Recidivism Rate of People Re-Sentenced Under Drug Law Reforms Is Remarkably Low, Legal Aid Society Report Shows
THURSDAY, JANUARY 14, 2010

A special report by the Special Litigation Unit of The Legal Aid Society's Criminal Practice shows that people who have been re-sentenced under New York's Rockefeller Drug Law reforms and released from prison have remarkably low rates of return to prison. The recidivism data from the first two rounds of re-sentencing petitions filed under the 2004 and 2005 reforms supports the legislative judgment that drug law sentences were longer than necessary to protect the community, the report concludes.

The process by which judges exercise discretion in deciding, on a case by case basis, who among the list of eligible people should be re-sentenced and for what length of time is proving to act as an effective screen that protects the community from new crime and, in addition, saves significant tax dollars. The majority of those re-sentenced and released under the new drug law reform have not committed new crimes. Despite claims of dangerous consequences by District Attorneys in opposing re-sentencing petitions, the people released so far under the drug law re-sentencing provisions have proven to pose a low risk to the community.

William Gibney, Director of the Special Litigation Unit, conducted the review of the recidivism data with Terence Davidson, a paralegal in the Criminal Practice, and wrote the report. Steven Banks, Legal Aid's Attorney-in-Chief, told the New York Law Journal that he has been heartened that the scores of resentenced offenders show that their original prison terms were "excessive and longer than necessary." 

Read the full report (PDF)

 

The New York Law Journal
Judge Highlights His Discretion In Denial of Drug Resentencing
by Joel Stashenko
01-13-2010

ALBANY - In rejecting the resentencing request of a man who said he earned considerable sums from selling drugs, a Bronx judge has underlined the considerable discretion given judges reviewing such applications under 2009 reforms to the Rockefeller Drug Laws.

Bronx Supreme Court Justice Robert G. Seewald (See Profile) determined that defendant Joel Stella failed to meet the profile of an addict or an addicted low-level drug seller, the types of offenders for whom the authors of last year's drug law reforms sought to make eligible for shorter sentences.

Instead, Mr. Stella and his associates were paid more than $20,000 for making several sales of heroin in late 2000 to an undercover officer, Justice Seewald found. As a result, the judge said he was rejecting Mr. Stella's "classic and spurious portrayal of himself as some hapless and homeless street addict who was swept into prison" under draconian mandatory drug sentencing statutes.

"For the defendant Stella, a second drug offender, selling drugs was his business and it was indeed a lucrative business," Justice Seewald wrote in People v. Stella, 1458/01. "The defendant was certainly not some pathetic addict plying his trade by selling nickel and dime bags on the street to feed his habit, while also eking out a meager existence, as clearly evidenced by the substantial sum of money he reaped from the undercover officer alone in just a little more than a three-month period of sales."

The Bronx Supreme Court decision appears on page 25 of the print edition of today's Law Journal.

Justice Seewald noted that other recent rulings, including People v. Roman, —NYS2d—, 2009 WL 4572844, have similarly held that the "entire purpose" of last year's reforms of the drug law resentencing statute "is to ameliorate the lengthy sentences given to defendants for selling or possessing a small amount of drugs."

The rulings in Stella and Roman found the 2009 Rockefeller Drug Law sentencing changes similar to reforms enacted in 2004 and 2005. In all three instances, Justice Seewald said courts have recognized that judges have wide discretion to consider reductions in prison terms carrying maximums of life for non-violent drug offenders.

One component of the 2009 reforms, whose resentencing provisions are contained in CPL §440.46[3], was to allow Class B felony drug offenders to apply to courts for sentence reductions. That change, coupled with giving prosecutors less ability to block offenders' diversion away from prison and into treatment, was hailed by proponents as eradicating the last vestiges of the drug laws' strictest provisions (NYLJ, March 30, 2009).

The earlier reforms allowed for reconsideration of sentences given since the inception of the 1973 drug laws to A-I or A-II felony offenders.

The state Department of Correctional Services has determined that about 700 inmates are eligible under the 2009 reforms to apply for resentencing, which began Oct. 7, 2009.

As of Dec. 31, prison officials said 110 offenders have been resentenced and 63 have been released from correctional facilities.

Neither the state prison or courts system nor the Division of Criminal Justice Services, which keeps most crime statistics for the state, had figures on how many offenders' motions for resentencing under the latest drug law reforms have been denied. None of the agencies could say if any of those resentenced and released have been rearrested for committing other offenses.

Justice Seewald determined that precedents in cases involving the 2004, 2005 and 2009 reforms have consistently acknowledged the leeway the Legislature has given to judges when they weigh the merits of resentencing applications.

Each time, he said, lawmakers could have made such changes automatic, or they could have required a "finding of extraordinary circumstances in order to deny resentencing," but declined each time to do so. That has left it to the discretion of judges to decide the question based on their reviews of the circumstances surrounding each offenders' case, according to the judge.

'Generous Plea'

As to Mr. Stella, Justice Seewald said the defendant was allowed to plead guilty to one count of third-degree criminal sale of a controlled substance in lieu of going to trial on up to 11 drug sales counts and two conspiracy counts.

The judge called it an "extraordinarily generous plea" from the prosecution and said Mr. Stella received the "gift of a lifetime," in being sentenced to a 71/2-to-15-year term

Justice Seewald reviewed other factors surrounding Mr. Stella's case and similarly found the defendant's record wanting.

The judge called Mr. Stella's disciplinary record "utterly atrocious" for the first seven years he was incarcerated.

It only improved as he was nearing his first parole date, in 2008, when he completed a substance abuse dependency program, made progress in high school diploma equivalency classes and in a vocational program, the judge said. He held that Mr. Stella's good behavior does not trump the "extreme seriousness" of his crime and the fact that he was "certainly not" a low-level drug offender.

Mr. Stella was paroled in November 2009 while the action before Justice Seewald was pending.

Mr. Stella's attorney, Harold Ferguson of the Legal Aid Society, said a favorable resentencing would have reduced or eliminated his client's period of parole supervision from its current five years.

An appeal was possible, Legal Aid Society officials said.

Mr. Ferguson said Mr. Stella long struggled with drug addiction and that he "really didn't get his act together" until he focused on winning parole.

"He is reunited with his family," Mr. Ferguson said. "He is making substantial progress."

Prosecutors and court officials said all parties are getting used to the resentencing process.

Warren County District Attorney Kate Hogan, president of the New York State District Attorneys Association, said her group is working with court administrators to ensure defendants making applications for resentencing meet the criteria laid out under last year's law, such as having completed treatment for a substance abuse program.

The same holds for non-violent offenders seeking to be diverted to treatment instead of prison, she said.

"In terms of what we are seeing on a statewide basis, it is far too early to make any accurate assessment," Ms. Hogan said.

Justice Judith Harris Kluger, head of the Office of Policy and Planning for the Unified Court System, said thus far, "things have gone quite smoothly from our perspective" with resentencings. She credited the lag period between April, when the latest drug reforms were approved and October with giving the courts time to prepare.

Judges rely on lists provided by the correctional services department to verify eligibility of offenders and then examine case files to determine whether an inmate should get a reduced sentence or freedom, she said.

"Each judge is making a determination on a case-by-case basis," she said.

Steven Banks, attorney-in-charge of the Legal Aid Society in New York City, said he has been heartened that the scores of resentenced offenders show that their original prison terms were "excessive and longer than necessary."

"What we have seen so far is that the people who have been released under the resentencing provisions have been low-risk to the community and the early release from prison has created considerable cost-savings," Mr. Banks said.

According to Mr. Banks, judges' reviews of the circumstances surrounding individual offenders' cases are proving to be an "effective screen" against the release of crime-prone offenders into the community.

According to a Legal Aid Society report released late last year, the recidivism rate of those resentenced under the 2004 and 2005 drug law reforms were far below those of drug offenders in general.