Newly Proposed Parole Regulations

By Jeremy Benjamin posted 10-21-2016 10:57 PM


On September 28, the New York State Department of Corrections and Community Supervision (“DOCCS”) released new proposed regulations to “[t]o clearly establish what the [Parole] Board must consider when conducting an interview and rendering a decision.”  If adopted, the proposed regulations would significantly revise the rules governing the Board’s decision-making by placing greater emphasis on evidence of rehabilitation and objective measurements of future risk, and less on past acts.  It would also mark the second major revision to these rules since New York State passed amendments in 2011 to sections of the Executive Law that provide the statutory framework for parole determinations. 

Perhaps the most significant change brought about by the 2011 amendments was the abandonment of the “guidelines” previously relied upon by the Parole Board that focused exclusively on the nature of the underlying offense and criminal history.  In their place, amended Executive Law § 259-c(4) required the Board to “establish written procedures” that “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.”  Additionally, Executive Law § 259-i was amended to eliminate a subsection concerning the seriousness of the offense and prior criminal history and to consolidate those two factors into a subsection that describes each of the eight statutory factors the Board must consider in making release determinations. 

Advocates for parole reform cautiously applauded the 2011 amendments, hoping that they would usher in objectively grounded and forward-looking parole determinations that focus on future risk rather than the Board’s subjective assessment about how much punishment was enough for past acts.  Subsequent decisions by the Board and its public interpretation of what the amendments required quickly dampened any such optimism.

In response to the 2011 amendments, the Board adopted a risk assessment tool—the Correctional Offender Management Profiling for Alternative Sanction (“COMPAS”)—to guide its decision-making.  After doing so however, the Board continued, time and again, to deny parole based on “the serious nature of the crime” even for individuals scoring the lowest possible risk of felony violence, arrest, and absconding, as measured by the COMPAS.  In litigation, the Board took the position that it could afford whatever weight it deemed appropriate to COMPAS results.  Consistent with that sentiment, Andrea Evans, then-Chairwoman of the Parole Board, wrote in an October 5, 2011 memorandum to members of the Parole Board “that the standard for assessing the appropriateness for release, as well as the statutory criteria you must consider has not changed . . .”

On December 18, 2013, the Parole Board published proposed rules to reduce Chairwoman Evan’s memorandum to regulation.  Over 200 organizations and individuals, including the New York State Bar Association’s Committee on Civil Rights, submitted comments objecting to those proposed regulations.  The public comments largely argued that under the amended statute parole decisions were to be made based on empirically measured future risk.  Despite this opposition, on July 30, 2014, the Parole Board adopted the proposed regulations in unchanged form. 

Advocacy efforts to reform the system have continued and caused the public to become increasingly aware of New York’s broken parole system.  The regulations proposed in September show that these advocacy efforts and common sense are having effect.  Importantly, the proposed regulations appear to show that the Board now recognizes the COMPAS risk assessment should play a guiding role in parole determinations.  Thus, the newly proposed regulations provide: “In making a release determination, the Board shall be guided by the inmate’s risk and need scores as generated by the [COMPAS] . . . . If a Board determination, denying release, departs from the COMPAS scores, an individualized reason for such departure shall be given in the decision.”  Additionally, the proposed regulations would have the Board factor youth into its determinations for any individual serving a maximum sentence of life imprisonment for a crime committed prior to his or her 18th birthday.

These changes have led some to hail the newly proposed regulations as more fair.   But advocates see the need for further reform.  In particular, some advocates argue that the proposed regulations should be amended to clearly establish that the risk assessment is a guiding principal in release determinations rather than a “factor” to be considered and weighed against others, and also to require that Commissioners inform any individual denied release what steps he or she should take to improve his or her chance of release in the future. 

The public comment period on the proposed regulations is open through November 12.

The Committee is solely responsible for the contents of this blog.  It does not represent the position of the New York State Bar Association unless or until approved by its Executive Committee or House of Delegates.

The author[s] is solely responsible for this blog submission.  It does not represent the position of the New York State Bar Association or its Committee.