NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A4042
SPONSOR: Weprin TITLE OF BILL: An act to amend the correction law, in relation to
expanding prison work release program eligibility and participation
PURPOSE:
To make people who have committed certain crimes ineligible for work
release while expanding eligibility for people who do not pose a public
safety risk.
SUMMARY OF PROVISIONS:
Section 1: Amends subdivision 2 of section 851 of the correction law, as
amended by chapter 60 of-the laws of 1994, the opening paragraph as
amended by chapter 320 of the laws of 2406, and the closing paragraph as
amended by section 42 of subpart B of part C of chapter 62 of the laws
of 2011 by changing the definition of "eligible inmate" Persons ineligi-
ble for work release was expanded to include people committed specific
sex crimes and acts of terrorism or incest. Discretion to decide eligi-
bility and participation was restored to DOCCS and the legislature.
Section 2: Amends subdivision 2 of section 951 of the correction law, as
amended by chapter 447 of the laws of 1991, the opening paragraph as
amended by chapter 252 of the laws of 2005, and the closing paragraph as
amended by section 43 of subpart B of part C of chapter 62 of the laws
of 2011 by expanding the list of ineligible inmates.
Section 3: Amends subdivision 2 of section 851 of the correction law, as
added by chapter 472 of the laws of 1969 by expanding the definition of
"eligible inmate" to include those persons who will become eligible for
parole or conditional release within two years.
Section 4: Amends subdivision 2-a of section 851 of the correction law,
as added by chapter 251 of the laws of 2002 by expanding the definition
of "eligible inmate" to include those persons who will become eligible
for parole or conditional release within four years.
Section 5: Amends subdivision 2-b of section 851 of the correction law,
as added by chapter 738 of the laws of 2004 to include additional merit
time in calculating a person's eligibility date for parole or condi-
tional release.
Section 6 provides an effective date.
JUSTIFICATION:
This legislation will ensure that inmates who do not pose a threat to
public safety will be eligible to participate in prison work release
programs. At its peak in 1994, 24,055 individuals participated in the
work release program. As of 2010, program participation has plummeted to
1,910. In the two year period from 2009 to 2010 alone, the number of new
admissions to the program was halved - in 2009, 416 applicants were
accepted into the program, while in 2010, only 201 applicants were
accepted. This low admission rate is not for lack of inmate interest in
the program. In 2010, about 24,269 incarcerated people applied to
participate in the program, but only 702 people were accepted into work
release as a standalone program or work release as part of the Compre-
hensive Alcohol and Substance Abuse Treatment (CASAT) program. This
means that only 4% of all Temporary Release program applicants are
accepted into the program.
Although many prison superintendents and central office staff strongly
support increasing participation in work release, the department needs a
change in the statute to permit greater eligibility. Eligibility does
not guarantee participation in the program, since DOCCS has discretion
about which eligible inmates are chosen for the program.
A revitalized Temporary Release program is fully consistent with the
underlying goals of the recent merger of the New York Department of
Correctional Services and the Division of Parole to form the Department
of Corrections and Community Supervision (DOCCS), which include enhanced
public safety through the promotion of individuals' successful reentry
and reintegration into the community. The Temporary Release program has
great potential to further this purpose. Temporary Release provides for
a structured transition from incarceration to life in the community,
helping participants to develop the work, educational, and basic life
management skills they need to become law-abiding, contributing members
of their communities. The evidence has shown that programs like Tempo-
rary Release are effective at reducing recidivism, which enhances public
safety.
Participation in the Temporary Release program provides a sound and
accurate picture of a person's readiness for release to the community as
a law-abiding citizen. Not only does it aid the board in making deci-
sions about readiness for release, it. can also be an invaluable
resource to help DOCCS staff identify the supports a person needs while
being supervised in the community, For example, it can help identify the
need for better job skill development, the need for more education to
further career advancement, or the need for ongoing after-care to
address a substance abuse problem. Temporary Release is an exceptionally
cost-effective program; indeed, a robust Temporary Release program is a
sure way to reduce the staggering cost of the prison system. The
program, particularly work release, saves taxpayers in two important
ways. First, it costs significantly less to house work release partic-
ipants than to house "traditional prisoners." Second, because individ-
uals involved in work release earn a taxable income, this program gener-
ates local, state, and federal tax revenues. Additionally, the proposed
legislation will ensure that work release participants are provided the
services and support necessary for success during the transitional peri-
od. Further proposals will ensure the safety and security of the public
by limiting eligible participants to those who have not committed
certain enumerated crimes.
LEGISLATIVE HISTORY:
Referred to corrections in 2016 and 2015.
Referred to corrections in 2014.
2013 reported, referred to codes.
2012 reported, referred to codes.
FISCAL IMPLICATIONS:
Unknown.
EFFECTIVE DATE:
Effectively immediately, provided however, that the amendments to subdi-
vision 2 of section 851 of the correction law made by section one of
this act shall be subject to the expiration and reversion of such subdi-
vision and section pursuant to subdivision (c) of section 46 of chapter
60 of the laws of 1994 and section 10 of chapter 339 of the laws of
1972, as amended, when upon such date the provisions of section two of
this act shall take effect; provided further, that the amendments to
subdivision 2 of section 851 of the correction law, made by section two
of this act shall expire on the same date as subdivision ( c) of section
46 of chapter 60 of the laws of 1994, section 10 of chapter 339 of the
laws of 1972, and section 5 of chapter 554 of the laws of 1996, as
amended, expire, when upon such date the provisions of section three of
this act shall rake effect; provided further that the amendments to
subdivisions 2a and 2-b of section 851 of the correction law, made by
sections four and five of this act shall not affect the expiration of
such section and shall expire therewith.
STATE OF NEW YORK
________________________________________________________________________
4042
2017-2018 Regular Sessions
IN ASSEMBLY
January 31, 2017
___________
Introduced by M. of A. WEPRIN, O'DONNELL, AUBRY, KAVANAGH -- read once
and referred to the Committee on Correction
AN ACT to amend the correction law, in relation to expanding prison work
release program eligibility and participation
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 2 of section 851 of the correction law, as
2 amended by chapter 60 of the laws of 1994, the opening paragraph as
3 amended by chapter 320 of the laws of 2006, the closing paragraph as
4 amended by section 42 of subpart B of part C of chapter 62 of the laws
5 of 2011, is amended to read as follows:
6 2. "Eligible inmate" means: a person confined in an institution who is
7 eligible for release on parole or who will become eligible for release
8 on parole or conditional release within two years. [Provided, however,
9 that a person under sentence for an offense defined in paragraphs (a)
10 and (b) of subdivision one of section 70.02 of the penal law, where such
11 offense involved the use or threatened use of a deadly weapon or danger-
12 ous instrument shall not be eligible to participate in a work release
13 program until he or she is eligible for release on parole or who will be
14 eligible for release on parole or conditional release within eighteen
15 months. Provided, further, however, that a person under a determinate
16 sentence as a second felony drug offender for a class B felony offense
17 defined in article two hundred twenty of the penal law, who was
18 sentenced pursuant to section 70.70 of such law, shall not be eligible
19 to participate in a temporary release program until the time served
20 under imprisonment for his or her determinate sentence, including any
21 jail time credited pursuant to the provisions of article seventy of the
22 penal law, shall be at least eighteen months.] In the case of a person
23 serving an indeterminate sentence of imprisonment imposed pursuant to
24 the penal law in effect after September one, nineteen hundred sixty-sev-
25 en, for the purposes of this article parole eligibility shall be upon
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD05031-01-7
A. 4042 2
1 the expiration of the minimum period of imprisonment fixed by the court
2 or where the court has not fixed any period, after service of the mini-
3 mum period fixed by the state board of parole. If an inmate is denied
4 release on parole, such inmate shall not be deemed an eligible inmate
5 until he or she is within two years of his or her next scheduled appear-
6 ance before the state parole board. In any case where an inmate is
7 denied release on parole while participating in a temporary release
8 program, the department shall review the status of the inmate to deter-
9 mine if continued placement in the program is appropriate. No person
10 convicted of any escape or absconding offense defined in article two
11 hundred five of the penal law shall be eligible for temporary release.
12 [Further, no person under sentence for aggravated harassment of an
13 employee by an inmate as defined in section 240.32 of the penal law for,
14 any homicide offense defined in article one hundred twenty-five of the
15 penal law, for any sex offense defined in article one hundred thirty of
16 the penal law, or for an offense defined in section 255.25, 255.26 or
17 255.27 of the penal law shall be eligible to participate in a work
18 release program as defined in subdivision three of this section. Nor
19 shall any person under sentence for any sex offense defined in article
20 one hundred thirty of the penal law be eligible to participate in a
21 community services program as defined in subdivision five of this
22 section. [Notwithstanding the foregoing, no person who is an otherwise
23 eligible inmate who is under sentence for a crime involving: (a)
24 infliction of serious physical injury upon another as defined in the
25 penal law or (b) any other offense involving the use or threatened use
26 of a deadly weapon may participate in a temporary release program with-
27 out the written approval of the commissioner.] The commissioner shall
28 promulgate regulations giving direction to the temporary release commit-
29 tee at each institution in order to aid such committees in carrying out
30 this mandate.
31 [The governor, by executive order, may exclude or limit the partic-
32 ipation of any class of otherwise eligible inmates from participation in
33 a temporary release program. Nothing in this paragraph shall be
34 construed to affect either the validity of any executive order previous-
35 ly issued limiting the participation of otherwise eligible inmates in
36 such program or the authority of the commissioner to impose appropriate
37 regulations limiting such participation.]
38 § 2. Subdivision 2 of section 851 of the correction law, as amended by
39 chapter 447 of the laws of 1991, the opening paragraph as amended by
40 chapter 252 of the laws of 2005, and the closing paragraph as amended by
41 section 43 of subpart B of part C of chapter 62 of the laws of 2011, is
42 amended to read as follows:
43 2. "Eligible inmate" means: a person confined in an institution who is
44 eligible for release on parole or who will become eligible for release
45 on parole or conditional release within two years. [Provided, that a
46 person under a determinate sentence as a second felony drug offender for
47 a class B felony offense defined in article two hundred twenty of the
48 penal law, who was sentenced pursuant to section 70.70 of such law,
49 shall not be eligible to participate in a temporary release program
50 until the time served under imprisonment for his or her determinate
51 sentence, including any jail time credited pursuant to the provisions of
52 article seventy of the penal law, shall be at least eighteen months.] In
53 the case of a person serving an indeterminate sentence of imprisonment
54 imposed pursuant to the penal law in effect after September one, nine-
55 teen hundred sixty-seven, for the purposes of this article parole eligi-
56 bility shall be upon the expiration of the minimum period of imprison-
A. 4042 3
1 ment fixed by the court or where the court has not fixed any period,
2 after service of the minimum period fixed by the state board of parole.
3 [If an inmate is denied release on parole, such inmate shall not be
4 deemed an eligible inmate until he or she is within two years of his or
5 her next scheduled appearance before the state parole board.] In any
6 case where an inmate is denied release on parole while participating in
7 a temporary release program, the department shall review the status of
8 the inmate to determine if continued placement in the program is appro-
9 priate. No person convicted of any escape or absconding offense defined
10 in article two hundred five of the penal law shall be eligible for
11 temporary release. [Nor shall any person under sentence for any sex
12 offense defined in article one hundred thirty of the penal law be eligi-
13 ble to participate in a community services program as defined in subdi-
14 vision five of this section. Notwithstanding the foregoing, no person
15 who is an otherwise eligible inmate who is under sentence for a crime
16 involving: (a) infliction of serious physical injury upon another as
17 defined in the penal law, (b) a sex offense involving forcible compul-
18 sion, or (c) any other offense involving the use or threatened use of a
19 deadly weapon may participate in a temporary release program without the
20 written approval of the commissioner.] An inmate shall not be eligible
21 for work release if he or she is subject to a sentence imposed for
22 aggravated murder as defined in section 125.26 of the penal law, murder
23 in the first degree as defined in section 125.27 of the penal law, rape
24 in the third degree as defined in section 130.25 of the penal law, rape
25 in the second degree as defined in section 130.30 of the penal law, rape
26 in the first degree as defined in section 130.35 of the penal law, crim-
27 inal sexual act in the second degree as defined in section 130.45 of the
28 penal law, criminal sexual act in the first degree as defined in section
29 130.50 of the penal law, persistent sexual abuse as defined in section
30 130.53 of the penal law, sexual abuse in the first degree as defined in
31 section 130.65 of the penal law, aggravated sexual abuse in the third
32 degree as defined in section 130.66 of the penal law, aggravated sexual
33 abuse in the second degree as defined in section 130.67 of the penal
34 law, aggravated sexual abuse in the first degree as defined in section
35 130.70 of the penal law, course of sexual conduct against a child in the
36 first degree as defined in section 130.75 of the penal law, course of
37 sexual conduct against a child in the second degree as defined in
38 section 130.80 of the penal law, predatory sexual assault as defined in
39 section 130.95 of the penal law, predatory sexual assault against a
40 child as defined in section 130.96 of the penal law, promoting prostitu-
41 tion in the second degree as defined in section 230.30 of the penal law,
42 promoting prostitution in the first degree as defined in section 230.32
43 of the penal law, compelling prostitution as defined in section 230.33
44 of the penal law, sex trafficking as defined in section 230.34 of the
45 penal law, incest in the first or second degree as defined in article
46 two hundred fifty-five of the penal law, an offense of terrorism defined
47 in article four hundred ninety of the penal law, or an attempt or a
48 conspiracy to commit any such offense. The commissioner shall promulgate
49 regulations giving direction to the temporary release committee at each
50 institution in order to aid such committees in carrying out this
51 mandate.
52 [The governor, by executive order, may exclude or limit the partic-
53 ipation of any class of otherwise eligible inmates from participation in
54 a temporary release program. Nothing in this paragraph shall be
55 construed to affect either the validity of any executive order previous-
56 ly issued limiting the participation of otherwise eligible inmates in
A. 4042 4
1 such program or the authority of the commissioner to impose appropriate
2 regulations limiting such participation.]
3 § 3. Subdivision 2-a of section 851 of the correction law, as added by
4 chapter 251 of the laws of 2002, is amended to read as follows:
5 2-a. Notwithstanding subdivision two of this section, the term "eligi-
6 ble inmate" shall also include a person confined in an institution who
7 is eligible for release on parole or who will become eligible for
8 release on parole or conditional release within [two] four years, and
9 who was convicted of a homicide offense as defined in article one
10 hundred twenty-five of the penal law or an assault offense defined in
11 article one hundred twenty of the penal law, and who can demonstrate to
12 the commissioner that: (a) the victim of such homicide or assault was a
13 member of the inmate's immediate family as that term is defined in
14 section 120.40 of the penal law or had a child in common with the
15 inmate; (b) the inmate was subjected to substantial physical, sexual or
16 psychological abuse committed by the victim of such homicide or assault;
17 and (c) such abuse was a substantial factor in causing the inmate to
18 commit such homicide or assault. With respect to an inmate's claim that
19 he or she was subjected to substantial physical, sexual or psychological
20 abuse committed by the victim, such demonstration shall include corrobo-
21 rative material that may include, but is not limited to, witness state-
22 ments, social services records, hospital records, law enforcement
23 records and a showing based in part on documentation prepared at or near
24 the time of the commission of the offense or the prosecution thereof
25 tending to support the inmate's claim. Prior to making a determination
26 under this subdivision, the commissioner is required to request and take
27 into consideration the opinion of the district attorney who prosecuted
28 the underlying homicide or assault offense and the opinion of the
29 sentencing court. If such opinions are received within forty-five days
30 of the request, the commissioner shall take them into consideration. If
31 such opinions are not so received, the commissioner may proceed with the
32 determination. Any action by the commissioner pursuant to this subdivi-
33 sion shall be deemed a judicial function and shall not be reviewable in
34 any court.
35 § 4. Subdivision 2-b of section 851 of the correction law, as added by
36 chapter 738 of the laws of 2004, is amended to read as follows:
37 2-b. When calculating in advance the date on which a person is or will
38 be eligible for release on parole or conditional release, for purposes
39 of determining eligibility for temporary release or for placement at an
40 alcohol and substance abuse treatment correctional annex, the commis-
41 sioner shall consider and include credit for all potential credits and
42 reductions including but not limited to merit time, additional merit
43 time and good behavior allowances. Nothing in this subdivision shall be
44 interpreted as precluding the consideration and inclusion of credit for
45 all potential credits and reductions including, but not limited to,
46 merit time, additional merit time and good behavior allowances when
47 calculating in advance for any other purpose the date on which a person
48 is or will be eligible for release on parole or conditional release.
49 § 5. This act shall take effect immediately, provided however, that
50 the amendments to subdivision 2 of section 851 of the correction law
51 made by section one of this act shall be subject to the expiration and
52 reversion of such subdivision and section pursuant to subdivision (c) of
53 section 46 of chapter 60 of the laws of 1994 and section 10 of chapter
54 339 of the laws of 1972, as amended, when upon such date the provisions
55 of section two of this act shall take effect; provided further, that the
56 amendments to subdivision 2 of section 851 of the correction law made by
A. 4042 5
1 section two of this act shall expire on the same date as subdivision (c)
2 of section 46 of chapter 60 of the laws of 1994, section 10 of chapter
3 339 of the laws of 1972, and section 5 of chapter 554 of the laws of
4 1986, as amended, expire; provided further that the amendments to subdi-
5 visions 2-a and 2-b of section 851 of the correction law, made by
6 sections three and four of this act shall not affect the expiration of
7 such section and shall expire therewith.
