S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2722
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 26, 2023
                                ___________
 
 Introduced  by  M.  of A. WALKER, VANEL -- read once and referred to the
   Committee on Codes
 
 AN ACT to amend the criminal procedure law, in relation to  motions  for
   resentencing by the people
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section 1. The Legislature finds and declares the following:
   1. People who commit crimes grow and change over time. The  commission
 of  a  crime--no  matter  the offense--need not define a person forever.
 Continued incarceration of people who no longer pose a risk to community
 safety is not in the public interest and only makes our State and socie-
 ty less humane.
   2. Yet after a person is sentenced, we provide  few  meaningful  mech-
 anisms  to  review  the  length  of  that sentence based on how a person
 responds to incarceration. We limit these opportunities even  though  at
 the  time  of  sentencing,  all involved--including prosecutors, judges,
 defense attorneys, and even the person sentenced--are not positioned  to
 determine with any precision how long a sentence needs to be in order to
 fulfill  the  purpose  of incarceration. It is impossible to predict how
 individuals will develop during incarceration.
   3. The result of this system is  thousands  of  people  still  serving
 prison  terms  despite  having long-since been rehabilitated. Our system
 traps tens of thousands of people in New York's prisons who  are  not  a
 safety risk, many for life or de facto life sentences.
   4.  Our  failure  to provide a meaningful opportunity for release also
 traps a large number of people  in  prison  who  are  serving  sentences
 imposed during the tough-on-crime era that we would not impose today.
   5.  Our  overreliance  on  lengthy sentences helped explode New York's
 prison population.
   a. In 1980, New York incarcerated just  over  20,000  people.  Despite
 recent  efforts  to  reduce  the state's prison population, there remain
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD00788-01-3
              

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 over 45,000 people in our State's prisons, and over 70,000  people  when
 jail  and  prison populations are combined. Even with recent reductions,
 New York's incarceration rate remains nearly 2.5-times what  it  was  in
 1980, as the State incarcerates 249 people per 100,000.
   b. Currently, more than 9,000 people in New York prisons are serving a
 life  or  virtual life sentence. This is the ninth highest percentage of
 people in prison serving such sentences in the country.
   c. Too many people are serving life  sentences  for  crimes  committed
 before they even turned twenty years old.
   d.  Over a third of people in New York's prisons are serving sentences
 of 10 years or more; more than 8,500 people have been in prison  for  at
 least 20 years.
   e.  Over  90%  of  people  in  prison in New York are incarcerated for
 either a first or second felony offense and  more  than  40%  had  never
 previously served a jail or prison sentence.
   6.  New  York's  reliance  on  determinate  sentences has particularly
 contributed to the increased number of people serving sentences  who  no
 longer  pose  a  risk  to  public safety. A person serving a determinate
 sentence in New York must serve at least  6/7  of  the  sentence  before
 release is possible.
   a.  The  total  number  of  people  serving a determinate sentence has
 tripled since 2001.
   b. Currently 60%  of  people  in  prison  are  serving  a  determinate
 sentence.
   c. 98% of all people convicted of a drug crime in New York are serving
 determinate sentences.
   7.  Though  there  have been incremental improvements in recent years,
 New York's current system of parole provides  little  relief  for  those
 facing lengthy sentences who have been rehabilitated. Of the over 12,000
 people who sought release through parole in 2017, more than 7,500 people
 were denied (63%).
   8.  Incarcerating people for long periods of time--long after a person
 presents a risk of danger--takes away tax dollars that could be used for
 health care, housing, education, and infrastructure.
   a. The current average cost of imprisoning a person  in  New  York  is
 $69,000  per year. In contrast, New York spends less than $20,000 a year
 per student it educates.
   b. The Fiscal Year 2020 executive budget recommended $3.38 billion for
 the Department  of  Corrections  and  Community  Supervision,  an  $84.2
 million  increase  from the previous fiscal year. New York State prisons
 spend $380.6 million alone on health care costs,  a  20%  increase  from
 three years earlier.
   c.  The  increasing  health  care  costs are largely due to New York's
 aging prison population. It costs more to incarcerate a person  as  that
 person  ages  because of increased health costs, and there are more than
 10,000 people in our prisons over the age of 50.  And  since  1992,  the
 number of people age 50 and older incarcerated in New York State prisons
 has  steadily  increased,  while the population of every other age group
 has declined dramatically.
   9. Lengthy incarceration separates families and  communities  and  has
 decimated communities of color.
   a.  61%  of  all people in prison in New York have at least one child,
 including more than 70% of all women in prison.
   b. People of color  are  incarcerated  at  disproportionate  rates.  A
 Latinx  person is three times more likely than a white person to be in a
 New York prison and an African American person is eight times more like-
 A. 2722                             3
 
 ly than a white person to be there.   Though African Americans  make  up
 18%  of  the state's population, they represent 48.2% of those the state
 incarcerates.
   10.  New York's sentencing laws stand out when compared to the rest of
 the world in terms of their unique cruelty and punitiveness.
   a. It is rare for a European country to have a sentence longer than 20
 years, and many do not have life sentences.
   b. In Latin America, only 6 out of 19 countries allow life sentences.
   c. Many countries  allow  for  parole  release,  like  Belgium,  which
 requires parole review after ten years and Germany after 15.
   d.  If  New York state were a country, it would have the fifth highest
 incarceration rate in the world.
   11. The actions of District Attorneys have had an oversized impact  on
 the growth of prison populations since the 1980s.
   12.  The  goal of prison is to protect public safety and promote reha-
 bilitation. The continued incarceration of those who no longer present a
 serious risk to the  public's  safety  meets  neither  of  those  goals.
 District Attorneys currently have no mechanism to revisit cases from the
 past  in  which  their  office recommended sentences that today would be
 viewed as excessive, or which no longer meet the goals of incarceration.
 District Attorneys should be able to move for a modified  sentence  when
 an incarcerated person has served a substantial amount of time in prison
 on  the original sentence, specifically: at least 20 years in prison for
 an A felony or at least 15 years in prison for any other felony.
   13. Providing District Attorneys with an opportunity to move to reduce
 a sentence will not risk public safety. Research has consistently  shown
 that:
   a.  Individuals  age out of committing crimes, even those convicted of
 the most serious offenses.
   (A) By the time  individuals  reach  their  thirties,  their  odds  of
 committing  future  crimes drop dramatically. While crime starts to peak
 when a person is in his or her late  teenage  years  to  mid-20s,  crime
 drops "sharply" as adults reach their 30s.
   (B)  Much  of this is due to neurological changes, which take place in
 profound ways up until an individual turns 26.  The  prefrontal  cortex,
 which  is highly involved in executive functioning and behavior control,
 continues to develop until age 26, making it harder for young people  to
 make what adults consider logical and appropriate decisions.
   b.  Similarly, the odds of recidivism decrease significantly with age,
 and a person's age--not whether they commit a  prior  violent  crime--is
 the  number  one  predictor  of whether a person will commit a new crime
 once released from prison.
   (A) Released individuals over the age of 50 have a very low recidivism
 rate; in New York state, just 5 percent of people released  from  prison
 aged  50 to 64 return to prison for new offenses; among those aged 65 or
 higher, the rate of new offending is just six-tenths of 1 percent.
   (B) The Office of Inspector General of the US  Department  of  Justice
 has  found  that  older  people  in  prison commit less misconduct while
 incarcerated and have a lower rate of re-arrest once released,  and  has
 recommended  the  early release of older people in prison to help manage
 the inmate population and reduce costs at the Bureau of Prisons.
   (C) Several studies, state policies and  programs,  and  the  National
 Institute of Corrections of the Bureau of Prisons, consider incarcerated
 individuals  aged 50 and above to be elderly because incarcerated people
 age at an accelerated rate. They are more likely than the general public
 to experience stresses like long histories of alcohol and  drug  misuse,
 A. 2722                             4
 
 insufficient diet, lack of medical care, financial struggles, and stress
 of maintaining safety while behind bars.
   c. Decreasing sentences does not increase crime.
   (A)  Between  1996 and 2016, New York city reduced its jail and prison
 population by 55% while also reducing its violent crime by 58%.
   (B) A recent Brennan Center for Justice report documented  34  states,
 including  New York, that reduced both their prison population and their
 crime rates.
   (C) The Sentencing Project concluded that  lengthy  prison  terms  are
 counterproductive for public safety.
   (D)  The  Justice  Policy  Institute  found  little  to no correlation
 between time spent in prison and recidivism rates.
   14. A District Attorney's ethical obligation is  not  just  to  secure
 convictions and sentences, but to do justice. This act will allow DAs to
 fulfill  this ethical obligation by moving to reduce sentences where the
 interest of justice demands it.
   15. This act does not relieve people of the consequences  of  criminal
 conduct; rather, it provides a District Attorney with the opportunity to
 seek  a  reduced  sentence and allows a judge to make the decision after
 reviewing all current and relevant information. This act will help  make
 our policies consistent with the reality that many--though certainly not
 all--people  that  we  incarcerate  have  since grown, changed, and been
 rehabilitated to the point where continued incarceration  no  longer  is
 required to protect the public.
   §  2.  The  criminal  procedure law is amended by adding a new section
 440.48 to read as follows:
 § 440.48 MOTION FOR RESENTENCE; BY THE PEOPLE.
   1. WHERE A DEFENDANT IS SERVING A  SENTENCE  OF  INCARCERATION  FOR  A
 DETERMINATE  OR  INDETERMINATE SENTENCE, THE COURT IN WHICH THE JUDGMENT
 WAS ENTERED, UPON MOTION OF THE PEOPLE, MAY SET ASIDE THE  SENTENCE  AND
 RESENTENCE  THE  DEFENDANT  IF  SUCH  RESENTENCING IS IN THE INTEREST OF
 JUSTICE.
   2. THE PEOPLE MAY MAKE A MOTION FOR RESENTENCE AFTER A  DEFENDANT  HAS
 SERVED  AT  LEAST TWENTY YEARS OF A SENTENCE FOR A CLASS A FELONY, OR AT
 LEAST FIFTEEN YEARS OF ANY OTHER SENTENCE, INCLUDING A SENTENCE RECEIVED
 FOLLOWING A GUILTY PLEA. THE MOTION SHALL BE MADE UPON REASONABLE NOTICE
 TO THE DEFENDANT AND TO THE ATTORNEY IF ANY WHO APPEARED FOR HIM OR  HER
 IN THE LAST PROCEEDING WHICH OCCURRED IN CONNECTION WITH THE JUDGMENT OR
 SENTENCE.
   3.  THE  MODIFIED  SENTENCE IMPOSED BY THE COURT SHALL NOT REQUIRE THE
 DEFENDANT TO SERVE MORE THAN THE REMAINDER OF THE ORIGINAL SENTENCE  AND
 MAY  BE  BELOW  THE STATUTORY MANDATORY MINIMUM TERM OF IMPRISONMENT FOR
 THE OFFENSE. IN CALCULATING THE MODIFIED SENTENCE TO BE  SERVED  BY  THE
 DEFENDANT,  SUCH  DEFENDANT  MAY  BE CREDITED FOR ANY JAIL TIME CREDITED
 TOWARDS THE SUBJECT CONVICTION AS WELL AS ANY  PERIOD  OF  INCARCERATION
 CREDITED TOWARD THE SENTENCE ORIGINALLY IMPOSED.
   4.   THE   COURT   SHALL  GIVE  NOTICE  OF  ANY  SENTENCE-MODIFICATION
 PROCEEDINGS TO VICTIMS OR THE FAMILY OF THE  VICTIMS,  IF  THEY  CAN  BE
 LOCATED  WITH REASONABLE EFFORTS. VICTIMS AND VICTIMS' FAMILIES SHALL BE
 AFFORDED AN OPPORTUNITY TO BE HEARD.
   5. IN CONSIDERING AN APPLICATION MADE PURSUANT TO  THIS  SECTION,  THE
 COURT  SHALL  CONSIDER  ANY  FACTS  OR CIRCUMSTANCES RELEVANT TO WHETHER
 RESENTENCING THE DEFENDANT WOULD BE IN THE INTEREST OF JUSTICE,  INCLUD-
 ING BUT NOT LIMITED TO:
   (A)  WHETHER  THE  DEFENDANT  CAN BE RETURNED SAFELY TO THE COMMUNITY,
 INCLUDING BUT NOT LIMITED TO:
 A. 2722                             5
 
   (I) WHETHER THERE IS A REASONABLE PROBABILITY THAT  IF  RELEASED,  THE
 DEFENDANT WILL LIVE AND REMAIN AT LIBERTY WITHOUT VIOLATING THE LAW; OR
   (II)  EVIDENCE  THAT  REFLECTS  WHETHER AGE, AMOUNT OF TIME SERVED, OR
 DIMINISHED PHYSICAL CONDITION  OR  HEALTH,  IF  ANY,  HAVE  REDUCED  THE
 DEFENDANT'S RISK FOR FUTURE VIOLENCE;
   (B) THE DEFENDANT'S DISCIPLINARY RECORD WHILE INCARCERATED;
   (C)  ANY  MEASURES THE DEFENDANT HAS TAKEN TOWARD REHABILITATION, SUCH
 AS THE DEFENDANT'S RECORD OF PARTICIPATION OR WILLINGNESS TO PARTICIPATE
 IN PROGRAMMING AND TREATMENT WHILE INCARCERATED;
   (D) THE AGE OF THE DEFENDANT AND THE NUMBER OF YEARS  HE  OR  SHE  HAS
 ALREADY SERVED OF THE ORIGINAL SENTENCE;
   (E)  ANY  VICTIM IMPACT STATEMENT FROM THE ORIGINAL SENTENCING AND ANY
 SUPPLEMENTAL STATEMENT MADE TO THE COURT BY THE VICTIM OR  THE  VICTIM'S
 FAMILY PURSUANT TO THIS SECTION;
   (F)  THE  RECOMMENDATION OF THE DEPARTMENT OF CORRECTION AND COMMUNITY
 SUPERVISION; AND
   (G) EVIDENCE THAT REFLECTS THAT CIRCUMSTANCES HAVE CHANGED  SINCE  THE
 DEFENDANT'S ORIGINAL SENTENCING SO THAT THE DEFENDANT'S CONTINUED INCAR-
 CERATION IS NO LONGER IN THE INTEREST OF JUSTICE.
   § 3. This act shall take effect immediately.