DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION
NOTICE OF ADOPTION
I.D No. CCS-51-13-00013-A
Filing No. 632
Filing Date. Jul. 14, 2014
Effective Date. Jul. 30, 2014
Parole Board Decision-Making
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
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, sections 259-c(4) and (11)
Subject:
Parole Board decision-making.
Purpose:
To reduce to regulation the Parole Board's written procedures for parole release decision-making.
Text or summary was published
in the December 18, 2013 issue of the Register, I.D. No. CCS-51-13-00013-P.
Final rule as compared with last published rule:
No changes.
Text of rule and any required statements and analyses may be obtained from:
Terrence X. Tracy, Counsel, Board of Parole, Department of Corrections and Community Supervision, A. Harriman State Campus, Bldg. 2, 1220 Washington Avenue, Albany, N.Y. 12226, (518) 473-5671, email: terrence.tracy@doccs.ny.gov
Initial Review of Rule
As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2017, which is no later than the 3rd year after the year in which this rule is being adopted.
Assessment of Public Comment
Following publication of the Parole Board’s proposed rule making on December 18, 2013, in excess of 200 comments were received during the statutory 45 day comment period. The comments came from a wide spectrum of the public, including inmates, families and friends of inmates, offender advocacy organizations, organizations that provide services to inmates following their release to community supervision, bar associations, attorneys, former members of the Board of Parole, members of the New York State Assembly and the general public. More particularly, comments were received from: the New York State Defenders Association; Center for Community Alternatives; Community Services Society; Correctional Association of New York and the Release Aging People in Prison “RAPP” Campaign; Hon. Daniel O’Donnell, Chairperson, Assembly Standing Committee on Correction and Hon. Kenneth I. Zebrowski, Assembly Chair, Administrative Regulations Review Commission; Solidarity Committee of the Capital District; Prison Action Network; New York State Catholic Conference; The Legal Aid Society of New York; National Lawyers Guild; Riverside Church of New York City, “Ending Parole Abuses – Reuniting Families Campaign”; Lincoln Square Legal Services, Inc.; Lifers and Long Termers Organization of Otisville Correctional Facility; Prisoners Legal Services of New York; Brooklyn Defenders Services; Mental Health Alternatives to Solitary Confinement; New York State Bar Association, Committee on Civil Rights and Criminal Justice Section; The Fortune Society; New York State Prisoner Justice Network; Center for Constitutional Rights; The Association of the Bar of the City of New York; The Legal Action Center; and, The Solidarity Committee of the Capital District. Following its consideration of the comments, the Parole Board determined that no changes to the rules proposed by the December 18, 2013 Notice of Proposed Rule Making were warranted, and accordingly, during a regularly scheduled business meeting held on April 21, 2014 at which a quorum was present, it voted to adopt the rules as proposed. Given the number of comments received, separately addressing the substance of each letter is not practical, particularly given the common themes, observations and suggestions contained in a majority of the comments; accordingly, the substance of the concerns raised will be summarized and addressed separately.
The primary concern was that the rule making fails to comport with section 259-c(4) of the Executive Law. Pursuant to Chapter 62 of the Laws of 2011, Part C, subpart A, § 38-b, section 259-c(4) of the Executive Law was amended so as to require the Board to establish “written procedures for its use in making parole decisions.” The amendment to this provision of the Executive Law also provides that “[s]uch procedure shall incorporate risk and needs principles to measure the rehabilitation of persons appearing before the Board, [their] likelihood of success. . . upon release, and assist members of the. . . board. . . in determining which inmates may be released to parole supervision.” Executive Law § 259-c(4). By Memorandum dated October 5, 2011, Andrea W. Evans, the former Chairwoman of the Board, provided the Board with the written procedures to be followed under Executive Law § 259-c(4), as amended in 2011. The written procedures of October 5, 2011 instructed the Board as to the factors it remains statutorily obligated to consider under section Executive Law § 259-i(2)(c)(A), and further, advised the Board as to the standards it must apply when assessing the appropriateness for granting an inmate parole. With the Board’s anticipated use of the COMPAS risk and needs assessment instrument, the written procedures of October 5, 2011 instructed as to when the Board should use the COMPAS instrument, as well as the transitional accountability plan (“TAP”), when those documents are made available for the Board’s use. This rule making memorializes in regulation what is provided for by the written procedures of October 5, 2011. Courts have found that the Board’s decision making under the written procedures of October 5, 2011 is consistent with what is called for by Executive Law § 259-c(4) when read in concert with section 259-i(2)(c)(A) of the Executive Law.
The amendments to 9 N.Y.C.R.R. § 8002.3 incorporate the statutory factors set forth in Executive Law § 259-i(2)(c)(A)(i) through (viii) and require the Board consider the same. Included among the factors to be considered is the most recent risk and needs assessment prepared by Department staff. The Board’s consideration of the results derived from a completed risk and needs assessment, along with its consideration of an inmate’s institutional programming record, disciplinary record and education record, infuses into its decision making process risk and needs principles that measure an inmate’s rehabilitation, assess his or her risk to the community if released and assist the Board in assessing the appropriateness for granting parole. The amendments to 9 N.Y.C.R.R. § 8002.3 also require the Board to consider the most current case plan (see Correction Law § 71-a) prepared by the Department. When available for the Board’s consideration, this document will provide the Board with information about the inmate’s rehabilitative efforts while incarcerated. Accordingly, the Board’s procedures properly articulate the factors the Board must consider consistent with the Executive Law. The Board’s rule making neither adds to nor removes any of the statutory factors required by the Executive Law.
Apart from the factors to be considered by the Board in the parole decision making process, the procedures properly instruct the Board as to which of the two standards it should apply when assessing the appropriateness for granting parole. See 9 N.Y.C.R.R. § § 8002.1(a) and (b). The 2011 amendments to the Executive Law and the Correction Law in no way altered either of the two standards the Board applies in its decision making. Accordingly, the Board did not revise its proposed rules to provide for standards of review different from what is provided for under the law.
Finally, in accordance with Executive Law § 259-i(2)(a), this rule making properly instructs the Board that its decisions denying parole shall be in writing with the factors and reasons for the decision being set forth in detail, and not in conclusory terms. In light of the foregoing, the Board regards its present rule making as being fully consistent with sections 259-c(4), 259-i(2)(a) and 259-i(2)(c)(A) of the Executive Law.
To the extent the comments suggest the written procedures specify the amount of weight the Board must ascribe to any one of the statutory factors, the Board does not believe this is warranted under the Executive Law. Courts that have reviewed Board decisions denying parole, have determined that nothing within the 2011 legislation necessitates a departure from the well-settled principle that the Board retains the authority and discretion to place that amount of weight it deems appropriate to any one of the statutory factors it must consider. Given the unique attributes of every inmate appearing before the Board and its need to conduct a case-by-case consideration of each inmate, the Board determined that any changes to its rules in light of this comment were not warranted.
To the extent the comments suggested that the static statutory factors, e.g., crime of conviction or criminal history, not be considered after an inmate has appeared before the Board on numerous occasions, the Board sees no basis for revising its rules. Executive Law § 259-i(2)(c)(A) provides that each time an inmate is considered for the possible grant of parole, that all of the statutory factors be considered. Accordingly, this suggestion is not consistent with what is required under the Executive Law.
Some of the comments suggested that the order in which the statutory factors are listed in the Executive Law reflect a legislative prerogative as to their significance in the parole decision making process. Nothing in the Executive Law supports this comment. Accordingly, no changes were made to the Board’s rules in response to this comment.
As for the comments suggesting that the written procedures make an inmate’s age a factor to be considered, nothing within the Executive Law calls for age to be a separate factor the Board must consider. Secondly, the documents made available to the Board already indicate the inmate’s date of birth. Since the Board already considers this information, this comment was not regarded as warranting any change to the Board’s rules.
To the extent the comments express concern about the use of “may” in subsections 11 and 12 of 9 N.Y.C.R.R. section 8002.3, this is regarded as necessary by the Board. First, the legislation calling for the use of case plans became effective September 30, 2011. Accordingly, there are inmates appearing before the Board who were remanded to State custody prior to September 30, 2011 who are not subject to this provision. Where such is the case, the absence of a case plan should not render infirm the Board’s decision making under section 259-i(c)(2)(A). Also, the Board already is provided with information about an inmate’s programming. In the documents made available to the Board, it is informed of the programs recommended for and either completed or refused by the inmate. The Board is also apprised of the educational and vocational accomplishments the inmate has achieved while incarcerated; in large part, the same information presented through a case plan.
As for a risk and needs assessment, there may be instances where the assessment cannot be accomplished due to matters unique to the inmate, such as severe mental illness. Nevertheless in those instances when an instrument, although appropriate, has not been prepared for the Board’s consideration, the Board, consistent with governing case law has been setting aside, and will continue to set aside, decisions denying parole and affording de novo release consideration where the interviewing panel has the benefit of a completed risk and needs assessment. Accordingly, the Board did not see any need to change its proposed rule making in light of these comments.
A number of the comments suggested that the written procedures of the Board obligate it to state in writing what steps the inmate should take to increase his or her likelihood of being granted parole. Nothing within the Executive Law calls for the Board to provide this type of information in its decisions denying parole; accordingly, no revisions of the procedures were made in light of this comment.
Many of the comments suggested that the Board’s written procedures create a presumption favoring the grant of parole when the results of a risk and needs assessment indicate a low risk in the measured areas. Nothing in the Executive Law warrants either a presumption of this nature or the Board affording this amount of weight to the results of a completed risk and needs assessment. While the current risk and needs instrument assists the Board in its decision making, the results of the instrument in no way abrogate or diminish the Board’s obligation to consider and weigh all of the statutory factors. Courts have determined that the results of a risk and needs instrument consideration constitute one of the many pieces of information the Board must now consider and weigh when making its decision. Like all of the other documents and information the Board considers pursuant to section 259-i(2)(c)(A) of the Executive Law, the Board retains the authority and discretion to place whatever weight that it deems appropriate to the information derived from a completed instrument.
Finally, a number of those who commented on the Board’s proposed rule making expressed concern about the repeal of 9 N.Y.C.C.R Part 8001. The concern was that with the repeal of this part, the Board is positioned to effectively resentence inmates being considered for parole. Chapter 62 of the Laws of 2011, Part C, subpart A, § 38-f repealed Executive Law § 259-i(1). That portion of the former Executive Law, i.e., Executive Law § 259-i(1), focused primarily upon a function that is no longer performed by the Parole Board, i.e., the setting of minimum periods of imprisonment. Inmates now received into State custody on indeterminate sentences have had their minimum sentences set by the courts. Part 8001 were the guidelines the Board used for setting minimum periods of imprisonment. Because the Board is no longer authorized to establish an inmate's minimum period of imprisonment, 9 N.Y.C.R.R. Part 8001is being repealed in its entirety.
