David McCallum has been denied parole for the fourth time, for a crime he insists he did not commit.
For details:
Inmate Who Claims He Falsely Confessed Loses Parole Bid, by John Caher (New York Law Journal, April 26 2013)
When Admitting Guilt Is Not An Option, by Martin H. Tankleff (New York Law Journal, March 11 2013)
Inmate Cannot Clear His Name Without Evidence of Guilty Party, by John Caher (New York Law Journal, March 6 2013)
Showing posts with label John Caher. Show all posts
Showing posts with label John Caher. Show all posts
April 26, 2013
March 06, 2013
Inmate Cannot Clear His Name Without Evidence of Guilty Party
David McCallum "has a plethora of loyal advocates certain of his innocence, a pro bono legal team that has been working on his behalf for a decade, a supportive family that never has stopped believing in him and a district attorney who is willing to listen and even agreed to post-conviction DNA testing."
He has maintained a spotless disciplinary record while in prison, a "stunningly good record," and the parole board's own risk assessment places him at the lowest risk of re-offending, being arrested or absconding.
Yet he has been turned down for parole three times, at least in part because he refuses to accept responsibility for a crime he insists he did not commit.
His next parole hearing will be in April.
John Caher reports on McCallum's case:
Inmate Cannot Clear His Name Without Evidence of Guilty Party, by John Caher (New York Law Journal, March 6 2013)
He has maintained a spotless disciplinary record while in prison, a "stunningly good record," and the parole board's own risk assessment places him at the lowest risk of re-offending, being arrested or absconding.
Yet he has been turned down for parole three times, at least in part because he refuses to accept responsibility for a crime he insists he did not commit.
His next parole hearing will be in April.
John Caher reports on McCallum's case:
Inmate Cannot Clear His Name Without Evidence of Guilty Party, by John Caher (New York Law Journal, March 6 2013)
January 15, 2013
Building Bridges - January 2013 edition
The January 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 and ways to help.
1. Violence against women in prison.
2. End the Stigma/Expand Opportunities Campaign kicks off with screening of "The Long Shadow of Incarceration's Stigma".
3. Misconception, an article by an incarcerated columnist, says prisoners are not the violent animals the press would have us believe.
4. New Jim Crow Forum presentation in Brooklyn. Senator Eric Adams, Chris Johnson, Glenn Martin, Jason Meyers and parishioners at St. Mary's Episcopal Church Harlem will be speaking.
5. The Parole Reform Campaign hopes you will sign their pledge and give your suggestions.
6. Parole News - November and December releases include Peter Graziano; look for 2012 summary in February issue; comments from a parole applicant; claim that State parole violation rules have been eased.
One of the above December releases was Peter Graziano, a well known name throughout the NYS prison system as the lead plaintiff in Graziano et.al. Although the case was lost, many of the 'et.al' have been released, and now in January Mr. Graziano will also be going home. It was his seventh hearing. He thanks everyone who supported the lawsuit over the years.
Parole Revocation Barred for Defendant Unfit to Stand Trial
The above titled article by John Caher published in the New York Law Journal on January 2 2013 reports that the Appellate Division, First Department, has held in Matter of Lopez v. Evans, 2012 NY Slip Op 09188 that a parolee found mentally incompetent to stand trial on new charges is also unfit to proceed with a parole revocation hearing. Based on the same conduct that led to the charges, Lopez's parole was revoked by an administrative panel that found "mental illness is not an excuse for a parole violation".
7. Commissioner Brian Fischer's testimony on Educational and Vocational Programs in Prison (November 29 2012).
8. Reentry.net/NY calendar lists events and meetings in your area on issues you may care about.
9. Supportive Housing is in trouble.
10. Tribute Dinner to family members of political prisoners and prisoners of war.
11. Yale Law Journal announces winners - four New Yorkers are among them.
Their brief summary is given below. Please see Building Bridges for full details and ways to help.
1. Violence against women in prison.
2. End the Stigma/Expand Opportunities Campaign kicks off with screening of "The Long Shadow of Incarceration's Stigma".
3. Misconception, an article by an incarcerated columnist, says prisoners are not the violent animals the press would have us believe.
4. New Jim Crow Forum presentation in Brooklyn. Senator Eric Adams, Chris Johnson, Glenn Martin, Jason Meyers and parishioners at St. Mary's Episcopal Church Harlem will be speaking.
5. The Parole Reform Campaign hopes you will sign their pledge and give your suggestions.
6. Parole News - November and December releases include Peter Graziano; look for 2012 summary in February issue; comments from a parole applicant; claim that State parole violation rules have been eased.
One of the above December releases was Peter Graziano, a well known name throughout the NYS prison system as the lead plaintiff in Graziano et.al. Although the case was lost, many of the 'et.al' have been released, and now in January Mr. Graziano will also be going home. It was his seventh hearing. He thanks everyone who supported the lawsuit over the years.
Parole Revocation Barred for Defendant Unfit to Stand Trial
The above titled article by John Caher published in the New York Law Journal on January 2 2013 reports that the Appellate Division, First Department, has held in Matter of Lopez v. Evans, 2012 NY Slip Op 09188 that a parolee found mentally incompetent to stand trial on new charges is also unfit to proceed with a parole revocation hearing. Based on the same conduct that led to the charges, Lopez's parole was revoked by an administrative panel that found "mental illness is not an excuse for a parole violation".
7. Commissioner Brian Fischer's testimony on Educational and Vocational Programs in Prison (November 29 2012).
8. Reentry.net/NY calendar lists events and meetings in your area on issues you may care about.
9. Supportive Housing is in trouble.
10. Tribute Dinner to family members of political prisoners and prisoners of war.
11. Yale Law Journal announces winners - four New Yorkers are among them.
December 28, 2012
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)
"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)
December 18, 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)
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)
November 25, 2012
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)
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)
August 05, 2012
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)
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)
August 02, 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)
"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)
August 01, 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)
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)
May 03, 2012
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
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
December 24, 2011
Parole Board Ordered to Apply Retroactively Rehabilitation Factor
Extracts from article:
A judge has ordered the state parole board to retroactively apply a new provision requiring it to consider the rehabilitation of an inmate and not base a denial of release on an offense that may have occurred decades in the past.
The decision, if upheld, could entitle scores of inmates to new parole interviews.
Orange County Supreme Court Justice Lawrence H. Ecker, in what he says is a case of first impression, reviewed a recent revision of Executive Law §259(c), and held that a man who came up for parole before a change in the law is nonetheless entitled to benefit from that law.
The revision requires the parole board to look beyond the instant offense and consider whether the applicant for parole has been rehabilitated.
In Matter of Thwaites v. New York State Board of Parole, 2011 NY Slip Op 21453, Justice Ecker said the board, in denying the inmate's release, relied on "past-focused rhetoric, not future-focused risk assessment analysis." He directed the parole board to afford Douglas Thwaites a new interview ...
... Justice Ecker said there is no question the board did not apply in Mr. Thwaites' case standards that had yet to take effect. Regardless, he said the "remedial" objective of the legislation requires reconsideration of the inmate's parole bid.
For complete article, see:
Parole Board Ordered to Apply Retroactively Rehabilitation Factor, by John Caher (New York Law Journal, 27 December 2011)
In a new decision on January 26 2012, Judge Lawrence H. Ecker handed down an almost identical ruling in the case of Newlly Velazquez as he did for Douglas Thwaites, one month previously. See:
A judge has ordered the state parole board to retroactively apply a new provision requiring it to consider the rehabilitation of an inmate and not base a denial of release on an offense that may have occurred decades in the past.
The decision, if upheld, could entitle scores of inmates to new parole interviews.
Orange County Supreme Court Justice Lawrence H. Ecker, in what he says is a case of first impression, reviewed a recent revision of Executive Law §259(c), and held that a man who came up for parole before a change in the law is nonetheless entitled to benefit from that law.
The revision requires the parole board to look beyond the instant offense and consider whether the applicant for parole has been rehabilitated.
In Matter of Thwaites v. New York State Board of Parole, 2011 NY Slip Op 21453, Justice Ecker said the board, in denying the inmate's release, relied on "past-focused rhetoric, not future-focused risk assessment analysis." He directed the parole board to afford Douglas Thwaites a new interview ...
... Justice Ecker said there is no question the board did not apply in Mr. Thwaites' case standards that had yet to take effect. Regardless, he said the "remedial" objective of the legislation requires reconsideration of the inmate's parole bid.
For complete article, see:
Parole Board Ordered to Apply Retroactively Rehabilitation Factor, by John Caher (New York Law Journal, 27 December 2011)
In a new decision on January 26 2012, Judge Lawrence H. Ecker handed down an almost identical ruling in the case of Newlly Velazquez as he did for Douglas Thwaites, one month previously. See:
Judge Orders Parole Board to Reconsider Release Bid, by John Caher (New York Law Journal, 6 February 2012)
An update on the Thwaites case, 20 September 2012: the New York State Attorney General's Office is appealing Justice Lawrence H. Ecker's ruling to the Second Department in Matter of Thwaites v. New York State Board of Parole, arguing that the ruling "stands to wreak havoc on the parole system" and that the "Legislature cannot plausibly have intended to apply the changes to parole practices to past parole board decisions". See:
A.G. Urges Court to Upset Parole Interview Decision, by John Caher (New York Law Journal, 20 September 2012)
An update on the Thwaites case, 20 September 2012: the New York State Attorney General's Office is appealing Justice Lawrence H. Ecker's ruling to the Second Department in Matter of Thwaites v. New York State Board of Parole, arguing that the ruling "stands to wreak havoc on the parole system" and that the "Legislature cannot plausibly have intended to apply the changes to parole practices to past parole board decisions". See:
A.G. Urges Court to Upset Parole Interview Decision, by John Caher (New York Law Journal, 20 September 2012)
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)
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)
November 08, 2011
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)
October 01, 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)
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