by John E. Dannenberg
The administration of Governor George Pataki has dramatically cut parole release rates for violent felons, especially those with A-1 crimes (e.g., murder, attempted murder, kidnapping, arson). Where 23 percent of New Yorks parole eligible A-1 felons were released in 1992-93, only 3 percent were approved in 2004-05. The restriction is not the result of any change in statutes or regulations, but is due to the dramatic change in exercise of discretion by Patakis increasingly carefully culled appointees to the parole board.
New York has the nations highest percentage of prisoners sentenced to life-top terms (20 %), none of whom can be released unless and until the board says so. The Governor does not enjoy veto power over the board in New York, but his personal (read: political) views nonetheless carry the day via public reprovals and new appointments. For example, former political prisoner Kathy Boudin was convicted of second degree felony-murder after three deaths during a 1982 Brinks armored truck heist. When she was approved for parole in 2003, Pataki angrily replaced longtime Board Chairman Brion Travis in a matter of months. No controversial paroles have been granted since.
The grass-roots citizens organization Coalition for Parole Restoration complains that the system has no accountability and no real avenue of judicial review. If a prisoner challenges his parole denial, it takes two years to get through the appeals system. But also in two years, the prisoner will automatically have another parole hearing. George Oliveras (who was eventually released after serving 27 years on a 25-life term) made it to the appellate courthouse steps four days before his subsequent hearing, only to have the court moot his petition. [Note: Mootness should be challengeable here because the issue is capable of repetition yet evading review.]
Career criminal Alfred Mancuso, 72, got 25-life in 1978. Yet, with a clean prison record and claims of innocence, he has been denied parole every two years for the last 16 years. The bottom line is, they are afraid of Governor Pataki. Every time they grant someone parole, [Gov. Pataki] comes out against it in the newspaper. I ... believe they are afraid of the repercussions, he said.
Albany Supreme Court Justice Edward Sheridan noted that the governor has repeatedly called for the elimination of paroles. The judge used this in his 2003 ruling wherein he found an undeniable inference that the Board has gotten the message and is implementing executive policy. Alfred OConnor, counsel for the New York State Defenders Association, noted that the newer restrictions are being applied unfairly to those who plea-bargained earlier to get a more lenient term. Brian Jacques, who plea-bargained for 15-life for a murder in 1983 expected to be released in 15-17 years; indeed, the sentencing judge gave him the minimum sentence.
Today, with a clean record and 23 years in, he is still in the dark as to when he might be released. He believes the board is following Patakis agenda, do not let these people out.
Most board members declined interviews or to answer phone calls on the subject. Chauncey Parker, Governor Patakis director of criminal justice and who is over the board, does not deny that the board shares the governors philosophy and follows his agenda to the extent legally permitted. The board can place any weight on any factors and does not have to explain itself to anyone. The current agenda is to simply lay the denial of parole to the seriousness of the crime, an unchanging and subjective factor. The governors focus [is on] public safety, Parker said. But retrospectively imposing an arbitrary sentencing system is fundamentally unfair, OConnor complained.
Yet Mr. Parker states that Governor Pataki favors going to the federal system, where life sentences mean life without the possibility of parole. He would then leave all other sentences to the discretion of the judge, to be rendered as determinate terms in effect eliminating the board. In New York, the 1995 Sentencing Reform Act eliminated parole for second felony offenders; Jennas Law in 1998 abolished parole for all violent offenders and added a post-release supervision program. Only non-violent, non-drug offenders receive an indeterminate (but non-life-top) sentence in New York now. Yet, the rate of parole of even those offenders has dropped from 5,196 to 386 in the last decade.
New Yorks legislature seems stumped on what to do. They have looked at sentencing reforms, but cant come to a consensus when political careers are in tension with concerns for the burgeoning prison budget. Meanwhile, triple murderer Gerald Balone, who is serving a 25-life sentence, has completed all the vocational and rehabilitation programs offered in his three decades in state prison. As to getting out, he is no less baffled than the legislature. I am at a loss, he lamented. I dont know what to do.
Source: New York Law Journal
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