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.

New York State Parole Board Members

Short biographies of the current members of the NYS Board of Parole, provided by the Prison Action Network in the April edition of the Building Bridges newsletter.

It is expected that some whose terms have expired will be replaced very soon by Governor Cuomo. Following each biography is the commissioner's term, and the governor who appointed them.


From the Prison Action Network:

Andrea Evans: as Chairwoman, also served as Chief Executive Officer of the Division until the Division was merged with DOCS. Ms. Evans was most recently Director of the Division of Parole for Region II, an area encompassing Brooklyn, Queens and Staten Island. In this position, she was responsible for the operation of nine area offices, and the Queensboro Correctional Facility. Prior to this role, Ms. Evans served as Deputy Regional Director for Region I, where she managed the operation of five field offices in Bronx County. [ June 8, 2009 - Feb. 6, 2013 Paterson]

Jared Brown: a practicing attorney since 1976, Brown became a partner in Brown and Guilbert, a New York City Law Firm in 1984. Prior to practicing law, Brown worked as a narcotics parole officer with the New York State Addiction Control Commission and at the New York City Department of Social Services. [Jan 26, 2010 - June 18, 2012 Paterson]

Joseph Crangle: Assistant Court Analyst with the NYS Office of Court Administration, assigned to the Domestic Violence Part of the Buffalo City Court where he monitored defendant's compliance with court orders; a probation officer with the Genesee County Probation Department, where he oversaw the Pretrial Release Under Supervision program. Mr. Crangle has a bachelor's degree from Canisius College and his JD from the City University of N.Y. [June 19, 2008- June 16, 2014 Paterson]

Lisa Beth Elovich: Administrative Law Judge at the NYS Office of Children and Family Services; lawyer in the Attorney General’s Office and in the Manhattan District Attorney’s Office. [Dec. 13, 2006 - Dec. 31, 2013 Pataki]

James Ferguson: Administrative Law Judge at NYS Division of Parole, Jan 1999 – May 2005; Assistant District Attorney, Bronx District Attorney's Office, Aug 1992 – Jan 1999. Education: Marist College B.S., Political Science/Psychology; Pace University School of Law, Juris Doctor. [April 12, 2005 - July 6, 2011 Pataki]

Gerry Greenan: comes from a prominent family in West Seneca; was appointed by Governor George Pataki; is an attorney at the prominent law firm of Harris, Beach in the Commercial Real Estate, Residential Real Estate, and Life & Asset Planning Practice Groups. [June 21, 2006 - June 18, 2012 Pataki]

Michael A. Hagler: more than 30 years in law enforcement: senior investigator with the Office of the New York State Attorney General, conducting investigations into environmental and computer crimes, money laundering, gambling and narcotics in the Rochester region; member of the Metro Rochester Firearms Suppression Unit (Project Exile), security detail for then Attorney General Eliot Spitzer in upstate NY; investigator sergeant with the Monroe County Sheriff’s Office supervising various units within the department’s Criminal Investigation Division, the department’s liaison with all local, state and federal law enforcement agencies as well as community groups. [Oct. 22, 2007 - Aug.31, 2013 Spitzer]

Christina Hernandez: served as Commissioner of the New York State Crime Victims Board, as a Commission Member of the New York State Commission on Judicial Conduct. In 2009, Ms. Hernandez was selected as one of nineteen parole board commissioners from across the United States to participate in a pilot training, "Integrating Evidenced-Based Principles into Parole Board Practices," created by the National Institute of Corrections, U.S. Department of Justice. Ms. Hernandez holds a Bachelor of Arts from Buffalo State College; a Masters in Social Work from the School of Social Welfare and a Certificate of Graduate Study in Women and Public Policy from the Rockefeller College of Public Affairs and Policy, at the University at Albany. Additionally, she has completed all course work towards a PhD at University at Albany-SUNY School of Social Welfare.
[June 14, 2006 - June 6, 2011 Pataki]

Henry Lemons: was not replaced when his 2007 appointment to fill an unexpired term came to an end in 2008. He has now been formally appointed to serve out the remaining 4 years of the new 6 year term. He served from 2004 to 2007 as Deputy Chief Investigator for the New York State Attorney General. Prior to that, he was the Assistant Chief Investigator for the Kings County District Attorney. He is a former Sergeant and Detective with the New York City Police Department. He also served for four years of active duty with the United States Air Force. Mr. Lemons earned his bachelor’s in criminal justice and planning from John Jay College of Criminal Justice and his master's in organizational leadership from Mercy College. He is a graduate of the FBI National Academy. Mr. Lemons was raised in the Bedford–Stuyvesant section of Brooklyn and Queens, where he still resides. [May 1, 2007 - June 18, 2008 Spitzer]

G. Kevin Ludlow: is a Lawyer in Utica, New York [June 21, 2006 - June 18, 2011 Pataki]

Mary Ross: staff attorney with the Legal Aid Society in Queens, executive director of Providence House, a nonprofit corporation that provides transitional and permanent housing for female ex-offenders, homeless women and their children; the campus minister at Queens College; the director of administrative services at the Diocese of Brooklyn;. She has a bachelor's degree in education from St. Joseph's College, master's in education from Brooklyn College and JD from the City University of New York. [June 19, 2008 - Aug 31, 2013 Paterson]

Walter Smith of Clarence: appointed to two terms by Pataki, was a senior investigator for the state's Crime Victims Board. [Dec 16, 1996 - July 6, 2011 Pataki]

Sally A. Thompson: Twenty distinguished years with the NYC Police Department, as a detective in the department, investigating violent crimes and making numerous felony and misdemeanor arrests; five years in the Bronx Narcotics/Major Case Division, conducting complex criminal investigations that included surveillance and undercover operations; active member of the Fraternal Order of Police and the Detective Endowment Association. [June 14, 2007 - May 4, 2013 Pataki]

New York Still in Need of Parole Reform

An important article giving an overview of the need for parole reform has been published in the Spring 2012 issue of Atticus, produced by the New York State Association of Criminal Defense Lawyers (NYSACDL). 

Applying old backward-looking static factors while attempting to follow the new dynamic procedures for parole release decision-making based upon present and future-looking risk and needs principles creates a contradiction that the Parole Board will find very difficult to reconcile.

"Stated simply, the newly amended Executive Law § 259-c(4) is incompatible with the archaic Executive Law § 259-i. There is a significant contradiction between the old parole decision making factors in Executive Law § 259-i(2)(c)(A) and the newly amended forward-looking risk and needs principle shift contemplated by Executive Law § 259-c(4). Problematic decisions like the one in Matter of Thwaites will continue to trouble the courts and wreak havoc with parole release until Executive Law § 259-i is modernized. That is exactly what the SAFE Parole Act will do as it will eliminate the contradiction between the remnants of an old decision-making system that looks backward at the "seriousness of the crime" and a present and forward-looking procedure that relies on risk and needs principles."

For complete article:

New York Still in Need of Parole Reform, by Alan Rosenthal and Patricia Warth (Atticus, Volume 24 No.1, Spring 2012, pages 11-15) 

Women on probation or parole more likely to experience mental illness

A new report shows that women aged 18 to 49 on probation or parole are nearly twice as likely to experience mental illness as other women. The study conducted by the Substance Abuse and Mental Health Services Administration (SAMHSA) showed that almost half of women in this age range who had been on probation (49.4 percent) and more than half on parole (54.2 percent) in the past year had experienced some form of mental illness - compared to 27.5 percent of women who had not been on probation or parole.

"This report highlights the very real need for providing better behavioral healthcare for women emerging from the criminal justice system," said SAMHSA Administrator Pamela S. Hyde. "Providing these services not only meets a vital public health need, but is a very sound investment since it can prevent many at-risk women from returning to the criminal justice system. Since women play a vital role in families, schools, business, and government, the recovery of women to productive lives can have an enormous positive impact on America’s communities."

... Research indicates that women in the criminal justice system with untreated mental health problems have greater difficulty reintegrating into their families and communities and are more likely to re-offend than those without mental health problems.

The complete report may be viewed here.

Women on probation or parole more likely to experience mental illness (Substance Abuse and Mental Health Services Administration News Release, 26 March 2012)