compassionate release

January 18, 2019

Gov. Cuomo’s FY 2020 Budget Proposal: No Compassion, No Reform

Statement from Release Aging People in Prison/RAPP
• January 18, 2019 •

Governor Cuomo’s executive budget proposal, announced on January 15, does nothing to end the crisis of aging in prison and fails to address the Parole Board’s woeful understaffing. This proposal ignores decades of research and the detailed recommendations experts, advocates, and community members have repeatedly given. The governor has once again insulted our communities and put forward the exact same policy proposal he offered last year, now under a different name: “compassionate” parole.

There is nothing “compassionate” about the Governor’s supposedly new proposal. It narrowly and ineffectively expands New York’s medical parole program, and does nothing to ensure that more people will be released from prison. In fact, the proposal excludes entire groups of incarcerated people by categories of crime and sentence and allows the Parole Board to deny compassionate release based on the nature of someone’s offense, regardless of how sick they are. Our communities reject the view that some people are unworthy of compassion.

Further, the governor failed to heed our demands to fully staff the Parole Board with Commissioners who are committed to assessing people through their rehabilitation and readiness for release. The seven vacancies on the board have caused harmful delays, procedural unfairness and hopelessness among incarcerated people. Until the governor listens to advocates, implements fair, meaningful and inclusive parole reforms, and promotes release mechanisms that center transformation instead of punishment, New York will continue to have a criminal justice system that creates mass aging, despair and death in prison.

RAPP’s analysis of the governor’s proposals (including our recommendations):
New York State Proposed Budget FY 2020 • State Parole Board Budget & “Compassionate” Parole:

STATE PAROLE BOARD BUDGET:

FY 2019:

In FY 2019, the Governor proposed an increase in Parole Board staffing by allocating $305,000 for three additional Parole Commissioners. *
At the time of the FY 2019 proposal, there were 13 Commissioners and six vacancies on the Parole Board. **
Had the money been used to appoint and confirm three new Commissioners to the Parole Board, the proposed FY 2019 budget allocation would have increased the Board’s capacity to 16 Commissioners, leaving three remaining vacancies.

FY 2020:

In FY 2020, the Governor proposed no increase in money for Parole Board staffing or to the Board’s overall budget. ***
At the time of the FY 2020 proposal, the Parole Board has 12 Commissioners and seven vacancies.
The proposed FY 2020 budget allocation allows the Parole Board to increase its capacity to 16 Commissioners but does not allow for the Board to be fully staffed.

RAPP’s RECOMMENDATIONS (see bottom of page for testimony of RAPP and the Sentencing Project on the budget)

The Governor and legislature should ensure that the Parole Board has the money to increase Parole Board Commissioner staffing to complete capacity—19 Commissioners.
If current budget allocations allow for 16 Commissioners, then the Governor and legislature should increase the Parole Board’s funding by an additional $305,000 so that the Board can be fully staffed in 2019.

*Parole Board Commissioners make $101,600 per year (NYS Executive Law §169).

** See Assembly Yellow Book 2018 (p. 112): https://nyassembly.gov/Reports/WAM/2018yellow/2018files/2018yellowbook.pdf

*** See DOCCS FY 2020 Executive Budget Proposal (p. 4): https://www.budget.ny.gov/pubs/archive/fy20/exec/agencies/appropData/CorrectionsandCommunitySupervisionDepartmentof.pdf

CHANGES TO “COMPASSIONATE” RELEASE:

FY 2019:

In FY 2019, the Governor proposed “geriatric” parole, a new program and extension of New York State’s medical parole program for incarcerated older people, aged 55 and older with serious medical conditions. *

Eligibility:

The proposal excluded people convicted of murder 1, aggravated murder, an attempt or conspiracy to commit either and those sentenced to life without the possibility of parole.
To be eligible, incarcerated people must have served at least half of their sentence (half of a determinate sentence or half of the minimum sentence on an indeterminate sentence)

Process:

The DOCCS Commissioner, at the request of the incarcerated person, their spouse, relative or attorney, can order an investigation to determine whether or not an assessment should be made to determine whether or not the person fits the medical standard for “geriatric” parole.
After a physician conducts the assessment, it is reported back to the Commissioner, who decides whether or not to certify the incarcerated person for “geriatric” parole.
If the Commissioner certifies the incarcerated person, then they refer the incarcerated person to the Parole Board within seven days of the certification. The Parole Board ultimately determines whether or not the person is released.

Release determination:

When determining whether or not to release someone on “geriatric” parole, the Parole Board must consider the factors they consider for all parole applicants. Additionally, they must consider the nature of the incarcerated person’s condition and level of care; the amount of time the incarcerated person must serve before becoming eligible for release; the incarcerated person’s current age and age at the time of the crime; and any other relevant factors.
Like for all parole applicants, the Board must provide notice to the sentencing court, district attorney, incarcerated person’s attorney, and the crime victim. They cannot grant “geriatric” parole until the expiration of a 30-day period that allows the aforementioned parties to comment.
The Board has total discretion with regard to the weight it applies to all the factors it must consider when determining whether or not to grant someone “geriatric” parole. They can justify a denial if they determine that release would “deprecate the seriousness of the crime as to undermine respect for the law.”

Post Release:

If released, “geriatric” parole applicants would be supervised by DOCCS.
The Board may require, as a condition of release, that the released person remain under the care of a physician, hospital, nursing home, hospice, family care, or any other placement that can provide the appropriate medical care recommended by the medical assessment.
A discharge plan must be completed with confirmation of the availability of the aforementioned placement.
If the incarcerated person has a cognitive illness that renders them unable to sign off on their discharge plan, and if they don’t have a guardian to do so, then the facility health services director would be empowered to be their guardian and sign off on discharge plans.

Reporting:

The Parole Board Chair must annually report the following to leaders of the legislature: the number of people who have applied for “geriatric” parole; the number of people who have been granted “geriatric” parole; the nature of the illness of the applicants; the counties to which applicants were released and the nature of the community placement; the categories of reasons for denial; the number of people who recidivate post release.

* “Geriatric” parole medical standard: “An incarcerated person suffering from chronic or serious conditions, diseases, syndromes or infirmities, exacerbated by advanced age that has rendered the [person] so physically or cognitively debilitated or incapacitated that the ability to provide self-care within the environment of a correctional facility is substantially diminished.”

FY 2020:

Despite advocates’ deep analysis and detailed recommendations to “geriatric” parole, the Governor proposed “compassionate” parole in FY 2020, which, with the exception of the change in name, is exactly the same as the “geriatric” parole proposal from FY 2019. **

RAPP’s RECOMMENDATIONS:

Pass Elder Parole (S.8581/A6354A): Parole release programs for older people must be inclusive of all older people in prison, not just a small portion of people who are very sick and dying. In place of this proposal, the Governor should champion real elder parole (S8581/A6354A), which would give parole consideration to all people aged 55 or older who have served 15 years or more in prison.

Remove “compassionate” and medical parole restrictions based on crime of conviction. If our state truly values compassion, mercy, and rehabilitation, then this new policy will be inclusive of all people regardless of their crime. By excluding certain people based on crime of conviction, New York guarantees that some older people will die in prison, effectively reinstating the death penalty in New York.

Remove the following proposed language from “compassionate” parole and all other statutes in the Executive Law, “release is not incompatible with the welfare of society and will not so deprecate the seriousness of the crime as to undermine respect for the law” (emphasis added). This punitive language is used in boilerplate fashion in the standard parole denials of tens of thousands of currently and formerly incarcerated New Yorkers. It allows the Parole Board to deny someone based solely on the nature of their crime.

Remove the Parole Board’s requirement to provide notice and a 30-day comment period to the sentencing court, district attorney, incarcerated person’s attorney, and the crime victim.

Create rules that require facility medical providers to do initial “compassionate” parole screenings for people aged 55 and older with serious chronic illnesses to see if such incarcerated people might be eligible for medical parole. This process requirement could begin in the RMUs and DOCCS’ hospice units.

Create more transparency and accountability. Annual reports on medical parole should include detailed summaries of the number of applicants who reached each phase in the application process, as well as HIPPA-compliant information on their conditions. All annual reports should be made available to the public and accessible on the Department of Corrections and Community Supervisions’ website.

** See FY 2020 New York State Executive Budget: Public Protection and General Government Article VII Legislation (p. 363-369): https://www.budget.ny.gov/pubs/archive/fy20/exec/agencies/appropData/CorrectionsandCommunitySupervisionDepartmentof.pdf

READ testimony of RAPP and the Sentencing Project delivered to the NYS Legislature’s Budget Hearings

Take action with RAPP to push back and demand real change in New York State • come to upcoming events, or email nyrappcampaign@gmail.com

February 20, 2018

The Missing Piece to End Mass Incarceration in New York

On February 12, the New York State Assembly announced a Criminal Justice Reform Package with some meaningful changes to New York’s criminal legal system on bail, discovery, speedy trial, and solitary confinement—important steps toward undoing the far-reaching damage of mass incarceration.

But a major element was missing: No bills on parole and elder release were included in the package. Mass incarceration in New York will never end unless the legislature and the governor initiate changes that get at the heart of the problem—the persistence of a racist culture of revenge and permanent punishment that keeps people in prison without meaningful access to release. Increasing parole releases, especially of older people who have served long terms for violent crimes, would be a step in this direction.

That may sound unlikely given that the prison population soared because politicians found it easy and popular to act “tough on crime.” The starting point? Increase punishment by pointing to people convicted of the most serious offenses—especially the crimes that make headlines. But now, we need policy makers to understand that what got us here won’t get us out.

To end mass incarceration, the legislature, the parole board, and the governor will need to end the cycle of permanent punishment. Releasing people who have spent decades in prison for a violent crime committed years ago, who have engaged in meaningful transformation and now pose minimal risk to public safety, would be a safe, cost-effective way to begin this process.

Here are some ways RAPP is urging them to do exactly that:

“Geriatric Parole:” Governor Cuomo has proposed legislation to expand New York’s medical parole program for incarcerated older people, instituting a medical parole plan for people age 55 and older with debilitating health conditions.

But the plan excludes some people based solely on the crime of conviction, such as anyone convicted of first-degree murder, no matter how ill or debilitated—and no matter how low the risk they pose to public safety. Engaging in a serious crime at a young age does not make an incapacitated elder a current threat to public safety. In fact, evidence shows that long-incarcerated elders convicted of murder actually pose the very lowest risk to public safety: in contrast to recidivism rates that generally hover in the 40% range, people in this group return to prison at rates around 1% and lower.

The governor’s exclusions should also make us question whether we want our society to deny compassion to whole sectors of people, guaranteeing that they will die in prison.

RAPP urges the governor and the legislature to strengthen the “geriatric parole” proposal by removing all restrictions based on crime of conviction, along with other language that allows the Parole Board to deny applicants solely because of the nature of the crime. The bill should also be strengthened to ensure that the medical criterion for eligibility is an individual’s ability to provide “self-care,” not “self-ambulation.” Finally, mechanisms that trigger and speed up the otherwise slow-moving certification process and ensure public transparency should be strengthened as well.

“If the Risk is Low, Let them Go”

The governor’s plan will shift rather than cut spending, especially as states, confronted with the Trump administration’s economic plans, will be forced to shoulder a larger proportion of spending on Medicaid and other public health costs.

What would truly save money—and promote public safety—would be real elder parole: a plan that presumptively releases people who have served more than their minimum terms and whose present—not past—behavior show that they pose little if any risk to public safety. Older people should be released before they are ill and dying, when they can still contribute to their families and communities. We urge the Assembly to pass A.7546, which ensures that an individual’s current risk to public safety determines parole release. Additionally, older people not otherwise eligible for parole should be given a “second look” and considered for parole at age 55 after serving at least 15 consecutive years in prison.

With older people now making up 21 percent of people in New York State prisons—10,337 total people, a number more than twice what it was in 2000— a bolder and more evidence-based proposal for elder parole should be the governor’s choice. Such a proposal will require Governor Cuomo to exercise political will and would make New York a true national leader in the struggle to end mass incarceration.

To get involved, check our events page or email nyrappcampaign@gmail.com

August 2, 2017

More Compassion Needed

Medical parole, along with other release mechanisms, should be used more widely to reduce the population of older people in the New York’s prisons, said New York State Comptroller Thomas DiNapoli in a report in April 2017. Now Congress is saying something similar to the federal Bureau of Prisons:

Congress Wants to Know Why the BOP Won’t Let Elderly Prisoners Go Home to Die

“Compassionate release” is an excellent tool that the BOP refuses to use.

(From the “Hit and Run” blog on reason.com)

Mike Riggs

July 28, 2017

For years, federal prisoners and their advocates have begged the Federal Bureau of Prisons (BOP) to shorten the sentences of elderly and terminally ill offenders using a provision called “compassionate release.”

With the stroke of a pen, the BOP has the power to release men like Bruce Harrison, sentenced in 1994 to 50 years for delivering cocaine and marijuana at the behest of undercover federal agents. Now 65, Harrison suffers from a heart condition and has neuropathy in his feet that makes it difficult to walk. His official release date? 2037.

Then there are prisoners like Michael Hodge, who was sentenced in 2000 to 20 years for distributing marijuana while in possession of a firearm. Hodge developed pancreatic cancer while in prison and requested to be released so he could die in the company of family. That request was denied, and Hodge died behind bars in 2015, according to the Washington Post.

In 2013, the DOJ Office of Inspector General encouraged the BOP to send these kinds of prisoners home. Two years later, the office released a report that found “aging inmates engage in fewer misconduct incidents while incarcerated and have a lower rate of re-arrest once released.” In 2016, the U.S. Sentencing Commission went so far as to expand eligibility for the program in hopes the BOP would use it more.

But the BOP has largely ignored those recommendations. Yesterday, Congress demanded that the BOP explain why it continues to incarcerate geriatric and terminally ill prisoners who pose no threat to public safety and are unlikely to commit new crimes upon their release.

In a report accompanying the 2018 appropriations bill, Sen. Richard Shelby (R-Ala.) ordered the BOP to turn over reams of data about the compassionate release program. Including:

the steps BOP has taken to implement the suggestions of the BOP Office of Inspector General and the U.S. Sentencing Commission
a detailed explanation as to which recommendations the BOP has not adopted, and why
the number of prisoners who applied for compassionate release in the last five years, as well as how many requests were granted, how many were denied, and why
how much time elapsed between each request and a decision from the BOP
the number of prisoners who died while waiting for the BOP to rule on their application for compassionate release

Only 10 percent of America’s prisoners are in federal prisons, but it is an increasingly old and sick population due to the disproportionately long sentences tied to federal drug offenses. As of June 2017, BOP facilities held 34,769 prisoners over the age of 51. More than 10,000 of those prisoners are over the age of 60.

Elderly prisoners pose financial and human rights problems.

“In fiscal year 2014, the BOP spent $1.1 billion on inmate medical care, an increase of almost 30 percent in 5 years,” BOP Inspector General Michael E. Horowitz wrote in prepared testimony to the U.S. Sentencing Commission. “One factor that has significantly contributed to the increase in medical costs is the sustained growth of an aging inmate population.” In its 2015 report, the DOJ OIG determined that facilities with the oldest populations spent $10,114 annually on medical care per prisoner, compared to $1,916 per prisoner in facilities with the youngest populations.

“It is difficult to climb to the upper bunk, walk up stairs, wait outside for pills, take showers in facilities without bars and even hear the commands to stand up for count or sit down when you’re told,” Human Rights Watch’s Jamie Fellner told the Washington Post. “Prisons simply are not physically designed to accommodate the infirmities that come with age.”

Shelby’s letter gives the BOP 60 days from the passage of the appropriations bill to submit its data to the committee.

“Elderly and sick prisoners cost taxpayers the most and threaten us the least, and there’s no good reason they should stay locked up or die behind bars because bureaucrats can’t or won’t let them go home to their families,” Kevin Ring, president of Families Against Mandatory Minimums, said in a statement. “It’s time for someone to get to the bottom of why the BOP’s answer is always no on compassionate release.”

This reporter worked for FAMM from 2013-2015

October 2, 2014

If California Can Do It, Why Can’t We?

Pay attention, New York! California has been changing its parole policies in ways favorable to basic human rights and economic good sense. In the last three years, the state has released nearly 1,400 lifers on parole with the approval of Governor Jerry Brown, and, as of this June, has announced it will begin the early release of elderly and unwell prisoners who meet new criteria.

People older than sixty who have spent at least twenty-five years in prison will be eligible for release—excluding only people sentenced to death or to life without parole. And those with health conditions requiring skilled nursing care will be in a position to be moved to health care or nursing facilities.

Back in 2008, the California Supreme Court ordered officials to look beyond the severity of parole applicants’ crimes. Instead, officials were directed to give serious consideration to people’s records while incarcerated and their volunteer work behind bars. Now that federal courts have ordered California to reduce its disturbingly high levels of crowding in prisons, the parole board is in a better position than ever to serve the needs of public safety and conserve community resources by releasing elders.

It would make sense for New York State to be taking similar steps, right? After all, the population of incarcerated people over age 50 increased 81% between 2000 and 2013, and elders now comprise fully 17% of the prison population.

But New York hasn’t heeded the call of common sense and humane practices. Instead, the parole board has continued to deny release to elders, citing over and over, for example, the nature of the original offense committed 43 years ago by a man who is now 64 years old—and whose prison record is pristine, family connections solid, and state-administered risk assessment score as good as it gets.

When more than 300 individuals and groups submitted statements to the board recommending that they begin assessing parole applicants based on the risk they pose to public safety rather than on the nature of the crime for which they were convicted, the board said, “No.”

That sums up New York’s intransigence compared to California’s forward-looking approach. Sad.

We urge New York State to begin showing greater leniency to the sick, the elderly, and those who have demonstrated their readiness to re-enter society. We urge Governor Cuomo to follow Governor Brown’s lead, and to assert leadership in this crisis. Although overall numbers of people imprisoned in New York State have been declining in the last ten years, the population of those over fifty is skyrocketing. So, too, are financial costs to taxpayers and personal costs to imprisoned people and their families.

Surely there is no need to wait for an even more serious overcrowding crisis in order to take sensible and humane action. If California can release more people without compromising public safety, why can’t New York?

[To see the comments community groups made about the parole board regulations, go to the Correctional Association of NY web site here]

ACT NOW! Sign our petition to release aging people in prison. Follow us on Twitter @RAPPCampaign

Gov. Cuomo’s FY 2020 Budget Proposal: No Compassion, No Reform

The Missing Piece to End Mass Incarceration in New York

More Compassion Needed

If California Can Do It, Why Can’t We?

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