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June 26, 1974

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

Lasker, District Judge.

The opinion of the court was delivered by: LASKER


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. *fn1" 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. *fn2"

 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. *fn3"

 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 That bill has now become law, and Article 75 has been repealed, but prospectively only, so that petitioners' attack on the validity of the statute is not moot as to them.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 complaint *fn4" 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 ...

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