Parole and Politics Shouldn't Mix

, New York Law Journal

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Once again the Legislature is examining parole, this time the Parole Board, which is the heart of the system.

As a veteran of the Parole Board having served 12 years, I observed the confusion of the mandate up close. When I was appointed to the New York Board, someone asked me to define my work and my answer was "to stand between the governor and the gun."

The business of paroling is to sit at the pleasure of the governor and although unspoken, it is implicit in the appointment that one be expected to be sensitive in decision-making to needs for a budget escape hatch, political appeasement, media hype and interest groups' pressure. In this respect the board plays a valuable fall guy.

At the heart of the agency culture that overwhelmingly denies parole release to inmates, in spite of their meeting the statutory standard, is a board that sits due to political patronage. There is now no such job as a "professional parole commissioner," but rather appointees who come chiefly from the law enforcement community (not to be confused with criminal justice) and a smattering of clerics and the few practitioners who had the political heft to be rewarded by the salary, power and control. We need to call for a new occupation of practitioners trained, skilled and 'hired' to become parole reviewers. It is time to call for a trained field of Board of Parole professionals and hire them.

The invincibility of each appointed commissioner stems from their individual power base and does not lead to collegial working conditions nor lend itself to any table of organization for leadership structure. During my time the board was one that not so quietly saw itself as community avengers and wrongly interpreted parole as forgiveness, granting it scarcely. While I have heard that though names and faces among commissioners have changed, things remain the same and giving that credence is the rising tide of opposition to the process, steady decrease in release rates and increased complaints from those long-term inmates continually denied release. More practitioners have jumped in to rectify what they see as injustice and more appeals are being brought forth.

Here's a quote I saved spoken by an interviewing commissioner: "Society itself has no answer for how much is enough (time). We don't have any answer. God doesn't tell us. He certainly didn't give the knowledge to know with certainty how much is enough for killing somebody…and yet in a few minutes, sometime today, this afternoon, this panel is going to decide how much is enough with you. We are going to make a decision because we are in a position. That's our job to do. And we are going to do it. But I want to tell you humbly, it's not written in stone. We don't know how much is enough. We don't have the answer…you pose a dilemma to us."

The denial but subsequent winning appeal came with the court's strong admonition: "The establishment of penal policy is not the role of the Parole Board or any other administrative agency and these remarks reveal a fundamental misunderstanding of the limitations of administrative power. The torturous and difficult decisions involved in determining the appropriate penalty to be imposed for the commission of a particular crime is fundamentally a function which belongs in the hands of the elected officials to be performed in open and considered debate. It is the province of the legislative process, except insofar as the legislature has entrusted, within certain parameters, the imposition of individual sentences to the judiciary. The due operation of those processes has seen fit to punish petitioner with a sentence of 20 years to life. The role of the Parole Board is not to resentence petitioner according to the personal opinions of its members as to the appropriate penalty for murder, but to determine whether, as of this moment, given all the relevant statutory factors, he should be released."

History seems to tell us the board has taken little notice of the court's direction.

Eliminating the Parole Board is no remedy; the board serves an essential purpose in the criminal justice system and the community. If computers could do this, we'd be using computers. The human ingredient that enters into the parole discussion among all the parties can never be underestimated. Unlike the many invisible parts of the system on the fast track from arrest, conviction and incarceration, the Parole Board is the last stop before the exit and risks with every decision being the target of the public's second guessing. Without parole, correctional facilities would be a snake pit of bad behavior without incentive or hope for release and the state budget would reach deeper down in every taxpayer's pocket.

The job of a Parole Commissioner, regardless of how they get there, is a daunting challenge: who can imagine fulfilling the legislative directives while hearing echoes of the "chilling effects," who can impartially make a release decision the day after interviewing the victims of the offender, who can get the proper bearing of an already dehumanized person being interviewed at a distance on camera, who can withstand peer influence? Who has the integrity and courage to make decisions without fear of job security and political reprisals?

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