Letter From The President Of The New York City Bar Association

2007-04-01 01:00

To The Readers Of The Metropolitan Corporate Counsel :

On February 15, over two hundred people gathered at the City Bar to participate in a panel discussion that focused on a significant and emotionally charged subject: restoring fairness to the parole system in New York. While parolees have little or no constituency in the political process and evoke even less sympathy from the public, that is the very reason why it falls upon our bar association to speak out against the inequities and abuses that plague the current parole system.

By law, parole is a possibility, not a guarantee or reward for good behavior in prison, and an inmate has no legal expectation of obtaining his or her release through parole. The New York State Board of Parole, comprised of up to 19 members, has the discretion to grant or deny parole. In making their decision, parole commissioners must take into consideration a number of factors, including the seriousness of the crime and the inmate's institutional record and rehabilitative efforts. Many judges impose sentences with the expectations that defendants will obtain parole release at or reasonably close to the minimum term through the appropriate application of discretion by the parole board. Therein lies the problem.

It is no secret that during the last twelve years, parole commissioners have used their discretion to implement a gubernatorial policy to deny release to felons notwithstanding the assumptions, expectations and even recommendations of sentencing judges. In 1995, when Governor Pataki was elected, 60 percent of all applicants for parole were released. Over the next 12 years, that number continued to decline and in 2005, only 38 percent were granted parole. Soon after his election, Governor Pataki called for the elimination of parole and, as one jurist noted in an opinion, the parole board "got the message" and began to implement executive policy. As a result, critics of the system have argued that the parole board is acting as a second sentencing court, imposing its own sentence in place of the sentence imposed by the judge.

Some trial judges have reversed parole board decisions on the ground that the board abused its discretion by not giving appropriate weight to a prisoner's institutional record or by giving undue weight to the seriousness of the crime. However, even if an inmate can obtain a reversal, the courts can do nothing more than order a new parole hearing and there is no guarantee that a new decision by the board will be any different than the previous one.

The City Bar Association has joined a growing group of organizations and individuals who are speaking out on the issue of parole. We participated in a discussion at John Jay College at which judges, legislators and academics shared perspectives and sought a consensus on a productive strategy for moving toward parole reform. We discussed a number of approaches including litigation, legislation, procedural and policy changes, parole board qualifications, public education, etc. Many of these proposals were shared with Governor Spitzer's transition team.

Our Council on Criminal Justice has reviewed many of the proposals and reached a consensus on a number of them. Initially, parole board guidelines should be modified to require the board to give appropriate weight to the extent of an individual's rehabilitation and the lack of risk to public safety should the individual be released. Second, the Council was concerned that parole commissioners are often selected for political or ideological reasons. We believe there should be merit-based criteria for parole board membership and a screening panel should be established to achieve this result.

In addition, board members should be provided with access to professional development programs in which current research, penological theory and parole practices are presented and discussed. We also support uniform guidelines for parole revocation to help reduce the number of individuals who are being sent back to prison for minor or technical violations that do not involve any criminal conduct. We also believe that certificates of earned eligibility should be expanded to include all persons, regardless of the length of their minimum sentence. At present, the certificate is limited to individuals whose minimum sentence is eight years or less.

Parole reform will not be easy. All current members of the Parole Board were appointed by Governor Pataki and many members have a number of years to serve until the expiration of their terms. However, with a new administration that is certainly willing to listen to recommendations for change there is optimism that, with time, fairness can, indeed, be restored to the parole system.


Barry Kamins