Irrational “Bordering on Impropriety”

The New York Times raises an oft-forgotten stepchild of the legal system, parole, in an editorial calling for change in the system. The reason it rarely comes onto the radar is simple, these are convicts. They are beyond the question of guilt or innocence, rarely have the capacity to retain counsel and are almost entirely unseen by anyone outside prison. Only their families know the disgrace of the parole system.

For those unfamiliar with New York’s sentencing scheme, many sentences are imposed with an indeterminate span, say 15 years to life in prison. That means a prisoner is eligible for parole after 15 years, having served the minimum of the sentence.

From the perspective of all the players at the time of sentence, it is anticipated that in the absence of any post-sentence aggravating factors, a defendant will serve the minimum sentence and be released.  Key to this is that the sentencing judge makes a decision, what that minimum sentence will be, and expects the Parole Board to respect her decision.

This doesn’t happen. The Parole Board is made up of political appointees, who use boilerplate language that sounds as if they’ve done their very serious job, considered all the relevant factors, duly deliberated, and then denied parole.  It’s a lie.

Inmates are repeatedly denied parole long after they have served their minimum sentence, not because of misbehavior or any concern for public safety but because of the “seriousness” of the original offense. As one former chairman of the board told The New York Law Journal last year, “If the Parole Board doesn’t like the crime, you are not going to get out.”

In other words, unqualified bureaucrats sit as super judges, ignoring the decision of the sentencing judge and imposing a politically-motivated sentence of whatever length they deem proper.  In an effort to reform the system, a data analysis system called COMPAS was instituted to calculate likelihood of recidivism and introduce an objective basis to the decision making.

Even after the state’s adoption of a new data-analysis program called Compas, to measure and predict inmates’ risk of reoffending using factors like an inmate’s education level, age when convicted and what sort of home he or she would return to, the board seems to follow the practices of an outdated era.

Instead of forming a better, more viable basis for the determination, COMPAS became just another bit of data to ignore.  For those who believe that good faith coupled with the next empirical tool will change a culture, COMPAS is a prime example of the wastefulness and worthlessness of legislated solutions.  The system only works as well as those in charge of it want it to work, and the Parole Board didn’t.

In 2011, legislators amended the state law to require that the board consider a prisoner’s future along with his or her past. So far it hasn’t made much of a difference. While New York has reduced its overall prison population by more than 15,000 since 2000, release rates — the board granted just over one-third of the 16,000 applications it considered in 2012 — have actually gone down.

Ultimately, it was little more than a game of putting the right verbiage into the denial so that all bases were covered, but denial remained the rule.

The legal test for reversal of the Parole Board’s determination requires overcoming one of the highest bars possible, arbitrary and capricious. From Douglas v. NYSDCCS:

It is well settled that release on parole is a discretionary function of the  Parole Board and that its determination will not be disturbed by the Court unless it is shown  that the Board’s decision is irrational “bordering on impropriety” and that the  determination was, thus, arbitrary and capricious. Matter of Silmon v. Travis,  95 N.Y.2d 470 (2000); Matter of King v. NYS Division of Parole, 190 A.D.2d 423  (1st Dept. 1993) aff’d 83 N.Y.2d 788 (1994).

Justice Richard Mott found that in Douglas, a former police officer convicted of insurance fraud, that the Parole Board’s denial reached the level of being “irrational ‘bordering on impropriety'” by cutting through the boilerplate verbiage designed to give the appearance of meaningful consideration of the statutory factors before pulling out the big ol’ denied stamp.

Unfortunately, the remedy wasn’t release, but rather a new parole hearing, where the determination of the board was to be sent back to the judge. Considering Douglas’ sentence of one to three years, he lost either way.

More to the point, few defendants have the wherewithal to retain counsel to bring the Article 78 (New York’s flavor of writs) proceeding at all, no less over a Parole Board denial. Even with a win, the remedy is less than what one might expect, as parole remains a discretionary function. It’s not enough to fix much of anything.

So what cure does the New York Times offer for this malignancy?

Lasting reform of New York’s parole system will require a fundamental reworking of both the board’s process and its culture. For low-risk inmates, early release into parole should be the default, and the board should have to articulate a good reason to keep them locked up.

Release should be the default, not just in theory but in practice. But like COMPAS, there is no assurance that any change will be more meaningful than a new boilerplate paragraph to cover their denial.  It’s not good enough to say “do better.” The Parole Board has steadfastly refused to change, to be fair, to do its job, and every effort to change its culture has failed miserably.

It’s time to go and be replaced by a process that removes discretion from political appointees. It’s time for defendants to be presumptively released when their minimum sentence is served, and any refusal be returned before the sentencing judge and subject to full due process.

6 comments on “Irrational “Bordering on Impropriety”

  1. John Jenkins

    Scott: do you think that the process would be improved if sentencing judges had to pick a time certain when sentencing (i.e., 1 year or 2 years versus 1-3 years). We do not have de jure indeterminate sentencing in Oklahoma, but inmates become eligible for parole after having served some percentage of their stated sentence (as much as 85% for certain enumerated offenses), leaving a de facto system of indeterminate sentencing.

    One thing that works in favor of some OK inmates is that, with credit for good behavior, some can actually discharge their sentences in about 50% of the stated time! but the Parole Board here is about as useless as the one in New York, with all of the principals trying to out-tough-on-crime one another.

    Do thou think a system with the default rule you suggest could be successfully implemented through the NY DOC? In OK, the DOC seems to have the best practical grasp of who is dangerous or not (except where the legislature has hamstrung them with the 85% rule), but the OK constitution establishes the parole board, leaving us stuck with a broken, over-pressurized system, lacking a working relief valve.

    1. SHG Post author

      From the parole standpoint, a determinate sentence would clearly improve the problem by removing the political discretionary aspect from the back end. Some would argue that it eliminates the incentive to behave and improve while in prison, to enhance one’s chances for earlier parole. This is probably true as well, but then, if inmates realize that they don’t have a legit chance at parole anyway, then the incentive is illusory.

  2. John Neff

    It sounds to me as if the governor appointed the wrong people to the BOP. That happened in Iowa recently and the consequences were serious. Fortunately the next governor was able to fire the new members because they were still on probation and the problems they caused have now been corrected.

    1. SHG Post author

      It’s been this way for a generation, with the appointees of governors of both parties. There are a lot of wrong people around.

  3. Nigel Declan

    Your point is well-taken, SHG. My question, though, is whether a major reform to the parole system might have an unintended collateral effect on sentencing. If judges are aware that those convicted are more likely than not to be paroled at the lower end of the sentencing range, is there a risk that they sentence to longer minimum parole eligibility? This is not to say that this calculus would necessarily be conscious; unintended consequences are often the net result of multiple marginal changes – every decision to extend a sentence may be arguably justifiable (relative to current sentencing practices, at least), but the ultimate effect of multiple judges individually erring on the side of longer sentences is a statistically significant increase in sentence length.

    1. SHG Post author

      My sense is no, as they expect them now to be released at the bottom of their sentencing range, so the expectation wouldn’t be any different if it was a determinate sentence.

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