Defense lawyers say the New York State Board of Parole is violating a court ruling handed down last Tuesday that requires serious offenders to be treated the same as other offenders when it comes to revoking parole.
Under the state appeals court ruling last week, if a parolee is found in violation of parole, the presiding officer of the hearing that determines if a violation occurred should also be the one to determine for how long the parolee should be re-incarcerated.
Previously, the state parole board treated serious offenders differently from non-serious offenders. When a parolee who was convicted of homicide, sex crimes or kidnapping was found in violation of parole, the hearing officer would make a recommendation for how long the parolee should go back to prison. That recommendation could be overruled unilaterally by any member of the state parole board.
Defense lawyers said, as of Friday — three days after the ruling came down — hearing officers were still issuing only recommendations, rather than final rulings, about re-incarceration time when it came to serious offenders.
"As we speak, the Board of Parole is violating an appellate court's decision, which held that our clients must have an opportunity to address Board members who have control over their liberty," said Martin LaFalce, a lawyer for the Legal Aid Society who has been litigating this case.
LaFalce said most of the parole violations of these serious offenders are non-criminal, technical violations, such as failing to make an office report, breaking curfew and fraternizing with other parolees. If a parolee has to spend time in prison again for that violation, LaFalce said, he should be able to face the person deciding the re-incarceration time.
"Our clients must have the opportunity to explain themselves before they can be recommitted to prison," LaFalce said.
Peter Cutler, a spokesman for the New York State Board of Parole, said he has not been made aware — so far — of any violations of the court's ruling. But he said the parole board is currently considering changes based on the ruling and expects changes to go into effect in a few days.
The appeals court stated that treating serious offenders differently was a violation of due process rights and the ruling was to put an end to the practice. The court also said that the legislature intended for hearing officers to make the final decision on the amount of time a parole violator was to be re-incarcerated.
Therefore, according to the ruling, parole board members who were never present at the revocation hearings should not have the unilateral authority to decide the prison time. State statute invites a parole board member to preside at revocation hearings, but few of them do.
The case the appeals court ruled on last Tuesday involved a parolee named Clarence Mayfield, who was convicted of manslaughter in 1998, released under supervision in 2008 and then charged with violating his parole after three months. The hearing officer recommended that he be sent back to prison for 18 months, but a member of the parole board imposed a 36 month term instead.