Last Victim Standing

Rarely, by which I mean I can’t recall it ever happening before, has anyone been outraged at the New York State Board of Parole for releasing a prisoner. The reason is plain; the Parole Board has long considered its roll to be a SuperJudge, deciding that the sentence imposed, say, 20 years to life which means the sentencing judge determined that after 20 years imprisonment, the defendant should be eligible for parole release, wasn’t harsh enough.

But as Appellate Squawk notes, Diane Piagentini not only took issue with the determination of the parole board, those pinko commie crime-lovers, but brought an Article 78 proceeding (the NY statutory equivalent of a writ) to annul its decision to release Herman Bell on parole.

The occasion was a lawsuit filed by the widow of Police Officer Joseph Piagentini, who was ambushed and shot to death during the 1970’s enthusiasm for killing cops in the name of the Black Revolutionary Army.  Herman Bell, a college student at the time, was convicted of murder and sentenced to 25 years to life. Now that he’s 70 years old and a changed man after serving 40 years in prison, he was finally released to parole.

Piagentini’s first argument was that the Parole Board failed to read her victim impact statement, and therefore failed to consider it in reaching its determination. When the Parole Board responded that they did receive it, did consider it, and decided on parole anyway, she switched gears.

“Irrationality bordering on impropriety,” fumed Mrs. Piagentini in her petition against the Parole Board. For her and the Patrolman’s Benevolent Association, nothing short of life imprisonment for Bell will ever be enough.  After all, they argue, John Lennon’s assassin got 20 to life and is still being denied parole.

In other words, the Parole Board was wrong, and she, as the widow of Officer Piagentini has a right to have her opinion not merely taken seriously, but to control the outcome. After all, what purpose is served by entitling the victim to participate if they were not going to dictate the outcome?

Petitioner argues that if victims do not have standing to challenge decisions granting parole, no one would have the ability to raise such a challenge, even if the Board blatantly disregarded the law. According to petitioner, this cannot be what the Legislature intended, as someone must be able to keep the Board in check. However, nothing in the statute or regulations supports petitioner’s argument.

Except there is nothing in the parole statute entitling a victim to challenge its decision, and its decision is tempered, theoretically, but its structure of appointment by the governor to reach its decision.

Thus, neither the statute nor the regulations anticipate a situation in which a challenge could be brought to a determination granting parole.

But as the dissent notes, and as a cautionary shot across the Parole Board’s bow, the victim might well have had standing had the Parole Board not read or considered her victim impact statement.

Although I agree with the majority that a crime victim does not have standing to challenge the ultimate decision of respondent Board of Parole (hereinafter the Board) to grant or deny parole, my concurring colleague is correct that petitioner had both standing to assert a violation of her statutory right to have the Board consider her victim impact statement (see Executive Law § 259-i [2] [c] [A] [v]) and, on appeal, has preserved her right of review by specifically asserting, as previously set forth in her second cause of action, that her statutory rights “were nullified by the Board’s failure to take into account the details of her victim [impact] statement that establish her injury.”

In the zeal to pander to crime victims, the legislature made it a requirement that the Parole Board consider a victim’s views.

(v) any current or prior statement made to the board by the crime victim or the victim’s representative, where the crime victim is deceased or is mentally or physically incapacitated;

At first blush, this might seem only fair, a respectful acknowledgement of the victim’s suffering. But it’s neither fair nor particularly respectful. The time for a victim to make her statement is at sentence, if ever, whereupon the court determines the minimum sentence, after which the defendant will be eligible for parole.

The minimum sentence is all a victim gets, whether she agrees with it or not. After that, the other concerns for parole, prison behavior and the ability to be released without unreasonable concerns for recidivism, kick in. The inclusion of a statutory requirement to consider victim impact, again, authorizes the parole board to play SuperJudge, to decide that the sentence imposed by an actual judge failed to adequately punish, and invites the Parole Board to ignore the judge’s sentence and impose a longer one of its own preference. It should be noted that at this stage in the proceeding, defendants are not entitled to counsel and the “argument” over parole eligibility is left to the prisoner on his own.

A slew of public defender organizations filed an amicus brief saying that crime victims shouldn’t be allowed to interfere with Parole Board decisions, at least not on the rare occasions when the Board gets it right.  The court agreed. A victim isn’t a party to the action and has no standing to appeal a decision.

Not this time. Not under these circumstances. The victim has no standing as long as the Parole Board considered their impact statement. But if the Parole Board fails to do so, and gets its decision right by releasing a prisoner even if against the victim’s wishes, then they may have standing. The obvious solution is for the Parole Board to do its job properly and fearlessly, to consider, and reject, the victim impact statement. But the easier solution is to not piss off the victim and have to prove it read and considered the statement, and defend its decision to release a prisoner on parole.

4 thoughts on “Last Victim Standing

  1. Erika Cunliffe

    This happens with alarming regularity in California, which, among other states has enshrined Marsy’s Law (enumerated victim rights in criminal proceedings) into its State Constitution.

  2. Howl

    Hoping that someday Mrs. Piagentini will be able to shed the hate born of pain and grief, and find peace.

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