Parole In New York: Broken, Costly, and Unjust
Introduction

The history of parole in the United States begins with New York. In the 18th century, the United States relied on determinate sentencing in criminal cases, in which people were sentenced to fixed periods of incarceration without deference to any mitigating or aggravating factors. This system led to overcrowding in prisons across the young country. To combat this overcrowding, New York instituted a system of indeterminate sentencing and conditional release in 1876, which eventually led to the adoption of parole systems across the country.[1] What began as a way to relieve overcrowded prisons and unnecessary incarceration has today become a key driver of incarceration and public spending in the state.

New York’s current parole system is broken and plagued by a litany of issues. Due to chronic understaffing and high caseloads, thousands of individuals eligible for parole release often languish in prisons. Minor, noncriminal technical violations of parole (e.g., missing curfew, missing an appointment with a parole officer) continue to put thousands of New Yorkers back behind bars and create a cycle of incarceration with no benefit to their rehabilitation or public safety. Furthermore, the cost to taxpayers is staggering; New York State and its municipalities spend nearly $600 million annually re-incarcerating people on technical parole violations.[2]

Despite recent progress in reducing its jail and prison populations, New York State’s parole system remains a key driver of over-incarceration and requires significant changes through legislative action. This document explains how New York’s parole system works and illustrates the various issues that make the system ineffective and in need of desperate change.

How Does Parole Work in New York?

New York penal law 70.00 allows the court to sentence certain individuals to indeterminate sentences, which provides both minimum and maximum terms of imprisonment. People serving indeterminate sentences are deemed eligible for parole once they complete their minimum term of incarceration and are considered for parole release by the New York State of Parole Board. Individuals who are denied parole must wait up to two years for another appearance before the parole board.[3]

Non-Class A Felonies Minimum term is at least one year, but not to exceed one-third of the maximum term.
Class A-II Felonies Minimum term cannot be less than three years nor more than eight years.
Class A-I Felonies Minimum term cannot be less than 15 years nor more than 25 years
Parole Board Hearings

In hearings that determine whether an individual will be granted parole release, three parole board commissioners are preferred in case a vote isn’t unanimous and requires a tie-breaker. However, a 2019 report found that parole hearings are typically only staffed with two commissioners.[4] If a vote is split between a two-person panel, the interview becomes void and must be rescheduled—further delaying an individual’s parole decision and potentially extending their incarceration period.

The New York State Board of Parole

Every year, the New York State Board of Parole determines whether to grant parole release to more than 12,000 incarcerated New Yorkers.[5] The parole board is composed of 19 board commissioners who are appointed by the Governor and confirmed by the New York Senate to terms of six years. However, the board has been historically understaffed and often fails to meet demands due to high caseloads (as of Dec. 2020, there are only 16 sitting parole board commissioners).[6]

When the board is fully staffed, each commissioner oversees on average of 526 cases per year. [7] In reality, each board member can take on upwards of 1,000 cases per year when the board is understaffed.[8] In comparison, in states like New Mexico and Washington, parole board members often hear around 250 cases per year.[9]

Such high caseloads create system-wide delays in determining parole decisions in a timely and efficient manner and prevent the parole board from doing their due diligence and sufficiently deliberate on each individual parole application.

Conditions of Parole

Once an individual is granted parole, they must remain crime-free and adhere to a set of conditions until the conclusion of their term of supervision. These conditions of release are set by the parole board and typically require the parolee to make all meetings with their parole officer, refrain from interacting with individuals with criminal convictions, abstain from possessing legal firearms, and more.[10]

The parole board or a parole officer may also require the individual to adhere to special conditions of release.[11] These special conditions can include, but not limited to:

  • Curfew
  • Prohibitions on drinking or substance use
  • Submitting to random drug tests
  • Seeking approval from parole officer before engaging in a romantic relationship

A violation of these conditions of parole release—also called technical violations—can result in a revocation of an individual’s parole and result in automatic reincarceration, even when the violation is considered minor or noncriminal.[12]

The Parole Revocation Process

If a parole officer has “reasonable cause” to believe a technical violation has occurred and their senior officer believes the violation was “in an important respect,” the individual can be automatically jailed for 15 days pending a probable cause hearing; and an additional 90 days as the alleged violation is adjudicated in the final hearing stage.[13]

The New York State Board of Parole may neither release the individual on recognizance nor set bail while their violations are pending adjudication. This means that an individual could spend up to 105 days behind bars before being acquitted of any wrongdoing and released back into the community.[14]

If the final hearing sustains a technical violation, the parole board or hearing officer may either release the individual back to the community or require the individual to be incarcerated for a fixed term—known as a “time assessment.”[15] These time assessments can range from a 45-day “alternative program” in DOCCS custody to 15 months depending on the severity of violation.[16]

The parole revocation process is marked with flaws that undermine fairness and disproportionately targets economically disadvantaged individuals and people of color (90-percent of people detained on technical violations are Black or Latinx).[17]

The process does not include due process protections that are required in legal processes that lead to a prison sentence. An individual going through the parole violation process—guilty or not—can remain in incarceration indefinitely and not appear before a judge until their final hearing.[18]

Furthermore, while individuals on parole are allowed legal representation during their preliminary revocation hearing, there is no requirement for the state to provide representation to indigent people who cannot afford counsel.[19]

This is a significant pitfall for fairness in the process. These hearings do not abide by the typical rules regarding evidence that are required in criminal courts.[20] Without guaranteed representation, it is often impossible for individuals to defend themselves, all but guaranteeing reincarceration.

Parole System’s Impact on the Criminal Justice System

Impact on Prison and Jail Population

The issues plaguing New York’s parole system—from the understaffing of the parole board to a lack of due process—have resulted in both low rates of parole releases and high rates of revocations and reincarcerations. In short, the state’s approach to parole is a key driver of incarceration in both prisons and jails.

In recent years, the overall rate of parole denials has fluctuated. In 2015, approximately two-thirds of individuals who appeared before the parole board for an initial hearing were denied release.[21] This rate decreased to about 46-percent during the first ten months of 2018.[22] In 2020, parole denials increased to 52-percent, despite the need to reduce the number of people in prisons in response COVID-19 outbreaks in prisons and neighboring communities.[23]

Annually, nearly 41-percent of new prison admissions are for technical violations, not for a new criminal conviction.[24] In 2016, New York was ranked the second highest in the nation in people sent back to prison for violating parole.[25] That same year, nearly half of those who left parole in New York (referred to as “parole exits”) were reincarcerated—far higher than the national average rate of 28-percent.[26]

In 2018, New York sent back 7,492 people to state prison for technical, noncriminal violation of parole conditions.[27] While data on parole exits due to new criminal convictions is not available for 2018 for direct comparison, it was recorded in 2016 at 1,318 individuals. That means that just under six times more people were incarcerated for technical violations in 2018 than they were for new crimes committed on parole in 2016.[28]

In addition to driving the state’s prison population, the parole revocation process has a detrimental impact on city and county jail populations. While New York’s local jail populations have been generally on the decline in recent years, the portion of people detained or remanded until the completion of the hearing process has been increasing. And these periods of incarceration can be lengthy; in 2015, it took an average of 61 to 67 days to complete the parole violation hearing process in New York City and 58 days in the rest of the state.[29] In New York City, where nearly half of people under parole supervision reside, the number of incarcerated people awaiting hearings for parole violations has increased by 20-percent since 2014.[30]

Impact on Costs

New York’s focus on incarcerating people accused of committing technical violations is a huge driver of correctional costs; in total, New York State and its local municipalities spend nearly $600 million annually re-incarcerating people on technical parole violations.[31] It is estimated that the state spends $359 million annually to incarcerate individuals in state prisons for parole violations.[32] And local jail resources used to detain individuals accused of violating their parole conditions amount to a combined $300 million annually.[33]

Each parole board denial adds up to two additional years of incarceration to an individual’s sentence, while each additional year of incarceration past an individual’s minimum sentence results in an increased cost to the state (in 2015, the average cost to incarcerate a New Yorker was $69,355).[34] Ultimately, the costs associated with parole denial are difficult to justify; an analysis from the Correctional Association of New York found many parole denials were “not linked to public safety or original sentence length.”[35]

Racial Inequities in New York Parole

New York’s parole system compounds racial disparities that plague the state’s criminal justice system and has an outsized impact on Black and brown communities: from people under supervision to those jailed for violations.

  • Between 2018 and 2020, 41-percent of White applicants were approved for parole release. During that same period, 34-percent of Black applicants and 33-percent of Hispanic applicants were approved for parole.[36]
  • Black and Latinx New Yorkers are placed under community supervision at a rate 8 and 2.5 times higher than that of White New Yorkers, respectively—significantly higher than that of the national average.[37]
  • In New York City, Black and Latinx New Yorkers on parole were served with warrants for technical violation at a rate 12 times and four times higher than White New Yorkers, respectively.[38]
  • Black New Yorkers are 7 times more likely to be incarcerated for a technical violation of parole than White New Yorkers under supervision.[39]
The Justification for Reform

An effective criminal justice system should seek to promote fairness and maximize public safety, while ensuring that no individual or community is disproportionately represented in the justice system.

New York’s parole system fails on all fronts. Despite recent progress in reducing overall prison and jail populations, there has been minimal effort to reduce the number of people reincarcerated for parole violations; the state saw a meager 0.3-percent decrease of people sent to prison for a technical violation between 2017 and 2018.[40]

A parole system focused on incarceration also has little benefit to improving public safety. Various studies suggest that extending an individual’s length-of-stay in incarceration likely has no effect, and may even harm, on their reentry outcome. For example, an analysis from Pew Charitable Trust concluded that for a substantial number of incarcerated individuals, there was “little to no evidence that keeping them locked up longer prevents additional crime.”[41]

Furthermore, a study in 2008 found that individuals who received at least one sanction while on parole, which were mostly reincarceration, were re-arrested at a rate 20-percent higher than those who did not receive a sanction—meaning that reincarceration as a result of parole violation has a minimal effect on reducing the criminogenic risk of an individual.[42]

Despite leading the nation on many fronts in criminal justice policy, New York falls far behind the country when it comes to parole. To date, approximately 30 states—including Louisiana, Mississippi, Missouri, and South Carolina—have enacted various reforms to their parole processes to save correctional costs, ensure fair parole consideration, and to reduce the reliance on incarceration in response to parole violations.

The need to transform New York’s system of parole is long overdue. Without system-wide change led by legislative action, the state’s parole system will continue to negatively impact its fiscal health, public safety, and societal well-being.

Endnotes

[1] Jeanine M. Schupbach, “New York’s System of Indeterminate Sentencing and Parole: Should It Be Abolished?,” Fordham Urban Law Journal, Vol. 13 No. 2, 1985, 403. https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1257&context=ulj

[2] Schiraldi, V.; Bradner, K. (2020, March). Racial Inequities in New York Parole Supervision. Retrieved January 18, 2021, from https://justicelab.columbia.edu/content/racial-inequities-new-york-parole-supervision

[3] New York Executive Law 259-I, https://www.nysenate.gov/legislation/laws/EXC/259-I

[4] Report of the New York State Bar Association Task Force on the Parole System. (2019, November). Retrieved from https://nysba.org/app/uploads/2019/12/NYSBA-Task-Force-on-the-Parole-System-Final-Report.pdf

[5] “Systemic Issues with New York’s Parole Release Process.” Correctional Association of New York, 2019.

[6] Ibid, 12.

[7] New York State Bar Association, 12.

[8] Ibid, 12.

[9] Ibid, 12.

[10] New York State Rules and Regulations 8003.2

[11] Vincent Schiraldi and Jennifer Arzu, “Less is More in New York: An Examination of the Impact of State Parole Violations on Prison and Jail Populations,” Columbia University Justice Lab, January 29, 2018, 2. https://justicelab.columbia.edu/sites/default/files/content/Less_is_More_in_New_York_Report_FINAL.pdf

[12] Ibid, 2.

[13] “Report of the New York State Bar Association Task Force on the Parole System,” New York State Bar Association, November 2019, 2. https://nysba.org/NYSBA/Advocacy%20and%20Leadership/House%20of%20Delegates/November%202019/NYSBA%20Task%20Force%20on%20the%20Parole%20System%20Final%20Report.pdf

[14] Ibid, 2.

[15] Ibid,3.

[16] For more information on time assessment calculation and category definitions see NYCRR 8005.20.

[17] Shames, Michelle. “Why Violating a Curfew Could Be a Death Sentence for NYers.” New York Civil Liberties Union, 29 Apr. 2020, www.nyclu.org/en/news/why-violating-curfew-could-be-death-sentence-nyers.

[18] Vincent Schiraldi, “Alarming allegations about parolees’ rights: The state must investigate whether men are having due-process violated on Rikers Island,” New York Daily News, May 7, 2019. https://www.nydailynews.com/opinion/ny-oped-alarming-allegations-about-parolees-rights-20190507-qvptr4y5lngszjtvhz43ojcdi4-story.html

[19] New York State Rules and Regulations 8005.3(C)(1) https://doccs.ny.gov/system/files/documents/2019/09/nysrulesregs.pdf

[20] New York State Rules and Regulations 8005.2(a) https://doccs.ny.gov/system/files/documents/2019/09/nysrulesregs.pdf

[21] “Systemic Issues with New York’s Parole Release Process,” Correctional Association of New York, 2019. https://static1.squarespace.com/static/5b2c07e2a9e02851fb387477/t/5c5ae3dab208fc4e62abe588/1549460443165/CANY+Fact+Sheet+-+Parole.pdf

[22] Ibid.

[23] Amanda Fries and Edward McKinley, “State: Fewer parole decisions amid pandemic part of prison trend,” Times Union, December 7, 2020. https://www.timesunion.com/news/article/DOCCS-Fewer-parole-decisions-amid-pandemic-part-15773312.php

[24] New York State Bar Association, 3.

[25] Schiraldi and Arzu, 3.

[26] Ibid, 2.

[27] “Admissions and Releases: Calendar Year 2018,” New York Department of Corrections and Community Supervision, n.d.a., table 3. https://doccs.ny.gov/system/files/documents/2019/09/Admission%20Releases%20Report%20Calendar%20Year%202018.pdf

[28] Danielle Kaeble, “Probation and parole in the United States, 2016,” Bureau of Justice Statistics, April 2018, 22. https://www.bjs.gov/content/pub/pdf/ppus16.pdf

[29] Ibid, 4.

[30] Ibid, 4.

[31] Schiraldi, V.; Bradner, K. (2020, March). Racial Inequities in New York Parole Supervision. Retrieved January 18, 2021, from https://justicelab.columbia.edu/content/racial-inequities-new-york-parole-supervision

[32] New York State Bar Association, 4.

[33] Ibid, 4.

[34] Chris Mai and Ram Subramania, “The Price of Prisons: Examining State Spending Trends, 2010 – 2015,” Vera Institute of Justice, May 2017. https://www.vera.org/downloads/publications/the-price-of-prisons-2015-state-spending-trends.pdf

[35] Correctional Association of New York, 2019.

[36] Edward McKinley and Amanda Fries, “A ‘broken’ parole process: Data shows widened racial bias,” Times Union, November 22, 2020. https://www.timesunion.com/news/article/A-broken-parole-process-Data-show-widening-15739596.php

[37] Kendra Bradner and Vincent Schiraldi, “Racial Inequities in New York Parole Supervision,” Columbia University Justice Lab, March 2020, 5.

[38] Ibid, 8.

[39] Ibid, 10.

[40] New York Department of Corrections and Community Supervision, Table 3.

[41] “Time Served: The High Cost, Low Return on Longer Prison Terms,” Pew Charitable Trust’s Center on States, June 2012. https://www.pewtrusts.org/~/media/legacy/uploadedfiles/wwwpewtrustsorg/reports/sentencing_and_corrections/prisontimeservedpdf.pdf

[42] Andres F. Rengifo and Christine  S. Scott-Hayward, “Assessing the Effectiveness of Intermediate Sanctions in Multnomah County, Oregon,” Vera Institute of Justice, June 2008, iii. http://archive.vera.org/sites/default/files/resources/downloads/Final_Multnomah_Report.pdf