Parole & Probation
Many inmates in the NYS Corrections system are eligible for parole before their full sentence has been served. Technically, inmates who are paroled are still in the “custody” of the NYS Department of Corrections. However, they are serving the remainder of their sentence outside of prison and under the supervision of the state. Parole is granted or denied following a “parole hearing”. Initial parole hearings are typically held after an inmate has served the “minimum” part of an indeterminate sentence and at least every two years, thereafter. Parole hearings are conducted by a panel of three members of the NYS Board of Parole (BoP). Often they are conducted by video conference, sometimes they are conducted in person by the three member panel.
Inmates are permitted to testify on their own behalf and present other evidence supporting their contention that they should be granted parole. The BoP will review the nature of the inmate’s offense and other information contained in the inmate’s Dept. of Corrections record. Particular attention and emphasis will be paid to the inmate’s disciplinary record (while they have been incarcerated) and to the whether or not the crime which they are serving time for was violent or not and whether they are repeat offenders. Testimony of victims can also be taken and can influence the BoP’s decision to grant or deny parole.
Inmates do not have a right to, or the option of, being represented by a lawyer at a parole hearing. In fact, there is no “right ot parole”, Whether or not an inmate is granted parole is at the “discretion” of the Board of Parole panel hearing each individual application for parole. However, an attorney familiar with the process and procedures of the Board of Parole can help an inmate prepared for their hearing and assist in assembling supporting materials.
Appealing Parole Board Denials
Often inmates are not granted parole after their initial hearing before the BoP. In fact, many inmates will be denied parole after every hearing. Since the mid-90’s parole rates have plummeted, particularly for inmates serving time for what the state considers a “violent” offense.
If an inmate is denied parole they do have a right to appeal that decision. Inmates who wish to appeal their parole denial are required to notify the BoP within 30 days of their receiving notice of having their application denied. Normally, the written decision provided to the inmate includes (on the back) a standard form that can be completed by the inmate notifying the BoP of the inmate’s intent to appeal. In addition to having a right to appeal a parole denial, an inmate has a right to be represented by legal counsel for the appeal. If an inmate cannot afford to retain private counsel, at the inmate’s request counsel will be appointed for them by the state. The appeal process consists of a written legal memorandum being submitted to an wants to appeal they have notify the BoP within 30 days of receiving their parole denial.
Article 78 Proceedings
In the vast majority of cases Parole Appeals are denied by the Division of Parole. A denial of a parole appeal is considered to be an “exhaustion” of administrative remedies and entitles an inmate to ask a NYS court to to review the Parole Board’s action. The action that can be taken is the filing of an Article 78 petition in the Supreme Court where the inmate is incarcerated or in the county where the Parole Board action occurred (normally, Albany County). The standard of review of an administrative action is that in order for a court to order a new parole hearing (or more rarely, order parole for an inmate) the BoP’s actions must be shown to have been “arbitrary and capricious” and “irrational bordering on impropriety”. These are very high standards and most Article 78 petitions do not succeed in achieving an order for a new parole hearing or an order requiring parole. However, there have been successful Article 78 proceedings that have resulted in new parole hearings and, rarely even an order directing the BoP to parole an inmate. Article 78 proceedings do not qualify for legal assistance paid for by NYS. Rather, inmates must either file the action themselves (pro se) find the financial means to retain a private attorney or find a private attorney (or legal services organization) that will file the Article 78 petition pro bono (without charging a fee).
Parole revocation proceedings begin when a parole officer files a “violation of parole” charge. This almost always results in an immediate arrest of the parolee. Once in custody the parolee is entitled to a “preliminary hearing” at which the parole officer need only provide a minimal amount of evidence of a violation. This hearing takes place in the county or city jail where the parolee is being held and is conducted by an Administrative Law Judge (ALJ) who works for the Dept. of Corrections. The parolee can “admit” or “deny” the allegation of a violation. The proceeding involves the parole officer as a witness, a “prosecutor” who is employed by the Dept. of corrections, the ALJ and the parolee. If the parolee has obtained an attorney he can be present. Sometimes an offer is made by the prosecutor (usually additional state prison time) which the parolee can accept or request a “final hearing.” At the final hearing the parolee can be represented by a private attorney or the ALJ will appoint an attorney to represent the parolee. If the parolee loses the final hearing parole is usually revoked and the parolee must serve out the remainder of their original prison sentence.