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Deal to Reconsider 1,000 Paroles Scotched When New York Governor Capitulates Over Cop Killer’s Case

by John E. Dannenberg

Faced with a pending federal class action lawsuit brought by New York state prisoners seeking relief from being denied parole based solely on the nature of their crimes, then Governor Elliot Spitzer was ready to order the Parole Board to reconsider the cases of 1,000 Class-A violent felons. However, when the Board approved parole in the controversial case of cop-killer Shu’aib Raheem, a police union evoked such a public outcry that on February 8, 2008, Raheem’s case was set for rescission while the Class-A parole rehearings were put on ice.

Raheem was convicted in the 1973 murder of 29-year-old Williamsburg police officer Stephen Gilroy during an armed robbery and two-day siege of a sporting goods store. He was sentenced to 25 years to life. That vicious crime apparently ended his career of violence, as thereafter he became a model prisoner – earning college degrees and working as a paralegal and AIDS counselor. He planned to live with his wife while working and mentoring at-risk youth following his release.

Based upon Raheem’s excellent institutional record, and Board rules requiring evaluation of a prisoner’s rehabilitation, he was granted parole in November 2007. Caught by surprise, a Patrolmen’s Benevolent Association police union became incensed and sprung into action. The union embarked on an opposition campaign, encouraging local tabloid newspapers to run inflammatory articles against then Gov. Spitzer declaring him “soft on crime.” According to New York parole records, 40 violent felons were granted parole during the first year of Spitzer’s tenure plus 185 on rehearings, versus 20 released on parole and 128 on rehearings during the last year of his predecessor, former Gov. Pataki.

Spitzer had agreed to parole a larger number of prisoners because he feared the class action suit would win broad release for thousands. As a compromise deal worked out behind the scenes, Spitzer had agreed in principle to have 1,000 Class-A felon cases reheard on the merits by the Parole Board. However, after Raheem’s case made headlines and news of the settlement was leaked, Spitzer pulled the plug on the deal and ordered the Attorney General’s office to put the prisoners’ lawsuit back on track for trial. Curiously, when Spitzer was the state’s Attorney General under Gov. Pataki in 2006, he had defended against the same class action parole suit.

Such “tough on crime” antics, however, were inconsistent with Spitzer’s recent national exposure for having participated in an expensive prostitution ring – a revelation that resulted in his public humiliation and resignation as Governor in March 2008. Notably, in his former position as Attorney General he had prosecuted cases against prostitution rings, including a 2004 case where his investigation into a New York City escort service led to 18 arrests. Apparently he took notes ... and perhaps phone numbers.

While no rehearings occurred in the 1,000 Class-A felon parole cases due to the scotched settlement, the lawsuit continues. In an Order dated December 5, 2007, the U.S. District Court approved class certification for violent felons who had been denied parole, and appointed attorneys Robert Isseks, Alex Smith and Peter A. Sell as class counsel.

The case will proceed on the prisoners’ complaint that the Parole Board unlawfully eliminated or curtailed its discretion when making parole decisions, due to political bias. A principal factor in the case will be statistics showing a parole rate of only 8.6% in the past dozen years. The remedy sought in the suit is unbiased parole rehearings – a form of prospective relief available under Wilkinson v. Dotson, 544 U.S. 74 (2005).
If successful this case could have national precedential effect where parole board “discretion” is challenged as being politically constrained. See: Graziano v. Pataki, U.S.D.C. SD NY, Case No. 06-cv-00480-CLB; 2007 WL 4302483.

Ironically, it was reported in July 2008 that due to a sentencing “glitch” the number of violent felons released without parole had almost doubled in less than a month. Following a Court of Appeals ruling in April, it was determined that some prisoners held on parole violations had not been properly sentenced to parole supervision in the first place, and thus must be released. See: Garner v. NY State Dept. of Correctional Services, 10 N.Y.3d 358 (N.Y. 2008); 2008 WL 1860082.

New York lawmakers have since passed legislation to remedy the “glitch” by requiring judges to re-sentence prisoners if their original sentences did not include post-release supervision.

Additional sources: The Village Voice, Associated Press, Ithaca Journal, New York Times

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Related legal cases

Garner v. NY State Dept. of Correctional Services

Graziano v. Pataki