by John E. Dannenberg
The U.S. District Court (S.D. N.Y.) denied the New York State Division of Parole's ("Board") motion to dismiss a civil rights complaint brought by ten New York state prisoners who alleged that their repeated denials of parole were the result of an unconstitutional political policy orchestrated by the Board and co-defendant Governor George Pataki. The denial order permitted the case to proceed on the prisoners' due process, equal protection and ex post facto claims. The court is treating the case as a class action for all parole-eligible New York state A-1 violent felony prisoners.
Peter Graziano and nine other named prisoners sued the Board and Governor to contest not the outcome of their parole hearings, but the procedures used by the Board. This avenue of prospectively challenging unfair parole policies was recently approved by the U.S. Supreme Court in Wilkinson v. Dotson, 544 U.S. 74 (2005). The plaintiffs alleged that a politically-motivated predisposition to deny paroles rendered the hearing process arbitrary and capricious, in violation of due process of law; treated them dissimilarly with respect to the laws compared to non A-1 offenders, in violation of equal protection principles; and was applied to prisoners whose crimes predated the application of the purported sub rosa blanket denial policy, in violation of the Ex Post Facto Clause.
The due process complaint was unique because it did not challenge the way that the Board exercised its discretion; rather, it alleged that the Board was actually not exercising its discretion at all. The court distinguished the instant case from all earlier parole-challenge cases in that the class of all such prisoners could arguably demonstrate an illegal policy, whereas individual plaintiffs could only challenge their own unique facts. The class here alleged statistical trends, recurring pretextual "reasons" for denials, and a common thread of reliance solely upon the facts of the crime [versus New York state's statutory rehabilitation criteria (Exec. Law § 259c(4))]. [C.f., Phillips v. Dennison, Manhattan Supreme Court No. 103509/06 (September 29, 2006)].
Thus, while New York A-1 violent felons have no statutory liberty interest in parole, they do yet have a liberty interest in not being denied parole for "arbitrary or impermissible reasons" (citing Barna v. Travis, 239 F.3d 169, 170-171 (2nd Cir. 2001)) that are not in accord with statutory criteria. Since a single denial "does not a policy make," it took a group attack to gain the federal court's jurisdiction.
The district court went on to similarly find that the group stated equal protection and ex post facto claims, although noting that success on the merits might prove difficult. Indeed, as an F.R.Civ.P. 12(b)(6) motion denial, this decision is clearly not a ruling on the merits. But it carries a message to lifers in all states, even where there is no state-law-created liberty interest in parole, that they may yet prospectively attack the patently unfair (and usually politically instigated) no-parole policies that have become a suspect national disease in the past decade. See: Graziano v. Pataki, 2006 WL 2023082.
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Related legal case
Graziano v. Pataki
|Cite||2006 WL 2023082|