07-20-2006 ALBANY
— The "abrupt and steep decline" in the parole release rate for A-1 violent felons presents "at least circumstantial evidence" that the parole board is relying on gubernatorial policy rather than legislatively directed law, a federal judge has held.
Southern District Judge Charles L. Brieant, who sits in White Plains, denied the state's motion to dismiss a pending class action suit in which thousands of New York state prison inmates claim they are being denied parole by a board appointed by Governor George E. Pataki and that is following his directives rather than statutory criteria. Earlier this year, the New York Law Journal reported that under Mr. Pataki the release rate for A-1 violent felons has dropped from 28 percent to 3 percent (NYLJ, Jan. 31).
Judge Brieant said that while there is no due process right to parole release, there is a constitutional right to have parole determinations made in accordance with the statute — a potentially key finding that recognizes a "distinction between a challenge to the process of determining a parole decision, and a challenge to the actual outcome."
Under Executive Law §259-I, the parole board is required to take into consideration a number of factors, including the seriousness of the offense, the inmate's institutional adjustment, and academic and other achievements. While the parole board clearly has the discretion to give as much weight as it deems appropriate to any of those factors, it may not refuse to exercise any discretion at all and automatically deny release to violent felons, Judge Brieant said. That is what the plaintiffs in Graziano v. Pataki, 06-cv-00480, allege the board is doing.
"Without suggesting that he has done so, the Court can hold with confidence that the Governor would not be permitted to effect a 'policy' as an end run around the legislature, in order to accomplish the goal of amending the statutory criteria to deny parole to a class of violent offenders," Judge Brieant wrote. "Such an end run is precisely what is alleged by the Plaintiffs."
Mr. Pataki's disdain for parole is a matter of public record. He has succeeded in eliminating parole for violent felons, prospectively, but has not persuaded the Legislature to eliminate parole entirely and replace it with a determinate sentencing structure. Critics and the plaintiffs in this case allege the governor has sought to achieve through a parole board he appointed that which he cannot achieve in the Legislature.
Judge Brieant's decision, dated July 17, was prompted by a motion by the attorney general to dismiss the action. Assistant Attorneys General Neil Shevlin and Jennifer L. Johnson had argued that there is no policy to deny parole to violent felons solely because of the severity of their crimes. They also argued that the federal courts should abstain from interference in what is a state matter.
But Judge Brieant held for the plaintiffs.
Robert N. Isseks, counsel for the plaintiffs, said the ruling indicates that members of the yet-to-be-certified class will "finally have an opportunity to prove that the board is denying them parole solely because they have committed A-1 violent felonies and without any concern for the statutory objectives of rehabilitation and readiness for release."
Handling the case with Mr. Isseks are Alex Smith of Middletown and Peter A. Sell of Manhattan. "Under the parole challenges that have come before, this class action enables the plaintiffs to present proof that the Pataki parole board has been systematically using the fact of a murder conviction, without more, to keep prisoners from being considered for release," Mr. Isseks said. Both the Division of Parole and the attorney general's office declined to comment.
Unofficial Policy
Judge Brieant acknowledged that there have been dozens of actions in which individuals denied parole have made allegations similar to those in this case. However, he said the allegation here of a "policy or practice to deny parole based solely" on the offense "transcends what all previous Court decisions have addressed, namely, whether a particular parole denial constituted a violation of one or more Constitutional rights."
The state had argued on an equal protection claim that the plaintiffs here — all of whom are violent felons — are not similarly suited to non-violent offenders eligible for parole. However, while agreeing that there may be reasons to deny a violent prisoner parole and grant parole to a non-violent convict, Judge Brieant said both are entitled to the same statutory consideration. "The violent nature of the offense may obviously be considered, but may not serve to make a denial a foregone conclusion, in contravention of the statutorily-prescribed process of consideration," Judge Brieant wrote.
He acknowledged that the pendency of this case "brings confusion to pending cases in the Division of Parole and adds unrest in the prisons." Judge Brieant ordered a conference for July 28, at which time he will consider permitting an immediate interlocutory appeal of his ruling to the U.S. Court of Appeals.
Judge Brieant's decision comes on the heels of another lawsuit on his docket alleging that the parole board has adopted an "unofficial policy or practice" to "unlawfully eliminate or substantially curtail the Parole Board's discretion when making parole release determinations concerning prisoners serving sentences for A-1 violent felonies." That case, Frederick v. Pataki, 06-CV-5132, filed on July 6, centers on an inmate who was granted parole by one board and was about to walk out the prison door — he had given away his belongings and his in-prison job — when his release was abruptly rescinded.
Parole Rescinded
Court records show that in August 2003 parole commissioners Vernon C. Manley and Daizzee D. Bouey voted to release Mr. Frederick. Although Mr. Frederick had murdered one woman and attempted to kill another, the commissioners were persuaded he had reformed. Mr. Frederick had immediately taken responsibility for his crime, made considerable accomplishments in prison, compiled a spotless institutional record and won endorsements from, among others, the superintendent of Sing Sing. The superintendent described Mr. Frederick as a "poster child" for the type of offender for whom the parole system is supposed to work. However, the same commissioners who voted to release Mr. Frederick were also responsible for the release of Kathy Boudin, a 1960s radical convicted of felony murder and robbery in connection with an incident that left two police officers and a Brinks security guard dead. That decision was publicly denounced by Mr. Pataki. While Mr. Frederick was preparing for release, another member of the board, Robert Dennison, met with relatives of one of the victims. After Mr. Dennison asked if they thought Mr. Frederick "should die in jail," a relative agreed that the convict should never go free, according to court records. Mr. Frederick was then subjected to a parole rescission hearing based on newly discovered evidence. The newly discovered evidence was that the victim's relatives opposed release. Messrs. Manley and Bouey, who voted to release Ms. Boudin and Mr. Frederick, were suspended and a new parole board, with Mr. Dennison sitting on the panel, reconsidered and voted to deny release, according to the complaint. Mr. Dennison was promoted to chairman of the commission and the chairman who had been presiding when Ms. Boudin was released was replaced. The governor recently replaced Messrs. Bouey and Manley. Officials have said there is no correlation between Mr. Dennison's promotion and the Frederick case, and no correlation between the Boudin decision and the former chairman's reassignment. But attorney Vivian Shevitz of South Salem, Westchester County, contends the parole board and state court judges who upheld the rescission "were apparently intimidated by the Governor's political agenda."
"The policy and practice carried forward by Commissioner Dennison and approved by the New York courts was a sham; it is a violation of due process and equal protection in that it forwards a political agenda. " Ms. Shevitz said in the complaint. She is seeking a federal court order that the rescission hearing and resultant state court decisions violated several of her client's federal constitutional rights.
— John Caher