Decarcerating America

by Ernest Drucker

  Ignoring the community took less than three minutes for the parole board. At their April 21, 2014, meeting, the board dismissed the three hundred public comments that urged the use of objective and consistent criteria in release decisions. With no discussion, and without a single mention of any of the myriad community and legislative concerns, the board unanimously passed the new regulations as they had originally proposed them.

  When Governor Andrew Cuomo wrote in his 2016 agenda for the New York State of the State address that only one in five applicants for parole was granted release and that he wanted to expand that number, he was responding to these years of community pressure and demands for a more functional parole system in New York State, as well as to the growing national consensus that reform of the criminal justice system is urgently required if we are ever to solve the problem of mass incarceration.24 Sadly, the governor’s agenda did not provide a clear direction on how to remedy the problem. In addition, the commissioners of the Board of Parole have not responded to the national and statewide cry for parole justice. That is why intervention by other prominent authorities is desperately needed.

  Unremitting Contemptuous Behavior by the Parole Board

  Since their adoption of new, faulty regulations, the board has exhibited a similarly dismissive attitude toward community sentiment and the law, consistently ignoring the real meaning of Executive Law Sec. 259-i (“Procedures for the conduct of the work of the state board of parole”) and continuing a practice of granting only about one in five parole applications.

  Parole applicants, their lawyers, and the community have not let the board’s intransigence pass without a fight. More significant is that some courts have also taken note of the board’s insistence on continuing business as usual and have taken the board to task, a number even going so far as to hold the board in contempt.

  A parole applicant who is denied release must first file an administrative appeal, and then, when that is either denied or ignored (after 120 days the appeal is considered “constructively denied”), can file an Article 78 petition, the means by which New York law permits an individual to challenge an administrative action. An Article 78 petition is heard by a court, as opposed to being decided by the parole board itself.

  Since the parole board’s new regulations went into effect in April 2014, numerous Article 78 petitions have been granted. Even when such an appeal is granted, however, the courts consistently maintain that the only power they have is to order the board to grant the applicant a new (de novo) hearing. All too often, such hearings merely repeat the error of the original hearing.

  While it may or may not be correct that the courts do not have jurisdiction to order the release of a petitioner, it has long been established that a court of record has the power to “punish, by fine or imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced.”25 The parole board should have an arbitration process employing an expert group which reviews each such case—after the Article 78 petition when the prisoner has been released. To assure that the Article 78 release does not compromise public safety, all such cases should be reviewed regularly and make any climbs of evidence of misconduct that adversely affects public safety. In such cases the prisoner may go before the board (with legal counsel) to argue their case.

  The Courts Attempt to Take on the Parole Board

  Recently several courts have severely criticized the parole board—in some cases citing the board for contempt—in these situations. When contempt citations have been issued, courts have ordered the board to pay attorney fees and a penalty to the litigant until a new and fair hearing is held.

  In a case in Sullivan County, New York, after the court ordered a de novo hearing and the board failed to schedule one in timely fashion, the attorney representing the litigant petitioned the court to order the board to pay a “daily fine of $250.00 directly to Petitioner Dempsey Hawkins every day until its contempt is purged.” The court’s original order for a de novo hearing in this case was based on the failure of the board to consider anything other than the nature of the original offense, including the age at which Hawkins had committed the murder.26

  In another recent case, brought by petitioner Alejo Rodriguez, Orange County judge Sandra Sciortino ruled that the board had “issued a boilerplate decision” in Rodriguez’s case. She continued:

  The instant matter, like so many others, arises from the Board’s failure to abide by statutory mandates. The Board is without authority to ignore the command of the Legislature. In continuing to issue such manifestly inadequate decisions despite a clear Legislative mandate, and in the face of so many cases in the courts of this state which reinforce that mandate, the Board is essentially thumbing its nose at the Legislature and the courts. Such behavior cannot be condoned. . . .

  The courts will continue to enforce the requirement announced by the Legislature as long as it remains necessary. However, for the courts of this state to repeatedly entertain petitions and issue decisions ordering de novo hearings because the Board fails to follow a clear statutory standard is wasteful of the time of all involved and of the resources of the State.27

  In Cassidy v. New York State Board of Parole, an Orange County Supreme Court judge ordered the board to pay the attorney representing Michael Cassidy $3,000 and grant a new hearing within sixty days.28 When the board denied parole again at the return hearing, focusing on Cassidy’s criminal offense, the court held the board in contempt, ruling that under executive law the determination had to be based on “future-focused risk assessment procedures.” This decision was recently overturned on government appeal. However, the reasons given by the reversing court focused on Cassidy’s mediocre risk assessment scores, thus distinguishing his case from the central issue more clearly present in most other cases.

  On May 24, 2016, the Dutchess County Supreme Court held the board in contempt in the case of John MacKenzie and levied a fee of $500 a day against the board until a new and proper hearing could be held and “a decision is issued in accordance with Executive Law 259-i.”29 MacKenzie had filed a motion for contempt following a string of parole appearances and denials stretching over fifteen 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 once again merely echoed the earlier ones, MacKenzie sought the contempt citation.

  In her decision granting MacKenzie’s motion, 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.” She 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?”

  Upon issuing her order and decision on May 24, 2016, Rosa specifically “ORDERED that none of the members of either the 2014 or 2015 parole boards that denied parole shall participate in the de novo hearing.”30 The obvious implication of this specific prohibitory order is the court’s recognition that some members of the parole board had exhibited an apparent inability to afford the petitioner a fair parole hearing.

  On June 21, 2016, MacKenzie was interviewed by a parole board panel consisting of parole board chair Tina Stanford along with commissioners Christina Hernandez and Kevin Ludlow. This short pseudo-hearing included some very strange occurrences. First, at the start of the hearing, John MacKenzie made a point of noting that, according to the standing order of contempt, Commissioner Ludlow should have been prohibited from sitting on the hearing. MacKenzie began: “What I am saying is, my de novo was a court order and I’m pretty sure it said that you couldn’t sit on the panel, you or Ms. Elovich.”31


  Commissioner Ludlow responded, “You object to my presence do you?”

  Then Stanford indicated that the current meeting would not be the de novo hearing; rather, that day’s panel intended to postpone the hearing in order to secure other records and documents. Stanford went on to state:

  We’ll review in the interim the records to make sure that the panel that interviews you is the appropriate composition based on any court orders that we feel we have to abide by, okay, so we are going to see you again in July, and we will review the records in the meantime to make sure that the panel that sees you is a panel that can see you.32

  John MacKenzie was scheduled for another parole board hearing on July 26, 2016. Present on that panel was Commissioner William Smith, who also was prohibited from participating according to the contempt order. During the hearing MacKenzie noted this fact, to no avail. This panel once again denied John MacKenzie’s parole application, leaving him to wait another two years before reconsideration. Tragically, on August 3, 2016, MacKenzie—feeling there was no hope against an intransigent parole board that could not be contained in its thirst for vengeance and was not answerable to any public authority—died by suicide.33

  Even in the face of a standing order of contempt forbidding specified commissioners from participating in a de novo hearing, the parole board did not “feel” it had to abide by the order. The circumstances of this case are truly indicative of the monumental task presented in the work of deconstructing the carceral state. Those of us who work energetically to confront a system focused on a paradigm of punishment, revenge, and abuse will come face-to-face with actors wielding authority and power who will resist by all means the implementation of progressive change.

  The roots of mass incarceration are so diverse that no one initiative could address their full scope. RAPP focuses on “back-end” methodologies to reduce the prison population. We concentrate on removing impediments to release for aging people in prison, highlighting the fact that this makes fiscal sense (in New York State the average annual cost to incarcerate one person over the age of fifty rises to between $120,000 and $240,000, compared with about $60,000 for those under fifty years of age) as well as moral and social sense.34 We emphasize the human right to grow old with dignity, and we urge communities to take back control over the way we deal with and heal from violence, ending the reliance on police and prisons and moving toward making our society safe and healthy.

  In 2014, University of California–Berkeley law professor Jonathan Simon wrote, “There are far better ways to spend money on reducing violence than incarcerating aging prisoners who once did something violent. But for now, few even in the anti-mass incarceration community are ready to take on that fight.”35 RAPP has taken on that fight and, in the few years of our existence, we’ve seen others join us, increasing our hopes of success.36

  If mass incarceration can be classified as a health crisis and even an epidemic, then real healing requires the “patient” to accept the diagnosis and assent to properly prescribed treatments. These critical times will require much more than a placebo. Attempting to take on this gargantuan calamity with subclinical solutions will keep us tethered to what children’s advocate Marian Wright Edelman refers to as a “cycle of infection” that perpetuates “one of the most damaging health problems in America today.”37

  Indeed, it would be tragic if the emerging movement were to succumb to what writer and activist James Kilgore outlined as a looming possibility: “measur[ing] success solely by the volume of Congressional hearing invitations and the number of foundation grants scored rather than the extent of genuine movement building.”38

  Ernest Drucker, a national public health scholar, writes, “We must develop new models and methods for our criminal justice system that value the lives and dignity of all of our people—even those who transgress.”39 We consider RAPP to be the prototype of the kind of initiatives that must be developed if we are to succeed in fundamentally decarcerating our system of government.

  Elsewhere Drucker concludes, “Our failed drug policies have for decades undermined our ability to deal effectively with both our drug problems and related public health problems—e.g., the AIDS epidemic, which continues to spread at a very high rate in the U.S.”40 Likewise, unless there is a recognition that ending mass incarceration requires radical reforms that attack permanent punishment, release many elders serving long sentences for violent crimes, and reverse the “law and order” fever that produced sentences such as life without parole, in the coming days we will be making the same observation about the failures caused by focusing on so-called low-risk individuals.

  RAPP arises from the belief that whatever reforms are instituted in this period will either weaken the stranglehold of this ideology of punishment—and therefore move us toward a healthy system—or will merely pretty up the system as it exists and render it even more impervious to change. Given the deeply rooted intensity of the opposition to real and fundamental change to the carceral system, it is crucial that groups and organizations working on related issues began connecting the dots and developing a more in-depth understanding of the relatedness of all the various prongs of the carceral state—in particular, how each is rooted in racism and the propensity to punish and deprive—and begin providing mutual support to advance this important work.

  One direct route to confronting the punishment paradigm is to initiate a focus on the population of “political prisoners” being held behind bars in the United States. However, the United States government is loath to admit that there are such people under confinement in this country, mainly because many of them, having aged, are still in America’s prisons after more than forty-five years, and their cases show how America’s prisons serve primitive desires for vengeance and torture, rather than notions of correction or public safety. By focusing on elderly long-termers and political prisoners (people who can be likened to canaries in the coal mine as advocates begin focusing on accelerated punishments) and by arguing for an end to the paradigm of punishment and deprivation witnessed throughout the entire social structure, we hope to contribute to a real advance in social justice.

  This, we hold, is the treatment that will allow us to become the physician who can “heal thyself.”41

  Notes

  1. See, for example, M. Gottschalk, Caught: The Prison State and the Lockdown of American Politics (Princeton, NJ: Princeton University Press, 2014).

  2. See, for just a few examples, E. Drucker, A Plague of Prisons: The Epidemiology of Mass Incarceration in America (New York: The New Press, 2011); Columbia University, Mailman School of Public Health, “Incarceration and Public Health Action Network,” www.mailman.columbia.edu/research/incarceration-and-public-health-action-network, and “Public Health Approach to Incarceration,” www.mailman.columbia.edu/incarceration-prevention-program/public-health-approach-incarceration.

  3. Department of Corrections and Community Supervision (DOCCS), Under Custody Reports, 2004 to 2014, retrieved from www.doccs.ny.gov/Research/annotate.asp#pop.

  4. Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Color Blindness (New York: The New Press, 2010). Alexander’s book was preceded by years of organizing and education by advocates and academics such as Angela Davis and Joy James, incarcerated journalist Mumia Abu-Jamal, organizations such as Critical Resistance and the Jericho Movement, the journal Prison Legal News, and thousands if not millions of incarcerated people.

  5. Tony Fabelo and Michael Thompson, “Reducing Incarceration Rates: When Science Meets Political Realities,” Issues in Science and Technology 32, no. 1 (Fall 2015); Andrew Gargano, “Federal Sentencing Reform Can Reduce Prison Overcrowding and Save Money,” The Hill, April 29, 2015; Nathan James, “The Federal Prison Population Buildup: Options for Congress,” Congressional Research Service, May 20, 2016.

  6. Miller v. Alabama, 2012. Miller’s ban on life-without-parole sentences for juveniles was rendered retroactive by Montgomery v. Louisiana (2016).


  7. See Cut 50’s website: www.cut50.org.

  8. Dana Goldstein, “How to Cut the Prison Population by 50 Percent,” Marshall Project, March 4, 2015.

  9. DOCCS, Under Custody Report, 2014.

  10. Gottschalk, Caught, 261.

  11. Ryang Hui Kim, “2010 Inmate Releases: Three-Year Post Release Follow-up,” DOCCS, June 2014.

  12. Since we coined this phrase in 2013, it has been widely adopted by prison reform groups and progressive politicians.

  13. See Aging Reentry Task Force, “Community Re-Integration Pilot Case Management Model,” in Aging in Prison: Reducing Elder Incarceration and Promoting Public Safety, ed. Samuel K. Roberts (New York: Center for Justice at Columbia University, 2015), 84.

  14. Edward R. Hammock and James Seelandt, “New York’s Sentencing and Parole Law: An Unanticipated and Unacceptable Distortion of the Parole Board’s Discretion,” Journal of Civil Rights and Economic Development 13 (Spring 1999): 527–28.

  15. See RAPP, “It Is Important to Understand Structural Barriers in Parole Advocacy,” http://rappcampaign.com/wp-content/uploads/It-is-Important-to-Understand-Structural-Advocacy-to-Parole-Advocacy.pdf.

  16. Harris v. N.Y.S. Div. of Parole, 628 N.Y.S.2d 416; 211 A.D.2d 205 (1995).

  17. Ibid.

  18. RAPP, “It Is Important to Understand Structural Barriers to Parole Advocacy.”

  19. Ibid.

  20. New York Consolidated Laws, Executive Law—EXC § 259-c, “State board of parole; functions, powers and duties,” http://codes.findlaw.com/ny/executive-law/exc-sect-259-c.html.

  21. Daniel O’Donnell and Kenneth Zebrowski, “Re: Proposed Rule on Parole Decision-Making, I.D. No. CCS-51-13-00013-P,” www.correctionalassociation.org/wp-content/uploads/2014/01/Assemblymember-Daniel-ODonnell.pdf.