Parole Board's Plan to Enact Risk Analysis Criticized

, New York Law Journal

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ALBANY - Nearly three years after the Legislature directed the Board of Parole to use a risk/needs analysis to determine if an inmate is ready for release, a plan to implement that directive is drawing fire from, among others, lawmakers who say the agency has missed the mark.

See comments submitted on the proposed rule.

Two assemblymen, who said the legislation was aimed at emphasizing the offender's rehabilitation and de-emphasizing the crime of conviction, claim that nothing has changed since the Legislature approved the measure, and nothing is likely to change, under the board's implementation plan.

"We are extremely disappointed to see that the proposed rules contain no substantive change to the working requirements of the Parole Board," Assemblymen Daniel O'Donnell, D-Manhattan, and Kenneth Zebrowski, D-New City, wrote in a Jan. 21 letter to the parole board.

Their letter was prompted by a draft rule circulated by the board in December on its proposed implementation of a 2011 amendment to Executive Law §259(c). The Parole Board insists it has been in compliance all along, but has only recently gotten around to codifying its new obligations.

The 2011 amendment is sparsely worded and offers little insight into its intended purpose. It required the parole board to establish written "procedures," striking out the word "guidelines," for release decisions. It also eliminated language stating that the board "may" consider an inmate's risk and needs and replaced it with a clause that says the panel "shall" consider such factors.

Virtually from the day it was enacted, the amendment generated confusion and controversy over whether it signaled a substantive change in how the parole board functions, or simply tweaked existing criteria. The trial courts are divided on the question and there is little appellate authority.

Advocates have argued that the amendment clearly directed the board to alter its procedures and place more weight on the inmate's current disposition than the instant offense.

Some judges, particularly Supreme Court Justice Richard Mott of Columbia County, have reversed parole board determinations that seemingly relied solely on the inmate's crime of conviction and forced the panel to reconsider. Mott has been especially critical of decisions where the parole board's own risk assessment determined the offender was highly unlikely to re-offend, and the panel denied parole on the seemingly contradictory grounds that release would jeopardize public safety (NYLJ, Oct. 1, 2013 and Aug. 20, 2013).

On the other hand, the parole board, and most judges who have reviewed the matter, argue that the amendment merely provided an updated tool for measuring inmate rehabilitation—one of many factors it must consider—and did not alter the process. The implementation plan, which was published for public comment in December, reflects that view—and has set off a flurry of criticism.

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