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ALBANY — The parole policies of an administration eager to end parole came under sharp scrutiny yesterday, when an attorney for a former left-wing radical suggested that Governor George E. Pataki’s appointees are sacrificing established policy to political expediency. At a hearing yesterdayin Albany, Manhattan civil rights attorney Leonard Weinglass said the parole board has become in effect a super-sentencing agency where it, rather than the judge, ultimately determines the appropriate sentence. He suggested that Mr. Pataki’s appointees are intent not on fulfilling their mission of objectively considering the rehabilitation and potential threat of a prospective parolee, but on inflicting punishment beyond that ordered by the sentencing judge. Mr. Weinglass’ appeal to Acting Supreme Court Justice Louis C. Benza came in the celebrated case of Kathy Boudin, a 1960s-era revolutionary sentenced nearly 22 years ago to a 20-years-to-life term for felony murder. Ms. Boudin was a getaway vehicle passenger in a violent 1981 Brink’s holdup in Rockland County in which a security guard and two police officers were killed. Ms. Boudin was not armed, had no direct role in the shootings and was a last-minute participant in the heist. She had nothing to do with planning the robbery, in which revolutionaries stole $1.6 million, supposedly to further their socialist cause. Still, Ms. Boudin was admittedly involved in a crime that resulted in three deaths — the definition of felony murder — even though she apparently was already in custody before two of the three shootings occurred. A former member of the Weathermen, Ms. Boudin was subjected to an extraordinary pre-sentence investigation in which she agreed to undergo a polygraph examination regarding her career in radical politics. The lie detector supported her claim that she had never instigated a violent act. Ms. Boudin promptly repudiated the violence resulting from the Brink’s robbery, and has repeatedly expressed her remorse to the victims’ families. At sentencing, Judge David S. Ritter, now of the Appellate Division, Second Department, said he could “see no reason in the world” why Ms. Boudin would not be released after 20 years “if the parole authorities are satisfied that’s appropriate.” Twenty years later, the Parole Board denied Ms. Boudin her freedom on the grounds that “release at this time would be incompatible with the welfare of society and would serve to deprecate the seriousness of the criminal behavior herein so as to undermine respect for the law.” It made no mention of Judge Ritter’s sentencing remarks or of the fact that Ms. Boudin has spent her prison years assisting AIDS patients and incarcerated mothers while earning a master’s degree in adult education. The Parole Board was appointed by Mr. Pataki, who had declared his opposition to Ms. Boudin’s release before the hearing, and included one commissioner whose term had expired and was looking to the governor for reappointment. Mr. Weinglass is challenging the determination, claiming the Parole Board’s decision is based solely on the crime — the fact pattern for which Judge Ritter imposed a 20-to-life term — with no consideration of the judge’s comments at a plea bargained sentencing or Ms. Boudin’s rehabilitation. He suggests the Parole Board’s denial indicates there is absolutely nothing Ms. Boudin could have done while incarcerated to earn the release after 20 years that Judge Ritter had recommended. Yesterday, the arguments focused mainly on process, and whether the Parole Board is required not only to consider various elements in considering parole applications — it clearly is — but also to make a record of the factors it took into account. Mr. Weinglass said the Parole Board must make clear that it fulfilled its statutory obligations and took into consideration the nature of the offense and the offender. Assistant Attorney General Roger Kinsey said the board did just that, even it if did not say so in its denial of parole. Justice Benza made clear that while he cannot tell the parole commissioners what to do, he can and is inclined to tell them how to do it. The judge said he would not “substitute my feelings in this case for the Parole Board’s.” But he also said the board “didn’t look at what the state told them to look it.” Justice Benza said he will likely decide this week on whether to order a new parole hearing, and that if he does so he will also probably require a different parole panel than the one that initially rejected Ms. Boudin’s petition. Although judges and appellate courts nearly always defer to the Parole Board in challenges of this type, a couple of recent decisions buck that trend, and Justice Benza’s on-the-bench remarks suggest his ruling in the Boudin matter could be the next. In Chan v. Travis, 3045-02, Supreme Court Justice Edward A. Sheridan in Albany said the Parole Board cannot act arbitrarily and must sincerely evaluate the inmate’s prison record and rehabilitative efforts. Justice Sheridan also accused the Parole Board of “de facto implementing Executive policy by curtailing parole for violent felons.” The state and the Pataki Administration strongly deny Justice Sheridan’s accusation. More recently, the Appellate Division, Second Department, on April 7 said the Parole Board erred by neglecting to consider the sentencing judge’s comments. In Edwards v. Travis, 1333/02, the Second Department observed that the trial judge “did not intend the petitioner to serve more than the minimum term of imprisonment,” and that the Parole Board’s failure to consider a “recommendation of the sentencing court” warranted judicial intervention. After a rehearing, Diane Edwards was granted parole. Mr. Pataki has long favored abolishing parole, and has succeeded in eliminating it for violent felons. But the Democratic Assembly has refused to go further, and critics of the governor contend that the administration is now abusing the parole process to punish felons and to keep them behind bars as long as possible. Under Mr. Pataki, the parole release rate for murder convicts has dropped from about 30 percent to about 5 percent. Additionally, release rates for lesser crimes are a fraction of what they were before his 1994 election. The governor’s parole policies have also attracted the attention of federal prosecutors, who two years ago investigated allegations that members of the administration doled out parole in exchange for political campaign donations. Two state parole officials and another individual were convicted and Parole Chairman Brion Travis and Pataki campaign aide Patrick Donohue were labeled unindicted co-conspirators. Ms. Boudin’s case has garnered considerable interest and resulted in a Web site — www.kathyboudin.com — committed to her release. Several of Ms. Boudin’s supporters, including one of her victims and a former state parole commissioner, attended yesterday’s hearing. Norma Hill, whose car was commandeered at gunpoint during the getaway, said that 20 years ago, “I was angry. I wanted revenge. Iwanted Kathy to go to prison.” Her path crossed Ms. Boudin’s again several years ago when both were working with incarcerated AIDS patients. “I learned who she is as a mother, as a person, as a human being,” Ms. Hill said. She said there is no question that Ms. Boudin has been sufficiently punished and is prepared to become a law-abiding and contributing member of society. Also in the courtroom was Barbara Treen, who served as a state parole commissioner from 1984 to 1996. Ms. Treen said she is concerned that what should be a thoughtful, case-by-case analysis has been replaced by an agenda motivated largely by “revenge.” She said that the Parole Board must balance community sentiment and victim impact with the rehabilitative efforts of the prisoner, but that in recent years the scale has tipped heavily toward the former. “You are in the hot seat [as a parole commissioner],” Ms. Treen acknowledged. “But the decision must be based on public risk, with a consideration of the crime and the behavior of the parole candidate while incarcerated.” No one has suggested that Ms. Boudin is a danger to the public. Ms. Treen said the denial of parole in that case undermines plea bargaining, since Ms. Boudin was led to believe by the sentencing judge that if she served her sentence admirably — as all sides agree she has — she would be released after completing the minimum term. When Ms. Boudin came up for parole nearly two years ago, several representatives of the victims’ families strongly opposed her release. Yesterday, an assistant attorney general read biographies of the deceased to remind the court the victims were not there to speak for themselves.

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