Over 10,000 people appear before New York’s parole board each year. Hearings are often rushed, lasting an average of 15 minutes. Commissioners are afforded wide discretion in how they decide cases, with little oversight or review. They decide to keep around 60 percent of parole seekers in prison.
New York Focus and Bolts reviewed dozens of
parole board decisions and appeals. The decisions run as short as a single
paragraph, providing parole seekers little guidance on how to win their
release. Many repeat variations of the same vague phrases when denying release,
many lifted directly from the state’s parole statute. Applicants are often
informed that their release “is not compatible with the welfare of society,”
for example, without explaining how the board arrived at that conclusion.
“They’re not giving people any clarity about what they can do to obtain parole the next time,” said Michelle Lewin, executive director of the Parole Preparation Project. “They’re not giving individualized reasons for denials, despite the fact that their own internal regulations demand that they do so.”
The parole board’s lack of transparency creates
difficulties for applicants of all stripes. But it especially burdens parole
seekers serving lengthy sentences for violent crimes. Despite decades of
incarceration, these individuals face the very real possibility of dying in
prison, even if they have demonstrated sincere growth and rehabilitation.
“I think it’s time that we gave people a chance to be
productive citizens,” said Assemblymember David Weprin, a Democrat who has
introduced legislation to increase the parole board’s transparency, “especially
in the case when they’ve shown that … they’re not the same individuals that
they were when they committed the crime 20 years ago, 30 years ago.”
Advocates for reform have sought to strengthen board
oversight from every angle: legislation like Weprin’s, direct pressure on
Governor Kathy Hochul, and cases before the Court of Appeals.
Last month, Appellate Advocates, a non-profit
organization of public defenders, argued before the state’s highest court that the Department of Corrections and
Community Supervision should release the training documents it provides to
board members. The documents include hypothetical decisions and sample language
— all materials that parole advocates say could help incarcerated individuals
understand how the board makes decisions and how to make the strongest case for
doccs has resisted, and argued in court that it
should be allowed to shield the documents, in a dispute that has dragged on for
over five years.
Jose Saldaña, the director of the Release Aging People
in Prison campaign, described a similar experience with the board. He spent decades incarcerated in New York, in his case
for the attempted murder of a New York City police sergeant when he was 27
years old. Though he had earned his associate degree and led several
restorative justice and victim awareness programs, the parole board denied his
release four times.
“We discussed these vague reasons … ‘Releasing you at
the time would so deprecate the nature of the crime as to undermine respect for
the law,’” Saldaña said. “What does that really mean?”
“Nobody knows what that means,” Steven Zeidman,
director of the City University of New York School of Law’s Criminal Defense
Clinic, told Bolts and New York Focus. Not even parole commissioners. Zeidman
said commissioners apply the same language differently from one another, even
when evaluating the same individual. “What’s the message to people inside
preparing? How do you prepare?”
NEW YORK LAW requires board members to consider many enumerated factors in their decisions, but the commissioners frequently emphasize the nature of the parole seeker’s offense over their rehabilitation and growth while incarcerated. Their cases are often dismissed with terse lines like, “Your positive programming to date is noted.”
Reform-minded lawmakers have long supported Weprin’s
bill, the Fair and Timely Parole Act, which would reduce the board’s
opacity and limit some of the commissioners’ discretion. The legislation would
eliminate the vague statutory language cited in board decisions and require
commissioners to explain in “detailed, individualized, and non-conclusory
terms” exactly why they decided to deny release. It would also require the
board to issue a quarterly report that includes the reasons for each denial,
which commissioners were assigned to each case, and how they voted.
The bill would establish a presumption that the board
would grant parole once an applicant has served their minimum sentence. To deny
release, parole commissioners would have to clearly articulate how a parole
seeker threatens public safety.
Weprin first introduced the bill in 2017. Since then,
three separate iterations have died in committee, where the 2023 version now
sits. Dixon attributes the icy reception in Albany to upstate conservative
legislators, whose constituents disproportionately benefit from employment
opportunities in the prison system. “Upstate districts have a vested interest
to keep this no-sense institution going,” he said.
Senator Patrick Gallivan, the chamber’s Republican minority whip, is a former parole commissioner who opposes the Fair and Timely Parole Act. His district encompasses Erie County’s Collins Correctional Facility, a medium-security prison employing hundreds of people. But he said his opposition to the bill has nothing to do with protecting upstate jobs.
Gallivan said the bill would limit the board’s ability
to consider negative aspects of the parole seekers’ applications, such as their
institutional records. He agrees with reformers that the Board of Parole has
too much discretion — but he sees them stretching the rules to grant release,
rather than keeping people in prison. Gallivan said that when he was a parole
commissioner, he tried to set his biases as a former sheriff and state trooper
aside and vote according to the law. He said he wants everyone on the board to
do the same. Some commissioners say at their confirmation hearings that they
will abide by the law, he said, but “the minute that they got sworn in, they
said, ‘I don’t care what the law is. I’m here to release people and I’m going
Reform advocates have repeatedly called on Hochul to
reform the parole system. As New York Focus and Bolts have previously reported,
the board features zombie commissioners serving long past their terms
have expired and a medical parole system that leaves most terminally ill people
to die behind bars. The vacancies
on the board have long afforded Hochul the opportunity to staff it
with reformers. But Wanda Bertram, a spokesperson for the Prison Policy
Initiative, said she does not expect Hochul to expend any of her political
capital on the issue. Under Republican pressure, she noted, Hochul has
rollbacks to criminal justice reforms in recent years.
Hochul has pointed to fluctuations in crime and rearrest rates
when backing down from other reforms. But Bertram claims that lenient parole
policies don’t undermine public safety. She points to a federal study showing
that people who commit violent offenses are the least likely to be rearrested after release. “The safest person you can
release from prison is a murderer, especially someone that served 10 to 20
years,” said Bertram. “That’s just what the data shows.”
Hochul’s office did not respond to a request for
FRUSTRATED BY New York’s legislative and
executive branches, parole reformers have turned to the judiciary. The state’s
courts have limited power to modify parole board decisions, but advocates hope
they will at least compel the board to be more transparent.
At a November 15 Court of Appeals hearing, Appellate
Advocates argued that the state’s Freedom of Information Law mandates the
release of the board’s training documents.
doccs revealed the existence of the training
materials in 2020 when they told Appellate Advocates they were withholding
certain documents in response to a records request. Michael Higgins, assistant
director of the University at Buffalo Law School Civil Rights and Transparency
Clinic, says that administrative agencies routinely prepare interpretations of
the law that govern what they do, but they often keep the interpretations
secret. “Basically, they make up rules that are written down in their training
documents or in manuals that the public can’t access,” he said. He says foil requires
the release of those documents upon request.
At the hearing, doccs argued that foil does
not extend to the training materials because a parole board lawyer prepared
them, shielding them from disclosure under attorney-client privilege. (doccs declined
to comment due to ongoing litigation.) Appellate Advocates countered that
attorney-client privilege covers legal advice on real world scenarios, not
abstract training documents.
While the Court of Appeals has shown signs of a
leftward shift on
some criminal-legal issues, it’s unclear whether the newly reconfigured court
will flex its power on behalf of parole seekers. During oral argument,
Associate Judge Shirley Troutman, a Hochul appointee, expressed concerns that
ruling for Appellate Advocates would foist an “unreasonable burden upon trial
courts” handling future disputes over attorney-client privilege. Even Chief
Judge Rowan Wilson, the court’s liberal leader, said Appellate Advocates’
arguments had “frightening” implications for attorneys. The court scarcely
touched on how its decision would impact incarcerated individuals.
For advocates like Dixon, obtaining the release of
these documents would only be a first step. Achieving a truly transparent
parole system would require wholesale changes, from data disclosure to board
“The matrix itself needs to be dismantled,” Dixon
said. “The system has to change because it is criminal what is happening.”
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