NY State Senate Bill 2011-S338

Senate Bill S338

2011-2012 Legislative Session

Relates to controlled substances and indeterminate sentences; to the expansion of merit time; repealer

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Archive: Last Bill Status - In Senate Committee Rules Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Mar 12, 2012	committee discharged and committed to rules
Feb 21, 2012	notice of committee consideration - requested
Jan 04, 2012	referred to crime victims, crime and correction
Mar 29, 2011	defeated in crime victims, crime and correction
Feb 28, 2011	notice of committee consideration - requested
Jan 05, 2011	referred to crime victims, crime and correction

Votes

- Mar 29, 2011 - Crime Victims, Crime And Correction Committee Vote
  S338
  
  3
  
  Aye
  
  9
  
  Nay
  
  2
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Crime Victims, Crime And Correction Committee Vote: Mar 29, 2011
      
      aye (3)
      
      Hassell-Thompson
      
      Montgomery
      
      Rivera
      
      nay (9)
      
      DeFrancisco
      
      Gallivan
      
      Griffo
      
      Kennedy
      
      Little
      
      Maziarz
      
      Nozzolio
      
      Ranzenhofer
      
      Ritchie
      
      aye wr (2)
      
      Kruger
      
      Peralta

co-Sponsors

2011-S338 (ACTIVE) - Details

See Assembly Version of this Bill:: A154
Current Committee:: Senate Rules
Law Section:: Correction Law
Laws Affected:: Amd §803, rpld §803-b, Cor L; amd §41, Chap 738 of 2004; amd §632-a, Exec L
Versions Introduced in Other Legislative Sessions:: 2009-2010: S2932, A6487
2013-2014: S1377, A4198
2015-2016: S980, A2641
2017-2018: S4260, A3351
2019-2020: S808, A3955
2021-2022: S4702, A2241
2023-2024: S4326, A1392

2011-S338 (ACTIVE) - Summary

Relates to controlled substances and indeterminate sentences; relates to the expansion of merit time and repeals provisions relating to the allowance of limited credit time for inmates.

2011-S338 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S338

TITLE OF BILL:

An act
to amend the correction law, chapter 738 of the laws of 2004 amending
the correction law and other laws relating to controlled substances and
indeterminate sentences, the executive law, in relation to merit
time, and to repeal section 803-b of the correction law relating to
limited credit time allowances

PURPOSE OR GENERAL IDEA OF BILL:

To expand eligibility in the merit time allowance program.

SUMMARY OF SPECIFIC PROVISIONS:

Section 1 of the bill amends section 803 of the correction law to
allow all inmates, except those serving a sentence of life
imprisonment without parole, murder in the first degree, incest, an
offense defined in article two hundred sixty-three of the penal law,
an act of terrorism, aggravated harassment of an employee by an
inmate, or an attempt or conspiracy to commit any such offense, to
earn merit time Allowance.

The merit time allowance would be one-sixth of an indeterminate and

one-seventh of a determinate sentence. This section of the bill also
expands the criteria that a person in the custody of the Department
of Correctional Services (DOCS) may meet in order to earn merit time.

Section 2, 3, and 4 of the bill are conforming changes.

Sections 3 through 7 make technical changes to avoid unintended
automatic repeal of merit time eligibility for certain offenders

Section 8 makes a conforming change in the Executive Law.

Section 10 of the bill is the effective date.

JUSTIFICATION:

The Merit Time program allows inmates who excel, attain educational
and vocational degrees, and maintain a stellar disciplinary record
the opportunity to present their case to the Parole Board earlier
than they otherwise would have. The program promotes the
rehabilitation of inmates, and thereby provides several significant
benefits.
Specifically, the program improves discipline within prison, enables
the Parole Board to make better evaluations of an inmate's ability to
reintegrate into society, and saves the State millions of dollars.
For these reasons the Governor's Commission on Sentencing Reform
recommended the program be expanded to allow violent offenders to
participate.
This bill accomplishes that goal.

The Merit Time Program Promotes Rehabilitation


The program was first instituted in 1997, and has been exceedingly
successful. The results are clear. Merit Time motivates inmates to
take ownership of their future, and to better themselves in order to
prove that they are worthy of release by the Parole Board, rather
than simply waiting out their maximum sentence until the State is
required to grant their release. Those who successfully complete the
Merit Time program and are released by the Parole Board show far
better recidivism rates than those who served out their maximum
sentence. Since 1997, only 6.1% of inmates who completed the Merit
Time program were convicted on another crime within two years, as
opposed to 16.5% return for new offense rate for all releases since
records have been kept. These men and women have made permanent and
profound changes in their lives. They left prison rehabilitated.

This bill expands on the successes of the Merit Time program. When the
original program was instituted in the late 20th century, violent
offenders were prohibited from participation, due to the fear that
these individuals were the "worst of the worst." It is true that
those who cause physical harm to another person, or take a life,
deserve greater punishment than those who commit other crimes. But it
is false to presume that a person who committed a violent crime is
less able to be rehabilitated than a person who committed a
nonviolent crime.

Indeed, the opposite is true: The most serious violent offenders have
a lower recidivism rate than every category of non-violent offender.
Of the 585 most serious violent felony offenders who were released to
parole supervision for the first time between 2005 and 2008, none has
returned to prison for a new crime. Extending merit time to violent
offenders makes sense. Because violent offenders are better able to
rehabilitate themselves and live law abiding lives after they are
reintegrated into the community, it is well worth allowing them to
participate in the Merit Time program. There are several other
benefits as well.

The Merit Time Program Improves Discipline in Prison

Maintaining safety in prisons is directly related to the balanced
ability to punish negative behavior and poor program participation
while rewarding positive behavior and good program participation. An
inmate who is able to affirmatively take responsibility for their
management programs, job training classes, high school and college
courses, all while maintaining a superior disciplinary record, will
behave better than an inmate who has no such opportunities or
incentives. The Merit Time program discourages inmates from breaking
the rules, and therefore facilitates the effective administration of
the prison.
Indeed, the program has been shown to reduce violence in prisons. This
bill facilitates those positive outcomes by expanding the eligibility
for the merit time program.

The Merit Time Program Serves as an Evaluative Tool

For the Parole Board to accurately assess the risk posed by an
offender's reentry into the community, they must understand the
personal deficiencies in that inmate's character that led to their
incarceration, the actions taken by that inmate to rehabilitate


themselves while incarcerated, and have a way to measure the results.
The Merit Time program provides that information, and the Parole
Board is thereby enabled to make an informed decision when
considering the application of those inmates. This is especially
significant in the case of violent offenders, who we want to be sure
are truly rehabilitated before they are released.

The Merit Time Program Saves the State Hundreds of
Millions of Dollars

It costs over $50,000 (medical and capital construction costs
included) to confine an inmate for one year. New York State taxpayers
benefit when prison is reserved for offenders who pose a risk to the
public. The Merit Time Program reduces incarceration costs by
limiting the time that persons who have proven their rehabilitation
remain in prison, and reducing the astronomical expense associated
with recidivism. More effective and less costly prison management,
and control of prisoners with less pressure on correctional officers,
are corollary benefits of good rehabilitation programs and earned
rehabilitative incentives.

We should therefore work to expand successful programs that encourage
inmates to become better people, and demonstrate that they are
prepared to thrive and provide a benefit to society after their
release. The Department of Corrections Services estimates that the
Merit Time program has saved the State nearly $384 million dollars
over the course often years by graduating people those who have
proven their worth.

Increasing incarceration while ignoring more effective approaches
imposes a heavy burden upon courts, corrections and communities,
while providing no impact on crime. Should this legislature expand
eligibility to violent offenders who have shown that they can reenter
society safely, the State will save tens of millions more.

In order to achieve the desired public safety outcome, the
requirements for an expanded Merit Time Program for offenders with a
history of violent behavior must be rigorous and designed to promote
life changing behaviors. As proposed under this legislation only
offenders participating in exceptional programming aimed at
permanently changing antisocial behaviors can successfully complete
the Merit Time Program.

As a result many will not be eligible for the credit. Merit time
credit is not constituted as a right. It is only a privilege
incentive afforded to those who exhibit exceptional rehabilitative
behaviors and adjustment. An individual who continues to demonstrate
counterproductive behavior will not be eligible for merit time
credit, and the Parole Board will take longer to consider their case.

PRIOR LEGISLATIVE HISTORY:

Senate: Passed Senate Committee on Crime Victims, Crime and Correction
in 2010; Referred to Senate Codes Committee

Assembly: Referred to Assembly Committee on Correction


FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

The bill will result in savings to the state because the early release
of inmates who earn merit time will result in a continued decline in
the prison population.

EFFECTIVE DATE:

90th day after becoming law.

2011-S338 (ACTIVE) - Bill Text download pdf

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

    S. 338                                                    A. 154

                       2011-2012 Regular Sessions

                      S E N A T E - A S S E M B L Y

                               (PREFILED)

                             January 5, 2011
                               ___________

IN  SENATE  --  Introduced  by Sen. MONTGOMERY -- read twice and ordered
  printed, and when printed to be committed to the  Committee  on  Crime
  Victims, Crime and Correction

IN ASSEMBLY -- Introduced by M. of A. AUBRY -- read once and referred to
  the Committee on Correction

AN  ACT  to  amend  the  correction law, chapter 738 of the laws of 2004
  amending the correction law and  other  laws  relating  to  controlled
  substances and indeterminate sentences, the executive law, in relation
  to  merit  time,  and  to  repeal  section 803-b of the correction law
  relating to limited credit time allowances

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subparagraphs (i), (ii) and (iv) of paragraph (d) of subdi-
vision  1 of section 803 of the correction law, as added by section 7 of
chapter 738 of the laws of 2004, are amended to read as follows:
  (i) Except as provided in subparagraph (ii) of this  paragraph,  every
person  under the custody of the department or confined in a facility in
the department of mental hygiene serving an  indeterminate  sentence  of
imprisonment  with a minimum period of one year or more or a determinate
sentence of imprisonment of  one  year  or  more  [imposed  pursuant  to
section  70.70  or 70.71 of the penal law,] may earn a merit time allow-
ance.
  (ii) Such merit time allowance shall not be available  to  any  person
serving  [an  indeterminate]  A  sentence  [authorized for an A-I felony
offense, other than an A-I felony offense defined in article two hundred
twenty of the penal law, or any sentence imposed for  a  violent  felony
offense  as  defined  in section 70.02 of the penal law, manslaughter in
the second degree, vehicular manslaughter in the second degree,  vehicu-
lar  manslaughter  in  the first degree, criminally negligent homicide,]

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

                                                           LBD01343-01-1

S. 338                              2                             A. 154

IMPOSED FOR MURDER IN THE FIRST DEGREE AS DEFINED IN SECTION  125.27  OF
THE  PENAL  LAW, an offense defined in article one hundred thirty of the
penal law, incest, [or]  an  offense  defined  in  article  two  hundred
sixty-three  of  the  penal  law, [or] AN ACT OF TERRORISM AS DEFINED IN
ARTICLE FOUR HUNDRED NINETY OF THE PENAL LAW, aggravated  harassment  of
an employee by an inmate, OR AN ATTEMPT OR CONSPIRACY TO COMMIT ANY SUCH
OFFENSE.
  (iv)  Such merit time allowance may be granted when an inmate success-
fully participates in the work and treatment program  assigned  pursuant
to  section  eight  hundred  five  of  this article and when such inmate
[obtains a] ACHIEVES ONE OF THE FOLLOWING:   (1) COMPLETES  HIS  OR  HER
general  equivalency  diploma,  HIS  OR  HER EDUCATIONAL REQUIREMENTS AS
DETERMINED BY THE  DEPARTMENT  OR  SATISFACTORILY  COMPLETES  COURSEWORK
SPONSORED  BY  AN INSTITUTION OF HIGHER LEARNING REPRESENTING A SEMESTER
OF ACADEMIC TRAINING; (2)  COMPLETES  an  alcohol  and  substance  abuse
treatment  [certificate,  a  vocational  trade  certificate following at
least six months of vocational  programming  or  performs]  PROGRAM,  OR
COMPLETES  A COMPARABLE PROGRAM OF A DIFFERENT TYPE AS DETERMINED BY THE
DEPARTMENT, INCLUDING, BUT NOT  LIMITED  TO,  ANGER  MANAGEMENT,  FAMILY
VIOLENCE, OR PARENTING; (3) COMPLETES A VOCATIONAL TRAINING PROGRAM OR A
COMPARABLE  AND EQUIVALENT TRAINING PROGRAM AS DETERMINED BY THE DEPART-
MENT; (4) PERFORMS SATISFACTORILY FOR AT LEAST SIX MONTHS IN  A  SKILLED
JOB ASSIGNMENT, INCLUDING BUT NOT LIMITED TO, INMATE PROGRAM AIDE (IPA),
LAW  LIBRARY  CLERK, MEDICAL/INFIRMARY AIDE, CHILDREN'S CENTER AIDE, AND
FOOD SERVICE WORKER; OR (5) COMPLETES at least  four  hundred  hours  of
service as part of a community work crew.
  Such  allowance shall be withheld for any serious disciplinary infrac-
tion or upon a judicial determination that the person, while an  inmate,
commenced  or  continued  a  civil  action, proceeding or claim that was
found to be frivolous as defined in subdivision  (c)  of  section  eight
thousand  three  hundred three-a of the civil practice law and rules, or
an order of a federal court pursuant to rule 11 of the federal rules  of
civil  procedure  imposing sanctions in an action commenced by a person,
while an inmate, against a state agency, officer or employee.
  S 2. Subparagraphs (i), (ii) and (iv) of paragraph (d) of  subdivision
1  of  section  803  of  the correction law, as added by section 10-a of
chapter 738 of the laws of 2004, are amended to read as follows:
  (i) Except as provided in subparagraph (ii) of this  paragraph,  every
person  under the custody of the department or confined in a facility in
the department of mental hygiene serving an  indeterminate  sentence  of
imprisonment  with a minimum period of one year or more or a determinate
sentence of imprisonment of  one  year  or  more  [imposed  pursuant  to
section  70.70  or 70.71 of the penal law,] may earn a merit time allow-
ance.
  (ii) Such merit time allowance shall not be available  to  any  person
serving  [an  indeterminate]  A  sentence  [authorized for an A-I felony
offense, other than an A-I felony offense defined in article two hundred
twenty of the penal law, or any sentence imposed for  a  violent  felony
offense  as  defined  in section 70.02 of the penal law, manslaughter in
the second degree, vehicular manslaughter in the second degree,  vehicu-
lar  manslaughter  in  the first degree, criminally negligent homicide,]
IMPOSED FOR MURDER IN THE FIRST DEGREE AS DEFINED IN SECTION  125.27  OF
THE  PENAL  LAW, an offense defined in article one hundred thirty of the
penal law, incest, [or]  an  offense  defined  in  article  two  hundred
sixty-three  of  the  penal  law, [or] AN ACT OF TERRORISM AS DEFINED IN
ARTICLE FOUR HUNDRED NINETY OF THE PENAL LAW, aggravated  harassment  of

S. 338                              3                             A. 154

an employee by an inmate, OR AN ATTEMPT OR CONSPIRACY TO COMMIT ANY SUCH
OFFENSE.
  (iv)  Such merit time allowance may be granted when an inmate success-
fully participates in the work and treatment program  assigned  pursuant
to  section  eight  hundred  five  of  this article and when such inmate
[obtains a] ACHIEVES ONE OF THE FOLLOWING:  (1)  COMPLETES  HIS  OR  HER
general  equivalency  diploma,  HIS  OR  HER EDUCATIONAL REQUIREMENTS AS
DETERMINED BY THE  DEPARTMENT  OR  SATISFACTORILY  COMPLETES  COURSEWORK
SPONSORED  BY  AN INSTITUTION OF HIGHER LEARNING REPRESENTING A SEMESTER
OF ACADEMIC TRAINING; (2)  COMPLETES  an  alcohol  and  substance  abuse
treatment  [certificate,  a  vocational  trade  certificate following at
least six months of vocational  programming  or  performs]  PROGRAM,  OR
COMPLETES  A COMPARABLE PROGRAM OF A DIFFERENT TYPE AS DETERMINED BY THE
DEPARTMENT, INCLUDING, BUT NOT  LIMITED  TO,  ANGER  MANAGEMENT,  FAMILY
VIOLENCE, OR PARENTING; (3) COMPLETES A VOCATIONAL TRAINING PROGRAM OR A
COMPARABLE  AND EQUIVALENT TRAINING PROGRAM AS DETERMINED BY THE DEPART-
MENT; (4) PERFORMS SATISFACTORILY FOR AT LEAST SIX MONTHS IN  A  SKILLED
JOB ASSIGNMENT, INCLUDING BUT NOT LIMITED TO, INMATE PROGRAM AIDE (IPA),
LAW  LIBRARY  CLERK, MEDICAL/INFIRMARY AIDE, CHILDREN'S CENTER AIDE, AND
FOOD SERVICE WORKER; OR (5) COMPLETES at least  four  hundred  hours  of
service as part of a community work crew.
  Such  allowance shall be withheld for any serious disciplinary infrac-
tion or upon a judicial determination that the person, while an  inmate,
commenced  or  continued  a  civil  action, proceeding or claim that was
found to be frivolous as defined in subdivision  (c)  of  section  eight
thousand  three  hundred three-a of the civil practice law and rules, or
an order of a federal court pursuant to rule 11 of the federal rules  of
civil  procedure  imposing sanctions in an action commenced by a person,
while an inmate, against a state agency, officer or employee.
  S 3. Subparagraph (v) of paragraph (d) of subdivision 1 of section 803
of the correction law, as added by section 7 of chapter 738 of the  laws
of 2004, is amended to read as follows:
  (v) The provisions of this paragraph shall apply to persons in custody
serving  an  indeterminate  sentence on the effective date of this para-
graph as well as to persons sentenced to an  indeterminate  sentence  on
and  after  the  effective date of this paragraph and prior to September
first, two thousand five and  to  persons  sentenced  to  a  determinate
sentence [prior to September first, two thousand eleven] for a felony as
defined  in  article two hundred twenty or two hundred twenty-one of the
penal law.
  S 4. Subparagraph (v) of paragraph (d) of subdivision 1 of section 803
of the correction law, as added by section 10-a of chapter  738  of  the
laws of 2004, is amended to read as follows:
  (v) The provisions of this paragraph shall apply to persons in custody
serving  an  indeterminate  sentence on the effective date of this para-
graph as well as to persons sentenced to an  indeterminate  sentence  on
and  after  the  effective date of this paragraph and prior to September
first, two thousand five and  to  persons  sentenced  to  a  determinate
sentence [prior to September first, two thousand eleven] for a felony as
defined  in  article two hundred twenty or two hundred twenty-one of the
penal law.
  S 5. Paragraph (g) of subdivision 2-a of section 803 of the correction
law, as added by section 9 of chapter  738  of  the  laws  of  2004,  is
amended to read as follows:
  (g)  The  provisions  of  this  subdivision  shall apply to persons in
custody serving an indeterminate sentence on the effective date of  this

S. 338                              4                             A. 154

subdivision as well as to persons sentenced to an indeterminate sentence
on and after the effective date of this subdivision and prior to Septem-
ber  first,  two thousand five and to persons sentenced to a determinate
sentence [prior to September first, two thousand eleven] for a felony as
defined  in  article two hundred twenty or two hundred twenty-one of the
penal law.
  S 6. Paragraph (g) of subdivision 2-a of section 803 of the correction
law, as added by section 11 of chapter 738  of  the  laws  of  2004,  is
amended to read as follows:
  (g)  The  provisions  of  this  subdivision  shall apply to persons in
custody serving an indeterminate sentence on the effective date of  this
subdivision as well as to persons sentenced to an indeterminate sentence
on and after the effective date of this subdivision and prior to Septem-
ber  first,  two thousand five and to persons sentenced to a determinate
sentence [prior to September first, two thousand eleven] for a felony as
defined in article two hundred twenty or two hundred twenty-one  of  the
penal law.
  S 7. Section 803-b of the correction law is REPEALED.
  S  8.  Subdivision  (c-1)  of section 41 of chapter 738 of the laws of
2004 amending the correction law and other laws relating  to  controlled
substances and indeterminate sentences is amended to read as follows:
  (c-1)  the provisions of sections seven, eight, nine, ten and ten-a of
this act, and subdivision 2-a of section 803 of the correction  law,  as
added  by  section  eleven of this act shall apply to persons in custody
serving  an  indeterminate  sentence  on  the  effective  date  of  such
provisions  as well as to persons sentenced to an indeterminate sentence
on and after the effective date of such provisions and prior to  Septem-
ber 1, 2005 and to persons sentenced to a determinate sentence [prior to
September  1, 2011] for a felony as defined in article 220 or 221 of the
penal law;
  S 9. Clause (C) of subparagraph (i) of paragraph (e) of subdivision  1
of  section 632-a of the executive law, as amended by section 24 of part
A-1 of chapter 56 of the laws of 2010, is amended to read as follows:
  (C) [an offense for which a merit time allowance may not  be  received
against  the  sentence  pursuant  to paragraph (d) of subdivision one of
section eight hundred  three  of  the  correction  law]  AN  A-I  FELONY
OFFENSE, OTHER THAN AN A-I FELONY OFFENSE DEFINED IN ARTICLE TWO HUNDRED
TWENTY  OF  THE  PENAL LAW, MANSLAUGHTER IN THE SECOND DEGREE, VEHICULAR
MANSLAUGHTER IN THE SECOND DEGREE, VEHICULAR MANSLAUGHTER IN  THE  FIRST
DEGREE, CRIMINALLY NEGLIGENT HOMICIDE, AN OFFENSE DEFINED IN ARTICLE ONE
HUNDRED  THIRTY  OF THE PENAL LAW, INCEST, AN OFFENSE DEFINED IN ARTICLE
TWO HUNDRED SIXTY-THREE OF THE PENAL LAW, AGGRAVATED  HARASSMENT  OF  AN
EMPLOYEE BY AN INMATE;
  S  10.  This act shall take effect on the ninetieth day after it shall
have become a law and shall apply to: (i) persons in custody serving  an
indeterminate  or  determinate  sentence  or  sentences on the effective
date; (ii) persons sentenced to an indeterminate or determinate sentence
or sentences on or after the effective date; and (iii) persons who  have
not  completed  service  of  an indeterminate or determinate sentence or
sentences imposed prior to the effective date; provided,  however,  that
the  amendments  to  section  803 of the correction law made by sections
one, three, and five of this act shall be subject to the expiration  and
reversion  of  such  section  pursuant to subdivision d of section 74 of
chapter 3 of the laws of 1995, as  amended,  when  upon  such  date  the
provisions of sections two, four and six of this act shall take effect.

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Senate Bill S338

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