7%
50
0.3%
100.0%
18,689 100.0%

Time Served
Years Months
4.0
48
4.1
49
4.2
50
4.3
51
4.3
52
4.4
53
4.5
54
4.6
55
4.7
56
4.8
57
4.8
58
4.9
59
5.0
60
5.1
61
5.2
62
5.3
63
5.3
64
5.4
65
5.5
66
5.7
68
5.8
69
5.8
70
5.9
71
6.0
72
6.1
73
6.2
74
6.3
75
6.3
76
6.6
79
6.8
82
6.9
83
7.0
84
Total

Time Served
Years Months
4.0
48
4.1
49
4.2
50
4.3
51
4.3
52
4.4
53
4.5
54
4.6
55
4.7
56
4.8
57
4.8
58
4.9
59
5.0
60
5.1
61
5.2
62
5.3
63
5.3
64
5.4
65
5.5
66
5.6
67
5.7
68
5.8
69
5.8
70
5.9
71
6.0
72
6.1
73
6.2
74
6.3
75
6.3
76
6.4
77
6.5
78
6.6
79
6.7
80
6.8
81
6.8
82
6.9
83
7.0
84
Total

* See percent of time served falling at or below the point of proposed conditional release (CR) in Chart D-3 for first-felony offenders and
Chart D-4 for second-felony offenders.

230

Chart D-8

Time-Served for Class-E Felony Offenses, DOCS 1985-2007 First-Release Cohort:
Monthly and Cumulative Monthly Percent Distributions by Offender Status

Class E First-Felony Offenders
Percent
Model
N of
Distri- Cumulative Maximum
Time Served
Years Months Cases
bution
Percent CR Point*
0.0
0
1
0.0%
0.0%
0.1
1
3
0.0%
0.0%
0.2
2
8
0.1%
0.1%
0.3
3
8
0.1%
0.1%
0.3
4
6
0.0%
0.2%
0.4
5
3
0.0%
0.2%
0.5
6
17
0.1%
0.3%
0.6
7
266
1.8%
2.1%
0.7
8
334
2.3%
4.4%
0.8
9
354
2.4%
6.8%
0.8
10
306
2.1%
8.9%
0.9
11
2322
15.9%
24.8%
1.0
12
1481
10.1%
34.9%
1.1
13
394
2.7%
37.6%
1.2
14
258
1.8%
39.4%
1.3
15
924
6.3%
45.7%
1.3
16
507
3.5%
49.2% Determ. Drug
1.4
17
346
2.4%
51.5%
1.5
18
296
2.0%
53.6%
1.6
19
242
1.7%
55.2%
1.7
20
200
1.4%
56.6%
1.8
21
197
1.3%
57.9%
1.8
22
173
1.2%
59.1%
1.9
23
3158
21.6%
80.7%
424
2.9%
83.6%
2.0
24
2.1
25
153
1.0%
84.7%
2.2
26
172
1.2%
85.8%
2.3
27
84
0.6%
86.4%
2.3
28
69
0.5%
86.9%
2.4
29
85
0.6%
87.5%
2.5
30
42
0.3%
87.7%
2.6
31
1147
7.8%
95.6% CR-Based
2.7
32
121
0.8%
96.4%
2.8
33
53
0.4%
96.8%
2.8
34
44
0.3%
97.1%
2.9
35
188
1.3%
98.4%
3.0
36
27
0.2%
98.6% Time Served
3.1
37
34
0.2%
98.8%
3.2
38
18
0.1%
98.9%
3.3
39
17
0.1%
99.0%
3.3
40
11
0.1%
99.1%
3.4
41
12
0.1%
99.2%
3.5
42
6
0.0%
99.2%
3.6
43
9
0.1%
99.3%
3.7
44
5
0.0%
99.3%
3.8
45
6
0.0%
99.4%
3.8
46
3
0.0%
99.4%
3.9
47
65
0.4%
99.8%
4.0
48
26
0.2%
100.0%
Total 14,625
100.0%

Class E Second-Felony Offenders
Percent
Model
N of
Distri- Cumulative Maximum
Time Served
Years Months Cases
bution
Percent CR Point*
0.0
0
3
0.0%
0.0%
0.1
1
5
0.0%
0.0%
0.2
2
16
0.1%
0.1%
0.3
3
10
0.0%
0.1%
0.3
4
10
0.0%
0.1%
0.4
5
10
0.0%
0.2%
0.5
6
23
0.1%
0.2%
0.6
7
240
0.8%
1.0%
0.7
8
319
1.0%
2.0%
0.8
9
311
1.0%
3.0%
0.8
10
272
0.9%
3.9%
0.9
11
304
1.0%
4.9%
1.0
12
233
0.8%
5.7%
1.1
13
119
0.4%
6.0%
1.2
14
1007
3.2%
9.3%
1.3
15
486
1.6%
10.8%
1.3
16
328
1.1%
11.9%
1.4
17
6754
21.7%
33.7%
1.5
18
3172
10.2%
43.9%
1.6
19
832
2.7%
46.5%
1.7
20
556
1.8%
48.3% Determ. Drug
1.8
21
507
1.6%
50.0%
1.8
22
374
1.2%
51.2%
1.9
23
6583
21.2%
72.4%
2.0
24
1357
4.4%
76.7%
2.1
25
408
1.3%
78.1%
2.2
26
460
1.5%
79.5%
2.3
27
517
1.7%
81.2%
2.3
28
455
1.5%
82.7%
2.4
29
388
1.2%
83.9%
2.5
30
222
0.7%
84.6%
2.6
31
1446
4.7%
89.3% CR-Based
2.7
32
291
0.9%
90.2%
2.8
33
297
1.0%
91.2%
2.8
34
296
1.0%
92.1%
2.9
35
606
2.0%
94.1%
3.0
36
1117
3.6%
97.7% Time Served
3.1
37
57
0.2%
97.9%
3.2
38
43
0.1%
98.0%
3.3
39
53
0.2%
98.2%
3.3
40
39
0.1%
98.3%
3.4
41
46
0.1%
98.4%
3.5
42
45
0.1%
98.6%
3.6
43
29
0.1%
98.7%
3.7
44
29
0.1%
98.8%
3.8
45
32
0.1%
98.9%
3.8
46
45
0.1%
99.0%
3.9
47
151
0.5%
99.5%
4.0
48
151
0.5%
100.0%
Total 31,054
100.0%

* See percent of time served falling at or below the point of proposed conditional release (CR) in Chart D-3 for first-felony offenders and
Chart D-4 for second-felony offenders.
Sources: NYS Department of Correctional Services data; table prepared by the NYS Division of Criminal Justice Services.

231

APPENDIX E
DISPARATE INCARCERATION RATES
FOR FELONY DRUG OFFENDERS:
DESCRIPTIVE STATISTICS AND
ESTIMATED ODDS OF INCARCERATION

232

Chart E-1
Class B Felony Drug Possession (Penal Law §220.16) Arrests Disposed 2004-2006 Involving Males Age 19 or Older
With "No Prior" Felony Convictions: Systemwide Prison Rates and Disposition Outcomes for Indicted/SCI Arrest Cases
All Arrest Cases

Arrest Cases Resulting in Indictments/SCIs: Disposition Outcomes

N

% Prison

% Indict./
SCI

N

Total

% Prison

13,563
11,246

8%
10%

–
40%

–
4,451

–
100%

–
24%

% Felony
Jail 1-Year

10%

2,317
2,057
2,363
1,439
393

3%
4%
6%
2%
4%

NA
19%
33%
29%
18%

NA
401
779
417
69

NA
100%
100%
100%
100%

NA
18%
19%
8%
20%

224
122
453
435

13%
26%
7%
5%

82%
70%
53%
53%

184
86
242
230

100%
100%
100%
100%

Albany
Allegany
Broome
Cattaraugus
Cayuga

262
9
146
9
13

27%
22%
21%
67%
23%

55%
56%
70%
100%
77%

143
5
102
9
10

Chautauqua
Chemung
Chenango
Clinton
Columbia

58
69
6
14
8

17%
17%
17%
21%
38%

67%
64%
33%
79%
38%

Cortland
Delaware
Dutchess
Erie
Essex

5
6
105
887
1

60%
33%
18%
5%
100%

Franklin
Fulton
Genesee
Greene
Hamilton

1
16
13
8
2

Herkimer
Jefferson
Lewis
Livingston
Madison

% Other % Other
Jail Sentencea

Dismissed

a

–
12%

b

7%

–
47%

NA
10%
15%
12%
12%

NA
7%
11%
7%
7%

NA
46%
46%
39%
52%

NA
18%
8%
35%
9%

b

15%
37%
13%
10%

13%
7%
9%
19%

6%
6%
14%
7%

60%
48%
63%
63%

6%
2%
2%
1%

100%
100%
100%
100%
100%

50%
40%
30%
67%
30%

1%
0%
9%
0%
10%

0%
0%
12%
0%
0%

40%
60%
41%
22%
50%

9%
0%
8%
11%
10%

39
44
2
11
3

100%
100%
100%
100%
100%

26%
27%
50%
27%
100%

10%
7%
0%
0%
0%

10%
9%
0%
18%
0%

54%
14%
50%
45%
0%

0%
43%
0%
9%
0%

80%
67%
61%
37%
100%

4
4
64
331
1

100%
100%
100%
100%
100%

75%
50%
30%
14%
100%

0%
0%
2%
8%
0%

0%
0%
0%
5%
0%

25%
50%
66%
53%
0%

0%
0%
3%
21%
0%

100%
50%
31%
25%
50%

100%
100%
85%
25%
100%

1
16
11
2
2

100%
100%
100%
100%
100%

100%
50%
36%
100%
50%

0%
19%
0%
0%
0%

0%
6%
0%
0%
0%

0%
19%
45%
0%
50%

0%
6%
18%
0%
0%

8
40
4
5
12

75%
18%
100%
40%
8%

100%
100%
100%
100%
8%

8
40
4
5
1

100%
100%
100%
100%
100%

75%
18%
100%
40%
100%

0%
3%
0%
0%
0%

0%
3%
0%
20%
0%

25%
70%
0%
40%
0%

0%
8%
0%
0%
0%

Monroe
Montgomery
Niagara
Oneida
Onondaga

714
21
95
155
439

7%
33%
14%
43%
20%

40%
67%
52%
88%
60%

289
14
49
136
265

100%
100%
100%
100%
100%

17%
50%
27%
49%
34%

11%
0%
6%
10%
8%

9%
0%
4%
7%
2%

56%
50%
39%
26%
40%

7%
0%
24%
8%
16%

Ontario
Orange
Orleans
Oswego
Otsego

27
154
23
14
19

74%
21%
30%
0%
47%

89%
60%
70%
86%
74%

24
93
16
12
14

100%
100%
100%
100%
100%

83%
34%
44%
0%
64%

13%
5%
19%
8%
0%

0%
0%
6%
0%
7%

4%
57%
19%
75%
21%

0%
3%
13%
17%
7%

Putnam
Rensselaer
Saratoga
Schenectady
Schoharie

13
60
33
58
2

8%
33%
48%
36%
50%

8%
87%
67%
60%
50%

1
52
22
35
1

100%
100%
100%
100%
100%

100%
38%
73%
60%
100%

0%
10%
0%
3%
0%

0%
2%
5%
3%
0%

0%
48%
18%
31%
0%

0%
2%
5%
3%
0%

Schuyler
Seneca
St. Lawrence
Steuben
Sullivan

0
4
3
57
63

–
25%
0%
56%
25%

–
50%
67%
81%
63%

0
2
2
46
40

–
100%
100%
100%
100%

–
50%
0%
70%
40%

–
0%
0%
4%
10%

–
0%
0%
0%
0%

–
0%
100%
26%
48%

–
50%
0%
0%
3%

Tioga
Tompkins
Ulster
Warren
Washington

7
14
46
5
7

71%
57%
26%
80%
14%

86%
86%
59%
100%
57%

6
12
27
5
4

100%
100%
100%
100%
100%

83%
67%
44%
80%
25%

0%
0%
0%
0%
25%

0%
0%
4%
0%
0%

17%
33%
48%
20%
50%

0%
0%
4%
0%
0%

Wayne
Wyoming
Yates

13
6
1

38%
17%
0%

77%
67%
–

10
4
0

100%
100%
–

50%
25%
–

10%
0%
–

0%
0%
–

20%
75%
–

20%
0%
–

County
Statewide
Ŷ Excluding Bronx
New York City
Bronx
Kings
New York
Queens
Richmond
Suburban NYC
Nassau
Rockland
Suffolk
Westchester
Upstate

a

Includes arrest cases that resulted in dismissals or "other sentences" because offenders successfully completed substance abuse
diversion programs.

b

Bronx County statistics for indicted/SCI cases are not presented because of a change in court practices in November 2004 that made it
difficult to identify cases prosecuted in its superior courts.
Data Source: NYS Division of Criminal Justices Services, Computerized Criminal History (CCH) System.

233

Chart E-2
Class B Felony Drug Possession (Penal Law §220.16) Arrests Disposed 2004-2006 Involving Males Age 19 or Older
a
With "Prior" Felony Convictions: Systemwide Prison Rates and Disposition Outcomes for Indicted/SCI Arrest Cases
All Arrest Cases

Arrest Cases Resulting in Indictments/SCIs: Disposition Outcomes
% Felony
c
% Prison % Willard Jail 1-Yr.

% Other % Other
Jail Sentenced Dismissed

% Indict./
SCI

N

Total

26%
30%

–
45%

–
4,013

–
100%

–
67%

–
6%

–
2%

–
6%

–
10%

–
10%

e

2,107
1,770
2,065
1,042
271

8%
15%
28%
18%
16%

NA
26%
40%
28%
27%

NA
454
819
288
74

NA
100%
100%
100%
100%

NA
60%
72%
64%
58%

NA
0%
3%
3%
0%

NA
3%
3%
5%
4%

NA
12%
4%
4%
7%

NA
15%
8%
12%
22%

NA
10%
9%
12%
9%

e

219
67
376
349

56%
57%
41%
34%

84%
75%
59%
52%

184
50
221
180

100%
100%
100%
100%

67%
76%
70%
66%

4%
0%
6%
7%

1%
4%
1%
6%

7%
2%
13%
4%

18%
12%
7%
16%

3%
6%
3%
2%

Albany
Allegany
Broome
Cattaraugus
Cayuga

335
1
161
5
13

43%
100%
53%
100%
46%

58%
100%
70%
100%
92%

193
1
113
5
12

100%
100%
100%
100%
100%

75%
100%
75%
100%
50%

4%
0%
7%
0%
17%

1%
0%
1%
0%
0%

4%
0%
3%
0%
0%

6%
0%
2%
0%
8%

11%
0%
12%
0%
25%

Chautauqua
Chemung
Chenango
Clinton
Columbia

30
45
5
8
17

60%
42%
60%
50%
59%

83%
78%
80%
63%
71%

25
35
4
5
12

100%
100%
100%
100%
100%

72%
54%
75%
80%
83%

4%
0%
25%
20%
8%

4%
0%
0%
0%
8%

16%
6%
0%
0%
0%

0%
3%
0%
0%
0%

4%
37%
0%
0%
0%

Cortland
Delaware
Dutchess
Erie
Essex

2
3
109
492
0

100%
67%
39%
26%
–

100%
67%
49%
47%
–

2
2
53
233
0

100%
100%
100%
100%
–

100%
100%
81%
55%
–

0%
0%
2%
12%
–

0%
0%
2%
3%
–

0%
0%
0%
4%
–

0%
0%
4%
5%
–

0%
0%
11%
22%
–

Franklin
Fulton
Genesee
Greene
Hamilton

5
9
5
8
0

80%
67%
80%
75%
–

100%
100%
100%
88%
–

5
9
5
7
0

100%
100%
100%
100%
–

80%
67%
80%
86%
–

0%
11%
0%
14%
–

0%
11%
0%
0%
–

0%
0%
0%
0%
–

20%
0%
0%
0%
–

0%
11%
20%
0%
–

Herkimer
Jefferson
Lewis
Livingston
Madison

2
30
0
3
1

100%
70%
–
100%
0%

100%
100%
–
100%
100%

2
30
0
3
1

100%
100%
–
100%
100%

100%
70%
–
100%
0%

0%
3%
–
0%
100%

0%
0%
–
0%
0%

0%
7%
–
0%
0%

0%
17%
–
0%
0%

0%
3%
–
0%
0%

Monroe
Montgomery
Niagara
Oneida
Onondaga

525
12
64
118
317

20%
17%
30%
64%
46%

49%
42%
44%
87%
69%

255
5
28
103
219

100%
100%
100%
100%
100%

42%
40%
68%
74%
66%

18%
40%
18%
7%
5%

1%
0%
0%
0%
1%

13%
0%
0%
11%
4%

15%
0%
4%
8%
7%

11%
20%
11%
1%
17%

Ontario
Orange
Orleans
Oswego
Otsego

27
116
15
7
8

81%
57%
60%
71%
88%

85%
70%
93%
86%
88%

23
81
14
6
7

100%
100%
100%
100%
100%

96%
81%
64%
83%
100%

0%
4%
21%
17%
0%

0%
1%
0%
0%
0%

0%
1%
7%
0%
0%

4%
10%
0%
0%
0%

0%
2%
7%
0%
0%

Putnam
Rensselaer
Saratoga
Schenectady
Schoharie

5
54
23
89
0

20%
65%
70%
49%
–

40%
78%
78%
64%
–

2
42
18
57
0

100%
100%
100%
100%
–

50%
83%
89%
77%
–

50%
10%
11%
2%
–

0%
0%
0%
2%
–

0%
0%
0%
0%
–

0%
0%
0%
11%
–

0%
7%
0%
9%
–

Schuyler
Seneca
St. Lawrence
Steuben
Sullivan

1
3
2
19
46

100%
33%
50%
58%
63%

100%
100%
100%
84%
78%

1
3
2
16
36

100%
100%
100%
100%
100%

100%
33%
50%
69%
81%

0%
0%
50%
13%
6%

0%
33%
0%
0%
0%

0%
0%
0%
0%
0%

0%
0%
0%
6%
8%

0%
33%
0%
13%
6%

Tioga
Tompkins
Ulster
Warren
Washington

3
7
49
10
8

67%
43%
47%
70%
75%

100%
57%
65%
80%
100%

3
4
32
8
8

100%
100%
100%
100%
100%

67%
75%
72%
88%
75%

0%
0%
3%
13%
13%

0%
0%
0%
0%
0%

0%
0%
6%
0%
13%

0%
0%
16%
0%
0%

33%
25%
3%
0%
0%

Wayne
Wyoming
Yates

10
4
0

60%
100%
–

90%
100%
–

9
4
0

100%
100%
–

67%
100%
–

11%
0%
–

0%
0%
–

0%
0%
–

0%
0%
–

22%
0%
–

County
Statewide
Ŷ Excluding Bronx

N

% Prison

11,097
8,990

b

d

New York City
Bronx
Kings
New York
Queens
Richmond
Suburban NYC
Nassau
Rockland
Suffolk
Westchester
Upstate

a

Cases counted as involving one or more prior felony convictions include offenders legally defined as second-felony offenders, as well as
offenders legally defined as first-felony offenders because their instant offenses were committed more than
10 years after the imposition of sentences for any of their previous felony convictions [see PL 70.06(1)].

b

Cases involving direct parole-supervision sentences that required placement in the DOCS Willard facility were counted as non-prison sentences.

c

A prison sentence is not mandatory for offenders with prior felony convictions who are legally classified as first-felony offenders; see footnote "a".

d

Includes cases that resulted in dismissals or "other sentences" because offenders successfully completed substance abuse diversion programs.

e

Bronx County statistics for indicted/SCI cases are not presented because of a change in court practices in November 2004 that made it
difficult to identify cases prosecuted in its superior courts.
Data Source: NYS State Division of Criminal Justices Services, Computerized Criminal History (CCH) System.

234

Chart E-3
Class B Felony Drug Sale (Penal Law §220.39) Arrests Disposed 2004-2006 Involving Males Age 19 or Older
With "No Prior" Felony Convictions: Systemwide Prison Rates and Disposition Outcomes for Indicted/SCI Arrest Cases
All Arrest Cases

Arrest Cases Resulting in Indictments/SCIs: Disposition Outcomes

% Prison

Dismissed

a

14,822
11,819

12%
12%

–
47%

–
5,614

–
100%

–
26%

–
13%

–
9%

–
43%

–
9%

b

3,003
4,025
3,344
1,228
295

13%
4%
7%
8%
9%

NA
23%
44%
48%
37%

NA
914
1,485
589
108

NA
100%
100%
100%
100%

NA
19%
17%
16%
25%

NA
13%
20%
15%
15%

NA
11%
15%
12%
16%

NA
41%
41%
36%
39%

NA
17%
8%
20%
6%

b

335
87
425
223

9%
38%
16%
5%

96%
93%
88%
52%

323
81
372
117

100%
100%
100%
100%

10%
41%
18%
9%

12%
4%
17%
20%

9%
2%
11%
4%

66%
49%
54%
67%

3%
4%
0%
0%

Albany
Allegany
Broome
Cattaraugus
Cayuga

194
9
105
8
38

37%
11%
26%
50%
74%

77%
67%
90%
100%
97%

150
6
94
8
37

100%
100%
100%
100%
100%

47%
17%
29%
50%
76%

1%
0%
12%
0%
5%

0%
0%
12%
0%
0%

46%
50%
34%
13%
16%

5%
33%
14%
38%
3%

Chautauqua
Chemung
Chenango
Clinton
Columbia

124
6
2
26
18

26%
67%
50%
38%
72%

98%
100%
100%
96%
83%

121
6
2
25
15

100%
100%
100%
100%
100%

26%
67%
50%
40%
87%

10%
0%
50%
8%
0%

2%
0%
0%
4%
0%

60%
0%
0%
44%
13%

2%
33%
0%
4%
0%

Cortland
Delaware
Dutchess
Erie
Essex

16
7
52
95
2

44%
14%
13%
20%
0%

100%
100%
83%
80%
100%

16
7
43
76
2

100%
100%
100%
100%
100%

44%
14%
16%
25%
0%

6%
14%
7%
11%
0%

0%
0%
0%
0%
0%

50%
71%
74%
54%
100%

0%
0%
2%
11%
0%

Franklin
Fulton
Genesee
Greene
Hamilton

12
19
18
8
0

25%
42%
72%
88%
–

75%
100%
100%
100%
–

9
19
18
8
0

100%
100%
100%
100%
–

33%
42%
72%
88%
–

11%
11%
0%
0%
–

0%
0%
0%
0%
–

44%
16%
28%
13%
–

11%
32%
0%
0%
–

Herkimer
Jefferson
Lewis
Livingston
Madison

4
19
5
4
1

25%
16%
40%
100%
100%

100%
100%
100%
100%
100%

4
19
5
4
1

100%
100%
100%
100%
100%

25%
16%
40%
100%
100%

0%
16%
0%
0%
0%

0%
0%
0%
0%
0%

75%
63%
40%
0%
0%

0%
5%
20%
0%
0%

Monroe
Montgomery
Niagara
Oneida
Onondaga

150
34
56
22
110

53%
24%
25%
68%
29%

84%
74%
88%
95%
85%

126
25
49
21
94

100%
100%
100%
100%
100%

63%
32%
29%
71%
34%

7%
0%
14%
0%
9%

2%
4%
2%
14%
3%

22%
64%
53%
10%
48%

6%
0%
2%
5%
6%

Ontario
Orange
Orleans
Oswego
Otsego

14
137
13
12
12

71%
68%
46%
8%
50%

93%
90%
100%
67%
92%

13
123
13
8
11

100%
100%
100%
100%
100%

77%
76%
46%
13%
55%

8%
2%
8%
13%
9%

0%
0%
0%
0%
0%

15%
17%
31%
50%
9%

0%
5%
15%
25%
27%

Putnam
Rensselaer
Saratoga
Schenectady
Schoharie

41
89
18
116
6

17%
33%
83%
58%
0%

41%
96%
100%
93%
67%

17
85
18
108
4

100%
100%
100%
100%
100%

41%
34%
83%
62%
0%

12%
15%
0%
5%
0%

0%
0%
0%
1%
0%

41%
51%
17%
25%
100%

6%
0%
0%
7%
0%

Schuyler
Seneca
St. Lawrence
Steuben
Sullivan

3
4
26
34
33

67%
0%
0%
68%
36%

100%
75%
100%
94%
82%

3
3
26
32
27

100%
100%
100%
100%
100%

67%
0%
0%
72%
44%

0%
0%
12%
6%
11%

0%
0%
0%
0%
0%

33%
100%
77%
9%
44%

0%
0%
12%
13%
0%

Tioga
Tompkins
Ulster
Warren
Washington

1
8
45
14
6

0%
63%
62%
64%
67%

100%
63%
91%
100%
83%

1
5
41
14
5

100%
100%
100%
100%
100%

0%
100%
68%
64%
80%

0%
0%
0%
0%
0%

0%
0%
5%
0%
20%

100%
0%
24%
29%
0%

0%
0%
2%
7%
0%

Wayne
Wyoming
Yates

51
10
0

41%
40%
–

94%
100%
–

48
10
0

100%
100%
–

44%
40%
–

8%
0%
–

2%
0%
–

46%
60%
–

0%
0%
–

County
Statewide
Excluding Bronx

N

Total

% Prison

% Felony
Jail 1-Year

% Other % Other
Jail Sentencea

N

% Indict./
SCI

New York City
Bronx
Kings
New York
Queens
Richmond
Suburban NYC
Nassau
Rockland
Suffolk
Westchester
Upstate

a

Includes arrest cases that resulted in dismissals or "other sentences" because offenders successfully completed substance abuse
diversion programs.

b

Bronx County statistics for indicted/SCI cases are not presented because of a change in court practices in November 2004 that made it
difficult to identify cases prosecuted in its superior courts.
Data Source: NYS Division of Criminal Justices Services, Computerized Criminal History (CCH) System.

235

Chart E-4
Class B Felony Drug Sale (Penal Law §220.39) Arrests Disposed 2004-2006 Involving Males Age 19 or Older
a
With "Prior" Felony Convictions: Systemwide Prison Rates and Disposition Outcomes for Indicted/SCI Arrest Cases
All Arrest Cases

Arrest Cases Resulting in Indictments/SCIs: Disposition Outcomes
% Felony
c
% Prison % Willard Jail 1-Yr.

% Indict./
SCI

N

Total

33%
37%

–
50%

–
6,856

–
100%

–
74%

3%

3%

4,185
4,073
5,181
1,260
328

22%
17%
38%
30%
23%

NA
28%
49%
45%
38%

NA
1,135
2,548
569
126

NA
100%
100%
100%
100%

NA
59%
77%
67%
60%

NA
0%
2%
3%
0%

423
30
457
228

72%
97%
83%
32%

93%
100%
92%
46%

392
30
420
105

100%
100%
100%
100%

78%
97%
91%
70%

Albany
Allegany
Broome
Cattaraugus
Cayuga

285
1
147
6
46

66%
0%
53%
67%
83%

79%
100%
83%
100%
96%

226
1
122
6
44

100%
100%
100%
100%
100%

Chautauqua
Chemung
Chenango
Clinton
Columbia

123
4
0
13
7

69%
0%
–
62%
57%

98%
75%
–
92%
57%

120
3
0
12
4

Cortland
Delaware
Dutchess
Erie
Essex

6
3
66
49
2

83%
67%
70%
61%
50%

100%
100%
82%
80%
100%

Franklin
Fulton
Genesee
Greene
Hamilton

4
10
9
9
0

50%
60%
89%
67%
–

Herkimer
Jefferson
Lewis
Livingston
Madison

0
19
1
6
1

County

N

% Prison

17,934
13,749

b

% Other % Other
Jail Sentenced Dismissed

d

–
7%

e

5%

–
8%

NA
2%
3%
5%
7%

NA
14%
4%
8%
2%

NA
14%
6%
9%
24%

NA
10%
8%
9%
8%

e

2%
0%
1%
3%

3%
0%
3%
5%

4%
3%
2%
2%

10%
0%
2%
19%

3%
0%
1%
2%

83%
0%
64%
67%
86%

4%
0%
8%
0%
7%

1%
0%
1%
0%
5%

1%
0%
0%
0%
0%

4%
100%
2%
17%
2%

7%
0%
25%
17%
0%

100%
100%
–
100%
100%

71%
0%
–
67%
100%

16%
33%
–
8%
0%

3%
33%
–
0%
0%

1%
0%
–
0%
0%

7%
33%
–
8%
0%

3%
0%
–
17%
0%

6
3
54
39
2

100%
100%
100%
100%
100%

83%
67%
85%
77%
50%

0%
0%
0%
13%
0%

0%
0%
0%
5%
0%

0%
0%
0%
3%
0%

0%
0%
7%
0%
50%

17%
33%
7%
3%
0%

100%
100%
100%
89%
–

4
10
9
8
0

100%
100%
100%
100%
–

50%
60%
89%
75%
–

0%
0%
0%
25%
–

0%
10%
0%
0%
–

0%
0%
0%
0%
–

25%
0%
11%
0%
–

25%
30%
0%
0%
–

–
74%
100%
67%
100%

–
100%
100%
100%
100%

0
19
1
6
1

–
100%
100%
100%
100%

–
74%
100%
67%
100%

–
16%
0%
33%
0%

–
5%
0%
0%
0%

–
0%
0%
0%
0%

–
5%
0%
0%
0%

–
0%
0%
0%
0%

130
15
52
37
104

54%
53%
62%
65%
67%

70%
80%
90%
89%
88%

91
12
47
33
92

100%
100%
100%
100%
100%

77%
67%
68%
73%
76%

9%
25%
15%
3%
5%

1%
0%
2%
6%
2%

5%
0%
0%
9%
1%

5%
0%
0%
3%
8%

2%
8%
15%
6%
8%

12
99
13
3
10

92%
74%
46%
67%
50%

100%
84%
100%
100%
100%

12
83
13
3
10

100%
100%
100%
100%
100%

92%
88%
46%
67%
50%

0%
4%
38%
33%
10%

0%
1%
0%
0%
0%

0%
2%
8%
0%
0%

0%
5%
0%
0%
0%

8%
0%
8%
0%
40%

Putnam
Rensselaer
Saratoga
Schenectady
Schoharie

7
133
8
141
0

29%
78%
75%
79%
–

71%
96%
75%
90%
–

5
128
6
127
0

100%
100%
100%
100%
–

40%
81%
100%
87%
–

20%
9%
0%
5%
–

0%
2%
0%
0%
–

0%
1%
0%
0%
–

0%
3%
0%
4%
–

40%
4%
0%
4%
–

Schuyler
Seneca
St. Lawrence
Steuben
Sullivan

2
2
16
33
31

100%
50%
31%
67%
74%

100%
50%
81%
94%
84%

2
1
13
31
26

100%
100%
100%
100%
100%

100%
100%
38%
71%
88%

0%
0%
15%
10%
12%

0%
0%
0%
0%
0%

0%
0%
0%
0%
0%

0%
0%
15%
3%
0%

0%
0%
31%
16%
0%

Tioga
Tompkins
Ulster
Warren
Washington

1
4
31
10
12

100%
50%
81%
90%
75%

100%
50%
84%
100%
100%

1
2
26
10
12

100%
100%
100%
100%
100%

100%
100%
96%
90%
75%

0%
0%
0%
0%
8%

0%
0%
0%
0%
0%

0%
0%
0%
10%
0%

0%
0%
0%
0%
8%

0%
0%
4%
0%
8%

Wayne
Wyoming
Yates

35
7
4

80%
86%
100%

97%
100%
100%

34
7
4

100%
100%
100%

82%
86%
100%

3%
0%
0%

0%
0%
0%

0%
0%
0%

3%
0%
0%

12%
14%
0%

Statewide
Ŷ Excluding Bronx
New York City
Bronx
Kings
New York
Queens
Richmond
Subuarban NYC
Nassau
Rockland
Suffolk
Westchester
Upstate

Monroe
Montgomery
Niagara
Oneida
Onondaga
Ontario
Orange
Orleans
Oswego
Otsego

a

Cases counted as involving one or more prior felony convictions include offenders legally defined as second-felony offenders, as well as
offenders legally defined as first-felony offenders because their instant offenses were committed more than
10 years after the imposition of sentences for any of their previous felony convictions [see PL 70.06(1)].

b

Cases involving direct parole-supervision sentences that required placement in the DOCS Willard facility were counted as non-prison sentences.

c

A prison sentence is not mandatory for offenders with prior felony convictions who are legally classified as first-felony offenders; see footnote "a".

d

Includes cases that resulted in dismissals or "other sentences" because offenders successfully completed substance abuse diversion programs.

e

Bronx County statistics for indicted/SCI cases are not presented because of a change in court practices in November 2004 that made it
difficult to identify cases prosecuted in its superior courts.
Data Source: NYS State Division of Criminal Justices Services, Computerized Criminal History (CCH) System.

236

Chart E-5
Class B Felony Drug Possession and Sale Arrest Offense Cases Involving Males Age 19 or Older
That Resulted in Felony Indictments or Superior Court Informations, Disposed 2004-2006
Mean/Percent Distribution
Variable

Possession
Range

Type and Description

Value

Min

a

Max Max Cap

Sale

(PL §220.16):

(PL §220.16):

(PL §220.39):

(PL §220.39):

No Pr Fel Conv

Pr Fel Conv

No Pr Fel Conv

Pr Fel Conv

N=4,770

N=4,316

N=6,428

N=7,892

0.23
0.33

0.64
0.67

0.26
0.39

0.71
0.73

Dichotomous/Interval
b
Ŷ Prison Sentence
b
Ŷ Prison/One-Year Jail Sentence
Ŷ Prison/Direct Parol Supervison
& Willard Diversion Sentenceb

–
–

0
0

1
1

–
–

–

0

1

–

–

0.69

–

0.73

b
Ŷ VFO Instant Offense
b
Ŷ Weapon Instant Offense

–
–

0
0

1
1

–
–

0.06
0.10

0.07
0.10

0.01
0.01

0.01
0.01

Ŷ
Ŷ
Ŷ
Ŷ
Ŷ

Number of Prior Felony Drug Arrests
Number of Prior Misd. Drug Arrests
Number of Prior VFO Drug Arrests
Number of Other Prior Felony Arrests
Age at Case Disposition/Sentence

–
–
–
–
–

0
0
0
0
19

11
17
10
13
75

10
10
10
10
–

0.59
0.95
0.45
0.49
27.97

–
–
–
–
–

–
–
–
–
–

–
–
–
–
–

Ŷ
Ŷ
Ŷ
Ŷ
Ŷ

Number of Prior Felony Drug Arrests
Number of Prior Misd. Drug Arrests
Number of Prior VFO Drug Arrests
Number of Other Prior Felony Arrests
Age at Case Disposition/Sentence

–
–
–
–
–

0
0
0
0
19

38
50
15
22
80

10
10
10
10
–

–
–
–
–
–

2.68
1.80
1.74
1.52
32.65

–
–
–
–
–

–
–
–
–
–

Ŷ
Ŷ
Ŷ
Ŷ
Ŷ

Number of Prior Felony Drug Arrests
Number of Prior Misd. Drug Arrests
Number of Prior VFO Drug Arrests
Number of Other Prior Felony Arrests
Age at Case Disposition/Sentence

–
–
–
–
–

0
0
0
0
19

14
51
9
13
85

10
10
10
10
–

–
–
–
–
–

–
–
–
–
–

0.73
1.38
0.50
0.54
29.28

–
–
–
–
–

Ŷ
Ŷ
Ŷ
Ŷ
Ŷ

Number of Prior Felony Drug Arrests
Number of Prior Misd. Drug Arrests
Number of Prior VFO Drug Arrests
Number of Other Prior Felony Arrests
Age at Case Disposition/Sentence

–
–
–
–
–

0
0
0
0
19

29
66
25
40
77

10
10
10
10
–

–
–
–
–
–

–
–
–
–
–

–
–
–
–
–

3.25
2.78
2.00
1.88
35.54

Ŷ Pending Cases Involving Arrest That
Prior to the Instant Arrest:
Most Serious Arrest Offense
None
Misdemeanor Offense
Felony Non-VFO, Non-Drug Offense
VFO or VFO/Drug Offense
Felony Drug Offense

0
1
2
3
4

–
–
–
–
–

–
–
–
–
–

–
–
–
–
–

100%
79%
10%
2%
7%
2%

100%
81%
9%
2%
7%
2%

100%
75%
11%
2%
9%
3%

100%
80%
8%
2%
8%
2%

Ŷ Most Serious Prior Sentence:
Cases With Prior Felony Convs.
None of the Following Sentences
Time Served
Probation
One Jail Sentence
Two or More Jail Sentences
Jail-Probation
One Prison Sentence
Two Prison Sentences
Three or More Prison Sentences

0
1
2
3
4
5
6
7
8

–
–
–
–
–
–
–
–
–

–
–
–
–
–
–
–
–
–

–
–
–
–
–
–
–
–
–

100%
54%
6%
13%
11%
7%
7%
2%
<1%
<1%

100%
2%
<1%
8%
6%
8%
16%
30%
18%
13%

100%
48%
8%
11%
12%
12%
8%
2%
<1%
<1%

100%
1%
<1%
5%
5%
10%
13%
28%
19%
19%

Ordinal

a

Values were capped at 10 for the logit analysis. In each data set each of these variables had less than 1% of cases with values exceeding 10.

b

Range values: 0 = no and 1 = yes.

Data Source: NYS Division of Criminal Justices Services, Computerized Criminal History (CCH) System.

237

Chart E-6
Class B Felony Drug Possession (Penal Law §220.16) Arrests Involving Males Age 19 or Older
That Resulted in Felony Indictments or Superior Court Informations, Disposed 2004-2006:
Modeled Oddsa for "Prison" and "Prison or Willard" Sentences by County
Second-Felony Offenderb
(Any Prior Felony Conviction)
Odds of
Odds of Prison
Prison/Willard
N of
c
Compared to Kings Compared to Kings Cases

First-Felony Offender
(No Prior Felony Conv.)
Disposition County
(Sorted by Odds)

Odds of Prison
Compared to Kings

Ŷ
Ŷ
Ŷ
Ŷ

Queens
Bronx (thru 10/31/04 only)d
Westchester
Erie

0.4
0.5
0.5
0.6

Ŷ
Ŷ
Ŷ
Ŷ
Ŷ

Suffolk
Monroe
Nassau
Kings (Brooklyn)
New York (Manhattan)

0.7
0.8
0.9
1.0
1.2

Ŷ
Ŷ
Ŷ
Ŷ

Broome
Onondaga
Albany
Oneida

2.1
2.1
4.7
4.9

N of
Cases
e
e
e
e

417
319
230
331
242
289
184
401
779

e
e
e
e

102
265
143
136

Ŷ Average Odds for

All Other Countiesf

Disposition County
(Sorted by Prison Odds)
Ŷ Bronx (thru 10/31/04 only)
Ŷ Monroe
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ

d

0.3
0.5

Erie
Kings (Brooklyn)
Nassau
Queens
Onondaga
Westchester

e
e

0.8
1.0
1.3
1.3
1.4
1.4

Suffolk
Albany
New York (Manhattan)
Broome
Oneida

0.3
0.9
1.4
1.0
1.5
1.4
1.7
1.9

1.6
1.7
1.9
1.9
2.0

e

2.0

e

e
e
e
e

e

303
255
233
454
184
288
219
180

e
e
e
e

2.1
2.0
2.2
2.9
2.8

e

2.7

e

221
193
819
113
103

e
e
e
e

Ŷ Average Odds for

3.4

e

932
4,770

Total

All Other Countiesf

Nagelkerke R² = .208
ROC = .751

751
4,316

Total
Nagelkerke R² = .159
ROC = .702

N R² = .156
ROC = .702

a

The binary logistic regression model used to estimate the modeled odds controlled for (1) any VFO or weapons charge (arrest, indictment, or
conviction; top or underlying); (2) the most serious pending prior arrest charge (misdemeanor; VFO, felony drug, other felony); (3) the number
of prior VFO, felony drug, and other felony arrests, as well as the number of prior misdemeanor drug arrests, (4) the most serious prior sentence,
including the number of prior jail or prison sentences; age at arrest; and county of case disposition.

b

The "second-felony offender" category includes any case involving an offender with a prior felony conviction rather than only those defined as
second-felony offenders in PL §70.06(1).

c

Only second-felony offenders can receive a direct-parole-supervsion sentence that includes admission to Willard as a condition of sentence. The
odds for "prison" and combined "prison-Willard" models can be compared because there were no cases admitted to Willard from Kings
County. That is, the number of Kings cases coded as "1" (in dependent variables) was the same for both the prison and the prison-Willard models.

d

Excludes Bronx indicted/SCI arrest cases for which felony indictment and SCI status could not be determined.

e

Significance at p. <.05.

f

An individual county could have a much higher or lower “odds" of prison than the average for "all other counties."

Data Source: The New York State Division of Criminal Justices Services, Computerized Criminal History (CCH) System.

238

Chart E-7
Class B Felony Drug Sale (Penal Law §220.39) Arrests Involving Males Age 19 or Older
That Resulted in Felony Indictments or Superior Court Informations, Disposed 2004-2006:
Modeled Oddsa for "Prison" and "Prison or Willard" Sentences by County
Second-Felony Offenderb
(Any Prior Felony Conviction)

First-Felony Offender
(No Prior Felony Conv.)
Disposition County
(Sorted by Odds)
Ŷ Westchester
Ŷ Nassau
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ

New York/Manhattan
Queens
Kings/Brooklyn
Suffolk
Richmond
Chautauqua

Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ

Broome
Bronx (thru 10/31/04 only)d
Onondaga
Rensselaer
Albany
Monroe
Schenectady
Orange

Odds of Prison
Compared to Kings
0.4
0.5

N of
Cases
e
e

0.9
1.0
1.0
1.0
1.2
1.5
1.7
1.7
2.0
2.3
3.3
7.1
7.4
14.4

117
323
1,485
589
914
372
108
121

e
e
e
e
e
e
e
e

94
814
94
85
150
126
108
123

Ŷ Average Odds for

All Other Countiesf

Odds of
Odds of Prison
Prison/Willard
N of
c
Compared to Kings Compared to Kings Cases

Disposition County
(Sorted by Prison Odds)
Ŷ Bronx (thru 10/31/04 only)

d

0.6

Ŷ Richmond
Ŷ Kings/Brooklyn
Ŷ Broome
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ

e

0.9
1.0
1.1

Queens
Westchester
Chautauqua
Onondaga
New York/Manhattan
Nassau
Monroe
Rensselaer
Albany
Schenectady
Orange
Suffolk

0.6
0.9
1.0
1.6

1.4
1.5
1.6
2.1
2.4
2.5
2.5
2.8
2.9
4.4
5.1
7.3

e

2.6

e

e
e
e
e
e
e
e
e
e
e

e

e

1.6
1.7
4.1
2.9
2.7
2.8
4.6
5.8
4.0
7.5
7.6
8.0

e

4.2

e

e
e
e
e
e
e
e
e
e
e
e

1,036
126
1,135
122
569
105
120
92
2,548
392
91
128
226
127
83
420

Ŷ Average Odds for

3.8

e

805
5,988

Total

All Other Countiesf

Nagelkerke R² = .206
ROC = .742

572
6,730

Total
Nagelkerke R² = .157
ROC = .712

N R² = .175
ROC = .727

a

The binary logistic regression model used to estimate the modeled odds controlled for (1) any VFO or weapons charge (arrest, indictment, or
conviction; top or underlying); (2) the most serious pending prior arrest charge (misdemeanor; VFO, felony drug, other felony); (3) the number
of prior VFO, felony drug, and other felony arrests, as well as the number of prior misdemeanor drug arrests, (4) the most serious prior sentence,
including the number of prior jail or prison sentences; age at arrest; and county of case disposition.

b

The "second-felony offender" category includes any case involving an offender with a prior felony conviction rather than only those defined as
second-felony offenders in PL §70.06(1).

c

Only second-felony offenders can receive a direct-parole-supervsion sentence that includes admission to Willard as a condition of sentence. The
odds for "prison" and combined "prison-Willard" models can be compared because there were no cases admitted to Willard from Kings
County. That is, the number of Kings cases coded as "1" (in dependent variables) was the same for both the prison and the prison-Willard models.

d

Excludes Bronx indicted/SCI arrest cases for which felony indictment and SCI status could not be determined.

e

Significance at p. <.05.

f

An individual county could have a much higher or lower “odds" of prison than the average for "all other counties."

Data Source: The New York State Division of Criminal Justices Services, Computerized Criminal History (CCH) System.

239

Chart E-8
Class B Felony Drug Arrests Involving Males Age 19 or Older Without Prior Felony Convictions
That Resulted in Felony Indictments or Superior Court Informations, Disposed 2004-2006:
Modeled Oddsa of Either a Prison or One-Year Felony Jail Sentence by County and Offense
Possession (PL §220.16)
Odds of Prison or
One-Year Jail
N of
Compared to Kings
Cases

Disposition County
(Sorted by Odds)
Ŷ Bronx (thru 10/31/04 only)
Ŷ Erie

b

0.5
0.5

Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ

Suffolk
Queens
Monroe
Kings (Brooklyn)
Westchester
Nassau

0.7
0.7
0.9
1.0
1.0
1.0

Ŷ
Ŷ
Ŷ
Ŷ
Ŷ

New York (Manhattan)
Onondaga
Broome
Albany
Oneida

1.6
1.7
1.7
2.7
4.3

Ŷ Average Odds for
All Other Countiesd

2.4

Total

c
c

319
331
242
417
289
401
230
184

c
c
c
c
c

e

779
265
102
143
136

932
4,451

Disposition County
(Sorted by Odds)

Sale (Penal Law §220.39)
Odds of Prison or
One-Year Jail
Compared to Kings
c

Ŷ Nassau

0.6

Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ

Westchester
Kings (Brooklyn)
Queens
Suffolk
Chautauqua
b
Bronx (thru 10/31/04 only)
Richmond

0.8
1.0
1.2
1.2
1.2
1.3
1.3

Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ
Ŷ

New York (Manhattan)
Broome
Onondaga
Albany
Rensselaer
Schenectady
Monroe
Orange

1.4
1.4
1.5
1.7
2.3
4.4
4.9
8.2

c

2.5

c

Ŷ Average Odds for
All Other Countiesd

323
117
914
589
372
121
814
108

c
c
c
c
c

Total

Nagelkerke R² = .188
ROC = .724

N of
Cases

1485
94
94
150
85
108
126
123

805
6,105

Nagelkerke R² = .156
ROC = .702

a

The binary logistic regression model used to estimate the modeled odds controlled for (1) any VFO or weapons charge (arrest,
indictment, or conviction; top or underlying); (2) the most serious pending prior arrest charge (misdemeanor; VFO, felony drug, other
felony); (3) the number of prior VFO, felony drug, and other felony arrests, as well as the number of prior misdemeanor drug arrests,
(4) the most serious prior sentence, including the number of prior jail or prison sentences; age at arrest; and county of case disposition.

b

Excludes Bronx indicted/SCI arrest cases for which felony indictment and SCI status could not be determined.

c

Significance at p. <.05.

d

An individual county could have a much higher or lower “odds" of prison than the average for "all other counties."

Data Source: The New York State Division of Criminal Justices Services, Computerized Criminal History (CCH) System.

240

APPENDIX F
ANOMALIES

241

ANOMALIES
The Commission has reviewed the following anomalies in the
Penal Law and Criminal Procedure Law and recommends that the
Legislature address them. The Commission recognizes that the
following is by no means an exhaustive or exclusive list.
(1)

The persistent violent felony offender statute441 fails to
specify the minimum period of incarceration for a
persistent offender convicted of a Class E violent felony.

Following the Legislature’s (presumably inadvertent) failure to
set the minimum period of imprisonment for a Class E persistent
violent felony offender under Penal Law §70.08 (3), the Court of
Appeals determined, in People v. Green (68 NY2d 151 [1986]), that
the minimum would be two years:
The rationale for that conclusion was that the minimum
period of imprisonment of the indeterminate sentence to
be imposed on a “second” violent felony offender
convicted of a class E felony was, at the time Green
was decided, two years, and thus the legislative intent
for the “persistent” -- a third -- violent felony offender
should be no less. In the words of the Court: “The
minimum set forth in [the then governing second felony
offender statute] should logically apply to persistent
offenders (id., at 153 [emphasis supplied]).442
In 1995, the Legislature changed the sentence for a second
violent felony offender from an indeterminate to a determinate
sentence. “In the same legislation, the minimum periods of the
indeterminate term of imprisonment for a persistent violent felony
offender of a Class B, C and D felony were amended to double the low
end of the required minimum period; but the Legislature chose not to

441

Penal Law §70.08 (3).
Donnino, Practice Commentaries, McKinney’s Cons. Laws of NY, Book 39,
Penal Law Article 70, at 72.
442

242

amend the statute to specify any minimum for the Class E felony.”443
Subsequently, in People v. Tolbert (93 NY2d 86, 88 [1999]), the Court
of Appeals followed the rationale of Green and held that “the amended
determinate sentence for Class E second violent felony offenders
should also be applied as the minimum sentence for Class E persistent
violent felony offenders.”444

(2)

The persistent felony offender (A-1 felony) sentencing
provision is imprecisely written and should be clarified.

The persistent felony offender statute445 applies to defendants
who are convicted of a felony and who have “two prior judgments of
conviction for a felony or for a foreign jurisdiction crime for which a
sentence to a term of imprisonment in excess of one year or a sentence
to death was imposed.”446 Unlike the persistent violent felony
offender and other Penal Law multiple felony offender statutes,
pursuant to Penal Law §70.10:
the court is not required to find that the defendant is a
persistent felony offender simply on the basis of the
crime presently convicted of and the crimes previously
committed. Those facts are the threshold determinations
for persistent felony offender consideration. To impose
the sentence mandated for a persistent felony offender,
the court must also be of the “opinion that the history
and character of the defendant and the nature and
circumstances of his criminal conduct indicate that
extended incarceration and life-time supervision will
best serve the public interest.”447
The plain language of Penal Law §70.10(2) provides that
where the court has found that the defendant is a “persistent felony
443

Id.
Id.
445
Penal Law §70.10.
446
Donnino, Practice Commentaries, McKinney’s Cons. Laws of NY, Book 39,
Penal Law Article 70, at 68.
447
Id.
444

243

offender” and is of the opinion that “extended incarceration and lifetime supervision will best serve the public interest,” in lieu of
imposing a sentence authorized by Penal Law §70.00 (sentence of
imprisonment for a felony), §70.02 (violent felony offender), §70.04
(second violent offender) or §70.06 (second felony offender), the court
may impose “the sentence of imprisonment authorized by that section
for a Class A-1 felony.”448
The problem is that there is no sentence of imprisonment for a
Class A-1 felony authorized by Penal Law §§70.02 or 70.04 or 70.06,
since those sections generally refer only to Class B through E felonies.
While Penal Law §70.00 does contain language relating to the
sentence of imprisonment for a Class A-1 felony due to fairly recent
amendments to subdivision (3)(a) of section 70.00, there are actually
three different A-1 felony sentences referred to in that section. Stated
simply, the aforementioned language of Penal Law §70.10 is
inexplicably imprecise and, in view of the fact that implementation of
this language can result in a sentence of life imprisonment, should be
clarified.449
(3)

The permissible maximum sentence for a multiple
felony offender convicted of certain crimes against a
police officer or peace officer is, in some instances,
shorter than the permissible maximum for a first-time
offender convicted of the same crime.

The Crimes Against Police Act450 increased sentences for
certain first-time felony offenders convicted of menacing, assault or
homicide crimes directed at police officers and peace officers.
However, because no corresponding change was made to the
448

Penal Law §70.10 (2) (emphasis supplied).
The Commission is aware that Penal Law §70.10 has been challenged on
constitutional grounds in a series of state and federal cases. While the statute has
been upheld by the New York State Court of Appeals (see, People v. Rosen (96
NY2d 329 [2001]; People v. Rivera, 5 NY3d 61 [2005]), its validity has been called
into question by certain lower federal court rulings (see, Washington v. Poole, 507
F.Supp.2d 342 [S.D.N.Y. 2007]; Portalatin v. Graham, 478 F.Supp.2d. 385
[E.D.N.Y. 2007]).
450
Laws of 2005, ch. 765.
449

244

homicide crimes directed at police officers and peace officers.
However, because no corresponding change was made to the
applicable multiple felony offender statutes, there are now instances
where the maximum multiple felony offender sentence for certain of
these crimes is less than the maximum for a first-time offender
convicted of the same crime. For example, a first-time felony offender
convicted of aggravated first degree manslaughter451 faces a
determinate sentence of up to 30 years. That same crime, prosecuted
as a second violent felony offense, carries a determinate sentence of up
to 25 years.
(4)

Certain CPL 220.10 plea bargaining restrictions can
have anomalous consequences.

CPL 220.10 establishes a series of post-indictment restrictions
on felony plea bargaining, some of which can lead to anomalous
results. For example, a person who is charged with manslaughter in
the first degree, a Class B violent felony offense, and chooses to plead
guilty in satisfaction of that charge must plead to no less than a Class
C violent or Class D violent felony offense.452 That rules out the
possibility that the offender can plead to manslaughter in the second
degree, a Class C non-violent felony. Manslaughter in the second
degree, however, carries a potential indeterminate prison sentence with
a maximum of up to 15 years, while a Class D violent felony offense
carries a significantly less harsh maximum determinate sentence of up
to seven years.
(5)

Under the Sex Offender Management and Treatment
Act, certain less harsh sentencing options are available
for Class D violent felony sex offenses that are not
available for Class D non-violent felony sex offenses.

In 2007, the Legislature enacted the Sex Offender Management
and Treatment Act.453 The Act authorizes civil confinement of sex
offenders and also enacts significant changes in criminal sentencing of
451

Penal Law §125.22.
CPL 220.10(5)(d)(ii).
453
Laws of 2007, ch. 7.
452

245

sex offenders. The law seemingly imposes a more stringent range of
penalties for a Class D non-violent felony (such as burglary in the third
degree),454 committed as a “sexually motivated felony”455 than for a
Class D violent felony sex offense such as sexual abuse in the first
degree.456 Specifically, for a Class D violent felony sex offense such
as sexual abuse in the first degree, the available sentences appear to
include: intermittent imprisonment for up to one year, a conditional
discharge, a “split sentence” of jail plus probation (or conditional
discharge), a fine (alone or in combination with the above), or even an
unconditional discharge.457 In contrast, for the non-violent Class D
felony of burglary in the third degree committed as a sexually
motivated felony, the only authorized sentences are a determinate
sentence of at least 2 and not more than 7 years,458 plus post-release
supervision of between 3 and 10 years,459 a local jail sentence of up to
1 year, or a term of 10 years probation.460 A conditional or
unconditional discharge, split sentence or a fine (alone or in
combination with another sentence) do not appear to be available
sentences for this non-violent felony sex offense.461
(6)

A discrepancy in the way “time-served” credit is
applied to indeterminate versus determinate sentences
has the effect of providing a greater benefit to those
offenders (including violent felony offenders) sentenced
to determinate sentences.

Pursuant to Penal Law §70.30(1)(a), when two or more
sentences of imprisonment run concurrently, the time served under
imprisonment on any of the concurrent terms is to be credited against
each of the remaining concurrent sentences. Currently, Penal Law
§70.30(1)(a) applies the credit only to the minimum period of a
concurrent indeterminate sentence. No credit is applied to the
454

Penal Law §140.20.
Penal Law §130.91.
456
Penal Law §130.65.
457
Penal Law §70.02(2)(b).
458
Penal Law §70.80(4)(a)(iii).
459
Penal Law §70.80 (9); §70.45 (2-a).
460
Penal Law §70.80 (4)(b), (c).
461
Penal Law §60.05 (1).
455

246

maximum term. When the concurrent sentence that is being credited is
a determinate sentence, however, the credit is applied to the entire
determinate term.
The consequence of this is as follows: if credit for time served
on a particular sentence is applied only to the minimum portion of a
concurrent indeterminate term (and not the maximum), the conditional
release date, which is fixed at two-thirds of the maximum term,
remains unchanged. However, when the same jail credit is applied
under the direction of Penal Law §70.30(1)(a) to the term of a
concurrent determinate sentence, the conditional release date is
affected and the defendant benefits because the date for conditional
release on a determinate sentence is calculated on the “term” of the
sentence (i.e., six-sevenths of the determinate term).462
(7)

Defendants convicted of certain Class C non-violent
felonies are subject to two extremes of sentencing – a
relatively minor penalty such as a fine on one hand or a
substantial State prison term on the other, but no
option for a local jail sentence of one year or less.

An indeterminate sentence of imprisonment is mandatory for
certain Class C non-violent felonies enumerated in Penal Law
§60.05(4). These include criminal usury in the first degree,463
attempted bribe receiving in the first degree464 and promoting
prostitution in the second degree.465 However, an offender who
commits a non-violent Class C felony that is not enumerated in Penal
Law §60.05(4) is not subject to a mandatory prison term.
Instead, he or she may be sentenced to straight probation, a
conditional discharge, or simply a fine.466 Where, however, the court
462

In its 2007 Report to the Chief Administrative Judge, OCA’s Advisory
Committee on Criminal Law and Procedure offers legislative proposals to address
this problem and the problems discussed in items 7 to 9, infra. The Commission has
reviewed and supports the enactment by the Legislature of these four proposals.
463
Penal Law §190.42.
464
Penal Law §§110.00/200.12.
465
Penal Law §230.30.
466
Penal Law §§60.01(2), (3); 65.00(1)(a); 65.05(1)(a).

247

chooses to impose imprisonment for one of these offenses rather than,
for example, a conditional discharge or fine, the sentence of
imprisonment must be an indeterminate sentence. Inexplicably, a local
jail sentence of one year or less is simply not permitted.467
(8)

It is unclear whether a determinate sentence imposed
for a drug felony conviction under Penal Law
§70.70(3)(d) can be executed as a sentence of parole
supervision.

As part of the Drug Law Reform Act of 2004,468 the
Legislature added sections 60.04, 70.70 and 70.71 to the Penal Law to
replace the existing indeterminate sentencing paradigm for felony drug
offenses with a fully determinate sentencing scheme. Although newly
added Penal Law §70.70(3)(d) clearly allows certain of these
determinate sentences to be executed as a “sentence of parole
supervision” (i.e., a “Willard” sentence), the Legislature, in an
apparent oversight, failed to amend CPL 410.91, which defines and
establishes the procedures for imposing a sentence of parole
supervision and appears to limit these sentences to indeterminate
sentences.
(9)

A first-time felon convicted of certain Class D violent
felony offenses may receive a definite sentence of one
year or less (or a conditional discharge or a fine), but if
sentenced to State prison must receive a determinate
sentence of at least two years.

Where a defendant is not a multiple felony offender, a
sentencing judge currently has the option of imposing, among other
penalties, a definite sentence of one year or less for most Class D
violent felony offenses.469 Where, however, the judge determines that
a sentence of more than one year is warranted, he or she must impose a

467

Penal Law §70.00(1). In a similar vein, Penal Law §65.10(2)(h) prohibits the use
of community service as a condition of probation for non-violent Class C felons.
468
Laws of 2004, ch. 738.
469
Penal Law §70.02(2)(b).

248

determinate sentence of not less than two years.470 Given that the
current available sentencing options for these Class D violent felony
offenders also include straight probation, a conditional discharge or a
fine only, it makes no sense that a determinate sentence of 1½ years is
not a permissible sentence in these cases.
(10)

Certain sentencing requirements and restrictions for
felony “youthful offenders” are unclear or simply do
not make sense.

In general, a “youthful offender” under New York law is a
first-time offender who commits a crime (other than a Class A, armed
or specified sex felony) when at least 16 and less than 19 years of age,
and whose conviction for that offense has been replaced by the court
with a “youthful offender finding.”471
The statutory scheme for sentencing youthful offenders states
at the outset that a youthful offender adjudication is not a criminal
“conviction,”472 and then requires that a sentence be imposed as if the
individual had been convicted of a crime. Where the offense
committed is a felony, in general, “the court must impose a sentence
authorized to be imposed upon a person convicted of a Class E
felony.”473 Because there are now several different “authorized”
sentences of imprisonment for Class E felonies (e.g., determinate
sentences for violent Class E felonies,474 indeterminate sentences for
non-violent, non-drug, non-sex Class E felonies;475 determinate
sentences for Class E drug felonies476 and determinate sentences for
Class E sex felonies),477 the law is not entirely clear as to which
“authorized” Class E felony sentence should be taken as the template
for a particular felony youthful offender sentence.

470

Penal Law §70.02(3)(c).
CPL 720.10(4).
472
CPL 720.35(1).
473
Penal Law §60.02(2).
474
Penal Law §70.02.
475
Penal Law §70.00 (2) and (3).
476
Penal Law §70.70 (2)(a)(iv).
477
Penal Law §70.80(4).
471

249

Further, a Class C, D or E drug felon is eligible to receive a
conditional or unconditional discharge – but not if he or she was
afforded youthful offender status,478 a sentencing restriction that
makes no sense.
(11)

Certain unintended sentencing consequences may result
from the “Hate Crimes” legislation.479

Pursuant to Penal Law §125.25(5) (murder in the second
degree), when a person at least 18 years of age intentionally kills a
person less than 14 years of age while committing any of several
specified sex offenses, the statute provides for a mandatory sentence of
life imprisonment without parole.480 However, if this Class A-I felony
offense is prosecuted as a “hate crime” pursuant to Penal Law
§485.05(1)(a), a separate statute provides that “notwithstanding any
other provision of law,” the minimum period of the indeterminate
sentence imposed on the “hate crime” conviction shall be “not less
than twenty years.”481 Consequently, it appears that the mandated
sentence for this particular “hate crime” is actually more lenient than
the mandated sentence for the underlying crime.482

478

Penal Law §§60.02 (2); 60.04(4).
Laws of 2000, ch. 107.
480
Penal Law §§60.06; 70.00 (5).
481
Penal Law §485.10(4).
482
See generally, Penal Law §70.00(5) (providing that, “[f]or purposes of
commitment and custody, other than parole and conditional release * * * [a sentence
of life without parole] shall be deemed to be an indeterminate sentence”).
479

250

APPENDIX G
APPLICATION OF THE
JUDICIAL DIVERSION MODEL
TO A 2006 DOCS’ ADMISSION POOL

251

Chart G-1
2006 DOCS First Admissiona Drug Offense Cases
Resulting From Class B Felony Drug Indictments:
Estimated Number of First-Felony Offenders Potentially Eligible for Diversion
Under the Judicial Diversion Proposalb
Eligibility Status

N of Cases

Total Drug Admissions Involving Class B Felony Drug Indictments

1,957

Estimated Number Eligible for Diversion

1,211

Conviction Offense Mix
Drug Offense Only
Drug and Non-Drug Probation-Eligible Offenses

1,177
34

Shock Incarceration Status
Not Eligible - Age 40 or Older at Admission
Not Eligible - Age 16-39 at Admission
Eligible, but did not enter Shock
Entered Shock

275
250
300
386

Estimated Number Ineligible for Diversion or Excluded for Reasons Specified Below

746

Excluded Cases by Exclusion Criteria

746

Instant Arrest Top Offense Class
Class A Felony Arrest Offense

271

Instant Conviction Offense
Non-Drug Probation Ineligible Offense

29

Pending Non-Drug Probation Ineligible Offense

46
c

Outstanding Immigration and Customs Enforcement (ICE) Warrant

104

d

Prior YO Adjudication Within Preceding 10 Years
That Involved Excluded Felony Offenses (VFO,
PL Article 125 or SOR felony offense)

97

Probation Violation or
e
Failed Drug Treatment Diversion

199

Note: Cases were removed from the "eligible" pool based on the order in which exclusion criteria are ranked in this table.
a

This analysis includes only admissions following initial sentencing by the court. Thus, it does not include admissions
resulting from violations of parole or post-release supervision.

b

Under this proposal, a first-time felony drug offender must be indicted for a class B felony drug possession or sale offense
(other than Penal Law §220.44) and must not have been adjudicated a youthful offender (YO) in the preceding 10-year
period for: (1) a felony sex offense enumerated in Correction Law §168-a; (2) a felony homicide offense defined in Penal
Law Article 125 or (3) a “violent felony offense” as defined in Penal Law §70.02(1).

c

Although not expressly excluded from eligibility under the judicial diversion proposal, offenders with outstanding federal ICE
warrants at the time of admission to DOCS were considered ineligible in this analysis due to their presumed unavailability
for diversion to community-based treatment programs.

d

The 10-year period excludes estimated time spent in prison or jail.

e

It was assumed that cases with initial plea dates prior to 2005, indeterminate sentences for drug offenses, or initial
sentences of parole supervision were failed drug treatment cases. Cases with initial sentences of straight probation or
probation-jail were classified as probation violation cases.
Data Sources: NYS Division of Criminal Justice Services, Computerized Criminal History System, and NYS Department of
Correctional Services admissions database.

252

Chart G-2
a

2006 DOCS First Admission Class B, C, D and E Drug and "Specified" Willard Offenses:
Estimated Number of Second-Felony Offenders Potentially Eligible for Diversion
Under the Judicial Diversion Proposalb
N of Cases
"Specified"
c
Willard
Drug

Eligibility Status

Total

Total Class B, C, D and E Drug and "Specified" Willard Offense Admissions

4,079

3,296

783

Estimated Number Eligible for Diversion

1,820

1,540

280

1,536
4
272
8

1,536
4
NA
NA

NA
NA
272
8

664
792
147
217

515
715
118
192

149
77
29
25

Estimated Number Ineligible for Diversion or Excluded for Reasons Specified Below

2,259

1,756

503

Excluded Cases by Exclusion Criteria

2,259

1,756

503

Instant Arrest Top Offense Class
Class A Felony Arrest Offense

139

139

NA

Instant Conviction Offense
Non-Drug or Non-Willard Offense

118

118

NA

Pending Indictment with Exclusion Offense

103

54

49

128

97

31

37
712
6

34
565
4

3
147
2

Conviction Offense Mix
Drug Offense Only
Drug and Underlying Willard-Eligible Offenses
"Specified" Willard Non-Drug Offense Only
"Specified" Willard Non-Drug & Underlying Drug Offenses
Shock Incarceration Status
Not Eligible - Age 40 or Older at Admission
Not Eligible - Age 16-39 at Admission
Eligible, but did not enter Shock
Entered Shock

Outstanding Immigration and Customs Enforcement (ICE) Warrant

d

c

Prior Felony Conviction Within Preceding 10 Years
That Involved Excluded Felony Offenses
Prior Class A Felony Conviction
Prior VFO Conviction
Prior PL 125 Felony Conviction
Prior SOR Felony Conviction

Other Prior Non-Drug or Non-Willard Felony Conviction
Prior YO Adjudication Within Preceding 10 Years
That Involved Excluded Felony Offenses (VFO,
PL Article 125 or SOR felony offense)
Failed Drug Treatment Diversion

18

11

7

669

416

253

43

41

2

286

277

9

e

f

Note: Cases were removed from the "eligible" pool based on the order in which exclusion criteria are ranked in this table. The
notation "NA" indicates that a category was not applicable.
a

This analysis includes only admissions following initial sentencing by the court. Thus, it does not include admissions resulting
from violations of parole or post-release supervision.

b

Under this proposal, second felony offenders indicted for a class B, C, D or E felony drug (PL Article 220 sections other than
PL §220.44) or marihuana (PL Article 221) offense, or a class D or E felony "specified" Willard [CPL §410.91(5)] offense would be
eligible for judicial diversion. A defendant charged in the same or another pending indictment with any other felony offense would,
unless the charge is reduced to a misdemeanor, dismissed or otherwise disposed of under an existing provision of the Criminal
Procedure Law, be ineligible for diversion. Furthermore, the offender must not have been convicted of a non-diversion-eligible
felony offense or adjudicated a youthful offender (YO) in the preceding 10-year period for: (1) a felony sex offense enumerated in
Correction Law §168-a; (2) a felony homicide offense defined in PL Article 125 or (3) a “violent felony offense” as defined in
PL §70.02(1).

c

Admission cases counted as drug cases were excluded from the count of "specified" Willard cases.

d

Although not expressly excluded from eligibility under the judicial diversion proposal, offenders with outstanding federal ICE
warrants at the time of admission to DOCS were considered ineligible in this analysis due to their presumed unavailability for
diversion to community-based treatment programs.

e

The 10-year period excludes estimated time spent in prison or jail.

f

For drug admissions, it was assumed that cases with initial plea dates prior to 2005, indeterminate sentences for drug offenses,
or initial sentences of parole supervision were failed drug treatment cases. For "specified" Willard offense admissions, it was
assumed that cases with time-lapses of three months or more between sentence and admission dates were failed drug treatment
cases.
Data Sources: NYS Division of Criminal Justice Services, Computerized Criminal History System, and NYS Department of
Correctional Services admissions database.

253

APPENDIX H
GENERAL CONDITIONS OF PAROLE

254

According to the New York State Parole Handbook, the general
conditions of Parole release are:

(1)

I will proceed directly to the area to which I have been
released and, within twenty-four hours of my release, make my
arrival report to that office of the Division of Parole unless
other instructions are designated on my release agreement.

(2)

I will make office and/or written reports as directed.

(3)

I will not leave the State of New York or any other state to
which I am released or transferred, or any area defined in
writing by my Parole Officer without permission.

(4)

I will permit my Parole Officer to visit me at my residence
and/or place of employment and I will permit the search and
inspection of my person, residence, and property. I will
discuss any proposed changes in my residence, employment, or
program status with my Parole Officer. I understand that I
have an immediate and continuing duty to notify my Parole
Officer of any changes in my residence, employment, or
program status when circumstances beyond my control make
prior discussion impossible.

(5)

I will reply promptly, fully, and truthfully to any inquiry of, or
communication by, my Parole Officer or other representative
of the Division of Parole.

(6)

I will notify my Parole Officer immediately any time I am in
contact with, or arrested by, any law enforcement agency. I
understand that I have a continuing duty to notify my Parole
Officer of such contact or arrest.

(7)

I will not be in the company of, or fraternize with any person I
know to have a criminal record or whom I know to have been
adjudicated a Youthful Offender, except for accidental
encounters in public places, work, school, or in any other
instance with the permission of my Parole Officer.
255

(8)

I will not behave in such manner as to violate the provisions of
any law to which I am subject, which provides for a penalty of
imprisonment, nor will my behavior threaten the safety or wellbeing of myself or others.

(9)

I will not own, possess, or purchase any shotgun, rifle, or
firearm of any type without the written permission of my Parole
Officer. I will not own, possess, or purchase any deadly
weapon as defined in the Penal Law or any dangerous knife,
dirk, razor, stiletto, or imitation pistol. In addition, I will not
own, possess or purchase any instrument readily capable of
causing physical injury without a satisfactory explanation for
ownership, possession or purchase.

(10)

In the event that I leave the jurisdiction of the State of New
York, I hereby waive my right to resist extradition to the State
of New York from any state in the Union and from any territory
or country outside the United States. This waiver shall be in
full force and effect until I am discharged from Parole or
Conditional Release. I fully understand that I have the right
under the Constitution of the United States and under law to
contest any effort to extradite me from another state and return
me to New York, and I freely and knowingly waive this right as
a condition of my Parole or Conditional Release.

(11)

I will not use or possess any drug paraphernalia or use or
possess any controlled substance without proper medical
authorization.

(12)

Special Conditions: (as specified by the Board of Parole,
Parole Officer or other authorized representative).

(13)

I will fully comply with the instructions of my Parole Officer
and obey such special additional written conditions as he/she,
a member of the Board of Parole, or an authorized
representative of the Division of Parole, may impose.

256