As the 2021 legislative session enters its final week, Democrats in Albany, coming off of major wins on marijuana legalization and the excluded workers fund, are hoping to eke out one last victory.
Criminal justice reform advocates, formerly incarcerated people, and progressive legislators are mounting a major push for the adoption of a trio of bills that would overhaul the way New York implements its storied parole system—the nation’s first comprehensive system for early release, whose roots trace to the late 19th century.
Remarkably, the same complaints about the parole system voiced during its infancy, over a century ago, continue to plague the system today. These concerns are highlighted in a new report from the Correctional Association of New York, the state’s independent prison watchdog.
Understaffing. Longshot appeals. Rushed interviews. Advocates for reform allege that a multitude of barriers, both intentional and unintentional, have closed off free and fair access to the system for many incarcerated people—and are the primary reason that in New York, the majority of parole applications are denied.
“Commissioners aren’t making good and informed decisions,” said Jennifer Scaife, CANY’s executive director. “But it’s not just that they aren’t making good decisions, they can’t make good decisions under the circumstances in which they’re working.”
To obtain parole in New York, individuals serving certain sentences must appear before the Board of Parole, part of the Department of Corrections and Community Supervision (DOCCS), to plead their case. In 1987, the legislature set the number of commissioners on the board, then its own agency, at 19. It has not been changed since.
The board has often lacked a full complement of commissioners. For the past two years, there have only been 16, three short of the statutory maximum. This has exacerbated the board’s caseload crisis, with critics drawing attention to the quality of the board’s work amid its resource crunch.
In a 2019 report, the New York State Bar Association’s Task Force on the Parole System observed that “each and every one” of the parole board’s cases is “not receiving the kind of time, attention, and review that such a critical decision deserves.”
The report noted that even if fully staffed, the parole board would be responsible for managing a yearly caseload of 526 cases per commissioner, a number the bar association called “shockingly high.”
Other states have case-per-commissioner ratios of between 250 and 300, the report said.
Parole board interviews are conducted by three-member panels, selected randomly from the roster of sitting commissioners. Often, because of the board’s substantial caseload, panels delegate the responsibility for reviewing an incarcerated person’s case file to a single member of the panel, who then guides the interview process.
As a result, an individual commissioner can wield enormous influence over the experience, and decision-making process, of his or her colleagues.
“At the end of the day, that person is responsible for conveying accurately and, hopefully, fully, the information contained in the file,” said James Ferguson, who served on the parole board from 2005 to 2018. “You are relying disproportionately on the lead commissioner to convey the proper information, to ask proper questions, and to do the proper follow-ups. Ideally, we would each have an opportunity to review each folder to our own satisfaction.”
Ferguson, a former administrative law judge and a prosecutor for the Bronx District Attorney’s Office, recalled that he would occasionally have to jump in and redirect the lead commissioner’s questioning if it veered into inappropriate territory, such as about a parole seeker’s prior charges that had been dismissed.
CANY recently sent out hundreds of surveys to people incarcerated across New York—state law provides the organization with unique access to prisons and the incarcerated population—in order to assess the experience of seeking parole.
The organization’s report notes that 68 percent of incarcerated people who responded to the survey said they did not believe commissioners had read their submissions. Nearly half said that they had less than 15 minutes to speak during the interview.
“The parole board commissioners basically get a few minutes to look at the parole application,” said Lorraine McEvilley, director of the Legal Aid Society of New York City’s Parole Revocation Defense Unit. “It’s just not enough time to make a reasoned decision and to go through everything. They’re short-changed of the opportunity to conduct a full review of the file before the interview.”
Sometimes, panels comprised of just two commissioners are used to free up other commissioners for additional interviews. If a two-person panel deadlocks on its decision, then a parole seeker must schedule yet another interview, clogging up the system even further.
DOCCS said that the current use of two-commissioner panels, which the Board of Parole had pledged to phase out nearly four years ago, “is not a staffing issue, but was done in response to COVID to protect staff and the incarcerated population.” Three-member panels will return in July, the department said.
If the panel denies an application for parole, the parole seeker may have to wait an additional two years for another chance at release.
In response to a request for comment, a spokesperson for Governor Andrew Cuomo cited the massive decrease in the state’s incarcerated population—from 72,773 in 1999 to 31,903 today—as a reason for maintaining the board’s 16-member head count.
“As the population declines, there has been a significant decline in the number of incarcerated individuals who are seen by the Board of Parole,” the spokesperson said. “Based on the number of board appearances, the Board is properly staffed.”
DOCCS echoed this viewpoint, telling New York Focus that the pandemic-era interviews represent the lowest caseload for the parole board in decades and that 60 percent of people in the department’s custody are not even serving a sentence eligible for parole.
Senator Julia Salazar, who chairs the Senate’s Committee on Crime Victims, Crime and Correction, framed the governor’s view as, in effect, disagreeing with the law that expanded the parole board to a 19-member body.
“He has failed to fully staff the board and has failed to appoint commissioners with a diverse range of backgrounds and experiences that we really need in order for the parole board to operate fairly and effectively,” she said. “The parole board should be fully staffed. People’s liberty depends on the board’s decisions and their ability to deliberate and exercise discretion.”
Preparing for the parole board interview often begins months in advance, when an officer known as an Offender Rehabilitation Coordinator interviews the parole seeker in order to prepare a packet of materials for the board’s review.
According to DOCCS, the ORC may also be consulted for advice and support, to allow the parole seeker to put his or her best foot forward in front of the panel of commissioners. Individual facilities often have training or educational materials available to help parole seekers familiarize themselves with the process.
A spokesperson for the department told New York Focus that the parole board has helped create “a DVD that individuals can use in preparation for their interviews.”
Nevertheless, these resources appear to be going unused. In CANY’s survey, 65 percent of parole seekers said they never participated in DOCCS-sponsored parole preparation.
“What’s there is old and antiquated,” said Tyrrell Muhammad, a project associate at CANY who was incarcerated from 1979 to 2005 and released following his third hearing with the parole board. “They might have a film on how to present yourself at the parole hearing, and it’s a Betamax tape recorder from the 1980s. They have all this stuff, but when you go in there and you see what they have, you say, ‘What the hell is this? I’m in the 21st century.’”
Parole seekers report lackluster experiences working with the rehabilitation coordinator to prepare for their interview. CANY found that incarcerated people more often turned to family members, successfully paroled friends, and non-profit organizations to figure out how to navigate the process.
“The ORC did nothing,” said Maureen Myles, who was denied parole following her September 2018 interview with the board. “She didn’t even fill out my paperwork. Her partner did.”
A retired parole officer and DOCCS bureau chief, who served in the parole system for decades and asked to remain anonymous in order to speak candidly about his experiences, said that much of the work performed by the ORC was redundant and wasteful.
He described how the ORC’s completion of the inmate status report often duplicates the work of the probation office, which prepares a similar document, known as a pre-sentence report, for the trial judge.
“The only thing that’s different in an inmate status report is you throw in the guy’s institutional adjustment, where the guy is proposing to live, and what he’s proposing to do for work. And then the board barely looks at it, it’s all nonsense,” he told New York Focus. “The time frames and the staffing in the facilities preclude the parole officer from sitting down with the guy and saying, ‘Okay, here’s how you put your best foot forward.’”
The process of interviewing with the parole board panel is terrifying for some, infuriating for others, and disappointing for many. About 40 percent of first-time parole seekers are granted release, according to data published by the New York State Assembly’s Committee on Correction, covering the first ten months of 2019. Release rates are lower for those who have previously been denied.
For advocates and parole seekers, the board’s decision-making process can be confusing and nebulous, though its decision is supposed to be guided by factors outlined in the law and in the board’s regulations.
The law requires that commissioners consider a parole seeker’s achievements, rehabilitation, plans for reentry into the community, and prior criminal history; the views of the victim of the crime; and the “seriousness of the offense.”
Despite this multitude of factors, the board often places a special focus on the “seriousness” of the parole seeker’s crime, an immutable element that can’t be overcome by rehabilitation or restitution. Given this emphasis, many feel like the board’s decision is something of a foregone conclusion.
“When someone is incarcerated for whatever crime that they’re incarcerated for, that’s never going to change,” said Felicia Henry, a research fellow at CANY. “If you have a process that is grounded in the nature of the crime, you really reduce the opportunity for folks who are going to the parole board to paint any alternative picture of themselves, or of the progress that they’ve made.”
Among survey respondents who were denied parole, the most common reason given was the “nature” of their underlying crime.
65 percent of those respondents said they felt hopeless following the denial of their parole application, and more than three-quarters said that a loved one had died since the board’s initial decision to deny parole.
Shu Hung Li, who is currently serving 15 years to life at the Otisville Correctional Facility in Orange County, told New York Focus about what it was like to appear before the parole board.
“My first interview was very intimidating. They asked me questions I didn’t know the answer to,” he said with the assistance of an incarcerated translator. “It almost seemed as though they were intentionally trying to get me to mix up my answers. It may have been due to the interpreter that they provided. The focus remained mostly on my current crime, and past crimes.”
Li’s experience with the parole board and its focus on the underlying crime mirrors the experiences of many others ensnared in the system. CANY points out that the seriousness of the original crime is already considered during the sentencing phase of an incarcerated person’s criminal case. Using this factor, again, as a basis for denying parole can have a recursive effect.
“The parole system is in many ways a snake eating its own tail,” said Alexander Horwitz, the executive director of New Yorkers United for Justice, a statewide coalition of criminal justice reform groups.
Li is far from alone in experiencing frustrations with the way the system addresses English-language barriers for non-native speakers. Ferguson said that when he first became involved with parole, corrections officers would act as interpreters for those in custody. He called such an arrangement a conflict of interest.
“If you’re a parole officer that may like or dislike a particular inmate, you may intentionally or otherwise, not interpret everything in the greatest light,” he said.
At Otisville, the same facility where Li is incarcerated, Ferguson recalled once witnessing a lengthy exchange between an interpreter and a parole seeker, at which point the interpreter turned to the parole board and translated the exchange more succinctly: “No.”
Appealing Parole Denials
Many incarcerated people appeal the board’s decision to deny them parole. In 2017, the Appeals Unit opened 2,772 cases, a number that includes appeals of decisions to revoke parole for those who have already been released.
However, incarcerated people seeking to challenge the board’s decision often encounter a major barrier to the appeals process: the Appeals Unit only issues recommendations, which can be accepted, or rejected, by another panel of commissioners.
Often, the best-case scenario is a do-over interview, known as a de novo hearing.
“I’ve never seen an appeal get a guy released, but it might get a guy a new hearing,” recalled the longtime parole officer. “But normally, because the holds are so short, the appeals don’t have enough time to matter.”
Li, like many of his peers, decided to take the board head-on. After yet another decision to deny release in October, 15 years into his potential life sentence, he sent his case to the Appeals Unit. In CANY’s survey, only 11 percent of those who returned the questionnaire said they had succeeded in obtaining a de novo hearing.
Li’s appeal had a special significance. For incarcerated people serving a life sentence, parole is effectively the only way to obtain release from prison.
This year, in two short paragraphs, the Appeals Unit rendered its determination on Li’s case. Bucking the trend, he secured a small victory: “a de novo interview is warranted.” Li’s case was remanded back to the board, albeit a different panel, for reconsideration.
And just as it had before, the board denied Li release from prison. He plans on appealing that decision, again.
“The de novo interview seemed very hostile, and demeaning. They did not do much different than the previous interviews,” he reflected. “Again, the interpreter that they had did not do a good job translating exactly what I was trying to say. It was a terrible feeling being denied.”
The Appeals Unit may also fault a parole seeker for their case management skills. After the parole board denied Dwayne Pulliam release in July 2019, the Appeals Unit upheld its determination, despite Pulliam’s argument that the board relied on a predictive algorithm that had incorrectly calculated his risk of relapse into drug abuse.
These kinds of algorithms are common throughout the criminal justice system. In Pulliam’s case, the Appeals Unit admonished him for failing to “raise this alleged deficiency” during the initial interview.
But Pulliam, like all of his parole-seeking counterparts, was hamstrung in his efforts to challenge any irregularities before the panel of commissioners. Incarcerated people are not allowed to be represented by an attorney during the parole board’s interview.
“When you have erroneous documentation in your record, an attorney could use his authority to get that stuff removed,” said Muhammad, the CANY associate. “There are certain things an attorney can do that they’re not going to allow the person who’s in that room to do.”
DOCCS disputed the nature of the interview process as characterized by the individuals interviewed for this story and the incarcerated people in CANY’s survey.
“Each panel conducts conversational interviews as neutral decision makers, not adversarial hearings as interested partisans,” the department said. “There is no legal right to counsel nor unlawful deprivation of due process. Additionally, transcripts of all interviews and decisions are available for public and judicial review regarding the tone, quality and legal sufficiency of both.”
In the remaining days of the current legislative session, criminal justice reform advocates have emphasized three proposals—Fair and Timely Parole, Elder Parole, and Less is More—that would overhaul the way the parole system operates.
The challenge, now, for advocates is the advancement of three separate parole reforms that are competing among themselves and with other major legislative proposals inside the State Capitol.
Each of the bills would address a different aspect of the system that has until now languished behind other criminal justice priorities. Fair and Timely Parole, if enacted, would rein in the board’s discretion to deny parole, instead shifting the burden on the commissioners to demonstrate why a parole seeker would pose a threat to the community in order to sustain a denial.
The bill would not remove the “seriousness of the offense” factor from the parole statute, but it would prohibit commissioners from looking to the underlying crime “solely or primarily” as a basis for their decision.
Elder Parole would offer incarcerated New Yorkers older than 55 years of age a chance to obtain parole if they have served at least 15 years of their sentence and have not yet become eligible for their first interview.
RAPP, the parole reform advocacy organization, has focused its efforts on these two bills. Jose Hamza Saldaña, the group’s director, said that he believes these measures would target much of what plagues the parole system in an effective and efficient way.
Ferguson argued that some of the changes proposed by the legislation would go too far to reject the judgement of the original legal proceedings.
The third bill, Less is More, focuses on those who have already been released by the parole board. It would reduce the use of reincarceration as a response to technical violations of the parole program’s strictures, such as missing curfew or testing positive for drugs.
Today, 41 percent of all new admissions into New York State prisons come from individuals charged with violating parole or other form of post-release supervision, according to a report from the Bureau of Justice Statistics, a division of the U.S. Department of Justice. Horwitz contends that the process has been transformed from “a state-sponsored system of reentry to a re-incarceration machine.”
The retired parole officer who spoke with New York Focus described fundamental flaws in the incentive structure for supervising parolees.
“There are a lot of really smart people high up in parole, and some of them share my thinking, which is like, ‘Boy, we’re really messing this up. We’re putting up more roadblocks. We’re not doing what we were intended to do,’” he said.
Saldana said his coalition has the support in both chambers to pass the measures. The only question now, he said, is whether they will be put to a vote.