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Robb Smith, Executive Director
Interfaith Impact of New York State
646 State Street
Albany, NY 12203
518-463-5652
©
Copyright 2008 InterfaithIMPACT of New York State
Last updated
December 2008
Criminal Justice Policy Issues
by David Leven
Prisoner's Legal Services of New York
Introduction
Governor Pataki's Executive Budget (1998) includes over six hundred million
dollars for prison construction for about 7,000 new prison beds, all of which
will be double- celled. The rationale is that more prison cells are needed
to accommodate more violent offenders who will be serving reduction reforms,
10,000 new beds will be needed at a cost of $2.5 billion by the year 2005.
There are, however, responsible reforms which can and should be made that
will obviate the need for more prison construction. They include repeal of
the Rockefeller Drug Laws, repeal of the Second Felony Law and the creation
of a statewide Community Corrections Act.
Interfaith IMPACT has a historical commitment to the following criminal justice priorities. We:
We Oppose Prision Expansion
Recent experience demonstrates that prison construction is an ineffective
weapon against crime. Increasing the prison population from about 14,000 in
1973 to about 70,000 today had virtually no impact in reducing crime or improving
the quality of life in New York State. It is illogical to spend more money
on prisons for offenders who will be serving longer sentences when recent
research suggests that as the length of prison time increases, so do the criminologic
effects.
At a time when there have been cuts in virtually every other area of government function, including higher education and mental health and proposals to cut other services, New York State cannot afford to expand its prison system. This is especially true considering the ineffectiveness of prisons as a crime control measure at the expense of measures more likely to foster family and community stability and to prevent anti-social behavior. As an example of the misguided spending priorities under this and the past administration, there has been a dramatic shift in state funding to the extent that spending on corrections has increased at more than twice the rate of speeding on school aid. In 1994, New York State ranked 40th among the states in the percentage of its total budget dedicated to elementary and secondary education. This may explain why about 70% of prison inmates do not have a high school diploma and 40% are unable to read above an eighth grade level.
We Support Repeal Of the Rockefeller
Drug Laws and Second Felony Offender Law
New York State will not need to build more costly prisons if the
Rockefeller Drug Laws and Second Felony Offender Law are repealed. These laws,
both passed in 1973, significantly reduced judicial sentencing discretion
and forced the imprisonment of more people for longer periods of time. They
are the principal reason why the prison population has exploded in New York
State since 1973, increasing by 500%, from about 14,000 to 70,000.
The Rockefeller Drug Laws require some of the harshest prison sentences in the nation. For example, the statute mandates a judge to impose a prison term of no less than 1 5 years to life for anyone convicted of selling 2 ounces or possessing 4 ounces of a narcotic substance. These draconian penalties apply without regard to the circumstances of the offense or the individual's character or background. Whether the person is a first-time or repeat offender, is irrelevant. Yet, these offenders face the same penalties as murderers, arsonists and kidnappers, while rape, the sexual abuse of a child and armed robbery carry lesser sanctions.
The Second Felony Offender Law requires prison sentences for all repeat felons regardless of the nature of the offense or the background and motivation of the offender. The principal effect of this law has been the mandatory imprisonment of thousands of low level, non-violent repeat drug offenders.
There are now over 19,500 prisoners sentenced under the Second Felony Offender Law and over 8,500 offenders locked up under the Rockefeller Drug Laws. Of this 28,000, almost 6,000 prisoners are locked up for drug possession, as opposed to drug selling. Of the 22,969 commitments to state prisons in 1995, about 45% of the total commitments, 10,418, were for drug crimes compared to 886 drug offenders who were sent to prison in 1980, an incredible increase of over I 000%. The prison building and operating costs required by the Second Felony and Rockefeller Drug Laws are staggering, about $2 billion for construction and over $500 million annually for confinement.
These laws have failed miserably in meeting their laudable goal of reducing drug trafficking and use. Too often, they result in the long term imprisonment of minor dealers or persons only marginally involved on the drug trade, (who are readily replaced) as they are the most easily arrested for street sales or possession. Major traffickers usually escape their sanctions Drug kingpins will rarely if ever be foolish or reckless enough to be caught carrying narcotics. A teenage mother, on the other hand, might well be picked up on the street and charged with a serious felony for having in her possession a small amount of drugs.
Our drug laws have no deterrent effect on the profiteers because the profits are too great and the risk of apprehension slight. Similarly, they do not deter drug addicts as drugs are an integral part of their lives and the possibility of imprisonment is irrelevant.
Greater law enforcement efforts would by futile. To imprison 100,000 drug users and sellers in New York State would cost over $ 1 0 billion for prison construction alone and another $3 billion for annual operating expenses. For a $40 billion ten year expenditure, the number of drug users and sellers on the streets will have been reduced by about 10%, that is all.
The injustices of the drug laws are manifest. Virtually the only people incarcerated are either small time sellers or users. Worse still, they have a harshly disproportionate impact on communities of color. About 93% of those in prison for drug offenses are African-American or Latino despite studies that show that whites make up the vast majority of those who consume drugs and evidence that suggests that more than half of drug dealers are white. Further, while about 70% of women now being sent to prison are committed for drug crimes, a large percentage, including some 95% of those charged as drug couriers, have no previous history of criminal involvement.
The Rockefeller Drug Laws and Second Felony Offender Law must be repealed so that prison terms would no longer be mandated for drug offenders convicted of the least serious crimes. These laws must be replaced with those which give judges flexibility in sentencing so as to allow them to utilize less costly and more productive punishments for many drug offenders.
The most suitable way to deal with non-violent, drug involved offenders is intensive supervision probation that includes such features as day reporting , community service, job training, and mandatory participation in proven drug treatment programs. Studies sponsored by the National Institute on Drug Abuse have shown that drug treatment programs are successful in reducing drug abuse and crime. The cost of most drug free outpatient care is less than $4,000 annually while the cost of residential drug treatment runs from $17,000 to $20,000, far less than the $30,000 that it costs to keep an inmate in prison for a year. Drug treatment programs should be expanded, not our prisons, so that all those who seek help are able to obtain it. It is criminal for us to condemn drug abusers to prison when we fail to provide needed help for what is a public health problem.
We Support a Statewide Community
Corrections Act and Restorative Justice
The criminal justice system in New York is misguided in that it
emphasizes punishment and retribution rather than rehabilitation, restoration,
prevention and treatment. New York State cannot afford, in human and fiscal
costs, to continue down the same road. Our prisons should be reserved for
only that small number of people who need to be isolated because they are
violent predators or have committed heinous crimes. Policy makers have an
obligation to the people of this state to resist the enactment more harsher
sentencing laws, and to reject the proposed construction of more prisons cells.
And, they have a corresponding obligation to enact sentencing laws that will
reduce sentences for most crimes, particularly drug crimes, to invest in people
and to devise a system of restorative justice that is cost effective and promotes
public safety. What is principally required is a new vision of corrections
- one that reflects a caring community rather than one oriented toward punishment.
What is needed is a shift from a punishment model of justice to one that emphasizes
restoration. This can begin with a recognition by the public and policy makers
that offenders and victims are both a part of the community and that they
must be considered the focal point of a rational system of justice.
In 1992, the American Bar Association House of Delegates approved a "Model Adult Community Corrections Act". Several of the goals and objectives of that act are as follows:
Three years ago, the New York State Assembly introduced legislation that would create a community corrections act. This bill should be enacted. Local counties would be required to make plans that would include a specification of the goals and objectives that serve to reduce reliance on prison and jail incarceration and a proposed time table for achieving those goals and objectives. Additionally these plans would "include detailed descriptions of target populations including the number and type of prison commitments to be diverted, the number of parole violators to be diverted and the number and type of defendant/offenders who otherwise would be sentenced to jail." The plans would "describe the specific programs and services that will serve these target populations."
These plans would necessarily include core programs and services as well as additional programs and services deemed necessary pursuant to the counties community corrections plan. Core programs and services means programs and services that include local jail utilization, home confinement, pre-trial release, pre-trial diversion, community service, defender based advocacy, local conditional release, probation services including intensive supervision probation and pre-sentence investigation and reports, fines and restitution. Additional programs and services would include bail expediting programs, community correction residential programs, day reporting programs, electronic monitoring, means based day fines programs, substance abuse, residential or out-patience treatment programs, and mental health treatment programs, among others.
A community corrections act should require that a community based sanction be the presumptive penalty for misdemeanors, felons convicted of non-violent crimes and some violent crimes, and those who have violated probation, parole or a community corrections condition.
A key component of any community corrections act must be victim-offender reconciliation for those crimes where there is an identifiable victim and the victim is willing to participate. A major flaw of our current system is that offenders are treated in a manner that generally does not hold them accountable for their actions and insufficient attention is paid to victims, who are unfortunately often inadequately included in the criminal justice process. The incarceration process does not effectively instruct offenders about the nature and extent of their wrongdoing. Howard Zehr, said it well;
Nowhere in the process are offenders given the opportunity to understand the implications of what they have done. Nowhere are they encouraged to question the stereotypes and rationalizations ("it's no big deal, they deserved it; insurance will cover it') that made it possible for them to commit their offenses. In fact, by focusing on purely legal issues, the criminal process will tend to side track their attention, causing them to focus on legal, technical definitions of guilt, on the possibilities for avoiding punishment, on the injustices they perceive themselves to undergo... The criminal process, then, not only fails to encourage a real understanding of what they have done; it actively discourages such a realization. And it does nothing to encourage offenders to take responsibility to right the wrong they have committed.
For offenders, committing a crime is an experience of empowerment and for victims power is taken away. However, the justice system takes power away from both by leaving the victim out of his or her own case and by having the offender's fate decided by others. The process rarely allows a victim to experience the needed forgiveness or offenders to share that experience and to confess, and repent, and to take responsibility for making things right.
Crime must thus be newly defined as a violation by one person against another rather than as an offense against the state and the retributive paradigm need s to be replaced with a restoration paradigm. There are significant differences between the two. According to Zehr,
An old paradigm makes the state the victim, thus placing the state at the center, leaving out the individual victim, and denying the interpersonal character of the offense. The new paradigm defines crime as a conflict between persons, putting the individuals and their relationships at center stage.
The new paradigm encourages dialogue and negotiation. It encourages the victim and the offender to see one another as persons, to -establish or re-establish a relationship. Additionally, rather than fixing blame and focusing on the past, the new paradigm emphasizes the future. It not only encourages responsibility for past behavior but also focuses on problem-solving, on the obligations created by the offense. Further, offenders take responsibility for what they have done and instead of owing some kind of abstract debt to society, paid in an abstract way by experiencing punishment, the offender owes a debt to the victim, to be paid in a concrete way. In other words: Restoration, making things right, would replace the imposition of pain as the expected outcome in a new paradigm of justice .... instead of committing one social injury in response to another.
Victim Offender Reconciliation Programs should be established in every county as they have been enormously successful both in helping to restore offenders and appropriately treating victims. Victims and offenders, usually upon court referral, meet with a mediator in an attempt to resolve the dispute between them. In practice, the mediator generally meets first with the offender and victim separately. If both parties agree to participate, a meeting is scheduled. Facts and feelings are the focus of the first part of the meeting giving victims the chance to vent their feelings for the person who violated them. Victims are often relieved to see that offenders bear very little likeness to the frightening person they may have imagined.
Facing the person violated puts the offender in an uncomfortable position but gives the offender the chance to express remorse in a personal way. With an open discussion of their feelings, the victim and offender can interact with each other as two people rather than viewing each other as stereotypes and objects. The interaction between the real parties in interest gives the victim the opportunity to explain how the offender's action has caused pain and provides the offender with an understanding of the hurt that the victim has suffered.
The focus of the second part of the meeting is on the losses of the victim and working out a restitution agreement. If an agreement is not reached (and they are in over 95% of the cases in many programs), the case is referred back to the court. If an agreement between the parties is reached but not kept, the court has the option of criminally charging the offender. Studies in Canada and the United States have found, however, that "more than 90% of victims and offenders are satisfied with the process and would like to use it again."