Legal Aid Society Analysis: Assembly Bill 7078 and Senate Bill 1441

Senate Bill S1441

Senate bill S1441 is a very limited drug law reform bill. It reduces sentences for some persons convicted of A-I and A-II felony offenses and it authorizes a sentence of lifetime probation for those convicted of A-II felonies. The bill allows a limited range of sentence reductions but it does nothing to address the other objectives of the Real Reform agenda. There are no provisions for greater judicial discretion to allow diversion into treatment programs, an expansion of treatment options or removal of limits on reentry. There is a retroactivity provision in that persons serving A-I sentences now could apply to the sentencing court to be resentenced in accordance with the provisions of the new bill.

The Senate would create new determinate sentences for A-1 drug offenders. These drug sentences would be eligible for release with1/7 off the term for good time and an additional 1/7 off for possible merit time. The Senate would allow merit time for those with a prior violent felony offense. The merit time provision will help some but the existing requirements to earn merit time are very stringent so that even relatively minor disciplinary infractions in prison will render a person ineligible for merit time.

It is never easy to compare time served under indeterminate and determinate sentencing systems. In our experience many drug offenders have tended to be released around the minimum of their present indeterminate terms. A factor that should be kept in mind when comparing the Senate bill with the current law is that the possible merit time on the present indeterminate sentences for A-I felons was increased in 2003 to 1/3 of the minimum term. A prisoner serving a sentence of 15 to life who has an excellent prison record and who completes the merit time program requirements is now eligible for parole in 10 years. Last year's good time amendment applied to all of those who are currently in the system.

See the chart comparing the sentencing provisions of the current law, the Senate and the Assembly bills.

Read the full text of S1441

Assembly Bill A7078

In contrast to the Senate, the Assembly bill contains provisions that address many of the objectives of Real Reform. The proposal considerably expands judicial discretion by allowing judges the authority to place defendants into treatment programs. Some of the treatment options are community based while other options exist for judicial placement into prison based treatment programs. Drug sentences are reduced and redefined so that possession of double the amount of a drug is required to meet each threshold to a higher level of crime. There are retroactivity provisions that will allow those serving longer sentences to apply to the sentencing court to be sentenced in accordance with the new sentencing provisions and those serving shorter sentences to be released earlier after completion of prison based drug treatment.

Expansion of treatment access is provided through the newly created diversion systems. There is, however, no specific funding mechanism to actually build the required extra treatment capacity. Re-entry of prisoners is assisted through the expansion of prison reentry programs although the bill does not address other barriers to the reentry process. Sentence enhancements and new crimes are created in the bill for such activities as selling to children, using children in drug sales, internet sales. There is a new A-I felony of Trafficking Through a Controlled Substance Organization and a new C felony of Criminal Possession of a Weapon While Selling or Attempting to Sell a Controlled Substance.

While the Assembly bill would accomplish many things, certain categories of prisoners would not be eligible for any of its benefits. Section 19 of the bill contains a general exclusion provision that is repeated throughout the legislation. Those who were ever convicted of violent felony offenses, those convicted of sales to children, who use a child to sell or who sell on school grounds are not eligible for any relief. The violent felony exclusion has an exception which allows the sentencing court to make a finding that the defendant was the victim of abuse that was a factor in the commission of the crime.

The bill would establish new prison based drug treatment facilities to provide services to all prisoners who are identified as having a history of alcoholism or substance abuse. The programs are directed to comply with regulations for treatment facilities. The bill also authorizes
DOCS to contract with community based treatment providers to provide essential services. Completion of at least six months of these prison based programs would allow placement in a community based facility.

Section 9 establishes a transitional services program to help prisoners with reintegration into the community.

Merit time of 1/7 of the new determinate sentence is permitted for drug offenders. Drug offenders with determinate sentences would be eligible for temporary release and the shock incarceration program.

Judges would be given the sentencing discretion to sentence people convicted of B through E felonies directly into the shock program. Shock is a 6 month boot camp that allows for release from prison after completion of the program.

Section 22 allows judges to dismiss many drug charges other than class a felonies early in the proceeding upon motion of the defendant without the consent of the District Attorney.

A judicial diversion program called Court Approved Drug Abuse Treatment (CADAT) is created. This program allows the District Attorney to have a first shot at diverting drug offenders into DTAP programs. First time B felons and second felony C, D and E felons are eligible for CADAT. The DA has 21 days to decide on DTAP. After that the court may place a person into CADAT following an assessment of his or her treatment needs. CADAT would run for a period of 1 to 2 years. All CADAT would include some period of residential treatment unless it was determined to be not necessary. The criminal case would be frozen upon placement into CADAT. A guilty plea could be entered in some but not all cases. Upon successful completion of the program the charges would be dismissed or converted into a misdemeanor conviction.

Sentences to the 90 day Willard parole supervision program must include an additional1 year in a substance abuse program.

Section 31 allows prisoners in DOCS serving drug sentences up to B felonies who have maximum sentences of more than 3 and 6 or less years and who have more than 1 year left to serve to move the sentencing court to order DOCS to place them directly into a DOCS treatment facility. Successful completion would lead to release. Counsel would be provided for these hearings. B felony offenders could move the court to be resentenced in accordance with the laws new sentence provisions. Denials of these motions could be appealed as of right. Under section 42 of the bill, A-I and A-II felons could apply for resentencing which would convert their indeterminate sentences to shorter determinate ones. The length of the new sentence is determined by the length of the present one and the predicate felony status. Determinate sentences would be followed by a period of post release supervision.

Grant monies are authorized to stop the flow of guns to drug gangs and organized drug enterprises.

A community justice crime information map is authorized to determine the amount of resources going to the communities where those going to prison for drug crimes reside.

A drug court would be authorized in each county of the state.

Class B felonies are divided into two groups, called Class B and Class B-II felonies.

A range of sentencing options are given to the CADAT judge. If CADAT is not imposed the judge could also sentence to the Willard sentence of parole supervision or impose an indeterminate sentence with an initial period in a shock program. This should make the defendant eligible for release after completion of shock.

A-II and B felons who cooperate with the District Attorney by providing information the DA is seeking are eligible for a sentence of 25 years probation.

Treatment would become a mandatory condition of probation for drug offenders.

Section 49 creates the new crime of trafficking through controlled substance organization with a maximum of life and a minimum of between 15 and 30 years.

First time B-II felons could get a split sentence of 6 months and probation.

New B-II felonies are created that would have weight requirements. The B felonies would have 2 steps based on weight. Our guess is that most people wold fit the B-II description. Existing weights on A-I and A-II and B crimes are doubled so you would have to possess/sell more drugs to get to the next level of crime.

The new criminal possession of a weapon crime would be punishable by a determinate sentence between 5 to 15 years

The new crime of use of a child is an E felony. The new crime of sale to a child is a B felony. The new crime of sale over the internet is a B felony. The new drug trafficking crime requires 3 or more B level sales, direction of a group of 3 or more and profits of more than $50,000.

The new possession of a weapon during a sale crime is a C felony.

The Comptroller is ordered to study the dollar saving created by the bill.

Correction officers get training about the importance of drug treatment.

See the chart comparing the sentencing provisions of the current law, the Senate and the Assembly bills.

Read the full text of A7078