During the month we post time sensitive news and announcements. If you wish to skip them, please scroll down.
POSTED FEBRUARY 10 BY PRISONERS ARE PEOPLE TOO!
COMMUNITY FORUM: WEDNESDAY, FEBRUARY 15, 5:30-7:30 PM
PROCEDURES? PROTOCOLS? PROBLEMS? PROMISES?
WHAT’S GOING ON AT
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BUILDING BRIDGES JANUARY 15 2012
PEACE AND JUSTICE IN 2012!
Dear Reader,
We’re starting the new year with some changes. Perhaps the most drastic change is that we’re no longer publishing a calendar of events. There are many other places where the information is available, foremost among them the monthly Reentry Net/NY calendar, which provides New York State advocates with information about upcoming conferences, trainings, meetings, and other events related to prison and jail reentry and the consequences of criminal proceedings. Contact information for each event is provided on the calendar. To add an event to the calendar, visit the site and click "add event."
We’ve enjoyed providing the calendar to readers, particularly those without computer access, so they could participate and/or be aware of how much attention is being paid to criminal justice issues. But every month we find it harder and harder to fit everything into 10 pages, and we think it’s important to share information which is not available anywhere else under one cover. If however, there is an outcry against this decision we will consider other options, one of which is to include our calendar in those electronic editions (email and website) where we have unlimited space. Please let us know if you have strong feelings about this change. In fact we’d love to hear from you anyway. Building Bridges exists to share important news with, for and by our members, so let us know if we can serve you better.
Please be well, keep the faith, share the news, and for everyone’s sake, get involved!
The Editor
SUMMARIES
1. CRIME AFTER CRIME, a powerful documentary film about a woman who was sentenced to 25-Life for her role in the death of her abusive boyfriend. She and a pair of pro-bono rookie attorneys take viewers with them as they encounter the corrupt and politically driven twists and turns of the criminal justice system. Free showing includes discussion with one of the lawyers and the legislators who are sponsoring the Domestic Violence Survivors Justice Act, A7874/S5436.
2. LEGISLATION - Update on the status of last year’s major CJ bills. Most are back in committee, starting over, but some have made significant movement.
3. NYS PAROLE REFORM CAMPAIGN invites readers to attend their workshop at the Black, Puerto Rican, Hispanic & Asian Legislative Caucus Weekend, ON FEB. 18 IN ALBANY. It’s part of a series of social, civil and criminal justice workshops.
4. NYS PRISONER JUSTICE believes these are the worst of times and the best of times. The best is the many movements and campaigns that are working to solve social problems by providing people with positive opportunities to realize their potential and contribute to their communities. The worst is that after hundreds of years racism is still thriving, now through the mass incarceration of predominately poor and Black people. We haven’t won the war, but we haven’t lost it either.
5. PAROLE NEWS takes 5 pages to report this month! November and December statistics; a year-end summary; memo to the Parole Board from Chairwoman Evans; Thwaites and Graziano court decisions.
6. PRISONERS OF THE CENSUS - a victory! Prisoners will be counted in their home districts for redistricting purposes. Kudos to the Prison Policy Institute which was instrumental in exposing the inequities of counting prisoners where they are incarcerated.
[For copies of articles referred to in this issue, please send an email with your request stating # and title of article and date.]
1. CRIME AFTER CRIME, A POWERFUL FILM ABOUT DOMESTIC VIOLENCE AND PRISON
I shared my excitement about this film in article #4 of the November Building Bridges after I viewed it at a screening in Albany by Prisoners Legal Services to announce their new Pro Bono project. Now’s your chance to see it (bring tissues).
Directed by the talented Yoav Potash, Crime After Crime chronicles the experience of Deborah Peagler, a California woman charged with murder in the 1st degree, for her role in the death of her abusive boyfriend. After being threatened with the death penalty, Debbie was sentenced to 25 years to life without ever having a trial. After she languished in prison for 20 years, California passed a law allowing incarcerated survivors of abuse to reopen their cases. The documentary follows the story of Debbie and her two pro-bono rookie attorneys, as they encounter the corrupt and politically driven twists and turns of the criminal justice system.
Following the screening, Senator Ruth Hassell-Thompson and Assemblymember Jeffrion Aubry, will speak about their pending legislation: the Domestic Violence Survivors Justice Act (A.7874-A/S.5436). The proposed Act, recently introduced in the NY State Legislature, is the only bill in the country that would allow judges to sentence survivors to significantly lower sentences and Alternative-to-Incarceration programs.
There will also be a thought-provoking panel discussion with Joshua Safran, one of Debbie’s attorneys, and NY advocates about the intersection of abuse and women’s incarceration. Advocates will also be on hand to inform you about ways to join the Domestic Violence Survivors Justice Act Campaign.
Co-hosted by the Women in Prison Project of the Correctional Association of NY, STEPS to End Family Violence and the Prisoner Reentry Institute at John Jay College of Criminal Justice.
This free screening is made possible by the New York Women’s Foundation and is open to the public. However, we are accepting RSVPs prior to the screening. Please contact at Jesenia A. Santana or call her (646) 315-7626 and include how many seats you are reserving and the name(s) of those attending. Seats are reserved until 10 minutes before start time.
Thursday, January 19th 6:30-9:00pm
John Jay College of Criminal Justice
Room 2200 Multi-Purpose Room, North Hall 2nd Fl.
445 West 59th Street, New York, NY 10019
2. LEGISLATION - ON JANUARY 4, 2012, MANY BILLS WERE REINTRODUCED, INCLUDING MOST OF THE 26 BILLS WE REPORTED ON IN JULY, WHICH ARE BACK IN THE COMMITTEES WHERE WE LEFT THEM AT THE END OF 2011. HERE ARE THE EXCEPTIONS:
A7782/S5427 - Aubry/Hassell-Thompson BAN THE BOX BILL
was reintroduced in the Assembly and then sent to Investigations and Government Operations.
S0107/A5355 - Montgomery/Aubry EDUCATIONAL OPPORTUNITIES
Was vetoed by Senate Crime Victims, Crime and Corrections Committee last session. It’s been referred back to the Committee this session, and also to the Assembly’s Crime Committee.
S0338/A0154 - Montgomery/Aubry MERIT TIME BILL
It’s been referred back to the Crime Victims, Crime and Corrections Committee where it was defeated last session.
S0476-A/A7870 - Nozzolio/Tediso $7 CO-PAYMENTS FOR PRISON MEDICAL CARE
It was referred back to the Assembly where it died*, and was returned to the Senate where it was sent to the Crime Victims, Crime and Corrections Committee.
S2057 - Kruger no Assembly bill 85% OF MINIMUM (of an indeterminate sentence) MUST BE SERVED
Hasn’t been reintroduced so far.
S3537/A07015 Griffo FIVE MEMBER BOARDS FOR VOS
Referred to Senate Crime Victims, Crime and Corrections Committee, amended, and sent back, but not reintroduced in Assembly so far.
S3645-C/A 7015-B - Griffo/Spano “BRITTANY’S LAW” VFO REGISTRY
Died in Assembly*, sent back to Senate, referred to Crime Victims, Crime and Corrections Committee
S3747/A8478 - Nozzolio/Giglio FRP BILL
Died in Assembly*, returned to Senate, referred to Crime Victims, Crime and Corrections Committee
S5374/A7939 - Duane/Aubry THE SAFE PAROLE ACT
Senator Perkins and Assembly Members Stevenson, Farrel, and Gottfried have added their names as sponsors. (If they represent you, a message of appreciation would be a good move on your part.)
* FYI: A bill needs to be passed in both houses, so those that have died in the assembly will go nowhere this session. [I’m still learning. Last July I told readers that Senate bills got new numbers every year that they were reintroduced. That appears not to be so. ]
3. NYS PAROLE REFORM CAMPAIGN IS PRESENTING A WORKSHOP AND YOU AND YOUR REPRESENTATIVES IN THE LEGISLATURE ARE INVITED
NYS PRC will be hosting a workshop at the Black, Puerto Rican, Hispanic & Asian Legislative Caucus Weekend, ON FEB. 18 IN ALBANY.
Title: CRIMINAL JUSTICE SERIES, Parole Release Decisions in the Era of Reintegration
Purpose: To provide perspectives and concrete strategies for creating a parole model that advances public safety and promotes successful and productive reentry and reintegration into society, particularly in those communities of color which are disproportionately impacted by mass incarceration.
Format: A panel of 6 participants and a moderator. The panel will answer questions posed by the moderator and from the audience.
Moderator: Glenn Martin from the Fortune Society.
Panel Members: (because not all are yet confirmed, some are listed only by the group they represent)
Julia Long - formerly incarcerated for defending herself, member of Alb. County Gun Violence Prevention Task Force Advisory Comm
Larry White - formerly incarcerated person, community organizer for Fortune Society, social and criminal justice activist
Incarcerated Persons - members of the Second Look Org. at Sullivan Correctional Facility [by video]
Assembly Member - Jeffrion Aubry - Sponsor of the SAFE Parole Act, A7939
A member of the NYS Parole Board - (specific commissioner has not been confirmed)
Ariel Igartua - daughter of incarcerated man recently denied parole
Sponsors of the workshop are: Sen. Perkins, Sen. G. Rivera, A.M. Aubry, A.M. Stevenson
You and your legislative representatives are invited, particularly if they are a member of the Caucus. You can help get this bill passed by inviting them to this workshop which will show why it’s in their best interest to support a bill so many of their constituents support.
There will be transportation from NYC to the Capitol. For more information or to reserve a seat on the bus, please contact Larry White at lw77a3272@yahoo.com.
Members of the Caucus:
SENATE CAUCUS MEMBERS: Eric Adams, Martin Malave Dilan, Ruth Hassell-Thompson, Shirley L. Huntley, Velmanette Montgomery, Kevin S. Parker, José R. Peralta, Bill Perkins, Gustavo Rivera, John Sampson, Jose M. Serrano, Malcolm A. Smith, Andrea Stewart-Cousins
ASSEMBLY CAUCUS MEMBERS: Carmen E. Arroyo, Jeffrion L. Aubry, Inez D. Barron, William F. Boyland, Jr., Nelson L. Castro, Barbara M. Clark, Vivian E. Cook, Marcos A. Crespo, Herman D. Farrell, Jr., David F. Gantt, Vanessa L. Gibson, Carl E. Heastie, Earlene Hooper, Hakeem Jeffries, Guillermo Linares, Grace Meng, Francisco P. Moya, Samuel D. Roberts, Robert J. Rodriguez, Eric A. Stevenson, Crystal D. Peoples-Stokes, N. Nick Perry, J. Gary Pretlow, Philip Ramos, Jose Rivera, Naomi Rivera, Annette Robinson, Michele R. Titus, Keith L.T. Wright, Felix Ortiz
4. THE NEW YORK STATE PRISONER JUSTICE COLUMN
Dear Building Bridges Readers,
The English novelist Charles Dickens begins one of his books by saying, “It was the best of times; it was the worst of times.” Our times, too, are the best and the worst.
The U.S. prison system continues to incarcerate more people, for longer, than anywhere in the world, under brutal conditions with little hope of positive outcomes for prisoners, their families, and their communities. You, Building Bridges readers, know the story all too well: children as young as 13 tried as adults; disproportionate arrest, sentencing, and prison for people of color; alarming rates of long-term isolation; a parole system that gives people no way out. From politicians to prosecutors to judges to guards, there are too many who have a stake in keeping the system the way it is or making it worse, who gain advantages from portraying offenders as demons and whipping up fear and hate.
So what could possibly make a prisoner justice advocate say this is the best of times? A growing public perception that there is something very wrong with mass incarceration, and a growing movement to challenge and change it. The following are a few examples:
Michelle Alexander’s book, The New Jim Crow, has caught on like wildfire, and sparked a movement. It makes the case that mass incarceration, including the so-called war on drugs, is the leading form of racial injustice in our time. And before that, years of grass-roots action against harsh drug sentences won some reforms in New York and nationally.
A number of coalitions opposed to long-term solitary confinement and other forms of lockdown have sprung up. They have been presenting evidence that long-term isolation equals torture. Last year, hundreds of brave California prisoners called attention to this issue with a series of hunger strikes across the state.
Anti-death penalty and innocence movements have gained traction and visibility. They not only show that the death penalty is immoral and ineffective; they also call the whole system into question. If some death row prisoners are innocent, what about prisoners in the rest of the criminal justice system? And speaking of innocent death row prisoners, the most famous of them, former Black Panther Mumia Abu-Jamal, just successfully got his death sentence overturned! Mumia was wrongly convicted for the shooting of a police officer in Philadelphia in 1981. His supporters never gave up for 30 years. They are not done fighting yet -- they say life in prison for an innocent person is not justice.
In this column last month, we told how New York State Prisoner Justice, in collaboration with other organizations and individuals, was providing regular teach-ins on prison issues at Occupy Wall Street. This month, New York State Prisoner Justice, along with the Center for Law and Justice and the Occupy Albany People of Color Caucus, presented a well-attended and successful teach-in to Occupy Albany and other members of the Albany community. The panelists said that people in prison and formerly incarcerated people are some of the most marginalized members of the 99%. They discussed the links between the Occupy movement and the prisoner justice movement. Two former long-termers on the panel talked about the lack of rehabilitation and preparation for re-entry.
Most of these different movements and campaigns agree that mass incarceration doesn’t solve social problems, it makes them worse. Instead, our society needs programs that give people positive opportunities to realize their potential and contribute to their communities; and that give the members of those same communities tools to hold each other accountable. We haven’t won the war against mass incarceration, but we haven’t lost it either. In this column each month, we will share some of the victories, obstacles, and lessons of the movement for prisoner justice. Comments? Write us at NYSPJN, 33 Central Avenue, Albany NY 12210 or nysprisonerjustice@gmail.com.
5. PAROLE NEWS - NOVEMBER & DECEMBER RELEASES; SUMMARY OF 2011 RELEASES; ANDREA EVAN'S MEMO TO PAROLE BOARD; RULING IN THWAITES'S ARTICLE 78; APPELLATE DIVISION DISMISSES GRAZIANO APPEAL.
NOVEMBER AND DECEMBER 2011 PAROLE BOARD RELEASES – A1 VIOLENT FELONS –
DIN #s through 1999 unofficial research from parole database
NOVEMBER Totals
Total Interviews....... # Released...... # Denied.. Rate of Release
18 Initials........................ 1...................... 17............ 6%
84 reappearances............ 22.................... 62............ 26%
102 interviews................. 23.................... 79............ 23%
NOVEMBER Initial Releases
Facility.....Sentence.......... Offense
Collins..... 15-Life............ Murder 2
NOVEMBER Reappearances
Facility............. Sentence.......... Offense.... # of Board
Altona.............. 25-Life............ Murder 2......... 5th
Auburn............ 26 ½-Life......... Kidnap 1.......... 5th *
Cayuga............ 20-Life............ Murder 2......... 4th
Collins............. 20-Life............ Murder 2......... 3rd
Fishkill............. 25-Life............ Murder 2......... 3rd
Fishkill............. 25-Life............ Murder 2......... 3rd
Fishkill............. 25-Life............ Murder 2......... 4th
Fishkill............. 15-Life............ Murder 2......... 9th
Fishkill............. 15-Life............ Murder 2......... 4th *
Fishkill............. 25-Life............ Murder 2......... 5th
Fishkill............. 25-Life............ Murder 2......... 3rd
Greene............. 15-Life............ Murder 2......... 3rd *
Lincoln............. 15-Life............ Murder 2......... 11th
Marcy.............. 20-Life............ Murder 2......... ?? **
Mt. McGregor... 22 ½ ................Murder 2......... 3rd
Otisville........... 20-Life............ Murder 2......... 2nd
Otisville........... 20-Life............ Murder 2......... 6th *
Sullivan............ 20-Life............ Murder 2......... 2nd
Taconic............ 20-Life............ Murder 2......... 6th
Woodbourne.... 15-Life............ Murder 2......... 3rd
Woodbourne.... 15-Life............ Murder 2......... 6th
Woodbourne.... 15-Life............ Murder 2......... 3rd *
*for deportation only **returned in 2005
DECEMBER Totals
Total Interviews.........# Released...... # Denied.. Rate of Release
15 Initials........................ 0...................... 15.... 0%
69 reappearances............ 14.................... 55.... 20%
84 interviews................... 14.................... 70.... 17%
1 medical release
NO DECEMBER INITIAL RELEASES
DECEMBER Reappearances
Facility.............Sentence........ Offense # of Board
Auburn............ 20-Life............ Murder 2................. 3rd
Bedford Hills....25-Life............. M2 + K1-2x............ 2nd
Bedford Hills.... 25-Life............ M2 + K1-2x............ 2nd
Cape Vincent... 15-Life............ Murder 2................. 5th
Cayuga............ 20-Life............ Murder 2................. 6th
Cayuga............ 15-Life............ Murder 2................. 5th
Eastern............ 15-Life............ Murder 2................. 4th?
Fishkill............. 8 2/3-Life....... JO Murder 2............. 5th?
Mt. McGregor...15-Life............ Murder 2................. 2nd
Otisville........... 15-Life............ Murder 2................. 7th
Sing Sing......... 18-Life............ M2 + K1-2x............ 3rd?
Southport ........18-Life............ Murder 2................. 4th
Taconic............ 25-Life............ M2 + K1-2x............ 2nd
Woodbourne.....20-Life........... Murder 2................. 5th
Bedford Hills.... 20-Life............ Murder 2......... MEDICAL *
* at year 16 of sentence
Note: In February we will not have any parole release statistics for you. They are not released to the parole website until too close to our deadline to complete the work involved. December was an exception. In March we will publish January’s releases.
ANNUAL REPORT OF 2011 A1VF PAROLE BOARD HEARINGS COMPILED FROM UNOFFICIAL RESEARCH** USING PAROLE WEBSITE DATABASE.
2011 A1VF SUMMARIES AND COMPARISONS:
INITIAL BOARDS:
218 interviews, 26 releases; for a release rate of 12%. Two of those 26 were rescinded. In 2007 there were 41 initial releases, 25 in 2008 after the hearing held by Senator Nozzolio, in 2009 there were 38 initial releases, and 39 in 2010, making 2011 the second lowest number of release decisions, as well as the second lowest rate of releases, in the last five years. Three of those initial release decisions were for deportation only, making the % of those released to their home communities 10.5%
REAPPEARANCES:
979 interviews, 209 releases; for a release rate of 21%. That is the second highest in the past five years. 31 of the 209 were released for deportation making the rate released to the U.S. 18%. Four of the 209 were released to another state and another 4 were released on special consideration hearings.
MEDICAL PAROLE:
This year saw what is believed to be the first A1VF’s released on medical parole. A man was released on a medical parole board, although he had been parole eligible since 2002. A woman was released on a “true” medical parole board several years before reaching her parole eligibility date.
GENDER BREAKDOWN:
Of the 218 initial interviews, 212 were males (97%), 6 were females (3%). Of the 26 initial releasees, 25 were males (96%), 1 was female (4%).
Of the 979 reappearance interviews, 957 were males (98%), 22 were women (2%). Of the 209 releasees, 201 were male (96%) and 8 were female (4%).
RACIAL/ETHNIC BREAKDOWN:
Of the 218 INITIAL interviews, 123 (56%) were Black, 58 (27%) were Hispanic, and 32 (15%) were White. Of the 26 initial releasees, 16 were black (62%), 8 were Hispanic (31%) and 2 were White (8%). (Remaining numbers are other and unknown ethnicities.)
Of the 979 REAPPEARANCE interviews, 522 (53%) were Black, 239 (24%) were Hispanic, and 208 (21%) were White. Of the 209 releasees, 116 were Black (55%), 61 (29%) were Hispanic [or 51 and 24% excluding deportations], and 28 (13%) White. Remaining numbers are other and unknown ethnicities.
PRISON CATEGORY:
MEDIUMS: 728 (61%) of all interviews with 178 released (75% of releasees).
MAXIMUMS: 451 (38%) of all interviews with 57 released (24% of releasees).
The remaining interviews were in other facilities such as Walsh Medical Center or CNYPC.
HOW MANY BOARDS--NUMBER OF RELEASES--PERCENT OF TOTAL (235):
First ----26--11 %
Second - 41--17%
Third ---43--18%
Fourth --28--12%
Fifth----30--13%
Sixth ---24--10%
Seventh-12*--5% *includes 1 medical release
Eighth--14---6%
Ninth---5----2%
Tenth --7----3%
Eleventh-4--1.6%
Twelfth -2--0.8%
AGES AND LENGTH OF INCARCERATION:
9 of those released were between the ages of 73 and 83, all on reappearances.
26 of those released were in prison since the 1970’s, one since the 1960’s, 111 since the 1980’s and 97 since the 1990’s.
[2 of the initial releasees were born after 27 of the other releasees had gone to prison.]
**None of the previous numbers are official or scientific; nor account for any de novo boards. The results are based upon unofficial, best efforts research. Please FOIL the Board of Parole for exact and official data.
ANDREA EVANS'S MEMO TO THE PAROLE BOARD TELLS THEM: "YOU MUST ASCERTAIN WHAT STEPS AN INMATE HAS TAKEN TOWARD THEIR REHABILITATION AND THE LIKELIHOOD OF THEIR SUCCESS ONCE RELEASED TO PAROLE SUPERVISION."
TO: Members of the Board of Parole: Terrence X. Tracy, Counsel; Terrence Saunders, Chief Administrative Law Judge; Lester Edwards, Secretary to the Board
FROM: Andrea W. Evans, Chairwoman
DATE: October 5, 2011
RE: Recent Amendment of Executive Law §259-c(4)
Through the enactment of Chapter 62 of the Laws of 2011, Part C, subpart A, §38-b, Executive Law §259-c(4) was amended to provide that the Board of Parole shall: “establish written procedures for its use in making parole decisions as required by law, such written procedures shall incorporate risk and needs principles to measure the rehabilitation of persons appearing before the board, the likelihood of success of such persons upon release and assist members of the state board of parole in determining which inmates may be released to parole supervision;”
As you know, members of the Board have been working with staff of the Department of Corrections and Community Supervision in the development of a transition accountability plan (“TAP”). This instrument which incorporates risk and needs principles, will provide a meaningful measurement of an inmate’s rehabilitation. With respect to the practices of the Board, the TAP instrument will replace the inmate status report that you have utilized in the past when assessing the appropriateness of an inmate’s release to parole supervision. To this end, members of the Board were afforded training in July 2011 in the use of the TAP instrument where it exists. Accordingly, as we proceed, when staff have prepared a TAP instrument for a parole eligible inmate, you are to use that document when making your parole release decisions. In instances where a TAP instrument has not been prepared, you are to continue to utilize the inmate status report It is also important to note that the Board was afforded training in September 2011 in the usage of the COMPAS Risk and Needs Assessment tool to understand the interplay between that instrument and the TAP instrument, as well as understanding what each of the risk levels mean.
Please know that the standard for assessing the appropriateness for release, as well as the statutory criteria you must consider has not changed through the aforementioned legislation. Consequently, in all cases you must consider
(i) the institutional record including program goals and accomplishments, academic achievements, vocational education, training or work assignments,therapy and interactions with staff and inmates;
(ii) performance, if any, as a participant in a temporary release program;
(iii) release plans including community resources, employment, education and training and support services available to the inmate;
(iv) any deportation order issued by the federal government against the inmate while in the custody of the department and any recommendation regarding deportation made by the commissioner of the department pursuant to section one hundred forty-seven of the correction law;
(v) any statement made to the board by the crime victim or the victim’s representative, where the crime victim is deceased or is mentally or physically incapacitated;
(vi) the length of the determinate sentence to which the inmate would be subject had he or she received a sentence pursuant to section 70.70 or section 70.71 of the penal law for a felony defined in article two hundred twenty or article two hundred twenty-one of the penal law;
(vii) the seriousness of the offense with due consideration to the type of sentence, length of sentence and recommendations of the sentencing court, the district attorney, the attorney for the inmate, the pre-sentence probation report as well as considera-tion of any mitigating and aggravating factors, and activities following arrest prior to confinement; and
(viii) prior criminal record, including the nature and pattern of offenses, adjustment to any previous probation or parole supervision and institutional confinement. See Executive Law §259-i(2){c){A}. As noted by the New York State Court of Appeals in Siimon v. Travis. 95 N.Y,2d 470 (2000), the above-stated criteria reflect the strong rehabilitative component of section 259-i of the Executive Law.
Therefore, in your consideration of the statutory criteria set forth in Executive Law §259-i(2)(c)(A)(i) through (viii), you must ascertain what steps an inmate has taken toward their rehabilitation and the likelihood of their success once released to parole supervision. In this regard, any steps taken by an inmate toward effecting their rehabilitation, in addition to all aspects of their proposed release plan, are to be discussed with the inmate during the course of their interview and considered in your deliberations.
cc: Elizabeth Glazer, Deputy Secretary; Mary Kavaney, Assistant Deputy Secretary; Brian Fischer, Commissioner; Anthony J. Annucci, Executive Deputy Commissioner; Angela Jimenez, Deputy Commissioner .
THWAITES DECISION: JUDGE ORDERS NYS PAROLE BOARD TO RETROACTIVELY APPLY A NEW PROVISION REQUIRING IT TO CONSIDER THE REHABILITATION OF AN INMATE AND NOT BASE A DENIAL OF RELEASE ON AN OFFENSE THAT MAY HAVE OCCURRED DECADES IN THE PAST.
Supreme Court of the State of NY, Orange County, Hon. Lawrence H. Ecker, J.S.C., Presiding
Douglas Thwaites vs NYS Board of Parole
Facts: Petitioner was convicted by jury of Murder 2 in 1986, and sentenced to 25-Life. He is now 67 and has served over 26 years. When released he is subject to deportation. He appeared before his first parole board in March 2010. He was denied and held for 24 months to March 2012. His denial was couched in the familiar boiler plate language, claiming notice of his institutional accomplishments and then saying the instant offense leads the Board to conclude his release would be incompatible with the welfare of society and deprecate the seriousness of the crime so as to undermine respect for the law.
Petitioner appealed and the Board affirmed its decision denying parole.
Petitioner filed an Article 78 contending the decision 1) was arbitrary and capricious; 2) denied due process in failing to offer any guidance or additional reasons; 3) failed to consider sentencing minutes; 4) failed to follow guidelines; 5) failed to apply procedures for deportation only; and 6) abuse of discretion in focusing exclusively on the instant offense.
Court ruled the lack of sentencing minutes was not sufficient grounds. The court reviewed the language of 259-i and placed great significance on 259-c(4) which was recently amended to require the Board to promulgate new procedures incorporating risk and needs principles to measure rehabilitation. The court then referred to the interpretations of Prof. Phillip Genty, as reported in the NYLJ, Sept 1, 2011. Even though the changes went into effect after the petitioner’s parole hearing, the court concluded that remedial amendments should apply [remedial statutes have been regarded as an exception to any general rule against retroactivity] and entitle petitioner to a new parole hearing utilizing risk assessment procedures. It accuses the Board of employing past-focused rhetoric, not future-focused risk assessment analysis. Thus failing to sustain a rational determination on the inquiry at hand: whether there is a reasonable probability that, if such inmate is released, he will live and remain at liberty without violating the law.
The court found the Board’s decision denying parole to be arbitrary and capricious, irrational, and improper. The court granted the petition, annulled the Board’s determination, vacated the denial, and directs the board to, within 30 days*, hold a new hearing with a different panel of the Board. Dated 12/21/11.
*30 days would be January 21, 2012. The DOCCS website lists his next hearing as March 2012. The Parole Board calendar does not list him in January, February, or March 2012. In neither place is there any indication that the judge’s order will be followed.
GRAZIANO V. EVANS: THE APPELLATE DIVISION, THIRD DEPARTMENT AFFIRMS ALBANY ACTING SUPREME COURT JUSTICE ROGER D. MCDONOUGH IN DISMISSING THE STATE COURT ACTION. DECIDED AND ENTERED: DECEMBER 22 2011.
Appellate Division, Third Department
[This opinion is uncorrected and subject to revision before publication in the official reports.]
In the most recent development in the case of Peter Graziano, on behalf of himself and all others similarly situated, Appellant, vs. Andrea W. Evans, as Chair of the New York State Division of Parole, et al., Respondents. Thomas E. Mercure, a judge on the New York Supreme Court, Appellate Division. granted defendants' motion to dismiss the complaint.
HISTORY: In 1986, plaintiff Graziano was convicted of murder in the second degree for which he received the minimum sentence, 15 years to life in prison. He appeared before the Board of Parole five times between 2001 and 2008, and was denied parole each time. Plaintiff was ultimately unsuccessful in challenging the Board's determinations denying parole. In 2006, plaintiff Graziano commenced a class action in the United States District Court for the Southern District of New York alleging that the Board had violated the US Constitution by adopting an unofficial policy of denying parole release to all prisoners convicted of A-1 violent felony offenses, without consideration of statutorily mandated factors. That action was dismissed upon a finding that plaintiff and the other class members had failed to state federal due process, equal protection or ex post facto claims.
In 2009, plaintiff commenced the current action on behalf of a class that is identical to that certified in the federal action — prisoners who were convicted of A-1 felonies, are eligible for parole release, and were denied parole after their most recent hearing based upon the seriousness or nature of their offense. As in the federal action, plaintiff alleged that the Board had adopted an unofficial policy resulting in the systematic denial of parole to A-1 violent felony offenders based solely on the nature of the underlying crime and without consideration of the statutorily mandated criteria set forth in Executive Law § 259-i (2) (c) (A).
Unlike the federal action, plaintiff's challenges were grounded in allegations that the Board had violated Executive Law § 259-i, rather than the constitutional claims rejected by the United States District Court. Plaintiff sought, among other things, a declaration that the Board violated Executive Law § 259-i, an injunction enjoining the Board from denying parole without due consideration of all factors set forth in section 259-i, and an order directing retraining and new supervisory procedures for the Board.
Defendants (Evans and the Parole Board) moved to dismiss the complaint, and plaintiff cross-moved for class certification and to consolidate this action with his then-pending CPLR article 78 proceeding challenging his 2008 denial of parole. The Supreme Court granted Parole’s motion, dismissed the complaint, and denied Graziano's cross motion as academic. Graziano appealed, and the Appellate Division, Third Department affirmed the Supreme court’s ruling on the grounds that Plaintiff has previously litigated this claim. The Appellate Division agreed with the Supreme Court that the doctrine of res judicata bars "all other claims arising out of the same transaction" — such as those raised here — "even if based upon different theories or if seeking a different remedy" Accordingly, the Appellate Division, Third Division ruled that the Supreme Court properly dismissed the complaint brought by Graziano..
6. PRISONERS OF THE CENSUS - VICTORY IN IMPLEMENTATION OF LAW ENDING PRISON-BASED GERRYMANDERING.
Last month we reported that a Supreme Court Judge threw out the lawsuit by upstate Senate Republicans and upheld the law ending prison-based gerrymandering. The landmark 2010 law required the state to count incarcerated people as residents of their home addresses for redistricting purposes. The rejected lawsuit argued that the state was required to use the Census Bureau counts (which count people in prison as residents of the prison) when drawing state and county legislative district lines. The state constitution says that incarcerated people remain residents of their pre-incarceration homes, but the Senate Republicans wanted to claim the political clout of the prison populations.
After the decision was announced, it initially appeared that the New York Senate did not intend to implement the law which they had previously threatened. On January 5, those fears were laid to rest when the legislative task force called LATFOR released the population data to be used for state and local redistricting that properly counts incarcerated people at their home addresses. Details at www.prisonersofthecensus.org.
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