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.