Should Felony Convicts Have Their Non-Waivable Surcharges Deferred?
POST WRITTEN BY: Michael B. Mushlin, Professor of Law at Elisabeth Haub School of Law at Pace University, Scholar, and Renowned Expert on Prisoners’ Rights.
All felony defendants convicted of a felony in New York are assessed a non-waivable $375 surcharge upon conviction. When they are sent to prison their prison accounts are assessed to pay these charges which depletes the meager amounts that inmates are able to earn in prison which otherwise might be used to buy supplies that can ease the burden of incarceration and also to maintain essential contact with their families through phone calls and visits. Theoretically, judges can defer these charges while the defendant is in prison, but the standard for doing so is hard to satisfy and the procedure for doing so has been made so enormously difficult by a recent restrictive decision of the New York State Court of Appeals, People v. Jones, 26 N.Y. 3d 730 (2016), that it almost never happens. Ironically, the law governing these matters involving small sums of money is as complex as the law that controls major securities transaction.
In People v. Tookes, __ N.Y.S. 3d __, 2016 WL 3221208 (Sup. Ct. NY County June 8, 2016), (attached) Judge Daniel Conviser of the New York State Supreme Court sensitively addresses this issue and in his analysis indicates why a legislative fix is needed to address this problem. Judge Conviser in his opinion demonstrates powerfully why something that seems so insignificant to so many is so critical to people in prison. Judge Conviser in the conclusion of this opinion notes that:
[s]entencing for a trial court is not an abstract exercise. A sentence is pronounced on a human being, who, no matter what crime he or she has committed, stands in the well, often in custody, and often with family members close by, who upon a sentence to state prison will suffer a significant punishment … as the one human being who is most directly responsible for sending a fellow human being to be confined in a correctional facility where much of what makes a life worth living is taken, the sentencing court should have the ability to provide the extra soap or deodorant, the postage stamps which might make communicating with family easier or even the extra food which might make prison life more bearable.
Id. at 14. These words demonstrate a humanity and understanding that is rare to find in a judicial opinion. I hope that this decision will lead to change in the law to allow judges in appropriate cases to defer these charges at least during the period of a prisoner’s incarceration. It certainly deserves wide circulation and attention.
The people being assessed these fees are felon’s and committed crimes against society. Then after they are caught they are sent to prison to serve their sentence. During this process the citizens of this country are required to pay the bill for the police, emt’s, prosecutors, judges and then the facility that holds them for their sentence. Prison is not supposed to be a place that is comfortable. These fines may be assessed during their sentence because that’s the only time the government is able to receive the fees. People repeat and end up back in prison at rates in excess of 70%. If the government deferred the payments until after the inmates are released they potential will never receive those fees. Also after these inmates exit prison if they don’t pay that fee they will potentially be inprisoned again and then the deferment would restart. This again puts the citizens holding the bill in circle that potentially wouldn’t end.