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Analysis on Prison-Parole Reform StrategyDear Friends and Supporters:As many of you may have heard on June 17, 2014, I was again denied release on parole for the 8th time. Obviously, efforts to change the parole system is not gaining significant or measurable traction. This is especially daunting when considering of the two dozen prisoners appearing before the parole board on June 17, 2014, none were granted parole. While there have been strides made to raise public consciousness and interest in the need for prison and parole reform, it has not translated into unified and uniform actions resulting in a substantial change. It appears the myriad voices on the subject and the diverse "pet projects" have weakened the potential for a statewide determination.
When statuary language is absent of "certainty" and "definiteness" it can be categorized as vague. A quick reading of this language presents two specific concerns, the word "Discretionary" and "Deprecate". Each presents a problem of the lack of 'certainty' and 'definiteness' in the parole decision- making process. For example, at what time or circumstances does any "crime" no longer "deprecate the seriousness of his crime as to undermine respects for the law?" The Record is replete with decisions in favor of release for one inmate for the same crime, same criminal history, similar circumstances and exact same sentences, and denied to others. The question then is at that point does any crime no longer deprecate the seriousness of the crime? The answer is left to the "discretion" of parole commissioners. On this topic, in a criminal appeal People v. Stuart, 100 N.Y.2d 412, the court made this statement: "[A] 'statute which either forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at tits meaning and differ as to its application violates the first essential of due process of law'" (id. at 419, 765 N.Y.S. 2d 1, 797 N.E.2d 28, quoting Connally v. General Constr. CO., 269 U.S. 385 , 391, 46 S.Ct. 126, 70 L.Ed. 322 ). A two-part test is used to determine whether the statute in question is sufficiently Definite to give a person of ordinary intelligence fair notice that his [or her] contemplated conduct is forbidden by the statute" and "[s]econd, the court must determine whether the enactment provide officials the court must determine whether the enactment provide officials with clear standards for enforcement". Given this understanding of the law, clearly the language of this statute is "vague", whereby the mere application voids 'certainty' and 'definiteness'. Since there is no certainty or definiteness in the parole decision-making process, leaving decisions to the "subjective" discretion of parole commissioners. As recently learned by the Evan's Memo fiasco, and the parole board ignoring the legislative intent to amend the procedural process, in can be stated the language in the law is by definition statutorily vague.
So, what is the remedy? Obviously, the law has to be changed, or at minimum the language amended to produce "certainty" and "definiteness" that include equitable and just parole release decisions. Needless to say, there is a plethora of material and statistical evidence that provides the greater probability for decisions that inform, "if such inmate is released he will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society and will not so deprecate the seriousness of his crime to undermine respects for the law." Unfortunately , that information is not being used by parole commissioners, as their "discretion " is not guided by such principles. Therefore, I propose a statewide unified determination demanding the passage of the Safe Parole Act which would eliminate some of the vague language in Executive Law S259i. So, I will here pose the question, why haven't New York State parole reform activists unite to forge a statewide strategy for the passage of the Safe Parole Act?
2) The Second point is the composition of the parole board. It is well known the parole board is top heavy with those whose former careers were to capture, prosecute and incarcerate criminals. For them to now be deciding who will granted release on parole is a diametric contradiction. It is analogous to having the wolf gaurd the hen house, not a fox- a WOLF! When the parole board comprises such characters like, the unknown "conservative" W. Smith, a former director of the Crime Victims Board, coincidentally, whose alleged two terms on the parole board have expired yet he continues to preside; the former Suffolk County prosecutor, E. Elovich, who consistently brandished her prosecutorial demeanor in parole hearings; and Sally Thompson, a former NYPD officer and detective, and current card carrying member of the Fraternal Oder of Police and the Detective Endowment Association, we should not be surprise so many qualified candidates for parole are denied. This reality speaks directly to the need for direct action demanding revamping of the parole board.
In this regard, NYS parole reform activist should identify individuals form the community who would be prime candidates to be parole commissioners and actively/aggressively promote their appointment to the parole board. Such NYC candidates may be selected form the Fortune Society, Osborne Association, Correction Association, Center for Constitutional Rights, Legal Aid Society, Prisoners' Legal Services and Riverside Church Prison Ministry. They and others should be considered as qualified candidates, and from upstate NY, perhaps Buffalo University Law Professor Theresa Miller, or Rochester attorney/activist Cheryl L. Kates, or Syracuse attorney/activist Alan Rosenthal, may be considered qualified candidates to be appointed to the parole board.
Here, I would urge the choosing of two NYC and two upstate candidates for this purpose. For the parole reform community to vet such candidates, and then formulate a campaign to persuade Governor Cuomo to appoint them as parole commissioners. This also means it will be necessary to identify State Senators on the Crime and Corrections Committee, and persuade them to confirm these appointments. In this way, the potential to shift the balance of the parole board to a more equitable composition is possible. This direct action will ensure a more fair and just decision-making body and process for parole release considerations.
In NYS we are confronting a backward and archaic parole system. While some activists with their "pet projects" are functioning on the periphery of the problem, buy pruning their tree unable to see the forest, we recognize their good laudable intentions. But for as long as the language of Executive Law S259i remains the same, and the composition of the parole board remains the same, like hamsters on the wheel, to the dismay of those suffering from multiple denials, it is not expected they will be going anywhere fast.
Under the prevailing circumstances, I felt compelled to offer my insights into the general prison/parole reform efforts in New York State. When the parole board can continue to deny parole to two dozen prisoners, many with multiple denials and meeting all of the prerequisites to be granted parole, with impunity; meaningful response from the community opposing parole boards actions, it is time tor re-evaluate and reassess the tactical and strategic initiatives for parole reform. It is time to stop treating the headache with heroin, and make every effort to remove the tumor.
I ask that these concerns are widely distributed and discussed. I firmly believe you will agree, when there is a consolidated and united campaign to challenge these two specific areas, the status quo will take notice, and your efforts will not be ignored. I welcome constructive criticism in order to ensure we all are on the same page, seeking to build a unified and uniform statewide determination for prison and parole reform.
Let's Build NYS Coalition for the Passage of the Safe Parole Act!