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Parolees facing parole boards that are tough on crime are making headway in some federal and state courts-and that’s keeping many lawyers busy. A record 765,000 people are out on parole, according to the U.S. Department of Justice. The number is only going to go up, lawyers say. They note that those seeking parole-as well as those who are out on parole but end up back behind bars for getting into trouble-are in need of legal help. Two-thirds of parolees end up back in prison. “These guys will get plowed over if we’re not there, and they have to have good attorneys who have done their homework,” said attorney Bruce Zucker, co-founder of the California Association of Parole Defense Attorneys, whose membership has jumped from 20 attorneys to more than 100 in the last three years. Despite the dire statistics, a rush of court actions may be changing the odds. In California, parolees got a boost from a 2005 lawsuit in which a federal judge held that parolees on revocation charges are entitled to legal representation and a timely hearing. Valdivia v. Schwarzenegger, No. 94-0671 (E.D. Calif.). In New York, a team of three solo practitioners has filed a class action against the New York State Board of Parole, alleging that the board has unfairly denied parole to scores of prisoners. The state sought a motion to dismiss, but it was recently denied. Graziano v. Pataki, No. 06 CIV 00480 (S.D.N.Y.). Also in New York, a growing number of state court judges are intervening in parole matters, ordering parole boards to rehear cases where they felt parole was unfairly denied. A judge recently ordered the board to rehear the case of a woman who plead guilty of second-degree murder 23 years ago and who had been denied parole four times, despite her “rehabilitation and exemplary record.” In Michigan, a class action is pending against the state parole board on behalf of 800 prisoners who allegedly have unfairly been denied parole. Foster-Bey v. Rubitschun, No. 05-CV-71318-DT (E.D. Mich.). In California, three law firms recently filed a class action in federal court against the California Board of Parole and state juvenile justice department, alleging that they systematically violate the constitutional rights of juvenile parolees in revocation proceedings. LH v. Schwarzenegger, No. S-06-2042 (E.D. Calif.). Tougher boards Parole boards nationwide have become less generous with granting discretionary parole, denying nearly 80% of prisoners’ requests in 2003, compared with 45% in 1980, according to the Department of Justice. However, mandatory parole releases-those involving inmates who have served their required sentences when time out for good behavior is factored in-have increased over the same time period, from 19% in 1980 to 39% in 2003. It’s statistics like those that keep attorneys like Gary Cohen busy. Cohen, who has been specializing in parole matters for 20 years, said that he has noticed a recent jump in Texas lawyers willing to help inmates with parole problems. Cohen said that he’s been getting more calls from pro bono lawyers seeking his advice on how to handle parole problems, including revocation hearings and parole denials. Cohen, whose fee starts at $10,000 per parole hearing, noted that he secures parole for his clients about two-thirds of the time. “I’m seeing more lawyers get into it,” he said. “[A]nd I certainly think there is room for other skilled practitioners.” Cohen said the big challenge in Texas now, however, is securing parole for violent sexual offenders, who are denied parole about 90% of the time. Other attorneys go further than Cohen, alleging that parole boards nationwide have it out for violent offenders, either locking them back up when they face revocation charges, or denying them parole in the first place. “There’s a systematic injustice going on where people who are obviously ready to be released are being kept in prison. It’s just a horrible injustice,” said attorney Robert Isseks, one the three attorneys who filed the class action against the New York Parole Board on behalf of 10 inmates named as plaintiffs. Isseks, a criminal defense attorney for 27 years, said he filed the suit after receiving numerous letters from prisoners claiming they were unfairly being denied parole. After researching their claims, he said, he discovered that the parole board was “arbitrarily and capriciously” denying inmates’ requests “without regard to their readiness for their parole. “The pattern became obvious and that’s when we decided to bring it as a class action,” said Isseks, a solo practitioner based in Middletown, N.Y., who is doing the work pro bono. Isseks’ lawsuit names Governor George Pataki as the lead defendant, alleging the Pataki administration instigated the pattern of parole denials. Officials from Pataki’s office declined comment. Officials with the state attorney general’s office, which is handling the suit, also declined comment. But victims’ rights attorneys are pushing every bit as hard as criminal defense attorneys. Andy Kahan, director of the Mayor’s Crime Victims Office in Houston, who helped pass a bill in 1997 allowing victims’ families to appear before parole boards before a vote is taken, feels that parolees are given too much leeway. “Parole is a privilege. It’s not a right, bottom line,” said Kahan, who is on a notification list whenever a violent offender is up for parole. “We shouldn’t excuse the fact that you committed some diabolical, gruesome crime. Just because you’ve adjusted well in prison under a structured environment doesn’t mean you deserve a get-out-of-jail-free card.” Richard M. Greenberg, who runs the Office of the Appellate Defender, an indigent defense group in New York, said that attorneys there are more willing to litigate parole-denial cases than they have been in the past due to a new trend occurring in the state courts. He said where courts have historically given wide discretion to parole boards, they’re now intervening and questioning parole-board decisions. It helps, he added, that inmates, who typically handle such lawsuits themselves pro se, are now armed with lawyers when they go to court. “We’re seeing more cases where courts are being willing to intervene and say parole boards acted unlawfully in denying someone release,” Greenberg said. A recent lawsuit involves Greenberg’s client, Jean Coaxum, who plead guilty to second-degree murder for taking part in the 1981 murder of an elderly woman bound and gagged during a robbery. Coaxum committed the robbery while her friend bound and gagged the woman. Greenberg argues that Coaxum, who got a sentence of 15 years to life, has unfairly been denied parole five times. He claims that she has been a model prisoner for nearly 23 years with a spotless record, that she has completed therapy and educational programs, and that she provides mental health services to inmates and trains seeing-eye dogs. “She has the most exemplary prison record of anyone I’ve ever seen,” Greenberg said. A New York state trial court judge agreed. On July 21, Judge Lucy Billings found that the parole board’s decision not to grant parole was “irrational” and failed to consider “her rehabilitation and spotless record. “Certainly if the board had evaluated petitioners total reform and rehabilitation, the board would have determined that this 52-year-old grandmother posed no threat, but realistically promised to contribute to society’s welfare and was ready to rejoin the community outside prison . . . .In fact, if ever she is to make such a contribution, now is the time,” wrote Billings, who ordered another parole hearing for Coaxum. Coaxum v. NY State Board of Parole, No. 2470/2005 (Bronx Co., N.Y., Sup. Ct.). Another hearing was held. Coaxum was denied parole for the fifth time because of the nature of her crime. Greenberg is now seeking to hold the parole board in contempt, alleging that it defied the court order to consider Coaxum’s rehabilitation and clean record. The parole board would not comment on the pending litigation. In court papers, it acknowledged Coaxum’s good behavior, but said it wasn’t enough to warrant parole. “You’ve programmed well, have an excellent disciplinary record and have much community support. However, your criminal act was extremely brutal . . . .[W]e feel that your criminal act was so heinous that to release you at this time would deprecate the seriousness of it and undermine respect for the law,” the parole board wrote. At the heart of the parole debate is whether parole boards can look at reformed prisoners with spotless records who have done everything right, but deny them parole anyway because their crime was so heinous. “Absolutely, because parole is discretionary,” said Kimm Ogg, former chief felony prosecutor in Harris County, Texas. “And because the actions that are the underlying reason for them being incarcerated must carry the single greatest weight in determining whether someone is going to continue to be a public safety threat.” Ogg, now a private litigator at Houston’s McFall, Sherwood & Breitbil, said she applauds parole boards for getting tougher on murderers and sex offenders. However, she feels that the Texas parole board is still too lenient on armed robbers. “We’re not releasing murders and sex offenders, but we’re releasing aggravated robbers by the dozen,” said Ogg, urging the board to “get tougher on individuals who are most likely to re-offend and revictimize the community.” Kahan, the director of the Mayor’s Crime Victims Office in Houston, noted that he’s often gone up against criminal defense attorneys who show up at parole board hearings to help an inmate. He puts up a tough fight in convincing boards to deny release, recalling only one case in 1994 when the parole board-against his wishes-released a man who had served six years for attempted murder. Jeffrey Dion, an attorney and deputy director of the National Crime Victim’s Bar Association, said that his main goal is to assure crime victims that they are heard on parole matters. He said often a crime victim can give the parole board information they don’t know about, like the inmate has been threatening them from jail. A shift in criteria Attorney Edward Hammock, former chairman of the New York State Board of Parole from 1976 to 1984, said that a parole board must weigh three criteria in order to deny parole. It must find: There’s a reasonable probability that the inmate would not be able to remain at liberty without violating the law. The prisoner’s release would be incompatible with the welfare of society. The crime is so serious that release would promote disrespect for the law. Hammock said that in recent years, parole boards have given more weight to the third criteria-the seriousness of the crime-and ignored other crucial factors, like rehabilitation, disciplinary records and no prior offenses. He said that parole rates for parolable murderers have dropped from 28% to 3% over the last two decades, and down to nearly zero for sex offenders. “I’m very sad to see what’s happened to parole over the years since I left,” said Hammock, now a private lawyer who often counsels inmates on parole matters. “[The board] has identified classes of offenders that they don’t parole anymore,” Hammock said. “Every now and then one slips through,” Hammock said. “But by and large, if you were convicted of a particular crime, you’re going to get hit . . . and that’s not what the law is.”

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