Court finds that the Board had the right to rescind parole in the case of Pablo Costello

The NYS Parole Board's rescission of parole in the case of Pablo Costello has been upheld, in a December 27 court decision:

"It was within the Board's discretion to rescind parole in light of the substantial evidence of significant information not previously known by the Board."

But in disagreeing over whether belatedly submitted victim impact statements constitute new evidence, the judges in this case have highlighted an issue that may have to be reconsidered in the Court of Appeals.

Justice Edward Spain dissented, stating that in his view "... the record does not support the decision of respondent Board of Parole to order a rescission hearing nor does it reflect the presence of substantial evidence justifying the Board's decision to rescind parole."

He also gave the opinion that "Courts should be loathe to condone what could become a trend in the parole process in which certain victim impact statements are held back until after a decision to grant parole is made, forcing the Board to confront unabashed media frenzy, public pressure and familial outrage, and to then entertain newly drafted but belated victim impact statements aimed at undoing considered Board decisions awarding parole. Finally, those who oppose petitioner's parole release openly advocate the recurring position that an inmate convicted for the death of a law enforcement officer — even a nonshooter convicted of felony murder, as here — should never be released on parole. It bears emphasis that this was not and is not the law."

Pablo Costello's parole was revoked by the Board when surviving family members came forward to state their opposition to his release after parole had already been granted. Costello's appeal against this decision was supported by a joint amicus brief submitted by six former parole commissioners, urging the Appellate Division, Third Department, to hold the Board of Parole to a higher standard and prevent it from revoking an inmate's release simply because victims object after parole has been approved.

For further details, see:
Matter of Costello v. New York State Bd. of Parole 2012. NY Slip Op 09116 (Decided 27 December, 2012)
Upstate Panel Finds Board Had Right to Rescind Parole, by John Caher (New York Law Journal, December 28 2012)
Ex-Parole Commissioners Decry Rescission of 'Cop Killer' Release, by John Caher (New York Law Journal, November 26 2012)

Appeals Court to Review Parole Rescission in Abduction Case

The power of the NYS Parole Board to revoke an inmate's release is again under review with the case of Aurelina Leonor, challenging the board of parole's decision to rescind her release after criticism from reports in the New York Post.

Leonor's rescission appeal has parallels with the current appeal and challenge brought by Pablo Costello in a separate case. The parole board rescinded Costello's release decision after complaints that the victim's survivors had not been offered an opportunity to state their views.

In each case, it is argued that there is no materially significant new information to justify the rescission of the release decision.

For a full report of Aurelina Leonor's appeal, see:
Appeals Court to Review Parole Rescission in Abduction Case, by John Caher (New York Law Journal, December 18 2012)

For a report on Pablo Costello's appeal, see:
Ex-Parole Commissioners Decry Rescission of 'Cop Killer' Release, by John Caher (New York Law Journal, November 26 2012)

Update on the Graziano v. Pataki case, December 2012

The following update on the long-running Graziano case, which aimed to restore justice and fairness to the parole hearings of inmates convicted of violent felonies, is given by the Prison Action Network.

'Lawyers who worked pro bono for years on the case have finally conceded defeat. "We were denied en banc review. It seems that we lost this case. We tried and are disappointed in the loss," reported Peter Sell, who with Robert Isseks made up the legal team.'

Building Bridges - December 2012 edition

The December edition of Building Bridges has been issued by the Prison Action Network.

Their brief summary is given below. Please see Building Bridges for full details:

1.  Bring Back the Buses - DOCCS free bus service was created to support rehabilitation by strengthening family ties.

2.  Calendar of Events - for family members and anyone else who wants to get involved in changing the criminal justice system.

3.  "Central Park 5" documentary, now showing at commercial theaters, exposes the corruption that poisons our criminal justice system.

4.  Corey's column describes his struggle to succeed in the face of incomplete freedom.

5.  Educational and vocational programs were the topic at a hearing with the NYS Assembly's Corrections Committee where Glenn Martin shared the testimony of Fortune Society clients.

6.  Fortune in My Eyes describes how the Fortune Society was conceived in the theater.

7.  Getting out and staying out. Parole Board obstacles, community obstacles, and how to help overcome them.

8.  A conversation about the impact of political imprisonment and mass imprisonment on our families and our communities presented by the Sedou Odinga Defense Committee.

9.  Job openings that don't discriminate against people with criminal records.

10.  NYS Parole Reform Campaign. Let’s pass the SAFE Parole Act this year! It will take all of us working very hard. Will you help? Send us your pledge.

11.  Parole News - October releases, updates on recent Judicial and Parole Board hearings and a report on the Amicus Brief filed by five past Parole Commissioners, in which they accuse the Parole Board of caving to outside pressure.

Douglas Thwaites was released in October, on his second appearance before the Parole Board, for deportation. On December 21, 2011, the court granted his Article 78 against the Parole Board. In his decision, Hon. Lawrence H. Ecker, J.S.C. accused the Board of employing past-focused rhetoric, not future-focused risk assessment analysis, thus failing to sustain a rational determination on the inquiry at hand: whether there is a reasonable probability that, if such inmate is released, he will live and remain at liberty without violating the law. The court found the Board's decision denying parole to be arbitrary and capricious, irrational, and improper and annulled the Board's determination, vacated the denial, and directed the board to, within 30 days *, hold a new hearing with a different panel of the Board.  (*The Board did not comply with the 30 day time limit, and waited until October to give Mr. Thwaites another interview.)

12.  Reentry Roundtable's 7th anniversary - join them for lunch and a talk on the importance of effective reentry services, by Rob Carmona.

13.  Senate Shenanigans. No... let's upgrade that to Senate Insanity. Or a trip down the Rabbit hole. This year's NYS legislative practices are anyone's guess. We pray it may be a brand new day that restores justice, but it doesn't look promising.

14.  In Our Name will be presenting a Veteran's Conference in May, focusing on the needs of homeless, substance abusing, and incarcerated veterans. Ed Tick, of Soldier's Heart, will join with other cutting edge professionals to talk about some effective interventions for PTSD.

Ex-Parole Commissioners Decry Rescission of 'Cop Killer' Release

An unprecedented amicus brief has been signed by six former members of the New York State Parole Board, and is accompanied by a petition accusing the New York State Board of Parole of bowing to pressure from the media and the New York City Patrolmen's Benevolent Association (PBA) by rescinding parole for Pablo Costello, who had already been approved for release.

The brief is signed by Robert Dennison, Vernon Manley, Thomas Grant, Barbara Treen, Theodore Kirkland and Edward Hammock. These six former parole commissioners, including two previous chairmen and three parole board members appointed by Governor George Pataki, urge the Appellate Division, Third Department, to hold the Board of Parole to a higher standard and prevent it from revoking an inmate's release simply because victims object after parole has been approved.

At the same time, in a separate case, advocates for Samuel Hamilton are preparing to challenge his repeated denial of parole by the Board, despite his strong support from both the prosecutor who sent him to prison and the state corrections commissioner.

Key points from the amicus brief:
* The Board is aware of how crime affects victims, and it assumes that victims continue to grieve.
* The Board needs clear standards if it is to avoid sitting in judgment of victims' grief.
* The Board cannot treat victims or prisoners fairly in an atmosphere that is easily sensationalized and conducive to improper influence.

For full report, including Pablo Costello's brief, the Board of Parole's reply, and details of Samuel Hamilton's case, see:
Ex-Parole Commissioners Decry Rescission of 'Cop Killer' Release, by John Caher (New York Law Journal, November 26 2012)

Building Bridges - November 2012 edition

The November edition of Building Bridges has been issued by the Prison Action Network.

Their brief summary is given below. Please see Building Bridges for full details:

1.  Education: Invitation to an educational session on the importance of Pell Grant access in prison.

2.  The Campaign to bring back the free prison bus service has a petition for you and your family and friends to sign.

3.  Find out if you are eligible to have your convictions conditionally sealed.

4.  Seven rights are listed in the Safe Community Declaration of 2013 by Corey Parks.

5.  A New York Times editorial says that denying voting rights to people who have paid their debt to society offends the fundamental tenets of democracy.

6.  "Fortune in My Eyes", the memoir of Fortune Society's founder, has been praised by the NY Times as a "profile in courage".

7.  Michelle Alexander comes to Albany, will speak to high school students and law students.

8.  The National Criminal Justice Commission Act would establish an independent national commission to conduct a review of the nation's criminal justice system and recommend consensus-based and cost-effective reforms. The Leadership Conference on Civil and Human Rights asks that you sign on to support S.306, the National Criminal Justice Commission Act, which would establish an independent national commission to conduct a review of the nation's criminal justice system and recommend consensus-based and cost-effective reforms.

9.  Open letter to the President lists actions we would like him to take in the next four years, including ending the use of solitary confinement. We want a safer and more peaceful country, where freedom and justice are primary values.

10.  Parole News: September release statistics and the challenges of appointing appropriately qualified Parole Commissioners.

11.  Prisoners Are People Too! - their October meeting was cancelled due to Super Storm Sandy.  Rescheduled for 11/26.

12.  Prisoners Make Us Look Good - NY Times article notes absence of prisoners in statistics regarding black progress.

13.  Pro Bono legal assistance will be required of all future applicants for the NYS Bar exam.

14.  Senate Shenanigans or not? Will we have a Democratic majority? And will it be a repeat of 2008? The votes are still being counted but according to a Times Union Capital blog entry by Jimmy Vielkind, In the State Senate historic Democratic victories come with an asterisk the Democrats appear to have picked up enough votes to regain the majority they won in 2008.

Building Bridges - October 2012 edition

The October edition of Building Bridges has been issued by the Prison Action Network.

Their brief summary is given below. Please see Building Bridges for full details:

1.  Join the movement to Raise the Age of Criminal Responsibility. Russell Simmons and his brothers Danny and Joseph "Rev. Run" have created a foundation to provide inner city youth with exposure to the arts. On Oct 17, you are invited to be the guest of CCA at the Simmons brothers' Rush Art Gallery in Manhattan, where youth will express their daily experiences in the criminal and juvenile system and depict the need to raise the age of criminal responsibility in NYS.

2.  Certificates of Relief from Disabilities and for Good Conduct restore the right to vote and certain other rights regarding housing and employment to formerly incarcerated people still on parole. The Board of Parole has the discretion to grant the certificates. When George Alexander was Chair of the Board he encouraged commissioners to confer Certificates of Relief from Disabilities upon release from prison so the person could benefit from the support when it was most needed.

3.  Not everyone appreciates the Merle Cooper Program as much as Corey Parks does. Here is another point of view.

4.  The Drug War's impact on African-American men in Albany will be reported on by the Center for Law and Justice on Oct. 25 in Albany.

5.  Family Empowerment Day 5 in Buffalo was a big success. Rufus and Jenny Triplett, the keynote speakers and Ebony Magazine's "2012 Couple of the Year", shared the story of Jenny's incarceration and how they managed to keep the marriage and the family intact and raise three sons during it.

6.  David Rothenberg, founder of the Fortune Society, speaking about the connection of Art and Criminal Justice at the Oct. 17th Reentry Roundtable, will tell how the Fortune Society was spawned by a play he produced in 1967.

7.  Higher education in prison has been demonstrated to greatly reduce recidivism. The Center for Community Alternatives is premièring a movie on barriers to college acceptance on Thursday, Oct 25th, followed by a panel discussion with some of the people in the film. Education from the Inside Out Coalition (EIO) is seeking restoration of access to higher education by inviting readers to view a video and sign a petition at their website. Some higher education programs which already exist are listed.

8.  Parole news: August release rates, and some highlights from Tom Grant's New York Law Journal interview. A summary of the Duffy v. Evans case:
John Duffy v. Andrea Evans, Chairperson, New York State Division of Parole, 11 Civ 7605 (S.D.N.Y., September 14, 2012), a case recently decided in New York's Southern District.
             Much like Thwaites v. New York State Bd. of Parole, Duffy is significant. On compelling factual grounds, Plaintiff Mr. Duffy, a parole applicant, had concrete evidence that his parole board had pre-determined the outcome of his parole hearing. (Mr. Duffy had a copy of the Commissioner's Worksheet that was completed by the Board before the parole hearing.)
            Notably, the court held: (i) the Board of Parole predetermined Duffy's parole decision, thereby violating his right to due process; (ii) the Board of Parole denied Duffy a fair and impartial parole hearing in retaliation for his having filed an Article 78 proceeding in state court, thereby stating a First Amendment retaliation claim; (iii) Mr. Duffy sufficiently stated a "class of one" equal protection claim on the ground that he was denied parole when other similarly situated incarcerated persons (who did not file Article 78 petitions against the Board of Parole) were granted parole due to the Board's retaliatory animus.

9.  The Prisoner Justice Network quotes, at greater length than in last month's column, from several of the speakers at the September 14th event at Riverside Church (Pam Africa, Soffiyah Elijah, Mumia Abu Jamal).

10.  Prison Voices Project, a radio program aired on WGXC 90.7 FM in Hudson N.Y. would like listeners' help with planning the programming.

11.  Solitary Confinement, SHU, the Box, Extreme Isolation, no matter what you call it, is a form of torture. DOCCS Commissioner Fischer said in his article for the Times Union that its use in NYS was necessary for safety in prisons. A few days later, the NY Civil Liberties Union released a study which found it to be arbitrary, inhumane and unsafe.

12.  National Action Network, NYC Chapter of the Second Chance Program, will be discussing the empowerment of women on Friday October 26.  The "Women's In-Powerment" forum is free and light refreshments will be served.

An interview with former parole board commissioner Tom Grant

An interview with former parole board commissioner Tom Grant. For complete report, see:

Q & A: Tom Grant, by John Caher (New York Law Journal, 21 September 2012)

Tom Grant gives his views on the parole process, including the selection of parole commissioners, pre- and post-interview preparation and discussion, the risk-and-needs assessment instrument, the movement towards a determinate sentencing structure, pressure on parole commissioners from public officials and members of the public, and unpopular parole decisions that result in public scrutiny and criticism.

Perhaps the most significant part of the interview is where Grant admits that there are some inmates who may never be paroled, no matter how well they do while in prison, and even if there is no likelihood that they will ever commit another crime:

"I happened to see one inmate on two separate occasions during my time on the parole board. He had participated in a heartbreaking crime as a teenager and he had subsequently done remarkably well during his lengthy period of incarnation. I don't believe he had one disciplinary infraction. He had already been denied by two or three parole boards, primarily due to the nature of the offense. It was a fatal shooting and he had an accomplice. During his interview, the other board commissioners and I focused on the logistics because it was unclear who might have actually fired the fatal shot. We denied him. From time to time I thought about the case. I said to myself, "I'll re-examine this, if I ever see this guy again," but it's all random who comes before you at an interview so I didn't know if I would see him again.

Four years go by, and I see him and the same questions come up, as they would. He was still doing well. In my opinion, he had no more likelihood of committing a crime than you or I. This time I voted to release him and the two other commissioners on the panel voted to keep him in. He is still in. He has life at the end of his sentence. I still think about it. We got bogged down with the logistics. He may never go home. That is the one I think about."

Grant's views on risk-and-needs assessment:

"The recent statute requiring the parole board to use a risk-and-needs assessment is perhaps the most significant positive change in parole-related statutes in the last two decades. Now that the Legislature and the Executive have moved away from an indeterminate sentencing structure to a determinate sentencing scheme, most of the cases the parole board will see in the future will be the non-drug A1 violent felons where the maximum sentence is life. If you look at the last two decades of research, the recidivism rate for released A1 violent felons is remarkably low. I would expect the risk-and-needs assessment instrument will provide the commissioners with a valuable empirical tool that will greatly aid them in decision making."

Grant makes the following two recommendations for reform:

"There should be a one-term limitation for parole board commissioners. The commissioner would, on the day of confirmation, know exactly when his term would end. This would reduce, if not eliminate, any perceived "outside influences" on the parole decision making process.

The second reform would offer the inmate an option to have a hearing, rather than just an interview, between the inmate and the commissioners for A1 felony (non-drug) cases. The inmate would be able to call witnesses on his behalf, perhaps relatives, employers, corrections counselors, someone from the Fortune Society or the Osborne Association. On the other side, if there was opposition to the release, the district attorney could participate, victims or their representatives, if they chose, could talk about how they and their families have been affected.

The hearing system for the A1's would ensure that the Parole Board had enough information to make an informed and reasoned decision based on the governing statutes.

If both of these proposals were enacted, they would encourage the board members to take even more care in their decision making."

A brief overview of the Graziano v. Pataki case

A brief overview of the Graziano v. Pataki case, given by the Prison Action Network:

In January 2006, a Class Action complaint was filed in the U.S. District Court, Southern District of NY, alleging that the Pataki administration's policy/practice of denying parole to prisoners serving indeterminate sentences (1) for convictions of Class A-1 offenses with (2) sentences of less than 25-Life, the statutory maximum term of imprisonment, and currently serving such sentences; (3) have served the minimum terms of their indeterminate sentences and are therefore eligible for parole release; and (4) have had their most recent applications for parole release denied by the Parole Board solely because of the "seriousness of the offense", the "nature of the present offense", or words to that effect, without due regard to any factor other than the violent nature of their present offenses, violates the Class members' rights to due process of law and equal protection of laws under the 14th amendment to the US Constitution, and whether such policy/practice violates their rights to be free from an ex post facto enhancement of the punishments under the US Constitution, Article 1, §1.

In March of 2006, a First Amendment complaint was filed to include A1 felons who received the maximum indeterminate sentence of 25 years to Life who meet the same defining factors of the main Class.

In April of 2006, the State filed an answer requesting the court to dismiss the action for a failure to state a course of action. The Class filed an opposition.

On July 17, 2006, the Honorable Judge Charles Brieant denied the State's motion to dismiss the complaint as to all claims. (2006 lib 2023082.)

In May of 2007, the State filed a second motion to dismiss the amended complaint, submitting the Class's claims are moot because Pataki left office in 2006 and the new governor Eliot Spitzer, along with a new Parole Chairman, George Alexander, would not follow Pataki's alleged policy. The Class filed an opposition in May of 2007. In December of 2007, Judge Brieant denied the State's moot argument, stating: "the change of office does not necessarily mean the policy or practice of the Parole Board would not be repeated". Judge Brieant also granted Class certification, instructing the State to settle the case. In early November of 2007, after months of settlement discussions, the State agreed to terms of a settlement. On Nov. 15, 2007, then Senate Majority leader Joseph Bruno and his cronies likened a settlement in the inmate parole suit to a "get out of jail free card" and persuaded Spitzer to continue fighting the suit. Senate hearings were conducted asking Spitzer why he had let out 56 violent felons. In March of 2008, we had the Spitzer sex scandal.

On July 22, 2008, the NY Law Journal announced that Judge Brieant, who had served on the bench for 37 years and who was appointed by President Nixon in 1971, died of cancer at 85. The Class lost a seasoned Jurist.

In 2008, Cathy Seibel was appointed to replace Judge Brieant and in December of 2008 Class Counsel moved to have former Governor Pataki deposed [made to testify to or give evidence on oath, typically in a written statement]. In her first ever ruling on the case, in April of 2009, Judge Seibel denied plaintiffs' motion to compel Pataki's deposition.

In September of 2010, knowing Judge Siebel had given them their first favorable ruling in Graziano, the State moved for a third bite at the [dismissal] apple, asking Seibel to dismiss the action. Despite the fact that Judge Brieant, who was a seasoned judge with 37 years on the bench had twice denied the State's request to dismiss the action, Judge Siebel granted the State's dismissal request and directed the clerk to close the case.

An appeal was filed in the US Court of Appeals for the 2nd Circuit and oral argument was allowed in March of 2012. On August 3, 2012 a majority of the Court affirmed Judge Seibel's dismissal, with Judge Stefan R. Underhill - sitting by designation from Connecticut - filing an informal reasoned dissenting opinion.

An en banc (asking the complete court) application is presently being filed to the 2nd Circuit.

Building Bridges - September 2012 edition

The September edition of Building Bridges has been issued by the Prison Action Network.

A brief summary is given below. Please see Building Bridges for full details:

1. The 1971 Attica Rebellion revealed an unforgivable truth; that this country allows human beings in confinement to be dehumanized, traumatized and demoralized, unmercifully.

2. Civic engagement means you take ownership of your community. You work to make it the place you want to live. One of the ways to do this is by voting. The Reentry Roundtable makes civic engagement the focus of their September 19th meeting.

3. Corey Parks tells readers how the Merle Cooper Program taught him that confrontation could be a positive tool for transformation.

4. Family Empowerment Day 5 in Buffalo features keynote speakers Ebony Magazine's "Couple of the Year", Rufus and Jenny Triplett of Powder Springs GA. The choice of workshops is listed in the flyer at the end.

5. Herman's House, a movie: 'What kind of house does a man who has been imprisoned in a six-foot-by-nine-foot cell for over 30 years dream of?' Co-presented by the Correctional Association and opening at the Harlem International Film Festival on Wed. Sept 19.

6. History of Graziano v. Pataki. It took 5 years before the plaintiffs found a lawyer to take the case pro bono. Is Mr. Graziano despairing after the latest set-back? No. The fight continues!

7. ICARE speaks about our Social Contract. If progressives are going to dispel the myth that mass incarceration is a response to crime, we have to break through the prevailing definition of criminality. And we are going to have to fight back using moral terms.

8. In Our Name, Restoring Justice in America, was the first in what promise to be a series of excellent conferences. The issues facing War Veterans in prison will be the focus of the Spring 2012 event.

9. My Name is My Own II, an evening of words by formerly incarcerated women, Tue. Sept 18 7-9pm.

10. Old Behind Bars, Speaker Jamie Fellner, Human Rights Watch, on October 10th, 11am-1pm. FREE. Fordham University.

11. Parole News: July release rates, the percentages are looking good, but the denials are the same old "nature of the crime" and the inconsistency is even getting to some prison superintendents, one of whom is reported to have complained about the denials of parole applicants he thought were highly qualified for release; Mark David Chapman's parole denial.

12. NYS Parole Reform Campaign depends on voters to elect a strong Democratic majority in order to pass the SAFE Parole Act. First step is to make sure your voter registration is up to date. Report on the Sept 13 primaries looks positive.

13. Pregnant in prison? Tell us about it. The law says you can't be shackled when in labor, during delivery, recovering after birth.

14. Prison Public Memory Project: website and blog + community-based activities and events to build public memory, connect communities with prisons to their histories and help people in places where prisons have closed to use the past to imagine new futures.

15. NYS Prisoner Justice Network reports on Sept 14's Program to End Mass Incarceration/Close Attica.

16. Reminder: Prison Action Network’s deadline for position papers is October 1.

17. Thinking Outside the Cell is launching a 10 minute multi-media study of the stigma of incarceration in the USA.

DOCCS marks 25th anniversary of Shock Incarceration

DOCCS marks 25th anniversary of Shock Incarceration
(NYS DOCCS press release: Wednesday, September 12, 2012)

Successful boot camp-style program that incorporates intensive drug and alcohol treatment, education and counseling has saved New York State taxpayers approximately $1.340 billion as an alternative to traditional incarceration

ALBANY – The New York State Department of Corrections and Community Supervision today recognized the 25th anniversary of its Shock Incarceration Program, which was launched in 1987 at the Monterey Shock Incarceration Facility in Schuyler County.

Shock is a six-month program that is similar in nature to a military boot camp regimen, but it incorporates intensive substance abuse treatment and academic education within a therapeutic community setting. Since its inception at Monterey (Schuyler County), the program was expanded to the Summit (closed in 2011), Moriah (Essex County), and Lakeview Shock (Chautauqua County) Incarceration facilities, culminating in 1995 with the opening of Willard Drug Treatment Campus (Seneca County), a program for parole violators similar to the regimen of a shock incarceration facility.

All Shock participants are engaged in comprehensive life skills programs that include academic education, group counseling, intensive alcohol and substance abuse treatment, physical training, drill instruction and work crews. Shock provides 675 hours of substance abuse treatment and education in each six-month session. Shock inmates pass the GED at a rate of 80%.

In an Executive Chamber Proclamation highlighting the program’s anniversary, Governor Cuomo stated, “The Shock Incarceration Program is a groundbreaking program that has contributed significantly to the state’s lower incarceration levels, improved public safety within our communities and reduced costs to our state.”

Between 1987 and July of 2012, 79,114 Shock eligible inmates were screened for program participation, including 6,694 females. Ultimately, 61,687 inmates were transferred into Shock with 45,135 graduating (including 3,251 females), saving New York State taxpayers an estimated $1.340 billion.

DOCCS Commissioner Brian Fischer, today participating in a ceremony commemorating the program’s anniversary, stated, “The Shock Incarceration Program owes its success to the best trained and most dedicated staff the Department has, and to the creativity and support of individuals who brought it into existence twenty-five years ago and those who have since maintained its standards and practices. In recognizing the history and value of the Shock Incarceration Program, we need to understand that we are recognizing our staff, the people who have dedicated their lives to helping others develop into better members of society.”

In terms of its impact on recidivism, 26% of Shock graduates who were released from Shock facilities in 2007 or 2008 returned to prison within three years compared to 42% for all DOCCS releases to parole supervision in 2007. Of the Shock graduates who were released from Shock facilities in 2007, 2008, 2009 or 2010 7% returned to prison within one year compared to 20% for all releases in the same time period.

As of today, there are 1,100 inmates participating in the Shock program: 589 men and 119 women at Lakeview, 205 men at Monterey and 187 men at Moriah.

Since 2000, the Parole Board has approved 97% of the successful Shock graduates. Shock graduates serving determinate sentences are conditionally released once they complete the Shock program. Upon graduating all offenders are supervised by parole officers assigned by the Department’s Community Supervision division.

The New York State Department of Corrections and Community Supervision (DOCCS) is responsible for the care, custody and treatment of individuals sentenced to state prison and for working with them to ensure their successful re-entry into the community. The Department operates 60 correctional facilities (including the Willard Drug Treatment Campus and the Edgecombe Residential Drug Treatment facility) and oversees 38 community supervision (parole) field offices across the state. DOCCS currently provides care, custody and supervision of approximately 94,000 individuals: 56,000 in custody in correctional and drug treatment facilities and 38,000 under post-release community supervision.

Building Bridges - August 2012 edition

The August edition of Building Bridges has been issued by the Prison Action Network.

A brief summary is given below. Please see Building Bridges for full details:

* Black August and the Attica Rebellion.
* Bring back the Free Buses.
* Campaign Finance Reform is Governor Cuomo's Summer focus.
* Corey's Column on the Merle Cooper program.
* DNA databank expansion bill is now in effect. This DNA Databank Expansion Bill, passed by the Legislature in March, makes New York the first state in the nation to require the collection of DNA samples from anyone convicted of any felony or Penal Law misdemeanor.
* Electoral Politics; how your vote in the Sept 13 primary can make a difference.
* Family Empowerment Day 5.
* In Our Name: Restoring Justice in America - last call for registration!
* Legislation.
* Human Rights Watch Medical Parole research project solicits your input.
* "Munched" is donating the proceeds of a performance to WORTH.
* Parole News: June releases, summaries of three recent John Caher articles including the Graziano v. Pataki decision, getting your parole hearing transcripts faster, current commissioners.
* NYS Parole Reform Campaign plea from Rev. Stephen Lim.
* Prison Legal News is back in NYS prisons.
* Prison Media.
* NYS Prisoner Justice Network shares excerpts from their mailbox.
* The Prisoner Rights/Civil Rights Practice Group.
* Request for position papers: as an organization advocating for criminal justice reform, Prison Action Network is soliciting position papers on the issues which most deeply concern their members in prison and their family members.
* Sullivan's 2nd Look Think Tank met with Vanda Seward to discuss retooling parole.

Graziano v. Pataki decision: August 3 2012

A decision in the Graziano v. Pataki class action case:

A divided panel of the U.S. Court of Appeals for the Second Circuit has held that violent felons who claim they were systematically denied parole due to an unofficial mandate of former Governor George Pataki have no avenue of relief under the U.S. Constitution.

From the court's decision (Graziano v. Pataki, No. 11-116):

"Plaintiffs - Appellants Peter Graziano, James Buckley, Mark Malone, Robert A. Harris, William Walker, Aaron Talley, Maurice Murrell, Steven Ho, and Brian Jacques (collectively, "Plaintiffs") filed this class action against Defendants - Appellees George Pataki, the Governor of the State of New York; Robert Dennison, the Chairman of the New York State Division of Parole; and the New York State Division of Parole (collectively, "Defendants") on behalf of themselves and all other New York State prisoners convicted of violent felony offenses. Plaintiffs allege that they have been denied parole as a result of an "unwritten policy" to deny parole to violent felony offenders, and that this unofficial policy violates three provisions of the federal constitution: (1) the Due Process Clause of the Fourteenth Amendment; (2) the Equal Protection Clause of the Fourteenth Amendment; and (3) the Ex Post Facto Clause. Because we conclude that Plaintiffs have failed to state a claim for violation of their rights under any of these provisions, we affirm the December 10, 2010 judgment of the United States District Court for the Southern District of New York granting Defendants' motion to dismiss Plaintiffs' complaint pursuant to Rule 12(c) of the Federal Rule of Civil Procedure."

Robert Isseks, a lawyer for the plaintiffs, said he would petition for the decision to be reviewed by the full panel of circuit judges.

See the following, especially the dissenting opinion given by Stefan R. Underhill, District Judge:
Graziano v. Pataki, No. 11-116 (2d Cir. August 3 2012)
Circuit Rejects Inmates' Bid for Relief Over Alleged Parole Policy, by John Caher. (New York Law Journal, August 6 2012)
New York violent felony inmates lose parole case appeal (Reuters, New York, August 6 2012)
Graziano v. Pataki, Justia.com Opinion Summary (August 3 2012)
Graziano v. Pataki, 11-116 (FindLaw, August 3 2012)
Split Second Circuit panel rejects varied constitutional attacks on NY parole practices (Sentencing Law and Policy, August 3 2012)

Parole Granted to Murderer Who Had Prosecutors' Support

Noah Lazore has finally been granted parole:

"A convicted killer whose release after 36 years in prison was supported by both the prosecutor who put him away and the incumbent district attorney has been granted parole. In a split decision, a three-commissioner panel of the Board of Parole noted Noah Lazore's "strong rehabilitative record," his "clean disciplinary record since 2007" and the fact that a new, legislatively mandated risk analysis concluded that he is "at low risk of felony violence, arrest and absconding." ... ..."

For complete reports, see:
Parole Granted to Murderer Who Had Prosecutors' Support, by John Caher (New York Law Journal, August 2 2012)
Prisoner's Bid for Parole Wins Support From Unlikely Allies, by John Caher (New York Law Journal, July 26 2012)

Group Mounts Campaign to Block Parole

Extract from report:

An organization that charges up to $250 to mount an organized campaign to prevent parole release of convicted killers has attracted the interest of defense attorneys resulting in a complaint to state and federal authorities.

Cheryl Kates, an attorney in the Rochester area who has one client who was recently denied parole after Parents of Murdered Children campaigned against his release, and five others who are targeted by the organization, is seeking an investigation.

"Community opposition is being purchased," Kates claimed in a July 10 letter to the inspector general of the state Department of Corrections and Community Supervision, and copied to the U.S. Department of Justice. "The parole board is being tricked. This is a violation of due process. Any petitions received from this organization should be removed from the inmate's file."

Peter Cutler, spokesman for the department, acknowledged the agency has received Kates' letter and will consider her complaint.

For complete report:
Group Mounts Campaign to Block Parole, by John Caher (New York Law Journal, July 30 2012)

New York State Parole Board

The official list of Parole Board members has now been updated to include the recent appointments by Governor Andrew M. Cuomo. Currently there are fourteen members and five vacancies:

Parole Board Members

Evans, Andrea W.
Smith, Walter Wm., Jr.
Ferguson, James
Hernandez, Christina
Ludlow, G. Kevin
Elovich, Lisa Beth
Thompson, Sally
Hagler, Michael A.
Ross, Mary
Crangle, Joseph
Brown, Jared
Sharkey, Edward
Coppola, Marc
Evans-Alexander, Ellen

Building Bridges - July 2012 edition

The July edition of Building Bridges has been issued by the Prison Action Network.

A brief summary is given below. Please see Building Bridges for full details:

* Electoral Politics - some suggestions to help us elect the people who are more likely to support our agenda.

* Family Empowerment Day 5 is in Buffalo this year, featuring Ebony Magazine's "2012 Couple of the Year".

* Innocent and denied parole because of it? The Jeffrey Deskovic Foundation for Justice has a plan for helping you.

* The legislative session ended in June with none of our bills being passed. A.M. Aubry, however, was able to put in a supportive word for people in prison and those who have been released, during the discussion of the Justice Center Bill which creates an agency to protect people with special needs.

* Corey's Column - in his first Building Bridges column Corey Parks describes his strategy for a successful reentry.

* Parole News reports on appointments of three new and three reappointed Parole Commissioners; an amazing Article 78; and 37 parole releases in May.

* NYS Parole Reform Campaign urges families and other advocates to become informed and get active. It's up to us. No one else cares as much.

* NYS Prisoner Justice Network reports on the Legislative Task Force on Criminal Justice Reform, proposed by the New York State Criminal Justice Advocacy and Reform Coalition made up of advocates, most of whom presented workshops at the Black and Puerto Rican Legislative Caucus this past spring. An update on the Sept.14th Event also is provided.

* Public Campaign Financing is urgently needed because the very rich think you and I are the ones who don't understand the country's problems! We have to replace the influence of big money in politics with public financing of elections, and Gov. Cuomo has said he will help us.

* In Our Name, Restoring Justice in America - the Aug. 24-26 agenda looks very inviting. Formerly incarcerated people and family members of currently incarcerated persons are offered generous scholarships. We'd love to hang out with you!

* Solitary Confinement through the eyes of Charles Dickens, author of A Christmas Carol and Oliver Twist. Shows that opposition to the use of solitary confinement has been around almost as long as solitary has.  When will the public wake up?

* Strength of a Woman. Short sentences for abusers but when a woman defends herself after years of violence and threats on her life or her children's she often receives a much longer sentence. The July 30th meeting of Prisoners Are People Too in Buffalo, focuses on this issue.

Lawmakers: fix racial disparity on Parole Board

Extract from a NY Daily News article:

ALBANY — Gov. Cuomo is taking heat from minority lawmakers for not renewing the term of the lone black male on the state Parole Board.

Henry Lemons, a former deputy chief investigator in the state attorney general's office and longtime Brooklyn prosecutor, was cut loose when his six-year term expired recently.

Members of the Legislature's Black and Latino Caucus have bemoaned the disparity that exists between the board's membership and the general population of state inmates. Records show that 49% of all state prison inmates are black, and of that number, 93% are men.

Lemons' departure means that Chairwoman Andrea Evans is the only black representative out of the 11 current members of the board.

No reason was given for the decision not to reappoint Lemons, who was initially selected by former Gov. Eliot Spitzer.

"I have spoken to the governor in sharing my displeasure," said Sen. Ruth Hassell-Thompson, a Bronx Democrat and member of the caucus.

Sen. Eric Adams, a Brooklyn Democrat and a former NYPD cop, also spoke of the need for a black man on the board: "It's almost crucial that you have that representation."

Minority lawmakers are said to be particularly upset that four Parole Board members originally appointed by ex-Republican Gov. George Pataki were kept on after their terms expired last year...

For complete article, see:
Lawmakers: fix racial disparity on Parole Board, by Kenneth Lovett (NY Daily News, July 3 2012)

Six nominees are confirmed as members of the New York State Board of Parole

Governor Andrew M. Cuomo appoints six parole board commissioners.
A meeting of the Senate Standing Committee on Crime Victims, Crime and Correction was held today, at which the following six nominees were confirmed as members of the New York State Board of Parole: 

Ellen Evans Alexander
James B. Ferguson, Jr. (reappointment)
Christina Hernandez (reappointment)
G. Kevin Ludlow (reappointment)
Edward M. Sharkey
Marc A. Coppola

Governor Cuomo Announces Confirmations (Albany, June 20 2012)
List of current Parole Board members:
Parole Board Members (NYS Department of Corrections and Community Supervision)

Building Bridges - June 2012 edition

The June edition of Building Bridges has been issued by the Prison Action Network.

A brief summary is given below. Please see Building Bridges for full details:

* Attica, mass incarceration, solitary confinement, freeing Mumia and others are on the agenda for the September 14 event.

* Carl Berk's daughter Paula is writing a memoir of her father and would welcome any information you can provide. Please send your information to Paula via the Prison Action Network.
   
* Call for stories to be included in WORTH's Guidebook for women returning home from prison and jail.
   
* Cornell University confers Bachelor's degrees on 14 students confined at Auburn prison. On June 5, 2012, Auburn Correction Facility presented a commencement ceremony not seen since the early 90s, back when Pell grants propelled Syracuse University and Cayuga Community College to teach behind the walls of the prison. This memorable event, all supported by private donations, presented 15 students with Bachelor degrees from Cornell University in conjunction with Cayuga Community College.
   
* Domestic Violence Legislation is being obstructed by Senate Republicans. On May 30, the Senate Democratic Conference held a public forum on the need to provide additional protections for those affected by domestic violence. The forum was convened to highlight legislation sponsored by members of the Democratic Conference which the Senate Republican Majority has refused to move out of committee and bring to the floor for a vote. Attendees at the forum included Democratic Senators as well as activists, legislators and criminal justice professionals.
 
* Family Empowerment Day 5 is coming to the Buffalo-Niagara Region, on Friday October 5 and Saturday October 6.
 
* Geriatric Parole Release bill has been passed by the Assembly's Correction Committee:
A.9696 the NYS Program for Older Prisoners Act [No same as], March 27, 2012, introduced by Members of Assembly Aubry, Lentol, Millman.
Provides geriatric parole release to an inmate who is at least sixty years of age, is serving a determinate or indeterminate sentence of imprisonment, and has served at least one-half of the minimum period of his or her indeterminate sentence, or in the case of a determinate sentence, has served at least one-half of the term of his or her determinate sentence, provided, however, that no inmate serving a sentence imposed upon a conviction for murder in the first degree or an act of terrorism shall be eligible for such geriatric parole release. Such release shall be granted only after the board considers whether there is a reasonable probability that, if released, the inmate will live and remain at liberty without violating the law, and that such release is not incompatible with the welfare of society and will not so deprecate the seriousness of the crime as to undermine respect for the law.
   
* Jeffry Descovic uses settlement money to help others wrongfully convicted.
   
* Legislation: dozens of criminal justice bills were introduced at the Senate and Assembly Committee meetings, most of them are tabled for now. See Building Bridges for full details.

* NYS Parole Reform Campaign: their report on Advocacy Days, and a letter to the Governor:

"Soon after the NY Reentry Roundtable's Advocacy Day on May 15, The Safe and Fair Evaluations Parole Act gained 4 new sponsors: Senator Hassell-Thompson, Senator Serrano, Assembly members P. Rivera and Scarborough. There are now 9 sponsors in the Assembly and 7 in the Senate. Not bad for a bill that's only 1 year old! Readers who have called, written, or visited their legislators and/or shown up for Lobby Day events can take the credit for this. If any of the sponsors represent your district, please thank them. The more appreciation they get for doing the right thing, the less strength the bill's opponents have. Tom Duane, who introduced it in the Senate, is not seeking reelection so we will have to find another Senator to introduce it next year, as well as speak to A.M. Aubry about reintroducing it. We will miss Tom Duane; he has always been a champion of just causes. If you have any information on Brian Kavanaugh, Brad Holyman or Corey Johnson, who are rumored to be interested in running for his seat, please let us know. Prison Action Network is trying to find out where they stand in the battle over NYS criminal justice policies. Contact information for the last two would be especially appreciated. If you know any of them please ask them where, on a scale of 1 - 5 they stand: (1. being "lock em up and throw away the key" and 5. being "treat prisoners as you want them to treat us, and use evidence-based practices such as alternatives to prison whenever possible")."

See Building Bridges for the text of their letter to Governor Cuomo, urging the Senate and the Assembly to vote for the Safe and Fair Evaluations (S.A.F.E.) Parole Act, and for Cuomo to incorporate it into the 2013 Budget Act.
   
* Parole News - Expired terms and April parole releases.
   
* Prisoner Justice Network reports on their May 22 Prison and Parole Justice Day.
   
* Raise the age of criminal responsibility in NYS to 18. The Center for Community Alternatives and the NY Reentry Roundtable host discussions in June.
   
* Restoring Justice in America retreat offers scholarships to their weekend symposium in Greenwich N.Y.
   
* Transportation Service starts up in Albany.

Building Bridges - May 2012 edition

The May edition of Building Bridges has been issued by the Prison Action Network.

A summary is given below, please see Building Bridges for full details:

1. Carl Berk Remembered. A friend remembers that "He normally submitted a poem to one of the Jewish Newsletters or Lifers' notes. We didn't receive one for February." We share a prose poem, inspired by Hemingway, that Carl sent us shortly before his death.

2. Building a Better Criminal Justice System. The Fortune Society and The Sentencing Project are collaborating on a panel discussion about The Sentencing Project’s recent publication, To Build a Better Criminal Justice System: 25 Experts Envision the Next 25 Years of Reform. In the new publication, 25 leading scholars and practitioners have contributed essays on their strategic vision for the next 25 years of criminal justice reform. Issues addressed in the collection include racial justice strategies, linking public health and criminal justice reform, challenging the war on drugs, and the viability of fiscal pressures as a focus for reform.

3. Clemency, a discussion: "Among its benign if too-often ignored objects, the clemency power can correct injustices that the ordinary criminal justice process seems unable or unwilling to consider."

4. The Merit Time Bill falls victim to questionable tactics, while ill-advised bills continue to be scheduled for voting at the Senate's Crime Victims, Crime and Corrections Committee on May 15. Building Bridges also reports on the fate of bills presented to the Committee on April 18.

"The Merit Time Bill S338/A154, sponsored by Senator Velmanette Montgomery and co-sponsored by Senator Dilan is no longer sitting in the Senate Crime Victims, Crime and Corrections Committee. Due to a troubling turn of events, it has been reported to the Rules Committee, headed by Majority Leader Dean Skelos, where it will sit probably forever, or at least until the end of this session." (See Building Bridges for full details.)

Please sign the petition in support of the Merit Time Law.

5. Parole News: March releases (reappearance rates are up), excerpts from two articles by John Caher, and a report from the NYS Parole Reform Campaign. "The Campaign has been working with the organizations who have put the SAFE Parole Act on the agenda for their legislative advocacy days. We're very grateful for the support we’ve received from these and other organizations! We've come a long way since last year at this time when our bill was just a proposal and removing nature of the crime from what the parole board could consider was believed to be too radical and so controversial that no one would touch it. We now have legislative sponsors, and many people are seeing that without this bill violent offenders with "incredible prison records" and the lowest risk scores on COMPAS, will continue to be denied parole."

6. Prisoners Are People Too! "Broken On All Sides: Race, Mass Incarceration and New Visions for Criminal Justice in the US." Karima Amin gives details of this important new film about the US prison system.

7. The NYS Prisoner Justice Network reviews the bad news and the good news and invites us to join them in a day of action: NYS Prisoner Justice Network's Prison and Parole Justice Day, in Albany, on May 22nd.

8. In Our Name: Restoring Justice in America, a retreat in beautiful upstate NY, is open to families and friends of incarcerated people and formerly incarcerated persons. This August weekend gathering of academics, activists, and advocates will work together to formulate proposals for reform of the criminal justice and penal systems. We need to share our input.

9. The Yale Law Journal welcomes submissions for their first prison law writing contest.

10. A call for stories from adult children of incarcerated, or formerly incarcerated, parents.

11. Justus Support Group forms in Troy NY.

Effect of Risk Assessment Rule on Parole Decisions Is Unclear

Extract from a report by John Caher, reviewing the impact of recent changes in the parole statute:

ALBANY - A new law requiring the state parole board to consider inmates' rehabilitation and use a "risk assessment" procedure to gauge whether parole-eligible inmates have reformed appears to be having little effect as release rates are largely unchanged and the board is routinely basing its denials on boilerplate statutory language emphasizing the offense, records suggest.

In October, the panel was legislatively required to "incorporate risk and needs principles to measure the rehabilitation of persons appearing before the board, the likelihood of success of such persons upon release."

The board did so, but advocates say the new process appears to have no impact.

"My experience has been it doesn't matter because most of the guys are scoring the lowest risk assessment level and they are still hitting them and saying they are a threat to society," said Cheryl Kates, an attorney near Rochester whose practice consists of advocating for inmates seeking parole. "It doesn't make any sense. They've added an evidence-based procedure but still cite the statute the same way they did previously. It is just a façade. It is status quo."

Similarly, Edward Hammock, a former parole board chairman who now practices criminal law, much of it post-conviction, said he has not seen any change.

"It is my impression that nothing is really happening," Hammock said. "Why do a risk assessment if you are not going to deal with it when considering someone for release?"

Part of the problem is that there is uncertainty about why the statute was changed and what the revision was supposed to achieve. It is not clear if the revision represents a sea change in the operations of the parole board, a tweak of one of the existing factors it takes into consideration, or something in between ... ...

For complete report, see:
Effect of Risk Assessment Rule on Parole Decisions Is Unclear, by John Caher (New York Law Journal, April 30 2012)

See also:
Judge Finds Parole Risk Assessment Not Retroactive, by John Caher (New York Law Journal, May 21 2012)
Acting Supreme Court Justice Mark Fandrich wrote: "While the changes may modernize the parole laws, there is no indication that they were intended to correct any past oversight or clarify the law in any way."
Inmate Loses Parole Bid Despite his 'Incredible Prison Record', by John Caher (New York Law Journal, April 24 2012)
Matter of Thwaites v New York State Bd. of Parole 2011 NY Slip Op 21453
Matter of Hamilton v New York State Div. of Parole 2012 NY Slip Op 22112

Building Bridges - April 2012 edition

The April edition of Building Bridges has been issued by the Prison Action Network.

Items discussed in the April newsletter include the following, see Building Bridges for full details:

1. The Senate's Crime Committee passed all but one of the mostly - but not only - sex-offender related bills at their meeting on March 20. The legislation considered by the committee is listed in detail.

2. People in prison weigh in on Parole Reform: talking about the moral high ground and the optimism that is felt not just despite, but because of, the escalation of prison abuses. This includes a perceptive item by Ismael Igartua, "The Moral High Ground", responding to the suggestion that facility parole officers have more influence at parole board hearings than previously thought. Igartua is writing in response to this article: State tells parole officers to surrender guns, by Brendan J. Lyons (New York Times, 24 February 2012).

3. Parole releases for February are depressing, but there is a recent favorable court decision in the case of Emmanuel Patterson. In response to requests, the Prison Action Network has reposted biographies of current members of the Parole Board.

Update in the case of Thwaites: Douglas Thwaites filed an Article 78 contesting the Parole Board's denial of his appeal that his parole hearing denial should be overturned: State Supreme Court Judge Ecker ruled in his favor on the Article 78 and stated that at the new hearing Mr. Thwaites needed to be judged by whether there is a reasonable probability that if released, he will live and remain at liberty without violating the law, and not on his past offense. According to the Board's website, his reappearance is scheduled for June 2012. We will be waiting to learn the decision.

In a recent court decision, Emmanuel Patterson received a favorable ruling on his Article 78: Patterson v Cully, Index # 1-2011-4748, Erie County, Michalski, 2012. The court noted the criteria governing release is contained in NYS Executive Law 259 (i)(2)(c)(a). Due to the timing of the case (2010), the court also refers to NYS Executive Law 259 (i)(1)(2)(c) which has now been changed and added to the preceding section.

The court stated the Board cannot solely cite the serious nature of the crime as a reason for denial, IGNORING THE CASE PRECEDENT IN King and Johnson. The court indicated the statement: "criminal behavior being extreme and violent with a total disregard for human life" could be said about any homicide and was not enough to constitute an aggravating circumstance beyond the serious nature of the crime, Patterson (id). The court found this decision "irrational and improper" Patterson (id).

The court concluded "the Parole Board's reliance on the severity of the crime to deny parole not only contravenes the discretionary scheme mandated by statue, but also effectively constitutes an unauthorized resentencing" Patterson (id).

4. Parole reform strategies: talking points that stress the importance of removing "the seriousness of the offense" from the Parole Board's consideration, when discussing effective changes to Parole Board policies. It is an opportune time because we are now at a point when there is concrete evidence of the parole board's lawlessness, arbitrariness and their refusal to follow the mandates of the legislature. In other words, they have demonstrated their bad faith to give fair consideration to parole applicants.

On March 31, 2011 several significant amendments to the Executive Law were signed into law including an amendment to Executive Law § 259-c(4) which requires the parole board to:

Establish written procedures for its use in making parole decisions as required by law. Such written procedures shall incorporate risk and needs principles to measure the rehabilitation of persons appearing before the board, the likelihood of success of such persons upon release, and assist members of the state board of parole in determining which inmates may be released to parole supervision.

The effective date of this mandate imposed on the parole board was October 1, 2011. As of April 5, 2012 the parole board has failed and refused to establish the written procedures that were required by the state legislature. The result of this bad faith on the part of the parole board is that they have failed to establish lawful procedures by which they will consider the risk and needs instrument that they are using, the COMPAS, and that they have no rules that control how they are to implement risk and needs principles. Not only does this make all decisions since October 1, 2011 unlawful, by failing to establish rules it prevents judicial review since the courts have no way of knowing whether the board decisions are consistent with law procedures. This total disrespect for the legislature and its mandated reform clearly requires stronger action on the part of the legislature. The parole board cannot be trusted to use its own devices to establish written procedures that will be fair and appropriate. If they will not follow the law as directed to them by the legislature, how can they be counted on to make their own rules?

Therefore, it is time for the legislature to act in response to this affront by the parole board and establish tighter control of parole board decision making. In order to do this, more specific statutory requirements must be imposed. Now is the time to impose the statutory requirements of the SAFE Parole Act!

One of the dominant features of the SAFE Parole Act is that it removes "the seriousness of the offense" from the parole board's consideration. There are several strong reasons why that factor is no longer appropriate for parole board consideration:

*Double counting of the crime and criminal record. This factor is used in the COMPAS risk and need assessment and is currently also being used by the parole board as a separate factor. By double counting, this factor creates an imbalance in the factors to be considered. It serves no legitimate purpose when it comes to the ultimate decision that the parole board is called upon to make, which is whether "there is a reasonable probability" that the parole applicant, if released, "will live and remain at liberty without violating the law." The seriousness of the crime has no predictive value in determining if the person is likely to reoffend.

*Currently as it is being used, the parole board is abusing the use of this factor. Even in cases where the COMPAS risk assessment score indicates low risk, the parole board is defaulting to the "seriousness of the offense" to support their conclusion that the parole applicant is a high risk. In other words, nothing has changed with the parole board, despite the legislature’s attempt to reform the process.

*The factor, "seriousness of the offense" originally appeared in the Executive Law § 259-i (1) as a factor to be considered by the parole board at a time, years ago, when the parole board actually had the authority to set the minimum sentence when the court had not. In such cases, because the parole board was serving a sentencing function, it was appropriate to consider that factor because the sentencing function properly considers punishment as a sentencing goal. However, since the parole board no longer sets the minimum, and therefore no longer is charged with the responsibility of considering punishment, it should no longer be considered as a factor.

*In 2011, subdivision (1) was repealed. Unfortunately, and without debate of discussion about the rationale, this factor was moved to subdivision (2) for parole board consideration in general. That repositioning of this factor was without sound rationale, and should be removed.

5. Building Bridges is polling their readers on the delivery of the Transitional Accountability Plan and the COMPAS risk and needs instrument. When are they being administered? Have they made a difference in parole decisions?

6. NYS Prisoner Justice Network announces May 22 Justice Action Day, including a meeting with legislators and a rally to demand fairer parole decisions and to show how much statewide support there is for Parole Board reform.

7. Merit Time for violent offenders is still on the table. Add your name to a website which already has over 2000 signatures in support of this bill, S338/A154.

8. Photo ID for visitors is to be required and maintained in DOCCS data bases. Prison officials plan to start photographing visitors to state inmates in a pilot program this fall at a facility in northern New York and possibly a few others. Those pictures will be filed in the corrections department's central visitor identification system. Regulations to establish the practice in all 60 facilities housing 56,000 prisoners are expected to follow. Separately, the department issued final regulations earlier this week to require adult visitors present a photo identification starting Oct. 1 at all state prisons.

New York State Parole Board Members

Short biographies of the current members of the NYS Board of Parole, provided by the Prison Action Network in the April edition of the Building Bridges newsletter.

It is expected that some whose terms have expired will be replaced very soon by Governor Cuomo. Following each biography is the commissioner's term, and the governor who appointed them.


From the Prison Action Network:

Andrea Evans: as Chairwoman, also served as Chief Executive Officer of the Division until the Division was merged with DOCS. Ms. Evans was most recently Director of the Division of Parole for Region II, an area encompassing Brooklyn, Queens and Staten Island. In this position, she was responsible for the operation of nine area offices, and the Queensboro Correctional Facility. Prior to this role, Ms. Evans served as Deputy Regional Director for Region I, where she managed the operation of five field offices in Bronx County. [ June 8, 2009 - Feb. 6, 2013 Paterson]

Jared Brown: a practicing attorney since 1976, Brown became a partner in Brown and Guilbert, a New York City Law Firm in 1984. Prior to practicing law, Brown worked as a narcotics parole officer with the New York State Addiction Control Commission and at the New York City Department of Social Services. [Jan 26, 2010 - June 18, 2012 Paterson]

Joseph Crangle: Assistant Court Analyst with the NYS Office of Court Administration, assigned to the Domestic Violence Part of the Buffalo City Court where he monitored defendant's compliance with court orders; a probation officer with the Genesee County Probation Department, where he oversaw the Pretrial Release Under Supervision program. Mr. Crangle has a bachelor's degree from Canisius College and his JD from the City University of N.Y. [June 19, 2008- June 16, 2014 Paterson]

Lisa Beth Elovich: Administrative Law Judge at the NYS Office of Children and Family Services; lawyer in the Attorney General’s Office and in the Manhattan District Attorney’s Office. [Dec. 13, 2006 - Dec. 31, 2013 Pataki]

James Ferguson: Administrative Law Judge at NYS Division of Parole, Jan 1999 – May 2005; Assistant District Attorney, Bronx District Attorney's Office, Aug 1992 – Jan 1999. Education: Marist College B.S., Political Science/Psychology; Pace University School of Law, Juris Doctor. [April 12, 2005 - July 6, 2011 Pataki]

Gerry Greenan: comes from a prominent family in West Seneca; was appointed by Governor George Pataki; is an attorney at the prominent law firm of Harris, Beach in the Commercial Real Estate, Residential Real Estate, and Life & Asset Planning Practice Groups. [June 21, 2006 - June 18, 2012 Pataki]

Michael A. Hagler: more than 30 years in law enforcement: senior investigator with the Office of the New York State Attorney General, conducting investigations into environmental and computer crimes, money laundering, gambling and narcotics in the Rochester region; member of the Metro Rochester Firearms Suppression Unit (Project Exile), security detail for then Attorney General Eliot Spitzer in upstate NY; investigator sergeant with the Monroe County Sheriff’s Office supervising various units within the department’s Criminal Investigation Division, the department’s liaison with all local, state and federal law enforcement agencies as well as community groups. [Oct. 22, 2007 - Aug.31, 2013 Spitzer]

Christina Hernandez: served as Commissioner of the New York State Crime Victims Board, as a Commission Member of the New York State Commission on Judicial Conduct. In 2009, Ms. Hernandez was selected as one of nineteen parole board commissioners from across the United States to participate in a pilot training, "Integrating Evidenced-Based Principles into Parole Board Practices," created by the National Institute of Corrections, U.S. Department of Justice. Ms. Hernandez holds a Bachelor of Arts from Buffalo State College; a Masters in Social Work from the School of Social Welfare and a Certificate of Graduate Study in Women and Public Policy from the Rockefeller College of Public Affairs and Policy, at the University at Albany. Additionally, she has completed all course work towards a PhD at University at Albany-SUNY School of Social Welfare.
[June 14, 2006 - June 6, 2011 Pataki]

Henry Lemons: was not replaced when his 2007 appointment to fill an unexpired term came to an end in 2008. He has now been formally appointed to serve out the remaining 4 years of the new 6 year term. He served from 2004 to 2007 as Deputy Chief Investigator for the New York State Attorney General. Prior to that, he was the Assistant Chief Investigator for the Kings County District Attorney. He is a former Sergeant and Detective with the New York City Police Department. He also served for four years of active duty with the United States Air Force. Mr. Lemons earned his bachelor’s in criminal justice and planning from John Jay College of Criminal Justice and his master's in organizational leadership from Mercy College. He is a graduate of the FBI National Academy. Mr. Lemons was raised in the Bedford–Stuyvesant section of Brooklyn and Queens, where he still resides. [May 1, 2007 - June 18, 2008 Spitzer]

G. Kevin Ludlow: is a Lawyer in Utica, New York [June 21, 2006 - June 18, 2011 Pataki]

Mary Ross: staff attorney with the Legal Aid Society in Queens, executive director of Providence House, a nonprofit corporation that provides transitional and permanent housing for female ex-offenders, homeless women and their children; the campus minister at Queens College; the director of administrative services at the Diocese of Brooklyn;. She has a bachelor's degree in education from St. Joseph's College, master's in education from Brooklyn College and JD from the City University of New York. [June 19, 2008 - Aug 31, 2013 Paterson]

Walter Smith of Clarence: appointed to two terms by Pataki, was a senior investigator for the state's Crime Victims Board. [Dec 16, 1996 - July 6, 2011 Pataki]

Sally A. Thompson: Twenty distinguished years with the NYC Police Department, as a detective in the department, investigating violent crimes and making numerous felony and misdemeanor arrests; five years in the Bronx Narcotics/Major Case Division, conducting complex criminal investigations that included surveillance and undercover operations; active member of the Fraternal Order of Police and the Detective Endowment Association. [June 14, 2007 - May 4, 2013 Pataki]

New York Still in Need of Parole Reform

An important article giving an overview of the need for parole reform has been published in the Spring 2012 issue of Atticus, produced by the New York State Association of Criminal Defense Lawyers (NYSACDL). 

Applying old backward-looking static factors while attempting to follow the new dynamic procedures for parole release decision-making based upon present and future-looking risk and needs principles creates a contradiction that the Parole Board will find very difficult to reconcile.

"Stated simply, the newly amended Executive Law § 259-c(4) is incompatible with the archaic Executive Law § 259-i. There is a significant contradiction between the old parole decision making factors in Executive Law § 259-i(2)(c)(A) and the newly amended forward-looking risk and needs principle shift contemplated by Executive Law § 259-c(4). Problematic decisions like the one in Matter of Thwaites will continue to trouble the courts and wreak havoc with parole release until Executive Law § 259-i is modernized. That is exactly what the SAFE Parole Act will do as it will eliminate the contradiction between the remnants of an old decision-making system that looks backward at the "seriousness of the crime" and a present and forward-looking procedure that relies on risk and needs principles."

For complete article:

New York Still in Need of Parole Reform, by Alan Rosenthal and Patricia Warth (Atticus, Volume 24 No.1, Spring 2012, pages 11-15) 

Women on probation or parole more likely to experience mental illness

A new report shows that women aged 18 to 49 on probation or parole are nearly twice as likely to experience mental illness as other women. The study conducted by the Substance Abuse and Mental Health Services Administration (SAMHSA) showed that almost half of women in this age range who had been on probation (49.4 percent) and more than half on parole (54.2 percent) in the past year had experienced some form of mental illness - compared to 27.5 percent of women who had not been on probation or parole.

"This report highlights the very real need for providing better behavioral healthcare for women emerging from the criminal justice system," said SAMHSA Administrator Pamela S. Hyde. "Providing these services not only meets a vital public health need, but is a very sound investment since it can prevent many at-risk women from returning to the criminal justice system. Since women play a vital role in families, schools, business, and government, the recovery of women to productive lives can have an enormous positive impact on America’s communities."

... Research indicates that women in the criminal justice system with untreated mental health problems have greater difficulty reintegrating into their families and communities and are more likely to re-offend than those without mental health problems.

The complete report may be viewed here.

Women on probation or parole more likely to experience mental illness (Substance Abuse and Mental Health Services Administration News Release, 26 March 2012)

Assisted Living — Behind Bars

Old behind bars: the aging prison population in the United States.

"Prison is tough for everyone, but it is especially hard for older prisoners who need wheelchairs, walkers, portable oxygen and hearing aids; who cannot get dressed, go to the bathroom or bathe without help; who are incontinent, confused or suffering from chronic diseases.

Prison medical costs — borne entirely by the state — are up to nine times higher for older prisoners than for younger ones.

So what can be done? Prison officials, parole boards and governors should make an effort to increase the number of older and ill inmates posing no meaningful security risk who are released from prison and placed under community supervision.

... Those who violate the rights of others must be held accountable. Prison sentences are tailored to give offenders their just deserts at the time of sentencing.

But age and illness (not to mention evidence of rehabilitation) can change the calculus.

If elderly prisoners can be safely released from prison to finish the rest of their lives under parole supervision — at much lower cost to taxpayers — it is hard to see what society gains from keeping them behind bars."

For complete article and further information, see:
Assisted Living — Behind Bars, by Jamie Fellner (Human Rights Watch, 26 March 2012)
Old Behind Bars: The Aging Prison Population in the United States (Human Rights Watch Report, 28 January 2012)
US: Number of Aging Prisoners Soaring, Corrections Officials Ill-Prepared to Run Geriatric Facilities (Human Rights Watch, 27 January 2012)

Building Bridges - March 2012 edition

The March edition of Building Bridges has been issued by the Prison Action Network.

This edition contains their report on several important bills voted for at the meeting of the Senate Crime Victims, Crime and Correction Committee on March 7 including the Merit Time Bill (detailed in the introduction and in Article 5 of their newsletter). There are serious reservations about the possibility of the SAFE Parole Act becoming law while Michael Nozzolio is the chair of that committee, and the Prison Action Network explain why.

This is the result of the vote on the Merit Time Bill:

S329-2011*: DOMESTIC VIOLENCE ELIGIBILITY FOR MERIT TIME
Sponsor: Montgomery, Co-sponsors: Hassell-Thompson, Krueger, Oppenheimer, Parker, Serrano
Allows certain inmates who are able to prove that they were subjected to substantial physical, sexual or psychological abuse, that the abuse was inflicted by a member of their same family or household or a member of the person's immediate family, and that the abuse was a substantial factor in causing them to commit the crime to be eligible to earn merit time in the amount of one-third off either their minimum sentence (if inmate has an indeterminate sentence) or their flat sentence; allows such inmates to be eligible for presumptive release; expands the criteria that a person in custody of the department of correctional services may meet in order to earn merit time. - NOT REPORTED (defeated)

S338-2011*: EXPANSION OF MERIT TIME
Sponsor: Montgomery, Co-sponsors: Dilan [Same as: A154-2011 - Aubry]
Relates to controlled substances and indeterminate sentences; relates to the expansion of merit time and repeals provisions relating to the allowance of limited credit time for inmates; to allow all inmates, except those serving a sentence of life imprisonment without parole, murder in the first degree, incest, an offense defined in article two hundred sixty-three of the penal law, an act of terrorism, aggravated harassment of an employee by an inmate, or an attempt or conspiracy to commit any such offense, to earn merit time allowance. The merit time allowance would be one-sixth of an indeterminate and one-seventh of a determinate sentence. This section of the bill also expands the criteria that a person in the custody of the Department of Corrections and Community Supervision (DOCCS) may meet in order to earn merit time. HELD

Other items discussed in the March newsletter include the following. See Building Bridges for full details:

1. ALBANY UP CLOSE AND PERSONAL: A free workshop to develop legislative advocacy skills will involve interactive role play and practical tips.

2. THE BLACK, PUERTO RICAN, HISPANIC AND ASIAN CAUCUS's Criminal Justice Workshop series was a huge success and proof of the momentum that is building. People are realizing that incarceration is a justice issue, and in particular a racial justice issue.

3. CALL OUTS: A group of advocates is looking for those affected to join efforts to end the abuse of SHU. Cornell Law School is seeking interviews with formerly and currently incarcerated women about their experiences.

4. CAMPAIGN TO END THE NEW JIM CROW has issued a statement of solidarity with the Occupy movements. All of the 99% stand to win when injustice is uprooted.


5. Criminal Justice LEGISLATION was presented for a vote by the Senate's Crime Victims, Crime and Correction Committee meeting on March 7. Listed are 22 of the bills including the votes. Prison Action Network was there. It was not a pleasant experience.


6. NY IS STILL IN NEED OF PAROLE REFORM Applying old backward-looking static factors while attempting to follow the new dynamic procedures for parole release decision-making based upon present and future-looking risk and needs principles creates a contradiction that the Parole Board will find very difficult to reconcile.

7. PAROLE NEWS: In January no A1VO was released on their initial board. 23% of those reappearing were granted release. Thwaites saw a de novo Board in March.


8. PRISONER JUSTICE COLUMN Last month's Mass Incarceration article reprinted including sections which were mistakenly omitted last month.


9. The National Action Network's Political Action & Second Chance Committees are hosting a ROCKEFELLER DRUG LAWS FORUM for those who want to know more about what the Rockefeller Drug Laws are, and about the Criminal Justice Reform Movement.

10. 2012 REMOVING THE BARS: "TAKE ACTION" Conference will include a Parole 101 panel discussion on Saturday March 24 from 2:15 to 3:45pm and a presentation by Angela Davis on Friday night.


11. SECOND LOOK THINK TANK from Sullivan C.F. concludes that New York State’s public safety levels—in other words, the recidivism rate—and the state’s fiscal hemorrhaging can be linked, at least in part, to the parole release decisions made by the Parole Board .


12. STAINS:CHANGING LIVES AFTER INCARCERATION is a documentary about life after incarceration, as seen from the families' perspective.

13. A COMMUNITY DIALOGUE ABOUT WOMEN AND REENTRY, Coming Home: Struggling Towards Success. Moderated by Piper Kerman, with panelists Tish, Selina Fulford, Mary McKay, Sister Mary Nerney. Special Guest Manhattan Borough President Scott M. Stringer.

14. WORK FOR SUCCESS, an initiative by Gov. Cuomo, is aimed at reducing unemployment rates for people returning home from prison. CEO will be the model program. Many advocates and legislators support this approach.

The Lives of Juvenile Lifers: Findings from a National Survey

The Sentencing Project has produced a new report: The Lives of Juvenile Lifers. The report investigates the life experiences of individuals serving sentences of life without parole for offenses committed as juveniles, and presents findings from the first-ever national survey of this population.

See:
The Lives of Juvenile Lifers: Findings from a National Survey, by Ashley Nellis (The Sentencing Project, March 2012)
Study: More Black Juveniles Sentenced to Life Without Parole, by Lewis Beale (Miller-McCune, 1 March 2012)
Report Looks at Lives of Inmates Sentenced to Life Without Parole as Juveniles, by Ryan Schill (Juvenile Justice Information Exchange, 1 March 2012)

NY DOCCS Moves Toward Supervising Parolees by Risk Level

Extract from report by the Upper Manhattan Reentry Task Force (UMRTF):

... Historically, NY DOCCS (Division of Corrections and Community Supervision) has employed a static risk assessment ("DCJS Risk") to assign individuals being released to the community a risk level. The assessment looked at age, gender, and history of criminality to determine the risk of a parolee's recidivism. The assessment did not take into account the attitudes and beliefs of individuals leaving prison, one of the prime predictors of recidivism. Therefore, unless the individual had "aged out" of criminal activity, he/she was considered to be the same risk that he/she was prior to his/her prison term. Once released to the community, Field Parole Officers supervised all parolees similarly, independent of risk, until he/she got to know the client personally and made adjustments to the client's supervision mandates.

Now, DOCCS is in the midst of implementing some massive changes. As I learned at a County Reentry Task Force Meeting this past Friday, February 28, 2012, as of March 1, 2012, every individual being paroled from all NY DOCCS facilities will receive an actuarial risk assessment called "COMPAS Reentry." The COMPAS tool, created by Northepointe, Inc., "a research and consulting firm, offering software products, training, and implementation services to local, state, and federal criminal justice systems and policy makers," measures standard risk factors in combination with reentry domains such as early onset of delinquency, history of non-compliance, occurrences of prison misconduct, substance abuse, the risk of housing problems, criminal thinking, etc. The COMPAS then calculates a client's risk of recidivism and risk of absconding, and offers a personalized client needs scale to parole officers and case managers that can be used to prioritize case planning and supervision.

NY DOCCS will be using the risk numbers produced the COMPAS tool to determine how intensively parolees will be supervised. DOCCS has created four risk level designations (Levels 1-4) that will be assigned to a parolee based on his/her COMPAS score. Each Bureau Chief across the state will determine how to divide up parolees on a PO's caseload using the risk levels. For instance, a Bureau Chief can determine that a PO will supervise only cases that are assigned one risk level. A high risk caseload may consist of 25 parolees, while the lowest risk caseload may consist of as many as 120 parolees. DOCCS did not give us an estimate regarding how long this transition to the level system will occur.

We also learned, that by statute, the Parole Board must now receive a risk assessment of every inmate that goes before them. This risk assessment will be the COMPAS. ...

For complete report, see:
NY DOCCS Moves Toward Supervising Parolees by Risk Level (Re-thinking Reentry, 28 February 2012)

Summary and comparisons of parole board appearances for A1 violent offenders in 2011

CURE-NY give the following unofficial summary and comparisons of parole board appearances and releases in 2011 for A1 violent offenders.

2011 A1VF SUMMARIES AND COMPARISONS:

INITIAL BOARDS:
218 interviews, 26 releases; for a release rate of 12%. Two of those 26 were rescinded. In 2007 there were 41 initial releases, 25 in 2008 after the hearing held by Senator Nozzolio, in 2009 there were 38 initial releases, and 39 in 2010, making 2011 the second lowest number of release decisions, as well as the second lowest rate of releases, in the last five years. Three of those initial release decisions were for deportation only, making the % of those released to their home communities 10.5%

REAPPEARANCES:
979 interviews, 209 releases; for a release rate of 21%. That is the second highest in the past five years. 31 of the 209 were released for deportation making the rate released to the U.S. 18%. Four of the 209 were released to another state and another 4 were released on special consideration hearings.

MEDICAL PAROLE:
This year saw what is believed to be the first A1VFs released on medical parole. A man was released on a medical parole board, although he had been parole eligible since 2002. A woman was released on a "true" medical parole board several years before reaching her parole eligibility date.

GENDER BREAKDOWN:
Of the 218 initial interviews, 212 were males (97%), 6 were females (3%). Of the 26 initial releasees, 25 were males (96%), 1 was female (4%).

Of the 979 reappearance interviews, 957 were males (98%), 22 were women (2%). Of the 209 releasees, 201 were male (96%) and 8 were female (4%).

RACIAL/ETHNIC BREAKDOWN:
Of the 218 INITIAL interviews, 123 (56%) were Black, 58 (27%) were Hispanic, and 32 (15%) were White. Of the 26 initial releasees, 16 were black (62%), 8 were Hispanic (31%) and 2 were White (8%). (Remaining numbers are other and unknown ethnicities.)

Of the 979 REAPPEARANCE interviews, 522 (53%) were Black, 239 (24%) were Hispanic, and 208 (21%) were White. Of the 209 releasees, 116 were Black (55%), 61 (29%) were Hispanic [or 51 and 24% excluding deportations], and 28 (13%) White. Remaining numbers are other and unknown ethnicities.

PRISON CATEGORY:
MEDIUMS: 728 (61%) of all interviews with 178 released (75% of releasees).
MAXIMUMS: 451 (38%) of all interviews with 57 released (24% of releasees).
The remaining interviews were in other facilities such as Walsh Medical Center or CNYPC.

HOW MANY BOARDS–NUMBER OF RELEASES–PERCENT OF TOTAL (235):
First —26–11%
Second —41–17%
Third —43–18%
Fourth —28–12%
Fifth —30–13%
Sixth —24–10%
Seventh —12*–5% *includes 1 medical release
Eighth —14–6%
Ninth —5–2%
Tenth —7–3%
Eleventh —4–1.6%
Twelfth —2–0.8%

AGES AND LENGTH OF INCARCERATION:
9 of those released were between the ages of 73 and 83, all on reappearances.
26 of those released were in prison since the 1970s, one since the 1960s, 111 since the 1980s and 97 since the 1990s.
[2 of the initial releasees were born after 27 of the other releasees had gone to prison.]

**None of the previous numbers are official or scientific; nor account for any de novo boards. The results are based upon unofficial, best efforts research. Please FOIL the Board of Parole for exact and official data.