Rise In Violent Crime Could Slow Resentencing Momentum

Growing up in a “slum” in Brooklyn’s Bedford-Stuyvesant neighborhood in the 1970s, Marvin Mayfield’s first contact with the justice system came as a teenager in 1979, after he trashed the security guard’s office at the high school he attended. He pled guilty to a felony burglary charge and received three years of probation as a first-time offender.

A few years later, Mayfield was arrested again and charged with another burglary, one he says he didn’t commit. During the 11 months he spent locked up in New York City’s jail at Rikers Island, where he said he was assaulted, he continued to profess his innocence. But he was afraid to go to trial. As a second-time felony offender, he would face a mandatory minimum sentence of five years, Mayfield told Law360.

He ended up pleading guilty again, but was able to go home by accepting a time-served sentence.

“I didn’t want to roll the dice,” Mayfield said. “I had seen far too many people who had played that game and lost.”

Mandatory minimum sentences give prosecutors outsized leverage in controlling the pretrial stage of criminal cases, legal experts say.

About 98% of felony convictions and more than 99% of misdemeanor convictions in New York come from pleas, according to the most recent data collected by the New York State Division of Criminal Justice Services.

Between 2010 and 2019, felony and misdemeanor convictions in the state fell 25% and 42%, respectively, before dropping sharply in 2020 due to pandemic lockdowns, but the percentages of trial and pleas remained largely unchanged, according to data obtained and analyzed by Law360. State figures match the national trend.

New York criminal justice advocates are now pushing for eliminating mandatory minimum sentences, and other changes that would allow state prisoners who show they are rehabilitating to have their prison time reduced.

Three bills introduced in the state Senate in January — the Eliminate Mandatory Minimums Act, the Second Look Act and the Earned Time Act — all share the same objective: reducing mass incarceration, which Black and Latino Americans experience at a heavily disproportional rate, advocates say.

“From the 1970s Rockefeller drug laws to the 1990s tough-on-crime era, New York has built a sentencing regime that funnels hundreds of thousands of people into cages,” Mayfield, now an activist with Center for Community Alternatives, said at a press conference last month. “These laws exacerbated the mass criminalization and mass incarceration of Black and brown New Yorkers.”

In addition to eliminating mandatory minimum sentences for all prison, jail and probationary sentences, including for repeated offenders, the Eliminate Mandatory Minimums Act would allow judges to consider mitigating circumstances and impose sentences that are currently taken off the table when prosecutors hit defendants with certain charges.

Currently, charging a defendant with a violent felony automatically triggers a mandatory minimum prison sentence. A judge has no choice but to impose it. By eliminating this requirement, the bill would allow judges to choose more lenient sentences, either less prison or jail time or alternatives to incarceration.

The Second Look Act would allow state prisoners to ask courts for a resentencing hearing after having served 10 years, or half of their sentence if the sentence is more than a decade long. The bill also creates a presumption of resentencing for people who will be 55 years old at the time of the resentencing hearing or who were under 25 years old at the time of their offenses.

The Earned Time Act would allow all incarcerated people ​to earn merit time and a chance to leave prison sooner. ​Currently, only people convicted of drug charges are able to earn merit time. The bill also allows state prisoners to reduce their sentences up to 50% for good behavior and up to 25% by participating in rehabilitative activities.

Sen. Zellnor Myrie, who introduced the Eliminate Mandatory Minimums Act, said it aims to reverse some effects that the war on drugs and mass incarceration has had on communities.

“We have grown to see that harsh sentencing is not the remedy we thought it would be. In fact, it has had the opposite effect,” Myrie told Law360. “This bill is born out of that history, the history of mass incarceration.”

Myrie said some judges in New York have expressed frustration at mandatory minimums, because they effectively tie their hands when they sentence defendants convicted of violent felonies.

Tess Cohen, a criminal defense attorney at ZMO Law PLLC and former prosecutor who chairs the New York City Bar Association‘s criminal justice operations committee, told Law360 the bills are based on extensive research showing that incarceration doesn’t rehabilitate people.

“These reforms are really about restoring discretion back to judges, and restoring discretion in a way that reflects what we’ve come to learn about when people commit crimes, why they commit crimes and how we can prevent them from committing crimes in the future,” Cohen said.

Lucian Chalfen, a spokesman for the New York State Unified Court System, told Law360 that the judiciary is currently reviewing the legislation but didn’t comment further.

How Mandatory Minimums Drive Trial Penalties

When George Mims, who is Black, found himself accused of two 1997 armed robberies that occurred minutes after each other in the Bronx, he was given a choice: either plead guilty and spend 15 years in state prison, or go to trial and risk a harsher sentence.

Mims, who said he was innocent and had an alibi, chose the latter.

Throughout the trial, Mims, who faced a mandatory minimum sentence of 15 to 20 years, insisted he had nothing to do with the crime. Five minutes before the jury returned a verdict, a judge offered him a 10-year sentence in exchange for his plea. Mims turned him down. The jury convicted him. At sentencing, the judge appeared “mad” at Mims, his post-conviction lawyer, Adele Bernhard, told Law360.

The judge gave Mims two consecutive 20-year sentences, one for each robbery charge.

“It really is terrible. I don’t know any other examples of someone serving 40 years for a crime where no one was hurt,” Bernhard said. After many years, she still believes Mims is innocent.

Mims, who has already spent 24 years in prison and exhausted all his appeals, filed a petition for clemency in 2020 that is now pending before Gov. Kathy Hochul.

“I remain relentless until exoneration and my name are aligned,” Mims told Law360 in a letter from prison.

Mims’ case showcases how the threat of long prison sentences can coerce other defendants into guilty pleas rather than going to trial, a phenomenon known as trial penalty that critics say fuels mass incarceration.

“If you charge somebody with a crime that carries a mandatory minimum, that gives prosecutors enormous leverage to extract a plea, rather than take a case to trial,” said Alissa Marque Heydari, the deputy director for the Institute for Innovation in Prosecution at John Jay College of Criminal Justice.

According to data kept by the New York State Department of Corrections and Community Supervision and updated in November, there are more than 31,500 people serving time in New York state prisons. About 49% of them are Black, and nearly 24% are Latino.

Combined, Black and Latino inmates represent three-fourths of the entire state prison population, while making up about 35% of the state population. In comparison, non-Hispanic white inmates represent 24% of the incarcerated population while making up 55% of the population.

New York’s prison population has declined steadily over the past decade. According to DOCCS data obtained by Law360, the prison population dropped 44% from 54,864 in 2012 to 30,724 in 2021.

Meanwhile, the average prison stay has increased from 28 months in 1990 to 55 months in 2019, according to department data obtained by the Communities Not Cages campaign, a coalition of public defenders, civil rights organizations and social justice groups advocating for the sentencing reform bills.

It costs about $70,000 a year to keep a person incarcerated in New York, and about $83,000 in California, advocates say.

Nazgol Ghandnoosh, a senior analyst at The Sentencing Project, said research has shown that incarcerating people for long sentences is not effective for ensuring public safety.

A 2013 study by Daniel S. Nagin, a criminologist and professor at Carnegie Mellon University’s Heinz College, concluded that mandatory minimum sentences were unlikely to have a material deterrent effect.

“Lengthy prison sentences and mandatory minimum sentencing cannot be justified on deterrence,” the study said. Other studies have had similar results.

For example, a 2016 study found that longer sentences resulted in higher recidivism rates in Michigan, Missouri, New York and Utah.

“Criminologists are clear. There’s a consensus that long sentences are not an effective deterrent,” Ghandnoosh told Law360

There is also a pragmatic aspect to incarceration that advocates and lawmakers are considering: keeping people in prison is costly.

“Tying up resources in these ineffective approaches means that we have less money to invest in policies and approaches that we know are helpful to prevent crime from happening in the first place,” Ghandnoosh said. “That’s where the financial issue comes in.”

Second Look Bills Gain Traction Nationally

New York has been a leader in criminal justice reform since enacting new bail and discovery laws in 2019, spurring a national movement that seeks to reduce incarceration by pushing for changes to sentencing laws, Heydari said.

In the years since, several states have introduced “second look” bills that require a prosecutor to make the first step in the resentencing process of a defendant by filing a petition with the court that imposed the sentence.

“I think their goal is to reduce racial disparities and to reduce incarceration. Mandatory minimums have fueled both. That’s just what the research bears out,” Heydari said.

California was the first state to enact this type of bill in 2018. In 2020, Washington state passed a similar bill, and Oregon and Illinois followed suit in 2021.

Hillary Blout, a former prosecutor in the office of then-San Francisco District Attorney Kamala Harris who started the campaign that advocated for those bills, told Law360 she wanted to design a way for prosecutors to play a role in reducing incarceration.

“The system is designed in a very specific way. It’s designed to get people in, and it makes it almost impossible to get people out,” Blout said. “We can get prosecutors to be part of the solution.”

The resentencing process involves costs. District attorneys need to allocate attorneys to file petitions and supporting documents with courts. So far, only nine counties in California have been funded through legislation to actively utilize the resentencing process the state enacted.

The campaign Blout leads, dubbed For The People, estimated that second look legislation enacted in California could, with proper funding and the participation of all prosecutorial offices, lead to the release of about 26,000 people in that state alone. Since the law went into effect in 2019, more than 100 people have been released from prison at the direction of a prosecutor under the law, Blout said.

“What’s important is that people understand that this process is done in a very careful way and there’s a lot of checks and balances included in it,” she said. “The central question is always about public safety.”

The bill introduced in New York, however, is different. Prisoners can directly petition courts for a resentencing hearing, and there is no need for prosecutors to consent. Judges are required to consider “any presentation of argument and evidence” by prosecutors.

That model isn’t new. In January 2021, the District of Columbia enacted a bill that allows people to petition courts for a resentencing if they’ve served 15 years and were under the age of 25 at the time of their offenses. Last June, Louisiana enacted a law allowing parole consideration for people who have served at least 15 years of a life sentence for a three-strikes offense.

Other second look bills recently introduced in Maryland, California, Virginia, South Carolina, Washington and Oklahoma are also petitioner-led, though eligibility varies significantly.

A federal petitioner-led Second Look Act bill was introduced in 2019 by Sen. Cory Booker, D-N.J., and Rep. Karen Bass, D-Calif., but was never brought to a vote.

Rise In Crime Could Slow Reforms

A rise in violent crime, in particular gun violence, both in New York and nationally, could hinder momentum on reforms, lawmakers and legal experts acknowledged.

Violent crime has risen 5.6% from 2019 to 2020, according to FBI data. The same data show that, during the same period, murders have risen 29% nationally. Across New York state, murders rose 47%. In New York City, they rose nearly 57%.

Although there is no established correlation between recent criminal justice reforms across the country and the rise in violent crime — which experts have largely attributed to the effects of the pandemic and deteriorating police-community relations following the murder of George Floyd — any perception of deteriorating public safety could make sentencing reforms harder to sell.

Fabien Levy, a spokesman for New York City Mayor Eric Adams, declined to comment on whether the resentencing bills fit within his broader plan to curb the rise in crime, in particular gun violence.

Adams has called for tweaks to the 2019 bail law to give judges back the power to set bail or remand defendants when they see a risk. Police unions and lawmakers, including some Democrats, have made similar demands. Adams also urged lawmakers to consider making changes to the Raise the Age legislation that increased the age of criminal responsibility from 16 to 18, citing higher numbers of children caught with guns.

To underscore the importance of public safety in the national dialogue, President Joe Biden visited the New York Police Department headquarters in Lower Manhattan earlier this month following the killing of two police officers on duty.

“There’s no doubt that discussions around criminal legal reform are much more heated now, in the midst of a rise in gun violence than they have been in the past,” said Myrie, the New York state senator who introduced the Eliminate Mandatory Minimums Act.

Myrie noted that several of the lawmakers who advocate for justice reforms represent some of the areas that have seen the steepest rise in shootings and murders. What he hears from his constituents is twofold, he said.

“One is, ‘We are afraid.’ There is a feeling of anxiety regardless of what the statistics say,” Myrie said, “But the second thing is, ‘We want real solutions to this, not just temporary solutions.’ And that requires a complex and nuanced conversation that doesn’t lend itself to 180 characters on Twitter, or to a sound bite on the evening news.”

According to a poll conducted last week by Siena College Research Institute sampling 803 registered voters, 60% of New Yorkers think crime is a “very serious” problem and 31% say it’s “somewhat serious.” There were only minimal variations in responses between voters across different areas of the state, incomes and races.

Republican voters sounded most alarmed by the rise in crime: 76% of GOP voters surveyed said they were very concerned with crime, compared to 53% of Democrats.

The three New York Senate bills, which have also been introduced in the state Assembly, are currently backed only by Democrats, mostly from urban districts. Democrats control New York’s Legislature. Several Democratic senators, including Majority Leader Andrea Stewart-Cousins, did not respond to requests for comments on the bills.

Voicing their opposition to the legislation in emails to Law360, Republicans largely blamed recent criminal justice reforms for the rise in violence.

Sen. George M. Borrello, who represents a district in Western New York, said that the bills “would weaken the ability of our courts to put dangerous people behind bars and keep them there for any meaningful length of time.”

A spokesperson for Sen. Mike Martucci, who represents a rural swath of central New York, called the bills “yet another effort by the extreme left to decriminalize and destigmatize criminal behavior and incarceration.”

Sen. Alexis Weik of Long Island said the bills’ sponsors “are ignoring the growing lawlessness, violence” that she said were caused by recent criminal justice reforms.

“Reducing penalties, springing open prison doors, and providing unlimited second chances doesn’t make our criminal justice system more fair, and it certainly doesn’t make our communities more safe,” she said.

The Senate minority whip, Patrick M. Gallivan, struck a more moderate tone.

“As we consider opportunities to reduce New York’s incarceration rate and reform our criminal justice system, we must also ensure the rights of crime victims and law-abiding citizens are protected,” he said. “We should not sidestep our existing process which allows the Board of Parole to determine when an individual deserves to be released from prison based on certain criteria. Mandatory sentences, meanwhile, can serve as a deterrent to crime and help ensure uniformity in sentencing.”

It’s still unclear how much support the bills have among prosecutors in New York. The District Attorneys Association of the State of New York told Law360 through a spokesperson that it has not yet taken a position on the proposals.

Emily Tuttle, a spokesperson for Manhattan District Attorney Alvin Bragg, a Democrat, said in an email that he is studying the sentencing reform bills.

“DA Bragg supports eliminating mandatory minimum sentences, and creating mechanisms to allow second looks at excessive sentences. We are reviewing multiple relevant bills,” Tuttle said.

The office of Brooklyn District Attorney Eric Gonzalez, a Democrat, is also currently reviewing the bills, said Oren Yaniv, a spokesperson for the office.

Gonzalez, one of the leading progressive prosecutors in the country, drafted a second look bill that would allow prosecutors to file motions for resentencing prisoners who have spent at least 20 years for class A felonies, or at least 15 years for all other offenses.

Myrie introduced that bill in 2019, but the legislation stalled at the committee level. He reintroduced a newer version of the bill in January, two weeks before the petitioner-led proposal was filed by state Sen. Julia Salazar.

Suffolk County District Attorney Ray Tierney, a Republican, told Law360 in an email that the Second Look Act and the Eliminate Mandatory Minimums Act ignores victims of crimes and said “it takes us further in the wrong direction.”

“The Second Look Act, as presently drafted, would suppress crime victims and witnesses, overrule thousands of prior judicial decisions and create two additional avenues of appellate litigation for convicted violent felons,” Tierney said. “Similarly, the Eliminate Mandatory Minimums Act, as presently drafted, weakens procedural safeguards already in place and replaces them with a system that opens pathways for greater implicit bias and regional disparity in sentencing.”

He added, “I welcome any opportunity to contribute to this important dialogue.”

Other prosecutorial offices in New York City and around the state declined to comment on the bills.

Heydari, of the Institute for Innovation in Prosecution, said the opposition to the sentencing bills in New York is a reaction to reforms, such as the one on bail, that haven’t had a chance to play out.

“I think those who oppose criminal justice reform have been waiting for this moment to use it as an opportunity to roll back these new laws,” she said.

Cohen, of ZMO Law PLLC, clarified that the bills would still allow judges to impose jail or prison sentences and won’t preclude parole boards from refusing to release inmates before the end of their sentences when there are public safety concerns.

“I do think it’s politically a more difficult moment than it was even a few years ago to try and make these kinds of reforms,” Cohen said. “That said, it’s certainly still possible, especially with messaging that makes it very clear that these kinds of reforms, if anything, can actually help prevent crime and violence in the future, or at least will have a neutral effect on it.”

–Editing by Nicole Bleier. Graphics by Jonathan Hayter, Chris Yates and Ben Jay.

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