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.

Current material on parole

For excellent sources of current material on parole and the need for parole reform please see:

*  Building Bridges, the monthly newsletter of the Prison Action Network. Contains up to date news, campaigns, reports and statistics on parole, as well as regular updates on the progress of the Safe and Fair Evaluations (SAFE) Parole Act from the NYS Parole Reform Campaign.

*  Petition for change, by The Riverside Church Prison Ministry:
Governor Andrew Cuomo: ESTABLISH A COMMISSION ON PAROLE TO END PAROLE ABUSES AND REUNITE FAMILIES 

*  New York's Broken Parole System (New York Times, February 16 2014)

*  Public Comments in Support of Parole Reform (Correctional Association of New York, January 2014)

Testimonies from the New York State Assembly Committee on Correction's Public Hearing on Parole Reform, December 4 2013:

*  Professor Philip Genty Testifies on Parole Procedures Before State Assembly's Correction Committee (Columbia Law School, December 6 2013) Includes full text of Professor Genty's testimony before the New York State Assembly Committee on Correction on December 4 2013

* Parole Review Process Has Serious Shortcomings, by Scott Paltrowitz (Correctional Association of New York, December 6 2013) Includes full text of the Correctional Association's testimony before the New York State Assembly Committee on Correction on December 4 2013

*  Advocates Recite Shortcomings of N.Y. Parole Review Process, by John Caher (New York Law Journal, December 5 2013)

*  Testimony of Mujahid Farid, head of the Release of Aging People in Prison (RAPP) Campaign, before the New York State Assembly Committee on Correction on December 4 2013

*  Testimony of Tina M. Stanford, Chairwoman NYS Board of Parole, before the NYS Assembly Standing Committee on Correction, Wednesday December 4 2013

*  Testimony of Anthony J. Annucci, Acting Commissioner NYS Department of Corrections and Community Supervision, before the NYS Assembly Standing Committee on Correction, Wednesday December 4 2013

Building Bridges - September/October 2013 edition

The September/October 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, ways to help and become involved.

Summaries of articles:

1.  Parole News: August releases; News about former parole board member and chair Robert Dennison’s advocacy for certain parole applicants.
     
2.  NYS Parole Reform Campaign reports on the growing energy around the SAFE Parole Act; unveils new and easy Weekly Action readers can join.
     
3.  Ending Parole Abuse - Reuniting Families; a Campaign to Overhaul New York’s Parole System encourages public participation and invites us to their gala Kick-off event on November 8.
     
4.  We can do it! Inspiration from FAMM’s experience.

5.  End Mass Incarceration Convergence puts Prisoner Justice Network solidly on the map.
     
6.  Release Aging People from Prison (RAPP) unveils petition drive on WBAI’s Law and Disorder show.

7.  Religion, Abolition, Mass Incarceration seminar on October 4-5 includes speakers from RAPP.
   
8.  Bookends, an evening of performances inspired by incarcerated parents and grandparents, to be presented in Albany by Prison Legal Services.
     
9.  Michelle Alexander is expanding her focus to include a radical restructuring of society.
     
10.  Education from the Inside Out is beginning a new season of working to remove the barriers that keep our youth and people with criminal records uneducated.
   
11.  Part 3 in Baba Eng’s address to Building Bridges readers in which he looks at who's responsible and who is going to do something about our failed criminal justice system.

12.  Forty-two years after the Attica rebellion Prisoners Are People Too takes a look at what has changed (or not) over the four decades since then.
   
13.  Corey Parks: The race for quality has no finish line. There is always room for more improvement.

14.  Small Business Legal Academy offers free consulting day.

15.  Special screening of Herman’s House at CSS. Petition to grant him compassionate release.

Building Bridges - August/September 2013 edition

The August/September 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, ways to help and become involved.

1.  Parole releases are averaging close to 26% for both initials and reappearances; Building Bridges gives a list of current parole commissioners and their biographies. 

In other parole news, the following is a brief summary from the highly recommended report, Parole Release Decisions and the Rule of Law, by Alan Rosenthal and Patricia Warth (Atticus, Summer 2013, Vol. 25, No. 2, p. 10-16):

"In response to the amendment of Executive Law § 259-c(4) the Parole Board took no action to establish written procedures, instead apparently relying upon the "Evans' Memo" to suffice. Upon inspection and investigation of this memo a simple truth emerges. The memo does not contain the procedures required to satisfy the 2011 amendment and it has not been promulgated by proper filing with the Department of State, the Secretary of State, or publication in the state register. Therefore any action taken by the Parole Board to deny parole to any person coming before it would be made in violation of Executive Law § 259-c(4) because it would have been made without first establishing or following proper procedures, thus inviting judicial annulment."

2.  Only four Criminal Justice bills that the Prison Action Network were following made it into law. None of them targets a subset of the prison population, and two increase benefits to victims.

3.  The campaign to overhaul NY’s failed parole system is moving forward with a meeting on September 7 to begin planning the year’s events.

4.  NYS Prisoner Justice Network takes a cautious look at the Stop and Frisk judicial decision and A.G. Holder’s speech calling for federal prison reforms.

5.  DOCCS is denying more and more women entry to the Bedford Hills' prison nursery, particularly women who have been convicted of violent crimes and women who have had child welfare involvement with other children.

6.  Merle Cooper petition signatures reach 845. There are six days left to at least be counted among those who think DOCCS should maintain programs that have proven track records.

7.  College degree program at Albion C.F. to start this summer, thanks to a $200,000 grant from the Sunshine Lady.

8.  Baba Eng follows the thread from Black Codes > criminal justice system > criminal codes > Emancipation Proclamation > 13th amendment with its exception > vagrancy (and other) laws to catch up Freed Blacks.

9.  Black August: In remembrance of Jonathan Jackson, brother of George Jackson, Mujahid Farid, the featured speaker at this month’s Prisoners Are People Too meeting, will consider how the fate of Jonathan ties into issues of juvenile justice.

10.  Corey Parks wants to convince you of your ability to become a leader after you come home.

11.  ReEntry Roundtable Wed. Sept 18, 1-3pm, "Broken On All Sides" documentary.

Building Bridges - July/August 2013 edition

The July/August 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 updates about the NYS Parole Reform Campaign, ways to help and become involved.

1.  Parole News - June releases, the First Department of NYS Supreme Court's Appellate Division overrules Judge Huff's ruling in the case of Kozlowski v. NYS Board of Parole.

2.  Parole Reform Campaign - The Prison Ministry of the Riverside Church in New York City will launch their year-long campaign to  overhaul New York's failed parole policies and practices with a weekend of inspiring performances, workshops, and worship. SAVE THE DATE: Nov 8-10. [To participate, please contact Sheila Rule, or call her at 877-267-2303.]

3.  The status of the SAFE Parole Act after two Legislative Sessions.

4.  Legislative Report on the status of the six bills, among those the Prison Action Network has been following, which passed in both houses.

5.  Don't give up on Merle Cooper! Click here to sign the petition.

6.  Prisoner Justice Network shines the light on the many struggles to put criminal justice and injustice on everyone's radar, nationally and globally. This visibility gives justice activists and advocates an opening to get out the truth about over-incarceration, racial targeting, and abusive prison conditions, and to organize for change and justice.

7.  Ageing in Prison, a report by Karima Amin. Everyone loves grandma… and grandpa too. But when incarceration enters the mix, love and respect often disappear and attitudes change. This will be the topic at the next meeting of Prisoners Are People Too, on Monday, July 29 at 6:30pm.

8.  Corey's Column: Your mind-set is the biggest challenge in succeeding at reintegration.

9.  Hip-Hop for Prisoner Justice features artists from around the world to promote justice for prisoners. In Troy NY at Freedom Square, Saturday August 3, 5pm - 8:30pm.

10.  Capital Region RJ Conference will discuss the effectiveness of restorative justice circles in both minor and serious criminal cases. September 20, 9am - 4pm in Saratoga Springs.

11.  Baba Eng's message to us: A shift in perspective and paradigm is required to meaningfully address the effect(s) of the unjust application of criminal justice.

12.  An updated, easy to understand, one page description of the SAFE Parole Act is available. If you would like a copy, please contact the Prison Action Network at prisonactionnetwork@gmail.com.