NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A1908
SPONSOR: O'Donnell TITLE OF BILL:
An act to amend the executive law, in relation to appeals of parole
determination
PURPOSE:
To change the parole appeal process to provide for timely and comprehen-
sive review of parole denials.
SUMMARY OF PROVISIONS:
Section 1 amends subdivision 4 of section 259-i of the executive law.
Section 2 amends subdivision 5 of section 259-i of the executive law.
Section 3 amends subdivision i of paragraph a of subdivision 6 of the
executive law.
Section 4 provides for an effective date.
JUSTIFICATION:
When an inmate is denied release by the Board of Parole he or she may
file an administrative appeal of that denial to the board's Appeals Unit
followed by an Article 78 petition to Supreme Court should the decision
be upheld by the Appeals Unit. Under the board's own rules, the Appeals
Unit has 120 days to answer an administrative appeal. An inmate has a
right to counsel for the administrative appeals process but not for an
Article 78 petition to the court.
According to data from the Board of Parole, in 2012 and 2013, the
Appeals Unit received more than 4000 perfected appeals and issued deci-
sions in 2699 such appeals, or roughly two thirds. Of the latter, 2628
decisions were affirmed and 71 were reversed. During those same two
years, only 4 decisions were made within the allotted four-month time
period while 2695 were decided after the requisite deadline. Most
appeals, 1279, were decided between six and nine months after the
initial decision was issued by the board.
In other words almost every inmate who appealed a parole determination
had to wait four months while the Appeals Unit failed to make a decision
before he or she was able to file an Article 78 petition in court chal-
lenging the denial of parole. Of the inmates who eventually received a
decision from the Appeals Unit, nearly all of them were affirmations of
the board's determination. This is not a meaningful appeal process and
is a waste of time for both the inmate and appointed counsel. Addi-
tionally, since the board does not currently provide timely administra-
tive decisions to the court, the court is in no worse position by treat-
ing the parole board's determination as a final decision.
When an inmate is finally able to file a petition challenging the parole
denial, there is usually an additional delay of many months before the
board produces a transcript of the parole interview to the petitioner
and to the court. The board reports that when they use State hearing
reporters, there is an average 4- to 6-month delay before the transcript
is received by its own transcription unit. A month or two after the
transcript is finalized the attorney general's office answers the
inmate's petition and, several months later, the court issues a deci-
sion.
By law a parole "hit," that is, the waiting period before an inmate is
eligible to reappear before the board, can be no more than two years.
In most cases, by the time the court is able to make a decision on the
petition, the inmate is already scheduled to see the board again. Very
few cases make it to the Appellate Division because the majority of them
are moot by virtue of having reached the inmate's next scheduled appear-
ance before the board. By delay, the board escapes review of its deci-
sions.
The parole appeal process is also crippled by the fact that the board
does not send the entire record below to the court for review. Recent-
ly, a superintendent of a correctional facility appeared before the
board to testify on behalf of an inmate seeking parole, a very rare
occurrence. When the board denied parole release, the inmate appealed.
The transcript given to the court did not include the superintendent's
testimony. The board only sent a transcript of the interview of the
inmate himself. The board routinely fails to forward letters of support
and other documents to the court reviewing the record on appeal.
This bill aims to speed up the process of parole appeals and provide for
needed court oversight of the board's decisions. It permits inmates to
bypass the parole appeals unit to appeal directly to the court and
allows the court to receive the entire record that had been before the
board. It transfers the right to counsel from the administrative appeal
to the Article 78 petitioning process. It also permits the court broader
remedies upon review, including the right to order an inmate to be
released from prison. The bill requires the board to make a timely tran-
script of its hearings and provide an audio recording of the hearing,
including any testimony by witnesses other than the inmate being consid-
ered for parole.
LEGISLATIVE HISTORY:
Advanced to Third Reading in 2016.
FISCAL IMPLICATIONS:
None.
LOCAL FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
This act shall take effect one hundred twenty days after it becomes law.
