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!