Let Courts Review Parole Decisions

Section 2 amends subdivision 5 of section 259-i of the executive law.

Section 3 amends subparagraph i of paragraph a of subdivision 6 of section 259-i of the executive law.

Section 4 states the act shall take effect on the one hundred eightieth day after the signing of this bill into law.

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, 1,279, 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 they were able to file an Article 78 petition in court challeng- ing the denial of parole. Of the inmates who eventually received a deci- sion 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. Additionally, since the board does not currently provide timely administrative deci- sions to the court, the court is in no worse position by treating 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

S.474 of 2023-2024; Referred to Crime Victims, Crime and Correction;

S.2141 of 2021-22; Referred to Crime Victims, Crime and Correction;

S.2697 of 2019-20; Referred to Crime Victims, Crime and Correction;

A.1908 of 2017-18; Referred to Ways and Means;

A.2463 of 2015-16; Referred to Ways and Means, Advanced to Third Reading

Fiscal implications

None.

Effective date

This act shall take effect one hundred eighty days after it becomes law.