03 September 2019

The Indeterminate Zone (Sentencing with Parole Baked In)

In the 1970's a man killed a police officer in NY and was sentenced to 25 years to life in prison. After several attempts to gain parole, the Parole Board finally decided to award it to the man. The wife of the police officer tried to intervene to stop the killer of her husband from being released. She failed.

Over at Simple Justice, Scott seems to think that the only time for the wife to put in her 2 cents worth is at the sentencing. He's not happy that the NY Legislature has required the Parole Board to pay even minimal heed to victims such as the wife. If NY sentencing worked as Virginia's does, I'd agree. Unfortunately, it does not. NY exists in the indeterminate zone (That's the signpost up ahead.)

If a set sentence was given after the wife testified it would have all been concluded. Assuming the appeals process didn't turn up a reversible error, the whole thing would have been settled and the wife could have gone on with her life as best she could.

Unfortunately, this all happened in New York and that meant the entire thing was subject to a determined indeterminate sentence. As best I can tell looking at NY Penal Law Art. 70 sec 70.00 (a little confusing because they were amended 01 SEP 19), there wasn't any choice in the judge's sentence. Under subsection (2)(a) "For a class A felony, the term shall be life imprisonment." Under subsection (3)(a)(i)(A) "where a sentence, other than a sentence of death or life imprisonment without parole, is imposed upon a defendant convicted of murder in the first degree as defined in section 125.27 of this chapter such minimum period shall be not less than twenty years nor more than twenty-five years." It doesn't look like the judge had any choice in his indeterminate sentencing.1

Anyway, baked into a system of indeterminate sentencing is a long term process of determining the sentence. The sentencing isn't actually done by the judge. The legislature gives the judge parameters within which to sentence. In some cases, the judge may narrow the parameters of the sentence even further. The people who determine what the sentence should be within those parameters are those sitting on the Parole Board. Effectively, the Parole Board sentences. In the end, it is the organization which determines when the damage to victims and threat to society is overbalanced by how much the defendant has reformed or at least become less of a threat to society.

The argument in favor of this kind of sentencing is that it gives an incentive for the convict to reform and make himself into a person who should be released back into society; the quicker he reforms, the quicker he gets back. The problem is that in order to figure out where the balance stands each time a person comes up for parole there must be another sentencing. Thus the need for the victim to testify each time. It seems, from what I can find on this case, that NY handles this basically through a review of paperwork and does not have or allow the victim come in to verbally testify each time; it only allows her to send in a report of her condition as a result of the crime. In any event, every so often the scab gets torn back off because the victim has to fight again to keep the convict in prison.

In the end it's a terrible system that builds in uncertainty, almost assuredly has created a massive bureaucracy to carry out the Parole Board's function, and causes continuing harm to victims because there's a yet another sentencing hearing every year or two. And yet, as long as this system exists and there is a perpetual sentencing process, the victim should be allowed to testify in it each time the balance is weighed. Who knows? She may have decided that her religious beliefs require her to forgive the convict and she won't be rabid about keeping him in prison. That wasn't the case this time, but I'm sure people would whine if she were forbidden from saying the convict should be released.

Better yet, scrap the indeterminate sentencing system and provide clarity in sentencing and closure to victims.2

1 Yes, I know that I probably got this at least partially wrong. NY has a complex statutory system that doesn't seem too terribly well organized. This poor old Southern boy just can't keep up. And my lack of knowledge of the intricacies is beyond the point anyway. Quit wasting your time reading this and go back up to the argument.

2  Yeah, I know it won't happen. When's the last time anyone in NY paid attention to someone in the flyover part of the country - unless, of course, they want to overpay to steal someone from our baseball team.


Anonymous said...

For the record, this nonlawyer-reader is a resolute coastal-elitist(tm), having spent the last three decades in San Francisco, NYC, and then San Francisco again. I started reading you when I lived in Brooklyn.

(I remember that, because at the time I was in my 30s, having a period of Thinking About What The **** I Was Doing With My Life, and considering law school. Not sure what saved me, but I wised up and stayed a professional nerd. You were on the defense side back then.)

Despite no desire to ever get near the Bar, I enjoy your explanations of how apparently (to me) strange or bad crimlaw outcomes make contextual sense, and generally appreciate your outlook.

But then I'm not really a orthodox coastal elitist(tm). I could care less about baseball, and it caused me no end of grief during my bar years.

Dave M said...

The funny thing is the state tried to go all determinate sentences but the Public employee's unions fought the issue. NY could save billions a year by dumping the whole Parole system, but wont because of politics.