The Safe And Fair Evaluations (S.A.F.E.) Parole Act S1128/A4108: an update

Below is an encouraging update on the progress of the SAFE Parole Act, given by the Prison Action Network:

The Safe And Fair Evaluations (S.A.F.E.) Parole Act S1128/A4108

"There is good news! Much to our surprise, the SAFE Parole Act was introduced by Senator Kevin Parker (without even being asked!) and given its 2013 number, S1128. A few days later, Senator Kennedy signed on. In the Assembly, Speaker Pro Tempore Jeffrion Aubry sponsored it and it was given the number, A4108. Multi-sponsors Brennan, Crespo, Farrell, Gottfried, Scarborough, and co-sponsors Hevesi, Stevenson, and Clark also signed on.

Newly appointed to the leadership of the Assembly as the Speaker Pro Tempore, Jeffrion Aubry is no longer on the Corrections Committee, but is a member of the Assembly's Codes committee. He has been replaced as the Chair of the Assembly's Corrections Committee by Daniel O'Donnell, who signed on to the SAFE Parole Act last session, and hopefully will again this year.

Prison Action Network visited with Senator Parker and together we designed a strategy, which is basically to intensify what we have already been doing, sending our stories to Committees in both houses, and then to our own representatives, with copies sent to Senator Parker to show his colleagues how much support there is. He is not on the Senate's Crime Victims, Crime and Corrections Committee, but he is on Finance and Rules where many bills have to pass before going before the Senate for a vote. Both houses need to pass the bill before it can become a law, and the Governor has to sign it."

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.'

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.

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)

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.

Update on the Graziano case, December 2011

Extract from article:

The Appellate Division, Third Department, has refused to reinstate an action on behalf of violent felons who contend the parole board has systematically violated state law in routinely denying release to Class A-1 convicts. The same issue was unsuccessfully litigated in federal court.

Graziano v. Evans, 512150, is the state court version of Graziano v. Pataki, 7:06-cv-00480, a Southern District case dismissed a year ago by Judge Cathy Seibel.

Judge Seibel rejected the plaintiffs' constitutional claims and the state courts have rejected their statutory claims.

The Third Department affirmed Albany Acting Supreme Court Justice Roger D. McDonough in dismissing the state court action ...

For full details, see the end part of this article:
Parole Board Ordered to Apply Retroactively Rehabilitation Factor, by John Caher (New York Law Journal, 27 Dec 2011)
See also:
A brief summary of the history of the Graziano case (Building Bridges, January 15 2012, at the end of section 5: Parole News)

Kitty Genovese's murderer is denied parole

The revision of Executive Law §259(c) included in this year's executive budget requires the parole board to establish and apply "risk and needs principles to measure the rehabilitation of persons appearing before the board" and the likelihood of success should the offender be released. In the past, the board "could" consider those factors; now it "must" consider them.

Winston Moseley was among the first group of parole-eligible offenders subject to the new criteria (New York Law Journal, September 30 2011). An examination of the transcript of Moseley's parole hearing provided by the New York Law Journal indicates that nothing much has changed; despite the revision in the law the board still focused almost entirely on the nature of his crime, giving very little consideration to his achievements while in prison or his plans if released. Moseley has been denied parole for the 15th time.

John Caher gives the board's decision:

The parole board, in a decision by Commissioners Henry Lemons and Sally A. Thompson, said it took into consideration Mr. Moseley's "good institutional conduct and your many program and institutional accomplishments," as well as "your letters of support and all relevant matters required by law." However, the board told Mr. Moseley that, "After a review of all factors it is the conclusion that there remains a probability that if released you might not live at liberty without re-offending. You remain a threat to the community and parole is again denied."

For further details, see:

Kitty Genovese's murderer is denied parole, by John Caher (New York Law Journal, November 8 2011)

Law Requires Board to Assess Rehabilitation in Parole Rulings, by John Caher (New York Law Journal, September 30 2011)

NYSACDL Supports Call For Parole Reform

The NYSACDL [New York State Association of Criminal Defense Lawyers] has joined a growing list of legal, advocacy and community organizations that have called for the reform of New York parole law. This diverse coalition supports the Safe And Fair Evaluation of Parole Act, also known as the SAFE Parole Act. The SAFE Parole Act would amend New York’s existing parole statute, Executive Law § 259-i... ...

WHY PAROLE REFORM NOW?

It might be asked why parole reform should be supported at a time when the newly appointed New York State Permanent Sentencing Commission seems poised to recommend adoption of a mostly determinate sentencing scheme for nonviolent felonies, adding it to the determinate scheme already adopted for violent and drug felonies. The answer is simple. No matter how quickly the Sentencing Commission and the Legislature act, there will still be thousands of people in prison serving indeterminate sentences for decades to come who will face parole board appearances. For example, there is certainly no consideration being given to ending indeterminate life sentences for A-1 violent felonies, A-1 drug conspiracies and major traffickers or persistent felony offenders.

In fiscal year 2009-2010 the Parole Board conducted over 19,000 hearings for people who were serving indeterminate sentences. It will take years for that number to diminish substantially. As of January 1, 2009 there were over 9,100 men and women in New York prisons serving life sentences for A-1 violent felonies. With an initial parole release rate of just 8% for A-1 violent felons, and a subsequent parole release rate of 13%, the number of people requiring parole consideration will measure in the thousands for the foreseeable future. The remarkably low release rate for this population reflects the Parole Board’s aversion to parole release for applicants convicted of A-1 violent felonies. The Parole Board has chosen to focus on the “serious nature of the criminal offense” rather than looking at factors grounded in prison based performance, to determine if there is a reasonable basis to conclude that the individual will live a law abiding life if released. It is noteworthy that the recidivism rate for this group is significantly lower than any other group of parole releasees. According to the Division of Parole, of the 784 people serving life sentences for A-1 violent felonies who were released on parole during 2006, 2007, 2008 and 2009 the recidivism rate, measured by return to DOCS for a new felony conviction, was 1/4 of one percent.

It is both unfair and bad corrections policy to require such a significant number of people to continue to be subject to a parole release system so fundamentally flawed.

For full article, including a review of some of the changes proposed by the SAFE Parole Act, see:

NYSACDL Supports Call For Parole Reform (Atticus, Volume 23 Number 1, Winter 2011)

Law Requires Board to Assess Rehabilitation in Parole Rulings

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)

SAFE Parole Act backed by Correctional Association of NY

J. Soffiyah Elijah took office as the executive director of the Correctional Association of New York (CA) on March 14 — and while she acknowledges that she is still settling into that role, she has declared herself to be an ardent advocate of the ongoing parole reform movement. The CA is one of only two private organizations in the country (and the only one in New York) with legislative authority to inspect and report on conditions in state prisons.

Elijah has expressed strong support for the SAFE Parole Act — which was introduced in mid-May by State Senator Tom Duane and State Assemblyman Jeffrion Aubry. The bill, which is at this point still within committees in both houses and has yet to be voted on, would amend the statute of New York State law governing procedures taken by the state’s Parole Board during prisoners’ applications to be released on parole. Among other things, the bill would make it necessary for all parole hearings to be done face-to-face (they are often done by videoconference), and would force the Parole Board to judge an applicant’s request to be released based on their behavior, education and rehabilitation while in prison — and not on the nature of their crimes.

“I think that a lack of information, especially in terms of how parole should work, is what divides people and makes some of them unreceptive to reform,” said Elijah in a June 24 phone interview. “The fact is that when you deny parole based on the nature of the original offense, you basically condemn people to die in prison — and that’s not what sentencing is for.” ...

... A particular area Elijah highlighted when expressing the need for parole reform was that of the aging prison population. She added that, under her direction, she would like to see the CA work with the Prison Action Network (the advocacy group that worked with Senator Duane to create the SAFE Parole Act) to build a campaign around that issue. She called it an “early, embryonic” idea, but hopes to eventually build support for another in-depth look at the parole guidelines as they specifically affect older prisoners.

“Recidivism drops drastically after the age of 40 or 45, and people need to be informed of the lack of value in the continued incarceration of the older prison population. There’s just no public safety concern — it drops to less than five percent. And if we look at those facts, why are we spending up to $124,000 a year to keep an older prisoner with medical needs incarcerated?” ...

For full text of article, see:

SAFE Parole Act backed by Correctional Association of NY, by Sam Spokony (Chelsea Now, July 13 2011)

Duane spearheads state parole reform

On May 13, State Senator Duane introduced the Safe and Fair Evaluations (SAFE) Parole Act to the Senate’s Crime and Correction Committee. The bill would provide landmark reform to New York’s parole system by amending paragraphs “a” and “c” of Executive Law § 259-i, which dictate current procedures for parole hearings.

“I’ve heard directly from so many inmates who’ve been unfairly denied parole,” Duane said in a phone interview last week. “It was their experiences that led me introduce the legislation.”

The inmates to whom he was referring are mainly those who have committed A1 felonies — and, of those, primarily murder — but have shown an high level of rehabilitative effort based on sustained good behavior and exemplary performance in academic, vocational or social programs (along with having served time well beyond their minimum sentences). The major obstacle for those inmates once they apply for parole is the fact that the Parole Board always treats their pleas based not on their records of improvement but on the violent nature of their original crimes. This has invariably led to repeated denials — even for inmates who have the support of family, community members or advocacy organizations.

In its current form, the bill redefines those standards by which inmates would be judged at a parole hearing, with the overriding focus on “preparedness for reentry and reintegration.” The amendments would make it more clearly unlawful to deny an applicant based on the nature of their crime (although doing so is already a technical violation of the current 259-i statute). The bill would also do much to change the setting in which hearings are held — by requiring the Parole Board to meet face-to-face with any prisoner making a case for his or her release, as opposed to the more impersonal and psychologically distant videoconferences that often take place.

Another notable amendment to the state law proposed by the bill is the language used within it. All instances of the word “inmate” are replaced with the decidedly more innocuous “parole applicant.” Judith Brink, the director of Prison Action Network — a prisoner-rights advocacy group that worked with Duane to create the SAFE Parole Act — understands that steps forward in a paradigm shift in the way ex-convicts are perceived by the public begins with the simple changes in terminology found in the bill.

“Removing the stigma of dehumanization from people who’ve committed crimes in the past, as well as from their loved ones, is a huge part of this,” she said. “It’s important now because I think that more people who are directly affected by the prison system are seeing that the ‘shaft of shame’ is disappearing.”

Brink also made it clear that the SAFE Parole Act is only a small piece of the Prison Action Network’s much larger movement called “The Reintegrative Justice Campaign,” which will work to change the response to crime from a punitive one to one that sets a goal of reintegration throughout the process.

“We picked this issue now primarily because of the fact that so many people are being denied parole based solely on the nature of their crimes, even though they have transformed themselves and really want to give back to their communities,” Brink said. “But we saw, as soon as we looked at the prison system, that it needs reworking from beginning to end. From the moment somebody’s arrested, the system has to change.”

What may be more pressing at this point — while both the authorities and the public have yet to fully adopt such a liberal view of those who are or have been incarcerated — is making sure that the Parole Board is not able to circumvent the state law even after it has been amended. Robert Isseks, a Middletown attorney, is skeptical about board members following the letter of the law — because he’s already suing them for it. He currently represents ten inmates in an ongoing class action lawsuit against the state.

“The Parole Board has not been exercising its discretion according to the statute [259-i], which states that it should be done on an individual, case-by-case basis. When it comes to people convicted of A1 [felonies], they arbitrarily deny them based on that and for no other reason,” Isseks said. “So let’s just say that there’s certainly reason to doubt whether the board will follow [a new bill], simply because they’ve already continued to break the rules in that regard. So that’s troubling.”

But Duane is confident in the strength of his bill, as well as its chances of passing through the State Senate with relatively few changes. Like Brink, he sees it as one part of a greater shift that will take place — and that now, it’s just a matter of getting his peers and their constituents on board.

“I believe that all of the elements of the legislation are common sense and fair,” he said. “I wouldn’t pick out one more particular section and say that it would be more or less palatable, because holistically, it’s going to reform the parole system, and people are either going to be supportive of that or not.”

Assemblyman Jeffrion Aubry introduced the SAFE Parole Act into the Corrections Committee of the State Assembly on May 25, but could not be reached for comment regarding the bill. He was also conspicuously absent from the College and Community Fellowship’s 11th Annual Graduate Celebration for formerly incarcerated women who were receiving college degrees, which took place last Thursday in Harlem.

The Department of Corrections and Community Supervision — which includes both the former Department of Correctional Services and Division of Parole (a merger created by Governor Cuomo’s 2011-12 Executive Budget) — declined to comment on the bill.

Both versions of the SAFE Parole Act — within the State Assembly and State Senate committees — have yet to be voted on or discussed at length by the committee members. Chelsea Now will continue to cover the development of the bill, as well as the ongoing parole reform movement, throughout the year.

The SAFE Parole Act can be found at: http://open.nysenate.gov/legislation/bill/S5374-2011

Duane spearheads state parole reform, by Sam Spokony (Chelsea Now, June 15 2011)

Senate wants to create violent offenders registry

The state Senate have passed a bill that would make it easier for New Yorkers to find out if their neighbor has a violent past.

The legislation would create a statewide violent offender registry, similar to the one in place for sex offenders. The bill, S3645C, also known as Brittany's Law, was introduced by Sen. Joseph Griffo, R-Rome, and has 14 co-sponsors, including Mike Nozzolio, R-Fayette.

The Republican-controlled state Senate voted overwhelmingly yesterday to force violent felons to register their names and whereabouts annually with local law enforcement and on an Internet database accessible to the public.

The proposal would only apply to new violators convicted of charges deemed violent in state law. The registry would require anyone convicted of a violent felony to update their information annually for 10 years, or more frequently for the most grievous crimes. After a decade, the felon would no longer be required to check in, although his name would remain in the database. Felons could also seek judicial relief from the requirement to register.

For full story:

Senate wants to create violent offenders registry (Legislative Gazette, May 17 2011)

A new tool to fight violence: "Brittany's Law" gaining after deaths of innocents (Times Union, May 18 2011)

Outing violent felons: thug-registry push (NY Post, May 18 2011)

Senate passes bill to create registry of violent felons (Democrat and Chronicle, May 18 2011)

1 Albany bill's great; the other, misguided (Times Herald Record, June 18 2011)

Building Bridges conducts research into 180 parole hearings in the state of New York

Research from Building Bridges, March 2011:

"Building Bridges submitted a FOIL Request to Parole and received 9 months worth of commissioners' names who were present for hearing from 1/1/10-9/15/10 (approximately 180 hearings). We wanted to learn if there was any substance to readers' protests that some commissioners never release people with A1 violent felony convictions at the completion of their minimum sentence, and that commissioners were not assigned randomly, as the Parole Board has claimed. We also were trying to see if there was any evidence to support claims that hearings are predetermined, as is the almost universal opinion of men and women who appear before the parole board. Bear in mind that parole boards are made up of either two or three commissioners, and the decisions are made in the name of the lead questioner at the hearing, so there is no way to know how specific individuals voted.

That said, here is what we saw as we looked at the record: Some commissioners were paired with each other more often than would be expected to randomly occur, specifically Ferguson and Elovich, Gallivan and Greenan, Hagler and Smith, Grant and Loomis. Some, particularly in Western NY, tend to be on boards in their home area more often than not, with Gallivan appearing on 5 out of the 7 hearings held at Gowanda during the Foil period, Greenan on 4 out of 7 at Wende/Collins and Crangle on 4 out of 7 at Albion.

Crangle, Hernandez, Lemons, Ludlow and Thompson were each twice on boards that released a person with an A1VO on his/her initial appearance, while Ferguson and Gallivan each were only once on a board that released an A1VO on his or her first board. We could find no initial releases of A1VOs under boards with Smith, Greenan, Hagler or Elovich during the Foil period (9 months).

All A1VO initial releases came out of mediums except for 3 which came from max’s. All three of those at max's were released by Grant, Loomis and Ross. We do not understand this. Surely the Board understands that being in a maximum facility does not mean that the person is any less deserving of release than someone in a medium. There are many reasons a person could be in a max; not all are punitive by any means. For example, a person can request to be transferred to one. Max's have cells as opposed to dormitories and some people prefer the privacy. They also have family reunification programs, and weekday visiting hours, which makes prisoners with families nearby prefer them.

No A1VO was released on an initial board from any of the facilities in the Elmira hub, not just in the 9 months of data Foiled but in the four years that Building Bridges has published these statistics. The Elmira hub consists of Elmira, Auburn, Five Points, Cayuga (med) and Southport. The second hub least likely to be released from on a first hearing is the Watertown hub - Gouverneur, Watertown, Cape Vincent, Ogdensburg and Riverview (all mediums) - which has seen the release of only two A1VOs on initial boards in the last four years, while Elmira has seen zero, according to our research.

That was perhaps the most disturbing fact of all - that some facilities have no/virtually no initial board releases of A1's. It gives support to the theory that decisions are predetermined and not based on individual merit. We will continue to search for the reasons. If readers can add anything to our research, please do so."

Cop-Killers Not Gaming System

Cop-Killers Not Gaming System

PBA's 'Parole-Shopping' Claim An Urban Legend

By ANDREA W. EVANS

Published in The Chief, Letters to the Editor, December 10, 2010

Patrolmen's Benevolent Association President Patrick J. Lynch has gotten a lot of mileage in the media in recent weeks (see The Chief, Dec. 3 issue: "PBA: Stop Cop Killers' Parole-Shopping") with the allegation that cop-killing inmates are gaming the parole system by postponing their interviews until they get a panel to their liking. Unfortunately, Mr. Lynch is factually inaccurate.

In support of his argument, Mr. Lynch cites five inmates (four named in last week's article in The Chief and another cited to the New York Daily News) whom he accuses of "parole-commissioner shopping," contending that each of them was able to postpone a scheduled appearance before the Parole Board in an apparent effort to stack the deck in their favor. I reviewed each of those cases and found that none of the individuals requested a postponement.

Here are the facts:

Samuel Hamilton—Mr. Hamilton's initial interview was postponed, but the postponement was not at his request. Mr. Hamilton was hospitalized and physically unavailable to attend the interview. When he did subsequently appear, Mr. Hamilton was denied parole.

Lawrence Harris—We have no record of Mr. Harris ever receiving a postponement. He has appeared before the parole board nine times, and was denied each time. He remains in prison.

Steven Chirse, Ronnie Bush and Rodney Bailey—Interviews for these three inmates were postponed, but not at the request of the inmates. The Parole Board postponed the matters because the record was incomplete and the sentencing minutes had not arrived. At rescheduled interviews, and after the Parole Board had an opportunity to review the sentencing judge's comments, all three were detained and remain imprisoned.

Mr. Lynch's allegation in the media of "rampant Parole Commissioner shopping" and his contention that "cop killers are 'forum-shopping' by adjourning their scheduled parole hearings for no legitimate reason" is simply not true. Regardless, I am concerned about the perception that inmates are exploiting the interview process and implemented the following safeguards last month, and explained in a letter I sent to Mr. Lynch on Nov. 26:

An inmate requesting to postpone a scheduled appearance before the Parole Board must inform his or her facility Parole Officer no less than seven days before the scheduled interview. This will alleviate the possibility that an inmate attempts to postpone an interview because he or she has learned which commissioners are on-site on a particular day.

When a facility Parole Officer is informed by an inmate prior to his or her appearance before the Parole Board that he or she intends to seek a postponement, the facility Parole Officer shall prepare a memorandum to the Board detailing the reasons provided by the inmate for the postponement.

The inmate requesting a postponement will appear before the Parole Board at the regularly scheduled release interview to make a formal request for postponement and to place on the record the reasons why a postponement should be granted. The Board will determine whether to grant or deny the request.

If an inmate refuses to appear before a panel of the Parole Board at his or her regularly scheduled release interview, the board shall conduct the interview in absentia.

It is my hope that this policy will curtail any attempts to forum-shop, as well as the perception that inmates are manipulating the process.

Finally, I would like to stress that it is the Legislature—not the Board of Parole—that has made "cop killers" eligible for parole.

The Legislature could have mandated that those who kill police officers serve a sentence of life without parole. There was no such law at the time the inmates above were sentenced, and there is still no such law (although a life-without-parole sentence is now possible, as a judicial option, in certain cases). It is not the role of the Parole Board to impose a sentence that was neither authorized by the Legislature nor pronounced by the court. Rather, it is the Parole Board's role to apply the law as written and give fair consideration to anyone serving a parole-eligible sentence, even those involved in the homicide of a police officer. That is what the Board does, and must continue to do, until and unless the Legislature directs otherwise.

Ms. Evans is the Chairwoman of the New York State Board of Parole and Chief Executive Officer of the New York State Division of Parole.

See also:

Stop Cop-Killers' Parole Board Shopping: four delay hearings. (The Chief, December 3 2010)

Graziano v. Pataki update: December 10th 2010

A major disappointment in the Graziano v. Pataki federal civil rights case, which aims to restore justice and fairness to the parole hearings of inmates convicted of violent felonies.

GRAZIANO v. PATAKI update from the Prison Action Network:

On Friday, Dec 10 2010, Judge Seibel of the US District Court, Southern District of New York, dismissed the above-referenced case under Federal Rule of Civil Procedure 12(c). The court declined to follow the law of the case decided by the late Judge Brieant, and despite not finding a change in the applicable law, decided to follow a non-binding, unpublished opinion by the Second Circuit Court of Appeals. In short, the judge stated that even if the NY Parole Board is violating state law by deciding that all those convicted of murder should be denied parole, it is a matter of concern for the state courts, not the federal constitution. Robert Isseks, Alex Smith and Peter Sell, the legal team representing Graziano et. al. intend to appeal this ruling.

Additionally, in September Judge McDonough in Albany State Supreme Court dismissed their claim on state law grounds. They plan to appeal to the Second Circuit.

New Bills sponsored to amend the Parole Statute

The controversy over parole reform continues, with the sponsoring of the following new Bills to amend the Parole Statute, Executive Law §259 (i). Bills S08259 and S08260 were introduced by Senator Martin J. Golden, while Bill S08360 was introduced by Senator Michael F. Nozzolio. Once again, Senator Golden focuses on denying parole to inmates who have killed a police officer, regardless of an inmate's remorse, rehabilitation, any qualifications and achievements gained whilst in prison, and all the other factors to be taken into consideration in Executive Law §259 (i). Whether these Bills ever become law or not, Republican senators are making their intentions very clear.

S08259: Requires unanimous agreement by the parole board to release an inmate on parole.
Justification for S08259: "When it comes to making the critical determination whether to set someone free on parole, the board should seek unanimity. Consider recent decisions that resulted in the release of cop-killers. Recently, the Parole Board voted 2-1 to grant parole to cop killer Shuaib Raheem. Raheem was involved in a botched armed robbery in Williamsburg, NY in 1973, which resulted in the death of Patrolman Stephen Gilroy and injured Patrolman Frank Carpentier. Also recently, after pressure from some Senators and police organizations, cop killer John MacKenzie, who opened fire during a burglary in West Hempstead in 1975 and killed Nassau County Police Officer Matthew Giglio, was denied parole. Another convicted copkiller Anthony Blanks was scheduled for a parole hearing at Shawangunk State Prison in Wallkill, NY. Blanks is a cold-blooded cop-killer and a dangerous criminal. He killed Patrolman Arthur Dematte in 1976 in Larchmont, using the policeman's own revolver, and then fled in his police cruiser. His hearing has now been postponed. That homicide left Patrolman Dematte's wife without a husband, his four young children without a father, and his fellow officers without a friend and partner. Each time Anthony Blanks is eligible for parole, the family is once again victimized and the Police Department relives this tragedy."

S08260: Relates to the appearance of certain law enforcement officers at parole hearings.
Justification for S08260: "When it comes to making the critical determination whether to set someone free on parole, the board needs all the evidence it can muster. This should include information from those with the most intimate knowledge of what the inmate is capable of. Police agencies know this better than anyone else. Consider some of the recent determinations by the board: Recently, the Parole Board voted 2-1 to grant parole to cop killer Shuaib Raheem. Raheem was involved in a botched armed robbery in Williamsburg, NY in 1973, which resulted in the death of Patrolman Stephen Gilroy and injured Patrolman Frank Carpentier. Also recently, after pressure from some Senators and police organizations, cop killer John MacKenzie, who opened fire during a burglary in West Hempstead in 1975 and killed Nassau County Police Officer Matthew Giglio, was denied parole. Another convicted cop-killer Anthony Blanks was scheduled for a parole hearing at Shawangunk State Prison in Wallkill, NY. Blanks is a cold-blooded cop-killer and a dangerous criminal. He killed Patrolman Arthur Dematte in 1976 in Larchmont, using the policeman's own revolver, and then fled in his police cruiser. His hearing has now been postponed. That homicide left Patrolman Dematte's wife without a husband, his four young children without a father, and his fellow officers without a friend and partner. Each time Anthony Blanks is eligible for parole, the family is once again victimized and the Police Department relives this tragedy."

S08360: Directs the division of parole to maintain a current list of all inmates due to appear before a parole board.
Justification for S08360: "The rate of release of violent felons, particularly those who have committed murder, has recently dramatically increased. New State Division of Parole data shows that A-1 violent felons appearing for the first time before the Parole Board are now being released at a rate 180% higher than during Governor George Pataki's last term in office. Felons who reappear before the Board are being released at a rate 122% higher than during Pataki's last term. Media reports have also detailed several instances where A-1 murderers have been released without any contact with the victim's families. The Division of Parole maintains an Internet web site, but does not provide any information to the public on the web site regarding who will be considered for parole or the dates of parole hearings. The Division also does not provide information to the legislature as to whom has been released and the rates of release."

Shu'aib Raheem is paroled

Shu'aib Raheem is finally paroled, amid furore from the media.

See articles below:
Outrage As Convicted Cop Killer Walks Free In New York (myfoxdetroit.com, July 3 2010)
Man convicted in 1973 cop slay freed (New York Post, July 3 2010)
Police blast release of man in 1973 officer slay (Associated Press, July 3 2010)
Cop killer Shu'aib Raheem paroled 37 years later, NYPD outraged by decision (New York Daily News, July 3 2010)
Cop Killer Walks: outrage from victim's kin and police pals (New York Post, July 3 2010)
Brooklyn cop killer Shu'aib Raheem free after 35 years behind bars for Stephen Gilroy death (New York Daily News, July 2 2010)

Shu'aib A. Raheem wins parole release from prison

Amid the ongoing controversy over the parole release of violent criminals and the injustice and inconsistencies inherent in New York State's Parole Statute, Shu'aib A. Raheem has won his release from prison. His particular case has caused much dispute but finally, at his rescission hearing on Thursday June 3rd, the Parole Board voted 2 to 1 to free him. According to officials, Parole Board members Thomas Grant and Debra Loomis voted for his release, while Henry Lemons voted against it. Raheem will be freed no later than July 8th.

Senate Republicans, led by Senator Martin Golden, reacted to the news of Raheem's parole release by immediately joining with police organizations to call for stronger parole laws.

The Paterson administration gave a swift response: "Sen. Golden's comments are outrageous and he owes Governor Paterson and his administration an apology," said Paterson spokesman Morgan Hook. "The two Parole Board members who voted in favor of releasing Shu'aib Raheem are Pataki appointees. Both of their terms expire this month and they will both be replaced by Gov. Paterson."

Further details may be found in the following articles:
On June 3, Shu'aib Raheem was granted parole release for the second time in three years (Building Bridges, June 13 2010)
Golden says Paterson Admin has blood on its hands over parolee (NY Daily News, June 8 2010)
Senate Republicans join with police organizations to call for stronger parole laws (New York State Senate, June 8 2010)
'What the hell WERE they thinking?' Parole idiots suck up to '73 cop killer Shuaib Raheem (NY Daily News, June 5 2010)
Cop-killer on the roam (New York Post, June 5 2010)
Parole for Police Officer's Killer (NY Times, June 4 2010)
Shu'aib Raheem, who killed NYPD cop in 1973 botched robbery, to be released from prison (NY Daily News, June 4 2010)

Convicted of Murder as Teenager and Paroled at 41

Convicted of Murder as Teenager and Paroled at 41, by Trymaine Lee (New York Times, June 4 2010)

A story in the New York Times follows Diana Ortiz through all her parole hearings. Ortiz was sentenced to 17 years to Life for her role in the killing of an off-duty police officer in 1983. Robert Dennison was Chairman of the Parole Board that finally freed her, after she had spent more than half her life in prison.

Brief extracts from the article follow, where Robert Dennison refers to the subjectivity and the pressure of parole hearings, particularly in the case of so-called A1 violent offenders:

... Parole Board members, who must have a college degree and five years of experience in criminal justice, sociology, law, social work or medicine, can serve an unlimited number of six-year terms, earning $101,600 a year. By law, they must interview inmates in person and are required to consider their criminal histories, prison achievements and sense of remorse. Ultimately, though, parole decisions are subjective. "It's a real hard issue: how much time should you do for taking a life?" Mr. Dennison said. "Many times, the parole commissioners feel differently than the judge and probably say to themselves or say to one another, 'I don't really care what the judge gave the person, I don't feel comfortable letting this person out. And I am going to hold him for two more years.' And that can go on and on and on forever."

... Governor Pataki, a Republican, at one point tried to change state law so that A-1 offenders could not be paroled, and in 2006, a group of A-1 offenders filed a class-action suit claiming his administration had an unwritten policy that violated their rights by denying parole based solely on the severity of the crime. "I never got any direct pressure from Pataki not to let certain people out," Mr. Dennison said, "but he did make it clear in the newspapers that he didn't want violent felons released."

... Mr. Dennison said he witnessed spirited debate and angry outbursts among the commissioners, and developed a keen understanding of the subtle — or not — messages sent from the offices of elected officials about certain kinds of cases. "The way it works is that you are free to make whatever decision you feel is the right decision," he explained. "However, if you were sponsored by a particular state senator and you made a decision he didn't like, it is conceivable that the next time you are up to be reappointed, he may not push your name to the governor."

... "It is an easy job if you don't have courage and you don't have compassion," he said. "Because then you really don't care. And then it is easy to make whatever decision you want without feeling guilty, without feeling, 'Gee, maybe I made the wrong decision.' "

... Mr. Dennison said he loved the job, taking pride in having an impact on people's lives — freeing those he deemed deserving, leaving caged those he determined were dangerous.

... Having left the board in 2007, Mr. Dennison, now 63, spoke plainly about Ms. Ortiz's case in a recent interview. "He was an off-duty police officer," he said of the victim, "and, basically, people didn't want to let her out because of that."

Law has little effect on early release for inmates

New York's new state guidelines for medical parole release may have led to a surge in applications for early release on medical grounds — 202 inmates last year, compared with 66 in 2008 — but they have had little effect on the outcome. Originally, the compassionate-release law provided early release to inmates suffering from terminal illness or permanent disability, with the exception of those convicted of first-degree murder, second-degree murder, sex offenses, or any attempt to commit those crimes. New legislation, adopted within the 2009 state budget bill, now allows all but first-degree murder offenders to qualify under the compassionate-release law.

Despite the fanfare within the corrections field about the humanitarian and financial benefits of compassionate release — New York is one of a dozen states that have expanded, enacted or streamlined programs over the past two years — the policy shift has had minimal effect. Experts attribute this to the fear that freed inmates, no matter how sick, might commit further crimes, as well as to the difficulty of placing dying criminals in nursing homes.

"The problem is, when we start trying to put people out, there are others in the community who are sure we're trying to make more crime in the community," said Dr. Lester Wright, chief medical officer for the New York State Department of Correctional Services.

Sadly, Eddie Jones, the 89-year-old inmate who could have become the first prisoner to be freed under New York's expanded compassionate-release law, died on the morning of February 1st in his hospice bed in a state prison, according to corrections officials and his niece. He was nine days away from his parole hearing, at which it was hoped that he would be released into his family's care.

Read the full story:
Law has little effect on early release for inmates (New York Times, January 30 2010).
Killer, 89, hoping for mercy, dies in prison (New York Times, February 2 2010).
Death shines light on life: terminally ill inmate puts focus on compassionate release (The Daily Mail, February 3 2010).