BILL NUMBER: S5712

SPONSOR: SALAZAR
 
TITLE OF BILL:  An act to amend the penal law, in relation to author-
izing courts to depart from mandatory minimum sentences in certain cases
and requiring courts to report such cases to the division of criminal
justice services

 
PURPOSE OF THE BILL:

This bill provides a "safety valve" by which courts may depart from
applicable mandatory minimum sentences if the court finds that imposi-
tion of the mandatory minimum would result in substantial injustice and
that the mandatory minimum sentence is not necessary for the protection
of the public.

 
SUMMARY OF PROVISIONS:

Section 1 states that this act shall be known as the "justice safety
valve act".

              

Section 2 amends section 60.01 of the penal law by adding a new subdivi-
sion 5 providing that notwithstanding any other provision of law to the
contrary, when sentencing a person convicted of a felony for which there
is a mandatory minimum sentence, the court may depart from any applica-
ble mandatory minimum sentence if, giving due regard to the nature of
the crime, history and character of the defendant and his or her chances
of successful rehabilitation, the court finds that: a) imposition of the
mandatory minimum would result in substantial injustice; and (b) the
mandatory minimum sentence is not necessary for the protection of the
public. This section also requires courts to report any departure form a
mandatory minimum sentence to the office of court administration which
shall be forwarded to the division of criminal justice services.

Section 3 establishes the effective date.

 
JUSTIFICATION:

Under New York's current sentencing scheme, many offenses carry statuto-
rily mandated minimum sentences, whereby a judge is required to impose a
sentence with a fixed minimum period of incarceration on individuals
convicted of certain crimes, regardless of other mitigating factors. For
example, Penal Law § 70.06, classifies as a predicate felon anyone
convicted of a felony who has a prior felony conviction that is less
than ten years old, tolled by periods of incarceration, and mandates
enhanced punishment with increased and mandatory periods of incarcera-
tion. Sentences are further enhanced when the prior conviction was for a
statutorily violent offense.

New York's predicate felon statute does not differentiate between
defendants who were released from incarceration one week prior to their
new arrest and those released nine years and eleven months before their
most recent arrest. Additionally, whether an offense is statutorily
violent is not necessarily a reflection on whether there was actual
violence used at the time of the crime's commission. For example,
Burglary in the Second Degree under Penal Law § 140.25(2) is a statuto-
rily violent offense, simply because the burglary was of a dwelling.
This is the case even if the defendant was not armed, did not use or
intend to use force, and took precautions to make sure that the dwelling
was vacant at the time of the crime's commission.  Such inconsistencies
in the Penal Law can create situations where a defendant is facing an
unjustly long sentence for a relatively minor offense.  Under mandatory
minimum sentencing, mitigating factors, no matter how compelling, cannot
be used to justify a sentence below the statutory minimum because prose-
cutors and judges have no flexibility to go below the statutory floor in
plea negotiations or sentencing.

This rigid sentencing structure necessarily leads to more people serving
longer periods of incarceration which, in turn, cost taxpayers more
money, harm families and communities, and do not necessarily enhance
public safety or serve any other useful or proper purpose. Mandatory
minimum sentences are ineffective in reducing the recidivism rate:
neither the length of sentence nor the imposition of mandatory minimums
alone has been shown to have any bearing on recidivism. Communities of
color have been and continue to be disproportionately impacted by mass
incarceration, fueled in part by the imposition of mandatory minimum
sentences.

States across the United States have passed similar "safety valve"
legislation with bipartisan support. Many states, including Maine, Mary-
land, Iowa and South Carolina, have taken action in recent years to
either eliminate or weaken the effects of mandatory minimum sentencing.

In addition, the federal sentencing framework allows judges to impose
sentences below statutory mandatory minimums in certain limited circum-
stances. For example, 18 U.S.C. § 3553(f) - a "safety valve" for first-
time, non-violent, low-level drug offenders - permits sentencing below
mandatory minimums.

This bill addresses the concerns regarding mandatory minimums and would
allow courts to impose a sentence lower than the mandatory minimum
includes those with a prior criminal history, where application of a
mandatory minimum is overcome by substantial and compelling reasons.

This bill helps to address New York's ongoing problem with mass incar-
ceration, by removing from prisons those who pose little or no threat to
public safety. It gives judges and prosecutors greater flexibility in
sentencing, which promotes fairness and justice (by aligning punishments
more closely with the specific circumstances of the case) and the goals
of sentencing (which are to impose a sentence that is sufficient, but
not greater than necessary, to address certain objectives such as the
need for deterrence, public safety, and educational, medical or other
treatment for the defendant).

This provisions of this bill are supported, inter alia, by recommenda-
tions contained in a recent (April 2019) report of the Criminal Courts
Committee, Criminal Justice Operations Committee, Corrections and Commu-
nity Reentry Committee, Mass Incarceration Task Force, and Pro Bono and
Legal Services Committee of the New York City Bar.

 
FISCAL IMPLICATIONS:

No additional costs to the State. In fact, by reducing the number of
unjust prison sentences, this bill is expected to save the State money
that would otherwise be necessary in order to keep individuals in prison
for longer sentences and is also expected to save the state money by
helping to stabilize families and communities.
 
LEGISLATIVE HISTORY:

New Bill.

 
EFFECTIVE DATE:
This act shall take effect immediately.