President Murphy's Testimony Before the Commission on Sentencing Reform

New York State Commission on Sentencing Reform
“The Future of Sentencing in New York State”

Denise E. O’Donnell
Chair

Legislative Office Building
Albany, New York

November 15, 2007

Testimony of James A. Murphy III
Saratoga County District Attorney and President, District Attorneys Association of the State of New York (DAASNY)

Commissioner O’Donnell and Members of the Commission:

On behalf of the 62 New York State District Attorneys, I am pleased to present this testimony to the members of the New York State Commission on Sentencing Reform. As career prosecutors, we know the tremendously important role that sentencing plays within the New York State Criminal Justice System and how it helps to make all New Yorkers safer.

I also want to thank Governor Spitzer and you, Commissioner O’Donnell for having the wisdom and foresight to tackle this important topic in the first year of the new administration. I appreciate your invitation to address Governor Spitzer’s New York State Commission on Sentencing.

Every New York State Prosecutor is proud of the incredible accomplishments of New York State, which is now the fifth safest state in the nation. I hope that we can overtake the next state which I believe is Vermont! And, as you have pointed out in your “Preliminary Proposal for Reform” New York State has achieved this ranking at the same time that the state prisons have enjoyed a substantial decrease in inmate population. We are the only large state that achieved this success and one of a handful of states that have simultaneously reduced incarceration and crime. This shows that our criminal justice system is working very well. And, while it is important to continue to aspire to do better, it is equally important not to make changes that could reverse this positive, hard won trend of less crime and fewer inmates.

For the next minute, I will address some of the issues raised in your proposal, specifically their impact upon Prosecutors and the criminal justice system. We all agree on the one goal of making our communities safer for all New Yorkers. To the extent that we can make change that does not adversely affect public safety DAASNY will support some of the progressive concepts of your proposal. Conversely, if we believe that any changes suggested in your proposal might make New York a less safe place, then we will ask for more evaluation, research, and discussion.

DETERMINATE SENTENCING

The movement toward determinate sentencing that began in 1995 has always made good sense to prosecutors. Determinate sentencing allows prosecutors to negotiate sentences with a high degree of certainty as to the time a defendant will serve before release. It also provides Corrections with the ability to formulate inmate programming with the knowledge of when release is most likely. Any further change toward determinate sentences, however, must include sentence ranges that are realistically related to the severity of the crime and do not put prosecutors at a disadvantage during plea negotiations.

I agree with the Commission that the current indeterminate sentences for non-drug Class A-I and Class A-II offenses should continue. These are the most serious crimes in New York State and public safety requires that if these inmates are released at all, they should be supervised for life. This life time supervision allows the Division of Parole to ensure public safety and return these offenders to prison for violation of their terms of release.

Although I have carefully reviewed the analysis of Chairman George B. Alexander of the Division of Parole set forth in the Appendix in support of continuing indeterminate sentencing, I still believe that a determinate sentencing structure is best. There is a great deal of vital work that Parole would still be required to do including crime victim impact hearings, establishing conditions of release for all inmates returning to the community under Parole supervision, and the critical determination as to when Parolees who have violated their conditions of Parole should be returned to prison. Freeing the Parole Board from the workload created by the current indeterminate sentencing scheme would allow the Board Members to spend more time on these critical components of their responsibilities.

FURTHER DRUG SENTENCING REFORM

In the past 15 years, there have been at least 4 substantial modifications of New York’s Drug Laws. Some of the changes have eliminated life sentences, reduced the length of sentences, and doubled the minimum quantities of illegal drugs required for conviction. The Sentencing Commission clearly appears to be seeking discussions to further reduce the penalties for some Drug felonies. DAASNY strongly opposes any further change in the Drug Laws that would reduce penalties, and particularly the proposal to eliminate the mandatory incarceration provision upon a conviction for a Class B felony without judicial, prosecutorial and defense consent. Our opposition arises from what we have learned directly from the Drug Court defendants themselves who have consistently told us that treatment works best when it is mandated by a court with a real promise of incarceration for failure to complete the program.

As I previously stated in my Budget letter to Governor Spitzer, prosecutors have always supported the appropriate use of substance abuse treatment in drug cases. DTAP in New York City and STEPS in upstate counties, coupled with the proliferation of Drug Courts throughout the state, have increased both the availability of treatment and the expertise of the Judiciary, Prosecution and Defense in understanding the appropriate use of treatment.

District Attorneys are constantly urged by their communities to eradicate the plague of criminal violence. Drug dealing always brings guns and other violence and provides a fertile breeding ground for violent gangs to start and grow. All District Attorneys know that the elimination of drug dealers means less violence and fewer victims. That is why we reject softening the penalty for drug dealers and will continue to seek prison for those who bring violence to our community. And despite the mantra of drug reform groups that inaccurately portrays prosecutors as contributing to long sentences for drug addicts, the reality is far different. District Attorneys seek treatment, jobs and a successful return to the community for drug addicts. We strongly support drug treatment and the appropriate use of graduated sanctions for drug addicts.

A recent survey by DCJS of 36 counties representing 80% of our state’s population found that over 22,000 defendants have participated in Drug Court, DTAP or STEPS. And although drug reform groups imply that all second felony offenders go to state prison, many if not most of these 22,000 defendants were second felony offenders who were offered drug treatment and not prison through DTAP, STEPS and Drug Courts.

Very simply, removing the “mandatory” prison provision for conviction of a Class B Felony or conviction as a Second Felony Offender would make treatment less successful. Many upstate DAs would embrace the drug court programs if they had resources available, but resources, personnel and funding are serious impediments for well intentioned prosecutors. We have repeatedly asked for more funding in our annual budget request. Some facts you should consider are that:

37 of 62 counties (more than half) have less than 10 adas. 20 of 62 (nearly 1/3) have less than 5 adas.

The Franklin Co. DA who planned on testifying today has 4 assistant district attorneys to handle 2,800 crimes, 3,000 vehicle and traffic violations, 1200 penal law violations and crime from 5 correctional facilities and the St. Regis Reservation. He wants to expand the very limited drug court program, but needs resources, technical support, personnel and funding. In addition, the simple fact that geography is a major impediment in Franklin and other upstate rural counties is important to remember. The Town of Tupper Lake is 62 miles from the county seat of Malone in Franklin County. A 3 hour round trip drive once per week to attend drug court for participants is prohibitive, expensive and impossible. There are no mass transit services, nor are there programs for participants in their local community.

The Warren County DA, who also planned on testifying today, has 6 assistant district attorneys and a limited drug court program. She couldn’t testify because she is presenting an infant homicide case to the grand jury and her assistants were already engaged in other court appearances. While she would like to assign an assistant district attorney to drug treatment court, she also has similar problems as those of the Franklin County DA. She presently has assistants handling murders, rapes, burglaries and other crime and cannot dedicate an assistant district attorney exclusively to treatment court without additional funding, resources, technical support and personnel. She cannot short change a victim of a rape or family of a homicide victim by diverting attention away from these violent crimes and assign that assistant to also handle drug court as well. Further she cannot properly cover drug court when the assistant district attorney's attention is elsewhere.

Geography, small offices and lack of programs for drug addicts in their own communities will continue to thwart efforts by prosecutors to utilize alternative programs despite there willingness and desire to do so. Fund the programs and they will be implemented in all of our counties. This is what district attorneys want. We want to expand and improve alternatives to incarceration.

My colleague Bridget Brennan, the Special Narcotics Prosecutor, gave in depth testimony to this Commission earlier this week. She provided valuable insight about public safety concerns from further weakening criminal sanctions for convicted drug offenders.

THE USE OF EVIDENCE-BASED PRACTICES

The use of evidenced-based practices outlined in the Commission’s proposal presents a concept that could serve to allocate incarcerative and supervision resources in a more effective manner. Using more resources for the most dangerous offenders and increasing our capacity to determine who are the most likely to commit further crimes can only serve to promote public safety.

Risk and Needs Assessment Instruments also present an opportunity to improve the criminal justice system in providing valuable predictive information for sentencing, prison programming, and community supervision. Yet, careful consideration must be given to what instrument is used and the manner in which it is validated. The careful and appropriate use of these practices, however, is only a tool and should not replace but inform prosecution decision making.

PAROLE VIOLATORS

I disagree with the characterization of parole rule violators as “the revolving door of incarceration.” The analysis contained in your proposal portrays parole rule violators as “technical violators” and does not give due credit to the fact that crimes are avoided by returning parolees to prison when they are engaged in activities that often lead to serious criminal conduct. Parolees are still serving a sentence and only need to follow clearly delineated rules to avoid being returned to state prison.

Although 40% of “technical violators” are returned to state prison without any known criminal behavior, the great majority of these are absconders. In other words, despite the best efforts of their parole officers, these absconders whereabouts are unknown. Many of these so called “technical” offenders are sex offenders and violent offenders who should immediately be violated.

Therefore, although the Commission’s recommendation to look into alternative sanctions may have limited or some merit, it should only be explored while not forgetting that public safety is the primary duty of our Division of Parole. No changes should be taken here, because the cost to society is so heavy. We should not ever reduce our vigilance because our prior hard work earned lower crime rates.

COMMUNITY SUPERVISION

It certainly makes sense to align the level of supervision with the offender’s violence and recidivism risk. All community supervision, however, whether it be pre-trial or post sentence probation or parole, should be the result of a sentence negotiated by prosecutors who in turn, must answer to their communities. To significantly reduce the level of supervision is wrong. Recommendations, such as the increased use of kiosks, undermine both public confidence and safety. When an offender has committed a crime, and is convicted after a plea negotiation with a sentence that includes probation, it is very troublesome to rely on occasional visits to a kiosk to fulfill that sentence.

RE-ENTRY

Employment, housing, and treatment coupled with effective monitoring and supervision, can certainly aid in providing an offender with the opportunity and the incentive not to commit more crimes. New York State treatment and employment programs, both in prison and in the community, are among the best and most available in the United States. The proposal’s recommendation to improve both their quality and availability has the potential to improve public safety. Step down facilities operated by DOCS and Parole are promising models that may improve an offender’s ability to live a crime free life.

CRIME VICTIMS AND SENTENCING

Although New York has made great strides in developing a more victim oriented criminal justice system, prosecutors agree that more can and must be done.

The recommendation to consolidate all victim statutes, or at the very least, to create a cross-reference chart for all victim related legislation, makes sense, as does payment of restitution by credit card.

Most prosecutors have at least one full-time Victim liaison and all prosecutors scrupulously fulfill their statutory duty in CPL 440.50(1) to inform victims of final dispositions. Extending this right of notification to all victims where the offender has been sentenced to DOCS custody merits further review.

A PERMANENT SENTENCING COMMISSION FOR NEW YORK?

I believe that a permanent Sentencing Commission for New York is an idea whose time has come. A permanent Commission could be valuable to Prosecutors and the entire Criminal Justice System. The 11 anomalies set forth at the end of the temporary Commission’s recommendation could be the first item for resolution. They have long puzzled Judges, Prosecutors and Defense Attorneys who have first sought to understand them and then struggled to find a method to work around them. Other issues, undoubtedly more complicated would follow.

The first question to be resolved, however, would be the composition of the Commission. Prosecutors are rightly concerned that a Commission could devolve into another bureaucracy, or much worse, a vehicle for quick change that could undermine public safety. Based upon these concerns, we prefer the more cautious approach recommended in the Proposal for the creation of a “temporary” commission subject to regular legislative and executive approval. Prosecutors look forward to being part of this negotiation.

ANOMALIES

Each of the 11 anomalies described in the Commission’s Proposal have long been identified as matters that would benefit from more carefully written legislation. For instance, anomaly #4 that does not allow a plea reduction from Manslaughter in the First Degree to Manslaughter in the Second Degree, has been identified by some career Prosecutors as an impediment to appropriate plea negotiations. I strongly agree that this and the other 10 anomalies should be carefully examined by this Commission or be on the first duties of any permanent Sentencing Commission.

DNA COLLECTION FOR ALL OFFENDERS

Although this matter was not raised by the sentencing commission, its critical importance to Prosecutors cannot be understated. I want to use my remaining minutes to raise it here.

The law presently requires DNA collection upon conviction of all Felonies and selected Misdemeanors. Collecting samples has been extremely cumbersome in upstate counties when a defendant pleads guilty to a misdemeanor and is not under any form of supervision. Every County outside of New York City, with DCJS’s assistance, is required to formulate a plan to collect DNA. Despite best efforts, DNA is not collected from every offender, particularly in the rural Justice Courts. DCJS is continually updating and distributes reports to Counties, identifying offenders for whom a DNA sample is mandated but has not been submitted. Using these reports, local law enforcement attempts to locate and persuade an offender to give a DNA sample. Very simply, the existing law did not, contemplate, let alone address this issue.

Because of the problems generated by the current law, I strongly urge you to call for legislation mandating collection from all offenders at the time of arrest. In today’s world, DNA as a crime solver, is akin to fingerprints. DNA extraction is no longer invasive nor does it require the services of a phlebotomist to draw a blood sample. New York now uses a buccal swab (similar in size and feel to a Q-tip) that the offender inserts into his or her cheek to obtain sufficient DNA for analysis. Thus, DNA should be taken at the time of arrest for every crime in which fingerprints are currently required. Procedures to return DNA samples, in appropriate cases could be developed.

Again, thank you for the opportunity to comment today. I know that New York’s District Attorneys are looking forward to working with you and the members of the Commission as we continue our efforts to make New York safer.

Respectfully submitted,

James A. Murphy
Saratoga County District Attorney
President, District Attorneys Association of the State of New York

November 15, 2007