Increase In Violent Offenders Winning Parole Bids
By Joel Stashenko
August 16, 2007
ALBANY - On Tuesday morning, Gerald T. Balone walked out of Fishkill Correctional Facility in Beacon on parole. It is something that observers of New York state's parole system thought might never occur.
Two months ago, Mr. Balone had convinced a parole board that he was no longer the aimless young parolee who helped kill three people more than 30 years ago. Rather, Mr. Balone said he had transformed himself into an "asset to society" with several college degrees and occupational citations who is prepared to help young people avoid the catastrophic mistakes of his own life.
"Nobody believed that I would ever get out," Mr. Balone said in a phone interview from Fishkill prior to his release. "Having that hope is what kept me going. . . . This whole prison, everyone, is ecstatic because they figure if I'm being released, then they have a chance of being released. Everybody is saying, 'If Jerry can make it, everybody can make it.'"
It was the 54-year-old Mr. Balone's eighth attempt at parole.
Eighteen months after the state was sued over its extremely low parole rates for violent offenders, and more than seven months of a new administration in Albany, there are indications that parole boards are easing back on what critics had contended was, in effect, an unwritten policy of denying parole to inmates based solely on the circumstances of their crime (NYLJ, Jan. 31, 2006).
Where parole boards under former Governor George E. Pataki were releasing violent A-1 felons at a rate of between 3 percent and 5 percent from 2000 to 2005, more than 11 percent of such felons were granted release in 2006. From January to July 2007, that percentage increased to more than 15 percent and June's release rate of 26.7 percent rivaled rates that have not been seen in New York since the early 1990s, when boards appointed by former Governor Mario Cuomo were making release decisions.
Additionally, settlement talks began earlier last year and recently intensified in the federal case against the state. Southern District Judge Charles L. Brieant has extended to tomorrow a deadline for lawyers to report whether they are making progress on reaching an agreement, which could entail the re-interviewing of more than 1,000 inmates who have repeatedly been denied parole. The state requested the extension so the Division of Parole and the Department of Correctional Services could gauge the feasibility of conducting a new series of parole interviews given the limited size of the board.
George B. Alexander, Governor Eliot Spitzer's parole chairman, said it might be too early to draw conclusions whether attitudes are changing among members of the parole board. But he said in an interview that it is Mr. Spitzer's policy, as well as his own, that commissioners are to consider and weigh a range of factors about an inmate, including the nature of the crime, when deciding on parole eligibility.
Mr. Alexander said he believes Mr. Spitzer has given the board the "autonomy" to do its job, and higher release rates may be the result.
"If there has been any hesitation [to grant parole] in the past, I think people feel more able to do the jobs that they were entrusted with in this administration," said Mr. Alexander, a former Erie County Department of Probation commissioner. Soon after taking over at the board this winter, Mr. Alexander notified commissioners that they are bound to consider several factors when hearing parole cases under Executive Law §259-i. They include not only the nature of the crimes, but also whether the inmates pose a risk to others if released, their prospects for re-entering society and their efforts to improve personally while incarcerated.
Parole spokesman Mark E. Johnson said, "Given that it was the beginning of a new administration, Chairman Alexander felt it was a good time to reiterate to the board all the factors they should consider when making release decisions. His reminder was also timely considering complaints about the board's performance."
Range of Factors
Critics of the system as it had come to operate under Mr. Pataki argued that the commissioners, all of whom were eventually appointed by the former governor, gave inordinate consideration to the circumstances of the crimes and little or none to the efforts inmates made, often over decades, to improve themselves.
One of those critics, attorney Melvin Beldock, said the "rote" denials of parole in the middle and later Pataki years were especially unfair to inmates sentenced prior to Mr. Pataki taking office. Those inmates who were given indeterminate sentences for murder, of 15 years to life or 25 years to life, had the expectation of at least qualifying for parole consideration when their minimum terms were reached, Mr. Beldock said in an interview. But the parole boards, in essence, resentenced them to ever-longer terms past their minimums, for two years at a time, with each denial of parole, he said. "These people who were long-termers were taken in in a climate in which rehabilitation was at least to have been considered as a factor," Mr. Beldock said.
Spokesmen for Mr. Pataki and his parole chairmen denied there was ever any policy in which boards were to reject parole to certain classifications of violent felons.
Mr. Alexander and Michael Balboni, Mr. Spitzer's deputy secretary for criminal justice, each signed statements in connection with the ongoing Southern District case challenging parole board determinations, Graziano v. Pataki, 06-00480, saying they were unaware of a previous parole board policy that resulted in violent felons routinely being denied parole based solely on the nature of their offense. They urged that the suit be dismissed as moot.
One break Mr. Spitzer has made with the past, at least to date, is in not publicly criticizing the parole board's decisions made during his administration. Mr. Pataki spoke out when his boards released some felons, most adamantly in 2003, when a two-member board released the one-time Weather Underground radical Kathy Boudin. She served 22 years for the slaying of two police officers following an armored car robbery in which another man died.
Mr. Pataki said at the time, "I am thoroughly disappointed and completely disagree with the parole board's decision." Within a month, former Parole Board Chairman Brion Travis had relinquished day-to-day operation of the board and within four months he had been reassigned to the Insurance Department. Pataki spokesmen said at the time the actions were unrelated to Ms. Boudin's release.
Four members of the 19-member parole board have been selected by Mr. Spitzer, including Mr. Alexander. Mr. Pataki placed 13 members on the board. There are two vacancies. Should all of Mr. Pataki's appointees finish out their terms, it would be June 2010 before a majority of the board will have been appointed by the current governor.
Two or three members of the board typically hear individual parole cases.
Mr. Alexander said he has found all members of the board to be "open and willing" to work with him. A major emphasis of the Division of Parole under Mr. Spitzer will be to coordinate the resources of several state agencies to ease former inmates' re-entry into society. Mr. Alexander said the board decisions would be consistent with that goal.
"It doesn't make a whole lot of sense bringing a lot into this re-entry process if we are not letting anybody go," Mr. Alexander said.
Robert N. Isseks, a Middletown criminal defense lawyer who filed the Graziano suit, said there has been something of an easing of parole board decisions toward violent inmates. He attributes that in part to his January 2006 litigation on behalf of inmates who contend they were denied parole unlawfully by boards who failed to weigh all factors relevant to their release. The nature of the inmates' crimes was overwhelmingly or solely used as the basis for denial of parole, Mr. Isseks suit contends.
Mr. Isseks amended his complaint earlier this year to reflect what he says is the current reality of parole in New York. With the wraps off on granting parole to violent offenders, to some extent, inmates are being subjected to unequal treatment, depending on the makeup of the boards that appear to hear their cases, Mr. Isseks contends.
"It's pretty stark randomness," he said in an interview. "You have some people whose prospects of release are said to not be good and yet they are getting out and you have people with exemplary records who are still being kept in. It is really unpredictable."
In his briefs, Mr. Isseks cites several instances where A-1 inmates with good prison records have been denied parole in the last 18 months, and several others cases where A-1 prisoners who had been the subject of repeated prison disciplinary actions were paroled.
One egregious case, Mr. Isseks said, involves the continuing incarceration of Charles Friedgood, one of the plaintiffs in the Graziano suit, who is now 88 and in ill health. A former physician, Mr. Friedgood has served 30 years for slaying his wife in Nassau County. When he was denied parole in 2005, the Appellate Division, Third Department, ordered a new hearing after finding the board had performed a cursory review of his record. A different parole board denied him release again last year after a rehearing.
Like Mr. Balone, Mr. Friedgood has an impressive educational record in prison, Mr. Isseks said.
On the other hand, another inmate whose release was resisted by parole boards under Mr. Pataki, Harry L. Morrison, was among those who have won freedom. He was released following his seventh parole hearing in June. Mr. Morrison was convicted of giving his ailing wife an overdose of Phenobarbital and smothering her with a pillow in an assisted suicide in Broome County in 1980. Mr. Morrison turned down a plea bargain to first-degree manslaughter but ended up getting convicted of second-degree murder. He had served 27 years on a 15-year-to-life sentence when he was paroled on July 12.
The parole boards that released Messrs. Morrison and Balone were comprised of Pataki appointees.
Mr. Alexander speaks for the parole board and individual members are prohibited from talking to reporters, Division of Parole spokesman Mark E. Johnson said.
Uneven treatment violates the state statute governing parole boards as well as inmates' due process rights, Mr. Isseks said.
Mr. Alexander said the uniform treatment of inmates by parole boards, no matter who is on them, is a goal the division must achieve. Decisions should be contingent on what the inmate brings to the table and what risks are posed if that person is released, he said. "We would like to think we are moving toward the direction of making very consistent decisions," Mr. Alexander said.
'More Balanced Approach'
As attorney general, Mr. Spitzer defended numerous parole board decisions in Article 78 proceedings, and his successor, Andrew Cuomo, is doing the same. The courts have upheld the parole agency in the great majority of those cases.
In Sanchez v. Dennison, 1942-07, Albany County Supreme Court Justice John C. Egan Jr. ordered a new hearing for Alvaro A. Sanchez Jr. after determining a parole board failed to consider several issues germane to his bid for release. They included letters from prison guards recommending that he be granted parole, which is a rarity, and a forensic psychological report indicating Mr. Sanchez was at low risk of committing another crime.
Marina Drapey, an attorney for Mr. Sanchez, said if there is a new attitude toward parole denials of violent offenders, it was not evident from the opposition Mr. Cuomo's lawyers displayed. "The attorney general's opposition to our papers was very vigorous and very aggressive," she said in an interview. "We had thought that they might not oppose it at all because we had such a compelling case. . . . It made me wonder, actually, to what extent the new policy has permeated the system."
Amy James-Oliveras, who is active in several parole reform and inmate relatives groups, said she has been at meetings involving Mr. Alexander at which he has assured families that a new attitude is in place and that the families are an important factor in an inmate's successful re-entry into society. It was the first time the chairman has met with the families of inmates, she said. "They expressed that there was a new atmosphere and that there was a new balanced approach . . . but that it would take time," said Ms. James-Oliveras, of Wappingers Falls. Her husband, George Oliveras, served 27 years of a 25-years-to-life term for murder before being paroled.
Ms. James-Oliveras said she is worried, however, that a more open-minded attitude by parole boards could vanish overnight if Mr. Spitzer is politically embarrassed by the actions of a parolee. "I think it would be his Willie Horton if any of these high-profile guys get out and commit a crime," she said. "I don't think it will be seen as an individual. It will be seen as, 'No one should be paroled.'"
Mr. Balone said he believes he will have a strong support system waiting for him at a Buffalo halfway house where he will live for at least 90 days and for as long as a year. He will be under the sponsorship of Cephas, a group that aids inmates' transition to civilian life.
It will be different, Mr. Balone said, than in 1973. Then, he was a seething 21-year-old thug recently paroled from prison for robbery (NYLJ, Jan. 31, 2006). "I was a parasite," Mr. Balone said. "I had no job skills, no support group, no money. I was destined to come back to prison." He lasted for five weeks before he and a co-defendant broke into a home in Buffalo, beat a couple with a hammer until they revealed the location of their coin collection and then shot the couple dead with bullets to the head. As they fled, Mr. Balone and his accomplice killed a third person that had come to investigate. "I don't know if I'm ever going to pay my debt to society," Mr. Balone, who served time in 17 state prisons, told Parole Commissioners Debra J. Loomis and James Ferguson on June 20 at Fishkill. "All I know is that from all the people that I'm involved with, all the good things that I can do out in the street, I already have numerous speaking engagements, I'm going to be working with a lot of different organizations, Back to Basic Ministry, group ministries, the Catholic Church, and I'll be paying my debt forever."
Mr. Balone faces a series of conditions following his release, including abstinence from drugs and alcohol, mandatory testing for drugs and alcohol, observing a curfew and undergoing anti-aggression counseling and mental health evaluation.
Mr. Balone said he would like to speak before a commission created by Mr. Spitzer to review the criminal sentencing system in New York, including parole. Denise O'Donnell, Mr. Spitzer's assistant secretary for criminal justice, is chairing it. "I have asked to go before the committee once I get out," Mr. Balone said in the interview. "Who's better an expert than me? Who knows the criminal justice system better than me?"
- Joel Stashenko can be reached at firstname.lastname@example.org