Relates to expanding prison work release program eligibility and participation.

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S1415-2013 Actions

• 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

S1415-2013 Meetings

Crime Victims, Crime and Correction: Apr 22, 2013

S1415-2013 Votes

S1415-2013 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.

S1415-2013 Text

                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                    1415

                         2013-2014 Regular Sessions

                              I N  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

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD04044-01-3

 S. 1415                             2

  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:


 S. 1415                             3

    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

 S. 1415                             4

  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

 S. 1415                             5

  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.