The following is a true story.

Location: Nassau County. Date: March 11, 1986. Husband, 30 years old, discovers his wife, age 25, has been unfaithful. He strangles her and buries her body out of state. Police question him a week later and he confesses and discloses the location of the body.

Husband went to trial, waived a jury and sought a conviction on a reduced charge based on emotional distress. The court rejected his defense and found him guilty of murder in the second degree. The District Attorney asked for the maximum sentence of 25 years to life. Defense asked for the minimum of 15 years to life. The court, impressed with letters of support for the husband, sentenced him to the minimum.

Fast forward to 2012. The husband/inmate, my client Philip Rabenbauer, is before the Parole Board. The board knows the inmate’s institutional record is exemplary. They have letters of commendation from a facility superintendent where he was earlier incarcerated, as well as from the civilian for whom he works in the facility where he is presently incarcerated. They have letters of recommendation from numerous correctional officers.

The board further knows: he is a trusted inmate having had for 12 years what is called “outside clearance”; he is an honor student having taken college credit courses, receiving a letter of praise from the college president; he has no disciplinary issue; he has many skills as a construction worker; he is also computer literate having devised computer forms which were used by one of the institutions where he was previously incarcerated; he has acknowledged guilt and genuinely expressed remorse; and, he has strong family support from his father, sisters and a brother, all of whom have offered their homes to him upon parole.

Yet, parole was denied. In fact, this was the seventh time he was denied parole. By the time I filed an Article 78 Petition in July 2013, Rabenbauer had served 27 years, almost double his sentence.

So, what’s the law of parole? Executive Law Section 259 sets forth a four fold statutory command: 1) parole can not be granted solely on the basis of good conduct; 2) the board must determine that the inmate will live in the community without violating the law and that release is not incompatible with the welfare of society, and that it will not deprecate the seriousness of the crime as to undermine respect for the law; 3) statutory guidelines are provided which the board must consider, such as the inmate’s institutional record including program goals and accomplishments, academic achievements, disciplinary issues, interpersonal relations with staff and inmates, and release plans; and, 4) the reasons for denying parole must “be given in detail and not in conclusory terms.”

Case law provides additional guidance when applying the facts of a particular case to the statute. First, the serious and violent nature of the offense is an appropriate factor for the board to consider. So, also, is an inmate’s criminal history. Second, the board has broad discretion in deciding what weight should be given to each of the guidelines, and the board is not required to expressly discuss each of the guidelines in its determination. And third, like all Article 78 proceedings, the petitioner has the heavy burden of establishing that the board was arbitrary and capricious in denying parole.

The board’s discretion is not, however, unlimited. There are three things the board can not do. First, the board can not base its parole denial solely on the serious nature of the crime, said otherwise, the board can not override the sentencing judge. Second, while the board does not have to consider each guideline and while it has discretion in deciding the weight given to any particular guideline, the board can not disregard the guidelines. Third, as stated above, the board must give its reasons for parole denial “in detail and not in conclusory terms.”

There are two fundamental flaws in parole practice, one in law and the other in how the law is administered by the board.

The basic flaw in the statutory command and case law is the logical contradiction between the mandate that parole can not be granted solely on the basis of good conduct, and that the board can not base its parole denial solely on the serious nature of the crime. This is so because if an inmate has an exemplary institutional record, as my client had, then by definition, parole was denied solely because of the serious nature of the crime.

In other words, the board is entitled to say parole is denied because the crime was particularly egregious, plus the inmate has not acknowledged guilt, or expressed remorse, or the inmate has had disciplinary problems, or for some other specific reason. But if there is no other reason, then denial is obviously based solely on the serious nature of the crime.

The basic flaw in the administration of the statute is the board’s repeated failure to give serious consideration to the guidelines, and to give reasons for denying parole “in detail and not in conclusory terms.” Board decisions denying parole typically state that the guidelines were considered, but that release is incompatible with the welfare and safety of the community, and that release would deprecate the seriousness of the crime as to undermine respect for the law. This kind of casual mention of the guidelines, and these unexplained conclusory statements are hardly the kind of serious analysis required by the statute.

There seems however to be a recent change in both board willingness to grant parole and the willingness of the courts to scrutinize board decisions and order a new parole hearing. Data suggest an increase in the rate of release in recent years. As for the courts taking a more active role in reviewing board decisions, see for example, In the Matter of the Application of Craig Winchell, 27 Misc.3d 1232(A), 910 N.Y.S.2d 766, 2010 (LaBuda, J.); In the Matter of the Application of Craig Winchell (Second Case), 32 Misc.3d 1217(A), 934 N.Y.S.2d 37, 2011 (LaBuda, J.); In the Matter of Henry “Hank” Morris v. New York State Department of Corrections and Community Supervision, 40 Misc.3d 226, 963 N.Y.S.2d 852, 2013 (Mott, J.); In the Matter of Philip Rabenbauer, (LaBuda, J.), Sullivan County Index No 1855-13, Nov. 27, 2013, NYLJ (Dec. 11).

David Lenefsky is an attorney in New York.