Commentary on Parole
written by:
Edward Hammock
former Chairman of the NY State Board of Parole
and
James Seelandt, Client Advocate
with the Bronx Defenders

In order to give our viewers a solid understanding of the New York State Sentencing laws and how it is applicable in the scheme of parole, we are publishing portions of an article called “New York’s Sentencing and Parole Law," written by Edward Hammock, former Chairman of the New York State Board of Parole, and James Seelandt, Client Advocate with the Bronx Defenders. 

Artwork by Germain Santana, a very talented NYS Prisoner
Click on image for more information on the artist!

The article below was published in the St. John’s Journal of Legal Commentary (Vol. 13: 527).

Sentencing Law In New York State

Imposition of a sentence upon conviction for an offense is a judicial function.  The exercise of judicial power in this regard must be performed free from outside pressures and is closely delineated by legislation.  Ideally, a court exercises its sentencing authority only after careful consideration of all the facts available at the time of sentencing.  Hence, not unlike the task of the Parole Board, the trial court must also balance conflicting concerns to take into account, among other things, the crime charged, the particular circumstances of the individual before the court, and the purpose of a penal sanction, i.e., societal protection, rehabilitation, isolation, retribution and deterrence.  In practice, the instances where a court can exercise full sentencing discretion are those where there is a conviction after trial or a plea to the indictment.  At this juncture, for the benefit of those less acquainted with “sentencing law,” some definitions are a brief analysis of the typical sentence seems in order.

In cases where an indeterminate sentence had been imposed, that sentence is composed of two numbers, usually set by statute.  The first number represents the “minimum term” of incarceration.  That is, the statutory minimum amount of time which must be served by an inmate before achieving parole eligibility.  The minimum term, by law and definition, is a penal sanction  which is commensurate with the perceived severity of the crime.  The second number of an indeterminate prison sentence is the “maximum term” of imprisonment.  The “maximum” is actually the point at which the sentence expires and the inmate must be released from confinement or discharge from parole, whichever condition is complied with first.  The sentencing judge selects minimum and maximum terms of imprisonment from a range of possible sentences prescribed by the legislature for the particular offense.  The sentencing judge determines the ultimate question of an appropriate sentence for the offender, based on a number of criteria including, but not limited to, the seriousness of the offense, the social history of the offender, and any aggravating or mitigating circumstances unearthed during the trial, plea or sentence proceedings.  Also factored into this judicial determination are any memoranda submitted by the probation department and the recommendations made by the District Attorney and the defense counsel.

In meting out a sentence, a judge gives express or implied guidance to a future Parole Board as to how the offense is the be viewed.  First, we will consider what is implied by a judge who is silent as to a sentence that has been imposed.  We will also consider the impact of a judicial “recommendation.”

Whether a judicially imposed sentence constitutes that statutory minimum or maximum – or anywhere within that range – is of no import. The fact remains that, absent express guidance from the sentencing court, it must be presumed that the term ultimately imposed was determined upon evaluating all relevant factors, and that it was therefore appropriate.  Accordingly, in the rare instance where a sentencing judge finds that the sentence imposed is inappropriate, the record will certainly reflect as much.  A reasonable inference to be drawn, then, is that, if due consideration has been given by the court to the length and type of sentence imposed, parole release should occur at the first instance of eligibility.  Under this theory, there should be a presumption that the inmate’s institutional programming and disciplinary record suggest that release to parole supervision is appropriate.  What the board should be doing is making the release assessment is determining the overall comportment of the inmate during the period of incarceration.  In addition, when the minimum term has been served, the Board should concern itself primarily with the inmate’s rehabilitation.  In such cases, since parole would not deprecate the seriousness of the instant offense, parole should be granted at first eligibility.  Such a decision would be appropriate because as it has been argued above, a penalty commensurate with the severity of the crime charged has already been paid for.  To hold otherwise would contravene the sentencing policy of this state as set forth by statute.

Given the strong presumption of correctness inherent in any sentence, the Board of Parole should give due deference to a sentencing judge’s “recommendation,” placed on the record.  Of course, absent ambiguity, any recommendation made by the sentencing court must be interpreted by the fair import of its terms and should not be second-guessed.  In that regard, the Board, in deferring to the sentencing court’s discretion, must logically reconcile its release decision with that determination.

The Prison System And Parole

Crime victims and their families are among the most fervent supporters of the abolition of parole.  The press and politicians continue to agitate public sentiment for the maximum confinement of the violent felony offender.  This is furthered by a state prison system which today provides few of the rehabilitative resources which were in place prior to this governor’s leadership of the state. Apparently, no serious thought has been given to the fact that these men and women have been sentenced to serve out their prison terms in the ostensible hope of being “rehabilitated”.  As a consequence, vocational training, graduated release, college programs, and even such basic necessities as a GED diploma, have either been severely curtailed, or eliminated completely.  The clear result of these limitations is a protracted stay behind bars with little or no opportunity for educational and skill acquisition available to increase the prospects for success after release.  This result appears to be in direct contravention of the criteria for parole release outlined in Executive Law section 259-i, providing that the Board must consider the applicant’s institutional record, including “program goals, academic accomplishments, vocational training or work assignments… release plans including community resources and employment…”

To be sure, the foregoing mandate actually renders the parole evaluation a contradiction in terms, for not only has the Department of Correctional Services severely cut educational and vocational training, the Board, in many cases, fails to adequately consider this information in the first place.  According to statistics released by the Division of Parole in 1995, release to parole supervision has been severely curtailed.  Those convicted of homicide have release rate of approximately 20%, robbery 61%, burglary 64%, assault 38% and rape 4%.  Since the beginning of 1997, those rates have continued to drop even further, particularly when the budget crisis in the state legislature and senate created a demand for prison cells, thereby making parole release a perverted political tool in the equation.  According to former State Criminal Justice Coordinator Paul Schectman, “the board has come to appreciate a fundamental principle of this administration: violent offenders should not be released early.”

Not only does this political policy subvert due process and equal protection guarantees, it also ignores the fact that the Board of Parole in the State of New York does not release an inmate from his sentence early.  There is a popular public misconception known as “early” release to parole, and only the “Shock Incarceration Program” may deduct time form the minimum period of imprisonment for carefully screened non-violent offenders completing its requirements.  Ideally, the minimum term of imprisonment represents the precise time when a rehabilitated inmate should be released, but there is no “early” release on parole in New York State.  An inmate can only be released after serving the full minimum term of imprisonment.

Hence, the minimum term is that period of time that must be served in full, before parole can be considered.  It is actually a period of parole “in-eligibility.”  The maximum term of an indeterminate sentence provides the state with a safety zone, by which a “hold” of up to twenty-four months may be applied by the Board if it appears that the inmate has not been fully rehabilitated after the expiration of the minimum term.  The “conditional release” is that date upon which the inmate may be released, upon completion of two thirds of the maximum sentence, with one third of the sentence deducted from the maximum term for good-time credit.  In contrast, the “max” date also acts as a deterrent from bad behavior because it represents a substantial portion of the time an inmate owes, which the inmate otherwise remains legally subject to serve.  In this way, the loss of good-time credit from the conditional release date, and service of the “max” date, acts as the catalyst for an inmate to “try” for rehabilitation, often successfully.

Though often misunderstood, parole supervision serves the general public by fulfilling a number of important functions.  First, it ensures that supervision takes place and helps minimize the risk that ex-offenders will commit new crimes.  While in prison, planning for parole release serves to motivate inmates to adjust their behavior and acts, as an incentive to take part in treatment programs. Movements to abolish parole disregard the fact that an increase in parole supervision, designed to help inmates succeed, actually enhances public safety, since continued confinement of a rehabilitated individual beyond the minimum term no longer serves a legitimate state interest.  Secondly, parole supervision saves tax dollars and can prove to be a far superior means of helping the offender make a smooth transition back to a lawful lifestyle, thus ensuring the safety of the community at an affordable cost.

The Board must assess whether the inmate “will live and remain at liberty without violating the law,” thus the Board is faced with the difficult task of predicting propensity for criminal behavior.  The Board must also determine future criminality, based in large part on indicators that are not in the record.  The complex matrix of information before the board must be logically reconciled with statistics of successful parolee profiles, as well as the previous criminal record (if any) fitting a recidivist profile.  In many cases today, this information simply is not considered.  Further aggravating this fact is the Board’s tendency to disregard the “guideline time range,” thereby creating inequities as to prison time for specific offenses and offenders.  Adherence by the Board to its guidelines was intended to assess, to the extent possible, that similar offenders would serve about the same amount of time prior to release.  Ideally, the Board’s release guidelines should be adhered to, because in effect, the Board, determines how long convicted offenders stay in prison.  The categories of the release guidelines were established to make the parole decision, including the fixing of minimum periods of imprisonment or ranges thereof  “for different categories of offenders.” It is unfortunate that today, the guidelines are completely ignored in most cases and have not been revised since 1985.

The inequity lies in the fact that, because the release guidelines are discretionary, reviewing courts will not intervene when guideline time ranges for specific offenses are exceeded.  If the guideline time range were adhere to, in contemplation of the legislative intent of its implementation, the range would serve to enhance parole as a legitimate way of controlling prisoners; i.e. well behaved inmates would more likely be released within the scope of the appropriate time range.  It is therefore obvious that the guideline time range and the current pace of parole denials have yet to be reconciled.  If the Board does not use or even recognize the guidelines, then the board should change them or abandon them.  It should not, however, ignore the guidelines by encouraging activist parole board members to accomplish goals that even the governor has failed to push for legislatively.

Once an inmate is placed under parole supervision, parole officers offer counseling, referral and job-finding services, and a parolee’s conduct while under supervision is governed by a written agreement.  The violation of such an agreement can result in revocation of parole and re-imprisonment.  Parole is thought of as performing a shielding function for society: it is aimed “at helping the parolee and supervising his adjustment to society while at the same time protecting society.”  Yet, despite the fact that Department of Justice statistics indicate that young, long-termers (those serving lengthy minimum terms) who educate themselves in prison are less likely to become repeat offenders, the Board is simply not paroling them.  The Board can never square its failure to apply the guideline time range to minimum sentences which, in large measure, surpass them.

With the current pace of parole denials quickening, and the total number of convicted offenders entering the prison system today on the rise, parole is used perversely to exacerbate the overcrowding of prisons.  This results in unnecessary construction and expansion of the prison industrial complex, with no appreciable gains to the taxpayers or the criminal justice system.  The current controversy over parole continues to be a politically motivated and distracting sideshow from the war against violent crime.  In the meantime, the New York State prison population swells by the thousands every year.  If the safety valve of parole is eliminated, the State will be forced to reevaluate its sentencing policies.  In the process, the state will be confronted with the hard choice of reducing the length of prison sentences imposed under the Rockefeller drug and other laws, or building new and expensive prisons.

Many criminal justice experts have called for drastic changes in the Rockefeller drug laws, which have resulted in surging prison cost and quintupled the number of prison inmates since their enhancement twenty-five years ago.  For example, according to the Correctional Association of New York, between 1981 and 1996, the state prison system grew by as many as 39,651 beds, at a coat of nearly $4 billion dollars.  And yet, the option of parole has not been propitiously utilized to temper the dynamics of prison expansion, which requires the ever-burgeoning expenditure of tens-of-millions of dollars in additional annual funding.  It is hardly disputable that such funding would be better spent on education and prevention programs, drug treatment centers, the development of early release programs and social service programs in the main.

Governor Pataki’s recently published prison plan calls for a major expansion of the state prison system, requiring $635 million tax dollars to build an additional 3,500 maximum-security prison cells.  The legislature and Assembly reached a compromise and allocated almost half of those funds needed for half the number of prison cells requested, the other monies going to various social service programs.  Yet, the Board and the Division of Parole continually excluded classes of otherwise eligible offenders from parole release.  It follows then, that any impasse on the expansion of prison building becomes all the more critical today.

Moreover, participation in any rehabilitative programs while in custody currently does not guarantee discretionary parole release at all.  This policy of the Board fails to serve the general public interest.  The Board’s primary concentration on the “seriousness of the instant offense” clearly disregards the legislative intent that the Board of Parole must exercise its discretionary release authority as requested by statute.  In this regard, the Board has egregiously abdicated from its legal mandate.  The Board’s failure to fully consider an applicant for parole release, by confining its inquiry solely to the “instant offense,” inappropriately disregards, by “administrative fiat,” the duties of the Board as defined in Executive Law section 259-a.  In the meantime, the Legislative and the Judiciary sit idly by and watch thousands of men and women “held” unnecessarily every year, and in some cases, illegally, beyond the minimum term of imprisonment imposed by the judge who presided over the trail or plea.