This year was a busy legislative session for correctional issues. In addition to two well-publicized changes—the decision to close seven state prisons, and the merger of the Department of Correctional Services and Division of Parole to form a new agency, the Department of Corrections and Community Supervision1—the Legislature updated the laws governing discretionary parole release in several important ways. This article will describe and analyze those changes.

The most significant reform relates to the framework for parole decision-making. The existing decision-making guidelines have remained essentially unchanged since 1978. They focus on two factors only—the seriousness of the individual’s crime and the individual’s criminal history. They do not include consideration of the individual’s rehabilitation and potential for successful re-entry. As a result, particularly for individuals serving long sentences for violent felonies, the existing guidelines have led the Parole Board to deny release to persons solely on the basis of a crime committed many years—and sometimes decades—earlier, regardless of demonstrated rehabilitation. The result for incarcerated individuals and their families has been anxiety and uncertainty about the possibility of re-entry and reunification.

The 2011 amendments have the potential to alter this. They modernize the work of the Parole Board by requiring 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.

Discretionary Release System

Discretionary parole release comes into play when a person is sentenced to an indeterminate felony sentence, i.e., a sentence that has a minimum period of incarceration, and a maximum. Release may occur at the expiration of the minimum period,2 the maximum period, or at any point in between.3

When a person appears before the Parole Board for release consideration, she or he may be granted release or denied release and held for up to two years until the next Parole Board appearance, at which time the process will be repeated.4 A person serving an indeterminate sentence with a maximum other than life is eligible for good behavior allowance (“good time”) of up to one-third of the maximum sentence.5 Thus, if no major disciplinary infractions have resulted in the loss of good time—unless the Parole Board has granted an earlier release—a person with a maximum sentence of less than life can expect to be released after having served two-thirds of the maximum sentence. A person serving a sentence with a maximum of life is not eligible for good time6 and may conceivably be denied parole every two years indefinitely.

History of the Guidelines

Prior to 1980, the Parole Board had the responsibility for setting the minimum sentence for most felonies,7 as well as for making discretionary parole release determinations. The exercise of the authority to set minimum sentences (“minimum periods of imprisonment”) was governed by subdivision 1 of Section 259-i of the Executive Law,8 which provided that a person serving an indeterminate sentence would appear before the Parole Board within 120 days of the date on which the person was received in state prison. The Parole Board would conduct a hearing and set a minimum sentence. The Parole Board was required to promulgate guidelines for setting the minimum sentence, and it did so in 1978. The only two factors specified in these guidelines were the seriousness of the offense and the person’s prior criminal history.9

The guidelines were promulgated 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 decisionmaking 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.10

No other release guidelines have ever been promulgated by the board. The two factors measured by the guidelines, seriousness of the crime and prior criminal history, are factors which are appropriate to the purpose the guidelines were designed to serve—guiding the Parole Board in the setting of sentences, specifically the minimum terms of indeterminate sentences.

However, in 1980, the Legislature removed the responsibility for setting minimum sentences from the Parole Board and transferred it to the courts.11 The purpose of this change was to eliminate unnecessary duplication of function between the Parole Board and the sentencing 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.).”12 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.

Thus, the Parole Board guidelines currently in use date back to 1978, and have been essentially obsolete for more than 30 years. Since 1980, the Parole Board’s main responsibility has been to evaluate individuals for parole release after they have served their minimum sentences, but the Parole Board guidelines were never changed to reflect this shift in mission.

While the parole statutes do contain a list of factors that the Parole Board is required to take into consideration in making parole release decisions,13 this list does not provide the Parole Board with any guidance for using these factors to assess the degree of rehabilitation and making difficult decisions about how much time in prison a person should ultimately serve after having satisfied her or his minimum sentence. There is no mechanism for ensuring that Parole Board members will apply the list of factors in a manner that achieves consistency, predictability, and rationality in parole release decisions.

These Parole Board guidelines are therefore ill-suited to the purpose for which they have primarily been used since 1980—evaluating individuals for parole release after they have served their court-set minimum sentence. The guidelines focus only on the individual’s past conduct and fail to measure the array of factors that would be relevant to a meaningful assessment of who the individual is today, and whether that individual has been rehabilitated and can be safely released from prison. A consequence of this is that the Parole Board often acts as if it were still responsible for sentencing decisions—it simply re-examines the underlying crime and criminal history. In doing so it fails to consider any changes that have occurred in the individual in the many years that have passed since the crime was committed. It is against this backdrop that the important 2011 legislative changes were enacted.

The 2011 Amendments

The 2011 amendments updated and improved the parole laws and procedures in several ways. First, the amendments repealed the troublesome subdivision 1 of Section 259-i of the Executive Law, the section that had set out procedures for conducting the obsolete function of setting minimum periods of imprisonment.14 This was long overdue, given that the Parole Board has not had this responsibility since 1980.

A second, technical change is the consolidation in one section of the Executive Law of factors the Parole Board is required to consider. Previously, two of the factors—seriousness of the crime and criminal history, were in Section 259-i(1), the section governing the setting of minimum periods of imprisonment, while the other factors were in Section 259-i(2)(c), the section governing discretionary parole release decisions. A complete list of factors is now included in Section 259-i(2)(c).15 Having all of these factors in a single section of the parole statute adds an important degree of clarity to the law.

However, the most important change is the replacement of static, past-focused “guidelines” with more dynamic present and future-focused risk-assessment “procedures” to guide the Parole Board.16 This shift has the potential to affect significantly the way that the Parole Board conducts discretionary release determinations. The amendments remove reference to the outdated “guidelines,” which, as discussed above, measure only seriousness of the crime and criminal history, factors that are relevant to the setting of minimum sentences but of little value in determining who should be released on parole.

To replace these two-dimensional guidelines, Section 259-c of the Executive Law now contemplates a more nuanced set of “procedures” to provide guidance in making discretionary 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.17

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.

Conclusion

The year 2011 proved to be an active one for legislation affecting corrections and parole. In addition to the closure of seven prisons and the merger of the Department of Correctional Services and Division of Parole, the legislative season included amendments to the statutes governing discretionary release on parole. The most important of these requires the Parole Board to adopt risk assessment “procedures” that focus on the present and future—the extent of the individual’s rehabilitation and her or his likelihood of success after release. This shift in focus has the potential to reduce the number of fully rehabilitated individuals who are denied parole release based solely on the seriousness of their crimes, the one factor that these individuals have no power to change. If so, the 2011 amendments may prove to be the most significant parole reform in more than 30 years.

Philip M. Genty is the Everett B. Birch Innovative Teaching Clinical Professor in Professional Responsibility at Columbia Law School. He is also director of the Prisoners and Families Clinic at the school.

Endnotes:

1. The merger provisions and other changes discussed in this article were enacted as N.Y. Laws 2011, ch. 62, Part C, Subpart A. All subsequent references to the 2011 amendments will be to sections within this Part and Subpart.

The merger language makes clear that the Parole Board retains its independence and its responsibility for making parole release decisions. See §1 Legislative Intent:

It is fundamental that the board of parole retain its authority to make release decisions based on the board members’ independent judgment and application of statutory criteria as well as decisions regarding revocations of release. To this end, the legislation makes clear that the board shall continue to exercise its independence when making such decisions.

The new Department of Corrections and Community Supervision has assumed responsibility for supervising people after they are released from prison. All such forms of supervised release are now collectively referred to as “community supervision” within the relevant statutes. See §1-a (amending N.Y. Correct. L §2, to add a new subdivision 31: “Community supervision” means the supervision of individuals “released into the community on temporary release, presumptive release, parole, conditional release, post release supervision or medical parole.”)

2. A person may actually be released prior to serving the minimum sentence if that person is incarcerated for a crime that qualifies for “merit time.” See N.Y. Correct. L. §803. Merit time is one-sixth of the minimum sentence, so a person who is eligible for merit time appears before the Parole Board after having served five-sixths of her/his minimum sentence.

3. See N.Y. Penal Law §70.40. New York began in 1995 to move toward determinate sentencing (i.e., a sentence with a single, fixed term of years) for felonies. Individuals serving determinate sentences do not appear before the Parole Board for discretionary release hearings. As a result of a series of statutory changes affecting sentences for violent felonies and drug felonies, at present only two categories of felonies still carry indeterminate sentences—Class A felonies, other than those classified as “Controlled Substance Offenses,” see N.Y. Penal L. §§70.70, 70.71, art. 220, and non-violent felonies, again except for those classified as “Controlled Substance Offenses.” Class A felonies have a minimum sentence of 15-25 years and a maximum sentence of life. See id. §70.00. The crimes with a maximum life sentence are Murder, Arson in the 1st degree, Kidnapping in the 1st degree, Conspiracy in the 1st degree, Predatory Sexual Assault, and Predatory Sexual Assault Against a Child. See 2010 Criminal Law Handbook of New York, 1268-69 (LexisNexis). A maximum sentence of life is also imposed upon a person sentenced as a persistent violent felony offender or persistent felony offender. N.Y. Penal Law §§70.08, 70.10.

4. See N.Y. Exec. L. §259-i(2)(a)(i).

5. N.Y. Correct. L. §803 (1)(a).

6. N.Y. Correct. L. §803 (1)(a).

7. The 1977 N.Y. Sess. Laws, ch. 904 (McKinney 1977). The Parole Board did not have this authority for the most serious (AI and AII) felonies. The sentencing court was responsible for setting the minimum sentence for those felonies. Id.

8. Subdivision 2 governed discretionary release determinations.

9. N.Y. Exec. L. §259-i(1)(a). [look at original statute].

10. N.Y. Comp. R. & Reg. tit. 9 §8001.3(b)(3)(2011).

11. See Matter of Schwimmer, 59 N.Y.2d 636, 637 (1983) (“Effective September 1, 1980, the authority of the Board of parole to fix MPI’s was repealed and exclusive power for establishing MPI’s was vested in the sentencing court (see L 1980, ch 873).”

12. Memorandum of Senator Christopher J. Mega, NEW YORK STATE LEGISLATIVE ANNUAL 1980, 378-379 (New York Legislative Service Inc. 1980).

13. The factors are (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… and any recommendation regarding deportation made by the commissioner of the department….; (v) any statement made to the board by the crime victim or the victim’s representative, 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 [for a controlled substance offense]; (vii) the seriousness of the offense with due consideration to the type of sentence, length of sentence and recommendations of the sentencing court, the district attorney, the attorney for the inmate, the pre-sentence probation report as well as consideration of any mitigating and aggravating factors, and activities following arrest prior to confinement; and (viii) prior criminal record, including the nature and pattern of offenses, adjustment to any previous probation or parole supervision and institutional confinement.

14. Section 38-b (repealing N.Y. Exec. L. §259-i(1)).

15. In repealing Section 259-i(1), the Legislature moved these factors to Section 259-i(2)(c). §38-b (repealing N.Y. Exec. L. §259-i(1)); §38-b (amending N.Y. Exec. L. §259-c(4)).

16. Section 259-c(4) of the Executive Law was amended to remove the reference to the “establish[ment] of written guidelines for its use in…the fixing of minimum periods of imprisonment…” and to substitute risk assessment procedures for these outdated guidelines. §38-b. §38-b (repealing N.Y. Exec. L. §259-i(1)).

17. Section 38-b (amending N.Y. Exec. L. §259-c(4)).