DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION
PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. CCS-51-13-00013-P
Parole Board Decision-Making
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Repeal of Part 8001; amendment of sections 8002.1(a), (b), 8002.2(a) and 8002.3 of Title 9 NYCRR.
Statutory authority:
Executive Law, section 59-c
Subject:
Parole Board decision-making.
Purpose:
To reduce to regulation the Parole Board's written procedures for parole release decision-making.
Substance of proposed rule (Full text is posted at the following State website:doccs.ny.gov/RulesRegs/index.html):
On March 31, 2011, the Division of Parole and Department of Correctional Services were merged into one State agency pursuant to Chapter 62 of the Laws of 2011, Part C, subpart A. Contained within that legislation were various amendments to Article 12-b of the Executive Law. In particular, Executive Law §§ 259-c(4) and 259-i(1) were amended to remove the requirement that the Board of Parole utilize guidelines for setting minimum periods of imprisonment and making parole release decisions. In light of these changes to the Executive Law, the Board is repealing 9 N.Y.C.R.R. Part 8001 in it entirety, for that part is devoted to the use and application of the no longer required guidelines.
In addition, the amendment to Executive Law § 259-c(4) called for the Parole Board to establish written procedures for its use in making parole release decisions, and that such procedures incorporate risk and needs principles to measure the rehabilitation of inmates, their likelihood of success if released and assist the Board in making its release decisions. By memorandum dated October 5, 2011, former Parole Board Chairwoman Andrea W. Evans outlined this change to section 259(4) of the Executive Law; since that time, the memorandum has served as the written procedures of the Board under Executive Law § 259-c(4). The proposed rule making memorializes in regulation the Parole Board's written procedures of October 5, 2011 under Executive Law § 259-c(4).
Section 8002.1 of 9 N.Y.C.R.R. is being amended to make technical changes warranted as a result of the merger of the former Department of Correctional Services and the Division of Parole. This section continues to specify which of the two standards the Board must apply when making its release decision, as well as the standards themselves. As before, which standard the Board applies depends upon the inmate being granted a certificate of earned eligibility pursuant to Correction Law § 805.
Section 8002.2 of 9 N.Y.C.R.R. is being amended to make technical changes warranted as a result of the merger of the former Department of Correctional Services and the Division of Parole. This section continues to provide for the scheduling of a parole release interview within the statutorily prescribed time frame.
Section 8002.3 of 9 N.Y.C.R.R. is being amended so that consistent with Executive Law § 259-i(2)(c)(A), the regulation sets forth within one subdivision all of the statutory factors the Board must consider when making a release decision. Included within these factors to be considered are the case plan, as well as the risk and needs assessment, that staff of the Department of Corrections and Community Supervision may have prepared for the inmate.
Text of proposed rule and any required statements and analyses may be obtained from:
Terrence X. Tracy, Counsel, Board of Parole, Dept. of Corrections & Community Supervision, Parole Board, The Harriman State Campus -Bldg. #2, 1220 Washington Ave., Albany, N.Y. 12226-2050, (518) 473-5671, email: terrence.tracy@doccs.ny.gov
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Regulatory Impact Statement
1. Statutory Authority: Section 259-c(4) of the Executive Law authorizes the Board of Parole to establish written procedures for its use in making parole decisions. Section 259-c(11) authorizes the Board to make rules for the conduct of its work and for the Chairman to file the same with the Secretary of State.
2. Legislative Objectives: On March 31, 2011, the Division of Parole and Department of Correctional Services were merged into one State agency pursuant to Chapter 62 of the Laws of 2011, Part C, subpart A. Contained within that legislation were amendments to Article 12-b of the Executive Law. Among those amendments was a change to Executive Law § 259-c(4) requiring the Board of Parole to:
establish written procedures for its use in making parole decisions as required by law. Such written procedures shall incorporate risk and needs principles to measure the rehabilitation of persons appearing before the Board, the likelihood of success of such persons upon release, and assist members of the State Board of Parole in determining which inmates may be released to parole supervision.
See Chapter 62 of the Laws of 2011, Part C, subpart A, § 38-b. The amendment to Executive Law § 259-c(4) became effective October 1, 2011. See Chapter 62 of the Laws of 2011, Part C, subpart A, § 49-f. The proposed amendments to certain sections of Title 9 N.Y.C.R.R. Part 8002 reduce to regulation the Parole Board’s written procedures for making parole decisions as required by law.
In addition to the above-described amendment of Executive Law § 259-c(4), section 38-f of Chapter 62 of the Laws of 2011, Part C, subpart A repealed Executive Law § 259-i(1). That portion of the former Executive Law conferred upon the Parole Board the authority to establish an inmate’s minimum period of imprisonment and prescribed the manner for doing so. As part of that process, the Board was to make use of “guidelines” to structure its decision making; the guidelines are set forth in Title 9 N.Y.C.R.R. Part 8001. Because the Board is no longer statutorily authorized to establish an inmate's minimum period of imprisonment and the Executive Law no longer requires guidelines for both that function, as well as the Board's parole release decision-making function, Title 9 N.Y.C.R.R. Part 8001 is being repealed in its entirety through this proposed rule-making.
3. Needs and Benefits: Section 259-c(4) requires the Parole Board to establish written procedures for its parole release decision making. By memorandum dated October 5, 2011, former Parole Board Chairwoman Andrea W. Evans outlined the change made to Executive Law § 259-c(4). In addition, Chairwoman Evans’ memorandum instructed the Parole Board as to how it should proceed in light of this legislative change when assessing the appropriateness of granting an inmate parole pursuant to section 259-i of the Executive Law. Since October 5, 2011, the memorandum of former Chairwoman Evans has served as the written procedures of the Board under section 259-c(4) of the Executive Law. Through this proposed rule making, the Board is memorializing in regulation the written procedures of October 5, 2011.
In addition, with the repeal of Executive Law § 259-i(1), the Parole Board no longer requires regulations or guidelines for the purpose of setting an inmate’s minimum period of imprisonment. Accordingly, there is no longer any justification for Title 9 N.Y.C.R.R Part 8001 as a body of regulations to govern the decision making process of the Board. The proposed rule making will bring the Parole Board’s regulations into conformity with the 2011 amendments to Article 12-b of the Executive Law and its current practices thereunder.
4. Costs: The proposed rule making will not impose any additional costs.
5. Local Government Mandates: The proposed rule making does not impose any new mandates or legal obligations on local governments.
6. Paperwork: The proposed rule making will not require additional paperwork.
7. Duplication: The proposed rule making will not duplicate any existing State or federal rule.
8. Alternatives: The approach to parole decision making as reflected by the proposed rule making has been deemed appropriate by courts that have reviewed decisions of the Parole Board made after October 1, 2011, the effective date of the amendments made to section 259-c(4) of the Executive Law.
9. Federal Standards: There are no federal standards governing the subject matter of the proposed rulemaking.
10. Compliance Schedule: The proposed rule making will published by a notice of proposed rule making and the text of the rule shall be available on the website maintained by the Department of Corrections and Community Supervision; a 45 day comment period shall follow publication of the notice of proposed rule making. The proposed rule making shall be effective upon the filing of a notice of adoption.
Regulatory Flexibility Analysis
A Regulatory Flexibility Analysis for Small Business and Local Government is not being submitted with this notice, for the proposed rule changes will have no adverse impact upon small businesses and local governments, nor do the rule changes impose any reporting, record keeping or other compliance requirements upon small businesses and local governments. Small businesses and local governments have no role in the Parole Board’s parole release decision-making function. The proposed rule making with only affect the Parole Board’s decision-making practices for inmates confined in State correctional facilities.
Rural Area Flexibility Analysis
A Rural Area Flexibility Analysis is not being submitted with this notice, for the proposed rules will have no adverse impact upon rural areas, nor do the proposed rules impose any reporting, record keeping or other compliance requirements upon rural areas. The proposed rules will only affect the Parole Board’s decision-making practices for inmates confined in State correctional facilities.
Job Impact Statement
A Job Impact Statement is not being submitted with this notice, for the proposed rules will have no adverse impact upon jobs or employment opportunities, nor do the proposed rules impose any reporting, record keeping or other compliance requirements upon employers. The proposed rules only affect the decision-making practices of the Parole Board for inmates confined in State correctional facilities.
