A recent report shining a light on excessive felony prison sentences handed down by more than 140 trial judges in New York over a 16-year period has experts and advocacy groups calling for increased transparency to help ensure that courts are imposing fair penalties on criminal defendants in the Empire State.

The study by judicial accountability nonprofit Scrutinize, in partnership with the New York University School of Law's Center on Race, Inequality, and the Law, found that at least 140 trial judges in the state imposed prison sentences that were later deemed excessive on intermediary criminal appeal.

Of those, 65 judges saw sentencing decisions overturned on more than one occasion. The 12 judges with five or more excessive sentence findings, meanwhile, had their sentences reduced by a total of 1,246 years.

The organizations urged the state judiciary to release sentencing data for individual judges that are currently not public, information they said could reveal patterns of oversentencing, and to publish an annual report summarizing excessive sentence findings to keep track of those trends.

It's a call that other criminal justice reform groups are picking up as well in the wake of the report's release.

"It appears as though some of the judges have this lock-down mentality in which they have become desensitized," Michael P. Heiskell, the president of the National Association of Criminal Defense Lawyers, told Law360. "I hope that this report exposes this issue to the public in general, and to our legislative body."

Heiskell called the study "long overdue" and said it reflects patterns of oversentencing across the country, which he said was a national issue.

"The gavel of justice should tap in a very measured manner, and not become a bludgeon," he said.

According to the study, which looked at cases originating from the five counties of New York City and Nassau, Suffolk, Westchester, Orange, Rockland, Dutchess, and Putnam counties, two judges, Edward J. McLaughlin and Vincent Del Giudice, had a total of 39 excessive sentence findings combined, with the appellate court cutting a total of 684.5 years from the sentences they imposed. Justice McLaughlin, who presided over criminal matters in Manhattan, is now retired. Justice Del Giudice still hears criminal cases in Brooklyn.

"Our findings constitute a data-driven metric for identifying which judges have exercised their discretion in an extremely punitive manner — so much so that multiple appellate judges felt compelled to intervene and override them," the report said.

Al Baker, a spokesperson for the New York State Office of Court Administration said in an email that court leaders "will carefully review the report." The chambers for several active judges named in the report declined to comment. The District Attorneys Association of the State of New York also declined to comment.

The report is a first-ever effort nationwide to code appellate decisions to shine a light on the practice of judges who stand out for imposing harsher-than-average prison sentences, Jason Williamson, the executive director of NYU Law's Center on Race, Inequality, and the Law, told Law360.

Spending time in prison exerts a significant physical and mental health toll on people, let alone an excessive amount of time, Williamson said, and the cost to taxpayers of keeping people locked up is well documented and "not worth it."

"There's real harm that comes along with excessive sentencing, and not just the harm to the person who is serving a lot of time," he said. "It has a detrimental effect on communities who are losing people for extended amounts of time, people who could be contributing to the local economy, people who could be contributing to their family."

In a majority of states, including New York, judges are not appointed for life but are rather chosen by executive officials, elected by voters, or both. For those who do have to face the electorate, Heiskell said that imposing harsh sentences can help judges burnish the type of tough-on-crime reputation they hope will keep them on the bench.

But the study's findings also offer an insight into the mind of judges who might have grown aloof from considering the real-life consequences of sentencing people to long terms in prison, Heiskell said.

Kara Gotschm, a national expert on sentencing reform with The Sentencing Project, a nonprofit advocating for decarceration, said her organization's research has documented a trend that's seen a growing number of people serving extreme sentences — specifically life with parole, life without parole, and prisons terms lengthy enough to ensure that a defendant dies behind bars — over the last two decades.

"This national trend has persisted despite overwhelming evidence that decadeslong sentences have diminishing returns on public safety because most individuals, including people who commit violent offenses, eventually age out of crime and can safely return home," Gotschm said. "Judges should account for the burden of long-term incarceration on prison systems, taxpayers, and the families and communities experiencing the loss of a loved one's absence."

To identify excessive sentencing practices, the researchers behind the New York study used software to code appeals court decisions overruling prison sentences and to extract certain information including judges' names. It's an approach the study's authors say makes it replicable elsewhere in the country.

"Court systems are usually not very transparent. There is not a lot of public data out there. One thing that is almost always out there is the appellate decisions," Oded Oren, the founder and executive director of Scrutinize, told Law360. "You don't really have to read them one by one. You can create algorithms to start mining and quantifying information there. And I think that's really the big innovation here."

But while this provides a window into some of the harshest sentencing decisions, looking at appellate court decisions is also limiting, experts say.

According to the report, between 2014 and 2022, an average of 19,930 felony cases each year ended with a conviction after a guilty plea or a jury trial verdict. In 2022, felony dispositions were nearly 15,800, but there were only about 1,100 appeals filed.

And, as acknowledged by the report's authors themselves, only a fraction — about 4% — of felony sentences are reduced for excessiveness on appeal.

That means that looking at overruled sentences provides an incomplete picture of judges' carceral attitudes.

"That's one of our limitations," Williamson said. "We don't have the full data, much of which is not even available to the public, at this point. It's hard to get a full picture of what's happening."

For instance, in 2022, there were 375 felony trial convictions in trial courts that fall under the New York Supreme Court's first and second appellate departments, which include the most populated areas of the state. Only 11 of those convictions were deemed excessive on appeal.

Tess Cohen, a criminal defense and civil rights attorney at ZMO Law PLLC who chairs the New York City Bar's mass incarceration task force, said the report doesn't capture potentially excessive sentences handed down by judges in cases involving defendants convicted of lower-level felonies and misdemeanors, where there is often not enough time for them to go through the appeals process before a person's sentence has ended.

"This report is very powerful by putting numbers to something that practitioners know," Cohen said. "Obviously, what you're seeing here is the most extreme cases, not the judges who go a year or two higher on low-level cases with regularity.

The report also doesn't capture cases — presumably the vast majority — where defendants end up pleading guilty, but for which the presence of an overly carceral judge can still result in longer sentences, Cohen said.

"If you're in front of a judge who is known to hand down harsh sentences post-trial ... you're going to see excessive sentences that aren't going to be reflected in this report," she said.

Marta Nelson, the director of sentencing reform at the nonprofit Vera Institute of Justice who reviewed a draft of the NYU-Scrutinize report last summer questioned whether calling out judges by name for their excessive sentences could backfire — and strengthen their prospects of retaining office.

"We know that, in politics, being tough on crime is a selling point, certainly for Republicans, and even for a number of Democrats," Nelson said. "It may turn judicial elections, which right now are just sort of under the radar ... into [something] like a race for a [district attorney]."

She added, "I would rather see judges continue to keep their heads down [and] follow the law, as opposed to turning the very rare instance in which they are overturned into sort of a cause célèbre, because it could go the wrong way."

Nelson said the underlying problem of excessive sentencing can be addressed only by either having state judiciaries adopt sentencing guidelines, which most states including New York haven't done, or by legislative action reviewing the sentencing structure itself.

But adopting sentencing guidelines in and of itself is not a guarantee of curbing excessiveness, Nelson said, although some states that have done so have shown positive results. Minnesota, which in 1980 became the first state to adopt sentencing guidelines that are set and regulated by a sentencing commission, is often mentioned as an example of a jurisdiction that has been able to maintain levels of incarceration stable through the years and to keep sentencing disparities in check.

However, sentencing guidelines and commissions are not necessarily a guarantee against excessive prison sentences. Those that have been in place at the federal level since 1984, for instance, have been challenged as too harsh. In 2005, the U.S. Supreme Court ruled in United States v. Booker that only facts proved to a jury beyond reasonable doubt can be considered to enhance a criminal defendant's sentence, and therefore struck down a provision in federal law that made the sentencing guidelines mandatory.

"The sentencing guidelines in the federal system are seen as extremely draconian, and it was considered a great thing when they became advisory instead of mandatory," Nelson said.

Absent sentencing guidelines, state legislatures could also take action to set or change laws detailing the amount of prison time on the table for individual crimes. In New York, where sentencing structures haven't been overhauled in decades, that might be politically difficult in a moment where a large swath of the constituency has shown concerns over public safety, Nelson said.

"We are still living under these excessive sentences that we've put into place in the '80s and the '90s, particularly for people convicted of violent felonies, and for sort of repeat offenses," she said. "There's been no attempt to sort of look at how well that system is working for New Yorkers."

--Editing by Jay Jackson Jr.

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