Makes certain offenders convicted of certain homicide, hate, terrorism and major drug trafficking crimes ineligible for merit, presumptive release and limited credit time

Summary of Provisions:

Section one of the bill would amend Correction Law § 803(1)(d) to add as excludable crimes for the merit time program all homicides, hate crimes, terrorism and operating as a major trafficker, and also would make technical corrections to the existing statutory references to the crimes of incest and aggravated harassment of an employee by an inmate.

Section two of the bill would amend Correction Law § 803-b(1)(a) to add as excludable crimes for the limited credit time program operating as a major trafficker, aggravated harassment of an employee by and inmate, all incest offenses, hate crimes and terrorism.

Section three of the bill would amend Correction Law § 806(1)(i) to expand the list of excludable crimes for the presumptive release program to include all homicide offenses and to add aggravated harassment of an employee by an inmate, hate crimes and terrorism, and would also make a technical correction to the existing reference to incest.

Section four of the bill provides the effective date.

Existing Law: The merit time program allows inmates, who meet the criteria, to reduce their minimum period by one-sixth in the case of an indeterminate sentence, and to reduce the term by one-seventh in the case of a determinate sentence. An inmate is ineligible for this program if he or she is serving an indeterminate sentence for a non-drug class A-I felony, or any sentence for a violent felony, certain homicide offenses, incest, a crime involving the use of a child in a sexual performance or aggravated harassment of an employee by an inmate.

The Limited Credit Time Allowance (LCTA) program allows eligible inmates to receive a six-month sentence reduction. In general, this applies to the class of inmates who are not eligible for merit time, except that, an individual under sentence for first-degree murder, a sex offense or an attempt or conspiracy to commit such an offense is ineligible for the LCTA.

The presumptive release program for non-violent inmates allows qualified inmates serving indeterminate sentences to be released without an appearance before the Board of Parole. An inmate is not eligible if he or she is presently convicted of, or has previously been convicted of, a class A-I felony, a violent felony, certain

delineated homicide offenses, a sex offense, incest or a crime involving the sexual performance of a child.

Prior Legislative History: This is a new bill.

Statement in Support: The amendments proposed in the bill are intended to provide uniformity and consistency in the listing of eligible offenses for these three programs that inure to the benefit of eligible inmates, either by shortening an inmate's period of incarceration or increasing the likelihood of his or her release.

For the merit time program, the law currently lists certain homicide offenses, such as vehicular manslaughter and criminally negligent homicide, as offenses for which an inmate is not eligible for the program. However, when a new offense is added to the Penal Law, it is necessary to amend Correction Law § 803(1)(d) to add that new offense to the list of ineligible offenses, something that is not always done, even when the new crime, such as aggravated vehicular homicide, is of greater severity than crimes on the ineligibility list. To maintain consistency in the law, it is preferable instead to generically refer to all homicide offenses in Article 125 of the Penal law as crimes of exclusion for the merit time program.

This approach was followed in Chapter 56 of the Laws of 2009, when the list of offenses making an inmate ineligible for the Shock Incarceration Program was amended to include all homicide offenses defined in Article 125. This same approach should be followed in defining eligibility for the merit time program.

Similarly, at various times the law has been amended to list specific crimes, such as incest, the use of a child in a sexual performance and aggravated harassment of an employee by an inmate, as ineligible crimes, in addition to the broad categories of all class A-I non-drug felonies and all violent crimes. Consistent with this approach, an individual convicted of a hate crime, terrorism or operating as a major trafficker should likewise be ineligible for merit time.

This same approach should be taken with respect to the limited credit time allowance program established in Correction Law § 803-b. A person who is serving a sentence for a hate crime, terrorism or operating as a major trafficker should likewise be ineligible for the limited credit time allowance, In addition, because incest is now defined in three different degrees, a technical amendment to include all three offenses in the list of eligible offenses is appropriate.

Similar changes should be made to the eligibility criteria for participation in the presumptive release for non-violent inmates program set forth in Correction Law § 806. The only difference is that because inmates convicted of any class A-I felony offense are already ineligible for this program, there is no need to separately identify operating as a major trafficker as a crime of exclusion.

Budget Implications: None.

Effective Date: This bill would take effect 30 days after it becomes a law.