Under state law, individuals who are arrested on a parole violation have a constitutional right to a hearing to determine whether the violation has occurred.
For most cases, this means that a judge determines 1) if a violation has occurs and 2) the parolees sentence.
However, in some cases, where the individual is in parole for a more serious crime such as a homicide, sex crime, or kidnapping, New York State parole division rules makes the hearing officer's decision a "recommendation that can be overriden by a single member of the state parole board."
Pursuant to a recent decision made by the Appellate Division of the New York State Court, that practice is unlawful.
The court held on Tuesday that the "parole rule amounts to a 'usurpation of the legislative perogative'" which intended that hearing officers have the final authority on a parolee's sentence.
The unilateral decision of the single member of the parole board not only contravenes the intent of the legislature, but violates due process.
If the ruling stands, all sentencing determinations for parole violations will be made by a hearing officer.
NY parole procedure invalid, unconstitutional: state appeals court (Thomson Reuters News and Insight, 14 February 2012)
NY Parole Violation Sentencing Procedure Found Unconstitutional for Serious Crimes (Re-thinking Reentry, 16 February 2012)