Adam Liptak’s New York Times  column today raises the issue of denied parole.  Oddly, he chose an old Michigan case to make his point.  It’s odd because there are examples much closer to home. 

One of the most basic tenets of criminal law is that the Government can’t change the rules of the game afterward.  The idea is enshrined in the two ex post facto clauses of the Constitution, Article I, sections 9 and 10.  It’s defined as a law the criminalizes or increases punishment for conduct that has already happened. 

It’s wrong because it is purely punitive.  It does nothing to stop the conduct, and the person committing the conduct has no warning of the consequences at the time. 

The function of the Parole Board is to determine whether a prisoner is ready to be released back into society.  The practice of parole in New York has become that the Parole Board sits as a Superjudge for the purpose of resentencing a defendant based upon the original offense and the political determination of whether the original sentence was harsh enough. 

Under the New York sentencing scheme, felony offenders are given indeterminate sentences, such as 15 years to life for an A-1 felony.  This means that they must serve a minimum sentence of 15 years, reflecting a determination by the Legislature that the crime demands at least that long in prison.  

Beyond the minimum of 15 is another matter.  If the judge felt that 15 years was not sufficient, she could sentence the defendant to 20 years to life, or even as high as 25 to life.  But the judge set the minimum with the understanding that, if the defendant behaved in prison, that would be the point of parole eligibility.

The expectation was clear at the time of sentence that unless something happened that compelled a denial, a prisoner would serve the minimum portion of the sentence and be released on parole.  Somewhere during the Pataki administration, that changed.  Instead of viewing the minimum as the ending point of the sentence, it became the starting point of the sentence to be imposed by the Parole Board.

The Parole Board sits back and redecided sentence.  Fifteen not enough?  Parole Denied.  Liberal judge?  Parole Denied.  This was ex post facto at its most insidious, especially for those who took a guilty plea with the understanding of what the sentence meant.  No one anticipated that there would be a paradigm shift in the parole process that would result in the deal being turned upside down.

The problem is that prisoners have few friends in high places.  Addressing these problems happens on case by case basis, and the only way to identify the problem is to look at the very rare individual decisions reversing a parole denial.  The concept, as  explained by former Parole Board chair Ed Hammock,

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 other words, parole deals with what happened between sentence and the parole hearing, not the crime for which the defendant was sent to prison.  That’s for the sentencing judge to decide, and neither the parole board, victims’ rights advocates or politicians should be tweaking the back end of the system to redecide sentence to make it more to their liking. 

But it’s not easy to rein in the parole board when it goes astray.  Since the parole board couches its denial in statutory terms, it’s very difficult to conclusively determine that a denial was improperly based.  Worse still, getting a court to review parole denial is itself a major problem, since the prisoner (who’s sitting in prison) needs to find a lawyer willing to take on the case, and then a judge willing to bang heads with political appointees on the Parole Board.  The stars don’t line up that easily.

One such rarity was the William Phillips case.  The judge in that case, Marcy Friedman, wrote what everyone knew:

“[T]he board impermissibly based its denial on a non-statutory factor – its opinion as to the proper penalty for the crime – while in effect disregarding both that the petitioner has achieved a complete rehabilitation and that the statutory scheme required the Board to take this factor into account,”

But as noted in the New York Law Journal article,

The court, however, declined in a footnote to address Mr. Phillips’ allegation that the board was advancing Governor George E. Pataki’s political agenda rather than following the law.

And, it should be noted, that William Phillips, a former New York City cop, was denied parole 3 times before Judge Friedman put her foot down.