Senate Bill S2100

                                BILL NUMBER:S2100

TITLE OF BILL:  An act to amend the penal law and the criminal
procedure law, in relation to establishing terms of probation
sentences and revocations thereof under certain circumstances

PURPOSE:  The purpose of this bill is to improve public safety by
giving judges discretion in setting probation sentences and penalties
for violations of probation.

SUMMARY OF PROVISIONS:  The bill would amend PL § 65.00 to provide the
court with the discretion to impose a probation term of three, four or
five years for a felony. This would only apply to felonies other than
(1) Class A-II felonies defined in PL Article 220; (2) the Class B
felony defined in PL § 220.48; (3) any other. Class B felony defined
in PL Article 220 committed by a second felony drug offender; or (4)
any felony involving a sexual assault.

Section 2 of the bill would provide the court with the discretion to
impose a probation term of two or three years for a class A
misdemeanor other than a sexual assault.

Section 3 of the bill would give the court the discretion to impose a
probation term of two or three years for an unclassified misdemeanor,
for which the authorized sentence of imprisonment is greater than
three months.
              

Section 4 of the bill would amend would clarify that when someone is
found to have violated terms of probation and the court continues or
modifies the sentence, the court may extend remaining period of
probation up to the maximum term authorized by § 65.00.

Section 5 amends Criminal Procedure Law. § 410.70(5) to make
corresponding changes

EXISTING LAW:  Current relevant law provides fixed probation sentences
and mandatory jail sentences for violation of probation terms.

JUSTIFICATION:  Currently, sentences involving probation are oriented
to the conviction rather than to the offender. Penal Law g 65.00
stipulates that, with very few exceptions, a period of probation for a
felony offense must be five years, and a period of probation for a
class A misdemeanor must be three years. Unlike sentences of
incarceration, about which judges maintain broad discretion in
determining the length of the sentence, judges are limited when
determining the lengths of probation sentences.

This lack of judicial discretion prevents judges from distinguishing
among convicted individuals on the basis of their prior criminal
history; degree of culpability (major/minor actors); the risk level
they pose to public safety; and their actuarially determined risk of
re-offense. Moreover, all felony convictions, except those for certain
drug-related offenses, receive five-year probation terms with no
discretion for the court to distinguish between the levels of such
felonies (e.g., Vehicular manslaughter. in the First Degree.


This proposal reflects "evidence-based practices" - that is, practices
based on studies of what has been proven to be effective in the
probation field - and reflects the idea that appropriate judicial
discretion is critical to imposing correct probation term lengths in
order to advance public safety. Research into community supervision
and community corrections has shown that: (1) most re-offending and
technical violations occur within the first eighteen months of one's
probation term; and (2) supervision has its greatest impact in the
first twelve months. As such, of those felony probationers who violate
their terms of probation, more than 80% do so within the first three
years, and 80% of misdemeanor probationers who Violate the terms of
supervision do so within the first two years.

This bill would allow probation departments to advance public safety
by focusing scarce probation resources on the period of time when
probationers are most likely to re-offend and when probation
supervision is most effective. All Counties in New York, including the
five boroughs New York City, are now employing evidence-based risk
assessment instruments mandated by the State's Office of Probation and
Correctional Alternatives. These are one of several tools that
counties are utilizing to provide probation services the!.  are
tailored more closely to the individual They can be used to guide
judges in determining probation lengths, allowing their probation
departments to focus scarce resources on higher risk probationers,
while lower-risk probationers are supervised for the period of time
when it matters most. This use of evidence-based practices to
concentrate resources on those who pose the highest risk to public
safety will result in lower recidivism rates and increased positive
outcomes for persons on probation.

Additionally, this proposal provides the court directly, and probation
departments indirectly, with a new tool to impose graduated sanctions
when probation is revoked. Currently, upon revocation, the only
sanction available to the Court is to sentence an individual to
incarceration, or a period of incarceration and probation. In other
words, if a probationer is not following all the terms of probation -
even if the mistakes are not criminal in nature - the only recourse
the court has is to sentence the probationer to a period in jail or
prison. This proposal provides the court with an intermediate option,
which is to impose a longer period of probation. In instances where an
individual does not receive the maximum amount of probation time at
sentencing, that sentence can be increased upon revocation, to the
maximum probation sentence that had been originally available to the
court.

LEGISLATIVE HISTORY:  S.6880 of 2012 - Referred to Codes

FISCAL IMPLICATIONS:  None.

LOCAL FISCAL IMPLICATIONS:

EFFECTIVE DATE:  This act shall take effect immediately.