Seymour James Named to Chief Judge's Commission on Sentencing

Seymour W. James, Jr., Attorney-in-Charge of the Criminal Practice, was appointed to a new permanent commission to review contradictory sentencing statutes. The new 18-member commission will be based at the John Jay College of Criminal Justice in Manhattan. Its executive director will be Martin F. Horn, a professor at the college who was previously New York City's commissioner of probation and corrections.


October 14, 2010
The New York Law Journal
Lippman Announces Permanent Sentencing Review
By Joel Stashenko

Chief Judge Jonathan Lippman announced yesterday he has formed a permanent commission to look into New York's complex and sometimes contradictory sentencing statutes.

"There is widespread recognition that anyway you cut it, our laws are a patchwork," Judge Lippman said in an interview. "In a comprehensive way, let's re-evaluate, let's streamline, let's make more transparent the sentencing system."

Manhattan District Attorney Cyrus R. Vance Jr. and Acting Supreme Court Justice Barry Kamins will lead the state's latest attempt to update and simplify the system of sentencing criminal defendants. Less than two years ago, a sentencing reform report by a temporary commission created by former Governor Eliot Spitzer largely went unheeded.

As things stand now, Judge Lippman said defendants, defense lawyers, prosecutors and even judges are not certain how long a defendant will serve under a particular sentence.

In addition to making the system more understandable and predictable, Judge Lippman said the New York State Permanent Sentencing Commission will look into the adequacy of programming for offenders during and after incarceration, ways to increase the focus on crime victims, and determining if some crime categories carry penalties that are too lenient while others are too harsh.

New York State Permanent Sentencing Commission

Executive Director
  • Martin Horn, John Jay College of Criminal Justice
  • Barry Kamins, administrative judge, Kings County Supreme Court (Criminal Term)
  • Cyrus R. Vance Jr., district attorney, New York County
  • Derek Champagne, district attorney, Franklin County; president, New York State District Attorneys Association
  • Patricia Marks, supervising judge, Criminal Courts, Seventh Judicial District
Ex-Officio Members
  • Commissioner, Department of Correctional Services
  • Commissioner, Division of Criminal Justice Services
  • Chair, Board of Parole
Additional Members
  • Efrain Alvarado, administrative judge, Bronx Criminal Division
  • Shawn Bushway, State University at Albany, School of Criminal Justice
  • William Donnino, supervising judge, County Court, Nassau County
  • Vincent Doyle III, Connors & Vilardo
  • Randall Eng, justice, Appellate Division, Second Department
  • William Fitzpatrick, district attorney, Onondaga County
  • George Fufidio Jr., Mancuso, Rubin & Fufidio
  • Susan Herman, Pace University
  • Kathleen Hogan, district attorney, Warren County
  • Michael Jacobson, president and director, Vera Institute of Justice
  • Seymour James, attorney-in-charge, Criminal Practice, Legal Aid Society
  • Juanita Bing Newton, dean, New York State Judicial Institute
  • Paul Shechtman, Stillman, Friedman & Shechtman
  • Tina Stanford, director, New York State Office of Victim Services

The new 18-member commission will be based at the John Jay College of Criminal Justice in Manhattan. Its executive director will be Martin F. Horn, a professor at the college who was previously New York City's commissioner of probation and corrections.

Unlike Mr. Spitzer's temporary commission, Judge Lippman said the new body would be permanent and at work for many years to analyze the sentencing system and recommend improvements to the Legislature and governor.

Mr. Spitzer's commission worked for about 20 months and issued two reports before completing its mission in early 2009 (NYLJ, Oct. 17, 2007; Feb. 4, 2009). The recommendations it made for increasing judicial discretion and the use of treatment for drug offenders had by then been the subject of spirited lobbying campaigns in the Legislature for more than a decade (NYLJ, March 30, 2009).

Justice Kamins, administrative judge for the criminal parts of Supreme Court in Brooklyn, said the permanent nature of the commission will make its recommendations carry more weight.

"It will create a permanent resource for judges and the legal community so there will be a place where these issues can be debated and where recommendations can be developed for the Legislature," he said.

Justice Kamins, a Law Journal columnist on criminal defense issues, said the very terminology New York used to describe the "indeterminate" sentences often doled out to defendants—8 1/3 to 25 years, for instance—suggests the imprecision in the system.

"'Indeterminate'—the very word itself connotes a lack of clarity," he said. "No one really knows when the defendant will be released from jail. We need to take a look at those things."

In addition to increasing judicial discretion, state lawmakers ignored another major recommendation of the Spitzer commission: to convert indeterminate sentences for some 200 non-violent crimes to determinate ones.

The Spitzer commission, which was chaired by Denise O'Donnell, the former state deputy secretary for public safety, also recommended formation of a permanent sentencing commission. Chief judges can appoint permanent commissions while governors can create only temporary ones.

About half the states have sentencing commissions.

'Clarity and Rationality'

Mr. Vance, elected as Manhattan district attorney in 2009, was a member of the Spitzer commission from 2007-2009, and he served on a sentencing guidelines commission in Washington state, where he practiced for several years.

Mr. Vance said yesterday in a statement that after 40 years without substantial reform, "It's time to make New York smarter on crime." He added, "There is no one-size-fits-all model for criminal sentencing."

Mr. Horn, the commission's executive director, said his goal is to bring "clarity and rationality" to sentencing in New York. He said the system has "developed like top seed" over the past four decades as the Legislature and governor have responded to the "crisis de jour" by adding crimes, stiffening sentences and sometimes creating different penalties for crimes that are indistinguishable from one another.

At the back end of the system, some inmates have been made eligible for early release under various programs that are not necessarily consistent for offenders who committed crimes of similar severity, Mr. Horn said.

"These are difficult and complex questions," he said. "This commission, unlike others, does not have a short shelf life. It will have the luxury of time to deal with these complex issues."

Another temporary state commission tried to steamline state sentencing statutes between 1983 and 1985, but its proposals were also largely ignored.

Mr. Horn said his first priority will be to try to get enacted the recommendations of the Spitzer commission.

In addition to the greater use of determinate sentences, that commission also asked in its final report for expansion of prison-based educational and vocational programs, improvement of prison-based drug treatment and giving crime victims a more significant role in the criminal justice process.

Mr. Horn said he would receive compensation through John Jay College to act as executive director, but he said the amount had not been set.

Judge Lippman said the new panel's overall cost to the state will be "very, very minimal," less than $100,000 a year. He said existing resources will be used as much as possible from state agencies such as the Office of Court Administration and the Division of Criminal Justice Services.