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A04353 Summary:

BILL NOA04353
 
SAME ASSAME AS S03095-A
 
SPONSORAubry
 
COSPNSRHevesi, Mosley, Ortiz, Sepulveda, Perry, Barrett, Rodriguez, Barron, Pichardo, Rosenthal L, Peoples-Stokes, Davila, Blake, DiPietro
 
MLTSPNSRArroyo, Cook, Crespo, Fahy, Gottfried, Lentol, McDonald, Montesano, O'Donnell, Simon, Skartados
 
Amd 259-i, Exec L
 
Relates to the modification of the procedure for interviews of parole applicants and to the disclosure of parole applicant records.
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A04353 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A4353
 
SPONSOR: Aubry (MS)
  TITLE OF BILL: An act to amend the executive law, in relation to modifying the procedure for interviews of parole applicants and to the disclosure of parole applicant records   PURPOSE: To modernize the procedures required of the parole hearing process.   SUMMARY OF PROVISIONS: Section One of the bill makes a number of changes to subdivision 2 of section 259- I: -codifies the existing practice of scheduling parole board hearings at least three months prior to an earliest release date; -requires parole board hearings take place in person; -requires videotaping of parole board hearings; -provides inmate with copies of inmate records with appropriate redac- tion in order to allow inmate to address any errors contained in such inmate's file; -provides victims with copies of inmate status report, psychiatric eval- uation and any release plans submitted by the parole applicant in order to expand their understanding of the offender's current threat to their safety; -requires statement of denial to specify reasons for denials and what corrective actions the board requires; -requires DOCCS to provide any such required programs to a parole appli- cant; -provides for a rehearing prior to the set rehearing date where a required program has been completed in the interim; -Provides for the release of inmates who meet release criteria, and the denial of inmates who do not' meet release criteria until he or she satisfies the stipulations of the parole board. -Broadens a crime victim's representative to include any member of the family or domestic partner of such crime victim. Section Two requires the Parole Board to determine whether there is or is not reasonable cause to believe that the release of the parole appli- cant would create a present danger to the victim or the victim's repre- sentative using specified criteria to arrive at such determination. Where the parole applicant has participated in a restorative justice- type program with the victim or victim representatives, such program shall be considered among the criteria.   JUSTIFICATION: Under current law, the Parole Board appears to deny an inmate release simply due to the nature of his or her crime. The courts have found that the statute does not specify how the release criteria must be consid- ered, how an inmate should be evaluated, what weight, if any, should be given each of the criteria required, nor that the board is required to enumerate the criteria it did consider or explain how it arrived at its decision. Thus, no matter how successful an inmate has been in his or her rehabilitation and educational programs, this loophole has permitted the denial of parole to such inmates otherwise eligible for release. This is evinced by the 50 reduction in the release rate of such offen- ders since 1996, without a characteristic change in the nature of such inmates or any revision in legislative authorization. In order to ensure that the purpose of the indeterminate sentencing scheme and its corollary release to parole supervision is not dimin- ished, this bill proposes to modernize and revitalize the board of parole by providing specific criteria for consideration and improving the procedures utilized in the parole hearing process.   HISTORY: Indeterminate sentencing was authorized by the legislature in 1876 and is still the majority of sentencing imposed today. Founded upon the principle that people can and do change, the department of corrections is staffed and funded to effectuate such change with the largest operat- ing budget in the state to provide the programs, treatment and guidance necessary to rehabilitate persons committed to its custody. This is reflected in the department's mission statement to "enhance public safe- ty by providing appropriate treatment services, in safe and secure facilities, that address the needs of all inmates so they can return to their communities better prepared to lead successful and crime-free lives." The department fulfills its function during the inmate's minimum period of imprisonment at which time the board of parole commences its function to assess whether or not such change has in fact occurred by such time. Evaluating an inmate's rehabilitation and readiness for reentry is the board of parole's purpose. If the inmate has changed in such regard, the inmate should be released. If not, the inmate should be denied release until he or she satisfies the stipulations of the parole board. Whenever released, the inmate remains under parole supervision until the maximum period of the indeterminate sentence has been reached, revoking parole at any time if necessary. Simply put, this is the purpose of the inde- terminate sentencing scheme and its corollary discretionary release by the board of parole. In the mid 1990's fundamental fairness and truth in sentencing were hailed to be the hallmarks of democracy in sentencing justifying the enactment of determinate sentencing for most violent offenders under the name Jenna's Law. It was unforeseen and not intended that these same hallmarks would be quietly subtracted from those who remain subject to indeterminate sentencing, which seems to have been the side effect in light of the 50% reduction in parole board releases for similar offen- ders since that time. Some might claim that it is a fair use of the board of parole to retrospectively lengthen the punitive phase of an indeterminate sentence imposed upon certain offenders; however, this is not the purpose of the board of parole nor should it be. This bill instead proposes to modernize and revitalize the parole board by providing specific criteria and procedural requirements to determine whether or not an inmate is rehabilitated and safe to release. This, since 1920 when the board of parole was created, is the purpose of parole board hearings. While it is highly unlikely that all inmates are safe to release, it is equally unlikely that the approximately 75% conditional release rate granted determinately sentenced violent offen- ders is reflective of an inmate who is more rehabilitated or safer to release than the current 9% initial release rate of their indeterminate- ly sentenced counterparts by the board of parole. This bill restores fundamental fairness and truth in sentencing for all inmates, for victims, for the courts, for society and for the legisla- ture. It is the legislature's responsibility to provide direction, a clear framework, reason and equity in the process utilized by the board of parole to evaluate inmates' rehabilitation and readiness for release. It is the board of parole's responsibility to apply it. This bill would enhance the Parole Board's ability to operate with greater consistency, accountability and transparency in performing this function by providing greater specificity and requirements in the proce- dures used thus modernizing and revitalizing board of parole.   LEGISLATIVE HISTORY: A.7939 referred to correction in 2011 and 2012. A.4108 was referred to correction in 2013 and 2014. A.2930 was referred to correction in 2015 and 2016.   FISCAL IMPLICATIONS: To be determined.   LOCAL FISCAL IMPLICATIONS: None.   EFFECTIVE DATE: This act shall take effect on the one hundred eightieth day after it shall have become law; provided that the amendments to paragraph (a) of subdivision 2 of section 259-i of the executive law made by section one of this act shall be subject to the expiration and reversion of such paragraph as provided by section 74 of chapter 3 of the laws of 1995, as amended, where upon such date the provisions of section two of this act shall take effect.
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A04353 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          4353
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 2, 2017
                                       ___________
 
        Introduced  by  M. of A. AUBRY, HEVESI, MOSLEY, ORTIZ, SEPULVEDA, PERRY,
          BARRETT, RODRIGUEZ, BARRON -- Multi-Sponsored by -- M. of  A.  ARROYO,
          CRESPO,  FAHY,  FARRELL,  GOTTFRIED,  McDONALD,  MONTESANO, O'DONNELL,
          SIMON, SKARTADOS, THIELE -- read once and referred to the Committee on
          Correction

        AN ACT to amend the executive law, in relation to modifying  the  proce-
          dure  for  interviews  of  parole  applicants and to the disclosure of
          parole applicant records
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Paragraph  (a)  of  subdivision 2 of section 259-i of the
     2  executive law, as amended by section 38-f-1 of subpart A of  part  C  of
     3  chapter 62 of the laws of 2011, is amended to read as follows:
     4    (a)  (i) Except as provided in subparagraph (ii) of this paragraph, at
     5  least [one month] three months prior to the date on which [an inmate]  a
     6  parole  applicant  may be paroled pursuant to subdivision one of section
     7  70.40 of the penal law, a member or members as determined by  the  rules
     8  of  the  board shall personally interview such [inmate] parole applicant
     9  and determine whether he or she should be paroled in accordance with the
    10  [guidelines] procedures adopted pursuant to subdivision four of  section
    11  two  hundred  fifty-nine-c  of  this article.   The interview shall take
    12  place with all parties present in the same room. The interview shall  be
    13  recorded  audio-visually  and  this recording shall be made available to
    14  the board and the parole applicant or the parole  applicant's  represen-
    15  tative  only.  At  least  one  month  prior to the parole hearing parole
    16  applicants shall be provided the opportunity  to  review  all  documents
    17  contained  in their parole file or that otherwise will be made available
    18  for the board's discretionary release consideration. No documents  shall
    19  be  considered  confidential  except  as provided in subparagraph (i) of
    20  paragraph (c) of this subdivision. Records concerning or relating to the
    21  mental health examination or treatment of the parole applicant shall  be
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD06587-02-7

        A. 4353                             2
 
     1  disclosed  unless,  in  accordance with the standards and procedures set
     2  forth in section 33.16 of the mental hygiene law, it is determined by  a
     3  mental  health  practitioner  that  such  disclosure  can  reasonably be
     4  expected to cause substantial and identifiable harm to the parole appli-
     5  cant  or others and that this harm would outweigh the parole applicant's
     6  right of access to the record. At least thirty days  before  the  parole
     7  hearing,  if  requested  by the victim, as the term victim is defined in
     8  subdivision two of section 380.50 of the  criminal  procedure  law,  the
     9  following  information  shall be provided to the victim, or the victim's
    10  representative: inmate status reports; inmate's psychiatric  evaluation,
    11  if  there  is  one available and only upon  consent of the parole appli-
    12  cant; and a copy of the parole applicant's "parole release plan" in  the
    13  event that the applicant submits one. If parole is not granted upon such
    14  review,  the  [inmate] board will be required to state in detail and not
    15  in conclusory terms the factors and  reasons  for  the  denial  and  the
    16  specific  requirements  for actions to be taken, programs or accomplish-
    17  ments to be completed, or changes in performance or conduct to be  made,
    18  or  corrective  action  or  actions to be taken, in order to qualify for
    19  parole release. The board shall specify a date not more than twenty-four
    20  months from such determination for reconsideration. The parole applicant
    21  shall be informed in writing within two weeks of such appearance of  the
    22  factors  and  reasons  for such denial of parole[. Such reasons shall be
    23  given in detail and not in conclusory terms. The board shall  specify  a
    24  date not more than twenty-four months from such determination for recon-
    25  sideration, and the procedures to be followed upon reconsideration shall
    26  be  the same] and the specific requirements and shall be provided with a
    27  copy of the scored risk and needs assessment  instrument  considered  by
    28  the  board.   Within ninety days of the hearing decision, the department
    29  shall provide to the parole applicant access to the program or programs,
    30  activities and/or facilities needed in order to provide the  opportunity
    31  to fulfill the requirements set forth by the board. The parole applicant
    32  shall  be  scheduled for a reappearance before the board upon completion
    33  of the specific requirements as previously set forth  by  the  board  if
    34  such  completion  occurs sooner than the date specified by the board. If
    35  the requirements previously set forth by the board have been successful-
    36  ly completed and the parole applicant's institutional  record  has  been
    37  satisfactory  during  the  time  between the previous and current parole
    38  hearing, release shall be granted.  If the [inmate] parole applicant  is
    39  released,  he  or she shall be given a copy of the conditions of parole.
    40  Such conditions shall where appropriate, include a requirement that  the
    41  parolee  comply  with  any  restitution  order, mandatory surcharge, sex
    42  offender registration fee and DNA databank fee previously imposed  by  a
    43  court  of competent jurisdiction that applies to the parolee. The condi-
    44  tions shall indicate which  restitution  collection  agency  established
    45  under subdivision eight of section 420.10 of the criminal procedure law,
    46  shall be responsible for collection of restitution, mandatory surcharge,
    47  sex  offender registration fees and DNA databank fees as provided for in
    48  section 60.35 of the penal law and section eighteen hundred nine of  the
    49  vehicle and traffic law.
    50    (ii)  Any  [inmate]  parole applicant who is scheduled for presumptive
    51  release pursuant to section eight hundred  six  of  the  correction  law
    52  shall  not  appear  before  the board as provided in subparagraph (i) of
    53  this paragraph  unless  such  [inmate's]  parole  applicant's  scheduled
    54  presumptive release is forfeited, canceled, or rescinded subsequently as
    55  provided in such law. In such event, the [inmate] parole applicant shall

        A. 4353                             3
 
     1  appear before the board for release consideration as provided in subpar-
     2  agraph (i) of this paragraph as soon thereafter as is practicable.
     3    §  2. Paragraph (a) of subdivision 2 of section 259-i of the executive
     4  law, as amended by section 38-f-2 of subpart A of part C of  chapter  62
     5  of the laws of 2011, is amended to read as follows:
     6    (a)  At  least [one month] three months prior to the expiration of the
     7  minimum period or periods of imprisonment fixed by the court or board, a
     8  member or members  as  determined  by  the  rules  of  the  board  shall
     9  personally  interview [an inmate] a parole applicant serving an indeter-
    10  minate sentence and determine whether he or she should be paroled at the
    11  expiration of the minimum period  or  periods  in  accordance  with  the
    12  procedures  adopted  pursuant to subdivision four of section two hundred
    13  fifty-nine-c.  The interview shall take place with all  parties  present
    14  in  the  same  room.  The interview shall be recorded audio-visually and
    15  this recording shall be made available  to  the  board  and  the  parole
    16  applicant  or  the  parole applicant's representative only. At least one
    17  month prior to the parole hearing parole applicants  shall  be  provided
    18  the  opportunity  to review all documents contained in their parole file
    19  or that otherwise will be made available for the  board's  discretionary
    20  release  consideration.  No  documents  shall be considered confidential
    21  except as provided in subparagraph (i) of paragraph (c) of this subdivi-
    22  sion.  Records concerning or relating to the mental  health  examination
    23  or  treatment  of  the  parole  applicant  shall be disclosed unless, in
    24  accordance with the standards and procedures set forth in section  33.16
    25  of  the  mental hygiene law, it is determined by a mental health practi-
    26  tioner that such disclosure can reasonably be expected to cause substan-
    27  tial and identifiable harm to the parole applicant or  others  and  that
    28  this  harm  would outweigh the parole applicant's right of access to the
    29  record. At least thirty days before the parole hearing, if requested  by
    30  the  victim, as the term victim is defined in subdivision two of section
    31  380.50 of the criminal procedure law, the following information shall be
    32  provided to the victim, or the victim's  representative:  inmate  status
    33  reports;  inmate's psychiatric evaluation, if there is one available and
    34  only upon consent of the parole applicant; and  a  copy  of  the  parole
    35  applicant's  "parole  release  plan"  in  the  event  that the applicant
    36  submits one. If parole is not granted upon  such  review,  the  [inmate]
    37  board  will  be  required to state in detail and not in conclusory terms
    38  the factors and reasons for the denial and the specific requirements for
    39  actions to be taken, programs or accomplishments  to  be  completed,  or
    40  changes  in  performance  or conduct to be made, or corrective action or
    41  actions to be taken, in order to qualify for parole release.  The  board
    42  shall specify a date not more than twenty-four months from such determi-
    43  nation  for  reconsideration.  The parole applicant shall be informed in
    44  writing within two weeks of such appearance of the factors  and  reasons
    45  for  such  denial  of parole[. Such reasons shall be given in detail and
    46  not in conclusory terms. The board shall specify a date  not  more  than
    47  twenty-four  months from such determination for reconsideration, and the
    48  procedures to be followed upon reconsideration shall be  the  same]  and
    49  the  specific  requirements  and  shall  be  provided with a copy of the
    50  scored risk and needs assessment instrument  considered  by  the  board.
    51  Within ninety days of the hearing decision, the department shall provide
    52  to  the  parole  applicant access to the program or programs, activities
    53  and/or facilities needed in order to provide the opportunity to  fulfill
    54  the  requirements  set forth by the board. The parole applicant shall be
    55  scheduled for a reappearance before the board  upon  completion  of  the
    56  specific  requirements  as  previously  set  forth  by the board if such

        A. 4353                             4
 
     1  completion occurs sooner than the date specified by the  board.  If  the
     2  requirements  previously  set  forth by the board have been successfully
     3  completed and the  parole  applicant's  institutional  record  has  been
     4  satisfactory  during  the  time  between the previous and current parole
     5  hearing, release shall be granted.  If the [inmate] parole applicant  is
     6  released,  he  or she shall be given a copy of the conditions of parole.
     7  Such conditions shall where appropriate, include a requirement that  the
     8  parolee comply with any restitution order and mandatory surcharge previ-
     9  ously  imposed  by a court of competent jurisdiction that applies to the
    10  parolee. The conditions  shall  indicate  which  restitution  collection
    11  agency  established  under  subdivision  eight  of section 420.10 of the
    12  criminal procedure law, shall be responsible for collection of  restitu-
    13  tion  and  mandatory  surcharge  as provided for in section 60.35 of the
    14  penal law and section eighteen hundred nine of the vehicle  and  traffic
    15  law.
    16    §  3. Paragraph (c) of subdivision 2 of section 259-i of the executive
    17  law, as separately amended by chapters 40 and 126 of the  laws  of  1999
    18  and  subparagraph  (A) as amended by chapter 130 of the laws of 2016, is
    19  amended to read as follows:
    20    (c) [(A)] (i) Discretionary release on parole shall [not]  be  granted
    21  [merely  as a reward] for good conduct [or] and efficient performance of
    22  duties while confined [but after considering if there  is  a  reasonable
    23  probability],  and  for  preparedness for reentry and reintegration into
    24  society thereby providing a reasonable basis to conclude that,  if  such
    25  [inmate]  person  is released, he or she will live and remain at liberty
    26  without violating the law, and therefore that his or her release is  not
    27  incompatible  with the welfare of society [and will not so deprecate the
    28  seriousness of his crime as to undermine respect for law]. In making the
    29  parole release decision, the procedures adopted pursuant to  subdivision
    30  four  of  section two hundred fifty-nine-c of this article shall require
    31  that the [following be considered] decision be based upon the  following
    32  considerations:  [(i)  the  institutional record including program goals
    33  and accomplishments, academic achievements, vocational education, train-
    34  ing or  work  assignments,  therapy  and  interactions  with  staff  and
    35  inmates]  (A) preparedness for reentry and reintegration as evidences by
    36  the  applicant's  institutional  record  pertaining to program goals and
    37  accomplishments as stated in the facility performance reports,  academic
    38  achievements, vocational education, training or work assignments, thera-
    39  py  and  interactions  with staff and other sentenced persons, and other
    40  indications of pro-social activity, change  and  transformation;  [(ii)]
    41  (B)  performance,  if  any,  as  a  participant  in  a temporary release
    42  program;  [(iii)]  (C)  release  plans  including  community  resources,
    43  employment, education and training and support services available to the
    44  [inmate]  parole  applicant;  [(iv)] (D) any deportation order issued by
    45  the federal government against the [inmate] parole  applicant  while  in
    46  the  custody of the department and any recommendation regarding deporta-
    47  tion made by the commissioner of the department pursuant to section  one
    48  hundred  forty-seven  of  the  correction  law; [(v)] (E) any current or
    49  prior statement, whether supportive or critical, made to  the  board  by
    50  the  crime victim or the victim's representative, where the crime victim
    51  is deceased or is mentally or physically incapacitated,  to  assist  the
    52  board  in  determining whether at this time there is reasonable cause to
    53  believe that the release of the  parole applicant would create a present
    54  danger to the victim or the victim's representative, or  the  extent  of
    55  the parole applicant's preparedness for reentry and reintegration as set
    56  forth  in  clause (A) of this subparagraph; [(vi)] (F) the length of the

        A. 4353                             5
 
     1  determinate sentence to which the inmate would be subject had he or  she
     2  received  a  sentence  pursuant to section 70.70 or section 70.71 of the
     3  penal law for a felony defined in article two hundred twenty or  article
     4  two  hundred  twenty-one of the penal law; [(vii) the seriousness of the
     5  offense with due consideration  to  the  type  of  sentence,  length  of
     6  sentence  and  recommendations  of  the  sentencing  court, the district
     7  attorney, the attorney for the inmate, the pre-sentence probation report
     8  as well as consideration of any mitigating and aggravating factors,  and
     9  activities following arrest prior to confinement; and (viii) prior crim-
    10  inal record, including the nature and pattern of offenses, adjustment to
    11  any  previous probation or parole supervision and institutional confine-
    12  ment]   (G)   participation   and   performance,   if    any,    in    a
    13  reconciliation/restorative  justice-type  conference  with the victim or
    14  victim's representatives; (H) the progress made towards  the  completion
    15  of  the  specific requirements previously set forth by the board for the
    16  parole applicant, in the case of a reappearance; and  (I)  the  progress
    17  made  towards achieving the programming and treatment needs developed in
    18  the transitional accountability plan.  The board shall provide toll free
    19  telephone access for crime victims. In the case  of  an  oral  statement
    20  made  in accordance with subdivision one of section 440.50 of the crimi-
    21  nal procedure law, the parole  board  member  shall  present  a  written
    22  report  of the statement to the parole board. A crime victim's represen-
    23  tative shall mean [the crime  victim's  closest  surviving  relative]  a
    24  member  of  the  family  or  domestic  partner of such crime victim, the
    25  committee or guardian of such person, or the legal representative of any
    26  such person.  Such statement submitted by the victim or victim's  repre-
    27  sentative may include information concerning threatening or intimidating
    28  conduct  toward the victim, the victim's representative, or the victim's
    29  family, made by the person sentenced and occurring after the sentencing.
    30  Such information may include, but need not be limited to, the  threaten-
    31  ing or intimidating conduct of any other person who or which is directed
    32  by  the  person  sentenced.  Any  statement  by a victim or the victim's
    33  representative made to the board shall be maintained by  the  department
    34  in  the  file  provided  to  the  board  when interviewing the inmate in
    35  consideration of release. A victim or victim's  representative  who  has
    36  submitted a written request to the department for the transcript of such
    37  interview shall be provided such transcript as soon as it becomes avail-
    38  able.
    39    [(B)]  (ii) Where a crime victim or victim's representative as defined
    40  in subparagraph [(A)] (i) of this paragraph, or other person submits  to
    41  the  parole  board  a  written  statement  concerning the release of [an
    42  inmate] a parole applicant, the parole board shall  keep  that  individ-
    43  ual's name and address confidential. With regard to any statement from a
    44  judge  or  district attorney, the address, if residential, shall be kept
    45  confidential by the board.
    46    § 4. This act shall take effect on the one hundred eightieth day after
    47  it shall have become a law; provided that the  amendments  to  paragraph
    48  (a)  of  subdivision  2  of  section  259-i of the executive law made by
    49  section one of this act shall be subject to the expiration and reversion
    50  of such paragraph as provided by section 74 of chapter 3 of the laws  of
    51  1995,  as  amended, when upon such date the provisions of section two of
    52  this act shall take effect.
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