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.

Building Bridges - October 2011 edition

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

Articles in this edition include:

1. Prison Children Anonymous: Children who have or once had a parent, sibling or loved one involved in the criminal justice system, now have a place to receive emotional support and learn about our penal system.

2. Citizens Against Recidivism 5th Annual Citizens’ Awards Event, Saturday November 5th, is at a new location this year: TIAN, 679 Riverside Dr. Join the PAN table for a reduced ticket price.

3. Formerly Incarcerated and Convicted People’s Movement (FICPM) announces a national conference to discuss and ratify a National Agenda to restore their civil and human rights.

4. The Coalition for Women Prisoners, a project of the Women in Prison Project, invites readers to help make the criminal justice system more responsive to the needs and rights of women and their families.

5. The Free Bus Program was recently eliminated by NYS DOCCS. Please help bring it back by taking the “Bring Back the Buses” Survey.

6. Legislation: Despite rumors, there is no law releasing inmates after 65% of their sentence is served, The SAFE Parole Act was not voted on by the Senate ‘s Crime Victims, Crime and Correction Committee, and only 4 of the 26 bills reported on in Building Bridges were voted on by any body. None of them became law.

7. NYS Parole Reform Campaign: Response to Philip Genty’s article on Exec. Law §259-i revisions by the governor (see Sept. Building Bridges). More than 210 letters to the Governor in support of the SAFE Parole Act have been gathered by hardworking readers. Good work, team!

8. Parole News: August releases, first use of revised Parole Board policies, comments from a stakeholder.

9. Youth Justice: New York State is one of only two states in the country (the other is North Carolina) where every 16 and 17 year old is automatically tried as an adult. Judge Lippman calls for raising the age.

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)

The Misuse of Life Without Parole

"...The American Law Institute, a group composed of judges, lawyers and legal scholars, has wisely called for restricting the use of the penalty to cases “when this sanction is the sole alternative to a death sentence.”

In capital cases, life without parole is a sound option. Public support for the death penalty, a barbarity that should be abolished in this country, plummets when life without parole is an alternative. In many states, juries are instructed that it is an option. But the use of the sentence has gone far beyond death penalty cases, even as violent crime rates have declined.

In the last decade in Georgia, one of the few states with good data on the sentence, about 60 percent of offenders sentenced to life without parole were convicted of murder. The other 40 percent were convicted of kidnapping, armed robbery, sex crimes, drug crimes and other crimes including shoplifting. Nationwide, the racial disparity in the penalty is stark. Blacks make up 56.4 percent of those serving life without parole, though they are 37.5 percent of prisoners in all state prisons.

The overuse of the sentence reflects this excessively punitive era. But as the institute’s report explains, an “ordinary” life sentence is “a punishment of tremendous magnitude” whose “true gravity should not be undervalued.” In the past 20 years, the average life term served has grown from 21 years to 29 years before parole...

...A fair-minded society should revisit life sentences and decide whether an offender deserves to remain in prison or be released on parole. And a fair-minded society should not sentence anyone to life without parole except as an alternative to the death penalty."

For full story:

The Misuse of Life Without Parole (New York Times, September 12 2011)

See also the following responses:

Life Sentence for Youths? (New York Times, September 18 2011)

Revisiting Life Sentences (New York Times, September 25 2011)

Building Bridges - September 2011 edition

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

Articles in this edition include:

1. Attica: NYC's Attica Is Us event focused on the messages we can take from the 1971 Rebellion; Buffalo engaged in educating the public about the impact of incarceration on individuals and the community, and Mika'il DeVeaux used his memory of the day to write a piece reminding us of the continued politicizing of incarceration, and calls on us to fight back.

2. The Women in Prison Project looks forward to a "day when survivors who act to protect themselves and their children from an abuser’s violence are given support and protection instead of harsh punishment and incarceration—to a day when survivor-defendants are treated with the fairness and dignity they deserve."

3. Columbia Law School Professor Philip Genty analyzes the potential impact of the policy shift contained in the Governor's revision of Exec Law § 259-i and concludes that "this addition of an explicit requirement that the Parole Board adopt and be guided by procedures that require it to evaluate "rehabilitation" and "the likelihood of success…upon release" signals a critical reform and modernization of parole practices."

4. Job Announcement from FACES NY, Inc. Job Title: Re-Entry Case Manager; Hours: 35 hrs/weekly; Salary Range: $30,000 - $35,000/yr Qualifications: BA degree in Social Work or a related human services field and/or 5 years minimum experience.

5. Legislative report dispels the rumor that the SAFE Parole Act has passed. A bill is not a law. The NYS Senate and Assembly both need to vote for it during a Legislative Session. The last Legislative Session ended in June 2011, and will not start again, barring an emergency, until January 2012. (See further details below.)

6. The NYS Parole Reform Campaign invites family members and friends and advocates of people who have appeared, or will appear before the NYS Parole Board, to tell their stories on video or audio recording, and hopefully by doing so open the eyes of those who know nothing of the injustices we experience. They also need data entry and legislative look-up volunteers to help their supporters get the information they need.

7. Parole News: July Statistics for A1VO Parole Releases.

Also from Building Bridges, an update on the status of the SAFE Parole Act:

"Rumors that the SAFE Parole Act has passed are unfounded. A bill is not a law (please refer to the August issue of Building Bridges for the process). The NYS Senate and Assembly both need to vote for it during a Legislative Session. The last Legislative Session ended in June 2011, and will not start again, barring an emergency, until January 2012.

S5374: The Senate will have to reintroduce the SAFE Parole Act in January when they go back into session. It will be given a new Senate number. At the end of last session it had four Senate sponsors: Senator Tom Duane and three co-sponsors: Senators Velmanette Montgomery, Bill Perkins, and Gustavo Rivera.

When Sen. Nozzolio chooses, the SAFE Parole Act will be introduced to the Crime Victims, Crime and Corrections Committee, which he chairs, for a vote. A majority of the members will have to vote for it in order for it to move out to the Senate floor for a vote. If a majority vote against it, it will be dead unless and until someone reintroduces it at the next Session (January 2013).

A7939: The Assembly retains bills for two sessions, so it will keep this number and its seven Assembly sponsors: Assembly Member Jeffrion Aubry, two co-sponsors: Assembly Members Andrew Hevesi and Eric A. Stevenson, and three Multi-sponsors: Assembly Members Herman D. Farrell, Jr., Richard N. Gottfried and John J. McEneny.

Assembly Member Jeffrion Aubry (who is also the head of the Assembly's Corrections Committee) probably will wait until he feels it has enough support to pass before he introduces it to the committee. Like the Senate, if the committee passes it, it goes to the Assembly floor for discussion and a vote.

Please encourage your State Senator and Assembly Member to vote for the SAFE Parole Act if there is to be any hope of this bill becoming law."

Changes to Parole Laws Signal Potentially Sweeping Policy Shift

The following extracts from this article by Philip M. Genty, referring to Governor Cuomo's revision, are taken from Building Bridges:

"...In his article [condensed here] Prof. Genty holds that the most significant reform in Gov. Cuomo’s revision was the removal of Section 1. In 1978, the Parole Board announced its guidelines for setting the minimum sentence, which Section 1 gave them authority over. The only two factors specified in these guidelines were the seriousness of the offense and the person's prior criminal history. The guidelines were presented as regulations, which set out a grid for calculating the minimum period of imprisonment, i.e., the period of time a person in prison would be required to serve before becoming eligible for parole release:

(3) To derive the guideline time range, the appropriate cell is located on the parole decision making grid where the offense severity and prior criminal history scores intersect. The offense severity score is located on the vertical axis, the prior criminal history score on the horizontal axis. The cell on the guideline grid where the two scores intersect indicates the suggested time to be served, based on these two major factors.

...No other release guidelines have ever been set forth by the board. In 1980, the Legislature removed the responsibility for setting minimum sentences from the Parole Board and transferred it to the courts. Senator Christopher Mega's memorandum in support of this change described the Parole Board's power to set sentences as "an irrational waste of taxpayer money as well as of criminal justice resources" and observed that "there is nothing on which the Board's decision can be based which was not before the court at the time sentence was imposed…; and most of these factors consist of matters the court is better able to ascertain and evaluate (e.g., seriousness of the offense, mitigating and aggravating factors, etc.). However, despite the Parole Board's loss of the responsibility for setting minimum sentences, Section 259-i(1) of the Executive Law—"Establishment of the Minimum Periods of Imprisonment"—stayed on the books, and the guidelines remained unchanged.

...The 2011 amendments require the board to adopt procedures that incorporate a growing body of social science research about assessing post-release needs and recidivism risks. These procedures will be designed to measure rehabilitation and facilitate better informed parole release decisions. The amended Section 259-c states that the Parole Board shall:

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.

...This addition of an explicit requirement that the Parole Board adopt and be guided by procedures that require it to evaluate "rehabilitation" and "the likelihood of success…upon release" signals a critical reform and modernization of parole practices. Such procedures, when promulgated, will rationalize parole decision-making by placing the focus primarily on who the person appearing before the Parole Board is today and on whether that person can succeed in the community after release, rather than—as under the previous "guidelines"—on who the person was many years earlier when she or he committed the crime. This is a shift in policy of potentially sweeping significance."

The Prison Action Network make the following comments about Professor Genty's article:

"We are encouraged by Columbia Law School professor Phillip Genty’s optimistic view of the Governor’s changes to the parole laws, and we certainly hope Parole Commissioners are reading it and being influenced to see it as he does. Through Genty's eyes, the Governor’s changes accomplish much of what the SAFE Parole Act would. However we do not share Prof. Genty’s faith in the Risk and Needs Assessment that is used. Its questions measure the strengths and deficits of the person being interviewed. While this is useful in developing a Transitional Accountability Plan for use during incarceration and after release to parole supervision, how it will influence release decisions remains to be seen."

For full text of the article, see:

Changes to Parole Laws Signal Potentially Sweeping Policy Shift, by Philip M. Genty. (New York Law Journal, September 1 2011)