Bill S1415-2013

Relates to expanding prison work release program eligibility and participation

Relates to expanding prison work release program eligibility and participation.

Details

Actions

  • Jan 8, 2014: REFERRED TO CRIME VICTIMS, CRIME AND CORRECTION
  • Apr 22, 2013: REPORTED AND COMMITTED TO CODES
  • Mar 11, 2013: NOTICE OF COMMITTEE CONSIDERATION - REQUESTED
  • Jan 9, 2013: REFERRED TO CRIME VICTIMS, CRIME AND CORRECTION

Votes

VOTE: COMMITTEE VOTE: - Crime Victims, Crime and Correction - Apr 22, 2013
Ayes (5): Hassell-Thompson, Montgomery, Hoylman, Peralta, Rivera
Ayes W/R (2): Carlucci, Nozzolio
Nays (5): Gallivan, DeFrancisco, Griffo, Maziarz, Ritchie
Excused (1): Little

Memo

BILL NUMBER:S1415

TITLE OF BILL: An act to amend the correction law, in relation to expanding prison work release program eligibility and participation

PURPOSE: To expand the scope of eligibility in prison work release programs in an effort to increase participation and better prepare inmates for successful reentry.

SUMMARY OF PROVISIONS: Section 1: Amends subdivision 2 of section 851 of the correction law, as amended by chapter 60 of the laws of 1994, the opening paragraph as amended by chapter 320 of the laws of 2006, and the closing paragraph as amended by section 42 of subpart B of part C of chapter 62 of the laws of 2011 by expanding the definition of "eligible inmate" to include those persons who will become eligible for parole or conditional release within three years. Those persons incarcerated for an offense involving the use or threatened use of a deadly weapon or dangerous instrument will now qualify as an "eligible inmate" when they will become eligible for parole or conditional release within thirty months. Persons ineligible for work release was expanded to include those under sentence for (1) an act of terrorism or (2) for an offense involving sexual performance of a child. Additionally, section 1 contains an amendment which would withdraw the governor's ability to issue an executive order to exclude or limit inmates from participating in work release, and gives the commissioner of DOCCS the responsibility of enacting regulations which would provide support to work release participants.

Section 2: Amends subdivision 2 of section 851 of the correction law, as amended by chapter 447 of the laws of 1991, the opening paragraph as amended by chapter 252 of the laws of 2005, and the closing paragraph as amended by section 43 of subpart B of part C of chapter 62 of the laws of 2011 by expanding the list of ineligible inmates to include persons under sentence for: (1) aggravated harassment of an employee by an inmate, (2) homicide, (3) sex offense, (4) terrorism, or (5) an offense involving sexual performance of a child. Additionally, section 2 contains an amendment which would withdraw the governor's ability to issue an executive order to exclude or limit inmates from participating in work release, and gives the commissioner of DOCCS the responsibility of enacting regulations to determine which inmates are eligible to participate in work release.

Section 3: Amends subdivision 2 of section 851 of the correction law, as added by chapter 472 of the laws of 1969 by expanding the definition of "eligible inmate" to include those persons who will become eligible for parole or conditional release within three years.

Section 4: Amends subdivision 2-a of section 851 of the correction law, as added by chapter 251 of the laws of 2002 by expanding the definition of "eligible inmate" to include those persons who will become eligible for parole or conditional release within three years.

Section 5: Amends subdivision 2-b of section 851 of the correction law, as added by chapter 738 of the laws of 2004 to include additional merit time in calculating a person's eligibility date for parole or conditional release.

EXISTING LAW: The current law does not allow inmates to participate in work release programs until two years prior to the date on which they will become eligible for parole or conditional release. Additionally, current law allows those under sentence for terrorism and offenses involving the sexual performance of a child to participate in work release. The proposed law would expand the particular sentences that are ineligible for work release participation to include these two crimes.

JUSTIFICATION: This legislation will ensure that eligible inmates will be able to participate in prison work release programs. Changes in sentencing laws throughout the years have resulting in more and more people serving determinate rather than indeterminate sentences. At its peak in 1994, 24,055 individuals participated in the work release program. As of 2010, program participation has plummeted to 1,910. In the two year period from 2009 to 2010 alone, the number of new admissions to the program was halved - in 2009, 416 applicants were accepted into the program, while in 2010, only 201 applicants were accepted. This low admission rate is not for lack of inmate interest in the program. In 2010, about 24,269 incarcerated people applied to participate in the program, but only 702 people were accepted into work release as a stand alone program or work release as part of the Comprehensive Alcohol and Substance Abuse Treatment (CASAT) program. This means that only 4% of all Temporary Release program applicants are accepted into the program.

A revitalized Temporary Release program is fully consistent with the underlying goals of the recent merger of the New York Department of Correctional Services and the Division of Parole to form the Department of Corrections and Community Supervision (DOCCS), which include enhanced public safety through the promotion of individuals' successful reentry and reintegration into the community. The Temporary Release program has limitless potential to further this purpose. Temporary Release provides for a structured transition from incarceration to life in the community, helping participants to develop the work, educational, and basic life management skills they need to become law-abiding, contributing members of their communities. The evidence has shown that programs like Temporary Release are effective at reducing recidivism, which enhances public safety. Participation in the Temporary Release program provides a sound and accurate picture of a person's readiness for release to the community as a law-abiding citizen. Not only does it aid the board in making decisions about readiness for release, it can also be an invaluable resource to help DOCCS staff identify the supports a person needs while being supervised in the community. For example, it can help identify the need for better job skill development, the need for more education to further career advancement, or the need for ongoing after-care to address a substance abuse problem.

Temporary Release is an exceptionally cost-effective program; indeed, a robust Temporary Release program is a sure way to reduce the

staggering cost of the prison system. The program, particularly work release, saves taxpayers in two important ways. First, it costs significantly less to house work release participants than to house "traditional prisoners." Second, because individuals involved in work release earn a taxable income, this program generates local, state, and federal tax revenues.

Additionally, the proposed legislation will ensure that work release participants are provided the services and support necessary for success during the transitional period. Further proposals will ensure the safety and security of the public by limiting eligible participants to those who have not committed certain enumerated crimes.

LEGISLATIVE HISTORY: 2011-2012: S.5920 - Died in Committee

FISCAL IMPLICATIONS: Unknown.

EFFECTIVE DATE: Effectively immediately, provided however, that the amendments to subdivision 2 of section 851 of the correction law made by section one of this act shall be subject to the expiration and reversion of such subdivision and section pursuant to subdivision (c) of section 46 of chapter 60 of the laws of 1994 and section 10 of chapter 339 of the laws of 1972, as amended, when upon such date the provisions of section two of this act shall take effect; provided further, that the amendments to subdivision 2 of section 851 of the correction law , made by section two of this act shall expire on the same date as subdivision ¸ of section 46 of chapter 60 of the laws of 1994, section 10 of chapter 339 of the laws of 1972, and section 5 of chapter 554 of the laws of 1986, as amended, expire, when upon such date the provisions of section three of this act shall take effect; provided further that the amendments to subdivisions 2-a and 2-b of section 851 of the correction law, made by sections four and five of this act shall not affect the expiration of such section and shall expire therewith.


Text

STATE OF NEW YORK ________________________________________________________________________ 1415 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________
Introduced by Sens. MONTGOMERY, PARKER, PERKINS -- read twice and ordered printed, and when printed to be committed to the Committee on Crime Victims, Crime and Correction AN ACT to amend the correction law, in relation to expanding prison work release program eligibility and participation THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 2 of section 851 of the correction law, as amended by chapter 60 of the laws of 1994, the opening paragraph as amended by chapter 320 of the laws of 2006, the closing paragraph as amended by section 42 of subpart B of part C of chapter 62 of the laws of 2011, is amended to read as follows: 2. "Eligible inmate" means: a person confined in an institution who is eligible for release on parole or who will become eligible for release on parole or conditional release within [two] THREE years. Provided, however, that a person under sentence for an offense defined in para- graphs (a) and (b) of subdivision one of section 70.02 of the penal law, where such offense involved the use or threatened use of a deadly weapon or dangerous instrument shall not be eligible to participate in a work release program until he or she is eligible for release on parole or who will be eligible for release on parole or conditional release within [eighteen] THIRTY months. Provided, further, however, that a person under a determinate sentence as a second felony drug offender for a class B felony offense defined in article two hundred twenty of the penal law, who was sentenced pursuant to section 70.70 of such law, shall not be eligible to participate in a temporary release program until the time served under imprisonment for his or her determinate sentence, including any jail time credited pursuant to the provisions of article seventy of the penal law, shall be at least eighteen months. In the case of a person serving an indeterminate sentence of imprisonment
imposed pursuant to the penal law in effect after September one, nine- teen hundred sixty-seven, for the purposes of this article parole eligi- bility shall be upon the expiration of the minimum period of imprison- ment fixed by the court or where the court has not fixed any period, after service of the minimum period fixed by the state board of parole. [If an inmate is denied release on parole, such inmate shall not be deemed an eligible inmate until he or she is within two years of his or her next scheduled appearance before the state parole board.] In any case where an inmate is denied release on parole while participating in a temporary release program, the department shall review the status of the inmate to determine if continued placement in the program is appro- priate. No person convicted of any escape or absconding offense defined in article two hundred five of the penal law shall be eligible for temporary release. Further, no person under sentence for aggravated harassment of an employee by an inmate as defined in section 240.32 of the penal law for, any homicide offense defined in article one hundred twenty-five of the penal law, for any sex offense defined in article one hundred thirty of the penal law, FOR AN ACT OF TERRORISM AS DEFINED IN ARTICLE FOUR HUNDRED NINETY OF THE PENAL LAW, FOR AN OFFENSE INVOLVING THE SEXUAL PERFORMANCE OF A CHILD AS DEFINED IN ARTICLE TWO HUNDRED SIXTY-THREE OF THE PENAL LAW, or for an offense defined in section 255.25, 255.26 or 255.27 of the penal law shall be eligible to partic- ipate in a work release program as defined in subdivision three of this section. Nor shall any person under sentence for any sex offense defined in article one hundred thirty of the penal law be eligible to partic- ipate in a community services program as defined in subdivision five of this section. [Notwithstanding the foregoing, no person who is an other- wise eligible inmate who is under sentence for a crime involving: (a) infliction of serious physical injury upon another as defined in the penal law or (b) any other offense involving the use or threatened use of a deadly weapon may participate in a temporary release program with- out the written approval of the commissioner.] The commissioner shall promulgate regulations giving direction to the temporary release commit- tee at each institution in order to aid such committees in [carrying out this mandate] DETERMINING WHICH INMATES ARE ELIGIBLE AND APPROPRIATE TO PARTICIPATE IN THE TEMPORARY RELEASE PROGRAMS. The governor[, by executive order,] may NOT ISSUE OR ENFORCE ANY EXEC- UTIVE ORDER TO exclude or limit the participation of any class of [otherwise] eligible inmates from participation in a temporary release program. Nothing in this paragraph shall be construed to affect [either the validity of any executive order previously issued limiting the participation of otherwise eligible inmates in such program or] the authority of the commissioner OF THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION to impose appropriate regulations [limiting such participation] FOR DETERMINING WHICH INMATES ARE ELIGIBLE AND APPROPRI- ATE TO PARTICIPATE IN THE TEMPORARY RELEASE PROGRAMS. THE COMMISSIONER SHALL PROMULGATE REGULATIONS GIVING DIRECTION TO DEPARTMENT AND TRANSI- TIONAL SERVICES STAFF WITH REGARD TO DEVELOPING AND PROVIDING PROGRAM- MATIC SUPPORT TO TEMPORARY RELEASE PARTICIPANTS WITH EMPHASIS ON THE FIRST THREE MONTHS OF WORK RELEASE. S 2. Subdivision 2 of section 851 of the correction law, as amended by chapter 447 of the laws of 1991, the opening paragraph as amended by chapter 252 of the laws of 2005, and the closing paragraph as amended by section 43 of subpart B of part C of chapter 62 of the laws of 2011, is amended to read as follows:
2. "Eligible inmate" means: a person confined in an institution who is eligible for release on parole or who will become eligible for release on parole or conditional release within [two] THREE years. Provided, that a person under a determinate sentence as a second felony drug offender for a class B felony offense defined in article two hundred twenty of the penal law, who was sentenced pursuant to section 70.70 of such law, shall not be eligible to participate in a temporary release program until the time served under imprisonment for his or her determi- nate sentence, including any jail time credited pursuant to the provisions of article seventy of the penal law, shall be at least eigh- teen months. In the case of a person serving an indeterminate sentence of imprisonment imposed pursuant to the penal law in effect after September one, nineteen hundred sixty-seven, for the purposes of this article parole eligibility shall be upon the expiration of the minimum period of imprisonment fixed by the court or where the court has not fixed any period, after service of the minimum period fixed by the state board of parole. [If an inmate is denied release on parole, such inmate shall not be deemed an eligible inmate until he or she is within two years of his or her next scheduled appearance before the state parole board.] In any case where an inmate is denied release on parole while participating in a temporary release program, the department shall review the status of the inmate to determine if continued placement in the program is appropriate. No person convicted of any escape or absconding offense defined in article two hundred five of the penal law shall be eligible for temporary release. FURTHER, NO PERSON UNDER SENTENCE FOR AGGRAVATED HARASSMENT OF AN EMPLOYEE BY AN INMATE AS DEFINED IN SECTION 240.32 OF THE PENAL LAW FOR, ANY HOMICIDE OFFENSE DEFINED IN ARTICLE ONE HUNDRED TWENTY-FIVE OF THE PENAL LAW, FOR ANY SEX OFFENSE DEFINED IN ARTICLE ONE HUNDRED THIRTY OF THE PENAL LAW, FOR AN ACT OF TERRORISM AS DEFINED IN ARTICLE FOUR HUNDRED NINETY OF THE PENAL LAW, FOR AN OFFENSE INVOLVING THE SEXUAL PERFORMANCE OF A CHILD AS DEFINED IN ARTICLE TWO HUNDRED SIXTY-THREE OF THE PENAL LAW, OR FOR AN OFFENSE DEFINED IN SECTION 255.25, 255.26 OR 255.27 OF THE PENAL LAW SHALL BE ELIGIBLE TO PARTICIPATE IN A WORK RELEASE PROGRAM AS DEFINED IN SUBDIVISION THREE OF THIS SECTION. Nor shall any person under sentence for any sex offense defined in article one hundred thirty of the penal law be eligible to participate in a community services program as defined in subdivision five of this section. [Notwithstanding the fore- going, no person who is an otherwise eligible inmate who is under sentence for a crime involving: (a) infliction of serious physical inju- ry upon another as defined in the penal law, (b) a sex offense involving forcible compulsion, or (c) any other offense involving the use or threatened use of a deadly weapon may participate in a temporary release program without the written approval of the commissioner.] The commis- sioner shall promulgate regulations giving direction to the temporary release committee at each institution in order to aid such committees in [carrying out this mandate] DETERMINING WHICH INMATES ARE ELIGIBLE AND APPROPRIATE TO PARTICIPATE IN THE TEMPORARY RELEASE PROGRAMS. The governor[, by executive order,] may NOT ISSUE OR ENFORCE ANY EXEC- UTIVE ORDER TO exclude or limit the participation of any class of [otherwise] eligible inmates from participation in a temporary release program. Nothing in this paragraph shall be construed to affect [either the validity of any executive order previously issued limiting the participation of otherwise eligible inmates in such program or] the authority of the commissioner to impose appropriate regulations [limit- ing such participation] FOR DETERMINING WHICH INMATES ARE ELIGIBLE AND
APPROPRIATE TO PARTICIPATE IN TEMPORARY RELEASE PROGRAMS. THE COMMIS- SIONER SHALL PROMULGATE REGULATIONS GIVING DIRECTION TO DEPARTMENT AND TRANSITIONAL SERVICES STAFF WITH REGARD TO DEVELOPING AND PROVIDING PROGRAMMATIC SUPPORT TO TEMPORARY RELEASE PARTICIPANTS WITH EMPHASIS ON THE FIRST THREE MONTHS OF WORK RELEASE. S 3. Subdivision 2 of section 851 of the correction law, as added by chapter 472 of the laws of 1969, is amended to read as follows: 2. "Eligible inmate" means a person confined in an institution where a work release program has been established who is eligible for release on parole or who will become eligible for release on parole within [one year] THREE YEARS. S 4. Subdivision 2-a of section 851 of the correction law, as added by chapter 251 of the laws of 2002, is amended to read as follows: 2-a. Notwithstanding subdivision two of this section, the term "eligi- ble inmate" shall also include a person confined in an institution who is eligible for release on parole or who will become eligible for release on parole or conditional release within [two] THREE years, and who was convicted of a homicide offense as defined in article one hundred twenty-five of the penal law [or an assault offense defined in article one hundred twenty of the penal law,] and who can demonstrate to the commissioner that: (a) the victim of such homicide or assault was a member of the inmate's immediate family as that term is defined in section 120.40 of the penal law or had a child in common with the inmate; (b) the inmate was subjected to substantial physical, sexual or psychological abuse committed by the victim of such homicide or assault; and (c) such abuse was a substantial factor in causing the inmate to commit such homicide or assault. With respect to an inmate's claim that he or she was subjected to substantial physical, sexual or psychological abuse committed by the victim, such demonstration shall include corrobo- rative material that may include, but is not limited to, witness state- ments, social services records, hospital records, law enforcement records and a showing based in part on documentation prepared at or near the time of the commission of the offense or the prosecution thereof tending to support the inmate's claim. Prior to making a determination under this subdivision, the commissioner is required to request and take into consideration the opinion of the district attorney who prosecuted the underlying homicide or assault offense and the opinion of the sentencing court. If such opinions are received within forty-five days of the request, the commissioner shall take them into consideration. If such opinions are not so received, the commissioner may proceed with the determination. Any action by the commissioner pursuant to this subdivi- sion shall be deemed a judicial function and shall not be reviewable in any court. S 5. Subdivision 2-b of section 851 of the correction law, as added by chapter 738 of the laws of 2004, is amended to read as follows: 2-b. When calculating in advance the date on which a person is or will be eligible for release on parole or conditional release, for purposes of determining eligibility for temporary release or for placement at an alcohol and substance abuse treatment correctional annex, the commis- sioner shall consider and include credit for all potential credits and reductions including but not limited to merit time, ADDITIONAL MERIT TIME and good behavior allowances. Nothing in this subdivision shall be interpreted as precluding the consideration and inclusion of credit for all potential credits and reductions including, but not limited to, merit time, ADDITIONAL MERIT TIME and good behavior allowances when
calculating in advance for any other purpose the date on which a person is or will be eligible for release on parole or conditional release. S 6. This act shall take effect immediately, provided however, that the amendments to subdivision 2 of section 851 of the correction law made by section one of this act shall be subject to the expiration and reversion of such subdivision and section pursuant to subdivision (c) of section 46 of chapter 60 of the laws of 1994 and section 10 of chapter 339 of the laws of 1972, as amended, when upon such date the provisions of section two of this act shall take effect; provided further, that the amendments to subdivision 2 of section 851 of the correction law made by section two of this act shall expire on the same date as subdivision (c) of section 46 of chapter 60 of the laws of 1994, section 10 of chapter 339 of the laws of 1972, and section 5 of chapter 554 of the laws of 1986, as amended, expire, when upon such date the provisions of section three of this act shall take effect; provided further that the amend- ments to subdivisions 2-a and 2-b of section 851 of the correction law, made by sections four and five of this act shall not affect the expira- tion of such section and shall expire therewith.

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