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.)

...................................................................

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.

Effect of Risk Assessment Rule on Parole Decisions Is Unclear

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

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

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

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

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

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

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

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

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

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

Building Bridges - April 2012 edition

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Setting the record straight, Part 3: Release, Reentry, Reintegration: how the SAFE Parole Act is necessary for all three

SETTING THE RECORD STRAIGHT, a series of articles presented by the Coalition For Fair Criminal Justice Policies to explain and support the SAFE Parole Act.

Part 3: Release, Reentry, Reintegration: how the SAFE Parole Act is necessary for all three, by Larry White

The Importance of the Safe and Fair Evaluations (S.A.F.E.) Parole Act in Making Decisions about Release, Reentry, and Reintegration

Penal Law 1.05 states that in addition to punishment (retribution), deterrence, incapacitation and rehabilitation there is a fifth goal: "the promotion of their [incarcerated people's] successful and productive reentry and reintegration into society." [emphasis added]

The purpose of this article is to define reintegration, and to show how necessary the SAFE Parole Act is in achieving it.

Reentry and reintegration are commonly thought of as meaning the same thing, but they are, in actuality, very different:

Reentry is the process of returning to one's community and finding a way to get basic needs met - such as housing, food, employment - without resorting to criminal activities. Preparation for reentry starts in prison, with programs that prepare the person for life on the outside. In recent years outside agencies have gotten funding to meet reentry needs and continue to help a person remain at liberty without reverting to a life of crime. Parole needs to to create linkages for their clients with community agencies that can meet their subsistence needs, such as food, clothing, employment, medical care, and public assistance. Most community organizations offer case management to get a person back on their feet. Most don't go any further.

Reintegration is established when the formerly incarcerated person has developed social ties that help him or her continue to live at liberty without breaking the law. This person needs to be connected with a new environment which encourages and rewards legitimate behaviors and attitudes. The shorter the period of incarceration, the easier this task will be.


Part of this new involvement is with groups such as neighborhood associations, faith groups, men's groups, women's groups; groups where he or she is accepted as a contributing member to the positive goals of the group. Reintegration is the last stage in our criminal justice system, and therefore it must be the goal of all the stages that precede it, from arrest forward. It’s the capacity to live at liberty without disobeying the law. The community must get involved in nurturing legitimate lifestyles in the lives of the men and women returning from prison.

In NYS's criminal justice system the judicial system sets the punishment, which may include a period of incarceration. Prisons are responsible for providing deterrence and the tools for rehabilitation. The Parole Board's job is to assess a person's readiness to leave the incarceration stage behind and begin the process of reintegration.

This is where the SAFE Parole Act becomes necessary. Even with the recent revisions to the law, which mandate the use of a Transitional Accountability Plan and a Risk and Needs Assessment, the criminal justice system has not moved significantly closer to the fifth goal of reintegration. As long as the Parole Board can continue to base release decisions on the crime, which a person can never change, people who are truly ready to begin the process of reintegration will continue to be denied. The Safe and Fair Evaluations (S.A.F.E.) Parole Act doesn't leave it up to the Parole Board to voluntarily create procedures that would lead to fairer parole hearings, it includes them right in the bill.


Unlike the recently implemented changes, the SAFE Parole Act is based on an understanding that what a person does, what his or her attitudes and behaviors have become over the course of many years, are the most important indicators of readiness for reintegration, and thus for release from prison.

Most importantly, if the parole applicant’s attitude and/or behavior does not meet their standards, the Parole Board must spell out what he or she must do in order to be considered ready for release to parole supervision. Once those requirements have been met, the person must be released.

No one can ever know for sure that another person will commit a crime. But there are good indicators in the SAFE PAROLE ACT, and the Parole Board can do no better than to base their decision on them.

TAP and R&NA will continue to be used by Parole's Community Supervision once the person is back in society, and will extend until the person has reached the final goal of reintegration.

From: the Prison Action Network, in Building Bridges, December 2011

Setting the record straight, Part 2: The success of the merger depends on the implementation of the SAFE Parole Act

SETTING THE RECORD STRAIGHT, a series of articles presented by the Coalition For Fair Criminal Justice Policies to explain and support the SAFE Parole Act.

Part 2: The Success of the Merger Depends on the Implementation of the SAFE Parole Act, by Larry White (delivered at the NYS Assembly's Nov. 10 Public Hearing on the DOCCS Merger).

I believe with great conviction that incarcerated individuals are stakeholders in every aspect of the correctional and parole process, and therefore should have meaningful involvement in the operation of the processes that affect their lives and liberties.

The recent legislative changes that were enacted in conjunction with the merger of Dept. of Corrections and Community Supervision and the Division of Parole, including the development of Transitional Accountability Plans and the implementation of Risk and Need Assessment Instrument(s) provide tools that are potentially helpful to refocus the roles of Corrections and Parole in preparation for successful reentry, but completely fail to address the need for those under custody to have direct involvement and input in the very processes that directly affect their release from incarceration.

Although the Transitional Accountability Plan in theory does allow for participation by inmates in the construction of their individualized plan, there is no general policy or directive that requires this. There is also nothing that categorically provides that at every stage of the correctional process the individual inmate shall be informed of exactly what he/she must accomplish or achieve in order to be released on parole. It is this involvement that creates buy in and empowers personal transformation. Without such information the inmate cannot chart a course of involvement in the correctional process that he/she feels certain will lead to successful parole release.

Both the TAP and the Risk and Need Assessment Instrument have the potential to make clear to a person in prison what is expected of him or her and why. Under the TAP, IF the original model is followed, each inmate will participate in the development of their treatment plan, and thus will have a clearer understanding of what they must achieve. That is a very big “if.” The challenge will be whether New York follows the original model, and if line staff can accept a model in which people in prison participate in their own plan.



The Risk and Needs Assessment Instrument and the Transitional Accountability Plan together have the potential to provide each inmate with a clear indication of what is required for successful release to parole and community supervision. Inmates could be informed of these requirements at each stage in the correctional process when the TAP and the Risk and Needs Assessment are updated. Inmate participation in the rehabilitation process is increased when they are informed of what is required for their release from imprisonment and when they have an opportunity to take part in setting those goals. At this stage of the merger it is entirely unclear whether this is how the Tap and Risk and Needs Assessment will be utilized and implemented. I feel compelled to express my doubts and concerns.

Perhaps we need to follow the path of places like Norway and other European countries that have decreased the primacy of punishment and increased the use of proven programmatic approaches to behavioral and cognitive change that lead to law-abiding conduct. The prevailing primacy of punishment that guides our correctional system fails to provide an environment that encourages a personal, stakeholder approach to inmate involvement in the rehabilitative process.

I would like to address the use of Risk and Need Assessment Instruments in the parole release process. Risk assessments are essentially predictions of future behavior and are subject to error. There are no 'laws' of behavior that can be applied to a set of circumstances to determine the behavioral outcome that will follow. Criminal behavior, in particular, is motivated and supported by an unquantifiable number of factors; therefore to assess an individual as 'high risk' is not to say that he or she will indeed recidivate. Despite its shortcomings, risk assessment can, to a certain extent, differentiate offenders who pose a significant risk for re-offending in the future from those who are likely to refrain from committing future offenses. It can also help identify needed support services.

It appears that the risk assessment instrument that DOCCS intends to use will contain “seriousness of the offense” as a factor to determine current dangerousness. From my perspective, the nature of the offense is not a useful tool in determining who should be released and if in fact they are ready for reintegration. The seriousness of the crime has no relevance as a predictor of whether the person will commit that crime again. In addition, the process for utilizing the risk and needs assessment instrument should be transparent. A person appearing before the parole board should be provided with a copy of the scored instrument in advance and the decision should include an explanation of how the instrument was used to make the release decision.

What is sorely missing from the legislation under discussion that accompanies this merger is the requirement that the Board of Parole provide the parole applicant with specific requirements for actions to be taken, programs or accomplishments to be completed, or changes in performance or conduct to be made, or corrective action or actions to be taken, in order to qualify for parole release. As soon as the requirements have been successfully completed and the parole applicant's institutional record has been satisfactory during the time between the previous and current parole board hearing, release shall be granted.

From: the Prison Action Network, in Building Bridges, November 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)

Setting the record straight, Part 1: Why we need to continue working for passage of the Safe Parole Act

SETTING THE RECORD STRAIGHT, a series of articles presented by the Coalition For Fair Criminal Justice Policies to explain and support the SAFE Parole Act.

Part 1: Why we need to continue working for passage of the Safe Parole Act

In his September 1, 2011 New York Law Journal article, Professor Philip Genty shares with readers his optimism for parole reform, as he attempts to interpret the legislative change enacted by the Governor’s March 31, 2011 budget bill. If that optimism depends upon the good will of the parole board to write procedures heralding a new day for parole reform, should we share that hope?

If Professor Genty is correct in his prognostication, we say “hurrah!” But there is substantial room for skepticism, and it is that skepticism that is the basis for the need for supporters of real parole reform to continue to demand sweeping change. It is important to understand what the legislative change did and did not do—and why now is the time to push for the real reform proposed by the SAFE Parole Act (A.7939 and S.5374).

The statutory change that has generated this optimism is a re-write of Executive Law§ 259-c(4). It says that the parole board shall:

establish written [guidelines] PROCEDURES for its use in making parole decisions as required by law[, including the fixing of minimum periods of imprisonment or ranges thereof for different categories of offenders]. Such written [guidelines may consider the use of a] PROCEDURES SHALL INCORPORATE risk and needs [assessment instruments] PRINCIPLES to MEASURE THE REHABILITATION OF PERSONS APPEARING BEFORE THE BOARD, THE LIKELIHOOD OF SUCCESS OF SUCH PERSON UPON RELEASE, AND assist members of the state board of parole in determining which inmates may be released to parole supervision.

( [ ] = deleted from original; CAPS = added to original)




It should be noted that there was also a rewrite of Executive Law § 259-i, which contains the factors that the parole board must consider. These factors remain exactly the same as they were, except for their repositioning within the statute. They continue to include the very static factor “the seriousness of the offense...” This factor and all of the other factors are still required to be considered under the new procedures that are still to be written.

So, here we are six months after the enactment of this hope-generating statute, and neither the procedures nor the risk and needs assessment instrument have been implemented. Yet it is these, as yet unwritten, procedures that Professor Genty would have us pin our hopes on. It doesn’t seem like a good time to sit back with our fingers crossed in hopes that the parole board will inject real reform into the still to be written procedures.

The SAFE Parole Act doesn’t leave the practical implementation of reform to the vagaries of the parole board and the hope that it will write reform-minded procedures. The SAFE Parole Act contains the procedures for implementation right in the statutory proposal itself.

Unlike the budget bill, the SAFE Parole Act would do the following:

A) Remove from parole consideration “the seriousness of the offense,” leaving that consideration exclusively to the sentencing court.

B) Add the requirement that the parole board must consider the parole applicant’s preparedness for reentry and reintegration, as evidenced by the applicant’s institutional record pertaining to program goals and accomplishments as stated in the facility performance reports, academic achievements, vocational education, training or work assignments, therapy and interactions with staff and other sentenced persons, and other indications of pro-social activity, change and transformation.

C) Add the requirement that the parole board consider the progress made towards achieving the programming and treatment needs developed in the transitional accountability plan.

D) Add the requirement that if parole is not granted the parole board will state in detail and not in conclusory terms the factors and reasons for the denial and the specific requirements for actions to be taken, programs or accomplishments to be completed, or changes in performance or conduct to be made, or corrective action or actions to be taken, in order to qualify for parole release.

E) Add the requirement that if parole is not granted the Department shall, within ninety days of the hearing decision, provide the parole applicant access to the program or programs, activities and/or facilities needed in order to provide the opportunity to fulfill the requirements set forth by the board.

F) Add the requirement that if the requirements previously set forth by the parole board at the time of denial have been successfully completed and the parole applicant’s institutional record has been satisfactory during the time between the previous and current parole hearing, release shall be granted.

G) The parole applicant shall be entitled to a copy of the scored risk and needs assessment.

These are but a few of the provisions that the SAFE Parole Act would require if enacted.

We have two choices.

We can sit back and hope that the parole board writes procedures for itself that adopt the requirements of the SAFE Parole Act, and thus prove true Professor Genty’s prognosis that these procedures may “be the most significant parole reform in more than 30 years.

Or we can continue to do the hard work of organizing for legislative change and passage of the SAFE Parole Act.

From: the Prison Action Network, in Building Bridges, October 2011.

NYSACDL Supports Call For Parole Reform

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

WHY PAROLE REFORM NOW?

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

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

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

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

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

Law Requires Board to Assess Rehabilitation in Parole Rulings

The revision of Executive Law §259(c) in the new budget legislation this year requires the parole board to establish and apply "risk and needs principles to measure the rehabilitation of persons appearing before the board" and to take into account the likelihood of success should the offender be released. In the past, the board "could" consider those factors; as of today it "must" consider them. The risk assessment tool is under development and is expected to be in use by November.

Advocates welcome the new paradigm and are eagerly awaiting the first batch of parole board determinations based on the revised standards. An article in the New York Law Journal includes the following reactions to the new law:

"This has the potential to really make a difference," said JoAnne Page, president and chief executive officer of The Fortune Society, a social services and advocacy group that promotes successful re-entry from prison.

"Static facts—what a person's record was, the nature of the crime—should not be the only things looked at when someone is appearing before the parole board," she said. "What [the new law] does is require looking at rehabilitation and likelihood of success on release and use of risk guidelines. If this is actually implemented, it will make an enormous difference."

Robert N. Isseks, an attorney in Middletown who has for years pursued a federal class action alleging that the parole board ignores current criteria and effectively acts as a re-sentencing body, said he has doubts.

The parole board routinely states in its determinations that it has considered requisite statutory criteria, and courts generally accept its assurances when inmates challenge a denial of parole release.

"I'd like to be optimistic," Mr. Isseks said. "I hope [the new law] will force them to do what they are supposed to do, but I can't predict. In the hundreds of decisions I have seen, there is plenty of reason to be skeptical."

An annual report issued by what was then the Division of Parole late last year stated that in the 2009-2010 fiscal year, 40 percent of the eligible inmates were released on parole (22 percent at the first opportunity) but only 9 percent of violent felony offenders.

The 2006 federal case filed by Mr. Isseks in the Southern District, Graziano v. Pataki, 7:06-cv-00480, was dismissed last December by Judge Cathy Seibel. Mr. Isseks is appealing and also attempting to reinstate a state court action pending before the Appellate Division, Third Department.

Mr. Isseks said the new requirements may put a heavier burden on the parole board to establish that it has performed more than a cursory review.

"These new guidelines might help the judges make more informed decisions, and give them something more to look at and consider," Mr. Isseks said.

Ms. Page agreed.

"This provides grounds for challenging a parole board hit on the basis of not having looked at evidence of rehabilitation or not having administered a recent risk assessment," she said. "It opens doors, provides a basis from which to challenge [a denial of parole]. It is a step in the right direction, and something that has been needed for many, many years."

Ms. Page said the new criteria may force the parole board to take into consideration that A-1 felons released on parole are at an extremely low risk of re-offending. In fact, state figures show that offenders who serve a sentence for murder are the least likely to commit a felony once they are paroled.

"People change," Ms. Page said. "If there is anything I know from my 22 years heading Fortune, it is that people who have been menaces to the community have the capacity to become good neighbors and make a positive difference in the world. And the people who committed the most horrific crimes and served decades [in prison] are beyond the age when people tend to recidivate."

Full text of report:

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

Duane spearheads state parole reform

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Building Bridges - April 2011 edition

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

Of particular interest to parole reform in this edition:

7. The NYS Parole Campaign has attracted 4 more organizations who support the SAFE Parole Act.: Center for Nuleadership on Urban Solutions, Institute for Juvenile Justice Reform and Alternatives, Greenhope Services for Women, Inc., and the Morningside Monthly Meeting of the Religious Society of Friends. Legislative Advocacy efforts will start in earnest in May.

8. NYS Prisoner Justice Network tells us what’s wrong with New York’s prison system...and what we can do about it: New York’s prison system is spending $3 billion on “corrections” – that don’t correct anything – while cutting education, health care, and other social programs to the bone. This system of mass incarceration is inhumane, unnecessary, uneconomical, and ineffective. Read the article to find out what you can do!

9. Parole News - Of the 84 parole hearings in February, 2 applicants were released at their initial hearings and 14 were released at a reappearance. DOCS and Parole have been merged into one Department, while the Parole Board remains independent.

A major change was the merging of DOCS and Parole into one agency headed by one person. In theory it could be a benefit. A seamless process from incarceration through reentry is certainly something to be desired, especially when the goal is successful reintegration. Of course, as with most laws, everything depends on the nature of those implementing them. We have faith that Commissioner Brian Fischer will do his best to promote successful reintegration, but under future administrations who knows? In extreme times, as we can see by Sen. Little’s suit against the new Gerrymandering law (see article 5), when people don’t like a law, they can try to overturn it and often do. In fact that is what we hope to do with Gov. Cuomo’s rewrite of the parole board statute, formerly known as 259-i and now broken up and placed in new locations in NYS laws.

Changes include the removal of section 1 of 259-i more than 20 years after the Board lost the authority to set minimum sentences. Other changes require the Parole Board to use risk and needs assessment principles in the parole release decision, and the use of a Transitional Accountability Plan (TAP) by the newly created Department “to be a comprehensive, dynamic and individualized case management plan based on the programming and treatment needs of the inmate. The purpose of such plan shall be to promote the rehabilitation of the inmate and their successful and productive reentry and reintegration into society upon release.” [To request a copy of the sections of legislation which contain the above changes please email parole.reform@gmail.com with your request.]

Bill S2812: Includes the proposed amendments to the Parole Statute, Executive Law §259

Executive Budget Legislation. This includes the proposed amendments to the Parole Statute, Executive Law §259.

Bill S2812: Enacts into law major components of legislation necessary to implement the state fiscal plan for the 2011-2012 state fiscal year.

Summary of Bill S2812:

"Amd Various Laws, generally.

Enacts the financial regulation and protection act as a new consolidated chapter; repeals certain provisions of the banking, executive law and general business law; merges the office of victim services, state commission of correction and office for the prevention of domestic violence into the division of criminal justice services; amends the correction and executive law to merge the department of correctional services and division of parole into the department of corrections and community supervision; eliminates the New York state foundation for science, technology and innovation and transfers the functions thereof to the NYS urban development corporation."

Building Bridges - July 2010 edition

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

Items in this edition include:

1. Activities for Advocates - State-wide
2. Coalition for Fair Criminal Justice Policies: on 259-i progress
3. Erie County Prisoners Rights Coalition
4. ICARE on celebrating independence
5. Legislation; one passed, one to go
6. Lifers and Longtermers Clearinghouse on the visit of Andrea Evans to Sullivan Correctional Facility
7. Parole News: statistics and biographies of new Parole Board members
8. Prison Media

Of particular relevance to parole reform:

* A discussion about the new members of the Parole Board. The current Board is heavily weighted with former police officers and DAs, which is not conducive to fair and unbiased decisions at parole hearings.

* The Lifers and Longtermers Clearinghouse give their report on the meeting of Andrea W. Evans, Chair of the Board of Parole, with the Second Look Think Tank at Sullivan Correctional Facility. "It was the first time that a sitting head of the Division visited a NYS prison to discuss the state of parole — to not only convey the Division’s intentions but, importantly, to seriously listen to the assessments and recommendations put forth by incarcerated men."

* The Coalition for Fair Criminal Justice Policies are currently meeting with victims' groups, and hope to collaborate with them on further refining their proposal for amending Executive Law §259 (i).

New Bills sponsored to amend the Parole Statute

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

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

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

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

Building Bridges - June 2010 edition

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

Items in this edition include:
1. Activities for advocates: Statewide, Albany, Bronx, Buffalo, Manhattan
2. CCR has filed federal lawsuit
3. Coalition for Fair Criminal Justice Policies - on 259-i
4. ICARE Community Educator
5. Legislation
6. Parole news
7. Prison media

Update on the work of the Coalition for Fair Criminal Justice Policies to amend Executive Law §259 (i):

"Exciting news! Senator Tom Duane has agreed to sponsor our bill!! We are still working with Assemblyman Jeffrion Aubry, who has agreed to sponsor it in the Assembly, to alleviate some of his concerns. What happens next is the bill gets sent to the Legislative Bill Drafting Commission to be put in bill form. No law may be enacted in New York State unless it has been adopted by the Legislature in bill form. Once it is introduced in the Senate, it will go to the Introduction and Revision Office, where it will be examined and corrected, given a number, sent to the appropriate standing committee, entered into the Senate computer, deemed to have had its first and second readings and printed."

Building Bridges also carries a report of the recent parole release of Shu'aib Raheem following his rescission hearing on June 3, 2010.

Building Bridges - May 2010 edition

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

Items covered in this edition include:

1. Activities for advocates; statewide
2. Coalition for Fair Criminal Justice Policies report
3. Erie County Prisoners Rights Coalition
4. ICARE - Mother's Day Poem
5. Job Training Opportunity
6. Legislation
7. Medical Parole
8. Milk Not Jails
9. NYS Prisoner Justice Network
10. Parole News
11. Prison Media
12. Prisoners of the Census

The Coalition For Fair Criminal Justice Policies present an update on the progress of the proposed revisions to Executive Law § 259-i:

"Since the nature of our proposed bill would require it to be passed first by the Crime Victims, Crime and Corrections Committee in the Senate, and since Sen. Hassell-Thompson is the committee's chair, we need to give her first chance at sponsorship. We've been meeting with her staff and we expect to have a definitive response by the June 15 edition. We are also meeting with Assembly Member Jeffrion Aubry to address some of his concerns about our proposal and we are optimistic that his sponsorship will be forthcoming, but probably not during this legislative session.

Some concerns about the portion of our proposal that limits what victims or their families can present to the parole board have been voiced to us by victims' advocacy groups. In order to better understand those concerns we have had several discussions and one lengthy in-person meeting with a victim's advocacy group. We are working to find common ground that would strengthen our bill and would meet their concerns. Our discussions and efforts continue."

Building Bridges - April 2010 edition

The April edition of Building Bridges is now available from the Prison Action Network. (N.B. There will be no May issue of Building Bridges, as the editor is taking a month's sabbatical.)

Items covered in this issue include:

1. Activities for advocates, statewide
2. Coalition ready to move forward
3. Downscaling prisons
4. Drug war analysis is subject of book by Michelle Alexander
5. ICARE column - census issues
6. The Judicial Process Commission
7. Lifers and Longtermers Clearinghouse
8. Milk not Jails
9. NYS Prisoner Justice Conference
10. Parole news
11. Prison media
12. Prisoners of the Census
13. Telephone Justice - new rates

Of particular relevance to parole reform in this issue - Judith Brink's report on the NYS Prisoner Justice Conference:

"The NYS Prisoner Justice Conference was a success! We had a full house, and everyone was energized and willing to work hard to correct the wrongs that we all agreed exist.

I came away from the event with a stronger resolve than ever to answer the mandate of the Family Empowerment Day participants who joined to form the Coalition For Fair Criminal Justice Policies. They voted to work to move the Parole Board away from being able to deny parole based solely on the nature of the crime or criminal history. Out of the Coalition was born a Policy Committee charged with the task of changing the law that sets Parole Board policies. That has been done in the form of a proposal for amending Executive Law § 259-i. Now we need to begin the next stage, moving our proposal into reality as a law of New York State.

The proposed changes would ensure that no one ever again gets denied parole because of the nature of their crime or their criminal history. Instead, parole release would be solely determined by the parole applicant's success at eliminating the conditions, behaviors, and thinking that led to his or her arrest in the first place. Once a parole applicant can produce evidence of rehabilitation and readiness for a return to society without posing a threat, they should be released. And then it becomes the community's responsibility, with the assistance of the division of parole, to help them with their reintegration.

The first step in making our proposal a law is to find a sponsor in both houses of our legislature. The legislators in turn need to convince other legislators to support it. We have to find a sponsor, and we have to convince our own representatives to get on board..."

Building Bridges - March 2010 edition

The March edition of Building Bridges is now available from the Prison Action Network.

Items covered in this issue include:

1. Activities for advocates, statewide
2. Coalition initiates campaign for parole reform
3. ICARE on DOH oversight of DOCS HIV/AIDS treatment
4. Job opportunities
5. Know Your Rights Project for immigrant detainees
6. Legislation watch
7. Medicaid and disability program rules
8. Lifers and Longtermers Clearinghouse
9. NYS Prisoner Justice Conference
10.Parole News
11.Prison media: radio, video, print, theater
12.Transportation to prisons

Of particular interest to parole reform:

The Coalition for Fair Criminal Justice Policies are actively pursuing legislative sponsorship of their proposed revisions to Executive Law §259-i, the section of the parole statute which describes the way the NYS Board of Parole must operate. The Coalition will bring their proposed revision of Executive Law §259-i to the New York State Prisoner Justice Conference on March 27th.

Quoting from Building Bridges: "This work is a beginning step toward our larger purpose, which is to move the NYS criminal justice system as a whole toward a reintegrative model. This model engages a person, from the time of their arrest until their reintegration, in the development of a reintegration document which would identify the contributing factors leading up to the arrest, and the strengths and assets they might use, if so motivated, to return quickly to life as a productive citizen. It could be used to inform the bail hearing, the indictment, the attorneys, and the judge who would be guided by it in designing a sentence that provided specific recommendations for this particular person to prepare him or her for reintegration. And if the sentence included incarceration the document would continue to be revised as the person moved through the system, and when they completed the conditions of the sentence they would be released. Our revisions to Executive Law §259-i would enable people who have met specific criteria to be released. In that way, it conforms to this overall reintegrative model as best it can without the rest of the model in place. (In the case of an indeterminate sentence, the release would be to parole supervision and the conditions of parole would again be based on the reintegration document.)"

Building Bridges goes on to describe the steps required for the proposed revisions to Executive Law §259-i to be adopted by the Legislature in bill form.

Building Bridges - February 2010 edition

The February edition of Building Bridges is now available from the Prison Action Network.

Items covered in this issue include:

1. Activities for advocates, statewide
2. CFFCJP reveals proposal for 259-i revision
3. ICARE on Black History Month
4. Legislation Watch
5. Medical Parole releases
6. NJ's progressive criminal justice legislation
7. NYS Prisoner Justice Conference
8. Parole News
9. Prison Media: radio, Internet, movies
10. Prisoners of the Census - NYS coalition formed
11. Transportation to Prison
12. Women In Prison Project reports on Lobby Day


Of particular interest to parole reform is the summary of proposed changes to NYS Executive Law § 259-i, given by the Coalition For Fair Criminal Justice Policies, and quoted in detail below. [For comparison, the full text of NYS Executive Law § 259-i currently governing the procedures of the State Board of Parole may be found here.]

Here is the summary of proposed changes to Executive Law § 259-i, prepared by the Coalition For Fair Criminal Justice Policies.

Executive Law § 259-i describes the way the State Board of Parole must operate.

Section 1 has been removed because it established how to set minimum periods of imprisonment. That responsibility was returned to the Courts in the 1980's, so the Board of Parole no longer has a punitive responsibility. The Parole Board now is responsible for determining a person's readiness to remain at liberty without violating the law.

Parole hearings must take place with all parties in the same room, and it must be video and sound recorded. Copies of the recording must be made available to the Division of Parole and the parole applicant or someone representing the parole applicant. No one else will have access.

At least one month before the hearing, the applicant must be allowed to see all documents about him/her that will be supplied to the Parole Board. No documents shall be considered confidential, including mental health records (unless they can reasonably be expected to cause substantial and identifiable harm to the parole applicant or others, in which case the parole applicant would be told that such documents exist in his/her file, but won't be allowed to see them).

If the Parole Board denies release, they will be required to state in detail the reasons for the denial, and the specific actions, programs or accomplishments needed in order to qualify for parole release at their next hearing, and provide this information to the parole applicant within two weeks of the hearing. Within 90 days the Dept. of Corrections must provide access to the means for achieving the requirements specified by the Parole Board.

The parole applicant will have a rehearing before the Parole Board upon completion of the specific requirements, or in 24 months, whichever comes first.

At the rehearing, if the Parole Board determines that the requirements have been successfully completed, release shall be granted.

If the parole applicant hasn't completed the specific requirements within twenty-four months the Board will identify the deficiencies and list the remedies to be taken by the applicant, and the process will be repeated.

The Parole Board shall consider good conduct and efficient performance of duties while confined, and preparedness for re-entry and reintegration into society, in making their decision whether the person will be able to live and remain at liberty without violating the law.

In making their determinations the following things must be considered by the Parole Board:

1. the applicant's institutional record, including program goals and accomplishments as stated in facility performance reports
2. academic achievements
3. vocational education
4. training or work assignments
5. therapy
6. interpersonal relationships with staff and other sentenced persons
7. other indications of pro-social activity, change and transformation.
8. if it's a reappearance, the progress made towards the completion of the specific requirements previously set forth by the Parole Board
9. participation in a temporary release program
10. release plans, including community resources, employment, education and training and support that will be available
11. a deportation order

Concerning victim impact statements, the Parole Board may only consider statements about behavior which took place after sentencing and in which the applicant [or his/her representative] threatened or intimidated the victim.