Cheryl L. Kates P.C.
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Effect of Risk Assessment Rule on Parole Decisions Is Unclear — By John Caher

ALBANY - A new law requiring the state parole board to consider inmates' rehabilitation and use a "risk assessment" procedure to gauge whether parole-eligible inmates have reformed appears to be having little effect as release rates are largely unchanged and the board is routinely basing its denials on boilerplate statutory language emphasizing the offense, records suggest.

In October, the panel was legislatively required to "incorporate risk and needs principles to measure the rehabilitation of persons appearing before the board, the likelihood of success of such persons upon release."

The board did so, but advocates say the new process appears to have no impact.

"My experience has been it doesn't matter because most of the guys are scoring the lowest risk assessment level and they are still hitting them and saying they are a threat to society," said Cheryl Kates, an attorney near Rochester whose practice consists of advocating for inmates seeking parole. "It doesn't make any sense. They've added an evidence-based procedure but still cite the statute the same way they did previously. It is just a façade. It is status quo."

Similarly, Edward Hammock, a former parole board chairman who now practices criminal law, much of it post-conviction, said he has not seen any change.

"It is my impression that nothing is really happening," Hammock said. "Why do a risk assessment if you are not going to deal with it when considering someone for release?"

Part of the problem is that there is uncertainty about why the statute was changed and what the revision was supposed to achieve. It is not clear if the revision represents a sea change in the operations of the parole board, a tweak of one of the existing factors it takes into consideration, or something in between.

Since the provision was nestled into a 2011-12 executive budget bill and did not result from a legislative initiative, there was no justification memo from a sponsoring lawmaker, no approval message from the governor—nothing to provide insight into what was intended.

Officials and advocates have different views on what the revision means and requires, and ultimately the courts will be asked to sort it out.

But to date, the little judicial authority that does exist is contradictory and the appellate courts have yet to speak on the issue. Even then, the judges will have nothing to go on other than the sparse language of the amended statute.

In the meantime, advocates, and lawmakers who helped get the item into a budget bill, view the revision as a mandatory shift in focus, with the parole board directed to view eligible inmates in the light of who they have become rather than who they were when they committed their crime.

But the board sees it simply as an updated mechanism for viewing an inmate's rehabilitation, one of the several statutory factors it already takes into consideration.

In an Oct. 5 memo to her colleagues explaining the new provision, parole board chair Andrea Evans directed the members to "ascertain what steps an inmate has taken toward their rehabilitation and the likelihood of their success once released to parole supervision."

But Evans also advised the board that "the standard for assessing the appropriateness of release, as well as the statutory criteria…has not changed."

But Philip Genty, a professor at Columbia Law School and director of its Prisoners and Families Clinic, is not sure there has been no change in the statutory standards, even though the section that lists the criteria is unaltered.

Genty noted that Executive Law §259-i(2)(a) says that release determinations must be in accordance with guidelines requiring written procedures focused on rehabilitation.

"In that sense, the criteria have changed, and parole seems to be out of compliance with the new requirements," Genty said.

COMPAS Assessment

In any case, parole addressed the new provision by adopting the widely used, evidence-based COMPAS (Correctional Offender Management Profiling for Alternative Sanction) assessment tool developed by the Northpointe Institute for Public Management. It replaced outdated "guidelines" that had been used since the late 1970s to help the board determine if an inmate is ready for release.

COMPAS delves deeply into the offender's criminal record and disciplinary history, family and social support network, use of drugs and readiness for employment in predicting risk.

It includes a questionnaire that asks the inmate to reveal how difficult it will be to control his or her temper, find friends who are a good influence and deal with loneliness.

Inmates are asked to state whether they agree or disagree with such statements as: "I feel other people get more breaks than me"; "I will argue to win with other people even over unimportant things"; "I notice that other people seem afraid of me"; and "When dealing with new people, I quickly figure out whether they are strong or weak."

According to the Department of Corrections and Community Supervision (DOCCS), the evaluation is designed to assess three risks—the risk of felony violence, the risk of re-arrest and the risk of absconding while under parole supervision. It said in an e-mail that the board was trained in the use of the risk assessment instrument last summer and will undergo "intensive training" on June 22.

"At this nascent stage, the board has made great headway in looking at parole-eligible offenders through another angle of the rehabilitation/risk and needs prism," Peter Cutler, the DOCCS public information director, said in an e-mail. He said the "dynamic process" for "assessing an offender's risks of re-offending, as well as their needs to remain law abiding citizens," is still "evolving."

Cutler said the risk tool was embraced to foster an "approach that is more in line with today's criminogenic science" and to implement procedures that "incorporate risk and needs principles to measure the rehabilitation of persons appearing before the board and the likelihood of their success" if released.

But he said the risk instrument is only "one of many informative documents" that the board considers, and was never intended to be the "controlling factor."

Assemblyman Jeffrion Aubry, D-Queens, who was largely responsible for getting the provision into a budget bill, disagrees.

Aubry said he intended the risk assessment to play a major role in helping the parole board determine if an offender is ready for release. So far, Aubry said, he sees no indication that it is seriously considered, and he is troubled.

"We have had lots of conversations with the [parole] department, to make sure they understand the intent of the legislation, and ultimately we are looking for hearings to really get to the heart of what is going on and not fulfilling our mandates," Aubry said.

Familiar Pattern

An examination of 10 recent parole decisions, selected randomly, revealed a pattern familiar to attorneys and advocates who monitor these matters.

In every case, different panels of the parole board at different prisons denied release to the inmate with an admonition along the lines of "release at this time would deprecate the seriousness of the offense and undermine respect for the law," a phrase in Executive Law §259 that the board has routinely cited in its determinations for years.

In none of the decisions did the board reference rehabilitation in any more than a passing comment, typically along the lines of "your institutional accomplishments and release plans are noted." Often, the board simply says it "considered required statutory factors."

Additionally, data provided by the Department of Corrections and Community Supervision show little movement in release rates:

• In the first three months of this year, 2,316 inmates have come before the parole board for their first interview and 463, or about 20 percent were released. In comparison, over the past three years 19 percent of the inmates appearing before the board for the first time were granted release.

• The release rate for A-1 violent offenders appearing for the first time has decreased considerably since the new law took effect. So far this year, fewer than 4 percent have been granted parole. Last year, 10 percent were released, and 11 percent were granted parole in 2009 and 2010.

• The board is releasing reappearing inmates—those who have been denied release in the past—at a higher rate. For the first three months of 2012, about 19 percent of these offenders have been released. Over the last three years, about 16.6 percent have been released. However, the reappearance approval rate has been increasing steadily since 2008 and it is not clear if the recent spike reflects a new policy, the influence of the COMPAS evaluation or merely continues a trend.

Aubry said part of the rationale for the revision was to provide the board with political cover if it releases someone with a violent past, or someone whose crime resulted in the death of a police officer.

"We know that parole board decisions are both administrative and political," Aubry said. "We passed legislation that ought to anesthetize them from that and give them the freedom to look at the inmate and determine whether or not they are a danger, as opposed to simply looking at the instant crime. That is the job they have, and they will have to bend to that."

Change Expected

Aubry said he is monitoring trends and expects to see change, noting that there are a number of vacancies and soon-to-open positions on the parole board.

"The governor has appointments available, and maybe he needs to use them," Aubry said.

Currently, six of the 19 parole board positions are vacant and several other commissioners are serving in expired terms.

By the end of this year, Governor Andrew Cuomo, whose campaign platform called for using risk/needs tools in preparing prisoners for release, will be able to appoint 13 of the 19 commissioners. All of the incumbents were appointed by previous governors.

Aubry said the failure of the board to recognize and reward the educational, occupational and rehabilitative efforts of offenders could prove counterproductive.

"We constantly hear from families and inmates who ask, 'Why do all this work to improve, to change, if the body that is there to review me doesn't recognize it?'" Aubry said.

Senator Ruth Hassell-Thompson, D-Mount Vernon, said the revised provision was designed to provide the parole board with a reasonably objective measure of an offender's progress, a means of redirecting focus away from the underlying crime.

"Parole is an opportunity, not a guarantee, but an opportunity, and I believe there should be criteria used to determine whether or not people are ready or prepared," she said. "But societal biases get in the way and good people make bad decisions, sometimes because they are afraid of the political environment and implications if one parolee commits a violent act while on parole."

The meaning of the revision and its effect on the parole board will eventually be determined by the courts. But with a law that has been in effect for only six months, there is little guidance to date and lower court rulings are in conflict.

Late last year, Supreme Court Justice Lawrence Ecker (See Profile) in Orange County held in Matter of Thwaites v. New York State Board of Parole, 34 Misc. 3d 694 (2011), that the board can no longer rely on "past-focused rhetoric" and must instead look to "future-focused risk assessment analysis"—language DOCCS stresses is nowhere to be found in the statute.

Ecker also held that the revised law must be applied retroactively, meaning that any inmate denied parole under the prior statute is entitled to another interview under the new statute (NYLJ, Dec. 27, 2011).

Thwaites has been cited by inmates in recent months who were denied parole before the law changed and who seek a new assessment. But Thwaites is under appeal and the agency's administrative appeals unit has said it will not follow the ruling and has advised the parole board to ignore it.

More recently, Acting Supreme Court Justice Richard Platkin in Albany (See Profile) held in Matter of Hamilton, 6463-11, that the provision is not retroactive and that the parole board retains the discretion "to accord greater weight and emphasis to the gravity of the instant offenses and the compatibility of petitioner's release with the welfare of society" (NYLJ, April 24). Platkin's holding follows the reasoning and current approach of the board.

John Caher can be contacted at jcaher@alm.com.

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