On Monday, April 24, RAPP members and other advocates challenged the New York State Parole Board to release greater numbers of people who have served long sentences.
By Shazzia Hines, LMSW and RAPP Organizer
• In December 2016, a front-page article in The New York Times said, “The New York State Board of Parole often operates like an assembly line, with inmates given mere minutes to make a case for their freedom. It is an impersonal process: Commissioners see dozens of cases a day, and most hearings are conducted via video conference. Decisions are frequently boilerplate and can sometimes seem arbitrary.”
To help remedy this problem, the parole board may want to consider hiring New York State Licensed Master’s Social Workers as parole commissioners. I believe that social workers are the most qualified professionals to take up a role that requires parole board members to conduct fair and comprehensive assessments to determine whether an incarcerated person is prepared to be released with conditions including community supervision. If I were an incarcerated person going for a parole hearing, I would only pray that the people reviewing my case were ethically responsible to value the dignity and worth of human beings as a basic professional guideline and code of conduct. Social workers are such people.
That New York Times article (“For Blacks Facing Parole, Signs of A Broken System”) makes it clear that the current parole board members are overpaid, under-qualified, and culturally incompetent. According to The Times, “Board members are mainly from upstate, earn more than $100,000 annually and hold their positions for years. They tend to have backgrounds in law enforcement rather than rehabilitation. Most are white; there is currently only one black man, and there are no Latino men.”
Contrast this with the Code of Ethics of the National Association of Social Workers, which states, under the section on the dignity and worth of human beings: “Social workers treat each person in a caring and respectful fashion, mindful of individual differences and cultural and ethnic diversity. Social workers promote clients’ socially responsible self-determination. Social workers seek to enhance clients’ capacity and opportunity to change and to address their own needs. Social workers are cognizant of their dual responsibility to clients and to the broader society. They seek to resolve conflicts between clients’ interests and the broader society’s interests in a socially responsible manner consistent with the values, ethical principles, and ethical standards of the profession.”
By the time they attend a parole hearing, most of our incarcerated elderly have long since rehabilitated themselves by taking college courses and creating programs demonstrating positive leadership. The fact that these elderly incarcerated women and men are consistently denied release on parole shows that the parole board lacks humility and competence. It exemplifies the board’s professional inability to adequately and comprehensively assess a person’s readiness for parole.
The parole board should function in a way that reflects those principles of social work—to look at a person as an individual, honoring their capacity to change and determining whether to release them based on who they are now and what they can offer to society. Parole boards should also act in the interest of society as a whole, meaning they should promote fairness and healing over revenge and hatred.
I conclude with a call to action for Governor Andrew Cuomo to appoint licensed masters level professional social workers, as five of the current parole commissioners’ terms are due to expire this year.
By the New York Times Editorial Board, January 3, 2017
Anyone who visits a prison these days might be shocked to see what looks more like a nursing home with bars and metal detectors. Prisoners put away years ago under the wave of draconian sentencing are now turning gray and frail, suffering from heart disease and hypertension and feeling the effects of Alzheimer’s and other age-related illnesses.
Corrections officials once thought they had time to prepare for this, but something unexpected happened. Federal data shows that prison inmates age more rapidly than people on the outside — because of stress, poor diet and lack of medical care — so much so that their infirmities qualify them as “elderly” at the age of 50.
This problem is overwhelming the state and federal prison systems’ ability to manage it. And unless prisons adopt a common-sense approach of releasing older inmates who present no danger to the public, this costly group could soon account for a full third of the population behind bars.
Granting early release to sick, elderly inmates with families who want to care for them would be the humane thing to do. But it also makes good policy sense, given that they are far less likely than the young to commit new crimes. For example, a 2012 study by the American Civil Liberties Union documented that criminal activity drops sharply as people age. In New York, the study found, just 4 percent of prisoners 65 or older return to prison with a new conviction within three years of release; only 7 percent of those who are 50 to 64 do so. In contrast, 16 percent of those 49 or younger return.
A 2015 report on the federal prison system published by the Justice Department’s Office of the Inspector General offers a sense of what managing aging inmates will cost if compassionate-release programs aren’t expanded. Older prisoners are already more expensive than younger ones; treating the sick is more costly in prisons. The costs will grow as prisons are forced to hire more and more people to help elderly inmates feed, bathe and dress themselves or to escort them on trips to see medical specialists. Some elderly inmates will also require costly infrastructure improvements, like elevators and wheelchair-accessible cells, bathrooms and passageways.
The inspector general’s report also found that the re-arrest rate for older inmates was relatively low compared with the rate for young inmates and said that many older inmates were good candidates for early release. But federal policies “limit the number of aging inmates who can be considered for early release and, as a result, few are actually released early,” the report explained. This problem is echoed at the state level, where eligibility for compassionate release is so strictly defined that parole boards almost never consider granting it.
Prisons, of course, cannot release people based solely on age. But the states and federal government can expand medical parole programs under which far too few terminally ill and physically disabled people are now released. In addition, parole boards across the country can screen older inmates for release using widely accepted measures to determine whether or not the inmate poses a risk. The best answer for the future is for state legislatures to keep moving away from the disproportionately harsh sentencing laws that brought us to this point in the first place.
New York Times, The Opinion Pages
September 6, 2016
By Jesse Wegman, Editorial Observer
On July 26, John MacKenzie went before the parole board at the Fishkill Correctional Facility in Beacon, N.Y., and made the case, once again, for his freedom. He had been locked up since 1975 for shooting and killing a Long Island police officer, Matthew Giglio, during a bungled robbery attempt. His sentence was 25 years to life — the maximum under state law.
On Aug. 2, he learned that the board had voted 2 to 1 against him. It was the 10th time in 16 years that he had been denied parole.
Later that day, he sent a handwritten letter to his daughter Denise, saying that “they’re hell bent on keeping me in prison” and “I don’t believe I’ll last much longer.”
On Aug. 4, another inmate found Mr. MacKenzie hanging by the neck from a bedsheet tied to the window bars of his cell. He was 70.
John MacKenzie was no ordinary prisoner. In the more than 40 years he spent behind bars, he became one of the most respected inmates in the state’s penal system. He had a spotless disciplinary record. He took full responsibility for the murder of Mr. Giglio. He earned degrees in business and the arts. He started a program to give victims the opportunity to speak directly to inmates about the impact of their crimes. The state’s own risk-assessment program found that he posed little to no risk of re-offending. Prison guards, judges, clergy members and prosecutors wrote letters supporting him.
None of this seemed to matter to the parole board. Because of the seriousness of his crime, one denial said, his release would “undermine respect for the law.” Another referred to “significant community opposition.” The wording would vary, but the message was always the same: Mr. MacKenzie’s sentence, which appeared to give him a real chance at freedom after 25 years, was a sham. No matter what he did to atone for his crime, he was never getting out.
Some see this as a just result, particularly law enforcement groups, which steadfastly opposed Mr. MacKenzie’s release. But New York criminal law provides for the possibility of parole, which is based on the idea that people can change.
Under state law, the parole board is required to weigh a prisoner’s entire history: his degree of remorse, his behavior behind bars and the likelihood that he will be able to live lawfully outside prison. Those factors never got more than a cursory mention, at best, when the board denied Mr. MacKenzie’s requests. In May, a State Supreme Court justice, Maria Rosa, held the board in contempt for failing to give any reason for denying Mr. MacKenzie parole other than the nature of his crime. Justice Rosa wrote that “if parole isn’t granted to this petitioner, when and under what circumstances would it be granted?” She ordered the board to hold a new hearing, with different board members. The state appealed that order. The case was still pending when Mr. MacKenzie killed himself.
Certainly crime victims and police officers should have a voice in the parole process, but they should not have a veto. Otherwise, parole is a meaningless promise.
Some years ago, Mr. MacKenzie wrote an essay about the frustrations of living at the whim of parole commissioners. “If society wishes to rehabilitate as well as punish wrongdoers through imprisonment,” he wrote, then “society — through its lawmakers — must bear the responsibility of tempering justice with mercy. Giving a man legitimate hope is a laudable goal; giving him false hope is utterly inhuman.”
A version of this editorial appears in print on September 6, 2016, on page A20 of the New York edition with the headline: False Hope and a Needless Death Behind Bars.
For more on John MacKenzie, see RAPPCampaign.com/press
John MacKenzie, whose repeated parole denials focused attention on the extreme cruelty of the New York State Parole Board, died on August 3rd in an apparent suicide in Fishkill Correctional Facility following his 10th parole denial after more than 40 years in prison. The denial came despite a standing order of contempt against the Board for their repeated rubber-stamp denials of Mr. MacKenzie’s applications for parole.
Mr. MacKenzie had filed a motion for contempt following a string of parole appearances and denials stretching over 15 years. In 2015, the court had ordered a de novo hearing after one such denial, citing the Board’s failure to do more than rehash the details of the original crime. When the new hearing merely echoed the earlier ones, Mr. MacKenzie sought the contempt citation. In her decision granting Mr. MacKenzie’s motion, Dutchess County Supreme Court Justice Maria G. Rosa wrote, “It is undisputed that it is unlawful for the parole Board to deny parole solely on the basis of the underlying conviction. Yet the court can reach no other conclusion but that this is exactly what the parole Board did in this case.”
Judge Rosa also wrote, “It is undisputed that this petitioner has a perfect institutional record for the past 35 years. This case begs the question, if parole isn’t granted to this petitioner, when and under what circumstances would it be granted?”
In late July, in the face of the standing contempt order, the New York State Parole Board proceeded to conduct another hearing which included parole commissioners specifically excluded from participating by the contempt order because of their past exhibited bias. This is criminal conduct and we demand that the offending parties be charged and arrested.
In June of this year, the New York Times wrote an editorial supporting this decision and release for John MacKenzie. Sadly, as the Times noted, Mr. MacKenzie’s case is not unique. Thousands of aging incarcerated people in New York State meet similar treatment and cruelty at the hands of the Board.
John MacKenzie fought valiantly for justice for himself and all those others. After the Board again denied his application for parole this past July, he just didn’t have any more energy left trying to face a parole board that has no respect for lawful procedure and is left to operate without restraint.
But we haven’t given up. We intend to increase the organizing of public pressure against these outlaws who have no respect for our communities.
There is another part of this tragedy that is sadly typical: the Nassau County Patrolmen’s Benevolent Association/PBA mobilized loudly against release each of the 10 times John MacKenzie met the Board, and the Board listened to them rather than to the broader community. Allowing the PBA to control parole decisions puts the vengeful cries of police above the voices of reason that say the purpose of parole should be to judge a person’s current character and the risk they pose—or, in the case of most incarcerated elders, the lack of risk they pose—to public safety. For far too long the parole process in this state has been dominated and controlled by the law enforcement establishment. The same police brutality that has killed so many Black people around the country has also killed John MacKenzie.
Rallies were held on August 8th in Albany and NYC to protest the NYS Board of Parole’s torture of John MacKenzie and all incarcerated people who are unreasonably denied release.
For more on the fight for justice for John MacKenzie and all incarcerated elders:
“Suicide of 70-Year-Old John MacKenzie After Tenth Parole Denial Illustrates Broken Parole System”
August 9, 2016: Victoria Law, The Village Voice
“Aging Prisoner’s Suicide Roils Parole Debate”
August 10, 2016: Renée Feltz, The Indypendent
“After Being Denied Parole 10 Times, Elderly Prisoner Allegedly Commits Suicide in Upstate Prison”
August 10, 2016: Amy Goodman, Juan Gonzalez and Renée Feltz, Democracy Now and democracynow.org
“Part 2: Calls Grow for NY Gov Cuomo to Reform Parole Board That Denies Eligible Prisoners”
August 11, 2016: Web Exclusive, democracynow.org
June 3, 2016
Headlines, Democracy Now!
An elderly New York prisoner who won wide support for his freedom has died just two months after he was released to a nursing home in Staten Island. Mohaman Koti was 89 years old. In 1978, Mr. Koti was convicted of attempted murder after he shot a New York City police officer during a traffic stop in which he says the officer drew his gun first. The officer later recovered, and Mr. Koti was offered a plea deal of seven-and-a-half years. When he demanded a trial, he was sentenced to 25 years to life. (Watch Democracy Now! coverage.)
Mr. Koti spent the next several decades mentoring young male prisoners. A corrections officer at Sing Sing said he had never met anyone so well respected on both sides of the bars. Ten years after Mr. Koti was eligible for parole, he was profiled in a 2013 New York Times column about prisoners over the age of 60 who are denied release based on their original crime, instead of an accurate assessment of the threat they pose. It described a parole board hearing where commissioners had to repeat questions to Mr. Koti because he was hard of hearing. He suffered from several medical problems and used a wheelchair, but he was still found to be at risk of committing another crime.
Mr. Koti was ultimately granted parole in September 2014, when a judge ruled the previous denials were irrational and called for a new hearing. Then, because of a pending bank robbery charge from the time of his arrest, he was ordered to serve an additional year in prison at a federal medical center in Butner, North Carolina.
Mr. Koti was finally freed in March. His longtime lawyer and friend Susan Tipograph told Democracy Now!, “The kind of life Koti lived when he got out—confined to a nursing home because he was not able to care for himself—shows that it was ludicrous to think he would have posed a threat to society all these years.”
Shock waves continue to spread from the August suicide of John MacKenzie in his 40th year behind bars and following his 10th parole denial. At the August meeting of the New York State Board of Parole, the chairperson read an angry letter blaming the Board for John’s death.
Fueled by our grief for John’s death, we must now push forward and make a change. It is time to get the Board to release our elders, our family members, the thousands of people in New York prisons who have served well beyond their minimum terms, who pose no threat to public safety, but who remain in the tombs of our state because the Board denies their parole applications every two years.
Those denials, after all, are what killed John.
- Urgent, Right Now: Comment on New Parole Board Regulations
Reacting to years of pressure from the public, the NYS Board of Parole has published new draft regulations to guide release decisions. The new version is designed to correct a major fault in the current regs, which ignore a 2011 law directing the Board to base decisions on risk and needs assessments—evidence-based tools that help predict a person’s future actions.
Some of the proposed changes to the regulations may provide greater protections to parole applicants. Specifically, the proposed changes require commissioners to consider risk assessment scores, as well as age (for people who were under 18 at the time of the crime and face a life sentence), with more purpose and intention than is current practice. In the same spirit, the new regulations also require that in their denials, commissioners must give “factually-individualized” reasons for their conclusions.
But the proposed regulations do not fundamentally change the structure or methods of the Parole Board. The rules are not explicit and clear in making sure that the Board assesses applicants based on their current risk, rehabilitation, and readiness for release. As such, the regulations could result in a continuation of the Board’s current practice: refusing to release people from prison even when they pose a low risk of endangering public safety and are undeniably suitable for release. THIS sample comment, which you can use in submitting your own, explains this more fully.
The Board needs to hear from us—incarcerated people, family members, community organizations and individuals who care about justice and want to see the prison population decrease.
Read comments filed by:
Center for Appellate Litigation
NYC Council Member Daniel Dromm, 25th District Queens
National Lawyers Guild New York City Chapter
Community Service Society
New York State Bar Association Committee on Civil Rights
Quinnipiac University School of Law
Christopher Seeds, Attorney at Law
Milk Not Jails
Kathy Manley, Attorney at Law
Brooklyn Defender Services
Legal Aid Society and Prisoners’ Rights Project
Correctional Association of New York
Claude Marks/Freedom Archives
Glenn Martin/Just Leadership USA (JLUSA)
Rise & Shine Community Services, Inc.
Issa Kohler-Hausmann, PhD, JD; Avery Gilbert, JD; Christopher Seeds, JD
The Osborne Association/Elizabeth Gaynes
Moira Meltzer Cohen, Esq.
New York State Prisoner Justice Network
Nancy Jacot Bell
Prison Action Network
Parole Justice Committee of Capital Area Against Mass Incarceration
Center for Community Alternatives
CURE-NY/Deborah Bozydaj, President
Donna M. Accettulli
Sister Honora Kinney
Mary Frances Burek and Pat Case
Robert Rose III
Richard Kuhn, Criminon
Wil Van Natta
Rhys Mateo Klauser
These materials are suggestions—undoubtedly it is those most affected by parole who are the experts in its reform. However, we believe there is great power in sending a unified and consistent message. We can demand that the Parole Board create clear regulations to begin doing what Parole Boards should: release people for whom further incarceration serves no purpose—neither protecting public safety nor advancing personal growth and rehabilitation. With your help, we can work toward parole reform and help reunite people with their families and communities.
Comments can take the form of a letter, or even just a list. We encourage you to include your own personal stories of how you or your loved ones have been impacted by current parole policy, as well as criticisms of the current proposed regulations.
2: Remove Obstacle: Recalcitrant Commissioners
Improving the regulations would be an important step forward. But there is another obstacle to justice: some parole commissioners have shown themselves to be dead set against following any such changes. They deny parole release over and over, thumbing their noses at the law. There is no reason to believe that these commissioners will respect the new regulations any more than they have respected the 2011 law.
The Board’s practice will never improve with such commissioners in office. Therefore, we urge Governor Cuomo, who appoints the Board, to remove these commissioners now or refuse to reappoint them when their terms expire. Among the most recalcitrant Commissioners are G. Kevin Ludlow, Lisa Beth Elovich, Walter William Smith, and James B. Ferguson (all appointed by former Governor Pataki). Governor Cuomo, who is the ultimate authority for the Board, must tell them and all commissioners: Either follow the law or find another job.
- Join the Fight for New Laws for Parole Justice
Two bills now before the New York State Legislature—the Safe and Fair Evaluation (SAFE) Parole Act (S.1728/A.2930), and Assembly Bill A,9960—would correct basic problems with New York’s parole practices. The Assembly bill (A.9960), for example, says:
…risk and needs assessments shall comprise presumptive evidence of the inmate’s risk of re-offense. Should the board choose to override such risk and needs assessments in deciding whether or not an inmate will iive and remain at liberty without violating the law, its decision must provide a detailed, individualized and nonconclusory statement as to its reasons for departing from the risk and needs assessment findings which shall be subject to judicial review. Such override decisions shall not be based solely on information relating to the instant offense and/or the pre-sentencing report for such offense.
Join RAPP, Parole Justice New York, and many other groups (more than 100 so far) in urging your representatives to pass these laws.
(Photo on homepage by Victoria Law)
Saturday night, September 26, 2015 was not the first time Release Aging People in Prison/RAPP – along with about 100 or so other New Yorkers committed to ending mass incarceration and prison injustice – held up lighted candles outside Governor Cuomo’s home in Mt. Kisco. “Candles for Clemency” started last year, when we first stood outside the governor’s home, urging him to grow a heart and a spine and begin taking steps to reduce New York’s huge prison population.
The target issue of the Candles for Clemency vigils has been the governor’s executive power to release people from prison when other channels are not available. RAPP has been crucial to expanding these efforts, because we emphasize that, beyond clemency, the governor could also instruct his parole commissioners to release applicants when they clearly pose no danger to public safety.
Last year, Governor Cuomo did not appear at or respond to Candles for Clemency. This year the governor sent his counsel, Alphonso David, to address the crowd. And on the governor’s behalf, David insulted us all. He threw the burden for the governor’s lack of compassion (zero commutations in his five years in office) back on incarcerated people and their families. The obstacle, David said, has been the lack of “viable candidates” for commutation, a dearth of robust applications submitted to the governor. Individual candle-holders began to challenge David’s statements, calling them fabrications. After all, many people at the vigil had friends or family members who have in fact submitted files and papers requesting commutation—and who have waited in vain for a response.
But we don’t need to cite those files to expose the fabrications mouthed by David for his boss. All we need to do is look at the records of parole board releases—and denials.
There are more than 9,500 elders (people 50 and older) in the prisons of New York, and 2/3 of them have parole-eligible sentences. Put those numbers together with the regulations governing parole—the use of evidence-based methods for determining whether a person of, say, 62 years of age poses any risk of committing a crime of the nature he or she may have committed many decades earlier—plus the statistics showing that older people who have served long sentences pose the very lowest risk of recidivism, and you get a recipe for simultaneously promoting public safety and human rights. Yet Governor Cuomo and his administrators continue to deny some 75% of parole applicants over and over. That is a main reason why the population of people aged 50 and older in New York State prisons has risen by 81% since about 2000.
With a series of quick strokes of his pen (to sign clemency petitions) or just one phone call (instructing his parole board to do the right thing), the governor could put New York in the lead in ending the internationally embarrassing racist policies and practices that have filled prisons with people of color, damaging their families and destabilizing their communities. He could take the courageous—but totally sensible—step of releasing many elders, instead of turning prisons into nursing facilities. He could immediately save the millions of dollars being wasted on security and incarceration and funnel those funds into community health and welfare.
In other words, Governor Cuomo could be a leader. But first he desperately needs some heart. Instead of asking the community to nominate individual cases for clemency consideration, he, like the lion from the Wizard of Oz, should have asked us to help him find some courage. When he does that, we will know he truly cares about communities and justice.
Follow RAPP on Twitter @RAPPCampaign
The statewide Parole Justice New York Coalition, with RAPP as a member, has released this new short film, “The Nature of the Crime,” featuring RAPP lead organizer Mujahid Farid, former parole commissioner Ed Hammock, and other experts on the issue.
The film shows how 14 people in New York State control the freedom of tens of thousands of men and women. The 14 people are called the Parole Board and they determine whether people in prison with indefinite sentences (such as 25 years to life) should be released. Every year 10,000 incarcerated New Yorkers are denied parole. Most of these people are denied repeatedly despite the fact that they pose little if any risk to public safety. For the skyrocketing population over age 50 in the New York prisons—a group that poses the lowest risk of committing a new offense if released—this means a future of illness and death behind bars. For New York as a whole, this means the destruction of our communities and families, and the immense waste of public funds spent keeping people behind bars for no reason. It means a continuation of the culture of revenge and permanent punishment that has filled the prisons in this country and threatens to keep doing so. It means continuing a racist system of “justice” that treats Black people and other people of color as criminals unworthy of a second chance at life.
“The Nature of the Crime” refers to the reason the Parole Board gives when it denies an incarcerated person parole: no matter what you have accomplished in the 20, 30, or 40 years since your conviction, no matter how much support you have in the community, no matter how low a risk you pose of returning to prison or committing a new crime, you cannot be released because of the nature of the crime for which you were convicted, often many years ago. That is something you cannot change. And it is an unreliable measure of whether you are ready to be released. It only means that there is a political gain for the Board to deny you: they can show how “tough on crime” they are.
The film premiered in Albany at the state Capitol in May to pressure the legislature to pass the Safe and Fair Evaluations (SAFE) Parole Act. RAPP is part of a statewide effort to use this film to increase public support for the SAFE Parole Act and for the wisdom and humanity of releasing aging people from the New York prisons.
If the risk is low, let them go. Bring our grandparents, our fathers, our mothers, our loved ones and friends home. Please share the video and the campaign homepage with your friends and family, then join the campaign for justice for New York.
Read the fine print: Not one person will be released from prison — or even have their criminal record expunged — under Gov. Andrew Cuomo’s plan to grant “mass clemency on a level rarely seen.”
What we actually have is mass hype on a level rarely seen.
Those eligible are not prisoners. The few that meet a long list of conditions — including approval by local prosecutors and unnamed state officials — may be offered a nonbinding revocable conditional piece of paper that says a potential employer may, if they wish, hire the applicant despite his or her criminal history — which the applicant is still required to disclose.
Applicants would have been convicted of a low-level nonviolent crime when they were 16 or 17 years old, have had a clean record for 10 years, have not been convicted of a sex crime, are not in arrears on their taxes, have been evaluated by state officials, are adjudged productive members of their communities, are employed or seeking work or in school, and are approved by local prosecutors.
In the unlikely event that there is anyone left in the pool after all that, they would receive a conditional and revocable document that does nothing to remove their criminal record. They would still be required to check “yes” on any application that asks for criminal history.
If by any remote chance they then get a job interview anyway, they can present this piece of paper and the potential employer can do whatever they want with it.
The most enthusiastic supporter of mass incarceration could find nothing to complain about in this scheme. Cuomo gets the florid praise of the reformers, nobody gets out of jail (now or going forward) or gets any substantive relief from collateral consequences, the prosecutors are happy, the public is impressed, and mass incarceration goes on undisturbed.
New York’s criminal justice system needs real change, not window dressing.
This article, by Naomi Jaffe of Capital Area Against Mass Incarceration and Parole Justice New York, appeared in the Albany Times-Union under the headline, “Mass Clemency Plan Yet Another Injustice.”
To fight for real change and an end to the cycle of permanent punishment, join RAPP and Parole Justice New York.
As published in The Times Union (Albany, NY, December 29, 2015)