Decarcerating America

by Ernest Drucker

  To promote this acceptance by policy makers, advocates need to adopt a two-pronged strategy: offering viable approaches to downsizing jail and prison populations, and educating the public and officials about the need to quench the endless desire to punish—a desire that has produced a vast rise in the prison population in the past four decades, adversely affecting all our social institutions and communities.

  For a start, New York State and other jurisdictions that routinely deny parole, compassionate release, and clemency to medically challenged, low-risk, and aging people in prison must shift direction and begin employing a rational policy centered in public safety concerns.

  In sum, the task we must undertake involves the design, proposal, and execution of widespread projects and campaigns that will have a substantial impact on diminishing the carceral state—and that will have a reasonable chance of convincing the public and policy makers to adopt them. One of the elements of this strategy is to release elderly people in prison.

  The Struggle Before Us

  By 2012, when years of work by thousands of incarcerated people and other social activists, together with Michelle Alexander’s book The New Jim Crow, had made the term “mass incarceration” widely familiar, the United States prison population of more than 2.4 million had finally begun to slowly decline.4

  Whether one thought the penal system was broken or operating as planned for the marginalization and control of Black and Latino people, a significant number of people were coming to realize that the current situation was not viable. And beginning with the fiscal crisis of 2008, policy makers were forced to face the rising costs of the swollen prison system. Both progressives and conservatives were pushing for various forms of decarceration and reform, making for strange bedfellows. While conservatives and many politicians were motivated by financial constraints rather than by concern for social justice, the impact was clear. In New York State, for example, the prison population fell by 23 percent between 2008 and 2017, a result of things such as modest reforms to the Rockefeller-era drug laws that had filled the state’s prison and jails to overflowing capacity.

  At the same time, many journalists and public officials noted the escalating population of elderly people in prison. Attention was being paid—but it was devoted to creating geriatric prison wards, hospices, and other ways to accommodate elders behind bars.

  And some activists noticed a problem in the new reforms.5 Language like “low-level, nonserious, nonviolent, nonsexual” was creeping into the discussion, and only one national reform (a Supreme Court decision barring the use of mandatory life-without-parole sentences for juveniles)6 seemed at all likely to undermine a primary pillar of mass incarceration: the system’s commitment to permanent punishment and revenge against people convicted of crimes that were not “victimless”—and even some that were.

  One popular initiative that has drawn much attention is Cut 50, a project initiated by a number of bipartisan criminal justice reform organizations and politicians to reduce the prison population by 50 percent within the next ten to fifteen years.7 Although this plan may be perceived as bold, much more will be required to bring the United States out of the quagmire of being a carceral state.

  With 2.2 million people confined in United States prisons and jails, a 50 percent reduction would mean reducing the prison population by at least 1 million within the time period projected. Such a task would require establishing initiatives to address both ends of the penal system—reducing the number of people entering the system (and the amount of time they will have to spend behind bars) and increasing the number of people coming out.

  Quoting a former New York City corrections and probation official, a 2015 article published by the Marshall Project poses an important question: “When does mass incarceration become regular incarceration?”8 To bring the U.S. incarceration rate into line with that of European nations—or with the rate of the United States in the early 1970s—requires reducing the current incarceration rate of 700 per 100,000 to about 150 per 100,000. That would be a reduction of about 80 percent. Consequently, although the bipartisan effort to reduce the numbers of incarcerated people by 50 percent is considered bold, it would arguably still leave the United States with an incarceration-related public health crisis and still in need of a public health cure.

  In addition, more than 50 percent of the prison population consists of people convicted for violent offenses. In New York State, for example, approximately 65 percent of the total incarcerated population are serving sentences for violent offenses.9 Thus, even if it were possible to release all of the nonviolent drug offenders in the next ten to fifteen years, it is impossible to reach a 50 percent reduction without including people convicted of violent offenses in the plan. Professor Marie Gottschalk notes that, “even if every drug offender were released today, the U.S. would still have a sky-high incarceration rate.”10 Such an approach would also fail to shift us away from the fundamental problem at the root of the mass incarceration crisis: the belief in revenge and permanent punishment as the path to public safety.

  A Grassroots Approach to Disbanding the Carceral State

  Formerly incarcerated people in New York created the Release Aging People in Prison (RAPP) campaign to meet these issues head-on. This approach is rational, based on reams of evidence relating to public safety, prison populations, and recidivism. It also allows us to attack two pillars of mass incarceration, both rooted in racism. RAPP’s strategy tackles the ideology of permanent punishment and the thinking that people convicted of violent crimes should spend their entire lives in prison. These two foundations of mass incarceration grow from and perpetuate the criminalization of Black and Latino people.

  RAPP is a popular effort to mobilize advocates, legislators, formerly incarcerated people, men and women who are currently confined, family members, and concerned citizens to demand that state officials, prison administrators, and parole authorities release incarcerated elders who have already served considerable time behind prison walls and who would pose little or no threat to public safety upon release. We cite clear statistical evidence:

  •Elders pose the lowest risk to public safety if released. While overall recidivism rates hover near 40 percent in New York State, people over fifty return to prison for a violation of parole or for committing a new offense at a rate of 5.2 percent, and for those over sixty-five the recidivism rate falls to less than 1 percent.

  •The recidivism rate of people who have served long sentences for serious felonies is 1.3 percent—lower than any other category of those released.11

  Noting that people over fifty pose an extremely low risk of recidivism, we argue, “If the risk is low, let them go.”12 The way to address the problem of increasing numbers of elders behind bars is not to make prison elder-friendly, we maintain, but to release older people. If we can make a dent in the reliance on permanent punishment for that group, we hope we can advance the push for decarceration and fundamental change on a broader scale as well.

  RAPP was designed specifically to embrace a large segment of people in prison who are often ignored or excluded from policies and laws implemented to reduce mass incarceration: long-termers convicted of serious offenses, including murder. These people constitute the bulk of the over-fifty prison population. As formerly incarcerated people ourselves, we are perhaps uniquely aware that many of these human beings have taken responsibility for their actions, transformed their lives, developed skills and abilities they lacked before incarceration, and could be released from prison with no threat to public safety. In fact, the current movement for prison reform receives much of its impetus and vigor from the leadership and participation of formerly incarcerated people, who serve as experts not only on what the problems are but also on how to solve them.

  RAPP argues that accelerated release mechanisms for aging incarcerated people must be created or, where they already exist, utilized. Our platform includes those seeking compassionate release (medical parole) and clemency. Because our campai
gn launched in New York, this approach immediately brought us face-to-face with the parole board, which releases fewer than a quarter of all people who are eligible for parole, no matter their age or risk to public safety. The board consistently fails to rely on rational standards that measure a person’s readiness for release, turning instead again and again to the “nature of the offense”—the crime for which a person was incarcerated, something that will never change.

  The work of RAPP combines public education, direct policy proposals, and evidence-based advocacy to promote the release of aging men and women through executive law, regulatory reforms, and legislation. We work together with other groups and advocates who are challenging current release practices and arguing for the use of validated and proven evidence-based tools to guide release decisions.

  RAPP also works in coalition with groups and agencies that provide reentry services for people released from prisons. At the outset we were asked: If long-term incarcerated people are released, where will they go, and how will they acclimate to society after such long absence? We responded to this concern by joining others to initiate an Aging Reentry Task Force of government and private organizations and agencies, some providing geriatric advocacy and services, others providing advocacy and services for formerly incarcerated people. The task force has created what we believe is the country’s first pilot project for discharge planning and reentry (better called reintegration) services for aging people released from prison.13

  The crisis within parole and other prison release mechanisms in New York State has been mounting for the past twenty-five years. Back in the early 1990s these systems became co-opted by the encroaching punishment paradigm spreading across the United States, part of what is now recognized as a misguided attempt to be “tough on crime.” Consequently, a process commenced of routinely denying parole and release applications regardless of the applicant’s personal change, rehabilitation, time already served, infirmities, or other humane considerations. This was especially the case for those who had been convicted of serious or violent offenses.

  Arguably, this shift in the back-end release processes played a major role in building what is now being called mass incarceration. In a 1999 article, a former chair of the New York State Board of Parole wrote, “While the criteria for parole eligibility have not changed by legislative enactment, an examination of the current release practice of the Board of Parole reveals that the current parole system has been at the forefront of an ideological revolution.”14

  Confronting Concrete Walls of Resistance to Change

  RAPP organizers have learned that the ideology and structures put in place to support the constructing of mass incarceration and a carceral state were essentially etched in stone, and eradicating them requires intense organizing energies and efforts.

  As the prison population in New York State began to expand, in conjunction with a paradigm shift that paved the way for cursory parole reviews with rubber-stamp denials, management challenges were presented to the parole commissioners responsible for carrying out their daily duties. Given the number of days on which parole hearings are held each month and the number of hearings being held, the average time that can be allotted to each parole hearing is less than five minutes.15 This structural shift in the way in which the parole board goes about its daily operations has put the agency in the unenviable position of sometimes having to openly resist and defy judicial decisions and court orders. An example is Harris v. N.Y.S. Division of Parole.16

  The New York State Division of Parole, in addition to providing regular hearings for people scheduled for release consideration (parole, compassionate release, and clemency), is also responsible for providing reviews of administrative appeals submitted by people when release is denied. Outside of their duties to conduct the hearings, the board’s commissioners are responsible for reviewing and making decisions on the voluminous appeals submitted through the administrative process. According to the regulations governing administrative appeals, the appeals are to be conducted by three commissioners sitting in conference, and none of them should have participated on the original panel that considered and denied release.

  In 1995, Theodore Harris, who had been denied parole and thereafter filed an administrative appeal, noted that the official decision he received from the Appeals Unit denying his appeal indicated that each commissioner had signed and dated the decision and notice on different dates. Harris challenged that process when he ultimately submitted his judicial challenge to the local court upon exhausting his administrative remedies.

  The local court held that Harris was correct in that the parole board appeal process he received was severely flawed. The parole board appealed the decision but eventually lost there too. The Appellate Division, Third Department, agreed that the administrative appeal was in violation of lawful procedure and found that the commissioners must meet “collectively” to render a proper decision.17

  What happened following the Harris decision is most interesting and instructive. Likely driven by its utter reliance on mass production processes and an inability, given its limited time and resources, to provide lawful administrative appeals even if it desired to do so, the Division of Parole began issuing notices of its administrative appeal decisions that were identical to the earlier version except for the removal of the section that previously showed the date of each commissioner’s signature.18 The objective clearly was to make it difficult for an applicant to mount a challenge on the basis that the decision was not rendered by a committee sitting collectively.

  To compound matters, some years later when parole applicants whose administrative appeals were similarly denied submitted freedom-of-information requests to the Board of Parole seeking the dates that their decisions were made, the answers were always along the lines of “Please be advised that there is no document or other information indicating the actual date each of the members of the Board of Parole signed the Administrative Appeal Decision Notice.”19

  More Than a Decade of Struggle to Reorient Parole Board Practice

  In 2011, after many years of frustration on the part of community groups and legislators seeking to rein in parole board practices that seemed to be without executive oversight, the New York State Legislature passed a revision of Executive Law Sec. 259-c (“State Board of Parole; functions, powers, and duties”) that requires the parole board to establish and apply “risk and needs principles to measure the rehabilitation of persons appearing before the board” and to gauge the likelihood of success should the applicant be released.20 The amendment was intended to correct the board’s practice of focusing solely on the nature of crimes committed perhaps decades earlier. Risk and needs assessments use objective, scientific standards—rather than the subjective viewpoints of individual parole commissioners—to guide the board in its key task: predicting whether a parole applicant will, if released, commit crimes.21

  Basing release on such a standard reflects New York’s mandate to protect public safety as well as to honor the rehabilitative goals of the penal system. New York adopted an actuarial assessment model called COMPAS for use in its decision-making. This approach creates an individualized picture of how the incarcerated person has changed since the original crime, what risks there are for future criminal behavior, what support is necessary for the individual’s successful reentry, and, critically, what kind of skills, attitudes, and capacities the individual developed during incarceration. As of 2014, at least twenty states had adopted similar models.22

  For about three years after the new law passed, community advocates, incarcerated people, and lawyers urged the board to draft new regulations, as required by the law, but to no avail. Trying to remedy the problem, Assembly member Daniel O’Donnell, then chair of the Committee on Corrections, convened a public hearing on parole practices in Albany in early December 2013. Along with dozens of community members and advocates, representatives of the Department of Corrections and Community Supervision, including parole board chair Tina Stanford
, testified at what turned into an all-day hearing. In her testimony Stanford made no mention of new regulations. Later in the day, however, community members learned that the board had in fact finally posted new draft regulations just one day earlier.

  The new proposed regulations were not good. Instead of responding to the spirit and letter of the new law, they once again attempted to smother the use of risk and needs assessment amid a mountain of additional factors to be weighed in making release decisions.

  In a joint statement responding to the board’s draft regulations, O’Donnell and Kenneth Zebrowski, chair of the Assembly’s Administrative Regulations Review Commission, wrote:

  We were extremely disappointed to see that the proposed rules contain no substantive change to the working requirements of the Parole Board. Indeed, they fail to achieve any change in the status quo, much less the significant change envisioned at the time we negotiated the amendments (to the executive law).

  The proposed rules treat the requirements of 259-c (4) of the Executive Law as mere additional factors for consideration by the Parole Board. Had the legislative wanted to add additional factors we would have done so. . . .

  We believe the intent of the Legislature was to modernize and make more objective a parole process that has been overly subjective in the past. The proposed rules do not do that.23

  During the subsequent ninety-day public comment period, formerly and currently incarcerated people, their families, legal and civil rights organizations, and other concerned groups and individuals echoed Assembly members O’Donnell and Zebrowski, filing letters criticizing the newly proposed regulations. Normally, according to those who monitor public comments for the state, a new regulation garners at most thirty to sixty comments. In contrast, the parole regulations drew some three hundred comments. The overwhelming majority of comments asserted that the board’s proposed regulations were inadequate to address the core problem: that parole decisions currently function more as retrials of parole applicants than as assessments of the individual’s readiness for release.