The revision of Executive Law §259(c) in the new budget legislation this year requires the parole board to establish and apply "risk and needs principles to measure the rehabilitation of persons appearing before the board" and to take into account the likelihood of success should the offender be released. In the past, the board "could" consider those factors; as of today it "must" consider them. The risk assessment tool is under development and is expected to be in use by November.
Advocates welcome the new paradigm and are eagerly awaiting the first batch of parole board determinations based on the revised standards. An article in the New York Law Journal includes the following reactions to the new law:
"This has the potential to really make a difference," said JoAnne Page, president and chief executive officer of The Fortune Society, a social services and advocacy group that promotes successful re-entry from prison.
"Static facts—what a person's record was, the nature of the crime—should not be the only things looked at when someone is appearing before the parole board," she said. "What [the new law] does is require looking at rehabilitation and likelihood of success on release and use of risk guidelines. If this is actually implemented, it will make an enormous difference."
Robert N. Isseks, an attorney in Middletown who has for years pursued a federal class action alleging that the parole board ignores current criteria and effectively acts as a re-sentencing body, said he has doubts.
The parole board routinely states in its determinations that it has considered requisite statutory criteria, and courts generally accept its assurances when inmates challenge a denial of parole release.
"I'd like to be optimistic," Mr. Isseks said. "I hope [the new law] will force them to do what they are supposed to do, but I can't predict. In the hundreds of decisions I have seen, there is plenty of reason to be skeptical."
An annual report issued by what was then the Division of Parole late last year stated that in the 2009-2010 fiscal year, 40 percent of the eligible inmates were released on parole (22 percent at the first opportunity) but only 9 percent of violent felony offenders.
The 2006 federal case filed by Mr. Isseks in the Southern District, Graziano v. Pataki, 7:06-cv-00480, was dismissed last December by Judge Cathy Seibel. Mr. Isseks is appealing and also attempting to reinstate a state court action pending before the Appellate Division, Third Department.
Mr. Isseks said the new requirements may put a heavier burden on the parole board to establish that it has performed more than a cursory review.
"These new guidelines might help the judges make more informed decisions, and give them something more to look at and consider," Mr. Isseks said.
Ms. Page agreed.
"This provides grounds for challenging a parole board hit on the basis of not having looked at evidence of rehabilitation or not having administered a recent risk assessment," she said. "It opens doors, provides a basis from which to challenge [a denial of parole]. It is a step in the right direction, and something that has been needed for many, many years."
Ms. Page said the new criteria may force the parole board to take into consideration that A-1 felons released on parole are at an extremely low risk of re-offending. In fact, state figures show that offenders who serve a sentence for murder are the least likely to commit a felony once they are paroled.
"People change," Ms. Page said. "If there is anything I know from my 22 years heading Fortune, it is that people who have been menaces to the community have the capacity to become good neighbors and make a positive difference in the world. And the people who committed the most horrific crimes and served decades [in prison] are beyond the age when people tend to recidivate."
Full text of report:
Law Requires Board to Assess Rehabilitation in Parole Rulings, by John Caher (New York Law Journal, September 30 2011)