|SAME AS||SAME AS S03095-A|
|COSPNSR||Hevesi, Mosley, Ortiz, Sepulveda, Perry, Barrett, Rodriguez, Barron, Pichardo, Rosenthal L, Peoples-Stokes, Davila, Blake, DiPietro|
|MLTSPNSR||Arroyo, 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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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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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. LBD06587-02-7A. 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 be23 given in detail and not in conclusory terms. The board shall specify a24 date not more than twenty-four months from such determination for recon-25 sideration, and the procedures to be followed upon reconsideration shall26 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 shallA. 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 and46 not in conclusory terms. The board shall specify a date not more than47 twenty-four months from such determination for reconsideration, and the48 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 suchA. 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 reasonable23 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 the28 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 goals33 and accomplishments, academic achievements, vocational education, train-34 ing or work assignments, therapy and interactions with staff and35 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 theA. 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 the5 offense with due consideration to the type of sentence, length of6 sentence and recommendations of the sentencing court, the district7 attorney, the attorney for the inmate, the pre-sentence probation report8 as well as consideration of any mitigating and aggravating factors, and9 activities following arrest prior to confinement; and (viii) prior crim-10 inal record, including the nature and pattern of offenses, adjustment to11 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 [ an42 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.