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Web address: http://www.nylj.com
Volume 238—no. 87
monday, may 7, 2007
Sentencing Guidelines
By Alan Vinegrad and Douglas Bloom
New York’s New Commission on Sentencing Reform
W
hile the federal bar patiently
awaited the next chapter in
the U.S. Supreme Court’s recent
focus on federal sentencing,1
Governor Eliot Spitzer quietly brought
New York State into the sentencing
reform debate.
On March 5, 2007, by executive order, he
established the New York State Commission
on Sentencing Reform2 and on April 20,
he appointed its first members.3 While
sharing some of the same goals as its
federal counterpart, the U.S. Sentencing
Commission, this new commission brings
an entirely new structure and approach to
the task of sentencing reform. The distinction
between the two bodies reflects the changing
face of American sentencing law and the
world in which it is being written.
Commission on Sentencing Reform
The Commission on Sentencing Reform
is charged initially with conducting “a
comprehensive review of New York’s current
sentencing structure, sentencing practices,
community supervision, and the use of
alternatives to incarceration.” In conducting
this review, the commission is specifically
directed to explore:
• the current structure of New York
sentencing law;
• the uniformity, certainty and adequacy
of the sentences it produces;
• the lengths of imprisonment that the
system produces and the incentives
and barriers to alternatives to
incarceration;
• the ability of education and job
training to ease reentry and reduce
recidivism;
• the impact of current sentencing
practice on state resources;
• the relationship of sentencing to public
safety and recidivism; and
• future trends in sentencing.
At the completion of its review, the
Alan Vinegrad, former U.S. Attorney for
the Eastern District of New York, is a partner
at Covington & Burling. Douglas Bloom
is an associate at the firm.
hearings, take testimony, and “take any
other actions it deems necessary to carry
out its functions.”
New York’s Sentencing Guidelines
Alan Vinegrad
Douglas Bloom
commission is directed to produce a report
of its findings, setting forth the impact that
current sentencing practice has had on
the length of sentences and post-release
supervision and recommending alternatives
to incarceration. In addition to reporting its
results, the commission is directed to propose
legislative amendments aimed at maximizing
the uniformity, certainty, consistency and
adequacy of sentencing in a manner that
addresses the traditional sentencing goals
of retribution, deterrence and rehabilitation.
In doing so, the commission is to take into
consideration crime victims, their families
and the community. Finally, the commission
is directed to analyze the fiscal impact of
its recommendations.
The commission is composed of 11
members. The commissioners of the
Department of Correctional Services and the
Division of Criminal Justice and the chairs of
the Parole Board and Crime Victims Board
serve ex officio. Four members are appointed
on the recommendation of the legislative
leaders, one each by the majority and
minority leaders of Senate and Assembly. The
remaining three members are selected by
the governor and must consist of one judge
with criminal experience, one prosecutor
and one defense attorney.
The commission is directed to issue
an initial report of its findings and
recommendations to the governor, chief
judge of the Court of Appeals and the four
legislative leaders by Sept. 1, 2007, with
a final report to follow by March 1, 2008.
In undertaking its review and preparing
its report, the commission is empowered
to request documents, conduct public
This is not New York’s first foray into
sentencing reform. In 1983, as Congress was
creating the U.S. sentencing commission
(USSC), then-Governor Mario Cuomo
created the New York State Committee
on Sentencing Guidelines. Like the
USSC, the Committee on Sentencing
Guidelines was created in response to
concern that judicial discretion had led to
unwarranted sentencing disparities. Also
like the USSC, the committee’s charge
was to create a determinate sentencing
system akin to what became the federal
Sentencing Guidelines.4
The committee proposed such a system
on March 29, 1985 in Assembly Bill 7027.5
Mirroring the federal Sentencing Guidelines,
the proposal included a table with crimes
set forth on one side, criminal history on
the other, and a sentencing range for any
given combination in each cell.6 Although
the bill was never enacted, there is little in
the record reflecting why. In a 1994 editorial,
New York Supreme Court Justice Thomas
M. Stark mused that it was “put on a shelf
and forgotten.”7 In response to a reporter’s
question about it, Governor Cuomo once
quipped that it “was a fine effort which
was not enacted because of conflicting
political winds.”8
A Different Approach
The new commission differs markedly
from its predecessor and, in at least two
respects, from its federal counterpart.
First, it differs in composition. The USSC
is comprised of seven voting members,
up to three of whom can be judges and no
more than four of whom can come from
the same party. They are appointed by the
president with the advice and consent of
the Senate.9 As a result, the executive holds
the lion’s share of power over the USSC’s
composition. The newly formed Commission
on Sentencing Reform, in contrast, effectively
splits the appointment power between the
executive and the Legislature. In addition,
monday, may 7, 2007
New York Law Journal
unlike the USSC, each of the participants
in the system—judges, prosecutors, and
defense attorneys—is guaranteed at least
one voice.
The other, perhaps more significant,
distinction is in the commission’s charge.
The Sentencing Reform Act of 1984
directed the USSC to create and maintain
a determinate sentencing system with the
now-familiar Sentencing Guidelines as its
centerpiece. The Commission on Sentencing
Reform, on the other hand, does not appear
to have been developed with any particular
system in mind. Rather, it has been given
the open-ended charge of recommending
legislative fixes that include alternatives
to incarceration and take into account
the fiscal impact of the prison system. It
appears that, beyond simple uniformity,
the commission’s aim is to reduce prison
populations while still maintaining
public safety and the traditional goals of
criminal punishment.
A State of Transition
The distinction between the bodies’
duties reflects the context in which these
two bodies developed. In 1983, as the USSC
and the Committee on Sentencing Guidelines
were coming into existence, New York, like
much of the nation, was in the throes of
a crime wave.10 According to the Federal
Bureau of Investigation, in 1983 there
were 5.9 reported incidents of crime per
100 residents in New York.11 Given that an
“incident” is defined as murder, non-negligent
manslaughter, forcible rape, robbery,
aggravated assault, burglary, larceny, or
motor vehicle theft, that is a frightening
statistic.12 It was not long before there
were demands for increased punishment
and mandatory minimum sentences.
At the same time as New York was
struggling with its crime rate, the criminal
justice community was locked in debate
over the causes and remedies for disparities
in sentencing. While there was disagreement
over both the extent and causes of
sentencing disparity, a consensus had
arisen that disparities did exist and that they
contributed to an appearance of unfairness
in the criminal justice system.13
The concern over disparity led to the
enactment of the Sentencing Reform
Act of 1984 and the creation of both the
USSC and the New York State Committee
on Sentencing Guidelines. Both bodies
proposed to reduce disparity by enacting
a system of determinate sentencing where
judges were granted a narrow range from
which to choose a sentence, based on a
defendant’s offense and criminal history.
Although New York did not adopt the
proposed sentencing scheme, it has since
developed its own complex web of “definite”
and “indeterminate” sentences where,
depending on the charged offense, the judge
is limited to sentencing within set maximum
and minimum terms.14
These schemes did not come without a
cost. The prison population in the federal
system has increased nearly 700 percent
over the past 25 years.15 The Bureau of
Prisons attributes that rise largely to the
Sentencing Guidelines and mandatory
minimum laws enacted in the late 1980s
and early 1990s.16 New York has seen a
similar rise, with prison populations soaring
more than 300 percent over the past 25
years. In 1980, the state prison population
was 21,815. 17 By 1983 it had reached
30,489.18 Today it stands at approximately
66,000 prisoners.19
While housing an ever-increasing
population of prisoners is expensive, it
was a cost that, at the time, the state was
willing to bear. As former Mayor Edward I.
Koch stated in 1985, “The two top priorities
for us are education and law enforcement.
If I had to deal with only one, if I had to
make a choice, it would be to punish
the criminals.”20
By 2004, however, New York’s crime rate
had dropped 56 percent, to 2.6 incidents
per 100 residents.21 At the same time, the
prison system was having an increasing
impact on the state budget. While the federal
government can easily absorb the cost of its
prisons—the Bureau of Prisons’ budget, at
$5.9 billion, is only 0.2 percent of the federal
budget overall22—New York cannot. New
York’s correctional services cost $2.5 billion a
year to run and, at 14.3 percent of the state’s
operational expenditures, are behind only the
SUNY system and the Department of Mental
Hygiene in state spending.23
A New Path
Combined with a separate proposed
program to consolidate and close state
prisons, cost may have been a motivating
factor behind the creation of the new
commission. With the political freedom to
experiment that comes with lower crime
rates, Governor Spitzer appears to be seizing
the opportunity to explore ways to reduce
crime and improve the state budget at the
same time. Although not abandoning the
goal of limiting sentencing disparity, he
has effectively charged his new committee
with the difficult task of finding ways to
reduce crime and dampen recidivism
while still protecting the community at
reduced costs.
By focusing on alternatives to
incarceration, the commission has an
opportunity to achieve this goal. In a sense,
Governor Spitzer’s answer to Mayor Koch
is that the state may not need to choose
between education and incarceration.
Through re-entry programs, education
programs and alternatives to sentencing—
such as the Drug and Community
Court systems—the state may be able
to reduce crime while simultaneously
reducing incarceration.
This approach has placed New York on
a new path of sentencing reform. It is one
that, we hope, leads to that elusive balance
between the victims’ and community’s
need for punishment and the state’s need
to reduce crime in a fair, effective and
affordable way.
••••••••••••••••
•••••••••••••
1. See, e.g., Apprendi v. New Jersey, 530 US 466 (2000);
United States v. Booker, 543 US 220 (2005); Claiborne v.
United States, 127 SCt 551 (2006); Rita v. United States,
127 SCt 551 (2006).
2. See Executive Order No. 10: Establishing the
New York State Commission on Sentencing Reform,
available at, http://www.ny.gov/governor/executive_
orders/exeorders/10.html.
3. See “Governor Spitzer Announces Appointments
to the State Commission on Sentencing Reform,”
available
at,
http://www.ny.gov/governor/
press/0420073_print.html.
4. See Edward A. Gargan, “System of Fixed Sentences
Proposed,” N.Y. TIMES, Jan. 15, 1985 at B3.
5. See Thomas M. Stark, “Guidelines for Sentencing,”
N.Y. NEWSDAY, Oct. 25, 1994 at A35.
6. A. 7027 §63.05 (1985).
7. See Stark, supra note 5.
8. Id.
9. See 28 USC §991 (2007).
10. See U.S. Census Bureau, 108 STATISTICAL
ABSTRACT OF THE UNITED STATES 158, Table 263
(1988) (despite a slight decline in the national crime
rate from 1982-1984, the number of offenses reported
in the United States increased 20.3 percent from 19771986).
11. U.S. Census Bureau, 105 STATISTICAL ABSTRACT
OF THE UNITED STATES 167, Table 277 (1985).
12. Id. at 163.
13. See, e.g., MARVIN E. FRANKEL, “CRIMINAL
SENTENCES: LAW WITHOUT ORDER” (1973)
(describing the devolution of discretionary sentencing
into disparate sentences for similar conduct); Kevin
Clancy et al., “Sentence Decisionmaking: The Logic
of Sentence Decisions and the Extent and Sources of
Sentence Disparity,” 72 J. CRIM. L. & CRIMINOLOGY
524, 525-26 (1981) (recounting the debate surrounding
sentencing disparities in the federal system).
14. See N.Y. PENAL L. §55.00 et seq. (2007).
15. See U.S. Dept. of Justice, Federal Prison System
Fiscal Year 2008 Performance Budget at 2, available at,
http://www.usdoj.gov/jmd/2008justification/office/38_
01_justification.doc.
16. Id.
17. United States Census Bureau, 105 STATISTICAL
ABSTRACT OF THE UNITED STATES 184, Table 317
(1985).
18. Id.
19. New York State Division of the Budget, 2006-2007
Year-End Financial Plan Report at 24 (April 19, 2007)
available at http://www.budget.state.ny.us/pubs/
enacted/financialPlan/Year-EndReport0607.pdf.
20. Josh Barbanel, “Koch Recommends Stiffer
Penalties and More Prisons,” N.Y. TIMES, Feb. 15, 1985
at A1.
21. United States Census Bureau, 126 STATISTICAL
ABSTRACT OF THE UNITED STATES 192, Table 297
(2007) available at http://www.census.gov/prod/www/
statistical-abstract.html.
22. See id. at 309, Table 462.
23. New York State Division of the Budget, 2006-2007
Year-End Financial Plan Report at 71 (April 19, 2007)
available at http://www.budget.state.ny.us/pubs/
enacted/financialPlan/Year-EndReport0607.pdf.
Reprinted with permission from the May 7, 2007 edition of
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