Advocates Recite Shortcomings of N.Y. Parole Review Process

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From New York Law Journal:

ALBANY – Several dozen parole-reform advocates convened on a legislative hearing Wednesday where the reform-minded chairman offered hope that a process increasingly criticized by the courts is ripe for change.

Assemblyman Daniel O’Donnell, a Manhattan Democrat and former public defender with the Legal Aid Society, said he has visited a dozen state prisons in the past three months, and expressed concern that felons who seemingly pose no threat are routinely denied parole because of a violent offense committed decades in the past. He said there are times when the system is “just plain stupid.”

O’Donnell invited testimony from witnesses ranging from the chairwoman of the parole board to former parole commissioners to advocates to family members of inmates who have been denied parole despite their achievements in prison to former inmates who presented themselves as living proof of rehabilitation.

He got an earful.

“If the Parole Board doesn’t like the crime, you are not going to get out,” said Robert Dennison, a former chairman of the board who now advocates on behalf of select inmates (NYLJ, Sept. 16).

“The Parole Board process is broken, terribly broken,” said former parole commissioner Thomas Grant, adding that parole board members up for reappointment are loath to let anyone out (NYLJ, Sept. 21, 2012).

“The problem today is that the Parole Board often acts as if it were…responsible for sentencing,” said Columbia Law School Professor Philip Genty. “It simply reexamines the underlying crime and history—factors that will never change.”

“The board has adopted a cavalier attitude that its decisions are above judicial scrutiny,” said Orlee Goldfeld, an attorney with Hollyer Brady.

Goldfeld represented former political consultant Hank Morris, whose denial of parole prompted a Supreme Court justice to accuse the Parole Board of manipulating the process to evade judicial review (NYLJ, April 18). Morris, a first time offender convicted in connection with a pay-to-play scandal involving the state retirement fund, had been denied parole despite his perfect institutional record and the fact that he had served far beyond the guideline range for his crime.

“They know how to manipulate the system so as to run out the clock on the inmate’s claims,” Goldfeld said. “The board should not be allowed to continue to warehouse human beings for its own self-preservation and political and economic interests. It must stop.”

Alan Rosenthal, an attorney and codirector of justice strategies with the Syracuse office of the Center for Community Alternatives, accused the board of “obstinance” for neglecting to adopt written procedures for assessing an inmate’s rehabilitation, as required under 2011 legislation. He complained of the board’s “rein of correctional quackery.”

Jim Murphy, a member of the New York State Catholic Conference’s Criminal Justice Committee and advocate for an inmate who killed a Nassau County police officer, said inmate John Mackenzie has served 37 years of a 25-year-to-life bid and has been denied release seven times, always on the unsupported assumption that he remains a danger to the community.

“John’s crime can never change, but he has,” Murphy said. “It is clear from his history in prison as well as in the risk assessment that he is not a current danger to society. Yet the board dismisses everything but the 1975 crime. Any information on his current condition is merely noted as if [it is] unimportant and not relevant.”

Many of the advocates are pushing for passage of the Safe and Fair Evaluations Act, S.1128 and A.4108, which would result in the presumptive release of prisoners who had met specific expectations of the parole board.

The advocates, and some legislators, thought they had achieved that with 2011 legislation that required the board to develop and utilize a risk-and-needs assessment to determine if an inmate is ready for release. But the Parole Board and several courts have concluded that the 2011 measure did not change the release criteria and merely gave the panel another tool to address the statutory criteria.

Regardless, Genty said, “we need to change the way the Parole Board sees it mission.”

“Rather than focusing on who a person was in the past, the board must acknowledge the person’s capacity for significant change while incarcerated, and give appropriate weight to the extent of an individual’s rehabilitation,” Genty said.

Tina Stanford, the chairwoman of the Board of Parole, noted that current law requires the panel to consider the instant offense along with several other factors. She said the law clearly leaves within the board’s discretion the authority to give what it deems appropriate weight to the various criteria, including the underlying crime and the inmate’s rehabilitative efforts.

“It is appropriate, and lawful, for the board to consider the seriousness of the offense and confidential victim impact statements,” said Stanford, who previously ran the state Office of Victim Services. “This does not mean, however, that the board acts as legislator, prosecutor or judge.”

Stanford said the board complies with the law, insisting that “cases are never predetermined.”

“I cannot stress enough how much the inmate’s interview, demeanor and responses matter to the panel and effect the ultimate decision,” Stanford said.

Stanford said parole does not collect demographic data on whether individuals of certain ethnic backgrounds are more or less likely to be granted release and does not consider race when making its determinations. O’Donnell said it is “shocking” that the agency does not maintain that data, and suggested that it start collecting that information.

The assemblyman quizzed Anthony Annucci, acting commissioner of the Department of Corrections and Community Supervision, on why the parole release rate at several maximum security facilities is 0 percent while it is as high as 17 percent in other prisons. Annucci explained that if a prisoner serving a lengthy term is still in a maximum security prison when he or she comes up for parole, it is probably because the inmate has a poor disciplinary history.

O’Donnell asked attorneys testifying at the hearing to draft reform proposals and promised to continue pursuing change.

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