Last May, I wrote about  New York’s latest foray into improving criminal justice with a new sentencing reform commission.  Not to blow my own horn, but I nailed it again.  When you put together a “blue ribbon” commission of prosecutorial-types, the ones who government officials love to appoint, you get the results you expect.  I would love to claim that I’m just so darned brilliant, but it was plain from day one that the outcome of this “reform” going to hurt.

And so, let’s take a look at what our reformers have come up with, shall we?  This report rightly notes that New York’s byzantine sentencing structure is in dire need of reform.  So what’s the answer?  Simplify.

The executive summary tells us that if we simplify the sentencing scheme, it will be more “streamlined” and fair.  This, of course, sounds great.  Fair is a wonderful thing.  But then, fair is subjective.  Whose idea of fair are they talking about?

There’s an early clue:  The commission wants to “strengthen the State’s statutory and regulatory scheme for crime victims.”  Uh oh.  The commission report tells us later that crime victims need to have a more “meaningful voice” and the State needs to strengthen the “rights” of crime victims.  Are you beginning to see the direction where this reform is heading?

But the meat of the recommendation, promoted by claiming that it would make sentencing “intelligible, honest and fair,” is to change over New York’s current system of indeterminate sentences to determinate.  Simplify.

What does this mean?  It means the sentence to be imposed will be taken out of the hands of judges and placed into the hands of prosecutors.  Why?  Because 98% of all sentencing happens as a result of plea bargaining rather than trial.  And the prosecutor will now dictate a determinate sentence as part of the plea offer.

Consider the explanation of Henry Steinglass, President of the New York Criminal Bar Association:

Elimination of indeterminate sentences transfers to prosecutors the power to set the amount of prison time as a condition of pleading down to a lower level felony. For example, before the elimination of indeterminate sentencing for most “violent” felonies (enacted in 1995 and 1998), a guilty plea in a murder case with a one-level reduction to Manslaughter in the First Degree allowed the prosecutor to condition consent on an indeterminate  sentence which would usually be 8 1/3-25, 7-21 or 6-18 years in prison (assuming no predicate felony). And, even if the person receiving such a sentence was denied parole, he/she would be released (“max out”) after serving 2/3 of his sentence (16 2/3, 14 or 12 years).

The change to determinate sentencing has given prosecutors the power to choose a  sentence anywhere from 5 up to 25 years as a condition of the same one-level down  guilty plea. For example,  if the prosecutor offers a  17 year sentence, then the defense can attempt to persuade the prosecutor to offer 15 or 14 years, or some other number but, in the end, it is the prosecutor who sets the specific number of years for the sentence and the defense can either accept the final offer or go to trial. This example also indicates how the  change to determinate sentencing results in a sentence roughly equivalent to “maxing out” under the previous, indeterminate sentencing structure.

There are many who will ask what’s wrong with these “reforms”.  After all, victims’ rights are in fashion these days, and we’ve long since lost any sense of proportionality when it comes to criminals.  Frankly, we should be happy that this commission didn’t just recommend life without parole for anyone convicted of any felony at all. 

This is indeed a simple solution.  Simple means clearer and longer.  Let’s just call reform what it is, a way to put people in jail for as long as possible, according to the best judgment of an assistant district attorney.  If this is what you call reform, because there weren’t enough people in prison for enough years, then this is one great concept.

So as I anticipated, this “blue ribbon” sentencing reform commission has given us a better system that just happens to put people in prison longer under the control of the prosecution.  If we get any more “reform” in New York, expect to see the death penalty back in place.

ADDENDUM:  Holy smoke.  What was I thinking.  I apologize.  Here I am, patting myself on the back so hard that I blew it completely.  I am wrong.  There is no problem with determinate sentencing.  There is no issue with putting sentencing decisions in the hands of young prosecutors, vindictive or otherwise.  No, no, no.

The is a solution, an answer if you will, that is as “intelligent, honest and fair” as if this solution:  Don’t Plead!  It dawned on, belatedly, that Henry’s issue is no issue at all.  It presumes that everybody will do as they are doing now, pleading guilty.  There is nothing whatsoever forcing anyone to do this.  Get a good lawyer and fight.  If you didn’t do it, try it.  If you don’t like the deal, refuse it. 

Lawyers, stop taking a plea fee and start honing your cross.  Pretend you’re a real lawyer and prepare for trial.  The ADA doesn’t take you seriously?  Do you think that has something to do with the fact that you’ve never actually taken a case to verdict?  There’s no problem here.  Just announce ready for trial and then do it.