Someone on one of the listserv's I belong to posted this today. It would be funny if it weren't basically true...
"We, as criminal defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job - our sworn duty - as criminal defense lawyers, to protect our clients from those people." -Cynthia Rosenberry
Friday, January 27, 2006
Saturday, January 21, 2006
Parole and the Power of "Discretion"
For the past three years I've worked with a pro bono client who's an inmate in the NYS correctional system. Background to this is that my client, at age 14, was asked by older boy from his Bushwick, Brooklyn neighborhood to act as a "lookout" while the older boy robbed a bodega with a gun. The robbery went bad, the store owner struggled with the kid who had the gun and was killed when the gun went off. My client was charged with 2nd degree murder (accomplice felony murder) and at age 15 took a deal his attorney had worked out...accepting a sentence of 7 years to life. At that time the maximum sentence he could have received was 9 years to life (if he had gone to trial and been convicted). Since that deal the client has spent the last 11 years incarcerated. He's had three parole hearings and been denied each time. He's appealed his parole denials three times and been denied twice (the last is pending right now). I've helped file an Article 78 Petition on his behalf, seeking judicial review of the Parole Board's action and been denied.
You might not think that keeping this young man in prison is a bad idea...you'd think that unless you knew him and his record. He had no criminal/juvenile record at the time he was arrested. In eleven years of incarceration he's received on two disciplinary "tickets", neither involving violence, weapons, etc. He's had testimonial letters provided to the parole board from his 4th grade teacher (offering to give him a place to live if paroled!), from a Spofford youth counselor who never writes parole recommendations. So, for a split second decision at age 14, he's spent nearly half his life (and all of his adult life) incarcerated.
What's really troubling about this is that he's not being kept in prison because he's a threat to anyone. He's being kept there because the Board of Parole has become an instrument of a "no parole" policy that Gov. Pataki has trumpeted for more than a decade. Back when my client accepted the 7-life deal, about 25% of offenders in his category were being paroled after either their first or second parole hearings. Since then the rate of parole for this category of inmates has steadily declined and last year was about 1%. Not coincidentally, over that period of time the Board of Parole has become 100% appointees of Gov. Pataki. Moreover, in speech after speech Pataki has made clear that he wants the law changed to eliminate parole for "violent offenders". Of course, Pataki can't retroactively impose that kind of change on people already sentenced...but, the Board of Parole, that's a different story. In effect, under the guise of using the "discretion" that the law gives them to determine who should be paroled and who shouldn't, the Board has instituted an ex post facto sentencing scheme.
How unfair is this? Well, my client gave up his right to a trial and his right to appeal in order to get a slightly lower minimum sentence. He did so because his attorney (not me) advised him that it was worth it because he was very likely to be paroled early.
What can be done? Sadly, very little. Because the Board has the statutory authority to use its "discretion" its almost impossible (absent a foolish on the record statement by the Board) to get a judge to find that the Board was abusing its discretion. Case after case challenging the Board of Parole has gone to court relying on the statistical data to show that "discretion" is not at work. But, except for a couple of cases, the parole denials always stand.
Rule of law, due process...all high minded, noble sounding sentiments. If you're an inmate in NYS they mean nothing!
You might not think that keeping this young man in prison is a bad idea...you'd think that unless you knew him and his record. He had no criminal/juvenile record at the time he was arrested. In eleven years of incarceration he's received on two disciplinary "tickets", neither involving violence, weapons, etc. He's had testimonial letters provided to the parole board from his 4th grade teacher (offering to give him a place to live if paroled!), from a Spofford youth counselor who never writes parole recommendations. So, for a split second decision at age 14, he's spent nearly half his life (and all of his adult life) incarcerated.
What's really troubling about this is that he's not being kept in prison because he's a threat to anyone. He's being kept there because the Board of Parole has become an instrument of a "no parole" policy that Gov. Pataki has trumpeted for more than a decade. Back when my client accepted the 7-life deal, about 25% of offenders in his category were being paroled after either their first or second parole hearings. Since then the rate of parole for this category of inmates has steadily declined and last year was about 1%. Not coincidentally, over that period of time the Board of Parole has become 100% appointees of Gov. Pataki. Moreover, in speech after speech Pataki has made clear that he wants the law changed to eliminate parole for "violent offenders". Of course, Pataki can't retroactively impose that kind of change on people already sentenced...but, the Board of Parole, that's a different story. In effect, under the guise of using the "discretion" that the law gives them to determine who should be paroled and who shouldn't, the Board has instituted an ex post facto sentencing scheme.
How unfair is this? Well, my client gave up his right to a trial and his right to appeal in order to get a slightly lower minimum sentence. He did so because his attorney (not me) advised him that it was worth it because he was very likely to be paroled early.
What can be done? Sadly, very little. Because the Board has the statutory authority to use its "discretion" its almost impossible (absent a foolish on the record statement by the Board) to get a judge to find that the Board was abusing its discretion. Case after case challenging the Board of Parole has gone to court relying on the statistical data to show that "discretion" is not at work. But, except for a couple of cases, the parole denials always stand.
Rule of law, due process...all high minded, noble sounding sentiments. If you're an inmate in NYS they mean nothing!
Trial and Tribulations of Town Justice Court
Recently finished up a traffic case in a local Town Court and, as usual, ended up very frustrated with the "justice" dispensed. The relationship between Town Justices and officers prosecuting their own cases (traffic) sometimes goes way over the line. I've gotten used to seeing magistrates bend over backwards for the police they see week in and week out. But, when an officer's testimony is riddled with contradictions and remarkable coincidences you expect the magistrate to sometimes...just sometimes, actually find the defendant's testimony more credible. Unfortunately, its so rare that when it happens I'm actually surprised. I'd get more specific about what happened this week...but, it might become obvious who I'm talking about and its not about just one Town Justice, things are pretty much the same in most town courts. Enough of a rant...
Medicaid- Pending Changes in Federal Law
For years there has been a huge debate over what is known as "Medicaid Planning" with attorneys and the elderly on one side and government officials on the other. As the costs of Long Term Care (a uphemism for being institutionalized in a nursing home) have skyrocketed, more and more middle class people have tried to find ways to protect their assets from being drained away by nursing home costs. In 2005, the average monthly cost of nursing home care in New York was over $8,000 and the average length of nursing home institutionalization for an elderly person was nearly 3 years. That translates to an average cost of almost $300,000 for the nursing home care of one person! So, its certainly understandable that people would want to see some of their property and money passed on to their children and that a lifetime of saving isn't flushed down the drain of nursing home care. However, the increasing number of people qualifying for Medicaid covered nursing home care and the increasing cost of monthly care (its been rising at more than 2x the rate of overall inflation) has meant that Medicaid costs to govenment have risen to levels approaching 50% of the budgets of many states. Attorneys have responded to their client's desire to protect assets by creating a variety of different strategies involving gifting and/or the creation of trusts. In turn, both state and federal governments have responded by making it more and more difficult for people with the means to pay for nursing home care to avoid doing so. In early 2006 revisions to Medicaid law will take effect that extend the period that Medicaid agencies will "look back" for transfers to other people or to trust vehicles. Many politicians and commentators have criticized Elder Law attorneys for their efforts to find new and creative ways for their clients to protect some resources. These criticisms are totally misplaced. Whether a lawyer feels the current system is irrational or not (I'm one who does), the attorneys duties are clear...namely, to represent their client's interests. If attorneys start to let their views on public policy cloud the kind of counsel and respresentation they give their clients they aren't doing their job. So, finding new ways, looking for loopholes in new Medicaid legislation is exactly what attorneys should be doing in order to further the individual interests of their clients. It is also very clear that the pending changes in Medicaid rules will surely not be the last. As the baby boom generation ages the number of people institutionalized in nursing homes will rise even more rapidly than it has over the past couple of decades. If governments continues to shoulder most of these costs the result will be dramatic increases in taxes or ever more stringent rules for eligibility. The bottom line is that people who don't do their estate and Medicaid planning soon may find that there is no way to protect their assets from long term care exhausting those resources. -Glenn Magnell
For years there has been a huge debate over what is known as "Medicaid Planning" with attorneys and the elderly on one side and government officials on the other. As the costs of Long Term Care (a uphemism for being institutionalized in a nursing home) have skyrocketed, more and more middle class people have tried to find ways to protect their assets from being drained away by nursing home costs. In 2005, the average monthly cost of nursing home care in New York was over $8,000 and the average length of nursing home institutionalization for an elderly person was nearly 3 years. That translates to an average cost of almost $300,000 for the nursing home care of one person! So, its certainly understandable that people would want to see some of their property and money passed on to their children and that a lifetime of saving isn't flushed down the drain of nursing home care. However, the increasing number of people qualifying for Medicaid covered nursing home care and the increasing cost of monthly care (its been rising at more than 2x the rate of overall inflation) has meant that Medicaid costs to govenment have risen to levels approaching 50% of the budgets of many states. Attorneys have responded to their client's desire to protect assets by creating a variety of different strategies involving gifting and/or the creation of trusts. In turn, both state and federal governments have responded by making it more and more difficult for people with the means to pay for nursing home care to avoid doing so. In early 2006 revisions to Medicaid law will take effect that extend the period that Medicaid agencies will "look back" for transfers to other people or to trust vehicles. Many politicians and commentators have criticized Elder Law attorneys for their efforts to find new and creative ways for their clients to protect some resources. These criticisms are totally misplaced. Whether a lawyer feels the current system is irrational or not (I'm one who does), the attorneys duties are clear...namely, to represent their client's interests. If attorneys start to let their views on public policy cloud the kind of counsel and respresentation they give their clients they aren't doing their job. So, finding new ways, looking for loopholes in new Medicaid legislation is exactly what attorneys should be doing in order to further the individual interests of their clients. It is also very clear that the pending changes in Medicaid rules will surely not be the last. As the baby boom generation ages the number of people institutionalized in nursing homes will rise even more rapidly than it has over the past couple of decades. If governments continues to shoulder most of these costs the result will be dramatic increases in taxes or ever more stringent rules for eligibility. The bottom line is that people who don't do their estate and Medicaid planning soon may find that there is no way to protect their assets from long term care exhausting those resources. -Glenn Magnell
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