Blog

By Jill K. Sanders, Esq.

If you have a loved one in prison, you may often think about if there is any way for him/her to be released from prison early. One way for your loved one to get home sooner is for him/her to have a successful parole board appearance. Understanding how early release works in New York is an important step in helping the likelihood of parole being granted.

What is Parole?

Early release to parole means an inmate has been released before he/she has completed the maximum sentence. The parolee must abide by terms and conditions of his/her release while completing the sentence while living in the community. If the parolee violates a term or condition while living in the community, he/she can be returned to prison.

New York has several different types of parole, including discretionary, merit time, medical parole (also called “compassionate release”), shock incarceration, and early release for deportation. In this blog, we’ll be discussing discretionary parole, which considers an inmate’s good conduct along with several other factors (described below).

Who Is Eligible?

New York has two types of sentences – determinate or indeterminate. A determinate sentence is sometimes called a “flat” sentence. This means that the inmate will serve a specific amount of time (i.e. 5 years). If an inmate meets certain criteria, he/she may be eligible for something called conditional release as determined by the Time Allowance Committee (“TAC”). New York also imposes a period of post-release supervision (“PRS”) to follow all determinate sentences. Inmates with determinate sentences are not eligible for parole.

An indeterminate sentence is a sentence that consists of a range of years (i.e. 5 to 10 years). This means that the inmate will serve a minimum (i.e. 5 years), and after the minimum amount of time has been served he/she is eligible for early release to parole supervision. If he/she is denied early release, he/she can be held in prison to the maximum expiration of the sentence (i.e. 10 years). When the inmate is released, he/she will be on parole supervision in the community until the maximum expiration of the sentence.

New York’s Procedure

In New York, there is a pre-board interview with a DOCCS staff member. Thereafter, there is a panel interview where there are two to three members of the Parole Board. This should occur at least one month prior to the potential release date. An attorney or advocate can help an inmate in preparing a packet, submitted in advance to the Board, to demonstrate why early release should be granted.

The Board considers the following factors, among others:

• The inmate’s behavior while incarcerated, including any disciplinary infractions
• His/her programming record, including education, treatment/therapy, and vocational programs
• An review of the inmate’s criminal history and issues which contributed to his/her offending behavior
• The future plans and goals of the inmate
• The facts of the current offense
• Statements of the victim(s)
• Recommendations from the sentencing court, the prosecutor, and the defense attorney
• Any aggravating or mitigating factors
• The results of a risk assessment
• The inmate’s release plan, including community re-integration

To grant early release to parole supervision, the Board must find that (1) the inmate will live and remain at liberty without violating the law; (2) early release will not harm society; and (3) early release will not deprecate the seriousness of the crime or undermine respect for the law. If the inmate has received a Certificate of Earned Eligibility (meaning he/she has completed certain programming), the Board will presume the inmate will likely live and remain at liberty without violating the law, and will not consider whether early release would deprecate the seriousness of the crime.

A written decision will be issued by the Board, and if the inmate is granted early release to parole supervision, the Board will provide a list of terms and conditions which the parolee must abide by while being supervised. An inmate can appeal from the denial of early release. Upon release, a parole officer may impose additional terms and conditions upon the parolee.

Criticisms of the Parole Board

The Board has come under fire for refusing to release inmates, citing the facts of the offenses, even where those inmates demonstrated rehabilitation while incarceration. In 2016, inmate John Mackenzie committed suicide after being denied parole 10 times. During his more than four decades in prison, he had earned three degrees, participated in numerous programs, and, created a program in the memory of his victim whereby victims could speak directly to inmates about the impact of their crimes. Mackenzie had been convicted of killing a police officer during a burglary.

Yet in other cases, the Board has released inmates, even with vehement opposition from victims’ families and friends. In 2018, Hermann Bell, who had killed two police officers, was released despite the please of the NYPD’s Patrolmen’s Benevolent Association.

Another criticism has been whether a prosecutor’s recommendation weighs too heavily in considering whether to grant or deny parole. Some prosecutors see themselves as advocates for victims and not “ministers of justice,” and will provide the Board with strong recommendations to not release inmates. While a prosecutor’s role to help the Board make accurate factual and legal decisions is important, whether a prosecutor should make a recommendation as to release is hotly debated.

References:

• Executive Law §§ 259 et seq.
• 9 N.Y.C.R.R. Part 8000
• NYS Department of Correction and Community Supervision, New York State Parole Handbook (November 2010). Available at: http://www.doccs.ny.gov/Parole_Handbook.html (last accessed November 2, 2018).
• Mara Sanders, ed., “Chapter 32 – Parole,” in A Jailhouse Lawyer’s Manual, 11th Edition (2017). Available at: http://jlm.law.columbia.edu/files/2017/05/44.-Ch.-32.pdf (last accessed November 2, 2018).
• Michael Cassidy, “Undue Influence: A Prosecutor’s Role in Parole Proceedings,” Ohio State Journal of Criminal Law (forthcoming). Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3247326 (last accessed November 2, 2018).