About That Sentencing Commission

In 2010, New York’s Chief Judge Jonathan Lippman formed a commission. You remember, right? No? Well, of course not, because nobody gives a flying fuck about another commission, on which blue ribbon types serve and, years later, come up with ideas that no one cares about. Officialdom loves commissions. Nobody else cares.

But this commission was ahead of the curve.  Its mandate was to simplify and make more transparent the New York criminal law sentencing scheme, which has gone through knee-jerk twists and turns since George Pataki decided that he needed to be tough on crime to get re-elected.

New York’s body of sentencing laws is a patchwork, with the history of the state’s changing politics woven into it and over it.  As a result, the new report says, sentencing is “confusing and misleading” for prisoners and victims alike.

Historically, New York State’s sentences were all indeterminate: a judge could hand down a range of years that a prisoner might serve (such as 1-to-3 or 5-to-15).  When during that window the person would actually go home was unpredictable: it was up to a parole board.

If this explanation strikes you as clueless, that’s because it comes from The Marshall Project.  It’s also why you never heard about this until now, unless you happen to read Doug Berman’s Sentencing Law & Policy, which is how I learned about it.

The initial confusion comes from conflating two issues, the first being a system of indeterminate sentences, the 1-to-3 thing, and the second being the parole board. An indeterminate sentence, standing alone, wasn’t nearly as confusing as it might appear.

A defendant would be sentenced to a minimum (the “1” of the 1-to-3 sentence), and a maximum, the “3.”  If the defendant didn’t amass disciplinary problems in prison, the assumption was that he would get out after a year. If he got into trouble in prison, then he would stay longer, up to the max.

When the judge set the min and max, that was understood to be the sentence, and the purpose of it being indeterminate was to provide an incentive for prisoners to behave, to use the time to improve their education or skills, and to come out on the back end better than they went in.  That was the concept, anyway.

But the release was effectuated by the parole board, which existed independent of everything else, was highly political, and answered to no one. The parole board in New York was a cesspool from which few emerged unscathed. It was a devastating stand-alone problem. We all know it, and no politician ever had the guts to fix it.

So Judge Lippman’s committee did its work and reported back:

The commission, composed of judges, victims’ representatives, professors, and attorneys, recommended bringing these sentences into line with those for other crimes by eliminating the parole board’s discretion. They suggested a new matrix of sentence lengths that judges can hand down, eliminating mandatory minimums for a wide range of crimes and expanding the number of crimes eligible for alternatives to incarceration like drug treatment and community service. They also recommended much shorter terms of supervision once people are out of prison; for most offenders, researchshows that longer periods on parole do not improve public safety but do increase the odds that someone will go back to prison for a technical violation….

Again, a hodge-podge of sentencing problems is reported with a hodge-podge of information, reflecting massive confusion on the part of the problem and solution.

The New York sentencing scheme was a fully conceived model when it was developed and enacted in the 1960s.  It weighted the relative significance of crimes in a way that made sense, such as a kidnapping was subject to a lesser sentence than a murder, because the framers didn’t want kidnappers to think, “we might as well kill the person we kidnapped because it will improve our chances of getting away with the crime and we will get the same sentence regardless.”  In other words, they didn’t want kidnappers to get a free murder out of the deal.

And then there were drugs, which Nelly Rockefeller carved out because they were so darn evil that they had to be stopped, no matter what it took.

The commission’s report recommended cleaning house, from rationalizing sentences by returning them to relative weights that make sense rather than raising them through the roof, ad hoc, every time a child dies and somebody demands a new law with the death penalty (this is hyperbole, as New York doesn’t have the death penalty), reducing sentences that have grown and grown, because who doesn’t love life plus cancer for jaywalking, and, most importantly, changing the scheme from indeterminate sentences to fixed sentences.

Reducing the length of sentences received a frown from district attorneys.

Lake George District Attorney Kate Hogan submitted a letter — included as an addendum to the report — expressing “grave concerns” about the shortened sentence ranges.  She told the Marshall Project that reducing the maximum penalty available for certain crimes “discounts plea bargaining in its entirety. No one pleads the maximum. That’s how you incentivize someone to resolve a case by plea.”

How are prosecutors supposed to coerce guilty pleas if they can’t threaten life plus cancer sentences for resisting arrest?  Anarchy! Trials! Incentives! Frankly, Hogan (the new one, not the old one) is right, it will make it harder to ram plea bargains down defendants’ throats if the sentences aren’t draconian.  And if defendants don’t plead out, they will then go to trial. Can you imagine?

But the determinate sentencing structure is designed to end the tyranny of the parole board, its playing super-judge where it is free to ignore everything and act solely upon its own whims and the political winds. Not even the nastiest prosecutor wants to back up these mutts.

Yet, nobody knows about this report, and there is no push in Albany to take a chance by backing these changes.  The recommendations have yet to find their way into any proposed bill, and no one has stepped forward to champion it.  It’s like it never happened.