N.Y. must have mercy for convicted

New York State has its own crisis of mass incarceration. There are more than 32,000 people, disproportionately people of color, in state prison. More than 2,700 are at least 60 years old. More than 6,500 are serving life sentences. While scholars and advocates call for maximum sentences of 20 years, New York’s prisons hold almost 7,000 people serving sentences with 20year minimums.

New York law, however, does contain a humane, though under-utilized, off ramp for people facing criminal charges. The law explicitly permits a judge to dismiss charges “in the interests of justice” even if the charges are supported by the facts and the law. Such a procedure hardly seems controversial.

Surely, if justice is best served by dismissing criminal charges then that outcome should be permitted and encouraged. Similarly, after a person has been sentenced, New York‘s appellate courts have long-standing power to reduce a legally imposed sentence in the same interests of justice.

Even years after someone has exhausted their direct appeals, New York law provides a mechanism for judicial resentencing. That, too, hardly seems controversial since not every sentence remains just, necessary, and appropriate in perpetuity. One would expect, given the law’s recognition that the interests of justice permit dismissal of charges or a reduction in sentence, that the law would expressly allow for resentencing in the interest of justice.

For example, a person might seek a sentence reduction after many years in state prison to show how they have transformed; that they have done all they could to try to repair the harm they caused, that they have accepted full responsibility for their actions, that they have expressed genuine contrition, and that they have conducted themselves as well as possible within the confines of prison.

And yet, New York’s resentencing law turns a blind eye to a person’s growth and change while behind bars. The current law limits judicial review to the sole question of whether the original sentence is illegal. It does not matter how much the person has changed, it does not matter if the prosecutor believes resentencing is appropriate, it is of no moment that the victim or the victim’s family supports a reduced sentence, and it is immaterial if the person is elderly or ill.

Simply put, it does not matter if the interests of justice dictate a reduction in sentence. If the original sentence is legal, no matter how harsh and inappropriate it has come to be, the interests of justice are irrelevant.

A draft bill, the Second Look Act, S321, aims to rectify this omission. The bill provides that a person can apply for resentence after 10 years of incarceration, and that judges would then have the power to reduce the person’s sentence in the interests of justice.

The proposed law offers no guarantee of a new sentence, but by recognizing the possibility of redemption the law encourages people to take all available steps to demonstrate that they merit a sentence reduction. Providing people with the motivation to change also makes for a safer prison environment for everyone inside.

In the meantime, there is a mechanism already available to free someone from a sentence that no longer serves the interests of justice. The New York State Constitution explicitly gives the governor unfettered power to grant clemency by reducing a person’s sentence. Gov. Hochul has the power to rectify the state’s contribution to mass incarceration by commuting the sentences of countless people who have submitted meritorious clemency applications.

Yet to date, she has commuted the sentences of merely 14 people while more than 1,000 applications remain pending in her office. Don’t the “interests of justice,” recognized elsewhere in our state’s criminal procedure law, mandate greater use of this power?

The number of over-punished people in prison who have demonstrated robust evidence of transformation is of such magnitude that there should be multiple pathways to freedom. Whether by the judiciary pursuant to the Second Look Act, or by the governor pursuant to the state Constitution, efforts to reexamine sentences are long overdue.

While many people now recognize the crisis of mass incarceration, too often one of the root causes — massive sentencing — is overlooked. Whether due to racist tropes like the super-predator, wilding, or wolfpack, or the hyper-aggressive policing, prosecuting, and adjudicating of the past several decades, too many people are serving too many years behind bars.

Remedies exist — the interests of justice demand that the Legislature pass the Second Look Act and that the governor make considerable use of her clemency power.

Zeidman is co-director of the Second Look Project: Beyond Guilt and the Defenders Clinic at CUNY Law School.