NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A6481
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.temporary 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 851 ,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. 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 conditional release.
Section 5 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 temporary
release programs. At its peak in 1994, 24,055 individuals participated
in the work release program. As of 2010, program participation has plum-
meted 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 Comprehensive Alcohol and Substance Abuse Treatment (CASAT)
program. This means that only 4% of all Temporary Release program appli-
cants 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, m 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 2014.
2013 reported, referred to codes.
2012 reported, referred to codes
FISCAL IMPLICATIONS:
None.
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
________________________________________________________________________
6481
2023-2024 Regular Sessions
IN ASSEMBLY
April 11, 2023
___________
Introduced by M. of A. WEPRIN, AUBRY, STECK -- 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 section 228 of chapter 322 of the laws of 2021, is amended to
3 read as follows:
4 2. "Eligible incarcerated individual" means: a person confined in an
5 institution who is eligible for release on parole or who will become
6 eligible for release on parole or conditional release within two years.
7 [Provided, however, that a person under sentence for an offense defined
8 in paragraphs (a) and (b) of subdivision one of section 70.02 of the
9 penal law, where such offense involved the use or threatened use of a
10 deadly weapon or dangerous instrument shall not be eligible to partic-
11 ipate in a work release program until he or she is eligible for release
12 on parole or who will be eligible for release on parole or conditional
13 release within eighteen months. Provided, further, however, that a
14 person under a determinate sentence as a second felony drug offender for
15 a class B felony offense defined in article two hundred twenty of the
16 penal law, who was sentenced pursuant to section 70.70 of such law,
17 shall not be eligible to participate in a temporary release program
18 until the time served under imprisonment for his or her determinate
19 sentence, including any jail time credited pursuant to the provisions of
20 article seventy of the penal law, shall be at least eighteen months.] In
21 the case of a person serving an indeterminate sentence of imprisonment
22 imposed pursuant to the penal law in effect after September one, nine-
23 teen hundred sixty-seven, for the purposes of this article parole eligi-
24 bility shall be upon the expiration of the minimum period of imprison-
25 ment fixed by the court or where the court has not fixed any period,
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00643-01-3
A. 6481 2
1 after service of the minimum period fixed by the state board of parole.
2 If an incarcerated individual is denied release on parole, such incar-
3 cerated individual shall not be deemed an eligible incarcerated individ-
4 ual until he or she is within two years of his or her next scheduled
5 appearance before the state parole board. In any case where an incarcer-
6 ated individual is denied release on parole while participating in a
7 temporary release program, the department shall review the status of the
8 incarcerated individual to determine if continued placement in the
9 program is appropriate. No person convicted of any escape or absconding
10 offense defined in article two hundred five of the penal law shall be
11 eligible for temporary release. [Further, no person under sentence for
12 aggravated harassment of an employee by an incarcerated individual as
13 defined in section 240.32 of the penal law for, any homicide offense
14 defined in article one hundred twenty-five of the penal law, for any sex
15 offense defined in article one hundred thirty of the penal law, or for
16 an offense defined in section 255.25, 255.26 or 255.27 of the penal law
17 shall be eligible to participate in a work release program as defined in
18 subdivision three of this section. Nor shall any person under sentence
19 for any sex offense defined in article one hundred thirty of the penal
20 law be eligible to participate in a community services program as
21 defined in subdivision five of this section. Notwithstanding the forego-
22 ing, no person who is an otherwise eligible incarcerated individual who
23 is under sentence for a crime involving: (a) infliction of serious phys-
24 ical injury upon another as defined in the penal law or (b) any other
25 offense involving the use or threatened use of a deadly weapon may
26 participate in a temporary release program without the written approval
27 of the commissioner.] The commissioner shall promulgate regulations
28 giving direction to the temporary release committee at each institution
29 in order to aid such committees in carrying out this mandate.
30 [The governor, by executive order, may exclude or limit the partic-
31 ipation of any class of otherwise eligible incarcerated individuals from
32 participation in a temporary release program. Nothing in this paragraph
33 shall be construed to affect either the validity of any executive order
34 previously issued limiting the participation of otherwise eligible
35 incarcerated individuals in such program or the authority of the commis-
36 sioner to impose appropriate regulations limiting such participation.]
37 § 2. Subdivision 2 of section 851 of the correction law, as amended by
38 section 228-b of chapter 322 of the laws of 2021, is amended to read as
39 follows:
40 2. "Eligible incarcerated individual" means: a person confined in an
41 institution who is eligible for release on parole or who will become
42 eligible for release on parole or conditional release within two years.
43 [Provided, that a person under a determinate sentence as a second felony
44 drug offender for a class B felony offense defined in article two
45 hundred twenty of the penal law, who was sentenced pursuant to section
46 70.70 of such law, shall not be eligible to participate in a temporary
47 release program until the time served under imprisonment for his or her
48 determinate sentence, including any jail time credited pursuant to the
49 provisions of article seventy of the penal law, shall be at least eigh-
50 teen months.] In the case of a person serving an indeterminate sentence
51 of imprisonment imposed pursuant to the penal law in effect after
52 September one, nineteen hundred sixty-seven, for the purposes of this
53 article parole eligibility shall be upon the expiration of the minimum
54 period of imprisonment fixed by the court or where the court has not
55 fixed any period, after service of the minimum period fixed by the state
56 board of parole. [If an incarcerated individual is denied release on
A. 6481 3
1 parole, such incarcerated individual shall not be deemed an eligible
2 incarcerated individual until he or she is within two years of his or
3 her next scheduled appearance before the state parole board.] In any
4 case where an incarcerated individual is denied release on parole while
5 participating in a temporary release program, the department shall
6 review the status of the incarcerated individual to determine if contin-
7 ued placement in the program is appropriate. No person convicted of any
8 escape or absconding offense defined in article two hundred five of the
9 penal law shall be eligible for temporary release. [Nor shall any person
10 under sentence for any sex offense defined in article one hundred thirty
11 of the penal law be eligible to participate in a community services
12 program as defined in subdivision five of this section. Notwithstanding
13 the foregoing, no person who is an otherwise eligible incarcerated indi-
14 vidual who is under sentence for a crime involving: (a) infliction of
15 serious physical injury upon another as defined in the penal law, (b) a
16 sex offense involving forcible compulsion, or (c) any other offense
17 involving the use or threatened use of a deadly weapon may participate
18 in a temporary release program without the written approval of the
19 commissioner.] An incarcerated individual shall not be eligible for work
20 release if he or she is subject to a sentence imposed for aggravated
21 murder as defined in section 125.26 of the penal law, murder in the
22 first degree as defined in section 125.27 of the penal law, rape in the
23 third degree as defined in section 130.25 of the penal law, rape in the
24 second degree as defined in section 130.30 of the penal law, rape in the
25 first degree as defined in section 130.35 of the penal law, criminal
26 sexual act in the second degree as defined in section 130.45 of the
27 penal law, criminal sexual act in the first degree as defined in section
28 130.50 of the penal law, persistent sexual abuse as defined in section
29 130.53 of the penal law, sexual abuse in the first degree as defined in
30 section 130.65 of the penal law, aggravated sexual abuse in the third
31 degree as defined in section 130.66 of the penal law, aggravated sexual
32 abuse in the second degree as defined in section 130.67 of the penal
33 law, aggravated sexual abuse in the first degree as defined in section
34 130.70 of the penal law, course of sexual conduct against a child in the
35 first degree as defined in section 130.75 of the penal law, course of
36 sexual conduct against a child in the second degree as defined in
37 section 130.80 of the penal law, predatory sexual assault as defined in
38 section 130.95 of the penal law, predatory sexual assault against a
39 child as defined in section 130.96 of the penal law, promoting prostitu-
40 tion in the second degree as defined in section 230.30 of the penal law,
41 promoting prostitution in the first degree as defined in section 230.32
42 of the penal law, compelling prostitution as defined in section 230.33
43 of the penal law, sex trafficking as defined in section 230.34 of the
44 penal law, incest in the first or second degree as defined in article
45 two hundred fifty-five of the penal law, an offense of terrorism defined
46 in article four hundred ninety of the penal law, or an attempt or a
47 conspiracy to commit any such offense. The commissioner shall promulgate
48 regulations giving direction to the temporary release committee at each
49 institution in order to aid such committees in carrying out this
50 mandate.
51 [The governor, by executive order, may exclude or limit the partic-
52 ipation of any class of otherwise eligible incarcerated individuals from
53 participation in a temporary release program. Nothing in this paragraph
54 shall be construed to affect either the validity of any executive order
55 previously issued limiting the participation of otherwise eligible
A. 6481 4
1 incarcerated individuals in such program or the authority of the commis-
2 sioner to impose appropriate regulations limiting such participation.]
3 § 3. Subdivision 2-a of section 851 of the correction law, as amended
4 by chapter 322 of the laws of 2021, is amended to read as follows:
5 2-a. Notwithstanding subdivision two of this section, the term "eligi-
6 ble incarcerated individual" shall also include a person confined in an
7 institution who is eligible for release on parole or who will become
8 eligible for release on parole or conditional release within [two] four
9 years, and who was convicted of a homicide offense as defined in article
10 one hundred twenty-five of the penal law or an assault offense defined
11 in article one hundred twenty of the penal law, and who can demonstrate
12 to the commissioner that: (a) the victim of such homicide or assault was
13 a member of the incarcerated individual's immediate family as that term
14 is defined in section 120.40 of the penal law or had a child in common
15 with the incarcerated individual; (b) the incarcerated individual was
16 subjected to substantial physical, sexual or psychological abuse commit-
17 ted by the victim of such homicide or assault; and (c) such abuse was a
18 substantial factor in causing the incarcerated individual to commit such
19 homicide or assault. With respect to an incarcerated individual's claim
20 that he or she was subjected to substantial physical, sexual or psycho-
21 logical abuse committed by the victim, such demonstration shall include
22 corroborative material that may include, but is not limited to, witness
23 statements, social services records, hospital records, law enforcement
24 records and a showing based in part on documentation prepared at or near
25 the time of the commission of the offense or the prosecution thereof
26 tending to support the incarcerated individual's claim. Prior to making
27 a determination under this subdivision, the commissioner is required to
28 request and take into consideration the opinion of the district attorney
29 who prosecuted the underlying homicide or assault offense and the opin-
30 ion of the sentencing court. If such opinions are received within
31 forty-five days of the request, the commissioner shall take them into
32 consideration. If such opinions are not so received, the commissioner
33 may proceed with the determination. Any action by the commissioner
34 pursuant to this subdivision shall be deemed a judicial function and
35 shall not be reviewable in any court.
36 § 4. Subdivision 2-b of section 851 of the correction law, as added by
37 chapter 738 of the laws of 2004, is amended to read as follows:
38 2-b. When calculating in advance the date on which a person is or will
39 be eligible for release on parole or conditional release, for purposes
40 of determining eligibility for temporary release or for placement at an
41 alcohol and substance abuse treatment correctional annex, the commis-
42 sioner shall consider and include credit for all potential credits and
43 reductions including but not limited to merit time, additional merit
44 time and good behavior allowances. Nothing in this subdivision shall be
45 interpreted as precluding the consideration and inclusion of credit for
46 all potential credits and reductions including, but not limited to,
47 merit time, additional merit time and good behavior allowances when
48 calculating in advance for any other purpose the date on which a person
49 is or will be eligible for release on parole or conditional release.
50 § 5. This act shall take effect immediately, provided however, that
51 the amendments to subdivision 2 of section 851 of the correction law
52 made by section one of this act shall be subject to the expiration and
53 reversion of such subdivision and section pursuant to subdivision (c) of
54 section 46 of chapter 60 of the laws of 1994 and section 10 of chapter
55 339 of the laws of 1972, as amended, when upon such date the provisions
56 of section two of this act shall take effect; provided further, that the
A. 6481 5
1 amendments to subdivision 2 of section 851 of the correction law made by
2 section two of this act shall expire on the same date as subdivision (c)
3 of section 46 of chapter 60 of the laws of 1994, section 10 of chapter
4 339 of the laws of 1972, and section 5 of chapter 554 of the laws of
5 1986, as amended, expire; provided further that the amendments to subdi-
6 visions 2-a and 2-b of section 851 of the correction law, made by
7 sections three and four of this act shall not affect the expiration of
8 such section and shall expire therewith.
