Duchess County Supreme Court Justice Maria Rosa had enough.  Most judges in New York had enough, but Justice Rosa really had enough and decided to do something about it. And that’s where the frustration of being a judge really shows its ugly face.  While there is a vague sense that judges can fashion some sort of relief to accomplish whatever goal needs to be achieved, there are instances, exceedingly rare, that defy remedy.

Meet the New York State Parole Board. It’s untouchable.  But that didn’t stop Justice Rosa from trying. The set up in MacKenzie v. Stanford emitted the usual Parole Board stench:

The petitioner has been incarcerated for more than 40 years and has been eligible for parole
release since June of 2000. After The New York State Parole Board (“the Board”) again denied
parole on December 15, 2014 (“the 2014 decision”), petitioner sought review through an Article 78 proceeding. By decision, order and judgment dated October 2,2015, this court granted the Article 78 petition, vacated the Board’s 2014 decision and directed the Board to hold ade novo hearing.

The Board held another hearing on December 15,2015, and.issued a decision the same” day (“the 2015 decision”) denying parole release. The 2015 decision was virtually the same as the 2014 decision. It contained the same infirmities as the 2014 decision which this court had determined was not in conformance with the Executive Law and which was contrary to this court’s October 2, 2015 decision, order and judgment. Petitioner brought a contempt application and on March 28, 2016 this court issued a decision and order based upon which it held a hearing on May 20, 2016.

Before reaching the obvious question, the availability of a remedy for a guy who has been denied parole for 16 years, one has to know the standard by which the Parole Board’s determination is judged, “irrationality bordering on impropriety.” It’s hard to be that bad, and yet, the Parole Board manages to do so with amazing regularity.

Faced with its intransigence, Justice Rosa did the one thing that a judge always keeps in her back pocket, just in case. Contempt. And if there was ever a demonstration of dumping a heaping helping of contumacious behavior on top, the lawyer for the Parole Board did it.

After petitioner rested, Respondent’s counsel moved to dismiss and decision was reserved.
Respondent’s counsel was asked if he had any witnesses. He did not.

This is the trench equivalent of the Parole Board telling Justice Rosa to shove it. Whatcha gonna do, judge?

ORDERED AND ADJUDGED that the respondent is in contempt of this court’s clear directive as set forth in its decision and order of March 28, 2016. See McCain v. Dinkins, 84 NY2d 216 (1994). It is undisputed that it is unlawful for the parole board to deny parole solely on the basis of the underlying conviction. Yet the court can reach no other conclusion but that this is exactly what the parole board did in this case.

ORDERED that pursuant to Judiciary Law §753(A)(3) the respondent is held in contempt and fined the sum of $500.00 per day starting June 7, 2016 for each day until an actual de novo parole hearing is held and a decision is issued in accordance with Executive Law §259-i(2);

This is remarkably bold. What it isn’t, unfortunately, is necessarily effective, though not for lack of trying. The members of the Parole Board don’t have to pay the $500 per day, so if it comes at all, which is unlikely, it comes out of the state budget. And goes into the state budget. But it’s unlikely to be upheld because the only relief available to the judge is to order the Parole Board to reconsider. No one, no judge, can order parole except the Parole Board. Governor Andy Cuomo could pardon or commute, but he can’t order parole. No. One.

And within Justice Rosa’s decision you see the failure of passionate reformers and empiricists. Notice her reference to COMPAS, the putative empirical assessment of a prisoner’s likelihood to pose a threat of harm or recidivism? Oh yes, let’s come up with a warm and fuzzy reform that will make everyone feel as if we’ve saved the children while being more fair and scientific. Yup, they got it. They are required by law to conduct the assessment. And then they pay it lip service at most, then totally ignore it. Because no one can tell the Parole Board to release a prisoner on parole. No. One.

Justice Rosa deserves our applause and appreciation for her efforts, even though they won’t amount to anything.  But why isn’t there “real” reform, changing the Executive Law that authorizes parole so that a court can order the Parole Board to release defendants rather than just say “nah”?

Is it because Gov. Andy is too busy micromanaging the sex lives of college students? Nope, though he is. The problem is that the Parole Board is a political plum, a position given away as the spoils of politics, and both teams know damn well that they need to keep jobs available to pay back their friends.

But why, you may ask, does this untouchable, political Parole Board choose to deny parole to the deserving? If its decision is absolute, and their appointment is political payback, why can’t they just choose to do the right thing and release people because they should be released?

A damn fine question. Nobody ever had the villagers march to their gate with pitchforks and torches for being too unreasonably harsh on prisoners. No politician ever lost an election for putting the safety of the villagers first. And no Parole Board member, regardless of the party that appointed him, was ever told to pack his bags for denying parole.

Well done, Justice Rosa, for trying everything within your power to achieve the right result. Too bad that when it comes to parole, the law gives you nothing to work with. Too bad that there is no outrage at the abject bad faith demonstrated by the New York State Parole Board, as they can’t even be bothered to show up for your contempt hearing and pretend to care.