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.
