Auschwitz to Attica - Methodologies of Psychological Abuse, by John MacKenzie

A thoughtful commentary on the hopelessness and despair caused by the New York State parole system, written by John MacKenzie and first published in July 2013. John was found dead in his prison cell on the morning of Thursday, 4th August 2016, a few days after receiving his tenth parole denial. Repeated parole denials and the harsh conditions in Fishkill Correctional Facility extinguished his hope and he took his own life.

Preface:

"Every prisoner with a sensitive nature suffers much more from unjust, malicious and intended psychological abuse than from physical abuse. He perceives it to be much more humiliating and depressing than any physical abuse."

"They all easily survived the hard part of camp life because they had a "reasonable assurance" that they would be free again after their time was up. There was no set prison term for political prisoners. It depended on factors, which were unpredictable.1 The prisoners knew this and that's why they suffered so much, and because of this uncertainty, life in the camp became torture for them. I spoke to many intelligent and perceptive political prisoners about this uncertainty. They all said that they could suffer all the indignities of camp life, such as the impulsiveness of the SS guards or the prison seniors in charge, the harsh discipline, living together in close quarters, the monotony of all the daily routines; all of that could be endured, all of that could be overcome, but not the uncertainty of not knowing how long they would remain in the camp. This was the most crushing blow, which paralyzed even the strongest will. From my observation, the unknown length of the sentence and its depending on the whim of low-ranking officials exerted the strongest and the most negative influence on the mental health of the prisoners." (Death Dealer – The Memoirs of the SS Kommandant at Auschwitz – Rudolph Höss – Schutzstaffel)

Commentary: 

As stated in Death Dealer, there was "reasonable assurance" that they [the prisoners] would be free again after their time was up. That belief was further advanced by the German propaganda phrase, "Work Shall Set You Free," which was conspicuously displayed over the main entrance to Auschwitz. The term "reasonable assurance" also bears a striking resemblance to the current term "reasonable probability" used in the parole statute and the term "reasonable expectation" used in other sections of the parole laws. Likewise, after comparing the effect of not knowing when one will be free with the consistent denial of parole based on the one factor that will never change, one has to wonder whether the same method of psychological torture is being systematically applied to those serving life sentences. New York prisoners generally suffer the same indignities of prison life: the pettiness, the arbitrary enforcement of rules by prison guards, the harsh discipline, living in close quarters, the monotony of repetitious daily routines, lack of meaningful choices, loneliness, ad nauseam. All of that can be endured and overcome, but New York State prisoners cannot endure the uncertainty of not knowing how long they will remain in prison.

They cannot cope with the uncertainty of not knowing when, if ever, they will be granted parole. This is a crushing blow that paralyzes even the strongest will. The unknown length of the sentence, especially after one has fulfilled all program requirements and conformed to rules and regulations, is particularly frustrating. One's freedom becomes dependent on the whim of parole commissioners; consequently these factors exert the strongest and the most negative influence on the mental health and stability of the prisoner.

Two concepts conveyed by "The uncertainty of not knowing when..." and "Without knowledge of what will be measured..."2 clearly demonstrate that both elements affect the emotional stability and overall well-being of those hoping for parole (freedom). It would also appear these terms are synonymous with the arbitrary and capricious (whim) standard of review and contribute to paralyzing even those with the strongest of will. As Davis states: "One can imagine nothing more cruel, inhuman and frustrating." Further exacerbating an already debilitating situation is not being provided with detailed reasons for the denial of parole. Not being told what one must do to improve chances of parole is not only against the legislative intent, but also contributes significantly to the emotional stress that is detrimental to one's overall mental health and well-being. Together, both of these factors amount to cruel and inhuman punishment and are contributing factors in the deteriorations of one's mental stability and serve only to foster hopelessness. It would be well to take heed of what Kenneth Culp Davis teaches: "Where law ends tyranny begins. I think that in our system of government, where law ends tyranny need not begin. Where law ends, discretion begins, and the exercise of discretion may mean either beneficence, or tyranny, either justice or injustice, either reasonableness or arbitrariness." Davis, Discretionary Justice, 3 (1969).

It would seem that history has taught us nothing about how we should treat people in a civilized society – even those being held in prison. If society wishes to rehabilitate as well as punish wrongdoers through imprisonment, then society must also ensure that "punishment" never crosses the line over to "torture." Society – through its lawmakers – must bear the responsibility of tempering justice with mercy. Giving a man legitimate hope is a laudable goal; giving him false hope is utterly inhuman.

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Notes:
1 Compare indeterminate sentences with a minimum of 15 years up to and including 25 years with a maximum of Life. Also note that contemporary laws allow for a sentence of life without parole. The distinction being with an indeterminate sentence of 25 years to life, one has a [reasonable] expectation of parole once the minimum term is served, providing program requirements have been met and one maintains a good disciplinary record. Unfortunately, the current trend is to continually deny parole even after meeting all the requirements, thus one's release is unpredictable.
2 "One can imagine nothing more cruel, inhuman, and frustrating than serving a prison term without knowledge of what will be measured and the rules determining whether one is ready for release. The probability of release on parole having been held out to most prisoners and the possibility of release to the balance, fundamental fairness would seem to dictate that rather than subject a prisoner who is denied parole to the inhumanity of ignorance the state should as a minimum due process provide him with the reasons." Davis, Discretionary Justice, 132 (1969).

Clarifying the Legislative Intent: invalidating the use of "community opposition" in the Parole Decision Process, by John MacKenzie

Before addressing the erroneous interpretation and application of the law governing the parole decision process, two legal points must be clarified and established. First - Legislative Intent as primary consideration [McKinney's Statutes §92] - The primary consideration of the courts in the construction of statutes is to ascertain and give effect to the intention of the Legislature. Hence, the legislative intent is said to be the "fundamental rule," "the great principle which is to control," "the cardinal rule" and "the grand central light in which all statutes must be read." Therefore, it is the duty of the courts to adopt a construction of a statute that will bring it into harmony with the Constitution and with legislative intent, and no narrow construction of a statute may thwart the legislative design. Second - Expression of One thing as excluding others [McKinney's Statutes §240] - It is a universal principle in the interpretation of statutes that expressio unius est exclusio alterius. That is to say, the specific mention of one person or thing implies the exclusion of other persons or things. As otherwise expressed, where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted and excluded.

The relevancy of §92 and §240 in relation to the parole decision process becomes evident after reading the statutory law governing the parole process. The standard of review with the statutory factors that must be considered are in Ex Law §259-i (2)(c)(A), which states: Discretionary release on parole will not be granted merely as a reward for good conduct or efficient performance of duties while confined, but after considering if there is a reasonable probability that, if such inmate is released, he or she will live and remain at liberty without violating the law, and that his or her release is not incompatible with the welfare of society and will not so deprecate the seriousness of his or her crime as to undermine respect for the law. In making the parole release decision, the Board of Parole must consider the following:

(i) the institutional record, including program goals and accomplishments, academic achievements, vocational education, training or work assignments, therapy and interactions with staff and inmates; (ii) performance, if any, as a participant in a temporary release program; (iii) release plans including community resources, employment, education, and training and support services available to the inmate; (iv) any deportation order issued by the federal government against the inmate while in the custody of the Department of Corrections and Community Supervision, and any recommendation regarding deportation made by the Commissioner of Corrections and Community Supervision; (v) any statement made to the Board by the crime victim or the victim's representative, ¹ where the crime victim is deceased or is mentally or physically incapacitated; (vi) the length of the determinate sentence to which the inmate would be subject had he or she received a sentence pursuant to the Penal Law sentencing provisions for certain felony controlled substance or marijuana offenses; (vii) the seriousness of the offense with due consideration to the type of sentence, length of sentence, and recommendations of the sentencing court, district attorney, the attorney for the inmate, the presentence probation report, as well as consideration of any mitigating and aggravating factors, and activities following arrest prior to confinement; and (viii) any prior criminal record, including the nature and pattern of offenses, adjustment to any previous probation or parole supervision, and institutional confinement. ²

Applying the rules of statutory construction and interpretation, it is clear that the Parole Board has invaded the legislative province and usurped legislative authority, rendering the use of "community opposition" invalid. First, conspicuously absent in the list of factors is any mention of "other person" or "private citizens." ³ Thus, what is omitted or not included was intended to be omitted and excluded. Second, since neither was intended there is no basis in legal authority or rationale that permits either to be interpreted as "community opposition."

More importantly, "community opposition" is not a listed factor. The irrefutable fact is that none of these terms are listed in the statute and thus are invalid. It should also be noted that "other person" and "private citizens" do not relate to the parole decision process, but instead, concern confidentiality of records only, hence both terms are outside the scope of the controlling statute and cannot be considered. The only person(s) listed are the "crime victim" and "victim's representative."

Additional support is found in Mayfield v. Evans 93 A.D. 3d 98 938 (N.Y.A.D. 1 Dept. 2012) revealing that, the Court of Appeals has long held that "[t]he Legislature may authorize an administrative agency to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation. In practice, this has meant that "an agency [charged with the enforcement of a statute has been empowered to] adopt regulations that go beyond the text of that legislation, provided they are not inconsistent with the statutory language or its underlying purposes. Nevertheless, such "an agency cannot promulgate rules or regulations that contravene the will of the Legislature" and the express terms of the authorizing statute. Any other result would impermissibly allow an administrative agency to invade the legislative province and usurp legislative authority. Additionally, in King v. New York State Div of Parole 83 N.Y.2d 788, (1994), the court found that: "There is evidence in the record the petitioner was not afforded a proper hearing because one of the commissioners considered factors outside the scope of the applicable statute, including "penal philosophy."

Furthermore, the Board of Parole's role is not to resentence an inmate according to the personal opinions of its members as to the appropriate penalty for the crime originally committed, but to determine whether at the current time, given all the relevant statutory factors, the inmate should be released. For the Board to simply decide that any case involving the killing of a police officer automatically necessitates denial of parole because of the "seriousness of the crime" is a breach of the obligation legislatively imposed on it to render a qualitative judgment based on the review of all relevant factors. It is also worth mentioning a statement by Judge Richard Bartlett, former chief Administrative Judge, and Chairman of the Bartlett Commission, who reaffirmed the intent of the legislation as follows: "It is not the function of the Board to review the appropriateness of the sentence. That is for the court to decide. Their role is to determine the suitability of release based on the inmate's behavior while imprisoned and the likelihood of their reoffending."

In conclusion, the use of these unauthorized factors runs counter to the clear wording of the statutory provisions and legislative intent and should not be accorded any weight or allowed to be considered in the parole decision process. Simply stated any reference to terms outside the scope of the applicable statute is unauthorized. Furthermore, any opposition [community opposition] other than from that of the victim or victim's representative is in essence "penal philosophy" and is also beyond the scope of the applicable statute. A cease and desist order must be issued immediately to the Board of Parole ordering them to stop considering these unauthorized terms as factors.

Finally, regarding the integrity of the criminal justice system, a very profound and compelling statement is worth reflecting upon:

"The tortured interpretation of the statutory scheme creates a merry-go-round that will extend the incarceration of Acoli—but for no rational or just purpose. In Trantino, this Court committed the judiciary to the task of ensuring that administrative agencies not thwart the law in unpopular cases. In that case, we held that the law cannot bend to the strong winds of public opinion. Perhaps few will shed a tear that Acoli will spend more years in prison—without any legal justification—for the murder of a police officer. But this case is about more than one individual. It is about the integrity of our justice system. The rule of law must apply even to the most disfavored member of society." (Justice Albin in a dissenting opinion in a parole case from New Jersey.)

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¹ Definitions — A crime "victim" [CPL §440.50 and Ex. Law §259-i (2) (c) (A)] means any person alleged or found, upon the record, to have sustained physical or financial injury to person or property as a direct result of the crime charged. A "crime victim's representative" means the crime victim's closest surviving relative, the committed or guardian of such person, or the legal representative of any such person.

² Recent additions include COMPAS/Risk Assessment/CASE Plan as defined in Rules and Regulations 9 NYCRR 8002.3(a) Both the statute Executive Law 259-i (2) (c) (A) and Rules and Regulations 9 NYCRR 8002.3(a) have omitted any reference to the terms relied upon by the Board to justify the use of "community opposition" as a factor in the parole decision process and it is unlawful.

³ The only place "other person" is mentioned is in Ex Law §259-i (2) (c) (B) — and "private citizens" is mentioned in 9 NYCRR 8000.5(c)(2) and neither are allowable under the applicable statute.

Nature of the Crime

Today, Monday May 18, the statewide Parole Justice Now! coalition is releasing their new film, "The Nature of the Crime," online in conjunction with its première in the state Capitol to pressure the legislature to pass the Safe and Fair Evaluations (SAFE) Parole Act.

This short documentary tells the story of how fourteen people in New York State control the freedom of tens of thousands of men and women. They are called the Parole Board and they determine whether people in prison with indefinite sentences are ready to be released.  Every year 10,000 people are denied parole. Many people are denied repeatedly – for some, this can mean up to 20+ extra years in prison – due to the "nature of their crime," something they can never change.

New York State Parole Board Members

Current members of the New York State Board of Parole, updated to include those appointed on June 19 2013:

Stanford, Tina, Chairwoman
Alexander, Ellen
Coppola, Marc
Crangle, Joseph
Elovich, Lisa Beth
Ferguson, James
Hallerdin, Gail
Hernandez, Christina
Johnson, Milton
Ludlow, G. Kevin
Sharkey, Edward
Smith, Julie
Smith, Walter Wm., Jr.
Thompson, Sally

Appellate Court Judge is admonished over letter to Parole Board

The New York State Commission on Judicial Conduct has determined that Nancy E. Smith, a Justice of the Appellate Division, Fourth Department, should be admonished for sending an unsolicited letter on behalf of an inmate who was applying for parole.

The Commission said Smith sent an unsolicited letter on her judicial stationery to a parole board indicating that the inmate was a 'friend' and 'good person' who deserved release. In fact, while Smith had corresponded with the inmate, she never met him and her only connection to the matter was that her brother-in-law's sister is a friend of the defendant's mother.

Commission Administrator Robert H. Tembeckjian made the following statement: "This marks the first time the Commission has publicly disciplined an Appellate Division Justice, whose high rank should have made her especially sensitive to setting an example and obeying the ethics rules."

For further details:
Admonition of Appellate Division Justice Nancy E. Smith, Fourth Department (Rochester) June 28 2013
Appellate Justice Is Faulted Over Letter to Parole Board, by John Caher (New York Law Journal, July 1 2013)
In a first, Appellate Division justice is admonished, by Rick Karlin (Times Union Capitol, June 28 2013)

Building Bridges - June/July 2013 edition

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

Prison Action Network's brief summary is given below. Please see Building Bridges for full details and their current news about parole, including details of the new Parole Board Commissioners appointed on June 19th, and updates from the NYS Parole Reform Campaign.

1. The legislative session is over. So unless the governor calls a special session before then, no more bills will be passed before January 2014. That includes the SAFE Parole Act. The bills introduced in June include some that passed both houses. Summer Strategies. Viewpoint from Inside questions the motivation for sex offender bills.

2. The highly successful Merle Cooper Program is slated for closure on September 1. Read this letter from Ronald Hughes, a participant in the program and if it inspires you to take action, consider signing this petition to stop the closure of the program that many people credit for being the key to their transformation.

3. The SAFE Parole Act ended the session with fourteen sponsors in the Assembly and four in the Senate. We have a lot of work to do, but it can be done if you join us. We have an easy letter writing initiative, and we'll help you plan a visit to your representatives' district offices this summer.

4. Parole News: May release statistics. Detailed biographies of the newly appointed Parole Board Commissioners including notes from their confirmation hearing. Another positive ruling in favor of the plaintiff in a parole board case was handed down in Manhattan Supreme Court: Kozlowski v. New York State Board of Parole, 104097/2012, New York State Supreme Court, NY County (Manhattan).

5. Corey Parks asks us to join him to 'Accomplish Peace, Not Violence' and learn to build up our communities after being conditioned to destroy them.

6. Eddie Ellis has been interviewed by the Sun Magazine.

7. Baba Eng finally is back in New York State. He was the guest speaker at the June 24th meeting of Prisoners Are People Too, which was also celebrating the organization's 8th anniversary.

Nominations to the New York State Board of Parole

At a meeting of the Senate Standing Committee on Crime Victims, Crime and Correction on 19 June 2013, chaired by Senator Patrick M. Gallivan, the following nominations to the New York State Board of Parole were considered and approved:

Tina Stanford, Chairwoman, State Board of Parole
Lisa Elovich, Member, State Board of Parole (reappointment)
Walter Smith, Jr., Member, State Board of Parole (reappointment)
Sally Thompson, Member, State Board of Parole (reappointment)
Gail Hallerdin, Member, State Board of Parole
Milton Johnson, III, Member, State Board of Parole
Julie Smith, Member, State Board of Parole

Governor Cuomo Announces Senate Confirmation of Multiple Appointments (with brief biographical details of the new parole commissioners) (Albany, NY, 19 June 2013)
More detailed biographies of the new parole commissioners may be found in the June/July edition of Building Bridges.
Watch the full YouTube video of the June 19 meeting.

David McCallum is denied parole

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)

Hank Morris wins parole

State Supreme Court Justice Richard Mott ordered the state's parole board to swiftly grant Hank Morris a new parole hearing, finding the board "inexplicably" failed to fairly consider several factors in Morris's favor, including its own internal evaluation which indicates that Morris is no threat to society, and unjustly manipulated the process to keep him in prison for as long as possible. "Specifically, the record demonstrates that the board inexplicably failed to consider and weigh myriad relevant factors, all of which categorically supported petitioner's release on parole."

The new hearing took place yesterday, on April 22. Morris was granted parole and will be paroled by June 3.

Morris told parole commissioners that after his release he intends to work with not-for-profit agencies advocating parole reform. "I think there's a crying need for it," he said.

Related articles:
Reversing Course, Parole Board Set to Release Morris, by John Caher (New York Law Journal, April 24 2013)
After a Productive Two Years, Hank Morris Wins His Freedom, by Jacob Gershman (Wall Street Journal Law Blog, April 23 2013) (Includes a transcript of Morris's parole hearing)
Hank Morris, who aided corruption of disgraced ex-Controller Alan Hevesi, being freed in June, by Kenneth Lovett (New York Daily News, April 24 2013)
Breaking News: Hank Morris Wins Parole, by Ken Lovett (New York Daily News, April 23 2013)
Update: Hank Morris wins parole, out by June 3, by Chris Churchill (Timesunion.com, April 23 2013) (Includes Morris's Parole Board decision and release conditions)
Hank Morris wins parole, will be out by June 3, by Casey Seiler (Capitol Confidential, April 23 2013)
Parole Granted for Consultant in Corruption Case, by Jesse McKinley (New York Times, April 23 2013)

For further details of the case and earlier articles, see:
Hank Morris challenges parole compliance with the law (Parole News, April 19 2013)

Hank Morris challenges parole compliance with the law

Hank Morris, the imprisoned former political advisor to ex-Comptroller Alan Hevesi, has brought a legal challenge against the state Parole Board, claiming officials do not follow proper procedure.

At the heart of his challenge is that the NYS Department of Corrections and Community Supervision and the Board of Parole are violating New York law and its Constitution with impunity by conducting unlawful parole hearings that do not comply with statutory amendments that took effect on October 1, 2011.

These new laws mandate that written risk assessment procedures should be developed and utilized when making parole determinations, and that a transition accountability plan (TAP) should be developed for each inmate to be utilized when making parole determinations.

State Supreme Court Justice Richard Mott has ordered the state's parole board to swiftly grant Hank Morris a new parole hearing, finding the board "inexplicably" failed to fairly consider several factors in Morris's favor, including its own internal evaluation which indicates that Morris is no threat to society, and unjustly manipulated the process to keep him in prison for as long as possible. "Specifically, the record demonstrates that the board inexplicably failed to consider and weigh myriad relevant factors, all of which categorically supported petitioner's release on parole."

"Put simply, the amended statute required that respondent develop written procedures that implement risk and needs principles, determine the likelihood of an inmate's success upon release, and adopt those procedures as an exercise of its rule-making power," Mott stated. "Disregard of a legislative mandate through an administrative agency's inaction as here, is arbitrary and capricious."

The outcome of this case may affect as many as 15,000 inmates who have appeared before the board since the amendments to the legislation in 2011.

Morris's new parole hearing will take place on April 22.

Related articles:

Matter of Morris v New York State Dept. of Corr.and Community Supervision 2013 NY Slip Op 50604(U) (Decided on April 15, 2013)
Matter of Morris v New York State Dept. of Corr.and Community Supervision 2013 NY Slip Op 50603(U) (Decided on April 4 2013)
Parole Board Grants New Interview to Morris, by John Caher (New York Law Journal, 22 April 2013)
Parole board that thinks it's judge and jury, by Chris Churchill (Timesunion.com, April 20 2013)
For a Political Devil, Some Sympathy Please, by Jim Dwyer (New York Times, April 18 2013)
Judge Blasts Parole 'Machinations' to Delay Political Consultant's Release, by John Caher (New York Law Journal, April 18 2013)
Judge Says Parole Board Maneuvered to Keep Morris in Jail, by John Caher (New York Law Journal, April 17 2013)
Judge orders new NY parole hearing for Hank Morris (Wall Street Journal, April 15 2013)
Judge Orders New Parole Hearing for Hank Morris, by John Caher (New York Law Journal, April 15 2013)
State Supports Denial of Parole for Hank Morris, by John Caher (New York Law Journal, April 12 2013)
Hearing Set to Consider Parole Compliance With Law, by John Caher (New York Law Journal, April 8 2013)
Judge Won't Toss Morris Legal Challenge, by Nick Reisman (Capital Tonight, April 5 2013)
Parole Denied, Disgraced Political Guru Hank Morris Files Suit, by Nick Reisman (Capital Tonight, March 7 2013)
Hank Morris Denied Release by the Board of Parole (NYS DOCCS, November 15, 2012)
Alan Hevesi Granted Release by the Board of Parole (NYS DOCCS, November 15, 2012)

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)

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

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

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

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

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

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

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

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

Appeals Court to Review Parole Rescission in Abduction Case

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

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

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

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

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

Building Bridges - November 2012 edition

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Building Bridges - October 2012 edition

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

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

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

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

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

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

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

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

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

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

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

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

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

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

An interview with former parole board commissioner Tom Grant

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

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

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

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

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

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

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

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

Grant makes the following two recommendations for reform:

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

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

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

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

Building Bridges - August 2012 edition

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

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

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

New York State Parole Board

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

Parole Board Members

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

Building Bridges - July 2012 edition

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Lawmakers: fix racial disparity on Parole Board

Extract from a NY Daily News article:

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

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

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

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

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

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

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

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

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