ALBANY – Nearly three years after the Legislature directed the Board of Parole to use a risk/needs analysis to determine if an inmate is ready for release, a plan to implement that directive is drawing fire from, among others, lawmakers who say the agency has missed the mark.

See comments submitted on the proposed rule.

Two assemblymen, who said the legislation was aimed at emphasizing the offender’s rehabilitation and de-emphasizing the crime of conviction, claim that nothing has changed since the Legislature approved the measure, and nothing is likely to change, under the board’s implementation plan.

“We are extremely disappointed to see that the proposed rules contain no substantive change to the working requirements of the Parole Board,” Assemblymen Daniel O’Donnell, D-Manhattan, and Kenneth Zebrowski, D-New City, wrote in a Jan. 21 letter to the parole board.

Their letter was prompted by a draft rule circulated by the board in December on its proposed implementation of a 2011 amendment to Executive Law §259(c). The Parole Board insists it has been in compliance all along, but has only recently gotten around to codifying its new obligations.

The 2011 amendment is sparsely worded and offers little insight into its intended purpose. It required the parole board to establish written “procedures,” striking out the word “guidelines,” for release decisions. It also eliminated language stating that the board “may” consider an inmate’s risk and needs and replaced it with a clause that says the panel “shall” consider such factors.

Virtually from the day it was enacted, the amendment generated confusion and controversy over whether it signaled a substantive change in how the parole board functions, or simply tweaked existing criteria. The trial courts are divided on the question and there is little appellate authority.

Advocates have argued that the amendment clearly directed the board to alter its procedures and place more weight on the inmate’s current disposition than the instant offense.

Some judges, particularly Supreme Court Justice Richard Mott of Columbia County, have reversed parole board determinations that seemingly relied solely on the inmate’s crime of conviction and forced the panel to reconsider. Mott has been especially critical of decisions where the parole board’s own risk assessment determined the offender was highly unlikely to re-offend, and the panel denied parole on the seemingly contradictory grounds that release would jeopardize public safety (NYLJ, Oct. 1, 2013 and Aug. 20, 2013).

On the other hand, the parole board, and most judges who have reviewed the matter, argue that the amendment merely provided an updated tool for measuring inmate rehabilitation—one of many factors it must consider—and did not alter the process. The implementation plan, which was published for public comment in December, reflects that view—and has set off a flurry of criticism.

O’Donnell, chairman of the Committee on Correction and a vocal advocate for parole reform (NYLJ, Dec. 5, 2013), and Zebrowski, chairman of the Assembly Administrative Regulations Review Commission, said in their letter that the amendment intended to effect “a change of procedure and a change of perspective” by the board.

O’Donnell and Zebrowski said in their letter that if the Legislature intended to simply add factors for the parole board to consider, as the board contends, “we would have done so.” They are asking the board to “redraft the proposed rules in an effort to reflect both the content and the spirit of the amended statutes.”

The lawmakers said the 2011 reform, which both of them voted for, was designed to “modernize and make more objective a parole process that has been overly subjective in the past” and said, so far, the parole board has not complied.

O’Donnell, in an interview, said “we need to make them follow the law.” The assemblyman said his intent, in voting for the legislation, was to establish a new system in which parole determinations are based on the various statutory factors and an objective view on whether the inmate is likely to re-offend.

“We have become a country where we mass incarcerate people,” O’Donnell said. “That is a very questionable proposition, and it is not necessarily a very effective proposition. The truth is we are not doing enough to figure out who no longer needs to be incarcerated. It [the legislation] was a change in attitude.”

Similarly, Thomas Grant (NYLJ Q&A, Sept. 21, 2012), a former member of the parole board, said the 2011 revision indisputably required the board to develop and apply “an empirical measure of risk and needs principles” in making its release decisions. He said the board’s “belated attempt” in December 2013 to comply with legislation enacted more than two years earlier falls short.

“The Parole Board simply decided to bury evidence-based risk assessment within a section of its regulations containing a veritable laundry list of factors to be considered,” Grant wrote. “A parole applicant who receives a low risk evidence based evaluation should be granted a presumption of release by the Parole Board unless exceptional circumstances are enumerated … in writing.”

Also criticizing the proposed regulation were the New York City Bar Committee on Corrections and Community Reentry, the Center for Community Alternatives, the New York State Defenders Association, the Legal Action Center and the Correctional Association of New York. In essence, they claim that whatever the 2011 legislation intended to accomplish, it wasn’t created to accomplish nothing.

Allegra Glashausser, chair of the City Bar committee, said that despite the 2011 reforms “lawyers have noted virtually no change in the Board’s focus on static factors, such as crime of conviction and prior criminal history, in making parole decisions.” Glashausser said that merely adding factors that the board should consider achieves nothing without procedures on how those factors should be utilized.

“Without a requirement that the Board meaningfully weigh these factors, it will be free to ignore them and continue denying parole based on static factors just as it has done for decades,” Glashausser wrote.

Alfred O’Connor of the New York State Defenders Association said in his letter that the proposed regulation accomplishes nothing, merely tacks another factor onto the list of statutory factors the board must consider and offers the panel no guidance.

“The proposed regulation was issued more than two years late, apparently in hasty response to an unfavorable court decision,” O’Connor wrote. “The Board should go back to square one and start over. The proposed regulation is meaningless.”

Thomas Mailey, a spokesman for the Parole Board, said the comment period remains open, but declined further comment.