New York’s parole system is broken. Under the current system: too few individuals are released due to the bureaucratic structure of the parole system, and too few are afforded the proper consideration for release due to a chronically understaffed board; far too many people on parole are returned to prison for noncriminal technical violations of their conditions of release; and Black and Latinx individuals receive racially disparate treatment. While a number of states have begun making changes to make their parole systems fairer and more equitable, the Empire State lags behind despite the clear issues plaguing the system.
New Yorkers United for Justice (NYUJ) believes that policymakers must prioritize the reformation and reimagining of parole in New York. Below are key principles developed and adopted by the members of NYUJ that would ensure a more fair, just, and effective system of parole that would benefit all New Yorkers.
1. Expand and streamline the parole process
In New York, all individuals serving indeterminate sentences—including many who are incarcerated for nonviolent offenses—may not be released from prison onto parole until the Parole Board holds individual hearings, and there is little transparency or predictability in outcome.
Further, the New York Board of Parole has been plagued by chronic understaffing for years. The Board is made up of 19 seats, 3 of which are currently vacant. Vacancies have been much higher in the past and have resulted in parole commissioners hearing, on average, 526 cases per year—with some hearing over 1,000. This is far higher than other state parole boards, such as New Mexico and Washington, where commissioners hear on average 250 cases per year.
The high caseload and understaffing results in commissioners who do not have the time and resources to adequately examine each individual’s application for parole. Additionally, high caseloads are compounded by the lack of clarity and consistency in the parole process. Without proper vetting, individuals are often reduced to their instant offense and their rehabilitation while incarcerated is not given proper consideration.
Concerns with the parole board extend beyond its chronically understaffed condition. Even if the parole board had reasonable staffing, the process lacks clarity and transparency, which often leads to individual applications not receiving proper consideration or being denied despite meeting all requirements. Reports have surfaced of at least two members of the Board of Parole who have exhibited inappropriate behavior during parole hearings and have routinely denied parole for people who have shown clear rehabilitation.
NYUJ urges the Board of Parole to be staffed with an adequate number of commissioners to provide each parole applicant with a fair and balanced assessment of their parole application. Furthermore, New York should follow the lead of states such as New Jersey, Mississippi, and Michigan and establish a framework to grant some individuals presumptive parole — streamlining the process for individuals convicted of lower-level offenses and ending the practice of unnecessary individual parole hearings for those who have met all criteria for release, thereby allowing the Board of Parole to focus on hearings for individuals convicted of more serious offenses.
While many states allow individuals who have met all requirements of their case plans to be presumptively released without explicit approval from the Board of Parole, New York only allows presumptive release for certain individuals to whom the Department grants a certificate of earned eligibility and meet other criteria, another process that lacks clarity, transparency, and is rarely used. For example, in 2016, only 21 individuals were released through this process. NYUJ recommends expanding and streamlining the use of the presumptive parole process for individuals convicted of low-level offenses by requiring presumptive release for these individuals if they satisfy all written criteria and have not had any disciplinary infractions levied against them.
Beyond the presumptive parole process, expansion of the Board of Parole and streamlining of the parole process for all incarcerated people will improve public safety both in and out of prisons, and can be accomplished through a number of reforms, such as:
- Expanding and clarifying the regular parole process by setting out expectations for release so that individuals have a clear understanding of what needs to be done by when in order to ensure approval for release by the Board of Parole;
- Ensuring a fully staffed Board of Parole to reduce caseload size;
- Standardizing the burden of proof and conditions for denial at the parole board hearing for all parole hearings;
- Limiting the Board of Parole’s reasons for denying parole;
- Requiring the Board of Parole to meet a burden of proof when denying parole due to issues related to public safety or by asserting the person poses a risk of failing to “live and remain at liberty without violating the law,” and to provide explicit written reasons for denial and action items needed to obtain release by the next hearing.
2. Provide more due process to individuals within the parole system
New Yorkers who enter the parole system are currently denied important due process protections both before the Board of Parole and once they enter their period of community supervision.
Individuals who appear before the Board of Parole for their initial interview and review process are not entitled access to a lawyer – an omission that has been determined constitutional by the New York state court system. Furthermore, an individual who is denied parole by the Board of Parole has a statutorily defined right to a speedy appeals process. The Board of Parole’s Appeals Unit is required to make a determination within four months of an appeal. However, in 2012 and 2013, only 4 determinations were made by the Appeals Unit within the four-month timeframe.
The lack of due process protections intensifies once an individual has been granted parole and is alleged to have committed a noncriminal technical violation of the conditions of their release. In New York, if an individual’s parole officer believes a technical violation has occurred, the individual is detained for up to 15 days until a probable cause hearing is held. If probable cause for a violation is established, the individual can be detained for up to 90 days until the violation is adjudicated. In both instances, the individual cannot be released on their own recognizance or granted bail — they must remain detained until the final adjudication. The adjudication process moves slowly in New York. In 2015, it took an average of 61 to 67 days to adjudicate a parole violation in New York City, and 58 days in the rest of the state.
In addition to mandatory detention, the adjudication process lacks several key due process protections. While individuals charged with a technical violation are permitted to have legal representation, there is no burden on the state to provide legal representation for individuals who are indigent. Furthermore, the standard rules of evidence applicable to criminal proceedings do not apply in the parole violation hearing process. Finally, individuals facing a technical violation allegation are not given a hearing before a judge until their final revocation hearing, which is before an Administrative Law Judge employed by the New York Department of Corrections and Community Supervision.
These due process pitfalls are extremely alarming to NYUJ, as both the parole decision making process and revocation process directly impact an individual’s liberty. In New York, individuals who are denied parole typically endure another two years of incarceration before they may be reconsidered. And individuals faced with potential revocations for technical violations face lengthy periods of incarceration if found guilty —the process is even more difficult for those who do not have access to legal representation during these hearings. Accordingly, NYUJ encourages the enactment of reforms establishing key due process protections, such as the right and access to counsel, for both the parole and revocation processes and eliminating mandatory detention for those alleged to have committed noncriminal, technical violations.
3. Adopt non-carceral responses to noncriminal violations of parole
In New York, if a person is alleged to have committed a noncriminal technical violation of his or her parole, the state requires that individual to be detained in a jail facility for up to 15 days until a probable cause hearing is held. Such technical violations include drinking alcohol, being around other individuals with felony convictions, and missing work or a meeting with a parole officer. In New York, periods of supervision can and do last years — making it difficult for an individual to remain strictly compliant with such a long list of conditions. If probable cause is established, a person may be held for up to 90 days until the violation is adjudicated, and is not eligible for release on recognizance or with conditions. And if the person is found to have committed a noncriminal technical violation of parole, he or she can be incarcerated for up to 15 months.
These mandatory periods of incarceration, some of which occur before the person is found to have committed a violation in court, often completely upend a person’s life by endangering access to employment, housing, and impeding child custody or visitation.
Such a heavy-handed response to minor, noncriminal actions serves no legitimate public safety purpose. Research has shown that recidivism is higher among individuals on parole who have their parole revoked and are returned to prison for noncriminal technical violations than those who commit violations but receive lesser sanctions. Unfortunately, New York is a national leader in this harmful approach to community supervision. In 2016, only Illinois sent more people to prison for technical violations of parole. In 2018, New York sent 7,492 people to state prison for a technical, noncriminal violation of their conditions of parole. As of July 2019, there were already 4,293 people incarcerated for a parole violation that year. The cost of these reincarcerations for taxpayers is outsized: it is estimated that the state spends $359 million annually to incarcerate individuals for technical parole violations.
NYUJ believes strongly that New York should eliminate incarceration as the first and only response for most technical violations of parole, including for mere allegations of violations. Reincarceration should be reserved for unique and extraordinary circumstances where no other sanction can reasonably ensure public safety and compliance. Periods of reincarceration should be as short as possible to ensure public safety without putting undue burden on the individual. In cases where reincarceration is found necessary, graduated terms of incarceration should be applied.
4. Establish a more comprehensive and rehabilitative approach to community supervision
Once an individual is released on parole, they must follow a number of conditions, including finding stable employment, housing, and contributing positively to their communities. Instead, due to the myriad conditions individuals must adhere to, parole has become a significant roadblock to an individual’s successful reentry, and therefore an impediment to public safety.
People who have been through New York’s parole system have often spoken about the frequency with which conditions interfere with an individual’s reentry, such as an inflexible curfew preventing an individual from accepting a certain job, or being barred from associating with friends and family who may have felony convictions. Furthermore, they have addressed the arbitrary nature in which these conditions are enforced — with the level of scrutiny dependent on the parole officer and their relationship with their parole officer.
NYUJ believes that there is a better way to ensure compliance with conditions of parole that does not involve placing unnecessary barriers and restrictions that conflict with requirements for those who are trying their best to succeed. Instead, New York should seek to create a more flexible system of parole supervision that establishes incentives for success. There are concrete steps, both big and small, that New York can take towards achieving this goal, ranging from giving parole officers flexibility to tailor supervision requirements around a parolee’s employment and family obligations; eliminating the monthly supervision fee as a condition of parole; and funding evidence-based direct service programs.
Finally, NYUJ urges New York to recalibrate the length of parole sentences to better align with what current research indicates provides the best individual and public safety outcomes. Currently, individuals paroled from indeterminate sentences must serve the remainder of their maximum sentence term. For some individuals, this can lead to nearly a decade on parole. Furthermore, New York should allow for individuals to reduce their time on supervision through the establishment of an earned time credit framework keyed to compliance and achievement benchmarks. While incarcerated, individuals are granted good time credits, but not while they are on parole — something that several states offer as an incentive for compliance and success. New York recognizes the importance of incentive-based drivers of behavior through a system of good time credits behind bars — the same structure should be applied to parole and community supervision.
5. Continue to explore and expand evidence-based mechanisms for decarceration
NYUJ recognizes that improving the parole process is just one avenue by which New York can and should safely reduce its prison population. Other mechanisms separate and apart from an improved parole process, especially those that identify for potential release individuals who are proven to be low risk to public safety, are also critically important to promoting a fairer justice system and safer communities. Such policies and mechanisms, some of which would be effectuated in courts, like Second Look Sentencing, and others of which could be administrative in nature, such as compassionate and elder release programs, warrant closer examination in New York.
These additions to existing mechanisms to reduce the prison population safely are especially timely in light of the COVID-19 pandemic and the enormous risks it poses to the health and safety of those incarcerated, those who work in our prisons, jails, and courts, and their families and communities.