New York State Prisoner Justice Network Parole Board Testimony by Naomi Jaffe

Assembly Standing Committee on Correction
Public hearing on oversight and investigation of the Department of Corrections and Community Supervision
December 2, 2015

Testimony submitted by Naomi Jaffe on behalf of the New York State Prisoner Justice Network

The New York State Prisoner Justice Network (NYSPJN) thanks the Assembly Committee on Correction and Chairperson O’Donnell for accepting public testimony in relation to the Committee’s oversight of the Department of Corrections and Community Supervision (DOCCS). We would like to address the Committee’s oversight of the Parole Board. The Parole Board, as an operational component of DOCCS, falls under the oversight responsibilities of the Committee on Correction.

NYSPJN respectfully requests this opportunity to call the Committee’s attention to multiple ways in which the Parole Board is not in compliance either with the legislation which is supposed to govern its functioning or with the interests of justice and public well-being. We are interested in exploring how Committee oversight can meaningfully enforce such compliance.

NYS Prisoner Justice Network’s interest, as our name implies, lies in justice. We believe that over-incarceration and endless punishment of women and men who have served long sentences and have demonstrated readiness to productively return to their communities do not serve the interests of justice and community well-being.

Endless punishment appears to be the model adopted by the Parole Board, in clear contravention of the intent of the legislature as expressed in Executive Law. Executive Law, both before and after it was revised by the Legislature in 2011, requires the Board to consider a number of factors, including the severity of the instant offense, in deciding on whether to release a parole applicant, but allows the Board discretion in allocating different weights to these various factors. In practice, in most cases of A-1 violent felony convictions, the Board barely gives a perfunctory nod to all factors except the instant offense, giving all other factors in essence a weight of zero. This practice makes a mockery of the law: why would the legislators bother to include a long list of factors in order for the Board to give them a weight of zero?

In its 2011 revision of Executive Law §259-c(4), the legislature required the Board to promulgate new procedures in making parole release decisions. Such new procedures to be adopted “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.” The clear intent of this change in legislation was to effect a change in the practices of the Parole Board – from a backward to a forward focus.

No such change has been forthcoming. No regulations were promulgated by the Parole Board at all until 2014, when – urged by this Committee at a public hearing – the Board finally released draft regulations for public comment. The draft regulations referred to the 2011 legislation but allowed the Board to continue its longstanding practices virtually unchanged. The Board, as required, accepted public comments on the proposed regulations, and received an unprecedented flood of comments in opposition to the draft regulations. The comments – nearly two hundred of them — overwhelmingly urged the Parole Board to promulgate regulations which would effect a change in practice from past to future focus in its release decisions. The Board, as it is apparently permitted to do by statute, ignored the overwhelming weight of the public comments just as it ignored – and continues to ignore – the plain intent of the Legislature. Is the public comment process supposed have any meaning, or is it merely an outlet for venting?  Perhaps the board feels it has the discretion to assign public comments whatever weight it wishes, and it assigns them zero. What is the point of a public comment process? Surely the Parole Board’s flagrant assertion of its right to be a law unto itself, in defiance of both the Legislature and public opinion, merits legislative oversight?

Since the revision of Executive Law in 2011, and similarly since the promulgation of regulations by the Parole Board in 2014, the practice of the Board has remained essentially the same as it has been for the past decade. The Board’s release rates for A-1 violent felony offenders remain in the low 20 percents. This despite a large body of new research that confirms that older prisoners who have served long sentences have by far the lowest recidivism rates of any component of the prison population, less than 1% for new violent felonies. There is a growing public consensus that revenge is not appropriate public policy. These older prisoners who have served decades are suffering (and costing the public money) for no public benefit. For extensive information on this research and its implications, see the report, “Aging in Prison: Reducing Elder Incarceration and Promoting Public Safety,” published by the Center for Justice at Columbia, and available on line at http://rappcampaign.com/solving-the-crisis-of-aging-in-prison-a-collaborative-report/.

The courts have been divided on whether and to what extent they have jurisdiction to correct the injustices of the Parole Board. There have been cases in which courts were obviously outraged by the Parole Board’s flaunting of the intent of the legislation, but overall the results of litigation have not fundamentally altered the behavior of the Parole Board. Often, the court sends the parole applicant back for a new hearing, and the Board denies again, applying the very same process that resulted in denial the first time –in one case even resulting in a contempt citation for the Board (see Cassidy v. New York State Board of Parole, 2255/14). Litigation has not proven effective in solving the problem.

New York State Prisoner Justice Network and over 100 other organizations and several hundred individual petition signers have endorsed legislation that would address these injustices: the SAFE Parole Act, S. 1728 and A. 2930. We thank Chairperson O’Donnell for his support of this bill and urge the Committee to make parole reform a priority in the coming legislative session.

The practices of the Parole Board in denying parole to people who have served their time and are no danger to society, in defiance of the Legislature, the public, the courts, and scientific research, cry out for oversight, enforcement, and corrective legislation. We believe these remedies are the responsibility of the Legislature and specifically of this committee. New York State Prisoner Justice Network, and indeed an entire movement of advocates, incarcerated people, families and communities adversely impacted by the harm wrought by the Parole Board, look to this Committee for effective intervention to uphold law, justice, and common sense in parole decisions.