Writing about parole in New York is akin to banging one’s head on a wall. A wall with spikes. Very sharp spikes. Lots of them. The reason is both plain and, at least amongst those familiar with the system, obvious. The New York State parole board is comprised of political appointees with near absolute, unreviewable authority, and they wield it like a spiked bludgeon.
As noted in the New York Times editorial, the Court of Appeals will hear argument in a case that could force a change in parole.
On Tuesday, the New York Court of Appeals, the state’s highest court, will hear oral arguments in a case that may provide a rare chance to reform New York’s antiquated, ineffective and unfair parole system.
It’s not exactly correct that New York’s system is antiquated. There have been tweaks to the system intended to bring it up to speed. But these tweaks have been ineffective, because they fail to address some core problems with parole, most notably that the members of the parole board serve political ends, and their decision, provided it’s not expressed in words that are flagrantly batshit crazy, defy review.
The basic idea behind parole is simple: People can change. It isn’t always easy, but if they succeed, they should have the opportunity to get out of prison a little sooner — even if their crime was serious.
That’s not quite right. New York uses an indeterminate sentencing structure, say a sentence for a serious felony of 15 years to life imprisonment. The judge imposes sentence for the crime, and the defendant becomes eligible for parole after serving 15 years. That means that in the sentencing judge’s mind, 15 years is the proper sentence for the crime, with the potential for a lengthier stay if the defendant fails to conduct himself appropriately in prison.
Parole is the carrot for behaving well in prison, for doing things to prepare for a future as a law-abiding citizen after release, like getting a diploma, drug treatment, etc. The stick for not doing so is being denied parole.
It is, theoretically, a sound approach. Except nobody on the parole board gives a shit. At bare minimum, they demand an acknowledgement of guilt and an expression of contrition. This presumes that the system is infallible, and any convict maintaining his innocence is denied parole because he refuses to admit to conduct he claims he did not commit.
For the parole board, this cannot be. The system cannot be wrong, and anyone contending otherwise needs more time. But that’s just the first issue.
Unfortunately, New York’s parole board clings stubbornly to the past, routinely denying parole to long-serving inmates based on subjective, often unreviewable judgments. If they explain their reasoning, board members almost always point to the seriousness of the crime, regardless of how much progress an inmate may have made.
The judge who sentenced the defendant for the underlying crime made a determination of the proper punishment for the offense. The parole board perceives its authority to exceed the judge, to ignore his sentence that provides for parole eligibility after 15 years, and places itself in the position of Super Judge, re-passing judgment on the underlying crime. They decide that 15 years isn’t enough time, and the defendant shouldn’t be given parole for no better reason than the parole board sees the crime as requiring 20 years, or 30 years, despite the sentence.
And if their determination isn’t facially irrational, it is not subject to reversal by a court. It’s not hard to piece together a rational basis for denial. In fact, it’s pretty much a fill-in-the-blanks decision.
Challengers say the board is refusing to follow a 2011 law requiring consideration of a potential parolee’s actual risk to society. New York, like many other states, has adopted a software program called Compas, which weighs dozens of factors and has proved to be more accurate than human intuition at predicting whether someone will commit another crime. But the board resists its use.
The case coming before the court, Matter of Linares v. Evans, raises the parole board’s refusal to use a tweak in the law that sought, by introducing an empirical tool, COMPAS, to break the stranglehold of mindless tough-on-crime politics on parole decisions.
Whether COMPAS is the right tool or not isn’t really the point. It’s both better than, and less outrageously subject to political manipulation than, what the parole board does now.
Is this the solution? Perhaps, but it could also just be another stumbling block for the parole board to leap. The law requires the parole board to “consider” COMPAS, not to adhere to its recommendation. COMPAS doesn’t trump the parole board, leaving the ultimate decision in the same, old, hands. The trick will be that the parole board will have to say it considered COMPAS and come up with a rational sounding reason to ignore it.
Believers in the good faith of those whom legislators put in charge of a piece of the system, even with wiggly caveats, hope for the best. The people in prison hope for a chance. For decades, neither has gotten their wish.
Will Linares be the case that breaks the stranglehold of politics on parole, that has such absolute authority that it’s essentially beyond the review of courts? It would appear that the best the Court of Appeals can do is to compel the parole board to demonstrate that it seriously considered COMPAS, and provide a remedy for failure to do so.
Unfortunately, that remedy will be to remit the case back to the parole board for reconsideration using the COMPAS system, or as the Appellate Division, Third Department, ordered:
matter remitted to the Board of Parole for further proceedings not inconsistent with this Court’s decision.
That’ll show ’em. It’s not like they will have absolute power if Linares wins.