New York State and the entire country are engaged in a serious public conversation on the meaning of justice and how it is applied in our communities, courts and prisons. Issues of particular importance to the legal community enter into that discussion, including sentencing reform, mandatory minimums, wrongful convictions and the ways in which racism shapes the application of justice. As lawyers with many decades of experience representing people caught up in the criminal justice system, we welcome that conversation. Whether in the media, including the New York Law Journal, in courtrooms, or in legislatures, there is a growing recognition that our justice system has too often been unfair and its punishments vengeful and draconian.
From this conversation has emerged a national consensus that we have relied too much on incarceration to solve social problems and enhance public safety. The incarceration of huge numbers of people has not lowered our crime rate. It has, however, separated families, contributed to the impoverishment of entire communities, and returned literally millions of people to the community burdened with statutory and social obstacles to successful lives.
In order to address the tragedy of mass incarceration, we must include in the conversation the issues of parole and release for incarcerated people. Recognizing the importance of rehabilitation and reentry, a 2011 change to the New York State Executive Law mandated that discretionary release to community supervision be governed by evidence-based “needs and risk assessments” rather than disproportionately focusing on the nature of the crimes committed perhaps decades before.
New York has adopted an actuarial assessment model called COMPAS to guide the Board of Parole in its decision-making. This approach creates an individualized picture of how the incarcerated person has changed since the original crime, what risks there are for future criminal behavior, and what support is necessary for the individual’s successful reentry, and critically, what kinds of skills, attitudes and capacities the individual has developed during their incarceration. Risk assessment is intended to replace subjective decision-making with science, and standards that reflect the needs of public safety, and honor the rehabilitative goals of the penal system. At least 24 states have adopted similar models.
But the Board of Parole has dragged its feet in applying these more reliable and transparent methods. Instead of placing proper emphasis on the careful risks and needs assessment, the board’s decisions almost uniformly stress the “nature of the offense,” a fact that can never change, no matter the growth, remorse, or transformation of the individual who now stands before the parole board.
Even though the best criminal justice thinkers (and many community members) support the use of forward-looking assessments like COMPAS, one powerful group continues to stand in the way: the New York City Patrolmen’s Benevolent Association (PBA). It clings to the view that no one who has been convicted in the death (or attempted killing) of a police officer should ever be released on parole. Note that we are not talking about those people convicted and sentenced to life without parole, but rather those given a life sentence with consideration for release on parole after a minimum term (generally 15 or 25 years), as required by New York State law.
To enforce their hold on any Board of Parole decisions, the PBA has a link on their website. With one mouse-click, form letters are sent to the board opposing the release—ever—of anyone so convicted, no matter how old or sick, how insightful and changed, and no matter the likelihood that they will ever commit another crime.
We know that the sheer volume of these letters matters because parole commissioners have said so. They have relied on thousands of form letters from people who know nothing about the person seeking release other than the crime of conviction—something that in many cases occurred more than 40 years ago. Rather than rely on science and fairness, recognized by New York law and the experience and practice of those people, the board has allowed their actions to be held hostage by the PBA, seeking decision-making by political popularity. (“Ex-Parole Commissioners Decry Rescission of ‘Cop-Killer’s’ Release,” NYLJ, Nov. 26, 2012).
In 1974, then Appellate Division Justice Lawrence H. Cooke dissented in a matter wherein a prisoner was challenging the denial of his release on parole. Hamm v. Regan, 43 A.D.2d 344 (3d Dept. 1974). While “negative community reaction,” was not an issue on the appeal, it had been part of the record which Cooke felt compelled to address: “The instant case is an example of how impermissible considerations might possibly enter into parole board deliberations and improperly affect their decisions.
[B]y stating its ‘reason’ for rescinding petitioner’s parole the board has indicated that the ‘negative community’ reaction’ was deemed controlling. If such a consideration, in and of itself, can properly enter parole board deliberations, let alone control the exercise of their discretion, few prisoners would ever be paroled as it can reasonably be assumed that communities rarely welcome offenders into their midst. Parole is not to be granted solely on the basis of community approval; rather, the board must consider whether there is a reasonable probability that, if released, the prisoner will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society.”
With the increasing awareness of the tragedy of mass incarceration and of the dangers of allowing police forces to function without oversight and constitutional control, Cooke’s remarks are as insightful now as they were over 40 years ago. An unchecked Board of Parole, under the influence of the PBA, cannot be permitted to make decisions contrary to law.
Robert J. Boyle
Michael Tarif Warren
The authors are all attorneys practicing in New York City.