NYS Legislative Agenda: Advance Criminal Justice Reform and Policies That Will Reduce Mass Incarceration (2019)

Advance Criminal Justice Reform and Policies That Will Reduce Mass Incarceration

Eliminate or Reduce Unfair Financial Burdens of the Criminal Justice System. The City Bar urges reform of practices that unfairly penalize and burden indigent New Yorkers in the criminal justice system.

• Bail Reform. As long as New Yorkers who have not been convicted of any crime are jailed simply because they are too poor to pay bail, the need for reform is undeniable. We urge that any bail reform embody three core principles: (1) freedom before trial must be the norm, not the exception; (2) profit motivations must be removed from pretrial practices; and (3) race and wealth should not be factors in pretrial decisions. We further recommend the elimination of for-profit commercial bail bonds in New York. The use of for-profit bail bonds is on the rise in New York, and their continued use creates discriminatory standards of release in New York’s notoriously problematic bail system. Moreover, as reforms are being considered, judges should be encouraged to use all facets of the current bail system to reduce unnecessary incarceration and should set bail amounts only after taking into account an individual’s ability to pay. The successful use of charitable bail bonds, credit card bail, and supervised release programs have already illustrated the efficacy of alternative, non-commercial bail practices.
• Reexamine Mandatory Court Fees Imposed on Individuals Convicted of Criminal Offenses and Violations. When any person in New York is convicted of a crime or violation, the law requires that a judge impose certain mandatory surcharges and fees, regardless of an individual’s ability to pay. The official goal of these surcharges and fees is to generate revenue, not to impose punishment. All proceeds from collection are deposited in the state treasury, making these fines and fees a ‘regressive tax’ on those who are often least able to pay. Being subjected to fines and fees causes long-term harms to indigent defendants, such as lost wages, damaged credit, and seizure of property. And regulations make it all but impossible for defendants who are incarcerated while subject to surcharges to discharge their debts. Given that the aims of the criminal justice system are in no way advanced by these mandatory surcharges and fees, the Legislature should simply abolish them for all those convicted of a crime or violation, or, at a minimum, restructure them to be imposed on a sliding scale consistent with an individual defendant’s ability to pay. If the Legislature is unwilling to make these changes, the law should be amended to make it more equitable for indigent defendants. This includes: (1) allowing sentencing courts to waive fees which would result in hardship, and simplify the process by which courts can defer fees until after incarceratory terms are served; (2) excluding youthful offenders and those convicted only of violations from being subjected to any mandatory court fees; and (3) consolidating mandatory fees for individuals taking a single plea on multiple crimes.

Enact Sentencing Reform Measures. We support efforts to review New York’s sentencing laws and reform them in a way that is fair and effective while also maintaining public safety:

• Create a “safety valve.” This proposed legislation would give judges and prosecutors the ability to impose and recommend sentences that fall below statutory mandatory minimums in cases where there are substantial and compelling reasons, giving due regard to the nature of the crime, history and character of the defendant and his or her chances of successful rehabilitation, such that the imposition of a mandatory minimum sentence would result in a substantial injustice to the defendant and is not necessary for the protection of the public. Under mandatory minimum sentencing, mitigating factors – no matter how compelling – cannot be used to justify a sentence below the statutory minimum because prosecutors and judges have no flexibility to go below the statutory floor in plea negotiations or sentencing. This rigid sentencing structure leads to more people serving longer periods of incarceration which costs taxpayers more money and has not been shown to reduce recidivism. _{*City Bar Proposal*}
• Second Chance Amendment. Currently, New York Criminal Procedure Law 440.20 permits a defendant to make a motion to set aside a sentence on the grounds that it was unauthorized, illegally imposed or otherwise invalid as a matter of law. Although this provision offers an avenue for relief for some defendants, it does not permit a reduction of sentences that are valid but nonetheless excessive in light of the crime and the defendant’s individual circumstances, including evidence of meaningful rehabilitation while serving the initial sentence. Any such claims regarding excessiveness can only be raised on direct appeal. The Second Chance Amendment is designed to give individuals serving sentences of 10 years or more (excluding certain crimes) who are more than two years away from scheduled Conditional Release the chance to prove, part way through their sentences, that they deserve a reduction in sentence. The amendment would allow a motion for reduction or modification of a sentence, only after the individual has served a specified portion of that sentence on the grounds that the sentence was greater than necessary to achieve the purposes of sentencing. It would allow the presentation of evidence regarding the individual’s age, personal circumstances, and medical condition, as well as confinement record, including indicators of rehabilitation. _{*City Bar Proposal*}
• Domestic Violence Survivors Justice Act. This bill would provide greater discretion to judges when sentencing defendants who are survivors of domestic violence.
• One Day to Protect New Yorkers Act. This bill would reduce the maximum sentence for class A misdemeanor offenses from one year to 364 days, thereby mitigating the disproportionate consequences facing immigrant New Yorkers—including lawfully present permanent residents (green card holders), asylees, and victims of domestic violence who may face deportation for a single minor conviction.
• Sentencing alternatives to prison. Use of these alternatives, which include drug programs, mental health programs and job training programs, should be expanded.

Support Programs and Policies that Allow Incarcerated Individuals to Successfully Reenter Society.

• Expand the availability of rehabilitative services, including counseling and educational opportunities, during and following incarceration so that individuals can successfully reenter society and avoid recidivism.
• Seal or expunge criminal records in certain circumstances so that individuals do not face the kinds of collateral consequences that create virtually insurmountable barriers to successful reentry into their communities.
• Advance legislation that would help those with criminal records find employment, such as a statewide “Fair Chance Act” and a uniform “Certificate of Rehabilitation” in lieu of the current Certificates of Relief from Disabilities and Good Conduct.
• Pass the Fair Access to Education Act, which would prevent discrimination in the college admission process for individuals previously convicted of one or more criminal offenses. 

OUTCOMES

Bail Reform – Adopted as part of the FY 2020 Enacted Budget

Create a “safety valve” – Introduced as S.5712 (May 13, 2019)

Domestic Violence Survivors Justice Act – Signed by the Governor, Chp. 31 (May 14, 2019) 

One Day to Protect New Yorkers Act – Adopted as part of the FY 2020 Enacted Budget