DISTRICT ATTORNEY - NEW YORK COUNTY

News Release
November 13, 2007

Contact: Barbara Thompson
212.335.9400

Manhattan District Attorney Robert M. Morgenthau made the following remarks today before the New York State Commission on Sentencing Reform:

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“Good morning.  I want to thank the commission for the opportunity to speak with you today.  You are doing extremely important work and I appreciate the challenges presented by the task you have undertaken. 

“In 1977, I chaired the governor’s Executive Advisory Committee on Sentencing, which examined some of the same subjects that you have considered. The principle recommendation of our committee was that the state adopt a system of determinate sentencing – at the time, virtually all felony sentences in New York were indeterminate.  We now have determinate sentencing for violent felonies and drug felonies in New York, and your preliminary report recommends extending determinate sentencing, with some exceptions, to all first and second non-violent felony offenses.  I endorse that proposal. 

“A system of determinate sentencing promotes “truth in sentencing” by allowing the courts, prosecutors, defendants and the public to know, with some certainty how long a defendant sentenced to prison will actually remain in prison.  By contrast, in indeterminate sentencing, when judges set a minimum and maximum term of imprisonment it is the parole board that determines the actual length of the sentence. As the final report of the 1977 Advisory Committee on Sentencing noted, this “plac[es] a veil of   secrecy over sentencing, and obscur[es] from public view precisely who is making sentencing decisions, what those decisions are, and why they are made.”  

“The same may be said of programs administered by the New York State Corrections Department, such as work release and merit time programs, that effectively reduce sentences imposed by the courts.  These programs – primarily applicable to sentences for drug and other non-violent felonies – do provide an incentive and an opportunity for inmates to obtain drug treatment, educational credits and vocational skills that will assist their eventual reentry into the community.  However, these same programs also create uncertainty about the length of time an inmate will actually serve and thus run counter to a principle aim of determinate sentencing.  For that reason, the use of these early release programs should be closely monitored to ensure that they are being used in a way that serves the public interest.

“Where violent felonies are concerned, public safety is of paramount importance and both victims and the public at large should be assured that the actual release dates will bear as close a relationship as is practical to the terms fixed by the court.  Therefore, the commission should proceed with extreme caution if it plans to consider the extension of work release, merit time and similar programs to violent offenders who are not currently eligible. The needs of these offenders and the public may be better served by drug and education programs in prison, a period of intense supervision after release and closely monitored, community based re-entry programs.

“Determinate sentencing does not by itself ensure fairness and uniformity in sentencing, since statutes allow judges to impose any sentence within a range.  For example, a defendant convicted of robbery in the first degree, a class B violent felony may be sentenced to a determinate term of imprisonment of not less than 5 or more than 25 years. Not surprisingly, different judges are apt to choose different sentences within the permissible range for defendants similarly situated.  When the Advisory Committee on Sentencing was formed in 1977, sentencing in New York was marked by widespread disparity, inconsistency and uncertainty.  In fact, we conducted an empirical study which showed that “judges presented with identical presentence reports differed—and differed dramatically—in both the type and length of sentence they imposed.”  We found that judges tended to sentence in part based on their own predilections and since judges differed in personality and view point so did the sentences they meted out. 

“This problem has been addressed to some extent by mandatory minimum sentences, which are now required for a variety of serious offenses.  Mandatory minimums eliminate some potential disparities at the low end of the spectrum of possible sentences.  The commission’s preliminary report, suggests that judges’ discretion may be further limited by narrowing the permissible range of sentences for particular crimes.  However, that will almost certainly result in the narrowed sentencing ranges being inadequate to address the most serious offenses, particularly serious violent felonies.  A more promising approach would be to establish sentencing guidelines, which would not be binding on judges but would provide benchmarks for the imposition of sentences above the mandatory minimum or for sentencing in cases where there is no mandatory prison sentence.  This would promote consistency by providing judges with an objective basis to evaluate critical factors concerning the offense or the defendant’s background that may be relevant to sentencing.  Establishing sentencing guidelines is a project that may be outside the scope of the current sentencing commission’s mandate, but it is a matter that deserves further study.

“As we consider changes in the sentencing laws, we must make certain the pendulum does not swing so far in the direction of "reform" that the dramatic reductions we have made in violent crime are put at risk.  Drug sentences have already been reduced as a result of the Drug Law Reform Act of 2004.  Further reductions are likely to be counterproductive.  As any resident of a drug-infested neighborhood can tell you, there is a link between illegal drug trafficking and other unlawful behavior, including violent crimes.  Significant mandatory prison sentences are still needed to ensure that serious offenses and repeat offenders receive appropriate punishment; they are also essential if we want to keep crime down. Mandatory sentences also provide a meaningful incentive for defendants to accept demanding, long-term residential drug treatment as an alternative to prison.  Leading experts in drug treatment have long recognized that the prospect of a stiff prison sentence is important to ensure that drug dependent defendants enter and remain in treatment programs.

“As the preliminary report recognizes, there is a recognition, reflected in current practice, that some persons facing mandatory state prison sentences for low-level drug sales and possession of small amounts with intent to sell – class B felonies under the current law – should not receive the mandated minimum prison sentence.  Historically, in New York County, 80% of such defendants who have no prior felony convictions have been permitted to plead guilty to lesser charges and receive shorter terms or alternative sentences, such as drug treatment or probation.  In a limited class of B felony drug cases, where the defendant is not a predicate felony offender and there are other mitigating factors, such as a defendant who is drug dependent and is willing to undergo treatment, the law should allow for an appropriate disposition that does not involve state prison – at least where the prosecutor consents.  While the same results may be achieved now by plea bargaining, it is appropriate that the law be changed to reflect current realities and practices.

“But to allow for alternative sentences in appropriate cases, we need more resources for drug treatment programs and drug education.  Studies have shown that at least a third of defendants going to prison are drug dependent.  Funding for programs to address the problem of drug addiction is grossly inadequate: less than one third of my own office's costs for administering treatment programs are reimbursed by the city or state. As Chairman of the Police Athletic League, I also know that additional financial support for after-school programs that keep young people off the streets and away from drugs is badly needed. To provide a dedicated source of funding in these areas, I once again urge, as I have in the past, that a portion of the money the city's district attorneys raise from tax prosecutions and other white collar cases be earmarked to support expanded drug education, drug treatment and alternatives to incarceration for low-level drug offenders.  

“Finally, I would like to advocate a permanent, independent sentencing commission to continue the work of this commission.  A permanent commission could, for example, collect and distribute data on sentencing practices, establish guidelines to assist judges in sentencing decisions, keep up with current trends in treatment and corrections and provide an objective basis for assessing proposed reforms.  Such a commission, if sheltered form political pressures, would be of enormous assistance to all three branches of state government.

“Thank you again for the opportunity to appear before you.”

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