United States ex rel. Sero v. Preiser

• Court: U.S. District Court — Southern District of New York
• Writing for the Court: LASKER
• Citation: United States ex rel. Sero v. Preiser, 377 F.Supp. 463 (S.D. N.Y. 1974)
• Decision Date: 26 June 1974
• Docket Number: No. 72 Civ. 778.,72 Civ. 778.
• Parties: UNITED STATES ex rel. Lois SERO et al., Petitioners, v. Peter PREISER, Commissioner of the New York Department of Correctional Services, et al., Respondents.

377 F. Supp. 463

UNITED STATES ex rel. Lois SERO et al., Petitioners, v. Peter PREISER, Commissioner of the New York Department of Correctional Services, et al., Respondents.

No. 72 Civ. 778.

United States District Court, S. D. New York.

June 26, 1974.

Herman Schwartz, Edward I. Koren, New York Civil Liberties Union, National Prison Project—American Civil Liberties Union, Amherst, N. Y., Elizabeth B. DuBois, Legal Action Center of the City of New York, Inc., New York City, for petitioners.

Louis J. Lefkowitz, Atty. Gen. of N. Y., New York City, for respondents; Ralph L. McMurry, Asst. Atty. Gen., of counsel.

MEMORANDUM

LASKER, District Judge.

The continuous procession of motions in this action which challenges the constitutionality of Article 75.00 of the Penal Law of New York is now augmented by petitioners' alternative motions for full or partial summary judgment. The vicissitudes of the case have called upon us before this to write a textbook's worth of opinions on various facets and issues.¹ It is unnecessary at this writing to review the facts, or to redefine the legal parameters of the proceeding, all of which are exhaustively—and somewhat exhaustingly—expounded in the earlier decisions.

Petitioners presently ask us to grant either 1) full summary judgment declaring that Article 75 is unconstitutional as applied or, in the event that application is denied, 2) partial summary judgment ordering that each member of the petitioning class be resentenced at a hearing, augmented by findings as to his or her reformability and, if an Article 75.00 sentence is imposed, a statement of reasons for its imposition.²

The first leg of the motion stands on the claim that the undisputed facts establish that the statute as applied does not afford petitioners the special rehabilitative treatment which is the quid pro quo for the extended term which it authorizes. We have ruled in earlier opinions in this case that if such allegations were proven the statute would indeed be unconstitutional as applied.³

Petitioners' rationale is based on a statement contained in a Memorandum of February 4, 1974, submitted by the New York State Department of Correctional Services in relation to Assembly Bill 9375 providing for the repeal of Article 75. That bill has now become law, and Article 75 has been repealed, but prospectively only, so that petitioners' attack on the validity of the statute is not moot as to them. In its Memorandum, which supported the bill to repeal Article 75, the Department commented:

"This bill is a logical culmination of the restructuring of the State correctional system which was commenced by the legislature in 1970 when it created the Department of Correctional Services and abolished the distinction between reformatories and State prisons.

As provided by the 1970 legislation, Article 4 of the Correction Law mandates that every institution operated by the Department of Correctional Services for the confinement of inmates (except institutions for the mentally ill or mentally defective) shall be a correctional facility maintained for the purpose of providing places of confinement and treatment with the objective of assisting inmates to live as law-abiding citizens. Correctional facilities are classified by functions, such as residential treatment facilities, general confinement facilities and work release facilities. Individuals, regardless of the type of sentence they are serving, are confined in institutions best suited to their needs. For purposes of confinement, treatment, education and vocational training, persons serving reformatory or indeterminate sentences are treated in accordance with rehabilitative goals rather than the type of sentence they are serving. Since reformatories as well as the special purposes they historically served no longer exist, there is no longer a need for reformatory sentences.

Moreover, the sentence is unfair in that it treats young adults (persons 16 to 21) more harshly than adults."

Petitioners argue as to this passage that:

"The Department's admission in the Department's legislative Memorandum accompanying A. 9375 that separate treatment can no longer exist in New York makes it clear that there is no more purpose to the reformatory sentence, no matter where served. It is for this reason that Article 75 has been repealed.

The rationale for this repeal is not limited just to reformatory sentences that are imposed after the effective date of the Act. The rationale is based on a fundamental decision about correctional methods made back in 1970, which `abolished the distinction between state prisons and reformatories.' That decision made it irrational and inappropriate to impose reformatory sentences not only on people sentenced after the enactment of this repeal legislation, but on all sentences imposed and being served after 1970." Memorandum at 2-3.

From this analysis petitioners conclude that the defendants have now admitted away the case, that is, have admitted the key allegation of the complaint⁴ contained in Paragraph 9(a) that the authorization of "one-to four year reformatory sentences for offenders, like petitioners, which would ordinarily result in a one-year maximum (and usually less) for persons over 21 . . . are unconstitutional," because they treat "such persons i. e. petitioners worse that they treat persons over 21 who commit the same offense, for no compelling or even rational basis."

In judging the soundness of this argument, we return to first principles, that is, to the circumstances which we and other courts have found must exist to justify the constitutionality of imposing a substantially longer ("extended") sentence on a young adult offender than on an adult who commits the same crime.

In the earliest of our opinions in the case we wrote:

"The rational basis which sustains the discrimination between `young adults' and adults in the Penal Law is the same as that which underlies the federal statute, namely, the amenability of young offenders to rehabilitation through special treatment." 351 F.Supp. at 528 (footnote omitted).

We then quoted Chief Justice (then Judge) Burger's opinion in Carter v. United States, 113 U.S.App.D.C. 123, 306 F.2d 283, 285 (1962) that "the basic theory of that Act the Federal Youth Corrections Act, the constitutionality of which the parties here agree is premised on the same rationale as New York's statute is rehabilitative and in a sense this rehabilitation may be regarded as comprising the quid pro quo for a longer confinement but under different conditions and terms than a defendant would undergo in an ordinary prison" (Emphasis added).

We did not, in our earlier opinion, dwell on the requirement that, in addition to rehabilitative treatment, a young adult was entitled to be held in custody, as Carter specified, "under different conditions and terms than a defendant would undergo in an ordinary prison," because the issue upon which the parties focused at that opening stage of the litigation was whether petitioners were being accorded rehabilitative treatment at all. The factual context of the case has changed, however, and the question is now squarely presented whether petitioners are entitled, not only to a rehabilitative program, but also to be held in custody "under different conditions and terms than a defendant would undergo in an ordinary prison." The changes in the factual context consist first, of the admissions by respondents⁵ that the conditions under which petitioners are being held are no different from those which the ordinary prisoner undergoes, evidence as to a critical matter which had not been developed at the time of our earlier opinion, and second, of the Commissioner of Corrections' statement in the Memorandum, cited above, supporting Assembly Bill 9375 that "since reformatories, as well as the purposes they historically served no longer exist, there is no longer a need for reformatory sentences" (emphasis added).

We believe that this forceful and unconditional assertion by the highest correctional authority in the state must be regarded as admitting that, in the context of the state's present framework of penal institutions—in which both persons serving reformatory sentences (the petitioner class) and those serving indeterminate sentences (adults) "are treated in accordance with rehabilitative goals rather than the type of sentence they are serving"—there is no longer any justification for imposing a substantially longer sentence on the petitioner class than on adult offenders convicted of committing the same crimes.

It is no answer to say, as respondents assert, that if young adults are more amenable to rehabilitation than adults, the state may impose extended sentences on the former group to assure their rehabilitation. Putting aside that the premise of a young adult's greater susceptibility to rehabilitation is in issue in this case, we find it more reasonable to conclude that if indeed young adults are more amenable to rehabilitation than their elders, the result should be that their sentences—if they vary from that of adults—ought to be shorter (where the programs offered to each class are the same, as they now are in New York) rather than longer. The state's argument that it is justified in holding young adults in custody longer because they are more amenable to rehabilitation than older prisoners is of a piece with that offered and rejected in Gesicki v. Oswald, 336 F.Supp. 371 (S. D.N.Y.1971) (three judge court), aff'd, 406 U.S. 913, 92 S.Ct. 1773, 32 L.Ed.2d 113 (1972). In Gesicki, which held the New York Wayward Minor Act to be void for vagueness, Chief Judge Kaufman disposed of the state's argument that its role as parens patriae justified the statute, observing that:

"This has been the reasoning relied upon by innumerable courts in

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